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Cach vs Spacejam need help please


spacejam
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  • 2 weeks later...

UPDATE:

 

So my original hearing for the motion to dismiss was jan 29th.   Since the new lawyer is based out of Calif.  he called in and asked for  a continuance for today claiming never being notified by me.  It was rescheduled for today.

 

So I show up, not really knowing what to do or say.  Hoping that the lawyer wouldn't show up either.  Well they were going to attempt to call the lawyer but another lawyer shows up on behalf of the new lawyer.  She asks to see all my paperwork and i refuse it.  

 

So the judge calls us up and goes over the base points.   And basically denies my motion due to the fact that the case is still in discovery, and that the case was only filed in august.  She said 7 months isn't  enough to consider failure to prosecute.  She gives me a copy of the notification of new counsel and states that we can continue with discovery and see where this goes.

 

So now my question is do i wait for their discovery requests?  Should i send them my discovery requests?  not sure what to do.

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  • 7 months later...

Update:

 

So nothing from the lawyer after the MTD trial until now 7 months later.  They have now sent me an ex parte motion to amend complaint, plaintiffs attorneys declaration in support of ex parte motion to amend complaint, order to amend complaint and a certificate of service.  Not sure what steps are needed now.  Any help will be greatly appreciated.

 

 

I will write out each document here

 

EX PARTE MOTION TO AMEND COMPLAINT

 

I. Relief Requested

           Plaintiff CACH, LLC now moves the court for an order granting leave to amend the complaint filed in the above-entitled action. Plaintiff solely seeks to amend the prayer for relief to remove any and all requests for pre and post-judgment interest, costs and attorney's fees.  Plaintiff does not seek to amend the substantive allegations in the complaint at this time.

 

II. Statement of Facts

           Plaintiff is the assignee of GE capital retail bank ( herein "original creditor") and the successor-in-interest to credit account xxxxxxxxxxxxxxxx (herein "the Account").  On or about 10/19/2003 the defendant opened the account with the original creditor.  The original creditor subsequently sold and assigned the account to plaintiff.  At the time of assignment, there was a balance of $3xxx.xx due and owing on the account.  Plaintiff filed the instant complaint against the defendant to recover the same.  As part of the prayer for relief in the complaint, Plaintiff requested pre-judgment statutory interest, reimbursable costs, and attorney's fees.  Defendant has appeared in this matter, and thus the reason the for Plaintiff requesting said amendment of this honorable court.  Plaintiff now seeks to amend th prayer for relief to remove the request for pre-judgment satutory interest, reimbursable costs, and attorneys fees and only pursue the principal balance of $3xxx.xx.

 

III.  Legal authority

         Under Wash. CR 15, leave shall be freely given when justice so requires.  THe touchstone for the denial of a motion to amend is the prejudice such an amendment would caust to the nonmoving party.  Cambridge townhomes, llc v pac. star roofing inc, 166 wn.2d 475, 484 (Wash. 2009).  The test for prejudice is whether the nonmoving party is prepared to meet the new issue.  Hendricks vs hendricks, 35 Wn.2d 139 (Wash. 1949).  In the absence of prejudice to the nonmoving party, however, delay alone is not sufficient to justify denial.  Orwick v fox, 65 wn. app 71, 89 (wash. ct. app. 1992).  Here, plaintiff does not seek to amend the factual allegations in the complaint.  Therefore, no new issues are being introduced that the defendant will have to defend against.  Plaintiff only seeks to amend the prayer for relief to remove the request for judgment statutory interest, reimbursable costs, and attorney's fees.  Thus the proposed change would neither cause injustice nor prejudice to the defendant.  Consequently, Plaintiff respectfully requests leave to file an amended complaint and serve the defendant with the same.

 

IV.  PROPOSED ORDER

        A proposed order granting Plaintiff's motion for leave to amend is attached hereto.

 

 

 

This is the first time they are claiming to be an assignee and successor, not sure if that is pertinent information, but it kind of stood out to me as i was reading it over. 

 

 

PLAINTIFF'S ATTORNEY'S DECLARATION IN SUPPORT OF EX PARTE MOTION TO AMEND COMPLAINT

 

 

I, Ryan E Vos declare,

 

1. I am the attorney of record for Plaintiff in the above referenced action.

 

2.  If called as a witness I would truthfully and competently testify to the matters stated herein

 

3.  Plaintif was originally represented in this matter by the kirkland law group.  Kirkland law group filed the instant complaint on behalf of the plaintiff.

 

4. My firm, Mandarich law group llp, subsittued in as counsel in early 2014.

 

5. Plaintiff has chosen that it is in their best interest to amend the prayer for relief to remove the request for pre-judgment statutory interest, reimbursable costs, and attorney's fees.

 

6. Plaintiff respectfully requests this court to grant leave to permit plaintiff to file the first amended complaint attached to this motion.

 

7. Plaintiff does not seek to amend the substantive allegations in the complaint at this time.

 

8.  This motion is not being made with the intent to unduly delay the proceedings, nor is this motion made for lack of due diligence on the part of Plaintiff.

 

I declare under penalty of perjury under the lasws of the sate of washington that the foregoing is true and correct.

 

 

 

ORDER TO AMEND COMPLAINT

 

 

 

This matter came before the court on Plaintiff's motion fore leave to amend the complaint.

 

The Court hereby Orders:

 

           1. Plaintiff shall amend the complaint to remove the request for pre-judgment statutory interest, reimbursable costs, and attorney's fees contained in the prayer for relief.

 

            2.  No prejudice to the defendant has been shown.  Based on the above findings, it is hereby ordered that the plaintiff's motion for leave to amend is GRANTED.  Plaintiff is to file and serve the first amended complaint attached to the motion.

 

         Defendant shall file and serve a responsive pleading within ten (20) days of service fof the amended pleading.

 

 

 

CERTIFICATE OF SERVICE

 

 

           I certify that I mailed a copy of the EX PARTE MOTION TO AMEND COMPLAINT, ATTORNEY'S DECLARATION IN SUPPORT, AND ORDER TO AMEND COMPLAINT, AND AMENDED COMPLAINT TO THE FOLLOWING POSTAGE PREPAID, ON SEP 26, 2014.

 

 

 

 

 These are all the documents i have received, and need help on how to proceed and respond?

 

@racecar @shellieh98 @Anon Amos You guys have been great help thus far i'm hoping you guys can be of help again.

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Have you done anything since you last posted? Did you send discovery? Is there a trial date already scheduled? Give a rundown on what evidence they have already sent you.

 

Most likely they will be given the order to ammend their complaint.  You can oppose it, but it may not do any good, they are not adding to the complaint, only taking away from what they are asking for. (it would benefit you in the long run if you lose)

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@shellieh98

 

I have not sent out discovery to the new lawyer.  No trial date has been set, or that i know of ( no letters sent to me, no court date shows when i search online).  The new lawyers have yet to send any evidence this is only the second piece of information that has come from the new lawyer.  The first was to try to collect from me and to state they took over the case.

 

 

Okay this maybe a dumb question, but under statement of facts they are now claiming to be an assignee and successor, will this come into play later if it is not questioned?  Or is this irrelevant to the amend?

 

 

Thanks!

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Some states have to plead assignment in the complaint, I do not know if wa is one of them, but not many states have that rule, you would need to look it up. If they do not have to, it won't matter in your case, they will rely on the bill of sale they provided you in the beginning.

When the new firm took over, your case did not start over. Anything the prior firm sent you, still counts as if the new firm sent it to you. I would send out discovery asap

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@shellieh98

 

I originally sent my discovery request to the first lawyer. See page 2 post 39.  Are you saying i should send a new request for discovery to the new lawyer?  If so what 5 requests, or should I request from the judge permission to more requests for discovery, or should I just put in the same requests being that i already went to court and the judge stated we are still in the discovery process?

 

Thanks!!

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@shellieh98 @racecar @BV80 @Anon Amos @1stStep

 

Should I be filing discovery with the new law firm? Or should I send a new request for discovery?  If so what 5 requests, or should I request from the judge permission to more requests for discovery, or should I just put in the same requests being that i already went to court and the judge stated we are still in the discovery process?

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It's hard to say without knowing your local rules. My guess is that it's probably too late to go with your original request and send them a meet and confer letter asking them to respond, and if they don't respond you then file a motion to compel with the court. You could check the rules to see if it's too late to do that (it's most likely too late).

 

Or an easier way may be just to send set 2 to the new lawyers. See ASTMedics thread for discovery. It's a Cali thread, but it list the 3 or 4 simple request for production of documents that is what you need. You  need to send the new lawyers a message that you are going to fight this and it's going to cost them time. You need to keep pressure on them and try to get them to dismiss.

 

You also need to learn your rules and the rules of evidence to fight the evidence when you get it.

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@Anon Amos

 

This is all new to me so i'm a little confused.  I was under the impression that discovery remains on going?  If I send them a meet and confer will I actually have to meet with them?  Is it possible to just send a new request for discovery with all new questions?

 

I'm trying to research rules that apply to WA state, but i'm even having a hard time understanding what applies and what doesnt.

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So I don't know wa. rules, you need to see what your rules of discovery are.  They objected after the first 5, so that makes me think you are allowed only 5. But they sent you more than 5, so I don't know.  If it is 5, send the new lawyers 5 good requests. They may object if they have their act together and know you sent the first lawyer requests, but they usually don't communicate well with each other.  If it is more than 5 you may instead want to send a meet and confer saying they never answered the first set. (that you sent to the 1st lawyer) then file a motion to compel based on that.

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@Anon Amos

 

This is all new to me so i'm a little confused.  I was under the impression that discovery remains on going?  If I send them a meet and confer will I actually have to meet with them?  Is it possible to just send a new request for discovery with all new questions?

 

I'm trying to research rules that apply to WA state, but i'm even having a hard time understanding what applies and what doesnt.

 

Again, I don't know your rules, but discovery is most likely ongoing until about a month before trial. I doubt you are limited to only 5 request (but that is probably enough anyway), but I think the bigger issue is whether or not you still have time to send a meet and confer and then file a motion to compel. if not you can probably send a new set to the new lawyer anyway (which will probably be easier). If it was Cali I would tell you exactly what to do. I would just choose one or the other and get it done.

 

Make sure you have all the rules and are reading them. I can't imagine a lawyer getting on the phone to explain the rules of discovery to you, but you probably could learn from the law librarian (and books) at the public law library. Or you could post a rule that doesn't make sense for help here. If I couldn't find a rule saying I was limited to 5 items then I would assume it's not the case. Look under discovery rules for production and inspection of documents and things.

 

Not saying it's a bad idea to call a lawyer, just that you need to figure these rules out and get something happening. And I would think you can send a meet and confer letter  and have that count for the meet and confer, rather than actually having to meet them. 

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This seems to be what they relied on for the limit of 5:

 

<<(4) In addition to section ( b )(3), any party may submit to
any other party a request for production of up to five separate
sets of groups of documents or things without prior permission of
the court.  The requests for production shall conform to the
provisions of CR 34.>>

 

CRLJ 26( b )( 4 )

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So anymore than 5 you need permission from the court. That's a good rule because it stops people from sending tkhe whole laundry list of requests.

How long ago did you send your discovery request?

You need to find out if there's a rule limiting the amount of time you have to file a motion to compel on.

If you send set 2 then you have sent more than 5 request. But it may be too late to do anything about set 1.

You need to find this in the rules and try to determine the best course of action.

1. Send a meet and confer letter regarding set 1.

2. Send them set 1 again.

3. Send set 2 and start over.

Any of the 3 will put pressure on them. If your original request weren't very good then you may lean towards a new set

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@spacejam

 

You can learn more about WA rules, evidence and discovery, etc at one of these WA  county law libraries. There should be WA practice manuals that have all that info neatly summarized with caselaw, forms, etc.   Sometimes the staff at these kind of law libraries are more helpful and will give your more assistance than at a law school library.   Then again, if you do live near a law school library, make use of it.   Although they are not supposed to do it, law students have been known to at least give some pointers to pro se litigants.

 

http://www.wacll.org/

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  • 1 month later...

Hi  I am in almost the exact same situation.  Lawsuit from Kirkland Law Group is a year and a half old.  I never did discovery nor did I do a motion to dismiss.  Just served last night with papers from the court and Mandarich's name on them.  Same wording as in the above except for the bank and the amount.  Seems like the judge already granted it and it has some things to my benefit.  Original lawsuit had 2 bank accounts all jumbled in one.  My concern is that somehow these are new charges.  The wording is quite different.  Also page 2 of the "ORDER TO AMEND COMPLAINT" contains the phrase: "Defendant shall file and serve a responsive pleading within ten (20) days of service for the amended pleading."  I just want to make sure I do not have to give an answer to these newly worded charges.  Do I need new countercharges?

 Interesting that Kirkland Law Group is out of business.  I spoke to a couple of attorney's who were filing class action lawsuits against them.  Wonder what happened there. 

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  • 1 year later...

Holy cow!  I totally dropped the ball on this one guys!    Its been nearly 3 years and no action.  I was going through a divorce and other pressing things came up and disregarded this and practically forgot about it until I just recently ran across my paperwork from when I originally submitted my motion to dismiss.  

There has been no action from the lawfirm nor I in nearly 3 years.  Is there anything I can do at this point?

Also we are at the statute of limitations now, I'm wondering does that apply since a case was already open?

Can I refile my motion to dismiss again?  Any suggestions?  

 

Thanks in advance!

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  • 3 weeks later...

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