Sharleemar

Yet, another LVNV suit. Need help at where I am now with case...

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Oh boy… I think I’m in a pickle now…and maybe too late to make any more actions on my case…

Thank you in advance for helping me on this one.  

 

I just cannot figure out what I need to do next. I have been reading this forum for a while now. I have read and learned A LOT (my eyeballs were drying out from the “study”) but for some reason, no matter how many times I read members issues/responses or read the CA Rules and Procedures, my brain is just not capturing it. I am looking for what my next step will be. The case is filed in San Bernardino, there is a Trial Setting Conference for October 18th.

 

My questions are: When do I ask for Discovery, BOP’s, Motions, etc? Am I too late?

Or does everything happen after the Trial Setting Conference?

Should I file a motion for the "Real" plaintiff? 

 

 

1. Who is the named plaintiff in the suit?

LVNV Funding, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Hunt and Henriquez

3. How much are you being sued for?

$6,000+

4. Who is the original creditor? (if not the Plaintiff)

Chase (but the DV also says Capital One)

5. How do you know you are being sued? (You were served, right?)

Served April 27th.

6. How were you served? (Mail, In person, Notice on door)

They served my Aunt at my house.

7. Was the service legal as required by your state?  Process Service Requirements by State - Summons Complaint
Yes, I believe so. She would not accept it the first two times and I told her to tell them to leave it for me via her the third time they came around.  

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Nothing before the letter dtd Feb 21st of their intent to file suit.  Items may have been sent an old address.

9. What state and county do you live in?
California, San Bernardino

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

CR says 2010.

11. What is the SOL on the debt?

CA – 4 years.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or ( b ) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Suit filed by Plaintiff April 17,

 

My Answer AND Cross Complaint for Damages filed May 28, 15 pages. (But I also gave exhibits (prob shouldn’t ‘ave done that…). I also mentioned the Law Firm as a “Debt Collector”, making calls to my house to collect the debt (not LVNV), sending collection letters and asking for payment be sent to them and negotiating a settlement (to them). I should have filed a motion to clarify who the “real” plaintiff is.  

 

Plaintiff filed Answer to Cross-Complaint, July 2 mentioning the standard “…that any violation that may have occurred was not intentional and resulted from a bona-fide error…” blah, blah and the other common response “… that any violation that may have occurred was not intentional and resulted notwithstanding the maintenance procedures adapted to avoid such violation.”

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Just with the Debt Collection Attorney ofc and the Credit Bureaus ~ yes.

Not OC (Chase or Cap1??) and not the CA, LVNV.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

Yes! Feb 25th with a CMRR.

They sent a response that shows Chase as the creditor AND Capital One, with different account numbers. They also sent 4 months of Statements with Chase. Nothing else shows that LVNV and I have any agreement for money AT ALL.  

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming.

 

Done. See #12 answer.

 

16.We need to know what the "charges" are. Please post what they are claiming. Should see something like Common counts, account stated, breach of contract, open book, account, unjust enrichment.

Common Counts: on an open book account for money due and account stated in writing by Plaintiff and Defendant.

 

17.Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

None

 

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

None… (yet?) (this is where I need help)

It appears in their Answer cross-Complaint they will ask for Discovery.

 

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing.

 

I just HOPE I am on the right track for this case. Any help is immensely appreciated.

 

My GOAL: Included in the Hall of Fame Winners
 

 

 

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SkippieB - First, awesome for you and thank you for sharing your experience and for the encouragement. I feel a bet more confident. I assume since you responded with your BOP then discovery really quickly - I'm behind or better hurry up.

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Send a BOP -- they will have 10 days from receiving it to respond all the activity that occurred over the life of the account.

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send out the BOP, they will object to it because they included account stated in their complaint, be ready with a meet and confer when they do, look up calawyer or seadragon for their response to a BOP denial.

I would also get started on a request for documents.  You are welcome to use the one below, redact it to fit your needs. don't wait for a response because you could easily run out of time if they stall you long enough.  I would look up and do a search in your rules of civil procedure for the words bonafide error, they will always claim that, but it usually does not apply.  If you want to object or respond to their answer, you need to know what a real bonafide error is. (needs to be a clerical error not a lawyer error on how he practices.

 

 

 

Request for production of documents

 

Your Caption for the case

 

Under that  the statutory language for the request(look at plaintiffs request and recycle their useage)

 

DEFINITIONS AND INSTRUCTIONS

 

            The following definitions and instructions apply throughout this request for identification and production, unless the context clearly indicates otherwise:

 

A. This request requires that you produce all writings responsive to any of the following numbered requests which are in your possession or control or subject to your control, wherever they may be located. The writings which you must identify and produce include not only writings which you presently possess, but also writings which are in the possession or control of your attorneys, accountants, bookkeepers, employees, representatives, or anyone else acting on your behalf.

 

B. If you prefer, you may produce all writings which are responsive to any of the following numbered requests by delivering copies of all such writings on or before the thirtieth day following the date of service of this request to: <your name>., <your address>

 

C. All writings which are responsive in whole or in part to any of the following numbered requests shall be produced in full, without abridgment, abbreviation or expurgation of any sort. If any such writings cannot be produced in full, produce the writing to the extent possible and indicate in your written response what portion of the document is not produced and why it could not be produced.

 

D. The term "writing" as used in this request for identification and production is a broadly inclusive term referring to any and all written or other graphic material, however produced or reproduced, of every kind and description and to everything upon which sounds, words, symbols or pictures are recorded or depicted by magnetic or electrical impulse, photography, or otherwise. The term "writing" includes, by way of example and not limitation, the following and anything similar to any of the following:

 

1. Letters, telegrams, telexes, cables, TXWs, memorandum, interoffice correspondence and other forms of correspondence and written communication;

 

2. Agreements, contracts, policies, handbooks, practice guidelines, reports, studies, records, books, journals, papers, statements, pamphlets, circulars, publications, stenographic notebooks, files and their contents, file folders, file covers, file jackets, and notes;

 

3. Summaries, abstracts, indexes, tabulations, graphs, charts, lists and inventories;

 

4. Calendars, desk calendars, appointment books, schedules, logs, telephone messages, diaries, time sheets, minutes of meetings, and transcripts;

 

5. Financial statements, checks, invoices and accounting records and books;

 

6. Pleadings, deposition transcripts, trial transcripts, interrogatories, answers to interrogatories, affidavits, declarations, papers filed or lodged with courts, and papers filed with or sent to administrative agencies.

 

7. Tape recordings, sound reproductions, objects, photographs, motion pictures, microfilm, computer data stored on magnetic tape, computer printouts, data processing cards or tapes, and computer disks or diskettes.

 

E. You are required to produce not only the original or an exact copy of the original of all writings responsive to any of the following numbered requests, but also all copies of such writings which bear any notes or markings not found on the originals and all preliminary, intermediate, final and revised drafts of such writings.

 

F. It is not intended that this request require production of any writings which are privileged. If you are not producing any writing responsive to any of the numbered requests below on the basis of a claimed privilege, or for any other reason, state the following information:

 

1. Describe the writing with specificity;

 

2. Identify the privilege claimed or other reason why the writing is not produced;

 

3. State the names and capacities of all persons who participated in the preparation of the writing; and

 

4. State the names and capacities of all persons to whom the document was circulated or its contents communicated.

 

G. Plaintiff _______________. is referred to in this request for identification and production as "Plaintiff."

 

 

 

DEMAND FOR PRODUCTION OF DOCUMENTS

 

1. The complete contents of records, paper and/or electronically stored data, relevant to the alleged account ending in xxxx from _________________________..

 

2. The complete Credit Card Account Purchase Agreement dated  xx/xx/xxxx between [name of original creditor] and [name of jdb] include any attachments, exhibits, and/or appendices to same.

 

3. All contracts, agreements, and/or applications for credit signed by “my name”, pertinent to the alleged account ending in XXXX.

 

4. All writings concerning failure of “my name” to make payments to [name of original creditor] on the alleged account ending in XXXX.

 

5.   Produce each agreement / terms and conditions you contend was offered to and accepted by the defendant, including but not limited to the original account agreement, any amendment to the agreement, any notice of a change in any term of the agreement, or any schedule of interest rates or fees applicable to the alleged account ending in XXXX from (date it says you opened the account) to the present.

 

6.  Plaintiff alleges account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiffProduce the document that will be used to introduce into evidence that identifies this account as an account stated account.  (use this if one of the causes of action was account stated)

 

7. All copies of checks, money orders and/or writings from “Plaintiff’s assignor/s” showing any and all payments made by Defendant.

 

8.  For each document listed below that was delivered to the defendant, please produce all documents indicating the date the document was delivered and the manner in which it was delivered, including, if the document was delivered by the Postal Service or other courier, the location to which it was addressed and whether the document was returned undelivered:

             a. The original account agreement for the account.

             b. Any amendment to the agreement for the account.

           c. Any notice of a change in any term of the account, including but not limited to a change in the rate of interest or amount of any fee applicable to the account.

             d. Any schedule of interest rates or fees applicable to the account.

             e. Any credit card issued in connection with the account.

             f. Any statement of payments, charges, fees or interest for the account.

 

9.  For each document you have produced that you contend applies to the account and that does not contain some piece of the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature:  Please produce every document containing information from which it may be determined whether the document applies to the account.

 

10. Produce a list of debits and credits from the opening of alleged account, to the last closing statement that will be used to identify an open book account.  .(use if cause of action is on open book, money lent or received)

 

11. Produce documents relative to the purchase of the alleged account at issue to include electronic mail, Electronic word processing correspondence, electronic database files. Meta data associated with alleged account parameters and any written correspondence between plaintiff and the alleged assignors to the alleged account. electronic data files are to be produced in a windows readable format or a program for file translation on CD-R media.

 

12. Any documents, electronic mail, text messages, or any other form of communication between; <Process server name>; <Company he works for>.; and Plaintiff's counsel or employees concerning the alleged account ending in XXXX.

 

13. Produce documents related to employee training in the processing of alleged accounts including the entering of data from the alleged assignor, processing through the storage system, updating or changing the electronic data, adding data to the computer system, changing TIFF information using computer image processing programs, and destruction of documents procedures in use for the past 5 years.

 

14. Produce any documents Plaintiffs relied on in the review of the Complaint which formed the basis for the alleged Causes of Actions plead in the complaint.

 

16. Documents responsive to the active status in the state of incorporation or formation of [name of jdb] 

 

17. Produce a list of  terminated or discharged employees within the last 5 years. The list can be in Microsoft Excel® format.

 

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Here is what another member had to say about bonafide errors.

 

"bonifide error" was not intentional and resulted, if at all, from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such errors.

This means in order to use this defense it has to be:

1.) an unintentional error.
2.) they need to prove they have procedures in place to prevent the error
3.) they reasonably followed their procedures.

****THIS MEANS YOU NEED TO DEMAND THEIR POLICY AND TRAINING MANUALS*****

This is where you can kick their posterior!

More often than not, their policy manuals are defective,(if they even keep one!) which wipes out this defense.

So "bonifide error" is not available if 1.) they do not have a policy manual or have an improper policy manual not addressing the issue or 2.) if they do have a proper manual, they intentionally failed to follow the manual.(This will require depos.)

This is a tough defense for collector to utilize and is essentially the only defense available under FDCPA!
 

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SkippieB - First, awesome for you and thank you for sharing your experience and for the encouragement. I feel a bet more confident. I assume since you responded with your BOP then discovery really quickly - I'm behind or better hurry up.

 

That's right.  You need to wage mad-battle.   All they want is an easy default which you need to show them ain't gonna happen in your case.  Better late to the game than never at all.

 

Carol-Lynn

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Thank you so - so much. I've got the BOPs out today and will get out the discovery Friday. 

 

Something else to share: The Answer Cross Complaint doesn't match up to my complaint (numbering) It's really hard to follow what they are denying to my cross complaint. 

 

BUT one interesting part appears to admit fault to something but asks for a reduction... Am I wrong?

 

Quote: 

"If it should be found that this answering cross-defendedant is any manner legally responsible for damages sustained by cross-complainant, if, and which this cross-defendant denies, that such damages found to have been incurred or suffered by cross-complainant in this action were proximately contributed to by others, and it is necesary that the proportionate degree of negligence or fault of each of said persons or companies, whether parties to this action or not, be determind and prorated, and that any judgement that might be rendered against cross-defendant be reduced accordingly to its proportioned degree."  

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Cross complaint? Why did you file a cross complaint?

 

 

You sent the BOP - you sent a Request for Production... maybe a quick Request for Admissions tailored around who the original creditor was and the intent to confuse and mislead you. That sets you up for a Rosenthal suit (or cross complaint).

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Yes, 1stStep. I filed a cross-complaint since I was still bombarded with telephone calls at home and on cell, by the attorney's office (not the debt buyer) after I sent a c&d letter - for one.

 

So, today I recevied the normal three items: Demand for Production, Special Interrogatories and Admission for Plaintiff. In the Admissions doc it shows an exhibit with the CC application (signed), and one statement from Chase. Holy-Cow! WHAT DO I DO WITH THAT??

 

I will look around at for other responses that has been recommended. BUT I may need some help on specific items like above.

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Have they provided you with a BOP yet?  And did you send out your request for documents?

 

You can post your rogs, admissions here, and we can help you answer them.

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Thank you! 

 

No, they have not provided me with the BOP yet. I went off your format and sent the request for documents last week. I will post my rog and admissions over tonight or over the weekend for Mondays review. 

It says I have a 30 day response back to them, which will be after the trial readiness conference of October 18th.  

 

Thanks again! 

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Here we go...  I will need help with these please.  Some of these maybe hard to assist me in answering since I made a cross complaint. Just let me know if you want specific info so that I can answer correctly for the case.

 

Thanks a ton!  

 

Demand for Production

No. 1:   All documents, whether original or copies, that support the claim of fraudulent statements you made in your cross-complaint, filed in the above referenced matter regarding Chase Bank. 

XXX

 

No. 2: All correspondence sent by you to LVNV Funding regarding Chase Bank credit account currently owned by LVNV Funding

There is none.

 

No. 3: All correspondence sent to you to LVNV Funding regarding Chase Bank credit account currently owned by LVNV Funding

There is none

 

No. 4: All documents that you identified in your responses to Plaintiff Interrogatory No. 15.

Special Interrogatory No. 15 says, For each purpose to Plaintiff’s Request for Admission, Set One that is not unqualified admission, please identify (for the purpose of this interrogatory, Identify shall mean to state the name and location) all documents and other tangible things that support your response and state, address and telephone number of the person who has each document or thing.

 

Request for Admissions:

Plaintiff LVNV Funding requests you admit the truth of the following matters of fact:

 

No. 1    Defendant had a Chase credit account, currently owned by LVNV Funding.

 

No. 2    Defendant received statements from Chase regarding her Chase credit account, currently owned by LVNV Funding.

 

No. 3    Admit that the copy of the billing statement attached as Exhibit 1 for Defendant’s Chase credit account, currently owned by LVNV Funding is genuine.

 

No. 4    Admit that the copy of the credit card application, attached as Exhibit 2 by Defendant’s Chase credit account, currently owned by LVNV Funding is genuine.

 

No. 5    Defendant resided at XXXX, CA in years 2009 – 2010.

 

No. 6    Defendant did not dispute any statements received from Chase Bank credit account currently owned by LVNV Funding.

 

No. 7    Defendant made payments to the Chase credit account, currently owned by LVNV.

 

No. 8    As of Oct, 2010 the balance owed by Defendant on the Chase account, currently owned by LVNV was $ 6,500.

 

No. 9    Defendant has not made any payments on the Chase credit account currently owned by LVNV Funding since June 2010.

 

SPECIALLY INTERROGATORIES         

No. 1    Did you submit a request for a credit account with Chase?

 

No. 2    Did Chase issue a credit account in your name?

 

No. 3    State the approximate date you opened the CREDIT ACCOUNT, currently owned by LVNV Funding.

 

No. 4    Did you use the credit account?

 

No. 5    Identify each and every person who you ever authorized to use the credit account.

 

No. 6    Did you receive statements from Chase regarding the credit account?

 

No. 7.   Did you dispute any statement you received from Chase re the account?

 

No.  8   State the date of each statement that you disputed in writing.

 

No. 9    Did you make payments on the account?

 

No. 10  State the approx date of the last payments made to account.

 

No. 11              Is $6,500 the amount set forth in the complaint in this case as the sum owed as of Oct 2010, your balance due on the account?

 

No. 12              If you do not agree that $6,500 the amount set forth in the complaint, is your balance due on the account, state all facts upon which you base your dental that the sum of $6,500 is your balance due on the account.

 

No. 13  List each and every address you resided at for the last 5 years,

 

No. 14  For each response to Plaintiffs Request for admissions, that is not an unqualified admission, please state all fact upon which you base your response.

 

No. 15   For each purpose to Plaintiff’s Request for Admission, Set One that is not unqualified admission, please identify (for the purpose of this interrogatory, Identify shall mean to state the name and location) all documents and other tangible things that support your response and state, address and telephone number of the person who has each document or thing.

 

No. 16   Please state all facts supporting your claim that LVNV has made knowing and intentional misrepresentations or misleading and/or false representations as to the legal state, character, and/or amount of the debt violation of USC 1692c and in violation of USC 1692e10 as alleged in paragraph 17 of the cross complaint.

 

No. 17  Please identify each misleading and or false representation as to the legal state, character, and amount of the debt allegedly made to you by LVNV regarding the account that is subject to this case.  

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I still need some help please! please - please - please

 

I have the prod of docs response and they submitted a year of statements and the application for the credit card again. I do not know what is my next step.

 

The trial setting conference is October 18th. I have not officially requested admissions on them or further discovery.

 

I'm my docs request I asked specifically for the entire account information of which I have not recevied in response.  

I read somewhere in one persons post that I can serve (mail) discovery request on that day in CA. 

 

If you don't have time to help me perhaps direct me in the post where I can find how to write out the language of denial. I just can't say,  "deny" under each admissions. As you can see in my posts - the questions are tricky and I want to answer the truth but deny the admission if you catch my drift.

 

Again, thank you in advance on this. I really want to win against these guys. They already know in my cross-complaint that they made a mistake.  

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Is the statement and app been authenticated? If not, don't worry about it...

 

As far as your discovery - send a meet and confer - by fax, and give them say, 5 calendar days to respond, or threaten them with a MTC. I would send it on a Friday around noon... and make one of  their peons have to work a weekend. 

 

If 5 + 5 days elapse and no docs, then hit them with an MTC...

 

As far as the conference - fill out your case management statement to read that Plaintiff has not provided discovery. 

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Thank you 1stStep! 

 

Please forgive my rudimentary questions: 

 

What does the authenticated app / statement look like?  Is there a stamp or written statement or something else that will show me an auth? 

 

What is a meet and confer? I mean, what will I have to do or be prepared to do?  They have been really fast at responding and I'm sure they will respond quickly. 

 

Should I send discovery and admissions now to them or is that too late? 

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The documents would be accompanied by a declaration signed under penalty of perjury (it may also be notarized). 

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Sharleemar,

If you've already sent out your BOP, look at 1111girl's thread to help you formulate yoyr snswer. I believe her ans were based on them not answering her BOP yet.

If you're still have problems repost

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thank you helpme. that is what I needed. I knew it was there but couldn't remember where I found it. 

 

I am still not sure what to do with or how to respond to the exhibits they produced in the BOP response. Although they are not authenticated. I will be working on my response and interr's and discovery to them.  

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HELP! I NEED TO FILE BY TOMORROW a Case Management Conference Statement. What is that??? what does it need to say? is it just a form or a letter?  

 

I've read through Seadragon, 1111girl, Calawyer and others and cannot find any samples.  

 

My Case Managment Conference is October 18th. 

I have a cross-complaint with my answer

I have the BOP plaintiff responses

The Discovery, Admissons and Irr has been sent by Plaintiff and not sent by me yet (working on them). 

 

I can do a meet and confer this week - but what do I say? do?

 

I am soooo lost! I'm trying to get the direction I know is on this forum but it's not coming in. Perhaps because I'm sooo lost on what to do next I've confused everyone that could help.

 

I want to win my case. I just cannot afford to pay these guys and it would totally BLOW to lose when I've been trying to "get it". 

 

Any help is apprecaited - really! Thank you! 

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Hello,

A cmc statement us just information to your judge where you are in the process. So I believe it asks when you think you will be done with each of your discovery, if you possibly plan to file any motion to compels (bop, discovery etc), if so state you will need time to review any additional docs provided and state how long you need to review.

If you have other issues like you will be going oyt if town on business then state when give dates you're not available.

At thus cmc meeting is where judge will set your trial date so the more info you give to judge the easier it will be for judge to decide on dates.

Hth

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HELP! I NEED TO FILE BY TOMORROW a Case Management Conference Statement. What is that??? what does it need to say? is it just a form or a letter?  

 

I've read through Seadragon, 1111girl, Calawyer and others and cannot find any samples.  

 

My Case Managment Conference is October 18th. 

I have a cross-complaint with my answer

I have the BOP plaintiff responses

The Discovery, Admissons and Irr has been sent by Plaintiff and not sent by me yet (working on them). 

 

I can do a meet and confer this week - but what do I say? do?

 

I am soooo lost! I'm trying to get the direction I know is on this forum but it's not coming in. Perhaps because I'm sooo lost on what to do next I've confused everyone that could help.

 

I want to win my case. I just cannot afford to pay these guys and it would totally BLOW to lose when I've been trying to "get it". 

 

Any help is apprecaited - really! Thank you! 

 

 

Ok.  Deep breath.  Let's take this one by one.  Here is the form for the Case Management Conference statement:  http://www.courts.ca.gov/documents/cm110.pdf

 

Just give very simple answers (i.e. for the description of the case you can say:  "plaintiff sues on an alleged debt that it claims to have purchased from  either Chase or ____.   Defendant has cross claimed for unlawful debt collection activity").

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