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Use their opposition against them, as a template. Make it look the same, just change the title.

 

For every information sentence or paragraph they make; you do the same, but correct them and list your response to what they have said, unless it's something you agree with. Their opposition to your MTC should be able to be used as your example, you just do the same changing only the argument. And don't stray from what they have said or add to it. You are only responding to what they have said (in their opposition) that you don't agree with.

 

I don't think you will find (or need) any examples, and all the information you need to attack is in your copy of their opposition.

 

Good Luck.

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Your response to plaintiff's opposition is called a "Reply brief".  An exemplar won't be of much use because they are fact-specific.  You are responding to plaintiff's opposition.  If you want to see an exemplar anyway, try alameda county superior court's complex case docket.  You need to pay for downloads but they are pretty cheap.

 

What you want to do is restate your argument (the requests are relevant and seek the most basic information that plaintiff will need at trial to prove its case).  Then you address plaintiff's arguments and show that they have no merit.  You are entitled to a code-compliant response to your discovery.

 

Your brief can be short.  2 or 3 pages.  Your reply is due five court days before the hearing (CCP 1005 B).  It should be served by overnight mail.  Plaintiff's brief should have been served by overnight mail too. 

 

Also, check to see if your court operates a tentative ruling system.  If you don't know what that is, search my posts for "tentative ruling" and you will find an explanation.

 

Good luck.

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Your response to plaintiff's opposition is called a "Reply brief".  An exemplar won't be of much use because they are fact-specific.  You are responding to plaintiff's opposition.  If you want to see an exemplar anyway, try alameda county superior court's complex case docket.  You need to pay for downloads but they are pretty cheap.

 

What you want to do is restate your argument (the requests are relevant and seek the most basic information that plaintiff will need at trial to prove its case).  Then you address plaintiff's arguments and show that they have no merit.  You are entitled to a code-compliant response to your discovery.

 

Your brief can be short.  2 or 3 pages.  Your reply is due five court days before the hearing (CCP 1005 B).  It should be served by overnight mail.  Plaintiff's brief should have been served by overnight mail too. 

 

Also, check to see if your court operates a tentative ruling system.  If you don't know what that is, search my posts for "tentative ruling" and you will find an explanation.

 

Good luck

Thanks for your reply- I got so far as to here https://publicrecords.alameda.courts.ca.gov/prs

but do not know which box to chose to even begin a search  I  clicked on public filings, but how to decipher what is needed is unknown to me - it says you need dates  

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Complex litigation, then pick one of the two judges (try Carvill) , then select "list of cases". 

 

From there it will or miss.  Try looking in cases that were filed a long time ago as it is more likely there will have been a discovery dispute..  Select "registrar of actions" and you will see the entire docket.  If there is a motion to compel you will find a reply.

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looking for example response I need to send  to plaintiff's opposition to MTC

As calawyer stated there is no example because it's specific to your case but here is what I wrote for our case. You can pretty much gather the type of docs I requested and how JDB responded. This is in reply to JDB's Opposition to our MTC RFP's.

 

I.                                                          INTRODUCTION

Plaintiff has responded in opposition to Defendant’s Motion to Compel Further Response to Production of Document Demand with the understanding that Plaintiff is pursuing this case under a common count “account stated” cause of action. However, this does not relieve Plaintiff, as an Assignee, their responsibility when responding under the Code  with what Legislature has established.  

 

Defendant has propounded discovery due to Plaintiff’s non-compliant with a Court Order heard on DD/MM/YYYY, for a motion to compel bill of particulars providing documents specific to the alleged account in this case. Plaintiff overlooked its own complaint in that in addition to the common count ‘account stated’, there is also the common count ‘for goods, wares, and merchandise sold and delivered’ under Paragraph CC-1b(3). Therefore, Defendant’s Request for Production Category No 1 & 2 is appropriate.

Plaintiff cannot seriously claim that they have produced all documents in its possession, custody or control responsive to the code of civil procedure. The reason, therefore, Defendant’s insistence is Plaintiff’s Bill of Sale (Defendant’s Exhibit D), beginning with the last sentence, states: ’Seller attests and affies that documents…..as maintained in the ordinary course of its business are available to Purchaser upon request…including but not limited to application by Borrower(s) whose Accounts are being transferred.’ (Emphasis added). This statement is in direct conflict with the statement made in Plaintiff’s opposition brief. Plaintiff contends that they cannot compel the Original Creditor to produce documents responsive to Defendant’s request. However, OC BANK USA, NA., themselves are stating ‘documents are available upon request’ (emphasis added). Therefore, it does appear that Plaintiff has in its control, the ability to request such documents, in this case, one (1) piece of document, the original credit application bearing Defendant’s signature but Plaintiff claims it can’t.

 

For Defendant’s Re Request No 2, Plaintiff is still asserting an ‘Account Stated’ claim. Plaintiff’s initial response was an objection and unduly burdensome. In Plaintiff’s opposition response redefined Defendant’s definition of “YOU” to mean OC BANK USA, NA, thereby shifting the Real Party in Interest from the Plaintiff, JDB, LLC to OC BANK USA, NA. However, OC  BANK USA, assigned all its rights and interest to the Plaintiff. (Defendant’s Motion Exhibit D). The question then arises as to the identity of the Real Party in this suit. Therefore, Defendant asks the Court to grant this motion and compel the Plaintiff for a further response and provide the contract and/or written agreement, and all documents establishing a relationship between Defendant and Plaintiff as referred to by Plaintiff in its complaint or in a verified statement state the reason why it cannot comply as to the Civil Code of Procedure section 2031.230 and 2031.240.

 

II.                                                        ARGUMENT

 

A.       Response to Plaintiff’s Opposition Response to Category No 1.

 

First, Plaintiff has insisted and contends that the Card Agreement with no reference to Defendant’s name, address, alleged account number and/or Defendant’s signature is sufficient therefore, not requiring the original credit application. Each party is entitled to the benefit of all evidence, including the evidence produced by an adversary. (Williams v. Burnett (1955) 135 Cal.App.2d 607, 612 [287 P.2d 789]; 7 Witkin, California Procedure (4 th ed. 1997) Trial, § 305, p. 352.) Additionally, Civil Code § 1747.05(a) states ‘no credit card may be issued except (1) in response to an oral or written request or application for the card, or (2) as a renewal of, or in substitution for, an accepted card. See 15 U.S.C. § 1642 (issuance of credit card). Plaintiff has not set forth any facts, whether Defendant requested orally, written or applied for an alleged credit card with the Original Creditor.  In addition, the Truth in Lending Act requires that a creditor, before opening any account under an open-end consumer credit plan, disclose a number of items to the person to whom credit is to be extended. See 15 U.S.C. § 1637(a). The disclosures in an open-credit plan must reflect the terms of the legal obligation between the parties. See 12 CFR § 226.5©. Plaintiff’s insufficient response in this regard bears no foundation.

 

 Plaintiff’s contention that it is currently ‘not in possession’, is redefining what the Legislature has defined for the Discovery process. The Code is very specific as to how the verified response be stated. The Code states “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed has lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” The Code does not relieve ‘Assignees’ with specificity that the Plaintiff cannot attest because Plaintiff is not the Original Creditor and that the Original Creditor is not under the control of the Plaintiff, therefore cannot compel the Original Creditor  to produce documents responsive to Defendant’s request. The Code specifies exactly what the Plaintiff must state when responding to a document request.  There are ‘no exceptions’ for Assignees nor should there be. Therefore, the Defendant requests the Court to grant this motion to compel Plaintiff  to either request from the Original Creditor, the original, signed credit application or state in a verified statement what the Code says is the appropriate response.

Second, Plaintiff has not disputed the cause of action ‘for goods, wares and merchandise sold and delivered’ but only disputes the sum of $$$$$$$ which supposedly resulted in goods, wares and merchandised provided by the Plaintiff and benefited the Defendant. Plaintiff has not set forth any facts, and/or documents attesting to this. A contract or a written agreement is appropriate in this regard because the specifics of what Defendant requested from Plaintiff will be evidenced.

 

Third, Plaintiff’s alleged theory that an ‘Account Stated’ is a form of novation is therefore subject to all the rules concerning contracts in general. (Civ Code § 1532).The contract that was allegedly formed as an account stated fails to conform the rules in that Plaintiff and Defendant did not mutually assent to the new contract. Therefore there is no novation. (Duncanson-Harrelson Co. v. Travelers Indem.Co. (1962) 209 Cal. App. 2d 62, 25 Cal. Rptr. 718; Ayoob v. Ayoob (1946) 74 Cal. App. 2d 236, 251, 168 P.2d 462). Defendant had no prior dealings with Plaintiff only until this lawsuit was filed, thereby, no mutual assent. The sole purpose of the account stated is to settle the amount of an existing liability based on previous transactions between parties. The device cannot, therefore, be made an instrument to create a liability where non existed at the time the account was rendered. (Burke v. Ikuta, 113 Cal. App. 2d 724, 248 P.2d 962 (2d Dist. 1952); Wine Packing Corp. of California v. Voss, 37 Cal. App. 2d 528, 100 P.2d 325 (1st Dist. 1940); Greenfield v. Sudden Lumber Co., 18 Cal. App. 2d 709, 64 P.2d 1007 (1st Dist. 1937)

 

B.       Response to Plaintiff’s Opposition Response to Category No 2.

 

Plaintiff is in the business of buying in bulk defaulted accounts and its primary business is not in the form of lending or extending credit. Yet, Plaintiff has claimed that Defendant has damaged Plaintiff thereby filing a complaint with damages in the amount of $$$$$$. Plaintiff has not provided any documents to prove that there was a business relationship or any documents proving that Plaintiff lent the amount prayed for in the complaint. Plaintiff’s response has no evidentiary foundation and has not set for the any facts or documents to backup their claim.

 

In Defendant’s request, Defendant defined the term “YOU” and “NEW CONTRACT”. Defendant defined the term “YOU” as ‘Plaintiff, JDB, LLC, its agent and representatives’ and ‘NEW CONTRACT’ as ‘the executed contract agreement that establishes a relationship between one party to another party’. Plaintiff’s initial response was an objection without identifying what Plaintiff was objecting to. In Plaintiff’s Opposition response, Plaintiff redefined the terms thereby not complying with the request.

 

In Plaintiff’s Opposition response “the agreement reached by and between Defendant and the Original Creditor, OC  BANK USA, NA.”. The Affidavit of Sale signed by Named Attorney, Attorney-in-Fact on behalf of OC writes the following: ‘OC has no further interest in said account for any purpose’. In addition, the Bill of Sale (Defendant’s Motion Exhibit D) between OC and Plaintiff states the following: ‘OC hereby assigns effective as of the file creation date MM/DD/YYYY all rights, titles and interests of Seller in and to those receivables, judgments or evidence of debt described in Exhibit 1 attached hereto and made hereof for all purpose’. Plaintiff filed this lawsuit with the Courts on MM/DD/YYYY and OC BANK USA is not a named Plaintiff in this lawsuit. Every action must be prosecuted in the name of the Real Party in interest. A real party in interest is generally defined as the person possessing the right sued on by reason of the substantive law. See Doe v Lincoln Unified Sch. Dist (2010) 188 CA4th 758, 765, 115 CR3d 191; Estate of Bowles (2008) 169 CA4th 684,690, 87 CR3d 122. Therefore, Plaintiff’s response to this request is insufficient and requires a proper response.

 

Plaintiff has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief [Evid Code § 500]. In action based on a contract, the Plaintiff must plead and prove the existence of the contract [Walsh v. West Valley Mission Cmty. Coll. Dist.(1998) 66 CA4th 1532, 1545, 78 CR2d 725]. The circumstances of Plaintiff may indicate their lack of intent to create a contract. A purported offer or lack thereof cannot be the basis of a contract if the circumstances indicate that the alleged offeror did not intend to create a contract. [Scott v. Lee (1962) 208 CA2d 12, 15, 24 CR 824].  Here, Plaintiff is using the ‘Account Stated’ theory as the contract formation therefore, had no intention to create a contract between the Defendant and Plaintiff.

 

To have a valid contract, the parties must consent to contract [CC §§ 1550, 1565], and must agree upon the same thing in the same sense [CC § 1580]. The parties must manifest an intention, by their words and acts, to agree in regard to the matter in question. [beard v. Goodrich (2003) 110 CA4th  1031, 1040; Merced County Sheriff’s Employees’ Assn. v. County of Merced (1987) 188 CA3d 662, 670, 233, CR 519]. Here Defendant and Plaintiff have not agreed on anything other than that Plaintiff has filed a suit. Therefore, the Defendant requests the Court to grant this motion to compel Plaintiff to either provide the document that both parties agreed on forming a business relationship or in a verified statement, identify with clarity the document Plaintiff is objecting to as defined by Code.

 

III.                                                       CONCLUSION

 

Plaintiff has failed to meet its burden of Proof. Defendant has tried amicably to work with Plaintiff. Plaintiff has made it difficult for Defendant to make a defense without the most basic of documents. Plaintiff did not comply with a Court Order to provide documents specific to this alleged account thereby triggering the Defendant to propound the discovery process. Plaintiff has tried to attest that it is not in control of the Original Credit application. However, it has been noted that OC BANK USA is more than willing to provide the necessary document upon request.          Plaintiff is also attesting that Defendant is ascribing to Plaintiff an affirmative obligation under the Code. It is Legislature not the Defendant. For Plaintiff to make such a bold statement as this is ridiculous. Plaintiff has tried to reestablish what legislature has put in place by attesting that Plaintiff as the ‘Assignee’ is relieved of having to state why they can not comply with a request. Finally, Plaintiff is reestablishing OC  BANK USA, NA as the Real Party in Interest, thereby making OC  as the Plaintiff and not JDB, LLC in this lawsuit. All the  documents provided to date by Plaintiff plainly shows that OC BANK USA has relinquished all its, right and interests with regards to this account. Plaintiff and its Attorney is therefore evading the process and stalling tactics. The burden is still on the Plaintiff to prove its case and not the Defendant. Therefore Defendant, respectfully requests that the Court grant the motion to compel further response so that Defendant can efficiently plead his case without surprises and if the Court sees fit warrant sanctions against the Plaintiff and its Attorney for misuse of the Discovery process.

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As calawyer stated there is no example because it's specific to your case but here is what I wrote for our case. You can pretty much gather the type of docs I requested and how JDB responded. This is in reply to JDB's Opposition to our MTC RFP's.

 

I.                                                          INTRODUCTION

Plaintiff has responded in opposition to Defendant’s Motion to Compel Further Response to Production of Document Demand with the understanding that Plaintiff is pursuing this case under a common count “account stated” cause of action. However, this does not relieve Plaintiff, as an Assignee, their responsibility when responding under the Code  with what Legislature has established.  

 

Defendant has propounded discovery due to Plaintiff’s non-compliant with a Court Order heard on DD/MM/YYYY, for a motion to compel bill of particulars providing documents specific to the alleged account in this case. Plaintiff overlooked its own complaint in that in addition to the common count ‘account stated’, there is also the common count ‘for goods, wares, and merchandise sold and delivered’ under Paragraph CC-1b(3). Therefore, Defendant’s Request for Production Category No 1 & 2 is appropriate.

Plaintiff cannot seriously claim that they have produced all documents in its possession, custody or control responsive to the code of civil procedure. The reason, therefore, Defendant’s insistence is Plaintiff’s Bill of Sale (Defendant’s Exhibit D), beginning with the last sentence, states: ’Seller attests and affies that documents…..as maintained in the ordinary course of its business are available to Purchaser upon request…including but not limited to application by Borrower(s) whose Accounts are being transferred.’ (Emphasis added). This statement is in direct conflict with the statement made in Plaintiff’s opposition brief. Plaintiff contends that they cannot compel the Original Creditor to produce documents responsive to Defendant’s request. However, OC BANK USA, NA., themselves are stating ‘documents are available upon request’ (emphasis added). Therefore, it does appear that Plaintiff has in its control, the ability to request such documents, in this case, one (1) piece of document, the original credit application bearing Defendant’s signature but Plaintiff claims it can’t.

 

For Defendant’s Re Request No 2, Plaintiff is still asserting an ‘Account Stated’ claim. Plaintiff’s initial response was an objection and unduly burdensome. In Plaintiff’s opposition response redefined Defendant’s definition of “YOU” to mean OC BANK USA, NA, thereby shifting the Real Party in Interest from the Plaintiff, JDB, LLC to OC BANK USA, NA. However, OC  BANK USA, assigned all its rights and interest to the Plaintiff. (Defendant’s Motion Exhibit D). The question then arises as to the identity of the Real Party in this suit. Therefore, Defendant asks the Court to grant this motion and compel the Plaintiff for a further response and provide the contract and/or written agreement, and all documents establishing a relationship between Defendant and Plaintiff as referred to by Plaintiff in its complaint or in a verified statement state the reason why it cannot comply as to the Civil Code of Procedure section 2031.230 and 2031.240.

 

II.                                                        ARGUMENT

 

A.       Response to Plaintiff’s Opposition Response to Category No 1.

 

First, Plaintiff has insisted and contends that the Card Agreement with no reference to Defendant’s name, address, alleged account number and/or Defendant’s signature is sufficient therefore, not requiring the original credit application. Each party is entitled to the benefit of all evidence, including the evidence produced by an adversary. (Williams v. Burnett (1955) 135 Cal.App.2d 607, 612 [287 P.2d 789]; 7 Witkin, California Procedure (4 th ed. 1997) Trial, § 305, p. 352.) Additionally, Civil Code § 1747.05(a) states ‘no credit card may be issued except (1) in response to an oral or written request or application for the card, or (2) as a renewal of, or in substitution for, an accepted card. See 15 U.S.C. § 1642 (issuance of credit card). Plaintiff has not set forth any facts, whether Defendant requested orally, written or applied for an alleged credit card with the Original Creditor.  In addition, the Truth in Lending Act requires that a creditor, before opening any account under an open-end consumer credit plan, disclose a number of items to the person to whom credit is to be extended. See 15 U.S.C. § 1637(a). The disclosures in an open-credit plan must reflect the terms of the legal obligation between the parties. See 12 CFR § 226.5©. Plaintiff’s insufficient response in this regard bears no foundation.

 

 Plaintiff’s contention that it is currently ‘not in possession’, is redefining what the Legislature has defined for the Discovery process. The Code is very specific as to how the verified response be stated. The Code states “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed has lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” The Code does not relieve ‘Assignees’ with specificity that the Plaintiff cannot attest because Plaintiff is not the Original Creditor and that the Original Creditor is not under the control of the Plaintiff, therefore cannot compel the Original Creditor  to produce documents responsive to Defendant’s request. The Code specifies exactly what the Plaintiff must state when responding to a document request.  There are ‘no exceptions’ for Assignees nor should there be. Therefore, the Defendant requests the Court to grant this motion to compel Plaintiff  to either request from the Original Creditor, the original, signed credit application or state in a verified statement what the Code says is the appropriate response.

Second, Plaintiff has not disputed the cause of action ‘for goods, wares and merchandise sold and delivered’ but only disputes the sum of $$$$$$$ which supposedly resulted in goods, wares and merchandised provided by the Plaintiff and benefited the Defendant. Plaintiff has not set forth any facts, and/or documents attesting to this. A contract or a written agreement is appropriate in this regard because the specifics of what Defendant requested from Plaintiff will be evidenced.

 

Third, Plaintiff’s alleged theory that an ‘Account Stated’ is a form of novation is therefore subject to all the rules concerning contracts in general. (Civ Code § 1532).The contract that was allegedly formed as an account stated fails to conform the rules in that Plaintiff and Defendant did not mutually assent to the new contract. Therefore there is no novation. (Duncanson-Harrelson Co. v. Travelers Indem.Co. (1962) 209 Cal. App. 2d 62, 25 Cal. Rptr. 718; Ayoob v. Ayoob (1946) 74 Cal. App. 2d 236, 251, 168 P.2d 462). Defendant had no prior dealings with Plaintiff only until this lawsuit was filed, thereby, no mutual assent. The sole purpose of the account stated is to settle the amount of an existing liability based on previous transactions between parties. The device cannot, therefore, be made an instrument to create a liability where non existed at the time the account was rendered. (Burke v. Ikuta, 113 Cal. App. 2d 724, 248 P.2d 962 (2d Dist. 1952); Wine Packing Corp. of California v. Voss, 37 Cal. App. 2d 528, 100 P.2d 325 (1st Dist. 1940); Greenfield v. Sudden Lumber Co., 18 Cal. App. 2d 709, 64 P.2d 1007 (1st Dist. 1937)

 

B.       Response to Plaintiff’s Opposition Response to Category No 2.

 

Plaintiff is in the business of buying in bulk defaulted accounts and its primary business is not in the form of lending or extending credit. Yet, Plaintiff has claimed that Defendant has damaged Plaintiff thereby filing a complaint with damages in the amount of $$$$$$. Plaintiff has not provided any documents to prove that there was a business relationship or any documents proving that Plaintiff lent the amount prayed for in the complaint. Plaintiff’s response has no evidentiary foundation and has not set for the any facts or documents to backup their claim.

 

In Defendant’s request, Defendant defined the term “YOU” and “NEW CONTRACT”. Defendant defined the term “YOU” as ‘Plaintiff, JDB, LLC, its agent and representatives’ and ‘NEW CONTRACT’ as ‘the executed contract agreement that establishes a relationship between one party to another party’. Plaintiff’s initial response was an objection without identifying what Plaintiff was objecting to. In Plaintiff’s Opposition response, Plaintiff redefined the terms thereby not complying with the request.

 

In Plaintiff’s Opposition response “the agreement reached by and between Defendant and the Original Creditor, OC  BANK USA, NA.”. The Affidavit of Sale signed by Named Attorney, Attorney-in-Fact on behalf of OC writes the following: ‘OC has no further interest in said account for any purpose’. In addition, the Bill of Sale (Defendant’s Motion Exhibit D) between OC and Plaintiff states the following: ‘OC hereby assigns effective as of the file creation date MM/DD/YYYY all rights, titles and interests of Seller in and to those receivables, judgments or evidence of debt described in Exhibit 1 attached hereto and made hereof for all purpose’. Plaintiff filed this lawsuit with the Courts on MM/DD/YYYY and OC BANK USA is not a named Plaintiff in this lawsuit. Every action must be prosecuted in the name of the Real Party in interest. A real party in interest is generally defined as the person possessing the right sued on by reason of the substantive law. See Doe v Lincoln Unified Sch. Dist (2010) 188 CA4th 758, 765, 115 CR3d 191; Estate of Bowles (2008) 169 CA4th 684,690, 87 CR3d 122. Therefore, Plaintiff’s response to this request is insufficient and requires a proper response.

 

Plaintiff has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief [Evid Code § 500]. In action based on a contract, the Plaintiff must plead and prove the existence of the contract [Walsh v. West Valley Mission Cmty. Coll. Dist.(1998) 66 CA4th 1532, 1545, 78 CR2d 725]. The circumstances of Plaintiff may indicate their lack of intent to create a contract. A purported offer or lack thereof cannot be the basis of a contract if the circumstances indicate that the alleged offeror did not intend to create a contract. [Scott v. Lee (1962) 208 CA2d 12, 15, 24 CR 824].  Here, Plaintiff is using the ‘Account Stated’ theory as the contract formation therefore, had no intention to create a contract between the Defendant and Plaintiff.

 

To have a valid contract, the parties must consent to contract [CC §§ 1550, 1565], and must agree upon the same thing in the same sense [CC § 1580]. The parties must manifest an intention, by their words and acts, to agree in regard to the matter in question. [beard v. Goodrich (2003) 110 CA4th  1031, 1040; Merced County Sheriff’s Employees’ Assn. v. County of Merced (1987) 188 CA3d 662, 670, 233, CR 519]. Here Defendant and Plaintiff have not agreed on anything other than that Plaintiff has filed a suit. Therefore, the Defendant requests the Court to grant this motion to compel Plaintiff to either provide the document that both parties agreed on forming a business relationship or in a verified statement, identify with clarity the document Plaintiff is objecting to as defined by Code.

 

III.                                                       CONCLUSION

 

Plaintiff has failed to meet its burden of Proof. Defendant has tried amicably to work with Plaintiff. Plaintiff has made it difficult for Defendant to make a defense without the most basic of documents. Plaintiff did not comply with a Court Order to provide documents specific to this alleged account thereby triggering the Defendant to propound the discovery process. Plaintiff has tried to attest that it is not in control of the Original Credit application. However, it has been noted that OC BANK USA is more than willing to provide the necessary document upon request.          Plaintiff is also attesting that Defendant is ascribing to Plaintiff an affirmative obligation under the Code. It is Legislature not the Defendant. For Plaintiff to make such a bold statement as this is ridiculous. Plaintiff has tried to reestablish what legislature has put in place by attesting that Plaintiff as the ‘Assignee’ is relieved of having to state why they can not comply with a request. Finally, Plaintiff is reestablishing OC  BANK USA, NA as the Real Party in Interest, thereby making OC  as the Plaintiff and not JDB, LLC in this lawsuit. All the  documents provided to date by Plaintiff plainly shows that OC BANK USA has relinquished all its, right and interests with regards to this account. Plaintiff and its Attorney is therefore evading the process and stalling tactics. The burden is still on the Plaintiff to prove its case and not the Defendant. Therefore Defendant, respectfully requests that the Court grant the motion to compel further response so that Defendant can efficiently plead his case without surprises and if the Court sees fit warrant sanctions against the Plaintiff and its Attorney for misuse of the Discovery process.

This will be helpful- where did you see this "documents are available upon request’ in your complaint and or discovery- I do not see it in any of my discovery responses to me or complaint unless I am overlooking something. I cant see it in Bill of Sale, Affidavit of Debt- I was sued account stated - that is it.

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This will be helpful- where did you see this "documents are available upon request’ in your complaint and or discovery- I do not see it in any of my discovery responses to me or complaint unless I am overlooking something. I cant see it in Bill of Sale, Affidavit of Debt- I was sued account stated - that is it.

As well you wrote this Plaintiff cannot seriously claim that they have produced all documents in its possession, custody or control responsive to the code of civil procedure. The reason, therefore, Defendant’s insistence is Plaintiff’s Bill of Sale (Defendant’s Exhibit D), beginning with the last sentence, states: ’Seller attests and affies that documents…..as maintained in the ordinary course of its business are available to Purchaser upon request…including but not limited to application by Borrower(s) whose Accounts are being transferred

 

My bill of sale does not say that - it just says "it is their regular practice to maintain and compile such data, it does say in the event of conflict the terms of the agreement shall prevail"

I am just confused as how to reword this section for my response.

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For what category of documents?  The Statements?

 

The code gives you all the help you need.  Plaintiff has only 3 choices when responding:

1.  Serve a verified response saying that it has produced all documents in its possession, custody or control.

2.  Object and identify documents that it is withholding.

3.  Produce some documents and explain why it has not produced the rest (they have been lost, destroyed, etc).

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For what category of documents?  The Statements?

 

The code gives you all the help you need.  Plaintiff has only 3 choices when responding:

1.  Serve a verified response saying that it has produced all documents in its possession, custody or control.

2.  Object and identify documents that it is withholding.

3.  Produce some documents and explain why it has not produced the rest (they have been lost, destroyed, etc).

I asked for "original credit card agreement- contract"  in my BOP, statements and  proof  of assignment of sale- description of services. materials or goods supplied, charges made for each item, payment and credits on the account, means by which plaintiff determined amount owed, (so basically  details on how they derived on the amount ) Standard BOP I got from someone here to use.

 

they sent Bill of Sale and Assignment, Affidavit and collection letter. The credit agreement is not the original agreement they sent what is titled "important information about your account" that comes with every credit card statement when you get the bills. All statements on account which they have included in BOP only 1 years worth  not current or last date of payment ones s I believe-

Please note they responded to the BOP

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looking for example response I need to send  to plaintiff's opposition to MTC

I am be jumping the gun. I thought you filed a MTC RFP's but it looks like you filed a MTC BOP. What I posted was a MTC RFP and will not work for MTC BOP.  In your Reply to their opposition you will need to explain why you want the Judge to compel the JDB to provide all the statements from $0 bal to the alleged amt you are being sued for so as Anon stated use the opposition statement of the JDB as your entry into why you need it or why you disagree with what they stated.

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On to more discovery for my case.

Need to prepare a RFPOD Set 3 asking for the forward flow agreement.

Any ideas on this very specific discovery request is appreciated.

 

In my RFPOD Set one to them I requested each and every document which they objected to everything, but sent statements, bill of sale, affidavit of debt, affidavit of sale, certificate of conformity and that is about it.  They make mention of my request for all documents to be privileged information

 

In RFPOD Set 2 I requested the Agreement, terms of the Agreement that the Agreement mentioned to in the Bill of Sale be produced.They objected in their response stating that they already sent what I wrote above and that  the documents are proprietary and trade secret in nature and protected by attorney client priviledge.

 

Then I sent  a BOP- basically all the same responses.

 

I had made some errors in my MTC and with the help of Anon Amos, Helpme and Calawyer we all agreed to cancel and proceed with RPOD Set 3

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RFP SET # 3

 

1)    Please produce the document listed in the bill of sale as (the "agreement") dated as of  XXX 2011 and executed by buyer and seller.

 

2)    Please produce the document referenced in the complaint as the "account stated in writing between the defendant and plaintiff in witch it was agreed that defendant was indebted to plaintiff".

 

That is all you need. Check the BOS to get the date and include definitions for the key words in these 2 request. Remember you already have a lot of evidence and they have responded to your previous BOP / discovery. Do not over think this.

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RFP SET # 3

 

1)    Please produce the document listed in the bill of sale as (the "agreement") dated as of  XXX 2011 and executed by buyer and seller.

 

2)    Please produce the document referenced in the complaint as the "account stated in writing between the defendant and plaintiff in witch it was agreed that defendant was indebted to plaintiff".

 

That is all you need. Check the BOS to get the date and include definitions for the key words in these 2 request. Remember you already have a lot of evidence and they have responded to your previous BOP / discovery. Do not over think this.

Ok- Good final answer- Thank you

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Response from JDB regarding Plaintiffs Response to Defendants Request of Production of Documents I have sent two prior requests with them coming back with the stuff resent like bills, affidavits and bill of sale. This time I asked for the “forward flow” agreement.- please see post # 221

 

Basically, they denied everything Objection -- in preliminary statement they said "have not completed their investigation” repeated over and over.

 

They responded as “would require the exclusion of any statement contained herein and if discovery requests were asked of statements made herein were made by, a witness present and testifying in court and such requests are grounds and reserved at time of trial.”

 

I guess they think they can come up with a witness- which I assume unless he/she has that forward flow and original credit contract in her hand- she/he is no good

 

They also mentioned the attorney’s signature is intended only in regard to objections that have been raised in responses and in no way constitutes any attorney -client privilege that may be asserted during discovery

 

General Objections are all "objects to each and every request" 

They also state that on the grounds the defendant seeks documents that are proprietary and trade secret in nature - they also said they already provided an affidavit of debt as I mentioned above. They also stated that everything I am asking for is just repetitive of what they already sent’

They did”verification as to responses" to the court and a POF with their response.

 

I had cancelled a MTC as it was not done correctly and advised to do this and I have been wonderfully having amazing help from Anon Amos.

I am looking to see if there is a next step to take and should I send another M&C then a MTC again?

 

I am going to assume they don't have these documents and want to take the chance at trial and are buying time to pull them out of thin air somehow. My goal is to get this dismissed completely before trial  as they have not been able to come up with these things..

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I guess they think they can come up with a witness- which I assume unless he/she has that forward flow and original credit contract in her hand- she/he is no good

 

 

****Most of them can come up with a witness if they really wanted to. It's not whether or not they "can" do it; it's whether or not they "will" do it. They won't need the original credit contract (it will just be the standard terms that everyone gets) and they may not have to produce the forward flow (that may depend on the judge), but you would attack their credibility, personal knowledge, and lack of ability to lay a foundation for ANY evidence, and you would also object to the evidence as inadmissible for a number of reasons.******

 

 

 

 

 

 

I am going to assume they don't have these documents and want to take the chance at trial and are buying time to pull them out of thin air somehow.

 

*****I would assume that they do have  these documents but they will never give them to you, and that they do not want to go to trial. They want you to settle****** 

 

My goal is to get this dismissed completely before trial  as they have not been able to come up with these things..

 

 

***Definitely want to get it dismissed before trial, but not just because they have not come up with these things, but because what they have come up with is inadmissible and you are going to object to it. And they haven't done much to prove standing (as I recall). Not to mention they are just bottom feeders and don't deserve it. This is just icing for the cake, and a way for you to keep pressure on them and force them to work on the case. They aren't real happy about it as it is (you can tell by reading  their objections) and some extra work for them and a MTC will send a good message and make a good record for you as well.

Keep up the good work******

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