Debterminator!

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

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You don't need to send a BOP after a meet and confer - you can do it anytime. 

 

I'd get it out tomorrow - there's plenty of samples here on the site. 

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Right, but it does not matter if they included account stated, they listed breach of contract. That in itself is appropriate for a BOP.

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...

 

...

For those asking the obvious question...

 

It was a combination of several life changing events... 

...

 

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.

Unless a person is fraudulently trying to harm others, like N.A. banks routinely do by stealing homes, I assume life changing events and hope my experiences can be of benefit to those similarly situated.

 

Some Account stated insights: http://www.creditinfocenter.com/community/topic/293550-account-stated-by-a-ca-can-you-really-attack-it/#entry1000754

 

...

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)

...

Good idea, but I would vet this route carefully just in case I had committed in writing to use the extension of credit by WF for business purposes (not that JDB #2 will be able to prove by admissible evidence anything beyond their own phone number, if even that) and then instead I chose to use it more for household than business purposes. IMO it could add complexity and if it is not clear cut I would probably avoid it. OTOH if it is straightforward and supported by the evidence you can bet I would use it. Leverage is my middle name. ;-)

 

The OP's strong cards appear to be:

SoL;

BoP; ( not available in Arizona :( )

lack of standing;

good ideas from the forum posters; and

comfort with court procedures and speaking to a judge.

 

Best of success to the OP and best wishes regarding their wife's health.

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You are fortunate that there are a lot of knowledgeable and experienced CA members here, including of course, Calawyer, who is indispensable.  I wish there was a Calawyer for every state.

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Your situation is not terribly uncommon and as such you will find some amazing information here. You, those that came before, and inevitably those who come after all must do our part to research as much as possible. As a fellow Californian, you are fortunate to have not only sage posters here, but the ability to obtain useful information such as our CCPs and court rules, from your home computer. I think you can read actual court documents/filings for free from the Alameda courts online too. That will assist you in learning proper formatting and such.

You also seem very open and willing to learn, which might be your biggest advantage of all! :)

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Debtermined welcome,

 

You are getting some good advice so far. Here are a few issues to keep in mind specific to an unlimited jurisdiction case. People seem to get really nervous about unlimited cases but they are not as complex or cumbersome as you may think. Commonly newbies in unlimited cases try to learn what they should do in an unlimited case and get overwelmed by the shear number of California Codes. A much easier way to look at it is actually to learn what you can't do (or don't need to do) in an unlimited case. Those rules are found in California Code of Civil Procedure 90-100. It would be wise to familiarize yourself with those codes not only to understand the difference between limited and unlimited cases, but also to understand that some debt buyers litigate their cases as if every one of them is a limited case. For example, you may possibly get in your case a Declaration in lieu of testimony pursuant to Code of Civil Procedure 98 (probably don't understand what this is yet but you will). This is not allowed in an unlimited case but because these debt buyers usually file limited cases and their litigation style and paperwork are geared towards limited cases, many times they will litigate every case the same way whether its limited or unlimited. So the key for a newbie in an unlimited case is not to worry as much about what you can do, be more aware of what they can't do. Good luck to you.

 

 

*I am not an attorney*

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Welcome,

the other way to learn what the plaintiff's have to prove their case for breach of contract and common counts is look up the 2013 California jury instructions. This will give you insight on how to build your defense.

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Does this look OK for my first meet and confer?

__________________________

 

Defendant:
Company ; Personal Name

XXXX  Address
City, State, Zip
(Phone Number)

 

Plaintiff:
Pentech Funding, LLC
Attorney by name

Address
City, State, Zip

 

Case Number: CU-13-XXXXX

 

Mr. Attorney by name,
I am sending this letter in an effort to fulfill my obligation for meet and confer.  I have received no such effort from you.

 

You have filed suit with the Superior Court of the State of California, in the County of San Benito.  I am in receipt of your Summons and have filed an appropriate Answer within the proper timelines, and provided Proof of Service for a copy served to you.  Since that time, I have received no other communications from you.

 

Your Summons contained no evidence or supporting documentation.  As my Answer implies, I believe, and intend to prove, that your suit was filed without legal standing, and well outside of the Statute of Limitations that apply.

 

In order to avoid further costs and efforts, please advise as to when you will be dismissing this case.

Thank you,

 

Signature

Date

 

________________________________

 

What do you think?

Adequate for a first M&C?

Need to Postmark and CMRRR today.

Thanx,

 

Debtermined

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Getting late in the day, so I went ahead with my initial Meet & Confer (as above).

Mailed it Certified, Return Receipt Requested.

 

I will file my CMC form within the next 15 days, and work on my BoP now.

I'll send the BoP by the end of this week.

 

Debtermined

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@

 

I didn't read all of theses last post, but I think you are getting ahead of yourself with the meet and confer letter. Last I checked you were just answering the complaint and then going to send a BOP. You would send a meet and confer letter AFTER they object to your BOP (telling them to provide a response). You really don't have anything to meet and confer about yet. It looks like you already sent it; so the point is moot.

 

You said you will file the CMC form in the next 15 days. Make sure that is the time your local rules call for. A lot of times this is filed 15 days before the first CMC (your rules may say within 45 days (or something like that), so you would need to know what your rules say about the timing, and the date of your CMC.

 

The timing and order in which you do things is going to be critical. Don't jump the gun

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Honestly - that is not a letter to be sending as-is...you are getting way ahead of yourself.

 

 

Send the BOP - at this point, there is no need to do a M&C. 

 

 

15 days after sending the BOP - depending on the response you get, we can help draft the appropriate M&C. 

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Perhaps I didn't make myself clear in my original post...

 

One of the documents that was included in the mailed copy of the Summons was a single page from The Superior Court of California, County of San Benito.  It was titled "Notice of Inclusion in Civil Case Management System and Notice of Case Management Conference.  It States (boldface, and formatting shown below is exactly as it appears in the document:

 

Pentech Funding LLC

Plaintiff(s)

vs.

Company Name ; Personal Name

Defendant(s)

 

Case No. CU-13-XXXXX

 

NOTICE OF INCLUSION IN CIVIL CASE MANAGEMENT SYSTEM AND NOTICE OF CASE MANAGEMENT CONFERENCE

 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD.

Please take notice that this action is included in the Civil Case Management System.  San Benito Superior Court Local Rule Chapter 3 applies to this action.  You are required to comply with the obligations specified therein or persuant to this Notice.  Non-compliance may result in the imposition of sanctions.

  • Service on Complaint due on or before 11/5/13, A copy of this Notice of Inclusion shall be served with the complaint upon the defendant(s).
  • Answer(s) due on or before 12/9/13.
  • You are further advised that a Case Management Conference is scheduled for 18 December at 1:45pm, Per California Rule of Court 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 fifteen (15) days prior to the case management conference.  Counsel for each party and each self-representedd party must appear at the conference.  Contact the cort clerk for information regarding telephonic appearances.

It is then dated (8/21/13) and signed by the Deputy Clerk.

Form Rev. 1/05

 

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

 

I understand the purpose of sending a M&C AFTER they object to my BoP, but if I backtrack the dates on this Notice, 30 days before December 18th is TODAY... November 18th.  This is why I was asking all along... "What should I include in my initial M&C letter?"

 

Is this the courts way of pushing things along?  I sent a M&C letter because I was TOLD to by TODAY.  I have not yet sent anything to the Plaintiff yet, nor have they sent any requests or correspondance to me.

 

You tell me I am "getting ahead of myself" and "jumping the gun" but I do not want to miss a deadline of ANY type.

Am I missing something here?

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Hello,

First of all I can see that you're being proactive. That's good but to ask the plaintiffs when they plan to dismiss the case is a bit premature. They plan to do no such thing unless SOL has been reached, identity theft for which you can prove. Otherwise, they plan tovtake this case all the way.

It would be wise to use your energy to defend yourself with the help of this forum. The cmc hearing is nothing but a status meeting of where everyone is and to set a trial date. The lawyer for plaintiff's will try to get you to settle.

Your m&c letter should discuss any objections to your bop request etc but that's basically it.

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There is some confusion here.  I think you are meeting and conferring about the CMC.  Other posters think you are meeting and conferring about the BOP.

 

THe purpose of the meet and confer for the CMC is to discuss the topics in the rule that I provided in post #11 above.  I suggested that you call because they never take calls like that and you could just say you tried and they didn't respond.  But the ltter is fine and even though it doesn't mention the CMC specifically, I don't think you will receive anything back before you have to file your CMC statement.

 

All good.

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There is some confusion here. 

...

All good.

 

Thank you.  That is exactly right.  I just didn't want to miss a deadline of any type, so I had to send something.

I know it had a bit of a "snitty" attitude in it, but I wanted to send the message to...  well...   Bring it on!

 

Next the BoP (and to make sure I am on the right path, that's the Bill of Particulars).  I think I saw an excellent request in another thread here somewhere, I'll take a stab at modifying that one for my use.

 

Debtermined

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By the way, in researching the BoP, I saw this statement on Wikipedia:

 

The bill of particulars was abolished in nearly all U.S. court systems in the 1940s and 1950s due to the widespread recognition that much of the information requested could be obtained more efficiently through the discovery process. Today, only a minority of U.S. states, like New York, Illinois and Virginia, use the bill of particulars. The closest modern equivalent, though rarely used, is the motion for a more definite statement.

 

I know that Wiki is only as good as those that post on it, but it does raise the question, should I actually ask for a BoP or should I just move right into discovery with Request for Doc's or Interrogatories, etc...?

 

Just wondering out loud.

 

Debtermined

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Ask for a BOP.  Even if you don't get helpful information, it will really help to respond (and object) to any discovery that plaintiff sends you.  See 1111girl's thread for further details.

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.

Am I missing something here?

 

Just testing you to make sure you are on your toes, LOL. You passed, good job.  We just missed the part about you already having a CMC date (for the record: I did say "I think" and "check to make sure you have a CMC date" however).

 

Also; the BOP (bill of particulars) is just a simple one page document (it's pretty much a one size fits all) with plenty of examples here, so you won't need to put too much work into it.

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Just testing you to make sure you are on your toes, LOL. You passed, good job.  We just missed the part about you already having a CMC date (for the record: I did say "I think" and "check to make sure you have a CMC date" however).

 

Also; the BOP (bill of particulars) is just a simple one page document (it's pretty much a one size fits all) with plenty of examples here, so you won't need to put too much work into it.

 

Yup, snagged one already. 

I can paste it on pleading paper (just to make it more formal) do you think I should?

Or just send it on plain paper like I did the other?

 

Debtermined.

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I can paste it on pleading paper (just to make it more formal) do you think I should?

Or just send it on plain paper like I did the other?

 

Debtermined.

You can send it on either type of paper and still receive the same objection from them. When you file things with court however you will want the pleading paper.

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Yup, snagged one already. 

I can paste it on pleading paper (just to make it more formal) do you think I should?

Or just send it on plain paper like I did the other?

 

Debtermined.

if you want them and the courts to take you seriously it should be on pleading paper not plain, especially if you need to file a mtc bop.

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if you want them and the courts to take you seriously it should be on pleading paper not plain, especially if you need to file a mtc bop.

 

That was my thought too.  I'll format it tonight.

 

Debtermined

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Debt,

 

You are doing well and showing that you are paying attention to detail. (ie CMC statement your local county rules)  You are also doing research on the information you are recieving from the board.  This is also a must, because none of us know your case as well as you will, and we cant see any of the documents.

 

Another part of being successful in this case is to stay ahead of the case, don't put yourself against pressure deadlines.  Remember, you are defending a case in civil court against a bar certifed attorney, that makes a living doing these cases.  You on the otherhand, while intellegent, determined and resourceful, are still a novice.  This is a big number, so we here want to give you as much insight and direction we can to make sure you don't fall into any traps.....

 

Staying ahead of you case means, learning and understanding, how to make the otherside want to give up and go away.  Many think they will stand in court and have a gotcha moment, with the attorney from the otherside.  Judge hammers the gavel " Judgement for the Defendant".  The reality is if possible you really want them to fold and take their marbles to another game, long before trial.

 

Given this you will have a bit of down time once you send the BOP and await the response.  Certainly,you should take a breather, but also realize this is time you can you use to prepare for the next phase of the Discovery.  Here are some things you should read, so you know the rules:

 

California Rules of Civil Procedure (CCP)  Here is a link you should book mark this-

 

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20

 

 

You want to review CCP 2030 and 2031 and 2033.  These give you all the rules that discovery will operate under for you and them.  If they are really serious about this case, Once they recieve the BOP and your answer you will likely recieve discovery requests from them.  Being this is an unlimited case, this could be a good amount of information to deal with.

 

The hope is they will supply something in the response to BOP that will allow you to drive a stake in their case early.  (you are saying what would that be?)

 

Example- they supply the last 6 or 12 months worth of statements from Wells.  If those statements show your last payment date as March of 2009 as you claim, then your date of default/breach of contract would be April 2009.  This would fit with your contention that the suit dead via the SOL of 4 years.

 

If you were to get these you would send a very limited number of Request for Admissions.  They might go something like this-

 

1. Admit that Defendant defaulted on the wriitten contract on March 2009, pursuant to statements provided by plaintiff?

 

 

Maybe a couple more that really puts them in a tough spot.  Once they recieve this they will be out of gas, and this case should be over...

 

Your doing well, stay ahead of your case, study and learn....

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Example- they supply the last 6 or 12 months worth of statements from Wells.  If those statements show your last payment date as March of 2009 as you claim, then your date of default/breach of contract would be April 2009.  This would fit with your contention that the suit dead via the SOL of 4 years.

 

 

All true, but you can also use the plaintiff's complaint against them to prove the same thing, as it say's under the breach of contract cause of action; "on or before 8-24-09 defendant breached agreement". They have to be held to their pleadings; so you already have what you need to show the SOL has run.

 

Debtermined: You could study until up to speed, and then file a MSJ based on the SOL. What possible reason could there be to go to trial if the SOL has run? Regardless of any triable issue; it is time barred. Another reason for the MSJ is that I don't think you listed the SOL as an affirmative defense (I could be wrong ). I think you could argue the SOL regardless of whether or not you asserted it as an affirmative defense in most courts however; but it would not fly in my court.

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All true, but you can also use the plaintiff's complaint against them to prove the same thing, as it say's under the breach of contract cause of action; "on or before 8-24-09 defendant breached agreement". They have to be held to their pleadings; so you already have what you need to show the SOL has run.

 

Debtermined: You could study until up to speed, and then file a MSJ based on the SOL. What possible reason could there be to go to trial if the SOL has run? Regardless of any triable issue; it is time barred. Another reason for the MSJ is that I don't think you listed the SOL as an affirmative defense (I could be wrong ). I think you could argue the SOL regardless of whether or not you asserted it as an affirmative defense in most courts however; but it would not fly in my court.

 

They filed 3 days before their claimed "on or before 8/24/09" date, so they think the SOL has not run out.  But everyone who has reviewed my case found that "highly suspicious."   I believe I was default of the agreement before their claimed date because my bank statements show the last payment I made was about 3 to 4 months prior.

 

And I did list Statute of Limitations as an affirmative defense in my Answer, so I'm covered.

 

Debtermined

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