kawikaweston

Fighting a lawsuit filed by Persolve ...

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First of all I have to say this forum has been a Godsend ... This site has helped me every step of the way!

 

This morning I filed my answer at Superior Court. Shortly before I filed, the status on my case according to the online website read "Open - Initial Filing". When I got home, I checked the website to see that my answer was filed and I spent the rest of the day working on my discovery. This evening I happened to check the website again and this time the Status read "Vacate - Vacated" ... What does that mean? I also have a Case Event Schedule entry for February 2015.

 

I can't tell if vacate/vacated is good, bad or indifferent?!

 

Thanks again! 

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If there was an Order to Show Cause hearing for failing to serve, then it will be vacated once you file an answer.

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Deep, cleansing breaths.

YOU are at the helm, guiding toward the shores of VICTORY!

Multitudes of supportive friends, experienced peers, and expert professionals are surrounding you, ready to help at your beck & call - or, PM & thread query here, on-site.

To answer your questions, from my perspective, as a peer a scant month ahead of you in this process, (and it IS as much a measured step-by-step process as

following a recipe, or, a schematic. There is very little "mystery" to these proceedings, and, fortunately, many who have gone through this before us have posted their step-by-step chronologically ordered experiences.

So, you can view uploads of paperwork from real cases, like yours.

And, perhaps even more wonderful, you can view not only various defendants' answers, but the outcomes for those cases.

All in all, a lovely place to find for yourself in times like these!)

1.) In your instance, "Vacate" would appear to me to mean there was an Order of the Court to show < whatever Honorable Judge so ordered>, and, having been

complied, said order is now vacated. No worries.

2.) Yes. Do your very best; request review here, on-site, of your final draft a few days before your deadline; and, use a Proof of Service for everything, keeping copies / originals / receipts / tracking numbers...

BEST ADVICE: GET (2) 2" to 3" BINDERS, one for Plaintiff, the other for Defendant, and put each item into each appropriate binder, keeping the Table of Contents updated for each, and, working ahead on yellow, or pastel colored paper, to distinguish it as a draft, for your ever-growing armory of objections, citations of case law, etc...

A month, or so, ago I was as anxious and insecure about my ability to overcome

this daunting challenge, but, look at me now! I am typing like a pro, my papers in order, my answer & BOP filed, my knock 'em out answers to their boilerplate / pathetic (3) packets totalling 28 questions to answer: completed!

Stick around, ask questions, read-Read-READ, and, to paraphrase latenight TV,

"You, too, can be a..... (millionaire?), maybe - but, confident, well-prepared & competent defendant of your own case, either defending in propria persona, AKA in pro per, or, as some prefer, in pro se. Or, helping a Consumer Law attorney advocate for you, perhaps even cross-complaining and acquiring monetary sanctions from your plaintiff / complaintant.

Which way you go is up to you, but being here and filing your answer / response to plaintiff's summons / complaint has already cleared your path and elevated your case to the rarified 95th percentile.

Keep up the great work!

You are already mastering your life's course through this better than 95 out of every 100 defendants!

Warmly,

And, above all else,

Don't Panic!

(((Supportive Hugs, if wanted)))

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Your case has not been vacated at all - it is still alive.

 

 

Send a BOP if you have not done so at this time. Also, prep interrogatories and requests for admission.

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That's right!

Get - and STAY! - proactive all over this!

The vast majority of the junk debt buyer, (JDB), cases are won, not on merit, but by the default of the consumer.

Get all Santa-y! Set up, and, MAINTAIN! - your case calendar, you know, a list of what was sent / filed, received, etc... Make that list and check it twice, daily! Minimally. Once, to start your day's to-do list, and at day's end, to log entries for what came in the day's mail, etc.

You are rocking your case like a champion right now! Stay the course!

Warmly,

Mailing BOP today.

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Welcome.

 

An OSC is short for an "Order to Show Cause" (why someone should not be held in contempt).  Sounds horrible, but in these cases it is merely a way for the court to get someone's attention.

 

Lucky for you it is plaintiff's attention they were thinking might be necessary.  In these types of cases, sometimes plaintiffs file the lawsuit and then figure they will serve the defendant when they get around to it.  The problem used to be so bad that cases would hang around for years before the defendant was served.

 

So the Court instituted some programs designed to speed things up.  One is a tickler for 3 months or so after the complaint has been filed to consider sending Plaintiff an OSC if service has not been accomplished and the proof filed with the Court.  In some Courts, they actually calendar an OSC hearing on the date that the complaint is filed just in case it is necessary.

 

Can't really tell without looking at the docket, but it sounds like in your case, when you answered, that no longer was necessary and the date was vacated.

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I have another question ... Persolve filed three causes of action against me ...

 

1. Open Book Account

2. Money Lent

3. Account Stated

 

I guess it's common for JDB to throw out all three to see which one sticks ... In any event, I have been reading on-line that Account Stated Causes of Action are difficult ones to defend against because you essentially don't need a contract - Persolve filed their complaint two days before the SOL ran out (those bast**ds) however it looks like I can still use the SOL as a defense based on the following California Civil Code 337. 2. (3) ... however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item. Unlike an Open Book Account where the SOL begins with your last payment, this looks like it begins after your last purchase which was months before the account went into default ... Am I on the right track or am I totally off?

 

Thanks!

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I guess the above defense wouldn't work because I would have to prove when the last transaction was which means I would have to provide a statement which would tell the Plaintiff I owed the debt ...

 

Here is something else I found:

  • The most common way to defeat an action for account stated is to show that the debt claimed is new, i.e., that there was no prior course of dealing between the parties or, at best, only a very short period with very few transactions. Therefore, the contract AND the statement of account are required (proof of the length of the debt).

Any ides how I should take this approach?

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In response to the BOP you just mailed out this week, you may, like me, receive few answers, but a boatload of old statements from the alleged account.

So, my best advice is not to worry about needing copies of alleged account statements. Instead, I would be stockpiling case law, objections, and Meet and Confer letter templates to use as-is, or do as you feel is best.

Besides, it is the plaintiff who bears the burden of proving their allegations against you in the summons / complaint. Just keep your relentless push-Push-PUSH against them, demanding substantiation of their allegations.

That seems to be the simple, and proven, method to attain victory in these cases.

All the other convoluted & complicated maneuverings may entertain on TV, but I would beware of them as it is all too easy to get caught up and entangled in a snare of one's own making.

For sure, I would leave the high jinxing to the expert attorneys of consumer law, if need-be.

Just my peer-to-peer commentary. I hope it helps.

Warmly,

I guess the above defense wouldn't work because I would have to prove when the last transaction was which means I would have to provide a statement which would tell the Plaintiff I owed the debt ...

 

Here is something else I found:

  • The most common way to defeat an action for account stated is to show that the debt claimed is new, i.e., that there was no prior course of dealing between the parties or, at best, only a very short period with very few transactions. Therefore, the contract AND the statement of account are required (proof of the length of the debt).
Any ides how I should take this approach?

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@kawikaweston

HelpGreg ... Thank you! That helps a lot!!

Great!

So, now that you have mailed out the BOP,

___mark your case flow calendar with both the date mailed and the final date of the waiting-for-response period

___keep an eye out for your green postcard, if you went that route, or, check online with your tracking number, if you used USPS Priority Mail. Log the date of receipt on your case calendar. Print a screenshot if tracking via USPS. File screenshot in case binder.

___Research 2nd BOP Request exemplars and have your own ready to mail, in the likely event it is appropriate to so do. (I will post a glorious example, received from victorious helpme, via PM, yesterday, at the end of this message - or immediately following thisbmessage, better said.)

___Take a moment to fill-out your numbered pleading paper, page one, with the usual entries and save it as a time-saving template. Do the same for your post-BOP POS030 forms.

___Gather examples of excellent answers to Plaintiff's Discovery, Set One, questions, sent as (3) packets on numbered pleading paper, and similarly responded to.

___Prepare your draft discovery responses and share them for peer review. Edit, if necessary for best results.

___Gather examples of excellent questions to send to Plaintiff. Use Plaintiff's BOP response to help determine your questions.

___Read ravenously, stockpiling objects, case law, procedural timelines and all else as you go.

___Practice everything on HomelessInCa's Crib Notes, on his thread, (page 6?), until all on it are 2nd nature.

___Check the court's uploads on your case, daily - you never know what will be there.

___I am sure I forgot something else for the to-do list at this juncture... Anyone?

Above all else, neither procrastinate, nor panic.

Stay the course and it will be receeding behind you, no longer looming larger than life, ahead.

Many have gone before us, won, and kindly shown generous compassion by sharing each step they took toward their well-deserved victories. Gain techniques and confidence by reading their threads, and asking them questions.

That's my best peer-to-peer advice for you, today.

Warmly,

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Here is my defense regarding the Third Cause of Action ... Am I on the right track? What do I do with this now? File an objection; wait until trial ... 

 

THIRD CAUSE OF ACTION (Account Stated Against All Defendants)

 

Affirmative Defense - Defendant alleges that the claim of Plaintiff is barred pursuant to the applicable statute of limitations California Code of Civil Procedure, Section 337. the Code states “Within four years …”.

 

Under the provisions of California Code of Civl Procedure, Section 337. 2. (3), the Code states “…however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one time, the time shall begin to run from the date of the last item.”

 

According to Number 16 in the Plaintiff’s Complaint “No part of said sum has been paid since on or about August 31, 2010, although demand for full payment has been made.” The Defendant argues that if there was an alleged debt with WELLS FARGO (alleged “Original Creditor”) and the Defendant allegedly defaulted with WELLS FARGO (alleged “Original Creditor”), this Defendant argues that at the very least, the last item would have been allegedly purchased at least 30 days before a demand for full payment was requested as most contracts will give a purchaser at least 30 days to pay with some contracts allowing a grace period. With that said, the above-mentioned Code states “… more than one time, the time shall begin to run from the date of the last item.” The last item would have allegedly been purchased on or about July 31, 2010. The Plaintiff filed the Complaint on August 28, 2014 which is after the the four year Statute of Limitations.

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.

I would also suggest looking for the 2013 California Jury Instructions online (google it) and lookup the causes of action that are files against you and see what the Plaintiff has to prove not WHAT YOU HAVE TO PROVE. For #3 lookup the member's thread: 1111girl is her name as well as momof3 or momof5.

 

Here's some info for #2:

"On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has alleged a cause of action for Open Book Account. A Bill of Particulars is appropriate under this legal theory as plaintiff concedes in ultimately responding.

The response served, however is not sufficient. Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment of the claim at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Indeed, the only account statements plaintiff has provided demonstrate full payment of the amounts requested.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial. " 

 

 Personally, I wouldn't deny an extension altogether. Judges hate that. But here, the statute says that plaintiff must respond in 10 days and provides serious penalties if plaintiff does not do so. It is arrogant for the plaintiff to tell you it "typically takes 45 days."

You might say something like : In your letter, you state that you do not possess responsive documents and it generally takes 45 days to obtain them. In defendant's view, plaintiff should have had the documents in hand at the time it filed the complaint. Moreover, the Code provides serious consequences if the documents are not provided in 10 days and, as of the date of this letter, plaintiff has already had ____ days to respond. Nonetheless, in the spirit of cooperation, defendant will not seek relief from the Court provided that a response is received on or before ____. 

 

Hope this helps for now.

 

 

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@kawikaweston

Here is the 2nd attempt at BOP with time extension letter from helpme, yesterday, I like so very much,

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I guess the above defense wouldn't work because I would have to prove when the last transaction was which means I would have to provide a statement which would tell the Plaintiff I owed the debt ...

 

Here is something else I found:

  • The most common way to defeat an action for account stated is to show that the debt claimed is new, i.e., that there was no prior course of dealing between the parties or, at best, only a very short period with very few transactions. Therefore, the contract AND the statement of account are required (proof of the length of the debt).
Any ides how I should take this approach?

Where did you find this?

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I have another question ... Persolve filed three causes of action against me ...

 

1. Open Book Account

2. Money Lent

3. Account Stated

 

I guess it's common for JDB to throw out all three to see which one sticks ... In any event, I have been reading on-line that Account Stated Causes of Action are difficult ones to defend against because you essentially don't need a contract - Persolve filed their complaint two days before the SOL ran out (those bast**ds) however it looks like I can still use the SOL as a defense based on the following California Civil Code 337. 2. (3) ... however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item. Unlike an Open Book Account where the SOL begins with your last payment, this looks like it begins after your last purchase which was months before the account went into default ... Am I on the right track or am I totally off?

 

Thanks!

I totally like your reasoning, that will kind of mush their face into their account stated. But you don't have an account stated, because there is no meeting of the minds, no writing between the two, etc.

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Here is my defense regarding the Third Cause of Action ... Am I on the right track? What do I do with this now? File an objection; wait until trial ... 

 

THIRD CAUSE OF ACTION (Account Stated Against All Defendants)

 

Affirmative Defense - Defendant alleges that the claim of Plaintiff is barred pursuant to the applicable statute of limitations California Code of Civil Procedure, Section 337. the Code states “Within four years …”.

 

Under the provisions of California Code of Civl Procedure, Section 337. 2. (3), the Code states “…however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one time, the time shall begin to run from the date of the last item.”

 

According to Number 16 in the Plaintiff’s Complaint “No part of said sum has been paid since on or about August 31, 2010, although demand for full payment has been made.” The Defendant argues that if there was an alleged debt with WELLS FARGO (alleged “Original Creditor”) and the Defendant allegedly defaulted with WELLS FARGO (alleged “Original Creditor”), this Defendant argues that at the very least, the last item would have been allegedly purchased at least 30 days before a demand for full payment was requested as most contracts will give a purchaser at least 30 days to pay with some contracts allowing a grace period. With that said, the above-mentioned Code states “… more than one time, the time shall begin to run from the date of the last item.” The last item would have allegedly been purchased on or about July 31, 2010. The Plaintiff filed the Complaint on August 28, 2014 which is after the the four year Statute of Limitations.

Not ambiguous enough. After made" try putting plaintiffs miscalculate the date of first delinquency for an account stated cause of action which begins the date of last purchase. On information and belief, that date is 30 days before August 31st which makes the complaint time barred.

 

You see the other stuff opens too many doors for the court to rule you have information.

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Dear SeaDragon,

Please, share the pertinent section of law stating the SOL on Account Stated matters starts 30 days after most recent purchase.

Or, am I misunderstanding?

It is my understanding 30 days after that last use of the alleged account is when the Cali. (4) / Delaware (3) years-long SOL clock starts winding down.

Citation, please?

Warmly,

Not ambiguous enough. After made" try putting plaintiffs miscalculate the date of first delinquency for an account stated cause of action which begins the date of last purchase. On information and belief, that date is 30 days before August 31st which makes the complaint time barred.

 

You see the other stuff opens too many doors for the court to rule you have information.

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Dear SeaDragon,

Please, share the pertinent section of law stating the SOL on Account Stated matters starts 30 days after most recent purchase.

Or, am I misunderstanding?

It is my understanding 30 days after that last use of the alleged account is when the Cali. (4) / Delaware (3) years-long SOL clock starts winding down.

Citation, please?

Warmly,

 

HelpingGreg, I know you asked Seadragon but here you go ... 

 

337. Within four years:

     1. An action upon any contract, obligation or liability founded upon an instrument in writing, except as provided in Section 336a of this code; provided, that the time within which any action for a money judgment for the balance due upon an obligation for the payment of which a deed of trust or mortgage with power of sale upon real property or any interest therein was given as security, following the exercise of the power of sale in such deed of trust or mortgage, may be brought shall not extend beyond three months after the time of sale under such deed of trust or mortgage.

     2. An action to recover

          (1) upon a book account whether consisting of one or more entries;

          (2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing;

          (3) a balance due upon a mutual, open and current account, the items of which are in writing; provided, however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.

     3. An action based upon the rescission of a contract in writing. The time begins to run from the date upon which the facts that entitle the aggrieved party to rescind occurred. Where the ground for rescission is fraud or mistake, the time does not begin to run until the discovery by the aggrieved party of the facts constituting the fraud or mistake. Where the ground for rescission is misrepresentation under Section 359 of the Insurance Code, the time does not begin to run until the representation becomes false.

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A quick question ... I mailed out my BOP on 11/17/14 and was thinking of mailing out my discovery on 11/24/14 ... Should I wait and see what I receive back from the BOP first? I have a funny feeling based on all my reading that they are not going to provide me everything I'm asking for or if they do, it will be minimum at best.

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