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So i recently opened my mail box and found a Summons Complaint tucked away under all my bills and letters. I jumped online and started to do what I can to avoid having a default judgment placed upon. I guess I jumped the gun and filed a General Denial based on the info I found on this site but now I’m stuck.  He is a bit more info to is if you guys can make lend a helping hand.  I know there is a lot of info already on the form but I was recorded by a fellow member to start a fresh thread  

Plaintiff: GCFS (Greater California financial services) JDB!

Defendant: Me  

Complaint: Filed in California at Chatsworth

Cause of Action – Breach of Contract and Common Counts

Amount: 15 +

Original Lender:  Wells Fargo Bank,

 

So after briefly looking off all this info I got scared and filed a General Denial with the affirmative defense “ Lacking Standing- The Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collections costs, and attorney’s fees are all correct, agreed to in contract, and lawfully charged. Defendant also insists that the plaintiff come up with contracts, account statements and purchase receipts to prove the amount of debt.” I also attached a validation letter requesting  the fallowing. I filed the GD and the letter and it was mailed out to GCFS Certified mail.  

  1. What the money you say I owe is for;
  2. Explain and show me how you calculated what you say I owe;
  3. Provide me with copies of any papers that show I agreed to pay what you say I owe;
  4. Provide a verification or copy of any judgment if applicable;
  5. Identify the original creditor;
  6. Prove the Statute of Limitations has not expired on this account;
  7. Prove That I  signed any contract with original creditor to barrow debt
  8. Show me any payment history evidence I made from my own bank checking account
  9. Show me that you are licensed to collect in my state; and
  10. Provide me with your license numbers and Registered Agent.

Today in the mail I get a letter from GCFS  stating that they are answering my request  and sent me a copy of the fallowing.

  • Copy of Wells Fargo Consumer Credit Care Customer Agreement & Disclosure Statement (looks like it’s from 2011 when they claim my account was opened in 2006, no signatures on the agreement)
  • Last 32 Statements of account before it was closed (staments only show overdrafts transfers and payments to a checking account, no purchases or charges)
  • Affidavit of debt from Wells Fargo Card Serves to Absolute resolution corps,
  • Affidavit  of sale & Balance from Absolute Resolutions Corporation to GCFS Inc

What should be my next step? Should I send them a letter telling them that I received a letter nothing the amount that I allegedly owe and a blank credit card agreement. Consumers have the right to request a validation of debt to ensure that the company collecting the debt has not made an error. Sending me notice of the amount I supposedly owe does not prove that I owe the debt, it merely proves that your company seeks to collect the specified amount. In addition, the blank credit card agreement merely illustrates the rules and regulations applicants must agree to when applying for that card. It does not contain my signature and, as such, has nothing to do with me.? Or do I file a Bill of Particulars? If so how? What does it need to say? I need to get this off my chest, I cant sleep at nights thinking about all this please help

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That sample letter is FULL of errors and misinformation and really should be amended or removed from the site.  They did send you evidence they intend to use despite the fact they had no requirement to do so.  Now that they have sued you DV is pointless.  The way you get information now is through proper discovery not a DV letter.

 

"I also attached a validation letter requesting  the fallowing. I filed the GD and the letter and it was mailed out to GCFS Certified mail.  

  1. What the money you say I owe is for;  You know the answer to this:  a defaulted WF credit card
  2. Explain and show me how you calculated what you say I owe;  NOT required unless the court compels it
  3. Provide me with copies of any papers that show I agreed to pay what you say I owe;  The card statements and the CC agreement support this
  4. Provide a verification or copy of any judgment if applicable;  you haven't been to court yet there is no judgment until the case is tried
  5. Identify the original creditor;  They told you this too:  Wells Fargo
  6. Prove the Statute of Limitations has not expired on this account;  when did you make the last payment?  When the account was opened is not relevant when you defaulted is.  The SOL in CA is 4 years.  If you are going to raise that as an affirmative defense you need to figure this out so you can prove it. 
  7. Prove That I  signed any contract with original creditor to barrow debt  On a credit card case they do not have to as there is no signed contract.
  8. Show me any payment history evidence I made from my own bank checking account  The LAST thing you want is them having access to your banking records to prove you opened, used, made payments, then defaulted on this account.  How would they have your banking records anyway?
  9. Show me that you are licensed to collect in my state; and  Since the company name is CA Fin Svcs they are a licensed business
  10. Provide me with your license numbers and Registered Agent."  You can find that on the Secretary of State website if you want it but it isn't relevant for the trial.

 

Should I send them a letter telling them that I received a letter nothing the amount that I allegedly owe and a blank credit card agreement. Consumers have the right to request a validation of debt to ensure that the company collecting the debt has not made an error. 

 

Waste of time.  You do have the right to request validation however, once they have sued you DV won't help or stop the litigation train.  You need to concentrate on defending this lawsuit according to CA laws.

 

Sending me notice of the amount I supposedly owe does not prove that I owe the debt, it merely proves that your company seeks to collect the specified amount. In addition, the blank credit card agreement merely illustrates the rules and regulations applicants must agree to when applying for that card. It does not contain my signature and, as such, has nothing to do with me.? 

 

NO credit card agreement has a consumer signature on it.  The courts will not be seeking one as evidence the account is yours, you defaulted, and you owe it.  

 

What should be my next step?

 

Or do I file a Bill of Particulars? If so how? What does it need to say? I need to get this off my chest, I cant sleep at nights thinking about all this please help

 

Study every thread on this forum on CA law and rules of civil procedure for defending a lawsuit.  You can defend this but it takes hours and hours of research to ensure you understand the law and the court rules.  California has some very specific laws on discovery, BOP, RFAs, and ROGs that you must follow along with time lines.  The good news is your debt has been sold more than once and the longer the chain the more difficult it is to prove standing which is where I would concentrate my efforts since they produced 31 statements showing you had an account with WF.

 

If you cannot educate yourself you should seriously consider going to www.naca.net and hiring a consumer attorney to fight this for you.  

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Read homelessinca's thread, read AstMedic's thread, and read string's thread. They are full of information you will need to defend yourself, and understand the rules of the court. You will find a sample letter for a BOP, you can send that off, then when you have questions, come back to this thread and post.

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Read homelessinca's thread, read AstMedic's thread, and read string's thread. They are full of information you will need to defend yourself, and understand the rules of the court. You will find a sample letter for a BOP, you can send that off, then when you have questions, come back to this thread and post

Thank you all for the tips, i tried looking these up but i cant seem to find them, do you think you can send me a link?

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That sample letter is FULL of errors and misinformation and really should be amended or removed from the site.  They did send you evidence they intend to use despite the fact they had no requirement to do so.  Now that they have sued you DV is pointless.  The way you get information now is through proper discovery not a DV letter.

 

"I also attached a validation letter requesting  the fallowing. I filed the GD and the letter and it was mailed out to GCFS Certified mail.  

  1. What the money you say I owe is for;  You know the answer to this:  a defaulted WF credit card
  2. Explain and show me how you calculated what you say I owe;  NOT required unless the court compels it
  3. Provide me with copies of any papers that show I agreed to pay what you say I owe;  The card statements and the CC agreement support this
  4. Provide a verification or copy of any judgment if applicable;  you haven't been to court yet there is no judgment until the case is tried
  5. Identify the original creditor;  They told you this too:  Wells Fargo
  6. Prove the Statute of Limitations has not expired on this account;  when did you make the last payment?  When the account was opened is not relevant when you defaulted is.  The SOL in CA is 4 years.  If you are going to raise that as an affirmative defense you need to figure this out so you can prove it. 
  7. Prove That I  signed any contract with original creditor to barrow debt  On a credit card case they do not have to as there is no signed contract.
  8. Show me any payment history evidence I made from my own bank checking account  The LAST thing you want is them having access to your banking records to prove you opened, used, made payments, then defaulted on this account.  How would they have your banking records anyway?
  9. Show me that you are licensed to collect in my state; and  Since the company name is CA Fin Svcs they are a licensed business
  10. Provide me with your license numbers and Registered Agent."  You can find that on the Secretary of State website if you want it but it isn't relevant for the trial.

 

 

Waste of time.  You do have the right to request validation however, once they have sued you DV won't help or stop the litigation train.  You need to concentrate on defending this lawsuit according to CA laws.

 
 

 

NO credit card agreement has a consumer signature on it.  The courts will not be seeking one as evidence the account is yours, you defaulted, and you owe it.  

 
 

 

Study every thread on this forum on CA law and rules of civil procedure for defending a lawsuit.  You can defend this but it takes hours and hours of research to ensure you understand the law and the court rules.  California has some very specific laws on discovery, BOP, RFAs, and ROGs that you must follow along with time lines.  The good news is your debt has been sold more than once and the longer the chain the more difficult it is to prove standing which is where I would concentrate my efforts since they produced 31 statements showing you had an account with WF.

 

If you cannot educate yourself you should seriously consider going to www.naca.net and hiring a consumer attorney to fight this for you.  

Thanks for the info, i really would like to stop these guys. Do you think you can recommend a few articles or threads i can read to help myself? 

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Thanks Everyone for all the information, i spent all morning reading threw different post and was trying to find the best approach. Correct me if I’m wrong but I think at this point I need to send them a request for production of Documents. Or a BOP. I cant seem to figure out what’s a better approach or what the different is. Keep I mind that they have already sent me a packet with the Wells Fargo Cred Card agreement, affidavit of Debt from WellsFargo to absolute resolution corp, and the affidavit of sales & Balance from absolute resolutions to GCFS.

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Sammy,

 

In light of the information they provided from your Letter, the 32 monthly statements, Card agreement, and Bill of Sale informaiton I would not spend the time on a BOP.  The infromation you have is what they would provide in answering a BOP, actually they seemed to have given you quite alot from an intital letter...

 

It might be a better tact to begin discovery regarding the information you have already recieved.  You mentioned you included affirmative defense with your answer "Lack of Standing".  You have Affidavits around the Bill of Sales, assuming these are generic in that they don't mention your name or the account number for the account.  You might send some RFA (Request for Admissions) about the Bill of Sales.

 

Example:

 

Admit that the Affidavit of Sale from Wells Fargo to Absolute Reserve Corp does not reference the Defendant <enter your name>.

 

Admit that the Affidavit of Sale from Wells Fargo to Absolute Reserve Corp does not reference the account number XXXX XXXX XXXX 1234 that is part of the complaint. 

 

You should be able to get the picture.  See if you can pin them down to areas of Standing that will cause them to question whether they want to continue.

 

If they Admit these then they help you with Standing, if they Deny, then you ask for the documents that support the denial in a  request production of documents or interrogatory.

 

Best of Luck

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Sammy,

 

In light of the information they provided from your Letter, the 32 monthly statements, Card agreement, and Bill of Sale informaiton I would not spend the time on a BOP.  The infromation you have is what they would provide in answering a BOP, actually they seemed to have given you quite alot from an intital letter...

 

It might be a better tact to begin discovery regarding the information you have already recieved.  You mentioned you included affirmative defense with your answer "Lack of Standing".  You have Affidavits around the Bill of Sales, assuming these are generic in that they don't mention your name or the account number for the account.  You might send some RFA (Request for Admissions) about the Bill of Sales.

 

Example:

 

Admit that the Affidavit of Sale from Wells Fargo to Absolute Reserve Corp does not reference the Defendant <enter your name>.

 

Admit that the Affidavit of Sale from Wells Fargo to Absolute Reserve Corp does not reference the account number XXXX XXXX XXXX 1234 that is part of the complaint. 

 

You should be able to get the picture.  See if you can pin them down to areas of Standing that will cause them to question whether they want to continue.

 

If they Admit these then they help you with Standing, if they Deny, then you ask for the documents that support the denial in a  request production of documents or interrogatory.

 

Best of Luck

HI Skippy, I just looked at the Affidavit of sales and they both have my name, account numbers, orginal creditor, and amount listed on both Affidavits of Sales. Do i have any other option?

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That is atypical to have that much specificity from a JDB/Collector, as these debts are purchase in portfolios of 100-1000 accounts at a time.  But then again, they don't typically have 32 months of statements just sitting around either.  The reason being is the bank charges them for the statements...

 

I assume you have checked or know that this debt is inside the SOL, meaning your last payment was with in the last 4 years prior to them filing the suit? Yes or No

 

It might be helpful to scan and post one of the affivdavits so we could see, be sure to black out the personal information.  I would be interested to see the wording.

 

Finally, you might check the Card Agreement and see if it has an arbitration clause.  Wells Fargo used to have one, but there was a claus that stated it would not be affect for California residence being sued for a debt.  Or something to this affect, but lets check to be sure.  Arbitration could be a consideration, although the amount they are suing for is $10K.

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Sent you a PM, it should be at the top.  You can't answer yet until you have 10 posts, I think...But you can read it

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I am new and not proficient with California laws, but the thought occurred to me that the affidavits should be thoroughly examined.  In my own personal experience, a JDB tried to pass off these same kinds of affidavits.  JDB produced these and declared them to be from each successive debt buyer.  The problem was that when we examined their documents, we learned that the people who signed to these affidavits claimed to be employees of each respective JDB, but in truth they all were employees of the JDB that filed the lawsuit.  They were bogus documents, fabricated for trial by the current JDB.  Some debt buyers are notoriously well known for forging or robo-signing documents like these.  I would suggest that you take the time to check every single detail of what they provided.  As skippy1960 brought up, this is unusually complete for a JDB to bring to the table. 

Thanks for the tip, i posted the info and i am hopeing someone will be able to guide me, i reviewd the info but i dont know what is correct or in correct.

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Attached is the copy of the cred card agreement and the affidavit of debt they sent me. Do i have a chance or should i look to settle?attachicon.gifWellsfargo Credit card agreement.pdfattachicon.gifAffidavit of Debt sold.pdf

 

First Sammy, you didn't black out or hide any of the personal information, so you may want to take dow the Affidavits and re-post.

 

You will need to really spend sometime learning the process and procedures of how to defend this suit.  As far as standing to sue is concerned, the first Affidavit has a problem as it doesn't meet California Civil Procedure (CCP) 2015.5.  Out of state affidavits have to include the following: 

 

(B) If executed at any place, within or without this state:

   "I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct":

_____________   _________

   (Date)          (Signature)

 

This first affidavit is missing this and therefore may help you in your Lack of Standing Defense.  If this can be excluded from evidence at the appropriate time then there was never a tranfer of account to GCFS.

 

As you will see the second affidavit doesn't make this mistake, primarily due to being executed in this state.

 

You don't want to let the otherside know this because they might be able to rectify this with a new Affidavit, so don't tip your hand.

 

The key to winning these cases is to find enough little mistakes related to Civil Procedures that force them to quit or force the court to rule in your favor.  Sometimes you get lucky and they make a great big error, but more often than naught it is small issues that add up to real problems.

 

What is the name of the attorney group that is handling the case?  Would be good to know if it is a large Collection Firm or not.

 

Others will likely post upon reivew.  My gut feeling is they sent all this to SCARE you and overwhelm you into backing away from defending after you filed an answer.  Basicly, look at all this you better pack your tent and pay us.  So I still beleive some well worded Request for Admissions and Request or Documents will be in order.

 

Off to work just didn't want to leave you hanging, but calm down you have found a good site to help you.  You will have to do the work, but good informaiton comes from this site....take a deep breath.  As I stated civil justice moves slowly in California, look at your summons the trial date is probably a year away....if it gets this far.

 

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The affidavit you attach shows a transfer from Wells to Absolute.  Do you also have one from Absolute to plaintiff?

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The affidavit you attach shows a transfer from Wells to Absolute.  Do you also have one from Absolute to plaintiff?

HI Calalwer, Thanks for comeing in and helping me out, i attached both of the affidavits posted the second one from the asolute to plaintiff is on the 2nd page. if you dont see it let me know i can repost

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Attached is the copy of the cred card agreement and the affidavit of debt they sent me. Do i have a chance or should i look to settle?

 

As Skippy1960 pointed out, the first affidavit is hearsay and inadmissible for any purpose - as long as you object (ccp 2015.5).  Both affidavits are hearsay and inadmissible at trial - as long as you object (Elkins v. Superior Court).

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Sorry.  Didn't see that there was a page 2.

 

It is going to be very difficult for plaintiff to prove the Wells-Absolute transfer at trial.  They will want to do it with some sort of declaration, but declarations are not admissible at trial unless there is a specific statute that permits it.  They usually try to do this pursuant to CCP 98 but any declaration from plaintiff about a transfer between Wells and Absolute will be objectionable.

 

One thing you might do is ask for the Purchase agreement between absolute and Plaintiff that is referred to in the affidavit of sale.  They won't want to give it to you.  If a Judge orders them to, they will likely dismiss.

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First Sammy, you didn't black out or hide any of the personal information, so you may want to take dow the Affidavits and re-post.

 

You will need to really spend sometime learning the process and procedures of how to defend this suit.  As far as standing to sue is concerned, the first Affidavit has a problem as it doesn't meet California Civil Procedure (CCP) 2015.5.  Out of state affidavits have to include the following: 

 

( B) If executed at any place, within or without this state:

   "I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct":

_____________   _________

   (Date)          (Signature)

 

This first affidavit is missing this and therefore may help you in your Lack of Standing Defense.  If this can be excluded from evidence at the appropriate time then there was never a tranfer of account to GCFS.

 

That’s great news; will i be asking the court to remove this when it is summited as evidence? Is that what other were refer to when they say motion the court to scratch?

 

As you will see the second affidavit doesn't make this mistake, primarily due to being executed in this state.

 

You don't want to let the otherside know this because they might be able to rectify this with a new Affidavit, so don't tip your hand.

 

The key to winning these cases is to find enough little mistakes related to Civil Procedures that force them to quit or force the court to rule in your favor.  Sometimes you get lucky and they make a great big error, but more often than naught it is small issues that add up to real problems.

 

What is the name of the attorney group that is handling the case?  Would be good to know if it is a large Collection Firm or not.

 

The name of the collection firm is The Greater California Financial Services, The legal group is Brington Hushin-klin and Gary A Bemis "legal department of GCFS"

I did some research online and a few people said they are pretty nasty to deal with. I have never heard of them before some im not sure if they are large group of someone smaller.  

 

 

Others will likely post upon reivew.  My gut feeling is they sent all this to SCARE you and overwhelm you into backing away from defending after you filed an answer.  Basicly, look at all this you better pack your tent and pay us.  So I still beleive some well worded Request for Admissions and Request or Documents will be in order.

 

That’s a good idea I  have been read a lot and willing to do what it takes to win this, do I need submit the request of admissions or do I reply to the one they send me (which they haven’t yet)  if I need to send one out where can a find a copy of one that will help me and what points should I be asking them to admit?

 

 

Off to work just didn't want to leave you hanging, but calm down you have found a good site to help you.  You will have to do the work, but good informaiton comes from this site....take a deep breath.  As I stated civil justice moves slowly in California, look at your summons the trial date is probably a year away....if it gets this far.

 

Thanks guys for helping me out, im soo glad people if good hearts and good motives still exist

 

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Sorry.  Didn't see that there was a page 2.

 

It is going to be very difficult for plaintiff to prove the Wells-Absolute transfer at trial.  They will want to do it with some sort of declaration, but declarations are not admissible at trial unless there is a specific statute that permits it.  They usually try to do this pursuant to CCP 98 but any declaration from plaintiff about a transfer between Wells and Absolute will be objectionable.

 

One thing you might do is ask for the Purchase agreement between absolute and Plaintiff that is referred to in the affidavit of sale.  They won't want to give it to you.  If a Judge orders them to, they will likely dismiss.

Thanks for your input, so as things stand now would should be my next step? Should i send them Request for Production of Docs along with a BOP? or should i wait for them to make the next move?

 

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As Skippy1960 pointed out, the first affidavit is hearsay and inadmissible for any purpose - as long as you object (ccp 2015.5).  Both affidavits are hearsay and inadmissible at trial - as long as you object (Elkins v. Superior Court).

Great News when you say i should obejct do i do that in court on the trial date? Or should i file a motion to strike?

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Great News when you say i should obejct do i do that in court on the trial date? Or should i file a motion to strike?

 

Nothing to object to yet, that comes later.  I would serve a request for the production of one document.  Then I would study up, as others have suggested.  Read relevant threads and rules.  You already know that standing and hearsay will be issues - make sure you understand both subjects.

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Nothing to object to yet, that comes later.  I would serve a request for the production of one document.  Then I would study up, as others have suggested.  Read relevant threads and rules.  You already know that standing and hearsay will be issues - make sure you understand both subjects.

Thanks i have been doing a lot of reading i saw a lot of posts that Calawer has commented on a will be working on plan of action asap. I just wanted to make sure i still had a case because most of the people who had a affidavit was arguing points that were not applicable in my case. I will be posting a BOP and request for documents and would welcome comments a feedback J Thanks a million   

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First Sammy, you didn't black out or hide any of the personal information, so you may want to take dow the Affidavits and re-post.

 

 

Just wanted to reiterate what skippy1960 recommended here. @Sammyvill - items you posted have some of your personal info, I'd take them down, redact them, and post back up. I'd advise keeping details vague (money amounts, etc) - precautions to make you less identifiable.

 

Agree with the general consensus here regarding the (lack of) admissibility of those items. The packet you received (generic account agreement, bills/affidavits of sale, account statement) are the typical packets JDBs send to everybody. Read enough threads and you'll see this is standard for the JDBs, nothing special about it.

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