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Now I am a bit confused as it was suggested that I also send the plaintiff a "Bill of Particulars" here http://www.creditinfocenter.com/legal/bill-of-particulars.shtml it states this 

Under What Circumstances Would a Defendent Provide a Bill of Particulars to a Plaintiff?

OK, so there is a situation where the defendant would be asked for a Bill of Particulars. If you file a counterclaim, the plaintiff may request a Bill of Particulars from you.

 

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I have only answered the complaint in standing- denial, so is that what is meant by counterclaim?

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yes you put the word objection in front of them, just like i wrote.

no a bill of particulars is an itemized list of all the charges that shows you owe what the plaintiff is asking for on the account.  They could ask you for one if you claimed they owe you 1k for this, 300 for that, they would want to know how you arrived at that figure.  If you counterclaim for say a FDCPA violation, it is whatever the court deem proper up to 1000 dollars, so you would not have a bill of particulars to send.  You ask for a bop if the cause of actions against you are common counts, breach of contract, suit on account.  It is not for account stated, but rarely does the plaintiff only sue for account stated, they like to add them all in there so if they don't win on one, they can win on another.

 

A counterclaim is an action you bring against them, not a defense.  It has a seperate filing fee.  it's like they are suing you, and you are suing them in the same case.

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yes you put the word objection in front of them, just like i wrote.

no a bill of particulars is an itemized list of all the charges that shows you owe what the plaintiff is asking for on the account.  They could ask you for one if you claimed they owe you 1k for this, 300 for that, they would want to know how you arrived at that figure.  If you counterclaim for say a FDCPA violation, it is whatever the court deem proper up to 1000 dollars, so you would not have a bill of particulars to send.  You ask for a bop if the cause of actions against you are common counts, breach of contract, suit on account.  It is not for account stated, but rarely does the plaintiff only sue for account stated, they like to add them all in there so if they don't win on one, they can win on another.

 

A counterclaim is an action you bring against them, not a defense.  It has a seperate filing fee.  it's like they are suing you, and you are suing them in the same case.

No I am not suing them back- I answered the complaint that was it. and will send this other stuff .  So should I send the BOP for sure as it makes them come up with more stuff they may not be able to and it looks weaker for them in court? I did not think I would get this stuff from them when the court date is so far away? Are they planning something I should be aware of before the court date?

 

Thanks so much for your help and putting this all in perspective for me. 

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yes send the BOP.  and they could be planning a motion for summary judgement if you don't do anything to fight the case

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are their any other statements that should be interjected other than what is on snapdragon's BOP I should place in the BOP?

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are their any other statements that should be interjected other than what is on snapdragon's BOP I should place in the BOP?

 

You just want to get a BOP out there so you can use a response to plaintiff's discovery along the following lines:

 

Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a BOP setting forth the contract referred to in the complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account.....(etc). Although the code requires the plaintiff to respond in 10 days, plaintiff failed to do so. Without such information, defendant is unable even to identify the debt alleged in the complaint, much less provide the information requested in this interrogatory. Defendant reserves the right to supplement her answer to this interrogatory after plaintiff complies with its obligations under the Code.

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You just want to get a BOP out there so you can use a response to plaintiff's discovery along the following lines:

 

Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a BOP setting forth the contract referred to in the complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account.....(etc). Although the code requires the plaintiff to respond in 10 days, plaintiff failed to do so. Without such information, defendant is unable even to identify the debt alleged in the complaint, much less provide the information requested in this interrogatory. Defendant reserves the right to supplement her answer to this interrogatory after plaintiff complies with its obligations under the Code.

 As you stated "Although the code requires the plaintiff to respond in 10 days, plaintiff failed to do so" . meaning to add this? I have not sent it out yet so how do I know they will respond or not?

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No send it out now, you could have put that had you sent it out. If you have more than 15 days left before you have to send your discovery back to them, then you could put that if you send out the bop now. Regardless send it, I don't understand why you are so focused on this, even though it can be sent anytime, advice here 3 months ago was send it. send the thing out.

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No send it out now, you could have put that had you sent it out. If you have more than 15 days left before you have to send your discovery back to them, then you could put that if you send out the bop now. Regardless send it, I don't understand why you are so focused on this, even though it can be sent anytime, advice here 3 months ago was send it. send the thing out.

I just got this discovery from them and I do believe no one here mentioned about a BOP prior earlier after I answered the complaint,  unless I missed the post.I just wanted to make sure I was adding in the correct info.

Thanks so much for your help.

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@credit2011. Post 23, post 57, and post 61

So now I wait for their response as all has been sent out- Should I be sending out interrogatories and requests for admissions to them?

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I would send out a documents request, and you can do admissions now, or wait and see what they produce in the way of documents.

Check astmedic's thread, or homelessinca's thread for a sample of a document request.

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I received Plaintiff;s response to my Demand For Biil of Particulars

Here is what I got:

 

1: Copy of statements from the bank 12  months worth with the terms and conditions page.

2: Exhibit  1 Bill of Sale   Dated with Cut of Date and closing date 3 days later. THIS DATE IS ONLY A MONTH OLD. Signed by  them and Wells Fargo. MY NAME OR ACCOUNT NUMBER IS NOT ON THESE 2 PAGES.The 3rd page says Field Data at the top with my Name last 4 of social, address, charge off amount, charge off date, open date, last payment amount and account number of credit card.

4: Affidavit of Debt with the amount and my name on it signed by Sales Liason person dated recently written in not types with a notary seal and signed

5: Affidavit of Sale by original Creditor (MY NAME OR INFO IS NOT ON THIS PAGE)

6: Exhibit F, signed by someone  says State of Iowa on it, County of Dallas (MY NAME OR INFO IS NOT ON THIS PAGE)

7: Pre Legal Notification (never got this in the mail) states amount with interest and account number of them and my credit card.2nd page has a statement

8: Letter from Midland stating account was transferred to collection with interest figure included it seems.

9: Response letter with  their Midland letterhead dates of account opened, date of charge off, current principal, current balance (they did not on that letter I can reply with docs to help them undertstand my situation such as Balance discrepency, paid in full or Fraud - Identity theft.

10: Proof of Service

 

They state in their response on the 1st page  that my BOP  is not appropriate in an action on an account stated. because account stated is deemed to merge the various items on which the earlier accounts were based.  Plaintiffs position a BOP is inapplicable. They also said Plaintiff reserves the right to amend as additional docs are located.

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I received Plaintiff;s response to my Demand For Biil of Particulars

Here is what I got:

 

1: Copy of statements from the bank 12  months worth with the terms and conditions page.

2: Exhibit  1 Bill of Sale   Dated with Cut of Date and closing date 3 days later. THIS DATE IS ONLY A MONTH OLD. Signed by  them and Wells Fargo. MY NAME OR ACCOUNT NUMBER IS NOT ON THESE 2 PAGES.The 3rd page says Field Data at the top with my Name last 4 of social, address, charge off amount, charge off date, open date, last payment amount and account number of credit card.

4: Affidavit of Debt with the amount and my name on it signed by Sales Liason person dated recently written in not types with a notary seal and signed

5: Affidavit of Sale by original Creditor (MY NAME OR INFO IS NOT ON THIS PAGE)

6: Exhibit F, signed by someone  says State of Iowa on it, County of Dallas (MY NAME OR INFO IS NOT ON THIS PAGE)

7: Pre Legal Notification (never got this in the mail) states amount with interest and account number of them and my credit card.2nd page has a statement

8: Letter from Midland stating account was transferred to collection with interest figure included it seems.

9: Response letter with  their Midland letterhead dates of account opened, date of charge off, current principal, current balance (they did not on that letter I can reply with docs to help them undertstand my situation such as Balance discrepency, paid in full or Fraud - Identity theft.

10: Proof of Service

 

They state in their response on the 1st page  that my BOP  is not appropriate in an action on an account stated. because account stated is deemed to merge the various items on which the earlier accounts were based.  Plaintiffs position a BOP is inapplicable. They also said Plaintiff reserves the right to amend as additional docs are located.

I am re-posting this to see if I get a response from someone here- What would be the next step for me and how does this look above for my case?

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Normally they just give the objection and nothing else. Then you go thru discovery "request for production of documents". After haggling with that for a while you end up with just about what you now have. So I think you probably have enough, and would just keep learning.

You need to learn how to attack  all of this at the proper time and file a motion in limine to strike the evidence. Rules of evidence and authentication. HEARSAY, business records exception to it, best evidence rule, rules of authentication.

 

There are a few other things that are going to come up: CCP 98 Declaration in lieu of testimony, you sending them a CCP 96 request for witness and evidence list, you subpoenaing the declarant of the CP 98, ETC.

 

See ASTMedic's thread "how I beat midlands" and HomelessInCalifornia's thread.

 

Do you have a TRIAL date yet?

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Normally they just give the objection and nothing else. Then you go thru discovery "request for production of documents". After haggling with that for a while you end up with just about what you now have. So I think you probably have enough, and would just keep learning.

You need to learn how to attack  all of this at the proper time and file a motion in limine to strike the evidence. Rules of evidence and authentication. HEARSAY, business records exception to it, best evidence rule, rules of authentication.

 

There are a few other things that are going to come up: CCP 98 Declaration in lieu of testimony, you sending them a CCP 96 request for witness and evidence list, you subpoenaing the declarant of the CP 98, ETC.

 

See ASTMedic's thread "how I beat midlands" and HomelessInCalifornia's thread.

 

Do you have a TRIAL date yet?

Trial date is set in  2015 springtime. Should  I send a request for admissions before file a motion in limine to strike the evidence?

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I would file the MIL and a trial brief. Usually about 5 days or so before trial; but check your local rules to see what they say. An example of an MIL is in ASTMEDIC'S thread.

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I would file the MIL and a trial brief. Usually about 5 days or so before trial; but check your local rules to see what they say. An example of an MIL is in ASTMEDIC'S thread.

Thanks I will do that. The trial is so far away- almost a year out, I did not think I would receive discovery requests from them so soon. Are they planning another surprise of some kind? Is their anything they can do more prior to trial?

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Then you file an opposition to the MSJ. You just have to show a trial able issue, a reason why it should go to trial rather than the judge just ruling in plaintiffs favor in a summary judgment.

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The most common issues you can bring up include lack of ownership of the alleged debt and their lack of standing.

 

Also if they do not respond to a BOP, you can file a motion in limine to preclude anything that would suggest a dollar amount owed.

 

 

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Have you sent them any discovery? If not, I would do so.

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