Jump to content

Sued in California by Kenosian and Miele, Attorneys for Unifund


Recommended Posts

1. Who is the named plaintiff in the suit?

Unifund CCR, LLC

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

Kenosian and Miele

3. How much are you being sued for? 

$24,XXX.XX

4. Who is the original creditor?

Citibank

5. How do you know you are being sued?

Summons delivered at door

6. How were you served?

Person

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?

None

 

9. What state and county do you live in? 

California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 

Per the complaint, Sept., 2010

11. What is the SOL on the debt?

4 years

12. What is the status of your case?

Suit served and trial date set for just over 30 days from now.

 

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?

Responded already with a general denial within 30 days of service.  Trial date is now just a hair over 30 days away.

 

We need to know what the "charges" are.

Cause of Action

1.  Breach of Contract

2.  Monies had & received

3.  open book

4.  account stated

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

yes

 

16. What evidence did they send with the summons?

a note of Verification from the Attorney (Miele) of Unifund that all statements in the compliant are true and correct.

----------------------------------------------------------------------------------------------------------------------------------------------

 

I.  I filed a PLD-050 General Denial with the court along with a POS-040 proof of service, and mailed copy to plaintiff via CMRR.

 

II.  I sent BOP and they responded with 14 months of Citibank statements

 

III.  I sent a Meet and Confer letter, to which they responded with Supplement Responses that included same 14 months of statements, plus Bill of sale between Citibank and a receivables company, and a Bill of sale between the receivables company and a distressed asset company, and a bill of sales between the distressed asset company and Unifund.

 

IV.  I received Plaintiff's request for Production of Documents and Admission

I need to respond in the next few days

 

V.  I sent CCP 96 and received responses:

  A.  Plaintiff intends to call me as a witness

  B.  Documents that Plaintiff intends to offer at trial:

      1.  Business Records Affidavit signed by Document Control Officer for Citibank - notarized in Missouri

      2.  14 months of Citibank statements

      3.  Bill of sale between Citibank and a receivables company, and a Bill of sale between the receivables company and a distressed asset company, and a bill of sales between the distressed asset company and Unifund.

      4.  Citibank Card Agreement that has no signature other than the CEO of Citibank.

 

VI.  I received:

  A.  Notice to attend trial

  B.  CCP 96

  C.  Declaration of authorized representative in lieu of live testimony CCP98 from authorized representative for Unifund.

 

What should I do, now?

 

Link to comment
Share on other sites

IV.  I received Plaintiff's request for Production of Documents and Admission

I need to respond in the next few days

 

Probably want to get responses in (but are they due within 30 days of trial?)

 

 

 

  B.  Documents that Plaintiff intends to offer at trial:

      1.  Business Records Affidavit signed by Document Control Officer for Citibank - notarized in Missouri

      2.  14 months of Citibank statements

      3.  Bill of sale between Citibank and a receivables company, and a Bill of sale between the receivables company and a distressed asset company, and a bill of sales between the distressed asset company and Unifund.

      4.  Citibank Card Agreement that has no signature other than the CEO of Citibank.

 

 

Make sure you have a good understanding of hearsay and business records exception. Re affidavit: is it signed under penalty of perjury under the laws of CA?  If not, it's inadmissible. 

 

 

Cause of Action

1.  Breach of Contract

2.  Monies had & received

3.  open book

4.  account stated

 

You should know all elements of proof required of plaintiff.

 

 

  C.  Declaration of authorized representative in lieu of live testimony CCP98 from authorized representative for Unifund.

 

You probably know that you'll subpoena this person at the address provided within 20 days of trial, but ...

 

 

$24,XXX.XX

 

 Be prepared for them to show up.  If you are prepared, it should be pretty fun asking them about the policies and procedures of every chump in the chain. Looks like this will come down to standing and they'll have a tough time proving it.  Might want to get started on your trial brief - it'll help you crystallize your arguments.  Take a look at examples posted in other threads.

  • Like 1
Link to comment
Share on other sites

Did they not give you a name on the ccp98? With a place to serve them within 150 miles from the court? If not you are in a good place.

Read homelessinca's thread. You should start working on a MIL to exclude those affidavidt's . Homeless has examples in his thread, you can rework to fit your case.

Link to comment
Share on other sites

It is a large amount, so expect the witness to show, but it is going to be hard for them to authenticate 3 chains. Here is some sample questions to ask the witness, in your case you would ask that witness 3 times for each chain, lol.

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=1114

Link to comment
Share on other sites

Yes, day 30 before court date is this weekend, so I will mail responses on Monday.

 

I don't know if you want to make anything of it, but you're "entitled as a matter of right to complete discovery proceedings on or before the 30th day" before trial.  (CCP 2024.020)

Link to comment
Share on other sites

I don't know if you want to make anything of it, but you're "entitled as a matter of right to complete discovery proceedings on or before the 30th day" before trial.  (CCP 2024.020)

Thanks for the heads up.  I will send tomorrow.  Does it have to be delivered, or just mailed on or before the 30th day before trial?

Link to comment
Share on other sites

It is a large amount, so expect the witness to show, but it is going to be hard for them to authenticate 3 chains. Here is some sample questions to ask the witness, in your case you would ask that witness 3 times for each chain, lol.

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=1114

 

Indeed. I would think that one witness simply can't speak to personal knowledge about 3 different entities in the chain - daily operations, record keeping practices, software, etc. They would have to have qualified witnesses show up from all three.

 

@Mopar2u If they didn't name 3 witnesses in the CCP 96, then obviously they can't call them at trial - well they can, but you'll have to object to it.

 

I would guess they realize that not having witnesses from all the entities in the chain is an obvious weakness. If the CCP98 fails and (should the witness show up) you are able to disqualify that person's testimony, they will most certainly pin their hopes of winning on having you testify and getting you to admit that their case is valid, or otherwise authenticate their documents. Definitely prepare for that.

  • Like 1
Link to comment
Share on other sites

Thanks for the heads up.  I will send tomorrow.  Does it have to be delivered, or just mailed on or before the 30th day before trial?

 

The "right to complete discovery" isn't plaintiff's right to have you rush responses, it's your right not to have to be responding to last second discovery all the way up to trial.  While I'm not necessarily recommending that you ignore the discovery, I am suggesting that plaintiff might not be entitled to it, as it seems the discovery was served too late. 

 

Or at least too late to motion on it: "motions concerning discovery heard on or before the 15th day" before trial.

  • Like 1
Link to comment
Share on other sites

Thanks for the heads up.  I will send tomorrow.  Does it have to be delivered, or just mailed on or before the 30th day before trial?

 

If you're talking about answering the discovery they requested of you (RFP's & RFA's) I would not send them right away. You have 30 days + 5 additional days for mail (unless they personally served them) to respond. Also the discovery period ends 30 days before trial. Even if you have a local rule that says discovery has not ended (which I doubt); you still have the 35 days to respond, so It's not due before trial. What they are doing is an abuse of the discovery process, and it's a sanctionable offense.

 

If they don't get the discovery before trial they may motion for a continuance, and there is a rule where they should not be allowed to  that either. I don't have all the codes and rules where I'm at right,  now but someone may post them (or I'll get back to you later). The rules are under the "discovery act" in the CCP; don't let plaintiff break them. 

  • Like 1
Link to comment
Share on other sites

CCP 2024.020. (a) Except as otherwise provided in this chapter, any

party shall be entitled as a matter of right to complete discovery

proceedings on or before the 30th day, and to have motions concerning

discovery heard on or before the 15th day, before the date initially

set for the trial of the action.

Is this the one @Anon Amos?

  • Like 1
Link to comment
Share on other sites

CCP 2024.020. (a) Except as otherwise provided in this chapter, any

party shall be entitled as a matter of right to complete discovery

proceedings on or before the 30th day, and to have motions concerning

discovery heard on or before the 15th day, before the date initially

set for the trial of the action.

Is this the one @Anon Amos?

That's it.

OP;  I would think that's all you would need, but in addition to it; you still would have the 35 days to answer discovery (it may mention that in CCP 95) and also in the discovery act (starting somewhere around CCP 2000 (I'm not at the right computer).

The discovery should be objected to under the rule posted by Shelieh, and you have 35 days from the day they mailed them to do so, or; you could object to them just before trial, but I would not answer them.

 

However: Make sure it is discovery; request for production of documents they sent you, and not a "notice to appear and bring documents,(subpoena duces tecum)".

Link to comment
Share on other sites

That's it.

OP;  I would think that's all you would need, but in addition to it; you still would have the 35 days to answer discovery (it may mention that in CCP 95) and also in the discovery act (starting somewhere around CCP 2000 (I'm not at the right computer).

The discovery should be objected to under the rule posted by Shelieh, and you have 35 days from the day they mailed them to do so, or; you could object to them just before trial, but I would not answer them.

 

However: Make sure it is discovery; request for production of documents they sent you, and not a "notice to appear and bring documents,(subpoena duces tecum)".

Plaintiff's Declaration of Mailing Request for Production of Documents and Requests for Admissions and Genuineness of documents was dated May 30.  So, shouldn't I mail them on Monday?

Link to comment
Share on other sites

Plaintiff's Declaration of Mailing Request for Production of Documents and Requests for Admissions and Genuineness of documents was dated May 30.  So, shouldn't I mail them on Monday?

OK, I guess I had the dates wrong then, I was thinking you received the discovery 30 days prior to trial. I apologize for that. You will need to send them something. 

Link to comment
Share on other sites

If they sent it to you on May 30th, then you have a little more time - you don't have to mail them by Monday. You get the standard 30 days + an additional 5 days because they mailed them. You just need to serve (place you answers in the mail) by day 35. Day 35 falls on a holiday, July 4th, so you get some additional time out of that.

Link to comment
Share on other sites

Plaintiff's Declaration of Mailing Request for Production of Documents and Requests for Admissions and Genuineness of documents was dated May 30.  So, shouldn't I mail them on Monday?

 

I'd send them by the due date, however plaintiff should have served them so that the responses were due prior to the discovery cutoff.  And, if they don't like the responses, there isn't time to do much about it.  So, I wouldn't be too concerned about how much they'll like what they get. ;-)

 

 

If they don't get the discovery before trial they may motion for a continuance, and there is a rule where they should not be allowed to  that either. I don't have all the codes and rules where I'm at right,  now but someone may post them (or I'll get back to you later). The rules are under the "discovery act" in the CCP; don't let plaintiff break them. 

 

2024.020 ( b ): Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. 

 

Link to comment
Share on other sites

  • 4 weeks later...

Filed my trial brief and objection with the court and sent copies to plaintiff's lawyer last Friday.  My trial is this Monday.  Today, I received an overnighted settlement letter from Plaintiff's lawyer.  The title is SETTLEMENT COMMUNICATION PROTECTED UNDER EVIDENCE CODE 1152.  They are offering to dismiss with prejudice, but I have to sign agreement that includes CONFIDENTIALITY, BEAR MY OWN LEGAL FEES, HOLD THEM HARMLESS, ETC., ETC.  I am not sure I want to give in to all of these things and also I am concerned about the possibility that another JDB will just sue me next week for the same account.  I would appreciate any advice or comments. 

 

Thank you everyone that has posted previously.  I could have never made it to this point without the help from string, shellieh98, RyanEX, Anon Amos, and the previous threads from CalLawyer, Homeless, ASTMedic, and eyoung27.

 

Running out of time, so please chime in if you have advice.  And, thanks again everyone!

  • Like 1
Link to comment
Share on other sites

Hey Mopar2u,

 

Looks like you did good for yourself if you've made it this far. If you're worried about being sued by another JDB then counter offer that and also add that they will remove any/all trade lines from your credit report and also that this JDB will not sell this account etc...

Link to comment
Share on other sites

Frankly, you have done what every pro se defendant would want, you have them knowing that if they go to court they will loose. I would take the dismissal with prejudice and the agreement. You are looking at a $24K dollar debt, all you need is some yahoo judge to have a bad day and decide you arguments and law don't meet his desires or whims. Then you will have to appeal...

Don't snatch defeat from the jaws of victory...

  • Like 2
Link to comment
Share on other sites

 

What about the possibility of Unifund selling to another JDB?

What do you care if they sell it, you have all the filings to go at it one more time if needed. Not to mention that it would the 5th owner removed from the OC. Results will be the same. You can trust that if these guys thought they could really win, they wouldn't be offering to settle. They know you have them by the short hairs.

Look at it from a monetary perspective, you have invested with filing fee and CMRR and the like under $500 to defend. Lets say you had to do this again another $500. This puts your defense at $1K. Had they Citi come to you and said will settle this $24K debt for $1K dollars, you would have jumped on it.

In esscence you have created enough leverage to make them walk away. Take the deal....

  • Like 1
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...