CACH in Cali

[cerulean 7]

Thanks for explaining that strategy, helpme.

 

I'm not sure if I would do it exactly that way again; but it did drive the lawyer nuts.

 

What would you do different?

[Anon Amos 2,247]

Thanks for explaining that strategy, helpme.

 

 

What would you do different?

Actually Helpme's method is very good and worked well for me too. I probably would go that way again (after thinking about it), because going thru the MTC BOP is good experience to prepare you for more critical  motions and / or appearances that may be coming, and it gets discovery started right away.

 

Another method is to send a meet and confer letter  asking for a further response to the BOP in 10 days or you will ask the court to intervene. After 10 days with no response you file a "motion to compel further response to the BOP, or in its alternative to preclude further evidence at trial".

See what happens with the motion; and then start discovery RFP's.

 

You could also just abandon the BOP altogether and go with the RFP's and then a MTC on them as mentioned. A lot of the documents being discussed here would have to be requested with the RFP's and not a BOP anyway (such as the "forward flow").

 

As they say "there's more than one way to skin a cat".

[Anon Amos 2,247]

  Read up on threads by astmedic, homelessincalifornia, and others from California for a good primer on the process and timing.

 

Read the String thread as well, it is amongst the best; I don't call him 1stString for nothing.

[cerulean 7]

Thanks for the various strategy suggestions.

 

Read those threads a couple months ago, so now going to reread them, there's quite a bit of stuff to wrap my head around.

[Sammyvill 10]

@cerulean

 

Did you already file the general denial like you recommended to do? I’m sorry if I missed that somewhere in the post if it was already mentioned but make sure you don’t get caught up with formality and forget the basics. J

[Xenophon 45]

@cerulean

 

Did you already file the general denial like you recommended to do? I’m sorry if I missed that somewhere in the post if it was already mentioned but make sure you don’t get caught up with formality and forget the basics. J

 

good question, we all jumped into the BOP subject. hope he did filed a general denial. :/

[cerulean 7]

Yes, I filed the General Denial about a week before the BOP and used a form from the court that had a check box at the bottom where the Defendant can pray the Plaintiff gets nothing and Plaintiff pays for costs of court. 

[cerulean 7]

Received Special Interrrogatories, Request for Admissions, and Request for Production of Documents in the mail Saturday from the Plaintiff.

 

Special Interrrogatories:

 

1. State all facts upon which YOU base YOUR contention that YOU owe nothing on the ACCOUNT.

 

2. Describe each document that YOU believe supports YOUR contention that YOU owe nothing on the ACCOUNT. 

 

3. State all facts upon which YOU base YOUR contention that YOU owe less than the amount prayed for in Plaintiff's Complaint on the ACCOUNT. 

 

4. Describe each document that YOU believe supports YOUR contention that YOU owe less than the amount prayed for in Plaintiff's Complaint on the ACCOUNT.

 

5. State each of YOUR affirmative defenses.

 

6. State all facts upon which YOU base YOUR affirmative defense(s).

 

7. State each mailing address, if different from YOUR residence addresses, for the last ten years.

 

8. State all facts regarding payments made on the ACCOUNT.

 

9. Describe each document evidencing payments made on the ACCOUNT.

 

10. If YOU have ever been married, state the name of YOUR spouse(s).

 

11. State all details regarding the length of YOUR marriage(s).

 

 

 

Request for Admissions:

 

1. Admit that ORIGINAL CREDITOR issued YOU the ACCOUNT.

 

2. Admit that YOU used said ACCOUNT.

 

3. Admit that YOU and ORIGINAL CREDITOR entered into an agreement regarding the ACCOUNT.

 

4. Admit that YOU agreed to pay ORIGINAL CREDITOR and its successor sand assigned all outstanding balances owed on the ACCOUNT.

 

5. Admit that ORIGINAL CREDITOR mailed monthly statements to YOU regarding YOUR ACCOUNT.

 

6. Admit that you received a final statement on or around 12/06/2012 from ORIGINAL CREDITOR with an outstanding balance of $11143.61.

 

7. Admit that YOU never disputed, with any person or entity including the ORIGINAL CREDITOR with an outstanding balance of $11143.61.

 

8. Admit that YOU have not paid the outstanding balance on said ACCOUNT.

 

9. Admit that YOU owe the plaintiff the amounts prayed for in the Complaint.

 

10. Admit that yOU have no facts which would vary the amounts owed to Plaintiff.

 

11. Admit that YOU have no affirmative defenses against the Plaintiff's Complaint.

 

 

Request for Production of Documents:

 

1. Copies of any and all DOCUMENTS between YOU and ORIGINAL CREDITOR relating to the ACCOUNT.

 

2. Copies of any and all DOCUMENTS between YOU and Plaintiff relating to the ACCOUNT.

 

3. Copies of any DOCUMENTS evidencing any payments made to ORIGINAL CREDITOR on said ACCOUNT.

 

4. Copies of any and all DOCUMENTS that support the affirmative defenses raised by YOU in this action.

 

5. Copies of all DOCUMENTS from YOU regarding false or factually incorrect claims or statements that YOU believe were made to various credit reporting bureaus or services about YOUR ACCOUNT.

 

6. Copies of all DOCUMENTS that support YOUR contention YOU do not owe the amount claimed in the complaint on file in this lawsuit.

 

 

= = = = = = = = = = = = = = =

 

 

I have 30 days from Saturday to answer. How do I answer each of these?

[RyanEX 899]

General philosophy: give them nothing, deny everything.

 

First priority, check the proof of service for the date they sent you the requests. Your timeline begins when they served it (sent it), not when you received it. You get 30 days plus 5 days (since they mailed it) to serve your response (place your response in the mail). Mark that date on your calender. Don't be late, get them in a little early if possible. Plaintiffs will try to get the judge to deem their admissions requests as ADMITTED if you are late/don't respond. A person could be pretty screwed if that happened.

 

Check some threads and you'll see how people are answering them. Other CACH threads are very usefull, different JDBs tend to have different styles of requests, but within the same JDB they tend to use the same requests (practically word for word) with all the people they sue. Chances are your same requests have been posted before and good answers have been posted & vetted as well.
 

 

You'll respond on pleading paper, same way they formatted the requests.

 

Check out the California CCP on answering Rogs, Admissions and RFDs. It has format the code says you should use when answering. Some people don't stick to it, my feeling is if you format your answers to the CCP rule, then you leave the JDB with little/nothing to come back at you with regarding unsatisfactory answers, motions to compel, etc.

 

http://www.leginfo.ca.gov/.html/ccp_table_of_contents.html

 

Answering Requests for Production of Documents: CCP 2031.210 - 2031-.320

Answering Interrogatories: CCP 2030.210 - 2030.310

Answering Requests for Admissions: CCP 2033.210 - 2033.300

 

example:

2031.230. A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

 

So when I responded to doc requests, I used "Defendant has conducted a diligent search and reasonable inquiry and is currently unable to comply with this demand because such documents have never been in the possession, custody, or control of Responding Party."

 

My thread: http://www.creditinfocenter.com/community/topic/320392-midland-suing-me-gearing-up-for-the-fight/. I start getting into the requests for Docs, Rogs and Admissions around post #50, and into the discussion involving format around post #57.

[cerulean 7]

Thanks RyanEX, I hadn't seen your thread before, so will read it now.

[RyanEX 899]

Mine is kinda sparse, but that series of exchanges regarding how to answer discovery is one section that is useful, I think.

[calawyer 1,849]

Plaintiff will be required to respond to your BOP before you will have to respond to this discovery.  Plaintiff will probably object.  That will, in turn, give YOU a nice objection to use in responding.  See 1111girl's thread.

[cerulean 7]

Hi calawyer,

 

The plaintiff already did respond to the BOP within the ten-day period, but they only sent a Bill of Sale, redacted account listing, credit application and terms. They simply ignored the other requests in the BOP and didn't list any objections. Contemplating my next move on the BOP.

[calawyer 1,849]

So they are asking you a whole bunch of questions about the account and they have not given you the account statements?

[cerulean 7]

Correct, no account statements from the Plaintiff.

[helpme 175]

Plaintiff will be required to respond to your BOP before you will have to respond to this discovery.  Plaintiff will probably object.  That will, in turn, give YOU a nice objection to use in responding.  See 1111girl's thread.

Cerulean,

 

In addition to 1111girls thread look at momof3 or momof5, she too was against Cach around the same time 1111girl was fighting and used 1111girls as a template so if you need variety look at the other thread.

[calawyer 1,849]

Correct, no account statements from the Plaintiff.

   Consider the following for all of the requests that ask about the account:

 

Defendant objects to this Interrogatory on the ground that the word "Account" is vague and ambiguous in the context of this litigation. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and plaintiff has refused to produce a single account statement in response to defendant's Bills of Particulars seeking such factual information. Defendant reserves the right to supplement her/his response to this interrogatory should plaintiff comply with its obligations under the code.

[cerulean 7]

Perfect, I was trying to think of a way to tie the deficient BOP response to the Plaintiff's requests and sounds like this works. Thanks.

[cerulean 7]

Received some responses.

 

= = = = = = = = = = = = = = 

 

Responses from Plaintiff to Defendant's Request for Documents:

 

I requested only two documents: the Flow Agreement, which I referenced exactly as it was worded and dated on their Bill of Sale; and the actual business record of the "List of Accounts" attached to the Flow Agreement, which I also referenced exactly as it was worded and numbered on their Bill of Sale.

 

First they list a bunch of generic objections, but one that really caught my eye is that they say the request seeks documents that are "not in the possession, custody, or control of Plaintiff." Huh? How can they own the debt if they don't posess the Flow Agreement and the List of Accounts? I suspect that they may have copied and pasted that response from a different case and didn't bother reading what they wrote.

 

On the specific requests they start the objections by saying that the requests are "overly broad, unduly burdensome, vague, and ambiguous" even though I reference the specific documents exactly as they were worded in their Bill of Sale. 

 

Then they claim the documents are "trade secret" and "confidential and proprietary" and they attached a "privilege log." Well that doesn't make any sense if they don't even possess the documents like they said in their general objection a couple paragraphs earlier in the response. 

 

In the "privilege log" they cite Evidence Code 1060 which allows "trade secrets" not being admitted as evidence "unless its allowance would tend to conceal fraud or work an injustice." Then they say the reason it's secret is because they don't want competitors to see how much they paid for the account. I'm not interested in how much they paid, they can redact that, I'm interested in what the terms and conditions say about the sale so that I can determine if they are concealing fraud or working an injustice.

 

What's my next move?

 

 

= = = = = = = = = = = = = = = 

 

 

Responses from Plaintiff to Defendant's Meet and Confer letter for insufficient Bill of Particulars.

 

They cite Coffee v. Williams, 103 Cal. 550,562 (Cal. 1894) for reason not to provide a full accounting of items for an Open Account cause of action.

 

They cite Burton v. Santa Barbara Nat'l Band (1966, Cal. App. 2d Dist.) 247 Cal. App. 2d. 427, 432 and Butler Bros. v. Connolly, 204 Cal. App. 2d 22, 24 (Cal.  App. 4th Dist. 1962)  to state that the reason for a Bill of Particulars is to protect the Defendant against surprise. They say that there are no surprises because the documents they have supplied so far establish their case and there are no more surprises. Well, let me tell you, this Defendant is absolutely surprised that Plaintiff would attempt to litigate using irrelevant and hearsay evidence. 

 

For the Breach of Contract cause of action they cite Distefano v. Hall, 218 Cal. App 2d 657, 677 (Cal. App. 2nd Dist. 1963) and Ahlbin v. Crescent Coml. Corp., 100 Cal. App 2d 646) saying the Bill of Particulars is not applicable because they are seeking the principal balance at time of charge-off, not recoverable individual items. They cite a similar case in Washington Kelly v. Hinkhouse 108 Wash. 93. They also cite Auzerais v. Naglee *1887) 74 Cal. 60, 64-64 for a reason not to produce a Bill of Pariculars because all the charges were merged into a single debt.

 

What's my next move.

[credit2011 105]

 

Received some responses.

 

= = = = = = = = = = = = = = 

 

Responses from Plaintiff to Defendant's Request for Documents:

 

I requested only two documents: the Flow Agreement, which I referenced exactly as it was worded and dated on their Bill of Sale; and the actual business record of the "List of Accounts" attached to the Flow Agreement, which I also referenced exactly as it was worded and numbered on their Bill of Sale.

 

First they list a bunch of generic objections, but one that really caught my eye is that they say the request seeks documents that are "not in the possession, custody, or control of Plaintiff." Huh? How can they own the debt if they don't posess the Flow Agreement and the List of Accounts? I suspect that they may have copied and pasted that response from a different case and didn't bother reading what they wrote.

 

On the specific requests they start the objections by saying that the requests are "overly broad, unduly burdensome, vague, and ambiguous" even though I reference the specific documents exactly as they were worded in their Bill of Sale. 

 

Then they claim the documents are "trade secret" and "confidential and proprietary" and they attached a "privilege log." Well that doesn't make any sense if they don't even possess the documents like they said in their general objection a couple paragraphs earlier in the response. 

 

In the "privilege log" they cite Evidence Code 1060 which allows "trade secrets" not being admitted as evidence "unless its allowance would tend to conceal fraud or work an injustice." Then they say the reason it's secret is because they don't want competitors to see how much they paid for the account. I'm not interested in how much they paid, they can redact that, I'm interested in what the terms and conditions say about the sale so that I can determine if they are concealing fraud or working an injustice.

 

What's my next move?

 

 

= = = = = = = = = = = = = = = 

 

 

Responses from Plaintiff to Defendant's Meet and Confer letter for insufficient Bill of Particulars.

 

They cite Coffee v. Williams, 103 Cal. 550,562 (Cal. 1894) for reason not to provide a full accounting of items for an Open Account cause of action.

 

They cite Burton v. Santa Barbara Nat'l Band (1966, Cal. App. 2d Dist.) 247 Cal. App. 2d. 427, 432 and Butler Bros. v. Connolly, 204 Cal. App. 2d 22, 24 (Cal.  App. 4th Dist. 1962)  to state that the reason for a Bill of Particulars is to protect the Defendant against surprise. They say that there are no surprises because the documents they have supplied so far establish their case and there are no more surprises. Well, let me tell you, this Defendant is absolutely surprised that Plaintiff would attempt to litigate using irrelevant and hearsay evidence. 

 

For the Breach of Contract cause of action they cite Distefano v. Hall, 218 Cal. App 2d 657, 677 (Cal. App. 2nd Dist. 1963) and Ahlbin v. Crescent Coml. Corp., 100 Cal. App 2d 646) saying the Bill of Particulars is not applicable because they are seeking the principal balance at time of charge-off, not recoverable individual items. They cite a similar case in Washington Kelly v. Hinkhouse 108 Wash. 93. They also cite Auzerais v. Naglee *1887) 74 Cal. 60, 64-64 for a reason not to produce a Bill of Pariculars because all the charges were merged into a single debt.

 

What's my next move.

 

I have the same issues in another case- Looks like you need to file a M&C if you have not already  and a Motion To Compel after that.AnonAmos and Calawyer are well versed on the procedure.

[Seadragon 840]

Received some responses.

 

= = = = = = = = = = = = = = 

 

Responses from Plaintiff to Defendant's Request for Documents:

 

I requested only two documents: the Flow Agreement, which I referenced exactly as it was worded and dated on their Bill of Sale; and the actual business record of the "List of Accounts" attached to the Flow Agreement, which I also referenced exactly as it was worded and numbered on their Bill of Sale.

 

First they list a bunch of generic objections, but one that really caught my eye is that they say the request seeks documents that are "not in the possession, custody, or control of Plaintiff." Huh? How can they own the debt if they don't posess the Flow Agreement and the List of Accounts? I suspect that they may have copied and pasted that response from a different case and didn't bother reading what they wrote.

 

On the specific requests they start the objections by saying that the requests are "overly broad, unduly burdensome, vague, and ambiguous" even though I reference the specific documents exactly as they were worded in their Bill of Sale. 

 

Then they claim the documents are "trade secret" and "confidential and proprietary" and they attached a "privilege log." Well that doesn't make any sense if they don't even possess the documents like they said in their general objection a couple paragraphs earlier in the response. 

 

In the "privilege log" they cite Evidence Code 1060 which allows "trade secrets" not being admitted as evidence "unless its allowance would tend to conceal fraud or work an injustice." Then they say the reason it's secret is because they don't want competitors to see how much they paid for the account. I'm not interested in how much they paid, they can redact that, I'm interested in what the terms and conditions say about the sale so that I can determine if they are concealing fraud or working an injustice.

 

What's my next move?

 

 

= = = = = = = = = = = = = = = 

 

 

Responses from Plaintiff to Defendant's Meet and Confer letter for insufficient Bill of Particulars.

 

They cite Coffee v. Williams, 103 Cal. 550,562 (Cal. 1894) for reason not to provide a full accounting of items for an Open Account cause of action.

 

They cite Burton v. Santa Barbara Nat'l Band (1966, Cal. App. 2d Dist.) 247 Cal. App. 2d. 427, 432 and Butler Bros. v. Connolly, 204 Cal. App. 2d 22, 24 (Cal.  App. 4th Dist. 1962)  to state that the reason for a Bill of Particulars is to protect the Defendant against surprise. They say that there are no surprises because the documents they have supplied so far establish their case and there are no more surprises. Well, let me tell you, this Defendant is absolutely surprised that Plaintiff would attempt to litigate using irrelevant and hearsay evidence. 

 

For the Breach of Contract cause of action they cite Distefano v. Hall, 218 Cal. App 2d 657, 677 (Cal. App. 2nd Dist. 1963) and Ahlbin v. Crescent Coml. Corp., 100 Cal. App 2d 646) saying the Bill of Particulars is not applicable because they are seeking the principal balance at time of charge-off, not recoverable individual items. They cite a similar case in Washington Kelly v. Hinkhouse 108 Wash. 93. They also cite Auzerais v. Naglee *1887) 74 Cal. 60, 64-64 for a reason not to produce a Bill of Pariculars because all the charges were merged into a single debt.

 

What's my next move.

 

As for the discovery, a motion to compel will show the are using the trade secret priviledge to cover the fact they have no basis to rely on the records. In camera review would show that the forward flow shows quite a different song than they are singing.

 

Motion to preclude giving of evidence

redacted Motion to preclude 1.doc

 

Some other things to possibly help along the way.

Bill of Particulars.doc

Effective_Oppositions_to_Motions_for_Summary_Judgment.pdf

REDACTED memofmotion of new trial.doc

a good motion in limine.pdf

Redacted motion to vacate SJ.doc

redacted Notice of motion in limine.zip

redacted jdb motion to stay execution of judgment.zip

 

I find this interesting the most from the outline.

 

Pg. 2 line4-7 Their response was unambigous and they refused to respond any other meeting and conferring would heve been futile, and would have delayed further the case. their reliance on Distefano is misplaced because their pleading of opposing causes of action the Breach of Contract, a tort claim, and an Alleged Account stated, a common count are in direct opposition to each other. To plead a tort claim the plaintiff has to drop all other causes of action based on common law claims. It is for this reason that a Bill of particulars is applicable to breach of Contract claims based on an alleged account. Plaintiffs cannot use the Account stated, which is not applicable to Credit Card Accounts, to block the producing the Bill of Particulars.

outline to crush distefano.txt

[cerulean 7]

Thank you for the documents, Seadragon.

[Seadragon 840]

Sorry about the document dump but better to have than not.

[calawyer 1,849]

Cerulean,

 

In addition to 1111girls thread look at momof3 or momof5, she too was against Cach around the same time 1111girl was fighting and used 1111girls as a template so if you need variety look at the other thread.

 

 

Good suggestion.  I remember that.  I think we tweaked it a little bit and it came out nicely.

[Seadragon 840]

It is nice to have a good selection of clubs in our "golf bag".