credit_limbo

2nd request for BOP?? or start formal discovery

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Some background to my case, exact as @eyoung27 (http://www.creditinfocenter.com/community/topic/320964-summons-from-kenosian-and-miele-llp-attorneys-at-law-for-unifund/)

 

1- was served by mail

2- answered the complaint & served the Plaintiff's attorney with BOP

3-17 days letter received answered to BOP, with only one C.C statement.

 

So now my question is, should i send another BOP request 2nd_BOP_request.txt(see attachment), or start the formal discovery (RFD, RFA..etc)

 

I've been reading this forum for the last month or so. all of you guys are awesome and provide such a great resource for FREE. 

 

 

Any help is appreciated. God Bless! 

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I would say your BOP response was insufficient, however they don't have to produce much, and much  of what you need does not need to be produced with a BOP anyway. Most people lose the motion to compel a further response to a BOP, as the judge says to conduct discovery, and as far as the judge precluding evidence; that's not going to happen. In my opinion. 

 

I would send them discovery. Request for production of documents, and not a whole laundry list. You only need 3-5 request, or it will be harder to motion to compel. It also makes it easier on the judge.

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I wouldn't go so far as to say the information is free, because once you become qualified to help yourself, you will no doubt want to pay it forward to those that come after you. Well, at least most of us do so! ;) The info you see here represents countless hours of reading until our eyes are dry and gritty, devoting all of our free time to defending ourselves practically to the detriment of our relationships (my husband just remarked last night that I spend more time researching law and wading through cases both past and present then I do with my family. He's not lying, I do spend my free time reading and posting, posting and reading.) and drafting, redrafting and then re-redrafting all the documents required to proceed. Just one thread can represent hours of blood, sweat, and tears.

::Okay, rolling off the soap box now LOL!::

I agree with Anon Amos, it's time to begin the discovery process. Though the statute is supposed to afford you a clear benefit from plaintiff's lack of participation, you're likely to find what most of us have already discovered...there's no such thing as 'fair' when it comes to the law. You have to decide what's best for you, but I personally would heed Anon Amos' insight.

Remember in our state discovery is not filed with the court. You are only allowed to request up to 35 items such as RFAs, ROGS, PODs etc. They can be a mixture of those things so long as you don't exceed the maximum. If you do, the plaintiff will reject it and likely not answer at all. Worse yet, it's a slip up that might tell the plaintiff that you don't know what you're doing. Initially there just might be some benefit in allowing that belief, but I would suggest that only to seasoned litigants.

I personally like to send Production of Documents (PODs) first and then hit them with admissions (RFAs) based on their responses to my PODs request. Not everybody does it that way, but I have had success with this method. YMMV

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@HotWheels96  and @Anon Amos thanks for the reply. The reason i was thinking about sending 2nd BOP and request much info thru this method is because i read somewhere on this forum that it would be easier to file motion to preclude or compel and as u suggested also makes it easier on the judge.

 

Also i know anything send for discovery doesn't need to be filed with the court but the Clerk recommended I submit Proof of service so it's in the case file. 

 

So I'm taking the following steps Tommorrow: 

  1. mail the lawyer 2nd BOP(attached in the above post) (have 10+5 days to reply),
  2. PODs (to which they have 30 + 5 mailing days right?)

but my first CMC is in 30 days Do i have enough time for special Interrogatories and RFA?

 

 3. If i don't receive anything different to my BOP request will send a meet and confer; 

 

My plan was to raise that during my Case Management Conference (which i'm still reading upon) and totally lost.

 

I've downloaded Case Management Conference statement form CM-110 and might need help with that too. 

 

Any suggestion is helpful.

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@HotWheels96  and @Anon Amos thanks for the reply. The reason i was thinking about sending 2nd BOP and request much info thru this method is because i read somewhere on this forum that it would be easier to file motion to preclude or compel and as u suggested also makes it easier on the judge.

My suggestion was to keep the RFP request down to 3-5 items, that make sit easier on you and the judge.

Also i know anything send for discovery doesn't need to be filed with the court but the Clerk recommended I submit Proof of service so it's in the case file. 

Not a bad idea, it's good to hear of a clerk saying something useful. I usually do recommend people file a "notice" with the court saying that discovery was initiated.

So I'm taking the following steps Tommorrow: .

  1. mail the lawyer 2nd BOP(attached in the above post) (have 10+5 days to reply),

I would not send the 2nd BOP, if you send RFP's it is unnecessary.

  1. PODs (to which they have 30 + 5 mailing days right?)

Yes this is what I would do. RFP's. You need to see an example of one however. You have to include instructions and definitions. There are examples on here somewhere.

 

but my first CMC is in 30 days Do i have enough time for special Interrogatories and RFA?

You don't need those now. You can send what you want, it doesn't have to be timed with your CMC, but you really don't need anything but RFP's at this time. In my opinion.

 3. If i don't receive anything different to my BOP request will send a meet and confer; 

I would forget the BOP, Send a meet and confer letter when they object to your discovery

My plan was to raise that during my Case Management Conference (which i'm still reading upon) and totally lost.

Just discuss what's going on with your case up to the time of the CMC. I fd you don't have much to report it's no big deal. You won't beat the case at the CMC

I've downloaded Case Management Conference statement form CM-110 and might need help with that too. 

Not a problem. It's an important document. Some courts have mandatory sanctions if it is not filed 2 weeks before the CMC.

Any suggestion is helpful.

Take some time and get the discovery right, you do not need to rush o relate this to the CMC. Also, look up the California rules of court under CMC an di twill shed light on what to expect. It's a fast conference, about 5 minutes and not a big deal

 

Get a copy of your local rules, find the California rules of evidence and authentication as well as the CCP. There's a lot to learn, but we have some very helpful people here and an impressive win rate in Cali.

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Totally, I'm taking my time reading and understanding the civil law. I've downloaded some of the sample word doc template provided on this forum, and modifying to my needs and reading all the Cali Civil rules on here and googling some past cases.
Reason for 2nd BOP so I could challenge that they failed to provided requested documents upon two attempts. i'm working on my RFPOD right now, will post later tonight for input & feedback.

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Reason for 2nd BOP so I could challenge that they failed to provided requested documents upon two attempts. i'm working on my RFPOD right now, will post later tonight for input & feedback.

You could always point it out but  reference one attempt. The code does not require two. I doubt the judge will be too concerned about it however. It's a bigger issue when they don't respond to discovery request.

 

All you need to ask for in the RFP's Is:

 

1)   credit application from OC

2)   any and all documents that show an assignment from OC to JDB

3)   all alleged cc statements showing an accounting from zero balance to amount charged off

4)   any documents with defendant's signature

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I just lost my whole post!!!!!! I'm tired and am just going to summarize it now, sorry to punish you for my iPads mistake.

Basically they will object based on your not defining things like "account statements", "application", "transferred to subsequent assignors", etc. you need to define pretty much any term you are specifically requesting because they WILL object to it.

Subparts are NOT allowed and they will object to the requests that have them, specifically requests 1, 2, and 4. Break them up into separate requests. Don't give them a way to wiggle out of your demands.

When you include "ANY and ALL" in a request, they will object with "vague, oppressive, unduly burdensome., etc. I'm not sure there's anything you can do to prevent that. Sharper minds might help you with that.

For the statements one, they will likely object with they aren't required to maintain more than two years of statements. There's an accompanying statute (think it's a TILA law) that says they are not required to , but it doesn't say they have to destroy their own evidence.

Finally, get ready to hear "not calculated to result in meaningful discovery" and "requests are equally available to requesting party." These are pretty much standard objections.

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I did both when LVNV sued me two years ago.  Served them with a BOP the same day as I served my answer  Three weeks later I served them with 27 different discovery requests.  Two months after that I filed a Motion to Compel Further BOP.  Hit them with so much paperwork they missed discovery deadlines, answered 11 ROGS when I only propounded 10 and mailed rather than served their response to my Request for Production of Docs.  I sent multiple Meet and Confer letters the last of which stated my intent to file Motions to Compel Further Discovery Responses and Matters Deemed Admitted. They folded within four months start to finish.  Never did set a trial date.

 

Hit 'em hard and hit 'em fast.

 

SkippieB

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PROPOUNDING PARTY: DEFENDANT   :  [My name here]

RESPONDING PARTIES: PLAINTIFF   JDB

 

SET NO. :       ONE

Pursuant to the California Code of Civil Procedure §2031.010 et seq., [defendant &My name here], hereby demands that responding party produce for inspection and copying at [My Address] at the hour of 9:00 a.m. on (35days) February 28, 2014 (or should I say thirty(30) 30 days after the date of service, all matters and things set forth below. in the possession of responding party, his/her/their/its agents or anyone acting on their behalf.  Please provide defendant true copies of documents and state the location of the original. Your response may be mailed to defendant at (your address)

I. DEFINITIONS

 

I would remove what's in red if it were mine (regardless of what the code says). I would ask for "true copies of originals" and request the locations of the originals. No body ever really inspects or copies docs and they will eventually send you something. Regardless of what you do they will object to the first round anyway, but you will keep pressure on them and force them to work on the case. They need to feel that it is just more work than it will be worth.

 

Not bad for the first draft, and on day one as a member no less. We have a real "ringer" here!

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Oh Stop it I'm able to do all this because of you guys help  ::BigBaby:: !..I'm glad staying up late paid off.

 

one question for @SkippieB do you recommend i send them each one RFPOD, ROGS, RFA etc 3 days apart, I know it's a bit too much paying for each docs to send as Certified mail Return receipt requested.

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Oh Stop it I'm able to do all this because of you guys help  ::BigBaby:: !..I'm glad staying up late paid off.

 

one question for @SkippieB do you recommend i send them each one RFPOD, ROGS, RFA etc 3 days apart, I know it's a bit too much paying for each docs to send as Certified mail Return receipt requested.

Personally, I'd recommend using ASTMedic's 3 item RFP as I already said and nothing else ... just like Anon also recommended.

 

It's the same recommendation you'll get from @Cawlayer.

 

If you're hell bent on doing more than that and also doing Rogs and RFA (again I advise against it) then do them all at once and put them in the same package.  It's cheaper on postage that way, and it means that all discovery responses are due on the same date, which is easier for you to calendar and watch.

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So here's the update:

Today I mailed in my meet & confer letter with Request for Production of docs (set one) with POS.

gonna work on discovery item over the weekend. RFA, anything else i should do?

I've not received anything to date to answer from their attorney.

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@HomelessInCalifornia i'm following @ASTMedic only requested 5 items, just realized that i should've taken out Request # 5 cuz i didn't send anything except Meet & Confer letter. did i just wasted my money on the stamps & CMRR?

No. It just means they will reply to request No. 5 by saying they couldn't answer it because you did not serve any interrogatory responses concurrently so they don't know what you're talking about.

 

If I remember right (which I probably don't), you can make up to 35 discovery requests (spread over RFA, RFP, and Rogs). 

 

You have used up 5.  If you screwed up any, you could rewrite them and ask them again in a second set of discovery requests.

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Sending just POD's initially has been a much less stressful ordeal as well as a superior (in MY opinion) way to manage discovery. We've all seen people give the advice of sending them all together and I'll admit this is exactly how I did it in the first case I had against me.

Though I really like waiting to respond with RFA's based on given responses to the POD's, I especially appreciate having some left over waiting in the wings should I mess up.

OP, take it as a compliment, I would. :p

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I know it's extra work and expense, but I think it's critical to keep pressure on them (especially if it's someone like CACH), and to always use time and all of their actions against them. If I were to send all available discovery to them I would part it out; just for the constant pressure it puts on them. 1st week they receive RFP's. 2nd week ROG's 3rd week RFA's.  And I would file a "notice" to the court that I initiated discovery, and send them a copy before the second discovery request were sent (you don't have to be exactly a week apart). By the time you go thru those steps it's time for the meet and confer letters to start and then the MTC's. I saved money by only sending discovery and critical things by CMRRR. I personally did not care if they received a copy of my answer or motions because they were filed with the court anyway.

 

My goal would be to drive them nuts before the trial so that they see it's not worth it and they dismiss, to me it would be easier to space them out anyway. As far as the ROG's and RFA's go; unless you have a specific question you want answered, you probably don't need them now.

 

Just my opinion. Although I did speak to CACH's lawyer MANY times on the phone and in the court halls and learned a lot from him, of course he was trying to do the same. It is important that YOU  are the one controlling the dynamics of the case and force them to work on it when you make them, not when they want to (and they never want to have to spend time on it).

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Oh Stop it I'm able to do all this because of you guys help  ::BigBaby:: !..I'm glad staying up late paid off.

 

one question for @SkippieB do you recommend i send them each one RFPOD, ROGS, RFA etc 3 days apart, I know it's a bit too much paying for each docs to send as Certified mail Return receipt requested.

I sent my discovery request all at the same time and they still screwed up.  But I imagine that sending them 3 days apart would work even better. 

 

LVNV never served me with any discovery requests and a they bailed about a week before we were to set a trial date.

 

SkippieB

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I just lost my whole post!!!!!! I'm tired and am just going to summarize it now, sorry to punish you for my iPads mistake.

Basically they will object based on your not defining things like "account statements", "application", "transferred to subsequent assignors", etc. you need to define pretty much any term you are specifically requesting because they WILL object to it.

Subparts are NOT allowed and they will object to the requests that have them, specifically requests 1, 2, and 4. Break them up into separate requests. Don't give them a way to wiggle out of your demands.

When you include "ANY and ALL" in a request, they will object with "vague, oppressive, unduly burdensome., etc. I'm not sure there's anything you can do to prevent that. Sharper minds might help you with that.

For the statements one, they will likely object with they aren't required to maintain more than two years of statements. There's an accompanying statute (think it's a TILA law) that says they are not required to , but it doesn't say they have to destroy their own evidence.

Finally, get ready to hear "not calculated to result in meaningful discovery" and "requests are equally available to requesting party." These are pretty much standard objections.

I don't know how i missed this post, before i ever mail them my RFP...based on @calawyer recommendation "it would be best to serve an amended RFP" which now i think i should.

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I don't know how i missed this post, before i ever mail them my RFP...based on @calawyer recommendation "it would be best to serve an amended RFP" which now i think i should.

Not that I am trying to speak for Calawyer, but that recommendation was made after reading  your discovery with the definitions omitted, and her main concern was that "document" and "writings" were not defined, but in the discovery you sent they were defined.

 

A lot of the language you were commenting on in this post is not included in your discovery request.

 

If it were mine I would be interested in Calawyer's opinion AFTER reading the definitions, just to see if it has changed at all.

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@credit_limbo

 

I just noticed that you ask them to produce the docs. to your house for inspection. I would have asked that true copies of the originals be provided to you, and that they explain where the originals are.

 

For that reason I would amend, and also fix the numbering issues while I was at it. I know I have gone back and forth with this, but we have been looking at different discovery examples before the final draft was sent.

 

Which is why I always say to take your time get It right before sending. It is an easy enough fix however.

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@credit_limbo

 

I just noticed that you ask them to produce the docs. to your house for inspection. I would have asked that true copies of the originals be provided to you, and that they explain where the originals are.

I'm confused about this part, how exactly should i word that sentence then? Do i need to define term True copies?

 

For that reason I would amend, and also fix the numbering issues while I was at it. I know I have gone back and forth with this, but we have been looking at different discovery examples before the final draft was sent.

For numbering issue, I would just split the Request #1 & # 2 into total of Four Request...In my Request # 4 i seems to be asking for same thing (All Documents showing strict accounting from inception into default, history of all credit & payments to the alleged account.

 

Which is why I always say to take your time get It right before sending. It is an easy enough fix however.

Lesson learned "It is quality that matters not quantity"

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@credit_limbo

 

I just noticed that you ask them to produce the docs. to your house for inspection. I would have asked that true copies of the originals be provided to you, and that they explain where the originals are.

I'm confused about this part, how exactly should i word that sentence then? Do i need to define term True copies?

See post # 11 for an example. I would define "true copies" and "produce"  as well as any other key words (and use caps on the word being defined)

For that reason I would amend, and also fix the numbering issues while I was at it. I know I have gone back and forth with this, but we have been looking at different discovery examples before the final draft was sent.

For numbering issue, I would just split the Request #1 & # 2 into total of Four Request...In my Request # 4 i seems to be asking for same thing (All Documents showing strict accounting from inception into default, history of all credit & payments to the alleged account.

Yes you have 4 request but it attempts to read like 2 request. I would have to read # 4 again, but if you amend you can re do it and we will check the wording before you send it., Or you could go with ASTMedic's.

Which is why I always say to take your time get It right before sending. It is an easy enough fix however.

Lesson learned "It is quality that matters not quantity"

Exactly. It's no big deal however, just amend and re do. Just because we are having so many issues with this; start over. I just say MY opinions and what I would do, others may have different opinions. There's usually more than 1 way to do things.

 

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interesting reads and reference for some case laws

 

Reyes v. Kenosian & Miele LLP, Unifund ET Al

http://goo.gl/mdsh6v

 

Asif V.Unifund

http://goo.gl/rPpMuc

 

REPRESENTING CONSUMERS IN LITIGATION WITH DEBT BUYERS

http://goo.gl/cY1v6q (page 11 -13 are good case laws)

 

Citibank and UNIFUND CCR PARTNERS PURCHASE AND SALE AGREEMENT (feb 2005)

http://goo.gl/V5Ldsd

 

Lang Richert & Patch celebrates 50th anniversary (another JDB lawyers for Unifund out of fresno)

http://www.lrplaw.net/lrp/wp-content/uploads/2013/10/50yr-DailyJournal.pdf 

"The firm has contributed $175,000 worth of time to pro bono efforts this year" probaly suggesting poor ppl to settle. laughable   ::devillaugh::

 

Some words to use when answering a complaint or writing RFA

http://c.plainsite.org/casd/273431/4.pdf 

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