kawikaweston

Fighting a lawsuit filed by Persolve ...

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Am I out of luck if I didn't include "Lack of Standing" as an Affirmative Defense in my answer? Am I allowed to add any Affirmative Defenses after my answer has been filed?

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Am I out of luck if I didn't include "Lack of Standing" as an Affirmative Defense in my answer? Am I allowed to add any Affirmative Defenses after my answer has been filed?

Does this Code allow me to amend my answer? 472. Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.

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Contrary to popular belief you do not have to assert lack of standing as an affirmative defense in your answer. You can, but you don't have to in California.

The courts are supposed to liberaly allow you to amend your answer to add affirmative defenses if you find you have one later (like during discovery etc.).

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Contrary to popular belief you do not have to assert lack of standing as an affirmative defense in your answer. You can, but you don't have to in California.

The courts are supposed to liberaly allow you to amend your answer to add affirmative defenses if you find you have one later (like during discovery etc.).

Thank you!

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Can someone please tell me if under the California Civil Jury Instructions (CACI) - 370. Common Count: Money Had and Received would apply to Cause of Action: Money Lent? Thanks!

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I have another question ... I'm trying to determine if Persolve has standing ... In my complaint it states "Prior to the commencement of this action, Plaintiff's assignor, KLING PORTFOLIO ACQUISITIONS, LLC (which I now know is a Persolve company), the successor in interest (not sure if this refers to a chain of assignments as well) to WELLS FARGO ("Original Creditor"), for valuable consideration ...".

 

I have a letter that I received three years ago that states that Security Credit Services LLC purchased the Wells Fargo debt. Again, I'm not sure if the above-mentioned "the successor in interest" would include this or not.

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They need the entire chain. So bill of sale to jdb1, bill of sale from JDB 1 to jdb2, bill of sale from JDB 2 to JDB 3. And so on until you get to the JDB that is actually suing you. If Kling portfolio bought it, they still need an assignment sheet to persolve. It doesn't matter if Kling is a persolve company, you don't know that. You make them show the complete chain. And they need more than the bill of sale, they need to show how the records were handled at each place that owned it. They will try to do that with an affidavit, but you will object to that. They then would need a live witness from each place that owned the account that could testify to the accuracy of the records. Not gonna happen. You just need to learn how to object to any one saying the records are correct....they need the custodian of records live and in person from each owner.

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This is going to be a key issue. The bills of sale are just parts of the larger forward flow purchase agreement then you have to get that document. The best way would be subpoena records from The OC concerning the sale. You would have to word it like this: for the forward flow purchase agreement between oc and first purchaser. This will most likely contain the language where they state that the records are unreliable for any purpose.
 
That will disrupt plaintiffs affiant from saying they are reliable and that they relied on the accuracy in their business. I believe this will be a first time that a CIC member will subpoena records from an assignor, so we should have a discussion on this before it is done so it is correct as to form.

http://www.courts.ca.gov/documents/subp002.pdf

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This is going to be a key issue. The bills of sale are just parts of the larger forward flow purchase agreement then you have to get that document. The best way would be subpoena records from The OC concerning the sale. You would have to word it like this: for the forward flow purchase agreement between oc and first purchaser. This will most likely contain the language where they state that the records are unreliable for any purpose.

 

That will disrupt plaintiffs affiant from saying they are reliable and that they relied on the accuracy in their business. I believe this will be a first time that a CIC member will subpoena records from an assignor, so we should have a discussion on this before it is done so it is correct as to form.

http://www.courts.ca.gov/documents/subp002.pdf

Seadragon, couldn't this be a document that I request in Discovery first?

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I would ask for it in discovery, request for production of documents. You have to call it exactly what they calling it in the bill of sale.

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Seadragon, couldn't this be a document that I request in Discovery first?

They will fight it and you would want them not to know about it. The way to get it is to look on the bill of sale and request that specific document. Prepare the subpoena, take it to the court for the court to stamp it and send it out or take it to the local branch of the bank. I think that taking it to the local branch manager would be sufficient.

I think that it will bear fruit.

Once you get this document you will destroy their argument. I know this is new but if you can destroy the presumptions in the ccp 98 or a witnesses testimony at trial it is worth doing.

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I just received the Plaintiff's Response to my Demand for Bill of Particulars ... This is what I asked for:

 

  1. An agreement and/or contract of said account;
  2. Proof that the plaintiff owns such account;
  3. The specific items for which payment is demanded;
  4. Data of each item, transaction or service;
  5. The specific charges for the services or items;
  6. How the Plaintiff came up with amount suing for in the amount of $$$

This is what I recieved:

  1. "A true and correct copy of a printout of Plaintiff's computer system reflecting Defendant's account created by Plaintiff utilizing the data which is input into Plaintiff's co​muter system by Plaintiff's employees and counsel, whose responsibility is to record any and all transactions which affect Defendant's account. Plaintiff maintains all of its account data in a computer systems and has done so since inception. It is Plaintiff's business practice to enter each debit and/or credit applicable to a particular account, including Defendant's account, at or about the date such event occurred." - I have no idea what this means ... If this is to address my Numbers 3-6 above, it doesn't. I didn't get anything but a screen-print of their first page.
     
  2. An Exhibit 1 "Bill of Sale" from Wells Fargo to "Security Credit Services" ... It doesn't even show my name anywhere but the bill of sale does mention an Exhibit A (Charged-Off Accounts dated April 15, 2011, by and between Seller & Buyer) which was not attached and an Exhibit A (not the same thing) Assignment and Bill of Sale from Security Credit Services to the Plaintiff. Again my name is not listed anywhere. This particular document states "... provided however such transfer is made without any representations, warranties, or recourse." - What does that mean?
     
  3. I also received  a typed document from Persolve called an "Assignment for Purposes of Collection and if Necessary, Litigation". It was signed by a Billy R. Finley, Manger and Authorized Signatory who is the same person who signed the Verification as the CFO and Custodian of Record for Persolve.
     
  4. I also received three statements - The charged-off one, one right before that one and another six months earlier.

 

None of these documents really don't tell me much of anything ... Now I don't know what to do with this information. Any help would be appreciated! Thanks!!

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  1. A true and correct copy of a printout of Plaintiff's computer system reflecting Defendant's account created by Plaintiff utilizing the data which is input into Plaintiff's co​muter system by Plaintiff's employees and counsel, whose responsibility is to record any and all transactions which affect Defendant's account. Plaintiff maintains all of its account data in a computer systems and has done so since inception. It is Plaintiff's business practice to enter each debit and/or credit applicable to a particular account, including Defendant's account, at or about the date such event occurred." - I have no idea what this means 

 

It means they think it's admissible.  Take a look at a case: In re Vinhnee, to get an idea of what's needed to authenticate printouts from the "computer system" - as long as you properly object.  (Should come up in a Google search)

 

 

An Exhibit 1 "Bill of Sale" from Wells Fargo to "Security Credit Services" ... It doesn't even show my name anywhere but the bill of sale does mention an Exhibit A (Charged-Off Accounts dated April 15, 2011, by and between Seller & Buyer) which was not attached and an Exhibit A (not the same thing) Assignment and Bill of Sale from Security Credit Services to the Plaintiff. Again my name is not listed anywhere. This particular document states "... provided however such transfer is made without any representations, warranties, or recourse." - What does that mean?

 

It basically means transfer is made "as-is" - no recourse for the transferee against the transferor if the document has errors, for example.  I'd consider sending a request for the production of another doc mentioned in the bill of sale: the "agreement."

 

 

None of these documents really don't tell me much of anything ... Now I don't know what to do with this information. 

 

Study up on the reasons why every doc you received should not be admitted at trial.  We all receive (basically) the same stuff - review CA threads.

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@shellieh98 laid it all out, above.

Unfortunately, this unresponsive reply is typical of Plaintiffs' tactics, as shown in so many threads all across the site. ... You are reading up, aren't you? ... I ask because your post seems written in a tone of surprised alarm, rather than one of, here they go, again.

Either way, keep reading & researching, if you are, and, start reading & researching if you've not already begun to so do, is my best advice.

As for your demand for BOP getting the usual unresponsive reply, there are various means of address, such as:

A.) Meet and Confer letter, (which preceeds filing the motion). It is said to be looked upon with favor, Judge types preferring to see litigants making good faith efforts to communicate civilly.

[Of course, and always, carefully read and follow your court's published Rules of Court. You may need to have paperwork in-hand before, at the time of, and upon concluding the conference meeting.]

B.) Drop the BOP option and move ahead to Defendant's Requests for Discovery from Plaintiff. There is a limit on the total requests allowable, and they need be simple, rather than compound, questions, e.g., seek ONE response per question mark, I.e., What is your job title? Not, what is your name, address, place and length of employment...yada-yada?

[The site is replete with stellar examples for you to customize to fit the essential points that serve to show Plaintiff's lack of Standing. There are also very many experienced, compassionate and quite adept volunteer professionals and peers on-site with proven-winner tactics, (though no case outcome can be foretold, verdicts not being absolutes - and, Plaintiffs being notorious for bolting from the altar, as it were - so very often waiting until you are both before Judge for the trial's endgame, having just tried, again, to get you to see how stupid you are to not take "free & friendly for-your-own-good" advice and "settle before it is too late", and, well, if you've ever seen those used car salesmen-type stereotypes from the 1970s, you know what I mean by "The Hard Sell-High Pressure Approach"... (Just pity the fool is my best advice. Realize that however "poor" you are, this attorney's paycheck is what is being one may say, "begged for", from you. You are NOT stupid, as one tactic attempts to imply. You are NOT in court to feel sorry for someone who seemingly needs the win desperately. Just repeat, politely, and for the upteenth time, "All I am asking is for your client to provide you with the essential elements of Standing. After all this time, I have yet to receive any." I also added, "My feet hurt standing out here, in the hallway; I am going into the courtroom, to take myself a seat." Never get rude, nasty, snippity. And, never tip your hand, e.g., don't laugh and say, that's exactly what my support team on CreditInfoCenter.com said you would say! Here is the answer I created from a compilation of their proven-winner responses to that very question! LOL!

Gotta go!

Wishing you the very best!

Knowing our outcomes are usually commensurate with our investments.

Keep busy investing in this case!

Warmly,

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HelpingGreg ... Yes, I am reading and reading a lot ... I think you may have picked up on my "panic" reaction. I tend to be reactive at first (a flaw I definitely have) instead of just taking a few moments and deep breaths before diving in ... With that said, I think at this point I'm gong to move right into Discovery ... In my Discovery, can I refer to documents that were provided in the their response to my BOP?

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No ... I have a Case Management Conference One date of 2/3/15.

I would count my lucky stars for the proven winners sharing with you in this thread.

From my experience, they are spot-on, hitting the bull's eye every time.

Lucky you to have so many weeks to get a handle on your RULES OF COURT, (should be on the court's website and free to access, mine was even in PDF format for handy downlowding).

Discover what Court Rules demand of you.

Last week, in my instance, I needed to appear with a brief in-hand for the first Mandatory Settlement Hearing / Conference.

Same-day - I kid you naught - Judge 1.) Ordered us back in 14 days, and, 2.) Ordered me to appear with my own counsel in 14 days, and, 3.) Court Rules demanded a 5-page packet of specific & detailed paperwork both filed & conformed same-day by me!

I couldn't make this up if I tried!

So, best advice, read and, re-read your Court's Rules of Court and show up with paperwork good-to-go for any eventuality.

Rooting for you, along with many others!

You are not alone!

Plaintiff may have enough names to fill-out the top third of a numbered pleading paper, but our peer-to-peer support & professional volunteer support numbers are legion!

Yes!

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"A true and correct copy of a printout of Plaintiff's computer system reflecting Defendant's account created by Plaintiff utilizing the data which is input into Plaintiff's co​muter system by Plaintiff's employees and counsel, whose responsibility is to record any and all transactions which affect Defendant's account. Plaintiff maintains all of its account data in a computer systems and has done so since inception. It is Plaintiff's business practice to enter each debit and/or credit applicable to a particular account, including Defendant's account, at or about the date such event occurred." 

I want to send a Meet And Confer Letter regarding this piece of evidence ... This is what I have so far ...

 

In the PLAINTIFF’S RESPONSE TO DEFENDANTS DEMAND FOR BILL PARTICULARS, the Plaintiff attached as Exhibit “1” (attached and is also referred to as the Defendant’s Exhibit “1”) which the Plaintiff claims “is a true and correct copy of a printout of Plaintiff’s computer system reflecting Defendant’s account …” and “It is Plaintiff’s business practice to enter each debit and/or credit applicable to a particular account, including Defendant’s account …”. Exhibit “1” clearly does not satisfy the Defendant’s original DEMAND for details of the account on which the cause of action of Plaintiff’s complaint is based, including:

 

- The specific items for which payment is demanded;

- Date of each item, transaction or service;

- The specific charges for the services or items;

- How the Plaintiff came up with amount suing for in the amount of $$$

 

Am I on the right track? I can always get additional information on the other items they sent me through discovery.

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HelpingGreg ... Yes, I am reading and reading a lot ... I think you may have picked up on my "panic" reaction. I tend to be reactive at first (a flaw I definitely have) instead of just taking a few moments and deep breaths before diving in ... With that said, I think at this point I'm gong to move right into Discovery ... In my Discovery, can I refer to documents that were provided in the their response to my BOP?

Now this requires an in-depth response of many hours typing after days of research, NOT!

Yes, you can, indeed, do that.

First, if I were you, I would re-read the wise advice others have given you to read-Read-READ the on-site California threads having gone before yours. I add my voice to theirs. Please. For your own good.

IF you have some compulsion to jot out potentials first, revising again & again before that final print draft is attained, fine. Dowhatchagottado. But, now has come your time to read.

By the time you have gone through the threads of HomelessInCa, (around 23 pages, all solid gold), and Anon Amos, and ASTMedic, and, String...

and read all you can by CaLawyer, and, SeaDragon, and, RyanEX you will be well near your own personal paralegal, and, we will all be on the same page, speaking the same language.

Just go up to "SEARCH", enter an alias from above, click the links displayed, and read-Read-READ!

TIP: Peel a pound of carrots, leave whole, or cut to preference, sprinkle with salt, black pepper, dry ginger and brown sugar, cover with glass lid and steam 5 minutes in the microwave, or, stovetop. Let it cool, covered, until able to touch, then, enjoy eye-booster, budget-friendly, calorie-low, Vit.A & carotene high

wholesome reading snack!

See you when you have caught up on that reading!

P.S., EXCELLENCE in regard to your deep, cleansing breaths to mitigate stress!

Warmly,

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By the time you have gone through the threads of HomelessInCa, (around 23 pages, all solid gold), and Anon Amos, and ASTMedic, and, String...

and read all you can by CaLawyer, and, SeaDragon, and, RyanEX you will be well near your own personal paralegal, and, we will all be on the same page, speaking the same language.

I will read it all!!! Thank you!

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