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Hi.  I have been following this forum for some time now.  Being sude for accounts atted - common counts and have responsed to summons already.

 

Just had CMC scheduled and I am planning to send out the RPOD.  I am just wondering, what should be my next step.  I feel nervous as a wreck and I am trying to figure out what's the next step.

 

Hoping you guys can help me.

 

Thanks in advance

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Hi @stratocaster  Can you answer the Questions below to help us help you? :)

 

For everyone that posts here, it will help us out if you can provide the following information: (revised 02-09-2012)

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):


1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

7. Was the service legal as required by your state? 

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt? To find out: 

Statute of Limitations on Debts

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).

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

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.

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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

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The elements of an account stated claim in CA from "Hashimi v. CACH," (S.D. Calif. 2012)

 

An account stated claim has three elements: "(1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due." Zinn v. Fred R. Bright Co., 271 Cal. App. 2d 597, 600 (1969). "The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered." Maggio, Inc. v. Neal, 196 Cal. App. 3d 745, 753 (Cal. App. 4th Dist. 1987). As the Ninth Circuit has explained:

An
account
stated
is an agreement between persons having previous monetary transactions that fixes the amount due in respect to such transactions and promises payment. As such, an
account
stated
is itself an independent contract that is enforceable without regard to the underlying transactions on which it is based. After a party has tendered an
account
, the promise to pay the
stated
amount may be expressed, or implied from the actions of the party when their conduct justifies the inference that they have agreed. Unless a debtor objects within a reasonable time to a tendered
account
, the inference of an agreement may be drawn and the
account
considered as
stated
.

Eimco-BSP Service Co. v. Valley Inland Pacific Constructors, Inc., 626 F.2d 669, 671-672 (9th Cir. 1980) (internal citations omitted).

According to the verified complaint: (1) Wells Fargo issued Hashimi a credit card, which he received and used to purchase goods and services; (2) Wells Fargo stated the account in writing in a final billing statement issued to Hashimi on February 28, 2010, which reflected a balance due in the amount of $4,215.89; (3) Hashimi did not dispute the billing statement or any individual charges on the billing statement, and his failure to do so constituted an admission of the balance due. Verified Complaint ¶¶ 6, 9, 16, 18. Hashimi does not allege that any of these specific factual allegations are themselves false, deceptive, or misleading. Yet these are the facts giving rise to the account stated cause of action.[3]Id. ¶ 22 ("Plaintiff [CACH] repleads all previous paragraphs of this Complaint as if they were fully said forth herein.").

CACH's allegations regarding the issuance of the final billing statement (the tender of the account in writing) and Hashimi's failure to object to the statement (the implied promise to pay the stated amount) sufficiently state the second and third elements of an account stated claim: implied agreement on the amount due and an implied assent by Hashimi to pay that amount, resulting in a new agreement enforceable by CACH independent of the underlying transactions giving rise to the balance due. See Maggio, 196 Cal. App. 3d at 753 ("When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered.").

CACH clearly alleged the necessary elements of an account stated claim in the state court

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Hey ya Stratocoaster !

 

What were the questions and responses to your summons?

If it is a creditcard they were already paid according to the agreement they never sent and have not proved they did,and have no specifics on any dates they were sent.

 

Didn't you send THEM an agreement that stated if THEY did not give you a written agreement dated and signed by THEM that there was no terms of agreement? Didn't you send this information periodically in the normal course of payments? You have always paid them right? So it is accord and satisfaction. You have no outstanding debt. There were no terms in some phone solicitation , nor when they sent you a teaser package in the mail,that you never asked them to send in the first place.They were always paid. And they have no PROOF that they weren't. Now if they can show the COURT....not the judge specifically.. that you had a history of late payments before it was paid the last time, then they could show good cause that they weren't paid their final billing.

 

Since you have always paid your bills they are in error. Either by incompetence or attempted hacking and or virus issues. What is the genuineness of Wells Fargo records retention.

 

Most Big Banks use ( Encrypted File Systems) for the genuiness of their records.

 

A discover question can be raised to the plaintiff about the accuracy of their records.

 

 

Were there any security breaches on the account? Or any time at Wells Fargo during the time period?

 

Are the records maintained by the plaintiffs witness, ....was the witness granted Administrator Privileges to the computer record in this account.?

 

They object..? Hey ...you wanna know if their records are correct.Only an employee with Administrator computer privileges my make changes to or remove erroneous information for this particular account.

 

 

Does the plaintiff employ a records retention manager certified as havung Administrator Privileges?

 

Was the witness certified with current EFS programs involving data recovery and storage removal if data was stored on another disk in the record retention department and transfers there of?

 

 

EFS advantages and disadvantages

EFS technology makes it so that files encrypted by one user cannot be opened by another user
if the latter does not possess appropriate permissions. After encryption is activated, the file remains
encrypted in any storage location on the disk, regardless of where it is moved. Encryption
is can be used on any files, including executables.

The user with permission to decrypt a file is able to work with the file like with any other, without
experiencing any restrictions or difficulties. Meanwhile, other users receive a restricted access
notification when they attempt to access the EFS encrypted file.

This approach is definitely very convenient. The user gets the opportunity to reliably and quickly
(using standard means) limit access to confidential information for other household members or
colleagues who also use the computer.

EFS seems like an all-around winning tool, but this is not the case. Data encrypted using this
technology can be entirely lost, for example during operating system reinstallation.

 

We should remember that the files on disk are encrypted using the FEK (File Encryption Key),
which is stored in their attributes. FEK is encrypted using the master key, which in turn is encrypted
using the respective keys of the system users with access to the file. The user keys
themselves are encrypted with the users’ password hashes, and the password hashes use the
SYSKEY security feature.

This chain of encryption, according to EFS developers, should reliably protect data, but in practice,
as explained below, the protection can be ultimately reduced to the good old login-password
combination.

Thanks to this encryption chain, if the password is lost or reset, or if the operating system fails
or is reinstalled, it becomes impossible to gain access to the EFS-encrypted files on the drive. In
fact, access can be lost irreversibly.

Regular users do not fully understand how EFS works and often pay for it when they lose their
data. Microsoft has issued EFS documentation that explains how it works and the main issues
that may be encountered when encrypting, but these are difficult for regular users to understand,
and few read the documentation before starting to work.

4



Data can be lost for good

Let’s figure out in what situations can EFS-encrypted data can be lost. How dangerous can a
situation be? We’ll take it from the top.

How can one lose access to EFS-encrypted data?

Almost all of us have encountered a situation where it was necessary to fully reinstall Windows.
This may have been due to the operating system’s functioning being disrupted by software
failure, a virus attack, or a mistake made by an inexperienced user, the system password for a
user account was lost or a user profile was deleted. In this case, all encrypted data in the old
configuration would most likely be lost.

Consider the following typical scenarios in detail:

1. The system is not booting due a component having been replaced or failed or due to
operating system failure. For example, the motherboard is out of order, the boot sector
is damaged, system files are corrupted, some “half-baked” updates or a different unstable
piece of software was installed. In this case, the hard drive can be connected to a different
computer and the data can be read off it, but if it is EFS encrypted, this would not work.

2. The system administrator at the company or the user has reset the user password. In
this case, access to EFS-encrypted data would also be lost.

3. The user profile was deleted. In this case, the files (and the user keys) may still be on the
disk, but the system cannot see them, even if the user is recreated with the same name, a
different ID will be assigned to the account, which is used in the encryption process. In this
situation, access to the data encrypted using EFS will also be lost.

4. The user is migrated to a different domain (is authenticated through a different server). If
the user encryption keys were stored on the server at the times of the migration (usually this
is the case), then an unprofessional migration can result in the loss of access to the EFS-
encrypted data.

5. System reinstallation. In this case, access to EFS-encrypted data would naturally be lost.
If a backup copy of the entire system disk is made at the time, or at least of the user profile
(“Documents and Settings”), then access could be restored with the use of special software,
but only if the keys are not damaged.

It is fairly common for the system itself to be stored on one disk, while encrypted files are stored
on a different disk. When the administrator reinstalls the operating system, usually a backup of
just the disk with the data is made and then the system is reinstalled. Obviously, in this case the
keys are lost and with them goes the access to encrypted data.

It should be said that there is a straightforward way to avoid this situation, if before using EFS the
EFS Recovery Agent is set up, but this, just like the workings of EFS in general, are too complicated
for the average user, as demonstrated below.

5



What is the EFS Recovery Agent?

The EFS Recovery Agent is a user with permission to decrypt data, encrypted by another user,
if the latter lost the encryption certificate keys or if the user’s account was deleted, but the encrypted
data is needed.

As a rule, the Recovery Agent is the Administrator, but it can also be a different user. There can
be multiple Recovery Agents. In order to assign Recovery Agent permissions to a user, first Recovery
Agent certificates need to be created using the command “Cipher /R: filename”, where
“filename” is the path and name of the created certificates without the extension.

After this, the user will be asked to enter a password to protect the private key and to confirm it
(the password is not displayed in the console on entry). Then two files are created with the specified
name: *.cer and *.pfx. These contain the public and private certificate keys, respectively.
Now the certificate must be added to the user’s personal storage, specified by the Recovery
Agent (this step can be skipped, then the Recovery Agent can do it later, when the recovery
functions need to be used) importing the file *.pfx (double-click on the file icon to launch the certificate
import wizard). Here, the administrator had to open the “Local Security Settings” snap-in
(Start - Run - secpol.msc), select “Public Key Policy - EFS” and in the menu “Action” select “Add
Data Recovery Agent.” The “Add Recovery Agent Wizard,” will open, and on the second page
one must click on “View folders” and select the *.cer file created earlier.

In order to restore access to the encrypted files after system reinstallation or after a private key
had been lost, the Recovery Agents’ private keys must be kept in a secure location or (if they
are not assigned), the private keys of all users using EFS, by exporting them from the “Private”
depository of the “Certificates” snap-in (certmgr.msc). In Windows Vista, there is finally a way to
store the keys on a smart card, which is much more reliable in terms of security.

It is clear that this kind of safety measure with the use of the EFS Recovery Agent contradicts
its intended principle of simplicity and requires non-trivial, from the average user’s point of view,
though routine for an administrator, actions and manipulations. It is no surprise that few use it.

It should be noted that if the administrator tried to reset the account password for a local user,
the user will lose all private certificates and with them the access to EFS-encrypted files (a corresponding
warning will appear when this action is attempted). The same will happen if the local
administrator, using special means, tried to force a password change (i.e., without entering the
old password).

Consequently, the risk of losing the most important data, encrypted using EFS technology, when
there is a system failure or due to an administrator/user error, is rather high and must always be taken into consideration.

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The elements of an account stated claim in CA from "Hashimi v. CACH," (S.D. Calif. 2012)

 

 

According to the verified complaint: (1) Wells Fargo issued Hashimi a credit card, which he received and used to purchase goods and services; (2) Wells Fargo stated the account in writing in a final billing statement issued to Hashimi on February 28, 2010, which reflected a balance due in the amount of $4,215.89; (3) Hashimi did not dispute the billing statement or any individual charges on the billing statement, and his failure to do so constituted an admission of the balance due. Verified Complaint ¶¶ 6, 9, 16, 18. Hashimi does not allege that any of these specific factual allegations are themselves false, deceptive, or misleading. Yet these are the facts giving rise to the account stated cause of action.[3]Id. ¶ 22 ("Plaintiff [CACH] repleads all previous paragraphs of this Complaint as if they were fully said forth herein.").

CACH's allegations regarding the issuance of the final billing statement (the tender of the account in writing) and Hashimi's failure to object to the statement (the implied promise to pay the stated amount) sufficiently state the second and third elements of an account stated claim: implied agreement on the amount due and an implied assent by Hashimi to pay that amount, resulting in a new agreement enforceable by CACH independent of the underlying transactions giving rise to the balance due. See Maggio, 196 Cal. App. 3d at 753 ("When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered.").

CACH clearly alleged the necessary elements of an account stated claim in the state court

 

 

This is an itemized check list of exactly what NOT to do IF you want to beat CACH (or any other bottom feeder for that matter). Hashimi did not object to anything CACH threw out there.

 

You can beat them beat them by using this as a blue print; and doing the exact opposite (and adding discovery).

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You said you are sending them a request for docs, but did you send them a request for the Bill of Particulars?  If not I would do that now in addition to the doc request.

 

here is a sample BOP request.

 

Request for BOP was not done as I read it is not applicable for account stated - common counts.  I asked calawyer about it a while back

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Open book money lent breech of contract those are the common counts. I would send it, and you will get a letter back from them saying they don't have to give it to you and they will cite disenfecto ( or similar name lol) as stating they don't need it for account stated, and then you can send them a meet and confer saying y is proper for common counts.

They are not going to give you a complete bop, but the point is it will look better for you with the court showing you are litigating in good faith, and they are not by refusing to provide to you basic evidence they claim to have. If they don't have it, they should not have filed suit. Most jdb's don't have it because they would have to pay for the entire history of the account, it would cost them a lot. If it were an original creditor suing you, all they would have to do is hit print, then mail it off to you.

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Open book money lent breech of contract those are the common counts. I would send it, and you will get a letter back from them saying they don't have to give it to you and they will cite disenfecto ( or similar name lol) as stating they don't need it for account stated, and then you can send them a meet and confer saying y is proper for common counts.

They are not going to give you a complete bop, but the point is it will look better for you with the court showing you are litigating in good faith, and they are not by refusing to provide to you basic evidence they claim to have. If they don't have it, they should not have filed suit. Most jdb's don't have it because they would have to pay for the entire history of the account, it would cost them a lot. If it were an original creditor suing you, all they would have to do is hit print, then mail it off to you.

 

Do I need to file this in court?  Pleasding paper?  Maybe I should go for BOP first then RPODS? Then send CMC? 

 

Please advise.

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Hi.  I have been following this forum for some time now.  Being sude for accounts atted - common counts and have responsed to summons already.

 

Just had CMC scheduled and I am planning to send out the RPOD.  I am just wondering, what should be my next step.  I feel nervous as a wreck and I am trying to figure out what's the next step.

 

 

 

I think the RFPOD is a good next step. And keep learning. Learn the rules of evidence and get a copy of your local court rules. Also; if you have a CMC scheduled, make sure you file the CMC Statement (it's probably due 14 days before the CMC (check your local rules).

 

The more you learn the less nervous you will be.

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No kidding...I can't think of any other reason for it either.

 

I suppose I should explain.  The Hashimi case was an FDCPA case filed in federal court.  CACH had sued him in state court for a debt.  He filed the FDCPA suit claiming their allegations were false, deceptive, and misleading. It was dismissed for failure to state a claim.  The court's reference to Hashimi's failure to object to the evidence in the civil debt collection suit had nothing to do with the veracity of the debt.  The court made no ruling on whether or not Hashimi owed the debt or on any of CACH's evidence.

 

The court merely ruled that the allegations in CACH's complaint stated the elements of an account stated claim and were not false, deceptive, or misleading.  The fact that he had never disputed the debt or objected to evidence at the time of the debt collection suit basically prevented him from now being able to claim that the allegations were false, etc.

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I think the RFPOD is a good next step. And keep learning. Learn the rules of evidence and get a copy of your local court rules. Also; if you have a CMC scheduled, make sure you file the CMC Statement (it's probably due 14 days before the CMC (check your local rules).

 

The more you learn the less nervous you will be.

 

Thanks.  I appreciate it.

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