Debterminator!

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

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My response might go something like this:

Enclosed is a signed Bill of Particular for your record. I would note that the document was sent Certified Mail Return Reciept and thus has a tracking number. Point being the neccessitie of a signature, is wimpish.

More importantly the Bill is required to be delivered within 10 days upon request. Based on this being a verified complaint, by you. The expectation that the documents related to the account should be easily at your disposal. You needing some 60 days to get the documents from a previous alleged owner of the account, speaks volumes about your diligence and verification.

Furthermore, unless these documents are being produce with crayons and a type writer I suspect they can be availble within 30 days. If not Defendant may need to file a Motion to Compel/Preclude.

Might as well have a little fun with them along the way....

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My response might go something like this:

Enclosed is a signed Bill of Particular for your record. I would note that the document was sent Certified Mail Return Reciept and thus has a tracking number. Point being the neccessitie of a signature, is wimpish.

More importantly the Bill is required to be delivered within 10 days upon request. Based on this being a verified complaint, by you. The expectation that the documents related to the account should be easily at your disposal. You needing some 60 days to get the documents from a previous alleged owner of the account, speaks volumes about your diligence and verification.

Furthermore, unless these documents are being produce with crayons and a type writer I suspect they can be availble within 30 days. If not Defendant may need to file a Motion to Compel/Preclude.

Might as well have a little fun with them along the way....

 

I totally agree that since the Document was sent CMRRR and states "Defendant" and "Dated this November 25th, 2013" the need for an actual signature is rediculous.  They should know where it came from.

 

However, with respect to the Demand for BoP, the complaint they filed was not Verified.  It included no statement thereof, nor did they affix a Verification or sworn statement to the Summons. Since California Code of Civil Procedure § 454 states: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof,"  Can I hold them to this 10 day window, even though they have now said it will take them up to 60 days to get it? 

 

I mean really... they should have been ready to go, since they are the ones that filed the suit, yes?

 

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The reason I put 30 was it was a compromise in time.  Case law is minimal in using 454 as preclusionary that I have seen.  If you were to file a MTC, you want to be viewed as accomadating with otherside.  If they don't have it they don't have it and can't produce.  They say they can get it, 30 days is reasonalbe.

 

I put the verification in there without going back and reviewing the entire thread.

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The reason I put 30 was it was a compromise in time.  Case law is minimal in using 454 as preclusionary that I have seen.  If you were to file a MTC, you want to be viewed as accomadating with otherside.  If they don't have it they don't have it and can't produce.  They say they can get it, 30 days is reasonalbe.

 

I put the verification in there without going back and reviewing the entire thread.

 

Understood and agreed.

 

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You can send them a new BOP with 10 days to respond, that's what the code says, but is not followed and you usually do have to go into discovery. A MTC or preclude with a BOP is rarely won , because the judge usually says to conduct discovery. The judge may order them to respond to the BOP; but I have never heard of them being precluded from entering evidence this early.

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Well I know the judge is pretty lenient when it comes to the BOP, but I think it is because no one ever forces the issue. Cite the rule, give them 10 days. They want you to follow the procedure, and sent it back on a technicality, I would return the favor.

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Well I know the judge is pretty lenient when it comes to the BOP, but I think it is because no one ever forces the issue. Cite the rule, give them 10 days. They want you to follow the procedure, and sent it back on a technicality, I would return the favor.

 

Good point.

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Taking the advice of shellieh98, I have decided that in the morning, I will send a new Demand for Bill of Particulars, with my signature, and using tomorrows date, in the exact same words, but with the phrase "within 10 days" in Boldface.

 

They chose to send me a letter claiming a technicality, and I will give them that, but CCP454 is code, and as Anon Amos says, the code does state "10 days."  I don't feel any need to give them anything at this point.

 

They did not respond to my Meet and Confer (that I filed Timely).

They did not file thier Case management Form with the Court (that I filed Timely).

They finally responded to my first Demand for BoP by asking for 60 days.

 

Nope.  Not going to let up on anything this early.  And I intend to point these things out to the Judge at my CMC on Wednesday as well.

 

Thanx everyone.

Feeling good.

 

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I would not give them anything but a hard time (as far as any of their request go). The reason judges are lenient with the CCP 454 code is that you can now  use discovery to get any evidence they may have, so they are not taking a way your due process. And they are not taking away from the plaintiffs due process by precluding them from introducing evidence (something judges do not like to do).

 

The BOP was around long before discovery was.

 

You might want to check your local rules about not filing the CMC statement; my rules apply mandatory sanctions for not complying.

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You might want to check your local rules about not filing the CMC statement; my rules apply mandatory sanctions for not complying.

 

Some research shows Local rules for sanctions at the courts discretion in Family Law issues, and Mediation issues, but lists nothing about Case Management failures.  And nowhere were any of the sanctions "mandatory."  (Dang!)

 

One question I had about sanctions though...  When a Judge issues a sanction against an attorney, who gets that money?  The Courts or the opposing party?  Just wondered.

 

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Debt,

It might be a good idea to meet and read the judges temprament and deameanor, before going after the otherside. Judges sometimes can have real disdain for Pro Se defendants and plaintiffs. You need to find this our before busting in the doors and saying the otherside is this or that and court should do this or that.

Once you have this you will know how to proceed. Just saying being a bit cautious till you know, is best. This person will be making alot of rulings along the way, and you really want to be seen as accomadating yet firm.

Something to consider.....

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Debt,

It might be a good idea to meet and read the judges temprament and deameanor, before going after the otherside. Judges sometimes can have real disdain for Pro Se defendants and plaintiffs. You need to find this our before busting in the doors and saying the otherside is this or that and court should do this or that.

Once you have this you will know how to proceed. Just saying being a bit cautious till you know, is best. This person will be making alot of rulings along the way, and you really want to be seen as accomadating yet firm.

Something to consider.....

 

Thank you for your advice.  Accommodating yet Firm.

 

My plan is to have two outlines with me for the CMC.  One would be a hammer, and one would be a fly swatter, if you catch my drift.

It's my understanding that in our County the CMC's are actually held in the Judges chamber and not in the open Courtroom, so I expect them to be very informal.  By having it privately in the chambers though, it will be hard to get a read because I cannot watch any previous interaction with the Judge. I will, however use the appropriate instrument (outline) when the time comes.  I am expecting that the opposing attorney will either not show at all, or just phone in (that appears to be allowed for these CMC's in our County).  My wife is sending the new Demand for BoP today and will stop by and check the Court records to see if they ever got around to filing their CMC Form 110 that was due 15 days before this Wednesdays appearance.

 

For reasons that have no bearing here, my Son has a great deal of experience with the local court and says that this Judge (there are only two) is "a pretty cool guy."

 

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Skippy's point may be valid, that's why I said MANDATORY sanctions may be in the rules. Then you are simply pointing it out. Again, valid points, but the judges temperament and demeanor IN A CMC is almost always pleasant. They will be happy and smiling as they try to  encourage you to settle. It's after you continue to fight that their true colors show. You do have to go after the other side regardless of how the judge feels about it (or you). Demanding sanctions is something that's not often necessary (as the court can apply them on it's own)

 

The time to learn about the judge is BEFORE you appear in front of them. You really do have to tell judges what to do, you try not to irritate them, but you can't be timid. The court is controlled by statutes, case law, local rules etc. and depends on the parties to the case to tell the court how it should respond.

 

As far as sanctions go; in your case, if they were imposed on the lawyer, the court would get them since you are pro se.

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You really do have to tell judges what to do, you try not to irritate them, but you can't be timid. The court is controlled by statutes, case law, local rules etc. and depends on the parties to the case to tell the court how it should respond.

 

As far as sanctions go; in your case, if they were imposed on the lawyer, the court would get them since you are pro se.

 

Boy did I learn this the hard way (in Probate Court - and WITH an attorney - ugh).  I had a timid attorney, without much courtroom experience, the other side had a team of 4 lawyers who told the Judge exactly what she should do.  Ultimately, we did get what we wanted (kept my inheritance from going to the wrong party), but due to some bizarre interpretation by the Judge, now I have to wait for the passing of the surviving spouse before distribution of the deceased spouse estate.  And there is not enough money involved to seek appeal.  The lawyers made more money than the Beneficiaries.

 

Moral to that story: If anyone EVER tells you that "the document speaks for itself,"  ALWAYS, ALWAYS put words in the documents mouth, because it may not be saying the same thing to each person that hears it!!!!

 

Bummer on the sanctions thing though, could have covered my filing fees.

 

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In my case both parties filed the CMC Statement just days before the CMC. Judge didn't bring it up, may have not cared or even noticed the untimely filings..

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@

 

You can get your filing fees back from them after you win the case.

 

It sounds like you have done your homework as well as learned the hard way. It would seem like you can't tell a judge what to do, and you often see people say "It's not like I can tell the judge what to do", but actually it is exactly like that. And it won't be considered rude or offensive to the judge. In fact the judge will be expecting SOMEONE to tell him / her what to do (you can't expect them to research the laws that govern your case and control the judge for you). Nobody wants to be the one at trial that does not know this. It's also good to make sure you have a court reporter at trial, it helps keep the judge in line (but it sounds like you may have a good judge).

 

A lot of this is for others that may be reading this at some point. 

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@

 

You can get your filing fees back from them after you win the case.

 

It sounds like you have done your homework as well as learned the hard way. It would seem like you can't tell a judge what to do, and you often see people say "It's not like I can tell the judge what to do", but actually it is exactly like that. And it won't be considered rude or offensive to the judge. In fact the judge will be expecting SOMEONE to tell him / her what to do (you can't expect them to research the laws that govern your case and control the judge for you). Nobody wants to be the one at trial that does not know this. It's also good to make sure you have a court reporter at trial, it helps keep the judge in line (but it sounds like you may have a good judge).

 

A lot of this is for others that may be reading this at some point. 

 

Exactly.  The Judge in my Probate court was a nutcase and had never presided over a Probate issue before.  Instead of applying the law as required, she decided she needed to try to please both sides in a compromise to try to save the family.  She failed miserably, the family will never heal from this, but what's done is done.  But like I said, at least we kept other family members from embezzling an inheritance that did not belong to them.

 

There are some very searchable issues in this thread, and I'm sure there will be many more to come.  Is there a place on this forum where, when everything is over, I can provide for others the documents I used in my case.  It's the documents that seem to hang me up most.  I can find information by searching the threads, but boilerplate things like Demand for BoP, or Initial Meet and Confer templates are just hard to locate.

 

If I can beat this thing, I'd be more than happy to pave the path for the next person.

 

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Your thread will help people and you can add documents etc. as you go. You can also start a new thread about how you beat them.

 

There are sample BOP's all over here, so you must be missing them. The m&c letter is just  a simple letter (although Calawyer has one on here that is written like a MTC)

 

Also if you read the CCP 454 it has all the language that needs to be in the BOP right there, and it is just a 1 page document. Let me know if you can't find one and I'll find in my files.

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Your thread will help people and you can add documents etc. as you go. You can also start a new thread about how you beat them.

 

There are sample BOP's all over here, so you must be missing them. The m&c letter is just  a simple letter (although Calawyer has one on here that is written like a MTC)

 

Also if you read the CCP 454 it has all the language that needs to be in the BOP right there, and it is just a 1 page document. Let me know if you can't find one and I'll find in my files.

 

I do have these already.  I stumbled with the BoP at first because although I had it on pleading paper, I did not have the correct format, but someone here corrected me before I made a fool of myself.  The M&C letter is just a simple letter, but I would like to have seen others first.

 

And although I reference the CCP 454 in my Demand for BoP, in hindsight I would have preferred to actually "quote" it in the context of the letter.

 

Thanx Anon Amos for your help in this.

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Curious about something...  If I mailed (CMRRR) a Demand for BoP on November 25th, and in it I give them "10 days to respond" (per CCP 454), exactly when do those 10 days start?

 

5 days after mailing?

10 days after mailing?

Some other date?

 

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It starts the day you mail (serve) them. However anytime you mail something (instead of personal service) you do have to give them 5 additional days to respond. So it's 15 days from the day it's postmarked.

 

I would not expect much out of the BOP (as far as precluding them from introducing evidence etc.). You will probably receive an untimely objection stating the Destifano case.

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It starts the day you mail (serve) them. However anytime you mail something (instead of personal service) you do have to give them 5 additional days to respond. So it's 15 days from the day it's postmarked.

 

I would not expect much out of the BOP (as far as precluding them from introducing evidence etc.). You will probably receive an untimely objection stating the Destifano case.

 

Yeah, I was just wondering about the timeframe.  I assumed 10 days (plus 10 more), and they didn't respond for 21 days, and then asked for 60 more.  I know it won't mean much, but so far, they haven't done ANYTHING timely. 

 

In regards to any "mandatory sanctions" I did find that on the actual "Notice of Inclusion in Civic Case Management System and Notice of Case Management Conference" which was sent to me by the plaintiff (included with the original Summons and Complaints) it states in boldface "Non-compliance may result in the imposition of sanctions."  I'm not going to push it today, but if I see that the Judge is receptive or raises an eyebrow, I will point out their lack of respect for the Courts instructions.

 

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Additionally, in their response to my Demand for BoP they say that they have requested the information from Persolve LLC (which was the previous collection company), so I don't expect that information to be very useful either.  If I am asking for an accounting "from a zero balance" wouldn't they have to get that information from the OC?  I can't imagine what they are going to produce since they are a JDB that is now twice removed from the OC.

 

Debtermined.

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