HumgBird

Another on Being Sued by CACH (Mandarich Law Group) in CA

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So I’ve been sued by CACH.  I’ve read quite a few posts with similar situations but things got put on hold as I was in the process of moving (the guy serving the summons was lucky to catch me before I moved) – so not I’m down to the wire I need to get my response out by tomorrow latest and working on my general denial now.

 

1.    Who is the named plaintiff in the suit?

 

CACH LLC

2. What is the name of the law firm handling the suit?

 

Mandarich Law Group, LLC 

3. How much are you being sued for?

 

~$13K

4. Who is the original creditor?

 

Cap One

5. How do you know you are being sued?

 

Received a summons

6. How were you served? (Mail, In person, Notice on door)

 

Served in person at my home

7. Was the service legal as required by your state?

 

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 

Originally received calls and letters from another law firm: Kentwood Law Group, stating intent to sue.  Last letter from them was June 13. 

Started receiving calls and letters from Mandarich late last year, last one received early January before I was served

9. What state and county do you live in?

 

San Diego CA

10. When is the last time you paid on this account?

 

Feb or Mar 2012

11. What is the SOL on the debt?

 

4 Years

12. What is the status of your case? Suit served? Motions filed?

 

Went online and ROA shows 30 day summons and complaint proof of service is last status.  Case was assigned prior to this.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

 

No

14. Did you request debt validation before the suit was filed?

 

No

15. How long do you have to respond to the suit?

 

30 days (served 2/24)

 

The Causes of Action are:

 

1.    Breach of Contract

2.    Common counts  (complaint says “Account Stated”)
 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

No evidence included

 

1. Summons

2. Cover sheet

3. Instructions on how to complete cover sheet

4. Complaint

5. Declaration of Venue

6. Notice of Case Assignment

7.  Notice of Eligibility to eFile and assignment to imaging department for Superior Court of CA SD County

 

Also they have the suit listed under my former name (first husband).  Have since divorced and remarried. 

 

So looks like my first step is to file a general denial.    

How do I go about handling the fact that last name is different now as well as mailing address?  Do I need to do anything in particular?

 

Should I also submit a BOP?

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I forgot to add that the law firm has left me several messages since I was service to "discuss the paperwork" I received.  I assume they are trying to get me to pay up via a "settlement".  I have not responded to their calls.

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Welcome.

 

You should consider sending a BOP right away.  Even if you get nothing but objections, it will help you down the road in responding to any discovery that you receive.

 

You don't really need to do anything about the name/address change.  You will be listing your correct name and address at the top of the form, however.  Plaintiff may not even notice.  If you want, you can find a way to include something like : "Ms. Jane Hmgbird, sued herein as Ms. Jane Blkbird"

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Welcome.

 

You should consider sending a BOP right away.  Even if you get nothing but objections, it will help you down the road in responding to any discovery that you receive.

 

You don't really need to do anything about the name/address change.  You will be listing your correct name and address at the top of the form, however.  Plaintiff may not even notice.  If you want, you can find a way to include something like : "Ms. Jane Hmgbird, sued herein as Ms. Jane Blkbird"

 

Thanks for the info.  My plan is to get the general denial filed by Friday AM latest at the court.  Was planning on submitting just the general denials per examples I have seen here.  Let me now if anything looks off:

 

1. Plaintiff has failed to state a proven claim for which relief can be granted

2. Plaintiff lacks legal capacity to sue

3. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time

 

and then I'll work on getting the BOP out by early next week.  

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A bit of a stutter on number 3:

 

3. Defendant reserves the right to amend this answer to add affirmative defenses at any time.

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FWIW, you have 30 days from the 24th of Feb, which is the 26th of Mar. Time enough to get in your BOP at the same time as your answer. Dump paperwork on them.

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Thanks calawyer I'll fix

 

Wins the Battle - I was just getting nervous about cutting it short but I will try to get it all together by then.   I'm having to do all this at work since my internet/computer/printer will not be set up at home until early next week due to our move -- so having a hard time getting things done quickly.  

 

I'll try to get BOP and Denial and POS ready to submit Monday and do service via overnight mail to the Plaintiff same day.

 

I've seen conflicting information - do I file BOP with court too or just sent to Plantiff?

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Just send it to plaintiff.  You will also want to have a proof of service.

Thank you.  I really appreciate all your help.

 

Quick question re: BOP.  The templates/format I have seen for Demand for BOP in CA have a place for stamping receipt by the courts.  I am to use this same template but just keep it, and the POS for my records?  (assuming I may submit it for evidence later?)

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Also noticed that on all the documents I was served (summons and complaint) the case number is slightly different than the number that comes up when I search my record at the courts.  There are three 2-letter codes at the end of the number and one of them is different via the court records online.  I will ask when I file the record but assuming I should use the case number on the summons rater on the BOP.

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You should use the official number--the one the courthouse has. It's not unknown for DC attorneys and their secretaries to screw up details in their filings. 

 

That's to your advantage. Judges care about details.

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Thank you.  I really appreciate all your help.

 

Quick question re: BOP.  The templates/format I have seen for Demand for BOP in CA have a place for stamping receipt by the courts.  I am to use this same template but just keep it, and the POS for my records?  (assuming I may submit it for evidence later?)

 

I am not sure what you mean.  But if you tried to file it, I don't think the clerks would accept it.  They would think it is discovery which does not get filed with the Court.

 

I prepared a template which someone posted for me.  I think I saved a link in my notes.  I will look for it tomorrow if someone doesn't beat me to it first.

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OK thanks.  I filled one out that I found online but it looks very similar to the General Denial form.  Will wait to see your template.  

 

Question about serving -- by using someone not a party to the case, I assume that means I cannot have my husband send correct?  Since we are married I'm guessing they can make him a party as they added DOES 1-10 inclusive on the summons.

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I filed the General Denial on Friday.  Just FYI the "sued herein" didn't go over well with the clerk.  She made me cross it out and put "aka Ms. HumgBird" instead.   

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OK got a copy of the court stamped General Denial, BOP and POS out to the Plaintiff's attorneys.  Sent via UPS with signature required, and had a coworker sign the POS.

 

Here is the body of my BOP (taken from another example on this forum)

 

PLEASE BE ADVISED that, pursuant to Section 454 of the Code of Civil Procedure, defendant, HumgBird, aka Woodpecker, demands that you provide a bill of particulars, setting forth all items and details of the account on which the cause of action: Breach of Contract, and Common Counts on which the plaintiff’s complaint is based,

 

The bill of particulars must be delivered to defendant within 10 days after service of this demand.

 

In particular, demand is made on you to provide:

            a.  The dates if each transaction

            b.  A description of the services, materials or goods supplied, or other considerations rendered

            c.  The price or charge made for each such item or transaction

            d.  All payments or credits that have been made to the account starting from a zero balance

            e.  A copy of the contract between plaintiff and defendant

            f.   A copy of any agreement assigning to plaintiff the account at issue in this litigation

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I filed the General Denial on Friday.  Just FYI the "sued herein" didn't go over well with the clerk.  She made me cross it out and put "aka Ms. HumgBird" instead.   

 

 

Gotta love the clerks.

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So, got the response back from Mandarich on Friday:

 

They addressed the letter to me, Attorney at Law  xtookewlx

 

I am writing in response to your demand for Bill of Particulars.  Your request is inapplicable to the causes of action pled in the subject complaint because Plaintiff is not pursuing items of an account and is instead seeking a final sum owed as stated on the monthly bill your client received.  (Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677)  As a result, please be advised that we will not provide a response.

 

So I need to dig around a bit here but it remember seeing this is not an uncommon response from them (or at least something similar).  Are they saying that when they refer to "account stated" that they mean they are referring to the final sum owed on the monthly bill I received?  I never received a monthly bill from Cap One (it was actually an unsecured loan, auto deduction and they NEVER sent me statements--I actually would have to go online to see my balance).  And CACH has not provided me with copies of anything.

 

I'm guessing I need to try again and word it differently to ask them to provide proof I received such statement correct?  How much time do I have to respond?  

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Take a look at the Distefano case.  You will find that plaintiff is wrong.  However, plaintiff has also done you a favor by not responding. Plaintiff's refusal to provide information in response to your BOP will give you a nice ground to object if plaintiff sends you discovery to answer.  See 1111girl's thread for more information.

 

You might send a meet and confer letter anyway.  Something along the following lines since you said in your post above that the complaint contains a cause of action for breach of contract:

 

Dear___:

Thank you for your letter dated ___ regarding the Bill of Particulars served in this matter. In that letter, you refuse to respond to Defendant’s Bill of Particulars claiming that a Bill of Particulars is not required for plaintiff’s claims of account stated and breach of contract.

You cite the case of Distefano v. Hall for this proposition. While Distefano does suggest that a Bill of Particulars may not be required for an account stated claim, the Court reached the opposite conclusion with respect to breach of contract: “Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.” 218 Cal. App. 2d 677.

I cannot understand why plaintiff would object to providing the most basic discovery that will be necessary to prove its claims. In any event, your erroneous objection to the Bill has already caused plaintiff’s response to be tardy. As the Distefano court noted, “The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded.”

Please respond without further delay.

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Awesome...thanks so much.  Just finished reading 111girl's tread.    

 

One thing I did not see, for the M&C letter, do I need to attach POS or can I just sent it certified with proof of receipt?  

and I give them a deadline to respond to me?

 

Should I hit them with my own discovery as well or wait until they respond (or don't respond)?

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Just sent it certified mail RRR. 

 

If you serve discovery now, plaintiff will just respond to your BOP saying that you have now served discovery and it will respond to that discovery instead.  Then you will get a bunch of objections to your discovery.

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UPDATE:

 

On 4/12 I mailed the  M&C letter (certified) to CACH 

that same day I got home and had received from them in the mail a Request for Admissions, Request for Production of Documents and Special Interrogatories.

 

This weekend I received from the court a Notice of Hearing and a Notice of Rescheduled Hearing (sent on same day obviously) for a CCMV on June 6.

 

To date I have received nothing in response to my demand for BOP or the Meet & Confer letter.

 

I'm trying to put together a draft of responses to CACH now based on input from this site.  I believe I have 35 days to respond since I was served by mail.  

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Good for you.  1111girl's thread should help you respond to the discovery.  How can you answer questions about the account if plaintiff has refused to provide the most basic information (unless you have all of the statements in a file somewhere)?

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