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Not easy to ask for help... but here goes.


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1. Who is the named plaintiff in the suit?

Pentech Funding, LLC

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

(Not sure if I should his name here - for search engine sake - but it was an independant lawyer in Campbell, CA, not a law firm).

3. How much are you being sued for?

$55,XXX.XX

4. Who is the original creditor?

Wells Fargo Bank

5. How do you know you are being sued?

Served a Summons

6. How were you served?

In Person - Although not to myself - more below. 

 

7. Was the service legal as required by your state?
Not really sure, to be honest... The defendant is listed as "Company Name;Personal Name." The company name was a dba that I operated under for about 8 years as an independent consultant, and this was over 13 years ago. I used a second address - in a separate building, "Suite B" - on my property, but the summons was served to my wife at our front door. The entrance to my office in the other building is plainly labeled as "company Name, Suite B."  The summons was handed to my wife - who is neither named in the Summons nor an employee of my dba - and it was followed by a mailed copy.  For the purpose of getting assistance on this forum, unless someone can offer an alternative, I consider myself properly served.

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

None.  I had never heard of "Pentech Funding" before this summons.  My wife however did find an old demand letter from a year ago that I never saw, and no one ever replied to.  I have had NO conversations with anyone from Pentech to my knowledge.

9. What state and county do you live in?

State of California, County of San Benito.

10. When is the last time you paid on this account?

Last payment on record was 3/10/2009 (I truly believe I have grounds for SOL here).  Lawsuit was filed on 8/21/2013.

11. What is the SOL on the debt?
4 years for Written Contract in California.

12. What is the status of your case? Suit served? Motions filed?

Summons shows lawsuit filed 8/21/2013

I filed my Answer (with the court and served to the Lawyer) on 10/12/2013, within the time required.

I am required to have had a "meet and confer" very soon - more on that below.

 

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

I have never disputed this debt.  (I have just been in successful personal denial of it for the last 4+ years)

14. Did you request debt validation before the suit was filed?

No, I had no interaction with any Collection Agency about this debt in the past.  I have never attempted to negotiate this debt with anyone in the past either.

15. How long do you have to respond to the suit?

I have filed my Answer (General Denial of all points) and paid the $435 filing fee within the deadline.

My Answer included the following Affirmative Defenses (I hope I did good here):

  1. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.
  2. Defendant believes this action is barred by the Statute of Limitations.
  3. Defendant believes this action may be subject to the Doctrine of Laches.
  4. Defendant believes the court would unjustly enrich the plaintiff by granting the relief sought herein.
  5. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in contract, and lawfully charged.
  6. Defendant also insists that the plaintiff come up with the contract and account statements to prove the amount of the debt.
  7. WHEREFORE, the defendant asks the Court for judgment dismissing the complaint herein with prejudice. 

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have not received ANYTHING from the Plaintiff except the Summons.

16. What evidence did they send with the summons?

The Summons included only the following (pertinent data included):

 

A Civil Case Cover Sheet:

  1. Unlimited (exceeds $25,000)
  2. Description: "Other Collections (09)"
  3. Case is "Not Complex" (Under rule 3.400 of CA Rulesd of Court)
  4. Remedies Sought: "Monetary"
  5. Number of Causes: "Two (2)"
  6. Case is Not a Class Action Suit
  7. Signed by Atty.

A "Notice of Inclusion in Civic Case Management System and Notice of Case Management Conference" from the Superior Court of San Benito County, Indicating:

  1. Service on complaint due on or before 11/5/2013
  2. Answer(s) due on or before 12/9/2103
  3. A Case Management Conference is scheduled for 18-December at 1:45pm Per CA Rule of Court Rule 212(B), parties shall meet and confer no later than 30 days before the first scheduled case management conference.  A case management questionnaire shall be filed by each party with proof of service on the opposing party no later than 15 days prior to the case management conference.  Counsel for each party must appear at the conference.  Contact the court clerk for information regarding telephone appearances.
  4. Dated (8/21/2013) and Signed by Deputy Clerk

The Complaint itself:

  1. Plaintiff: Pentech Funding, LLC
  2. Pleading contains four (4) pages
  3. Plaintiff is a corporation
  4. Defendant is "DBA Name" a "business organization, form unknown
  5. Court is proper because "a defendant lives here now"
  6. Causes of Action:  Breach of Contract and Common Counts
  7. Other: "Plaintiff purchased the subject account from Persolve, LLC on 02/20/2012"
  8. Plaintiff prays for damages of $55,600.00, interest on damages "according to proof," at the rate of 8.25% from 08/24/2009 attorney fees of $1000.00, "according to proof" Reasonable fees, and for such other and further relief the Court may deem just and proper.
  9. Signed by Plaintiff Attorney

The First Cause of Action - Breach of Contract:

  1. Plaintiff alleges that on or about 01/01/1998 a "Written" agreement was made between "All said Defendants and Wells Fargo Bank"
  2. The essential terms of the agreement: Defendants and each of them entered into a written agreement with Wells Fargo Bank for a business line of credit account (#XXXXXXXXXXX).  By using the business line of credit account to purchase goods and services, the owner of the business line of credit account and the guarantors, the Defendants herein, agreed to repay the Bank each month not less than the minimum amount due as specified on a monthly account statement.  (Note that there were no attachments or documents included as an Exhibit).
  3. On or before 08/24/2009 defendant breached the agreement by "Defendant and each of them failed to pay the minimum amount due under the terms of the business line of credit agreement.  (Note that the "on or before" date was only three days short of a full 4 years, before the date this Summons was filed.  Everyone I talked with found this "highly suspicious," and perhaps a last ditch effort so simply get a Default Judgment).
  4. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing.
  5. Plaintiff suffered damages as follows: The sum of $55,XXX.XX is due and owing to Plaintiff.
  6. Plaintiff is entitled to attorney fees by an agreement of statute of "$1,000.00, according to proof. Reasonable fees under Civil Code 1717.5
  7. Other: Wells Fargo Bank sold this account to Persolve, LLC, who in turn sold it to Plaintiff.  (I'm loving this one)

The Second Cause of Action - Common Counts:

  1. Plaintiff, Pentech Funding, LLC, alleges that defendant "dba;Personal Name" became indebted to Other: Wells Fargo Bank, (a) within the last four years, (2) Because an account was stated ((a) Open Book, was not chosen here) in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. (B) within the last four years (2) for work, labor, services and materials rendered at the special insistence and request of defendant, and for which the defendant promised to pay plaintiff, the sum of $55,XXX.XX, for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff, the amount of $55,XXX.XX, for money lent by plaintiff to defendant at defendants request, for money paid, laid out, and expended to or for defendant at defendants special insistence and request.
  2. $55,XXX.XX, which is the reasonable value, is due and unpaid despite plaintiffs demand, plus prejudgment interest, "according to proof," at the rate of 8.25% per year from 08/24/2009
  3. Plaintiff is entitled to attorney fees by an agreement of statute, of $1,000.00, "according to proof," Reasonable fees under Civil Code 1717.5
  4. Other: Plaintiff purchased this account from Persolve, LLC,  Persolve, LLC purchased the account from Wells Fargo Bank.

*********************************************************************

I know my opening request for help was a bit wordy, but I wanted to include EVERYTHING I have from them at this point.  As you can see, I need to "Meet and Confer" by Monday of this coming week, and I have heard NOTHING from their side.  No phone call, no letters, no requests, no demands... Nothing. 

 

I have searched this site for a simple "initial meet and confer" to use, but most appear to have specific uses.

 

I have been lurking on this site for a while and have seen some very astute and helpful advice coming from everyone.  I hope and pray that some of you can review my situation and provide input and advice.  I am a competent and reasonably educated man of 50+ and I know when I am in over my head.  I have seen great efforts put into play for claims of just a few thousand dollars of debt, yet as you can see, this is a substantial amount of debt to fight for.  I could use all the help I can get.

 

For those asking the obvious question...

 

It was a combination of several life changing events...  The economy tanked, my change of employment left me with a 2/3rd cut in pay, and my wife was diagnosed with Stage IV Breast Cancer.  So I made the decision to pay only those debts that kept a roof over my head, and kept my wife alive, comfortable and by my side.  My home is safe and not underwater.  I have made every house payment on time, but credit cards and other debts (including medical) have me treading water.  I have some assets that are not easily liquidated, and as a result, I do not believe a bankruptcy is possible.  So I have chosen to fight this one out.

 

Thank you everyone in advance, for your advice, assistance, guidance, or suggestions.

 

"Debtermined"

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A couple of questions first-

1. Was the company a "sole propritorship" or "corporation"/"LLC". The reason I ask is that my understanding is that a corporation/LLC needs to have an attorney representation. (ie filing of the anwser)

2. Do you have the documentation to prove your last payment date, to assure your SOL defense?

Don't get me wrong, they have a big hurdle with the proving "Standing" to sue they being the 2nd JDB. Further, having all the documents to prove their case could be a stretch, also.

But as you have state $55K is not something you want to make an error on, while fighting the case...

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Is your DBA a LLC? That could make a difference on who they can sue.  You would not be personally liable under the LLC protection.  Another thing, I don't know about unlimited cases, so that may be one for the cali folks, but I think your answer needed to be verified, did you do that?  Also a counter claim may have been a good idea for suing on a time barred debt, that would have given you a little bit of leverage.

 

At any rate you are still early in the game, so I am sure some astute california folks will weigh in.  A demurrmer might have been the way to go, or you may even be able to ammend your answer, and include a cross complaint.

 

A meet and confer is not really a in person meeting (although it can be) but rather just some communication about the issues.  A letter mailed CMRRR could constitute a meet and confer.  One of the first things I would do is send a demand for a bill of particulars.  They are sueing you on breach of contract, so a BOP would be prudent now.  There are other discovery requests you will want to ask for, and I think california has a limit on how many you can ask for.

 

I would start studying california's rules of civil procedure, so that when you get any advice here, you will have an idea of what we are talking about, and can go to them to reference.  You can google them.

 

Don't worry, people get into financial trouble, and we are not here to judge you, you do not need to explain your self to us.

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Is your DBA a LLC? That could make a difference on who they can sue.  You would not be personally liable under the LLC protection.  

 

That is not entirely accurate.  If the credit was applied for and granted SOLELY as an LLC then it would be true.  However, most creditors have stopped granting credit to sole proprietor LLCs a LONG time ago and requiring a personal guarantee along with the business LLC guarantee because in a sole proprietor the individual IS the business.  These days unless a business is doing at least 5 million per year in business most creditors require a personal guarantee.  

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A couple of questions first-

1. Was the company a "sole propritorship" or "corporation"/"LLC". The reason I ask is that my understanding is that a corporation/LLC needs to have an attorney representation. (ie filing of the anwser)

A: I was a Sole Proprietor, operating under my SSN.  Acting on my own, no employees.

2. Do you have the documentation to prove your last payment date, to assure your SOL defense?

A: Yes, I have the actual bank statement (Wells Fargo) and check number listed on it, plus of course the date.  I also researched the only other checking account I had at the time (Personal Checking) and there were no further payments made from it either.

Don't get me wrong, they have a big hurdle with the proving "Standing" to sue they being the 2nd JDB. Further, having all the documents to prove their case could be a stretch, also.

A: This I understand.  I read a lengthy thread about "Standing" and it's making sense to me.

But as you have state $55K is not something you want to make an error on, while fighting the case...

A: No I don't.

 

Answers in Quote above.

Thanx

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Looks to me that this alleged debt has been passed around a bit, which is generally a good thing. Is this a personal loan/business loan or a credit card? Sorry, it's a bit long and I thought it felt like a loan but I don't want to go back and read through it again.

Your business is closed now? Or you still operate it with the secondary address? This is a little bit confusing.

I've never seen where the collector claims attorneys fees in the amount of such and such due to "agreement of statute", 1717.5. This code applies when 1717 does not, and both are in regards to attorney's fees and whether or not the contract specifically outlines how those fees are handled. So, 1717 is when the contract states how the fees are awarded to the attorney of the prevailing party, and the one listed in your case is when they are not listed in the contract.

They are claiming they have the contract then, by claiming fees in the manner they did. Was it attached? Have you seen it?

When they filed the suit isn't as important as your last payment. They would have had to file it before March to do so in time. If you're certain the DOLP was march, and they filed in August, they are out of gas!

I'm very glad you answered, and I'm betting they were not expecting you to. This might account for the failure to acknowledge your existence to participate in the meet and confer.

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Is your DBA a LLC? That could make a difference on who they can sue.  You would not be personally liable under the LLC protection.  Another thing, I don't know about unlimited cases, so that may be one for the cali folks, but I think your answer needed to be verified, did you do that?  Also a counter claim may have been a good idea for suing on a time barred debt, that would have given you a little bit of leverage.

A: I was operating as a Sole Proprieter under my personal SSN.  In hindsight, I understand about the Counter Claim, that's the kind of thing that surfaces here on the forum, and the main reason I am excited to be here.

 

At any rate you are still early in the game, so I am sure some astute california folks will weigh in.  A demurrmer might have been the way to go, or you may even be able to ammend your answer, and include a cross complaint.

A: The term Demurrer came up in a 15 minute "free" visit at a self help meeting at the Law Library in an adjacent County, but I didn't really understand it, and needed to file my Anwer or default.  I hope, as you say, it is truly "still early in the game" and I can apply what I learn here.

 

A meet and confer is not really a in person meeting (although it can be) but rather just some communication about the issues.  A letter mailed CMRRR could constitute a meet and confer.  One of the first things I would do is send a demand for a bill of particulars.  They are sueing you on breach of contract, so a BOP would be prudent now.  There are other discovery requests you will want to ask for, and I think california has a limit on how many you can ask for.

A: I understand the "informality" of the meet and confer, I just don't want to miss any deadlines on my end and look bad or inexperienced to either the courts or the opposing attorney.  I was reading a thread about the "Bill of Particulars" but it sounded like that was only used on "Open Book" suits.  As I understand, mine is an "Account Stated" type of suit.  It was not however for a set loan amount, to be paid off over a set length of time, so I'm also not sure why mine should not be an "Open Account" like a credit card.  It was a "Line of Credit" and its balance fluctuated exactly like a Credit Card.  either way, I understand I should ask for records dating back from Zero Balance to the assumed date of default.  Based on opening this account in 1998, no one is going to have those records easily available.  I have a small grasp on Disovery, and I believe that because my lawsuit is for greater than $25,000 my limit of 35 items on discovery may not apply?  Someone can correct me here.

 

I would start studying california's rules of civil procedure, so that when you get any advice here, you will have an idea of what we are talking about, and can go to them to reference.  You can google them.

A: I have them bookmarked and have been swimming in them for weeks.  Thank you for that advice.

 

Don't worry, people get into financial trouble, and we are not here to judge you, you do not need to explain your self to us.

A: Perhaps I am just still beating myself up for my mistake.  Thank you for your kind words.

 

Anwers in Quote above.

Thanx.

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This is good...

Next logical steps are as follows:

1. Sent a Bill of Particulars base on CCP 454, which will require them to give you information they have about the account they are suing on in 10 days.

2. Check with a few attorneys, suing on a time barred(SOL) debt is usually a big no no. This is based on consumer law, and becuase the debt maybe considered "business debt" may not be helpful. But certainly worth a free consultation, with a local attorney.

In some cases if you can show that the busines line of credit was used for consumer transactions, you maybe able to invoke consumer protections. (ie FDCPA and Rosenthal Statutes for California)

I think you mentioned you need to Meet & Confer by Monday. Obiviously, there is a form you can file with court, check California forms not sure the number. I would call the attorney monday and tell them the debt is outside the SOL, and ask when they will be dismissing? If they say they aren't, then tell them you will begin discovery. Complete your M&C form.

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Looks to me that this alleged debt has been passed around a bit, which is generally a good thing. Is this a personal loan/business loan or a credit card? Sorry, it's a bit long and I thought it felt like a loan but I don't want to go back and read through it again.

A: see reply above.  It was a line of Credit, much like a credit card, but this suit is treating it like a "Stated Account."  I may not understand the complete difference here, but I belive there is one.

Your business is closed now? Or you still operate it with the secondary address? This is a little bit confusing.

A: Been out of business under that dba for over 12 years.  Got another job, full time.

I've never seen where the collector claims attorneys fees in the amount of such and such due to "agreement of statute", 1717.5. This code applies when 1717 does not, and both are in regards to attorney's fees and whether or not the contract specifically outlines how those fees are handled. So, 1717 is when the contract states how the fees are awarded to the attorney of the prevailing party, and the one listed in your case is when they are not listed in the contract.

They are claiming they have the contract then, by claiming fees in the manner they did. Was it attached? Have you seen it?

A:  Nothing was attached.  Nothing!  Just the paragraph in the Breach of Contract, Cause of Action about "The essential terms of the agreement are as follows:"  I would find it hard to belive they have much documentation at all, let alone the original contract from 1998.

When they filed the suit isn't as important as your last payment. They would have had to file it before March to do so in time. If you're certain the DOLP was march, and they filed in August, they are out of gas!

A: I understand that, and I believe it is my strongest point.  I only bring up the 3 day delta between the date of fileing and the four year SOL because it was so obvious to others that this was a last ditch effort.  Believe me, one of the first things I want to see from them is their proof of date of default!

I'm very glad you answered, and I'm betting they were not expecting you to. This might account for the failure to acknowledge your existence to participate in the meet and confer.

A: I am thinking this too.  Obviously, doing nothing would have meant a default judgment of $55,XXX.XX with no effort on their part.  I am sure that "Pentech Funding" is like so many others that just file and take their chances.   For the record, I had a medical facility file Summons on me last year on some of my wife's medical debt, and without knowing what to do, it went into a default judgment.  They attached my wages for several months and got their $4,000.00 (plus or minus).  That is NOT going to happen to this boy again!!!

Answers in Quote above.

Thanx

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This is good...

Next logical steps are as follows:

1. Sent a Bill of Particulars base on CCP 454, which will require them to give you information they have about the account they are suing on in 10 days.

A: Please see my concerns about if a BOP is appropriate on a "Stated Account" suit.  Thoughts?

2. Check with a few attorneys, suing on a time barred(SOL) debt is usually a big no no. This is based on consumer law, and becuase the debt maybe considered "business debt" may not be helpful. But certainly worth a free consultation, with a local attorney.

A: Will follow up on this too.  Thanx for the advice.  There are not a lot of "Consumer Attorney's" local to me here in my County, so I will likely have to do some travel in order to meet, even for free.

In some cases if you can show that the busines line of credit was used for consumer transactions, you maybe able to invoke consumer protections. (ie FDCPA and Rosenthal Statutes for California)

A: Worthy of note.

I think you mentioned you need to Meet & Confer by Monday. Obiviously, there is a form you can file with court, check California forms not sure the number. I would call the attorney monday and tell them the debt is outside the SOL, and ask when they will be dismissing? If they say they aren't, then tell them you will begin discovery. Complete your M&C form.

A: I would really like to keep my conversations with them on paper, I am worried I might "say" something before I understand it's value, for or against me.  I am more confident with a written statment by mail (Certified or otherwise).  Do I understand correctly that some meet and confer can even be transmitted by FAX?

 

Thanx skippy1960

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You can just call them up to meet and confer.  The topics are set forth in the rule:  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_724

 

 

Leave a message saying you want to meet and confer about the CMC.  When they don't return your call, you can say so in the CMC statement.

 

You want to get some discovery out ASAP.  Either a BOP or the 3 subject RFP in ASTMedic's thread.  And calendar all appropriate dates for meeting and conferring and filing a motion to compel if necessary.  This debt has been passed along a couple of times.  Your plaintiff probably does not have the ability to request documents from the OC.  An order compelling all statements might well get the case dismissed.

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Debt,

You don't neccessarily need a consumer attorney, a decent civil litigation attorney should be able to handle a case, where the SOL has expired, and you have the proof via your banking records.

As CAlawyer suggests calling them and leaving a message for M&C shouldn't test your skills. In the event you do have to speak with the attroney it is a fear you need to overcome. Here is why. If you don't derail this early, you will end up in front a judge. May as well get some practice speaking under pressure prior to this.

You state you don't think this is a large collection attorney firm, then not likely to be recording going on. If there is they have to tell you by law, as California is a 2 party state for notification.

To help your self over come your fear, on a note card write down these 3 points of your case/defense.

1. It appears you will struggle to prove standing.

2. This debt is time barred/SOL based on my personal records, when will you be dismissing?

3. I don't know.

You simply answer any question with these statements. If you feel you are getting in trouble simply say thanks for the time and hang up.

You might also try to get an email address for the attorney, this will make the verbal communication less.

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Skippy1960,

Thank you for your advice.  It is not by any means a fear that I have, I just prefer written correspondance with others. It leaves a trail, and I like to be able to read it over, update it, read it again, etc... before hitting "Send" so to speak.  Sometimes I even over word-smith things.

 

Without going into any level of detail, I have been in and out of Superior Court (as a Petitioner) over the last year with a Probate matter.  I am very comfortable in the courtroom and spent several days in my own trial sitting in front of the Judge right along side my attorney.  When I was on the stand, my testimony was of such interest to the Judge that she gave me a microphone and a set of permanent markers and a paper flip-chart for me to diagram the point I was making.  Before it was all over, I was sitting on the edge of the stem-wall around the witness stand, and talking directly with the Judge.  (I realized that this was waaaay to informal and felt like I needed to apolgize to the court for my actions - but alas, I did not need to).  I am a professional speaker and the son of a preacher, so making my point under pressure is not much of a fear to me.  Especially once I get on a roll.  Needless to say, my cross examination was brief.

 

I just prefer written correspondance over verbal communications.  Your advice is well taken though.

Thanx.

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For the record,

I have read several threads in which calawer and Anon Amos were of great value.  Thank you both for already reviewing, and commenting on my situation, especially on a Sunday.  Also thank you to Shellie, Clydesmom, HotWheels, and others who are lurking. 

 

Having your support makes me feel better already.

 

Debtermined. 

(Hearafter reserving the right, and looking forward to, changing my name to "Debterminator!!!")

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That is not entirely accurate.  If the credit was applied for and granted SOLELY as an LLC then it would be true.  However, most creditors have stopped granting credit to sole proprietor LLCs a LONG time ago and requiring a personal guarantee along with the business LLC guarantee because in a sole proprietor the individual IS the business.  These days unless a business is doing at least 5 million per year in business most creditors require a personal guarantee.  

Yep, that was going to be my next question. :)

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you said above the cause of action was breach of contract, in the complaint.  I do not see account stated.  Breach of contract, open book, common counts are all acceptable reasons for a BOP.  even if they include account stated in those, the mere fact breach of contract is there makes it acceptable for a BOP.  They may try to object, and we got a Meet and Confer for that.

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Get the answer filed... Pentech appears to be a new JDB that's popped up ( I know of at least 6 that have popped up in the last 2 years or so). Let's teach them they made a bad business move getting into the bad debt game.

 

 

Send a BOP via CMRRR once you file the answer - you'll be back in control and in a better place once you've gotten this done. 

 

 

Finally - this alleged debt may be out of statute. I'd look into filing a counterclaim for Rosenthal and FDCPA violations. Although the $2k statutory damages don't erase the debt, the leverage of putting them on the defensive gives you control. 

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Your case is not just an account stated, per your first post. They are claiming both a breach of contract and an account stated...which makes no sense in and of itself! Suing with a contract CoA and a quasi-contract CoA is contrary.

Did you use that line of credit for anything personal?

My case with cap1 was as me as a DBA but was for a credit card. I fought it just like it was a personal card ( though I knew nothing of a BOP ) and took it all the way to trial fighting just as I had for a personal card. They dismissed it due to failure of their witness appearing after a two time, two month subpoena fiasco. Course, it was for less than yours. Mine was well in the SOL though.

I would hammer the notion of it being post SOL and lack of standing to the plaintiff. Do as calawyer and skippy said, and let's get this train moving!

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Get the answer filed... Pentech appears to be a new JDB that's popped up ( I know of at least 6 that have popped up in the last 2 years or so). Let's teach them they made a bad business move getting into the bad debt game.

A: Answer has already been filed.  See Original Post.

 

 

Send a BOP via CMRRR once you file the answer - you'll be back in control and in a better place once you've gotten this done. 

A: Contemplating doing this as soon as I have my "meet and confer" taken care of by its due date.

 

 

Finally - this alleged debt may be out of statute. I'd look into filing a counterclaim for Rosenthal and FDCPA violations. Although the $2k statutory damages don't erase the debt, the leverage of putting them on the defensive gives you control. 

A: Will investigate this too.  I appreciate and understand your agressiveness, but at this point I want to focus on getting out from under this pressure, more than getting back at them for even causing it.  I'll get there eventually.

 

Answers above.

Thanx.

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you said above the cause of action was breach of contract, in the complaint.  I do not see account stated.  Breach of contract, open book, common counts are all acceptable reasons for a BOP.  even if they include account stated in those, the mere fact breach of contract is there makes it acceptable for a BOP.  They may try to object, and we got a Meet and Confer for that.

 

I will correct my Original Post to say that the First Cause of Action was the "Breach of Contract," and the Second Cause of Action was the "Common Counts."  In the Common Counts section CC-1(a), it offers a choice of boxes:

 

(1)  On an open book account for money due

-or-

(2)  because an account was stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was indebted to plaintiff.

 

They chose the latter (2) and not the "Open Book."

Am I reading this wrong?  Or does this make a difference?

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"Will investigate this too. I appreciate and understand your agressiveness, but at this point I want to focus on getting out from under this pressure, more than getting back at them for even causing it. I'll get there eventually."

You are missing that having these over their head assists in getting out from under it. This rings especially true when you're dealing with a new JDB who knows they likely cannot prove one single claim they've asserted against you. Is the possibility of losing money for a lawsuit filed illegally on an account they can't prove worth it? Wouldn't be if I were them!

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You are missing that having these over their head assists in getting out from under it. This rings especially true when you're dealing with a new JDB who knows they likely cannot prove one single claim they've asserted against you. Is the possibility of losing money for a lawsuit filed illegally on an account they can't prove worth it? Wouldn't be if I were them!

 

Understood.

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Shellie, I have updated my original post to label each of the Causes of Action, and I included the specific text that makes me think this is an "Account Stated" rather than an "Open Book" as promised.

 

(Also had to spend a while figuring out how to make all my "(b)'s" not appear as some goofy faced emoticon - but I got it)!

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