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Is anyone still there?

 

The attorney sent RFA (Disc-020) along with billing statement and Disc-004 (Form Interrogatories)
 
1. Admit to the genuineness of the documents attached hereto as Exhibit 1, monthly billing statement for Discover Bank with account number xxxxxxxxxx1234.
 
Answer? Deny. I did not produce the monthly billing statement for Discover Bank, Therefore, I can not admit to the genuineness of the documents.
 
2. You applied for and opened a credit card account with Discover Bank.
 
Answer? Deny. I did not receive any application in the Exhibit 1 which I applied for and open and credit card account with Discover Bank.
 
3. A credit card was issued to you by Discover Bank with the Account Number xxxxxxxxxxxx1234 (hereinafter referred to as,"account").
 
Answer? Deny. I do not see a certified copy of the credit card issued by Discover Bank in the Exhibit 1.
 
4.  You used the credit card  and made charges and made payments to the Discover Bank, account.
 
Answer? Deny. I did not used the credit card and made charges and made payments to the account.
 
5. Monthly billing statement, attached hereto as Exhibit 1, were mailed to you at blab blab address, indicating monthly debits, credit and payment made on the account.
 
Answer?Deny. Monthly billing statement were not mailed to me at blab blab address. 
 
6. You were mailed and received a Cardholder Agreement for this Discover Bank, account.
 
Answer?Deny. I did not mailed and received a Cardholder Agreement for this Discover Bank account.
 
7.  The date of last payment, of transaction, occurred on July 4, 2010, on the Discover Bank, account.
 
Answer?Deny.  I can not determine the genuineness of the documents in Exhibit 1, therefore I can not determine the last payment occurred on July 4 , 2010.
 
8. On February 28, 2011, you were indebted to Discover Bank the sum of (~14,000) on an account stated for charges to your Discover Bank, account.
 
Answer?Deny. I have denied the account, therefore I can not be indebted to Discover Bank for the sum of ~14,000.
 
9.  All conditions precedent to payment of the unpaid principal balance due on your Discover Bank, account have been performed , waived, satisfied, or extinguished.
 
Answer? Deny. I am not the Discover Bank accountant, therefore, I can not admit that all conditions are meet.
 
10.  You have no valid affirmative defenses to this action.
 
Answer? Deny.  My affirmative defenses are state in my answer to the complaint.
 
Is this the best way to answer?

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Be precise, not smart alecky. (Defendant has denied ownership of the alleged account with Discover Bank, and after a diligent search and attempt to find the documents attached to this account, has found nothing. Therefore...

 

I never received original copies of statements from Discover Bank

 

therefore...Defendant cannot confirm or deny the existence of the card, nor use of the card

 

Therefore...Defendant can not confirm or deny the accuracy of the alleged account, as defendant has no records.

 

All the things they allege can fall under that. No need to claim not to be the accountant. 

 

Use the proper parts of speech (I was not mailed...not I did not mailed)

 

Your goal is to convince the judge that you have sincerely tried to get the information that they are demanding, but you don't have it.

 

I think angry, smart alecky things about both the JDBs and their attorneys that I've dealt with, all the time. But I NEVER put them in my court filings.

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Take a look at my post, example your # 5 is almost a mirror to mine and you did BOP so should apply.

 

Request for Admissions #3:
Admit that you recieved monthly billing statements from CITIBANK(SOUTH DAKOTA), N.A. or its predecessor in interest that related to the transactions made .

Response to Request for Admissions #3:
Defendant objects to plaintiff's use of the word "transactions made" on the ground that it is vague and ambiguous in the context of this litigation. Plaintiff's complaint is devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a Bill Of Particulars setting forth the items and details of the account on which the cause of action for good sold and delivered of plaintiffs complaint is based, original account application,Credit disclosures, including the dates of each item or transaction; a description of the services, materials or goods supplied or other considerations rendered; and the price or charge for each such item or transaction. Although the code requires the plaintiff to respond in 10 days, plaintiff has not provided the complete account, and payments made thereto. Without such information, defendant is unable to provide the information sought in this admission Request.Without waiving the foregoing objection, Defendant responds as follows: DENIED

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  • 2 months later...

Update

 

File Motion to Compel BoP. Here is the result

 

The Motion of Defndant xxxxxxx ("Defndant") for an orderequirng Plaintif CACH, LC
("Plaintif") to furnish a further Bil of Particulars or, in the alternative, to be precluded from ofering any
such evidence athe trial of this mater, pursuanto Code of Civl Procedure section 454 on the ground
that Plaintif has responded inadequately to Defndant's demand for a Bil of Particulars and god cause
exist for the relief requested in this motion, is GRANTED IN PART AND DENIED WITHOUT
PREJUDICE IN PART. Plaintif is directed to comply with Defndant's Demand for a Bil of Particulars,
lodged as Exhibt "A" in suport of Defndant's Motion, within 20 days of the hearing of this Motion.
Defndant's alternative requesto preclude Plaintifrom introducing evidence @ trial is denied without
prejudice. Defndant may renew this request, if@ al, @ trial.
 
What I want them to send is Contract and how they calculated balance from $0 to amount suing? Is that correct?
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  • 1 month later...

I like to update everyone. 

 

 

On trial day, Judge move the trial day to the beginning of next week. Really didnt want to move trial date, but was force to by judge. Judge recommended 1st day of next week. Plaintiff argue for 2nd day, b/c can not fly witness in on 1st day of the week. Witness is on the way here. I fought for 1st day as to what the Judge wanted. Judge wanted me to compromise with Plaintiff. Judge gave me recess to make phone call to switch date with boss. Boss agree. 

 

Return to court (Witness was there with Attorney) Judge ask if 2nd day was good, I agreed.

Plaintiff requested to changed to the 5th day b/c witness can not make it on 2nd day. I objected, I already talked to boss and he agreed to switch day. Judge set for 2nd day.

 

2nd day

Trial I was ready to proceed. Plaintiff wanted a continuance, b/c witness was not there. I objected.

Judge and Attorney argue back and fort. Seem like we going to start trial.

Suddenly attorney wanted to dismissed without prejudice. The judge looked at me asking me to if I wanted dismissed without prejudice. I Objected and requested dismissed with prejudice.

 

Judge pulled CCP Section 581

 

"( B) An action may be dismissed in any of the following instances:

(1) With or without prejudice, upon written request of the
plaintiff to the clerk, filed with papers in the case, or by oral or
written request to the court at any time before the actual
commencement of trial, upon payment of the costs, if any."

 

"Upon payment of the costs" I didn't understand what it means

Judge asked me if I paid any fee to the court? I said yes filing fee, motion fee etc etc

 

I informed the Judge that if Plaintiff get the dismissed without prejudice. It would be prejudice against me b/c I was ready for trial and both party are presented. Both party agreed to the 2nd day and now Plaintiff can't supply witness they would like a continuance. That is Prejudice against defendant.

 

Finally judge will make a decision. in my favor with prejudice.

 

So what im understanding is you should pay for your filing fee etc. That way if Plaintiff tries to dismiss the case without prejudice; you can argue for with prejudice by associating that there are still fees that were paid that need to be paid back. Im I understanding it correctly?

 

2nd question is how would i write a proposed order to cover the cost etc and dismissed with prejudice?

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The way I read the statute is that plaintiff can dismiss voluntarily either with prejudice or without prejudice any time before trial begins.  But if it does so, it will have to pay fees.  You correctly argued that trial has commenced and plaintiff is unprepared to go forward.

 

Did the judge say that it would be dismissed WITH prejudice or without?  Did the Judge ask you to prepare an order?

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The way I read the statute is that plaintiff can dismiss voluntarily either with prejudice or without prejudice any time before trial begins.  But if it does so, it will have to pay fees.  You correctly argued that trial has commenced and plaintiff is unprepared to go forward.

 

Did the judge say that it would be dismissed WITH prejudice or without?  Did the Judge ask you to prepare an order?

WITH prejudice. Ask me to submit proposed order.

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Congrats! Elizabeth Sutlian handled your case, right? She is the biggest moron I have ever encountered. I tried to get in contact with Mandarich during my case to meet and confer discovery. Unfortunately, I was connected to her, not Ryan Vos (also a moron) who handled my case. I'm SO glad that you beat Mandarich. They are so shady, scummy and incompetent. Congrats again! 

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  • 1 month later...

Update

 

Trying to collect cost. Sent Memorandum of Cost

They file motion to tax costs

Argues there is no basis for awarding Defendant fees where there is not prevailing party in this matter.

 

Memorandum of points and Authorities... to tax cost

 

Court came to trial call so date of Sept. Trial was continued until so date Sept. over plaintiff's objection. Plaintiff had previously informed the Court that no witlessness were available to testify on continued date for trial. (False! Attorney agreed to new trial date). Court was unwilling to grant continuance so plaintiff orally moved to dismiss without prejudice. Defendant objected, requesting the matter be dismissed with prejudice. The court, after hearing both side argument, granted motion to dismiss in part and denied in part.

 

Plaintiff contends that defendant is not entitled to his cost b/c he is not a prevailing party within the meaning of the statute. The matter was summarily dismissed before trial on voluntary motion to dismiss by plaintiff. AS such, subsection (B)(2) of Civil code section 1717 blocks the defendant from recovering his costs. ....etc...

 

Is there a Civil code that say I should collect costs if Plaintiff voluntary dismiss the case before trial?

Question are has trial already started, and plaintiff argue for continuance b/c witness could not make it to trial during the day of the trial. Im confused plaintiff say trial hasn't started where as I believe trial has started. Plaintiff know they cant win so they asked for continuance but got denied. Therefore, move to dismiss without prejudice. 

 

Any help will do/

 

Thank you all for the kind words.

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Here are Minute Order.

 

9:00 am This being the time previously set for further Court trial in the above entitle cause, having been continued from so day of Sept, all parties and counsel appear as noted above and court convenes. 

 

Plaintiff's Attorney reminds the court of plaintiff's witness possibly being unavailable today and request that the trial be continued. After further discussion, Plaintiff's attorney request that the case be dismissed without prejudice.

 

Defendant objects to the case being dismissed without prejudice and request that it be with prejudice.

 

The Court hears argument by both sides. After hearing argument, the Court grants the plaintiffs' request and modifies the request and orders the case to be dismissed with prejudice.

 

The Motion to Dismiss is granted with prejudice.

 

Base on the minute order. Trial has started and the Defendant is the prevailing party?

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Your plaintiff is simply wrong.  CCP 1032 (a)(4) defines prevailing party: 

 

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1021-1038

 

It includes, " a defendant in whose favor a dismissal is entered."

Thanks calawyer 

I can always count on you!

I guess ill have to argue this at the motion date. Is it to late to compose something and submitted to the court? Motion date is in a few days.

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Hope you don't mind a quick hijack, H20, but I've had a question on my mind for some time, and since your thread is on this topic at the moment...

 

@calawyer, is there a time limit for going after costs? If the MC-010 is filed within the appropriate window after a dismissal, plaintiff doesn't file a motion to tax costs, how long would I have to take the next steps to collecting costs? (it's been just about a year since my dismissal)

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Hope you don't mind a quick hijack, H20, but I've had a question on my mind for some time, and since your thread is on this topic at the moment...

 

@calawyer, is there a time limit for going after costs? If the MC-010 is filed within the appropriate window after a dismissal, plaintiff doesn't file a motion to tax costs, how long would I have to take the next steps to collecting costs? (it's been just about a year since my dismissal)

 

I would contact your county clerk and asked the clerk enter in as judgment.

 

2014 California Rules of Court

Rule 3.1700. Prejudgment costs

(a) Claiming costs

(1)1pixel.gifTrial costs

A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.

(2)1pixel.gifCosts on default

A party seeking a default judgment who claims costs must request costs on the Request for Entry of Default (Application to Enter Default) (form CIV-100) at the time of applying for the judgment.

(Subd (a) amended effective July 1, 2007; previously amended effective January 1, 2007.)

(B) Contesting costs

(1)1pixel.gifStriking and taxing costs

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.

(2)1pixel.gifForm of motion

Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.

(3)1pixel.gifExtensions of time

The party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.

(4)1pixel.gifEntry of costs

After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.

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