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Being sued in California for old debt: served tonight


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Good Evening,

 

I am BrokeBaker:  I accumulated debts when my mom died a month before I opened a bakery.  Since closing that business 3.5 years ago, I'm still underemployed/unemployed, and I've watched my bills grow and grow while trying to get from underneath them and also not ending up homeless.

 

Tonight on March 27th, 2014, when I got home, my roommate handed me a summons that he received for me.   I am being sued!  This girl is very scared, very overwhelmed. 

I've spent the last 3 hours reading through the forum, and there are a lot of relevant cases to mine (Homeless in California to name just one).  But there is so much information and I'm not sure what to do or what the sequencing is.  I'm utterly overwhelmed.  Is there anyone out there who can help me make sure I have my immediate plan of action clear?

 

 

Step 1: Respond!  I know that I need to file an answer to this summons within 30 calendar days from the date I was served.  So, I need to provide a written response by April 25th, 2014.  Because my roommate was served and not me, I may actually get an extra 10 days to respond.

 

(1) Can I mail my response to the summons?  The suit was filed in a courthouse that is about 30 miles away from where I live, so I wonder if I can "answer" this lawsuit via certified mail, or if I need to go to the courthouse.  Anyone know the answer to that?.

 

(2) Affirmative Responses/Defense:  In my response to the summons, do I need to write a word document or do I need to complete an official Court Form?  I'm not sure if there is a template or legal required form. I know that I need to provide a written response to the summons with my "affirmative defense".  I know that if I don't list them in my response, I cannot use them in my defense later.  How do I decide all of the affirmative responses that I can use? What are some common options?  From what I read, here's what I think: 

  • Statute of Limitation: I haven't made a payment on this account since at least 2009, which means this is outside of the statute of limitations (SOL).  SOL in California is 4 years, I just learned on this excellent forum.
  • What affirmative defense relates to this? Is this "Lack of Standing"? I'm being sued by a Law Firm on behalf of Asset Capital Recovery Group (ACRG), but the cause of action says that I became indebted to Chase Bank.  I have never had an account with Chase Bank.  But, I know I had a Washington Mutual Account, and Chase Bank purchased Washington Mutual (which is now a defunct bank).  I don't even know if ACRG or Chase has written record of this debt, and I don't know for sure that ACRG can represent Chase to sue me as they have provided no paperwork or documentation.  What affirmative defense would cover this scenario, if any?

 

(3)  When Do I File CCP96?:  I now know that California Civil Code 96 [form found here: http://www.courts.ca.gov/documents/disc015.pdf] is my request to the Plaintiff basically saying "I want to know who your witnesses are and what evidence you have that I owe this debt, and what signed copies of the contract do you have saying I agreed to this debt".  When do I file this form?  Do I file it with the courts at the same time I respond to the summons?

 

(4)  Is CCP 96 related to BOP? When do I serve the plaintiff with the Bill of Particulars (BOP)?  Again, this is a question of sequencing.  I do have a lovely word document template I obtained from one of the forums here.

 

(5) I see a "General Denial" form. [http://www.courts.ca.gov/documents/pld050.pdf] Do I need to submit this?  And if so, what is the sequence?  (With the answer to the summons?)

 

(6) When do I send CCP 98?   Again, this is a question of sequencing

 

 

----------Any information you all can provide would be incredible appreciated.  I can bake an amazing cake, but I have no head for all of this legal stuff. I know I wrote a lot, but I"m trying to be thorough and clear------------

 

 

If it's helpful, I'm attaching my case below since I've seen this modeled on other posts:

 

This is my case:

 

1. Who is the named plaintiff in the suit?  
    - Asset Capital Recovery Group, LLC a Limited Liability Company

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
   - Law Offices of Kenosian & Miele, LLC

3. How much are you being sued for?
    - $11825.17 + legal fees

4. Who is the original creditor? (if not the Plaintiff)
    - Chase Bank USA

5. How do you know you are being sued? (You were served, right?)
    - Summons served

6. How were you served? (Mail, In person, Notice on door)
    - summons was given to my roommate while I was not at home.

7. Was the service legal as required by your state?
    -  Yes as far as I know.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
    - I received a collections call on the matter and when I said I couldn’t make payment arrangements at the time given that I am unemployed, I was told that I would be sued in court.

9. What state and county do you live in?
    - California, Los Angeles

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
    - They don’t list this date in the summons, but it does list 12/9/2010 as a date that a 10% annual interest on the debt began accruing.  The last time I paid a bill for Washington Mutual (which became Chase Bank) had to be late 2009.  I certainly didn't make a payment on 12/9/2010.

 

11. What is the SOL on the debt?
    - 4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)

    - Complaint filed: 03/18/14; Summons & Complaint served: 3/26/2014
    - General denial (PlD-C-010 form): not filed yet

    - Plaintiff's RFA, Special Interrogatories, and RFP not filed/served yet

    - Defendants Answers to RFA, Special Interrogatories, and RFP not filed/served yet

    - Defendant's RFA, Special Interrogatories, and RFP not filed/served yet

    - Plaintiff's Answers to RFA, Special Interrogatories, and RFP not filed/served yet

    - MSC scheduled for n/a

    - Trial scheduled for n/a

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? (Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.)
    - No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming.
    - 30 days (possible 40 given that I wasn’t personally served the summons)

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Contract Rule 3.749 collections.  One cause of action “common counts”

 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

    - Yes, the complaint is verified.  The person is a managing member of Asset Capital Recovery Group, and not Chase Bank USA.

18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

    -No, I do not believe do.

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
  -There is no evidence with the summons or complaint.

 

---

 

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You may not have to do anything besides a motion to dismiss based on the SOL being expired.  If they did sue you on a time barred account you have a FCDPA violation claim against them for taking an action they cannot legally take.

 

Consumer attorneys will take a case like that at no cost to you.  Start at www.naca.net and find one in the LA area to discuss the case with.  If it really is a violation they will likely answer this suit for you and file a counter claim resulting in the lawsuit being dismissed and them paying you.  CALL law firms do not email.  

 

Here is one that does free consultations:  310-943-0298  www.truebloodlawfirm.com

 

www.truebloodlawfirm.com  213-385-2977 ext. 147

 

Richard Scott Lysle   richardscottlysle.com

310-822-6023

 

If they can't take the case the forum can certainly help you with this but if it really is out of SOL you will have WAY more peace of mind knowing that a lawyer is handling all of it at no cost to you.  

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What she said.

 

Chase is in DE, their SOL is 3 years. If you can find a copy of the contract, it will say something like, "We're in DE, we don't care where you are. All business with this card is subject to DE law."

 

If CA has what's called a borrowing statute, where they will allow foreign (out of state) companies to apply their state laws to business they do with CA residents, then you're good.

 

Even if not, if you can find the EXACT date that you went into arrears, and didn't after get current on that account, you can add 30 days, and that's the date that you should use for determining your in-state SOL.

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Regarding your questions in order from post #1)

 

1)     Answer the complaint within 30 days, I would not run the risk of the extra 10 days (due to sub service). I would also not risk mailing it. I would go in person, and you may also be eligible for a fee waiver (you can download the form)

2)     The affirmative defense you want is :Time Barred by the running of the Statute of Limitations.   

3)      You do not file the CCP 96, you send it to the lawyer at 45 - 30 days prior to your trial date.

4)      CCP 96 is not related to BOP. CCP 454 pertains to the BOP. You need to know the cause of action or common counts against you first. Is it "open book, account stated, breach of contract, unjust enrichment. etc.) You are not supposed to use the BOP if it is "account  stated" only, but many people do anyway (before moving on to discovery) You can send the BOP anytime. I would do it right after the answer (a couple of days later). 

5)     The general denial would be your answer and you file it with the court within 30 days of being served UNLESS your complaint is VERIFIED. Look for an attached page with VERIFICATION on the top with a signature from the lawyer and language stating he/she has reviewed the complaint, believes it's true, and the plaintiff is not in the county Of the lawyer's office etc. If you don't see it then you can answer the complaint by filing the general denial. Make sure you put the SOL affirmative defense on there. The court will not dismiss (in the answering stage) just because you claim SOL, you need to answer the complaint.

6)     You do not send the CCP 98, they send it to you. You object to it, file an MIL (motion in limine to strike it) and subpoena the declarant. It is a declaration in lieu of live testimony. You want to force them to need live testimony and to have to fly out witnesses. Keep pressure on them and try to get them to dismiss.

 

You could file a cross complaint for the SOL for added leverage (you will have a lot to learn but if you focus on this it can be done) It cost more $ and would require a summons as well. See if you qualify for the fee waiver.

 

Also, read ASTMedic's thread how I beat midlands. It will help with the sequence and has documents you will need. It also has Seadragon's 60 day before trial check point list.

 

This should help, as long as you don't get misled you are on to a good start. Use the time you have to answer against them by learning how to beat them. For now I would focus on the answer, BOP, and cross complaint possibility (assuming you do not get a lawyer)

 

Welcome BTW.

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A) In response to question No. 17, you say that the Complaint IS Verified.  As that is the case, you can NOT use a General Denial Response.

 

B ) You must file an Answer and list Affirmative Defenses therein.  You will DEFINITELY include "Time Barred by the Running of Statute of Limitations" AND "Lacks Standing" AND "Lacks Authentication" AND "Fails Best Evidence Rule" AND "Hearsay" AND "Fails CCP 1987(a)" -- just to name a few.  Perhaps someone here who has had to Answer a VERIFIED Complaint can give you a sample. In the meantime, search the forums. For a fee, certain courts allow fax filing (for like $75 ... I wouldn't do it; I'd go personally.)

 

C) A Cross-Complaint for Rosenthal Act Violation is advisable.  (Yes, you can cross-complain for FDCPA violation as well, but then your case is likely to get bumped to federal court, and that is much more of a hassle and more costly and more difficult to get fee waivers.  I'd advise keeping the whole case in Superior Court through a Rosenthal Act counterclaim to keep things simple and moving forward in a timely fashion.)  The violation is based on Statute of Limitations (SOL) expiration.

 

D) I would also do a Demand for Bill of Particulars. When they fail to adequately respond (meaning they won't produce the "original" contract or the forward flow agreement), then you will send them a Meet and Confer letter.  Sometime thereafter, they will send you discovery requests (Request for Admissions (RFA), Special Interrogatories (ROGS), and Request for Production of Documents (RFP). You will answer those then and send them your own set of RFA, ROGS, and RFP (if you follow ASTMedic's plan, you will actually only send an RFP with 3 requests ... which is what I would recommend).

 

E) Oh, and when you do file your Answer ... do NOT forget to file your Fee Waiver Application and Order on Fee Waiver at the same time.

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Make sure you keep an eye on the online case info as Kenosian & Miele are pretty shady. Before I found this forum we were supposedly served by them (never were) and they got a wage garnishment. Just make sure they don't slip something in behind your back.

 

If your sure on the SOL I would follow what they say above. Would love to see these guys pay up.

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Lots to take in.  I'm going to work on my affirmative defense today and tomorrow and have it served to the law firm on Monday or Tuesday or next week.  I"m still getting all of my affirmative defenses together,but I have to figure out do I write them on a court-template form, or if I write them on a word document in the legal formatting (with the numbers on the left side).   

I will read EVERYTHING that you guys posted and then I'll come back with any questions.  I don't want to ask anything else until I read all the cases and previous forums that you all are recommending.

 

Thanks you,

 

-BB

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Ok.  I now have the legal template (with numbers in margins) to write my Answer with the affirmative defenses that I will use.

 

In the Answer, I am supposed to respond (I affirm, deny, or have no knowledge) to paragraphs in the complaint.

 

I don't know where to find the "paragraphs" in the summons that I can respond to.  The packet I was served is like 10 pages, most of which looks like forms where items were checked and then a sentence typed in. 

 

And also, the last page if verified.  does this mean I need to have my Answer verified?  If so, how do I do that?

 

-BB

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You respond the paragraphs in the COMPLAINT not the summons (and don't miss a paragraph), however, If you agree with a paragraph you can skip it with the same effect as an admission. The only response to the summons would be if it has an "appearance date" telling you to show up in court on a certain date (unlikely).

 

You do NOT have to verify your answer. I forgot the exact code that pertains to this but it is in the CCP under "pleadings".

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After taking time to research, here is what i need to illustrate:

 

I know my first step is to write an Answer to the Complaint.

 

From what I read online, a complaint looks like this:  http://www.wikihow.com/Sample/Legal-Complaint

 

The complaint that I received looks like this:  http://www.courts.ca.gov/documents/pldc001.pdf

 

Everyone has said that I need to make sure My Answer has a response to each paragraph in the Complaint.  Does that mean #1, #2, #3, etc, in the Complaint Form that I recieved is a paragraph that I need to include in my Answer?

 

-BB

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6 layer answer cake

 

 

Thank you:  a very hefty layer cake.  A few of the files won't open, but I can see enough sample answers that I can work on my own.

 

 

if the complaint is verified the answer has to be verified, also they have to attach new things to the complaint according to the new law fair debt litigation practices act, so raise that issue.

The complaint was verified, but Anon Amos said that my answer does not need to be verified.  I'll have to confirm this before I submit my answer.

Also, you said that they [the plaintiff] needs to attach "new things to the complaint".  What do you mean by this.  What "new things"?

 

 

 
 
hope that helps change the title to ANSWER. Also you have grounds for a demurrer for the SOL. A Motion to Dismiss also is a good thing before you answer.

 

This is great, too.  With all of this and what others have provided thus far, I'm confident I can write the affirmative defenses in my answer.  But I still need to figure out what "paragraphs" are in the complaint filed on me given that instead of paragraph format, it's a two page checklist form document that I entered in my last post.  this is my main question right now so that I can draft my Answer.  I need to respond to each paragraph but need to identify what they are. make sense?

 

Thanks Seadragon!

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A verification is a paragraph (usually on a separate page) that says someone has read the contents of the complaint and can verify that they are true.  Under certain circumstances, the lawyer can sign the verification on behalf of the client.

 

Go to the last page of the attached link and you will see a typical verification form for California complaints. As in the example, most (but not all) verified complaints say so in the caption itself: http://cluebytwelve.net/monkeys-lawsuit/complaint.pdf

 

Sometimes, plaintiff will include a venue declaration saying why you were sued in a certain county.  That is not the same as a verification of the complaint itself.  If you are in doubt, type out the words that you think might be a verification, and I will let you know.

 

If the complaint is not verified, you can use a general denial which denies every allegation in the complaint without having to go paragraph by paragraph.  Much easier and it makes it worthwhile to figure this out now. 

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If the complaint is verified then you can use the answer form PLD-C-010. It basically says everything is true in the complaint except the following paragraphs; then you add the numbers of the paragraphs you deny.

 

You do not have to verify the answer. CCP Section 92( B) "The answer need not be verified, even if the complaint or cross-complaint is verified.

 

I would definitely assert the SOL as an affirmative defense if I thought it might even be a slight chance that it applies; REGARDLESS of whether or not I could prove it at this time.

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SOL on credit cards/revolving accounts in CA is 2 years. I know this because it has been established with my case.  Asset tried everything to get it out of California courts.  Weasels.  They lost in Federal Court being fined the largest fine ever for a debt collection firm ($2.1 million). I think it was in 2012.  You can google it.  They were hit with the fine for going after debts that were time-barred (the SOL had expired).  So you best mention that first thing.  Make that statement. They never responded to my comment that it was time-barred.  3 months later when they realized their mistake, they tried to add their comment, I screamed and screamed and screamed. They failed to respond. It became FACT because they did not argue it.

 

You need to keep in mind that your responses can ask them questions.  It's your discovery as well.

 

I could have missed this response, but please, please, please deny everything.  Use älleged debt.  And you don't have to tell them anything...they want your SS#? Well my goodness, they bought the debt...they say they have it...why don't they have your SS#?  

 

And if they own the debt, do they need to know your account number(s)?  They should have them.  Any viable business would have those files, unless of course they are lieing.  

 

Take a deep breath...listen to these men and women on here. They are wonderful!  Just don't rush into a response. You have 30 days. Do it right.

 

Take care and best to you!

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I was sued on March 8 ,2014 and answered on March 11, 2014.  THE WORST MISTAKE OF MY LIFE.. PLEASE PLEASE PLEASE take your time in answering your suit,and make sure you're good with it. If you want to put it up and have others take a look at it, they will give you their honest opinions too. 

 

I filed mine, then I put up, and had many people tell me that my answers, and defense needed HELP. So, I had to take leave to fix it. When you take leave the other party can object. 

 

If I had to do this all over again, I would have filed exactly 2 days before my deadline. The sooner you file the faster the ball starts to run too. Make this stretch out. 

 

JMHO... :-) GLTU

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@qbert

 

 

i am 99.999% sure SOL in CA is 4 years on credit cards. would love to be proven wrong

 

It's 4 years.

 

Resurgence Financial, LLC v. Chambers,  Cal: Appellate Div., Superior 2009

 

The CA court ruled that DE's 3 year SOL trumped CA's 4 year SOL.

"In this case, the shortened period would be three years instead of four years. (See Code Civ. Proc., § 337.)"

 

Middleton v. L&J ASSETS, LLC,, Cal: Court of Appeal, 2nd Appellate Dist., 8th Div. 2008

Citibank had no right to pursue Middleton until she failed to perform under a contract she admits existed,[5] i.e., failed to make a payment by June 5, 2001. The contract action, filed June 2, 2005, within four years of the date of that breach, was timely. (Code Civ. Proc., § 337.)

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Thanks to everyone for their help thus far.  I was served 11 days ago and am feeling better now than I did then.

 

In their complaint, the Plaintiff used California Court Form PLD-C-001 (http://www.courts.ca.gov/documents/pldc001.pdf).  There is not much to respond to, but a few things I am unclear on.

 

[see form for references]

 

#4b:  "The true names of defendants sued as Does are unknown to plaintiff.

(1) X:  Doe defendants (specify Doe numbers) 1-to-5 were the agents or employees of the named defendants and acted within the scope of that agency or employment.

(2) X: Doe defendants (specify Doe numbers) 6-to-10 are persons whose capacities are unknown to plaintiff.

 

Question for the group:  What does this mean?  Doe defendants are fictitional, but they know who I am, so not sure why this is checked or how to response.

 

 

9.  "Other Allegations:  Prior to filing this lawsuit, Plaintiff acquired and was vested with the legal title, interest, right in the obligation, upon which this lawsuit is brought empowering plaintiff to collect thereon and bring this action.  The delinquent obligation, the recovery of which is the subject of the litigation, was acquired by plaintiff after charge off by the credit issuer.

 

This within action is not subject tot he provisions of California Civil Code Section 1788.50 et seq (1788.50-1788.64) as the obligation sued upon is an obligation sold or resold to plaintiff before January 2014. "

 

Question for the group:  This is the only real area where the Plaintiff puts information that's not just a checked box.  Does my Answer (below) address this paragraph?  I'd love your feedback.

 

 

10.  Plaintiff prays for judgement and costs of suit, for which relief as is fair, just, and equitable; and for

 

     (a.) Damages of $11,825.17

     

     (b.) Interest on the damages

             (2) at the rate of 10% per year from (date) 12-09-10

     (c.) Attorney's Fees
            (2) according to proof
 
Question for the group:  Do I just write "In response to paragraph 10, Defendant denies Plaintiff's rights to any judgement, including the amount of damages, the interested to be paid, and attorney's fees".  Or, does my answer (below) address that?  i'd love you feedback!
 
 
 
--------------BELOW IS BROKE BAKER's DRAFT ANSWER TO THE COMPLAINT, TO BE COMPLETED USING Cal Courts Form-------------------
 
 
I will reply using the Answer form PLD-C-010.   http://www.courts.ca.gov/documents/pldc010.pdf )

 

 

 

3b:  Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT

 

        (1) Defendant claims the following statements are false (use paragraph numbers OR explain)

 

-no response.  Section will be left blank-

 

 

      (2) Defendant has no information or believes that the following statements are true, so defendant denies them (use paragraph numbers or explain):         

 

Defendant denies that the amount owed alleged by the Plaintiff is correct and the Defendant lacks sufficient information to either admit or deny the remainder of the Plainttiff’s allegations (paragraphs/numbers 1-10), and therefore denies all such allegations and demands strict proof therof in writing. 

 

Defendant requires that Plaintiff provide an original credit agreement signed by Defendant, certification of the alleged debt, and a detailed accounting of all purchases, charges, credits, offsets, and payments to the alleged account in order to permit further admissions and denials

 

 

4.  AFFIRMATIVE DEFENSES: Defendant alleges the following additional reasons that Plaintiff is not entitled to recover anything

 

FIRST AFFIRMATIVE DEFENSE: Plaintiff’s claim is barred by the applicable Statue of Limitations

 

SECOND AFFIRMATIVE DEFENSE:  This complaint is barred by Plaintiff’s Lack of Standing to bring action.  Plaintiff is neither a party to the transaction nor connected to the transaction.  Furthermore, Plaintiff has failed to show a chain of custody for the alleged debt.

 

THIRD AFFIRMATIVE DEFENSE:  Plaintiff’s claim is barred because Damages Not Proven.  Plaintiff has failed to provide the documentation to show the history of payments and relevant accounting for the alleged debt

 

FOURTH AFFIRMATIVE DEFENSE:  Assignment not proven.  Plaintiff has failed to show a valid, uninterrupted chain of assignment from Chase Bank USA for the alleged debt.

 

FIFTH AFFIRMATIVE DEFENSE:  Defendant reserves the right to please further affirmative defenses at anytime in the future.

 

5.   Other

 

[NO RESPONSE]

 

 

6.  DEFENDANT PRAYS

 

a. That plaintiff take nothing:

b. For costs of suit

c. other (specify)

  (i) for the alleged damages in paragraph 10,  $11,825.17

 

  (ii) For the alleged 10% interest on the alleged damages

 

  (iii) For any attorney and associated legal/court fees.

 

  (iv) Plaintiff also prays for such other and further relief as the Court may deem fair, just, equitable, and proper.

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