credit2011

Just received Summons and Complaint but no proof of service.

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if there's no POS filed with the court, that just mean they are waiting for you to miss the 30 days deadline, and they can file POS when they ask for default. 

I believe you have 35 days to respond becuase you were sub-served (summon left with someone who was 18+) most likely you will receive a summon in the mail with POS attacched to it in next few days. I would say file the answer within 30 days. and keep calling the court everyday to see if Plaintiff has filed a POS with the court.

 

and you can send them BOP request with your own POS (if breach of contract is one of the cause in the complaint) before you file your answer with the court, in case you want get a head start and stay step ahead of them. 

 

MTQ service just makes them properly serve you again with POS, and will only delay the case for couple months. Judge will be unlikely to dismiss the case.

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Agreed. But I will add: You can send the BOP as long as you have other cause of action besides JUST account stated. Personally, even if they filed as account stated only, and nothing else; I would send the BOP anyway, just for some added pressure. Let them object to it, then send the discovery.

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Well if allowed under Delaware SOL- that time is passed the SOl  but recent I believe. Not sure what makes an allowable SOL Delaware defense allowable in court in California. I remember somewhere here I might of bookmarked some cases. Nonetheless trial date are out for at least a year in California i if and when it gets calendered . With the knowledge I have from this board and website- I feel confident I can make all the necessary arguments to kick it out and win and dismiss.

IIRC, HSBC accounts weren't purchased by B of A, they were purchased by Cap One in 2012.  You aren't going to be able to use the Delaware SOL.  Whether or not you would be able to use Cap One's home SOL will depend on whether they were the entity that sold the account.  It is possible that HSBC sold the account prior to the purchase by Cap One.

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IIRC, HSBC accounts weren't purchased by B of A, they were purchased by Cap One in 2012.  You aren't going to be able to use the Delaware SOL.  Whether or not you would be able to use Cap One's home SOL will depend on whether they were the entity that sold the account.  It is possible that HSBC sold the account prior to the purchase by Cap One.

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 I  received now an actual mailing of the complaint- with no proof of service attached to it. via regular mail no proof of service attached.- Before I got a drop off at the mail center with no proof of service-

 

I called the court again  to see if one was attached with the complaint and they said they did see one and I can request a copy of it via mail or pick one up at the courthouse . . Looks like they added a POS after the complaint was filed about 3 weeks after as the clerk said she saw  the complaint   was filed on a certain date - Originally it was not filed with their complaint to the court and now she sees one.

 

I sent a BOP and will now calendar their deadline to respond as I know they got it.

 

Will keep this updated when I get this as soon as possible.

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I have not received anything from Cach since I got the complaint. I did get a court date that is way off in advance from the court. Should I send them out anything or wait? It has been a while.  I am still waiting for the POF copy from the court as one was not attached to my complaint and I called the court and now they say they do see one.

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If you never received a response to the BOP then I would send them a meet and confer letter asking for it.

 

I wouldn't find the complaint POS relevant.

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Will do that- They sent not much with their complaint. Perhaps they feel they are entitled not to have to send more? Are they actually required to reply in the 10 days of receipt and if not how does the court look at that non response other than how I look at it --- They don't have it to give.  Is their anything lurking in the background in the scheme of things they may come up with.

 

Also, if they are to send out discovery to me are they required to do it any time before trial date or within a certain amount of time from the time they served the complaint?

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They never send anything in 10 days and the courts don't care. It's possibly one of the most abused statutes in the system, but it's an easy starting point. When you send the Meet and confer letter you tell them to respond in 10 days or you will file a "motion to compel a further response to the BOP or in its alternative to preclude evidence from trial". That is assuming that you are willing to file the motion and have the time to learn how to draft it and file etc. Don't tell them you will file the motion and then not do so.

 

They have up until about a month before trial to serve you discovery (unless you have a local court rule saying otherwise).

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They never send anything in 10 days and the courts don't care. It's possibly one of the most abused statutes in the system, but it's an easy starting point. When you send the Meet and confer letter you tell them to respond in 10 days or you will file a "motion to compel a further response to the BOP or in its alternative to preclude evidence from trial". That is assuming that you are willing to file the motion and have the time to learn how to draft it and file etc. Don't tell them you will file the motion and then not do so.

 

They have up until about a month before trial to serve you discovery (unless you have a local court rule saying otherwise).

 

Yes I have no worries to  learn to draft and file a motion. I guess the whole point of all of it is to "try" to precluded evidence in trial. I guess the sooner the better or the latter the better. They sure have plenty of time to get what they need as evidence if it even exists- That is essence an unfair advantage to the defendant in the California court system,  initial trial dates are now extended out over a year.

 

 

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Update-- I received a response from Cach.But it mentions  response to demand for documents. I did send a M&C and have not received a response yet  which now is overdue on their part.  They have objected to copy of items on account they say "due to the extent this account constitutes an account stated" they reference  2 court case  cases.

They stated defendant failed to object  to amount due.  They also state that they do not have all these records in possession  I have requested, but reserves the right to send them at a later time.

First and Second Cause of Action

They state they paid the merchants the sum requested by defendant according to charge slip or other authorization of defendant, then they mention the sum which is what they claim I owe, $X,xxxx.oo

They sent a copy of " Affidavit of Sale Of Indivudual Account the last 4 numbers of card on it, the date account was sold and my name on it. It is signed by some VP Asst Secretary with a notary of State of Delaware in a square stamp.Please note the date this affidavit is signed in this year a few months back in January. It mentions the date a week or so prior when the bank sold to Debt Buyer

 

Also enclosed was one copy of a statement dated 2 years ago just a one month statement.

 

So do I know do a meet and confer or leave this alone? I was reading  Astmedics thread on how he won Midland that he never actually sent in the MTC after they were unable to produce from the M&C, because he felt to let them scurry for it at the last minute at trial- it would be better  at the time of trial  to see if they can really come ip with something- in which he knew they wouldn't.

.

They also sent a letter they they claim they sent to me (maybe one of their last ones it is a few months old) the letter states that if I do not reply I deem the debt valid. I did sent a DV letter to them a while back and I am checking the date on that

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 They have objected to copy of items on account they say "due to the extent this account constitutes an account stated"

 

Did they sue for account stated only, or were there other causes?

 

they reference  2 court case  cases.

 

Yeah, Distefano says no BOP for account stated, that's why wondering whether you were sued for anything else, like breach of contract?

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Did they sue for account stated only, or were there other causes?

 

 

Yeah, Distefano says no BOP for account stated, that's why wondering whether you were sued for anything else, like breach of contract?

It just says on the complaint- First cause of action " account stated" - 2nd cause of action- "money lent paid or expended" I do not see the word breach of contract

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"Money lent paid or expended" is the second cause of action which made the BOP applicable to your case.

 

When they sue under anything other than just account stated; the BOP applies.

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wondering if I can still try to use the SOL from Delaware as that is where HSBC is governed under I thought at the time of my card closing and charge off. The assigment they sent to me says HSBC Bank Nevada though on it. I cant prove my last payment, but don't they have to?

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Did you assert the SOL in your answer as an affirmative defense? And, you would need to get the terms from them stating they are under Delaware law.

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Did you assert the SOL in your answer as an affirmative defense? And, you would need to get the terms from them stating they are under Delaware law.

 I did  in regard to Cal Civ Code 327, 339 and Delaware  Code 8106.

I would have to call HSBC or look in my files as I am not sure I have that credit card agreement, but I can get it online I do believe to see.   

    

Also, the statement they sent me looks like it was one of the ones after the account was closed  as that what it says on the statement "this account is closed, but you can still pay the account online". At the top of that statement where it says balance, it also says payments and it reads 0. So they seem not to have proof of any last payment on this statement they sent with the BOP response.

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I did  in regard to Cal Civ Code 327, 339 and Delaware  Code 8106.

That's good, then you have a claim for SOL

I would have to call HSBC or look in my files as I am not sure I have that credit card agreement, but I can get it online I do believe to see.  

You need to get the terms from them in order for them to be admissible. You can find it online to research, but you want those terms to be produced to you in discovery.

 

    

Also, the statement they sent me looks like it was one of the ones after the account was closed  as that what it says on the statement "this account is closed, but you can still pay the account online".

That's good. "documents that are prepared for the sake of litigation are to be viewed as less trustworthy". Best evidence rule, rules of authentication.

At the top of that statement where it says balance, it also says payments and it reads 0. So they seem not to have proof of any last payment on this statement they sent with the BOP response.

It's very hard for them to prove anything. They rely on your help, to either admit to something or fail to properly object to it. Even if they did show a payment etc., it's not necessarily PROOF (if defended properly) of anything. their evidence can always be challenged (with the rules of evidence) and still needs to be authenticated and needs someone to lay a foundation for it, it's hearsay.

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I got  a court date for a very long time from now- I have not heard a peep out of them so far. Nada, nothing.

Don't be surprised if you rarely hear from them. In mine I received one phone call prior to filing my answer, after that I only heard from them when they sent me RFDs, responded to my RFDs, and sent me the CCP98 and the CCP96 response. It's all assembly line crap - good for us, though ;)

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Can you still dispute an amount on your credit report that the JDB listed even when you are in a lawsuit with them and have answered the complaint?

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@credit2011

 

You can dispute an entry at any time.  If your intention is to show the judge that the account is disputed, you've already done that if you disputed the account in your answer to the complaint. 

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