cerulean

CACH in Cali

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1. Who is the named plaintiff in the suit?

CACH

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Mandarich

 

3. How much are you being sued for?

Approx. $10k

 

4. Who is the original creditor? 

Wells Fargo

 

5. How do you know you are being sued?

Served.

 

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

In 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?

Dunning letter, replied with request for validation. No phone conversations.

 

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)

November, 2011.

 

11. What is the SOL on the debt? 

4 years.

 

12. What is the status of your case? 

Served. 

 

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? 

Yes.

 

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

18 days left to answer.

 

15 (continued). We need to know what the "charges" are. 

 

First Cause of Action: Breach of Contract

Second Cause of Action: Account Stated

Third Cause of Action: Open Book Account

 

15 (continued). Please post what they are claiming. 

1: They are the assignee.

2: They are informed of my location and jurisdiction.

3: They are unaware of identities of Does 1 through 10.

4: They believe each defendant was, and is the agent, servant and employee, employer of each of the other defendants.

5: They believe that defendant executed and delivered a credit card application to the original creditor.

6: Prior to the action the account was assigned for value by the original creditor to the plaintiff.

7: Defendant agreed to comply with the terms and conditions and amendments governing the use of the account.

8: Defendant used the credit card and each use reaffirmed the terms of the agreement.

9: Monthly statements were sent to the defendant.

10: Within the last four years the defendant failed to make payments as agreed.

11: Amount owed as of 2014 $xx.

12: Demand made for payment, no payment made, balance and attorney's fees owed.

13. Plaintiff has performed all promises, conditions and agreements on their part.

14. Terms and conditions provide that accountholder reimbursement for expenses related to collection of amounts owing.

15. Defendant has breached the terms and condition of the account by failing to pay.

16. Within the past four years an account was stated in writing.

17. Within the past four years Defendant became indebted to plaintiff for balance on a book account.

18. Plaintiff prays for balance; attorney's fees; cost of suit; other and further relief as the court deems just and proper; all damages in excess of the jurisdictional amount of this court.

19. Declaration of venue.

20. Certificate of assignment to "collections" court department.

21. Civil case cover sheet.

22. Notice of case assignment for all purposes.

 

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

No.

 

16. What evidence did they send with the summons? 

No evidence or exhibits provided with summons.
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Can I answer with a general denial? I don't see a separate affidavit verification of the claim.  The "Declaration of Venue" document has a statement at the end that says "I declare under penalty of perjury . . . that the foregoing is true . . .", and is signed by a lawyer, but I think that only applies to the question of jurisdiction, or is that the verification of the claim?

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Because the first cause of action is Breach of Contract I intend to send a Bill of Particulars. Can that be sent by Certified Mail Registered Return Receipt, or do I need a formal Proof of Service by Mail for that?

 

 

Welcome.

 

It is best to do a proof of service for all discovery requests and responses.

 

If the complaint is not verified you can use a general denial.

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Welcome,

 

Since you are being sued also for a book account #17, send them a BOP (Bills of Particular) on pleading paper. This does not get filed with the courts.

 

You came to the right place for help.

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Sorry, i tried sending it on the best format but still got all screwed up. i would attach the format i used but i cant figure out how to attach files in here yet?

 

remember that BOP needs to be in a Pleading paper format.

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It is best to do a proof of service for all discovery requests and responses.

 

 

Just a stupid procedural question, but I'm still new to this, and the Proof of Service by Mail is a little confusing.

 

As I understand it, after reading the official instructions, the Proof of Service by Mail form (POS-030) is only for documents filed with the court and accompanies those documents in the filing, such as the Answer to the Complaint.

 

However, Discovery requests and responses are not filed with the court.

 

So my question is, what do I do with the signed Proof of Service by Mail form filled out for the Discovery requests and responses? Do I file the Proof of Service form with the court by itself? That doesn't make any sense. Or, do I just hold on to it in case the documents are filed with the court later on?

 

The Proof of Service by Mail also doesn't provide any tracking of the mail to show it was actually delivered, so should I also CMRRR the Discovery requests and responses too? 

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I received a reply to my Demand for Bill of Particulars (have not received anything else from plaintiff).

 

Plaintiff sent the following:
 
1. Two copies of a Bill of Sale for a bundle of charged-off accounts from Wells Fargo to CACH, one copy signed by a Wells Fargo executive, and one copy signed by a CACH executive. 
 
2. Redacted Account List for the Bill of Sale consisting of 8 pages with a single line of data on each page referring to the alleged account.
 
3. Signed Credit Card Account Application with a hand-written account number for the alleged account that was not on the application when originally signed. 
 
4. Terms and Conditions for a Wells Fargo credit card for the same year as the Application.
 
 
Plaintiff did NOT send the following that I requested:
 
* date of each transaction on the alleged account; 
* a description of the services, materials or goods supplied or other considerations rendered; 
* the price or charge made for each item; 
* all payments or credits that have been made to the account; 
* a detailed account of how plaintiff calculated the amount owed; 
* the "Agreement" assigning the account at issue to the Plaintiff.
 
 
. . . . . . . . . . . . . . . 
 
 
My name is not on the Bill of Sale, nor is the alleged account number. The Bill of Sale states that it is pursuant to a "Flow Agreement" and sold without recourse except as provided by a specific Section of the "Agreement." 
 
Except for the later addition of the hand-written account number on the Credit Card Application, no other specific credit account number information is on the Application. I have had at least six credit accounts with Wells Fargo throughout my life, and currently have two active Visa cards with them in good standing, so I can't tell exactly which account this application was actually for and don't trust the hand-written numbers.
 
Need advise on how to proceed from here. All I've done so far is file my Answer to the Complaint and send the Demand for Bill of Particulars.
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Consider a request for production of the Flow Agreement

I did ask for it in the Bill of Particulars, but intend to ask for it again when I send the Request for Production.

 

How do I respond to what they did send already, and the things they didn't send?

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I did ask for it in the Bill of Particulars, but intend to ask for it again when I send the Request for Production.

 

How do I respond to what they did send already, and the things they didn't send?

 

i read your post #16 stating what they answer and what they did not answer to your BOP, and i did not see that you requested the "Flow Agreement" maybe you can post the exact words that you used on your request?

 

have you received any RFP, request for Admissions or Special interrogatories from Plaintiff?

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I did ask for it in the Bill of Particulars, but intend to ask for it again when I send the Request for Production.

 

How do I respond to what they did send already, and the things they didn't send?

 

You've probably received everything you're going to get from the BOP request.  You could motion to compel a more complete response, but I'd suggest moving on to the next phase: a request for the production of one document.

 

IMO, the BOP has served its purpose. You have the basis for requesting the "Flow Agreement," and the deficiencies in their response can be useful in dealing with any discovery you receive from them.

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Thanks for the replies.

 

i read your post #16 stating what they answer and what they did not answer to your BOP, and i did not see that you requested the "Flow Agreement" maybe you can post the exact words that you used on your request?

 

In my BOP I asked for ". . . and any agreement assigning the account at issue to the Plaintiff."  I had seen the Bill of Sale before during the Verification process before the case was filed. The Bill of Sale says ". . . pursuant to that certain Flow Agreement for the Purchase and Sale of Charged-Off Accounts ("Agreement") . . ." so I just called it "Agreement." Next time I request it I'll specifically ask for the "Flow Agreement" and all the terms and conditions contained therein.

 

 

have you received any RFP, request for Admissions or Special interrogatories from Plaintiff?

 
None yet.
 

You've probably received everything you're going to get from the BOP request.  You could motion to compel a more complete response, but I'd suggest moving on to the next phase: a request for the production of one document.

 

IMO, the BOP has served its purpose. You have the basis for requesting the "Flow Agreement," and the deficiencies in their response can be useful in dealing with any discovery you receive from them.

 

So, since they didn't provide a full accounting in the BOP are they now precluded from admitting any evidence establishing the amount of the alleged debt? Or should I pursue it further to show due diligence in the eyes of the judge?

 

I feel like I'm missing something here. Aren't I supposed to object to the Bill of Sale as irrelevant or something? Won't it be admitted as evidence if I don't object? They called everything they sent "Exhibit A" and said it is the account. How do I shoot it down? Or does all the objecting come later? 

 

Sorry for all the lame questions, but this is all new to me and still learning the procedures.

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So, since they didn't provide a full accounting in the BOP are they now precluded from admitting any evidence establishing the amount of the alleged debt? Or should I pursue it further to show due diligence in the eyes of the judge?

 

No, not precluded.  Your diligence is fine and anything you want to pursue can be done thru discovery.  That said, you certainly can motion to compel a more complete response to the BOP, I just think you'll get more mileage at this point from request(s) for production.  Whatever you decide, you'll get help here if you ask.

 

Aren't I supposed to object to the Bill of Sale as irrelevant or something? Won't it be admitted as evidence if I don't object? They called everything they sent "Exhibit A" and said it is the account. How do I shoot it down? Or does all the objecting come later?

 

Good questions.  You should object to nearly EVERYTHING, but at the right time.  Not yet.  Read up on threads by astmedic, homelessincalifornia, and others from California for a good primer on the process and timing.

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Thanks for the replies.

 

 

In my BOP I asked for ". . . and any agreement assigning the account at issue to the Plaintiff."  I had seen the Bill of Sale before during the Verification process before the case was filed. The Bill of Sale says ". . . pursuant to that certain Flow Agreement for the Purchase and Sale of Charged-Off Accounts ("Agreement") . . ." so I just called it "Agreement." Next time I request it I'll specifically ask for the "Flow Agreement" and all the terms and conditions contained therein.

 

 

It is my understanding that you must request it exactly as it it called in the Bill of Sale. you can request it in your RFD.

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Cerulean,

 

Welcome...well you can do 1 of 2 things...you can hold off filing a MTC BOP and move to start the RFP process. In which case, once you start that JDB will assume you are no longer interested in the BOP request since you started the discovery process. Once you start the discovery process the clock starts ticking for the JDB because they have 35 days in which to answer (that includes mailing). Soon after you send the RFP request send a meet and confer letter with regards to an insufficient response to your BOP request. Remember they think you have stopped pursuing the BOP process because you began the RFP process. At the end of the RFP process and hopefully you have timed your meet and confer letter you can state in the meet and confer you will file a MTC BOP and make sure you get a MTC BOP calendared at least 20 days out from the date you give the JDB to respond to your BOP.  Do you see the strategy here...you will keep them so busy they will lose track and will miss a deadline. I did that with my case that they dismissed within 4 mos. It was against Midland. Anon did the same thing...so strategize and put everything on a big calendar so you can see the WHOLE picture.

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