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Hello to the best forum on the planet!  I was referred here by a friend and have been reading the awesome stories and advice given here. Tho I feel completely overwhelmed I have a glimmer of hope if I can get my head around all this stuff!  I am taking this in  chunks as it's the only way I can digest it all. Below are my answers to Racecar's questions.  

 

I have just a couple of questions for my first steps. I do believe I can file a General Denial (thanks AST Medic for that awesome thread)..but want to make sure my complaint is not verified. There is the first page of the summons; the complaint; exhibit; civil case coversheet (6 pages) with a signature by attny for Declaration of Assignment; and another signature on one of the civil case cover sheets  that has Limited checked. Am I good with General Denial PLD-050?

 

Should I have affirmative defenses?  I don't have the good SOL to use but should I use Lack of Standing? I'm getting different views on that as I read this forum.

 

Also I know the POS rules say a relative that's not involved in the case can sign, but want to make sure a spouse can sign. I'm just being crazy nuts on details sorry.

 

Ok..hoping someone out there will read this…thanks in advance..here I go. Oh, and what is anyone's experience with Calvary/Winn Law Grp? 

 

 

1. Who is the named plaintiff in the suit?  Calvery SPV I, LLC (edit * I originally thought this was the 6th JDB but the past correspondences were from 5 different collection agencies of the OC, so I guess Calvary is the first JDB)

 

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

 

3. How much are you being sued for?  Just under $5,000

 

4. Who is the original creditor? (if not the Plaintiff) Capital One Bank

 

5. How do you know you are being sued? (You were served, right?) Yes

 

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

 

7. Was the service legal as required by your state? Not sure but hear this is how it happens alot...not worth fighting

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

 

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) Dec 2011

 

11. What is the SOL on the debt? 4 years

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served..have 30 days to answer 

 

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  30 days to respond;

1.Account Stated  (in the body of the cause of action it says “account stated in writing)

2. Money Lent     (on the bottom if the pages it says “Complaint for Common Counts”

 

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exihibit “A” ~ 1 credit card statement w/ 2 small transactions and a payment..that’s it

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File a General Denial, also send them a BOP.

 

 

 

I don't recommend affirmative defenses, since they become your defenses to prove. If you feel like you absolutely need to asset one, then use "Lack of Standing to Sue."

 

 

As far as the 6th JDB, what happened with the previous 5? You could have a potential Rosenthal FDCPA and FDCPA claim for harassment.

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Since the summons was left on the porch, I would file a motion to quash service and drive up the bill on  them

 

 

I would also file suit against the process server for fraud.

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File a General Denial, also send them a BOP.

 

 

 

I don't recommend affirmative defenses, since they become your defenses to prove. If you feel like you absolutely need to asset one, then use "Lack of Standing to Sue."

 

 

As far as the 6th JDB, what happened with the previous 5? You could have a potential Rosenthal FDCPA and FDCPA claim for harassment.

 

Thank you for responding! So appreciate it…ok…I was a little confused about the affirmative defenses. I'll leave them out.

 

I just read somewhere (just now) that for the POS you can have your spouse sign it but they can't live with you at the same address. Can that be right??

 

The previous 5 sent a few collection letters then apparently sold the debt to the next guy. Looks like Calvary is the only one who's doing anything with it.  I pretty much know nothing about the FDCPA stuff….I thought it had to be the same creditor and or Law office doing the communicating. No one but Calvary has ever sent a letter stating they would sue.

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Since the summons was left on the porch, I would file a motion to quash service and drive up the bill on  them

 

 

I would also file suit against the process server for fraud.

 

SO I take it that is not proper service!  I thought they could do that if they had a reasonable expectation that the address was correct.  

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No - if you read CCP 415.10 - 415.95, it explains the proper service of lawsuits...

 

 

Merely throwing it on the porch is not proper and you can move to quash improper service.

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Thanks 1st Step…I will read that…Shouldn't I still answer the suit tho?

 

Also I am hung up on the POS question…can my husband who lives with me sign my POS papers in CA?

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If you answer it, then you are foregoing the improper service issue.

 

 

 

Anyone who is not party to the suit can sign.

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If you answer it, then you are foregoing the improper service issue.

 

 

 

Anyone who is not party to the suit can sign.

 

Info is greatly appreciated. Here's my dilemma. I have limited time and resources and am working fairly non-stop thru the holidays. Tho I would love to stir the pot, I think ultimately I have to put my energies where I can get the biggest bang for my buck so to speak. (I am still reading the CCP..very interesting)

 

A BOP is in my future tho and I will definitely have questions on that. I have to time that carefully as I will have no time for a motion hearing (and we all know it will come to that hahaha) until Jan. 

 

OK..off to fill out the general denial..

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SO my Case Summary online shows an OSC hearing scheduled in 2017. Is that a hearing I have to attend or will that fall off once I respond  (which I'm doing early this week)  Also when is the real hearing scheduled and is that AFTER the OSC hearing?  

 

Thanks in advance!! Trying to strategize next move…..

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umm ok..I guess that was a stupid question?   So found out today that the OSC hearing fell off when I responded and new Court hearing will be mailed to me in a few weeks.  I will get my BOP ready..I will post and hopefully someone can ease my mind that I have done it right. :)

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you could still use the SOL affirmative defense. Even though California is 4 years for contracts, some Credit cards observe other state's SOL which may be 3 years.

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Hi sadinca…I believe Capital One's SOL is either their's (which I think is 3 years) or the state where you were served..whichever is longest. Yea , they got their bases covered.

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It's been a few months since my answer to my summons. My trial date is March of 2016. I have heard nothing from Winn Law Grp and I'm assuming they are laying low hoping I do absolutely nothing further. I have a BOP prepared and am ready to send out. I know that it probably should have been sent earlier, but my understanding is that there is no specific timeline for the BOP. 

 

I used a copy of calawyer's BOP from the one Seadragon posted on a thread I was perusing. I added a couple of sentences at the end on the advice of my roommate, who has been thru this a couple of years ago. I am hoping someone from California can take a look and make sure it's ok the way it's written. I was sued for Account Stated and Money Lent, so I only noted the Money Lent. From what I understand the BOP doesn't apply to Account Stated.  I will post below.

 

I appreciate any advice/help out there!!

 

Also, wondering if any one has experience with Cavalry.

 

RUBY TUESDAY

22 PENNY LANE

SOMEWHERE, CA

Tel: 333-876-0000

Fax: 

 

IN PRO PER

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

COUNTY OF LOS ANGELES


LIMITED JURISDICTION

 

 

 

 

CAVALRY SPV I, LLC,

 

Plaintiff,

 

vs.

 

 

RUBY TUESDAY,

DOES 1 TO 10, Inclusive

 

Defendants.

 

Case No.: 11111

 

BILL OF PARTICULARS/COPY OF ACCOUNT PURSUANT TO CCP §454

 

Dept: XXX

 

Hon. XXXXX

 

Response due 10 days after receipt to prevent preclusion of the giving of evidence

 

DEMAND FOR BILL OF PARTICULARS

To PLAINTIFF, CAVALRY SPV I, LLC, and their attorneys of record herein: CASEY M. JENSEN  ESQ. S.B.N. 263593, WINN LAW GROUP,  A PROFESSIONAL CORPORATION (HA!)

 

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant RUBY TUESDAY , within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for  money lent by plaintiff, of which plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account. Please provide any contract between defendant and Cavalry SPV I, LLC,  a copy of any agreement assigning the account at issue to plaintiff,  as well as chain of custody.


Dated:: 04/10/15

 

By: __________________________________   RUBY TUESDAY,  In Pro Per

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What to ask for taken from cIC site here.

Agreement and/or contract of the relevant account.

Proof the plaintiff owns the account.

List of items for which payment is being sought.

List of dates associated with each item, transaction or service.

List of charges per item, transaction or service.

Means by which the plaintiff determined amount owed and for what.

Here is a Generic Form for a Bill of Particulars

To PLAINTIFF________ and [its/their] attorneys of record herein: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff's complaint is based, including the date of each transaction, 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 and any agreement assigning the account at issue to the plaintiff.

Dated: _________ _____________________

DEFENDANT

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The rest of the stuff can be asked for in discovery.

Thanks so much shellieh98. Awesome. Looks like I have the right template. I am just being very very careful and trying to double-check everything.

 

Got one more question ~ I'm pretty sure I don't have to file the BOP with the Court, but I think I have to send a Proof of Service to Plaintiff. Do I need to file the POS with the Court?

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Ok….So I sent off my BOP and I have received their response. 2 years of statements w/an account # and my name as well as a generic customer agreement.  They state why I’m not entitled to BOP for Account Stated, which I didn’t list in my BOP…I only listed Money Lent. They have a General Objections and Reservations of Rights paragraph. They object to every demand that “embodies confidential communications between Plaintiff and Attorney etc….” Also they continue to search, and have right to amend or supplement……

 

Along with the answer to the BOP are Discovery Demands.1)Requests for Admissions

2)Special Interrogatories and 3) Form Interrogatories.

 

I wish I could say I’m calm about this but no….my head is swimming from hours of reading. I have countless Bookmarks and keep on adding more. This site is awesome and I’m trying my best to wrap my head around all the great info. I have to say BIG THANKS to all the Cali OG Posters that I’ve been reading ..Calawyer, Anon Amos, ATSMedic, Seadragon..and so many more! Would be lost without all this info, no doubt.

 

So I dive in….I’m starting with the Admissions then when I get those, go on to the other 2.

 

My first question is do I continue to push for more in the BOP..as in sending a Meet & Confer or is 2 years more than most get and maybe I should leave it alone?

 

Next I’m going to start with the Request for Admissions and post my best shot at some answers. I answered with a General Denial and from what I’ve read I should keep my Discovery answers consistent.

 

I’m asking…no begging for help in these answers and hoping someone can point out if I’ve screwed up royally somewhere!

 

Here goes:

 

EDIT:  FOR THE FINAL DISCOVERY ANSWERS PLEASE SEE POST #72 - THESE ARE A WORK IN PROGRESS :-)

  1. Admit to the genuineness of the documents attached hereto as EXHIBIT 1, a true and correct copy of the terms and contains titled “Capital One Customer Agreement”

?????(I know I saw a great CAlawyer answer to this and thought I bookmarked it but can’t find it)  found something, Does this work?

 

OBJECTION: The Defendant has no way to verify the records of the Plaintiff, nor any way to determine the truthfulness or veracity of any alleged "copies" of those records. Therefore, the request is improper as it exceeds the boundaries of permissible discovery. Denied

 

 

2.   Admit to the genuineness of the documents attached hereto as EXHIBIT 2, monthly billing statements for CAPITAL ONE BANK (USA), N.A. WITH THE ACCOUNT NUMBER XXXXX. (they list last 4 digits…full account # is on the statements)

?????(I know I saw a great CAlawyer answer to this and thought I bookmarked it but can’t find it)

 

OBJECTION: The Defendant has no way to verify the records of the Plaintiff, nor any way to determine the truthfulness or veracity of any alleged "copies" of those records. Therefore, the request is improper as it exceeds the boundaries of permissible discovery. Denied    ???

 

 

3.  You applied for and opened a credit card account with CAPITAL ONE BANK (USA), N.A.

     ADMIT  Defendant opened a credit card with CAPITAL ONE BANK (USA), N.A.

(I currently have a Capital One Card in good standing and during the time in question ..do I say this?)

 

4.  A credit card was issued to you by CAPITAL ONE BANK (USA), N.A. with the Account # xxxx

(hereinafter referred to as “account”)

    DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

 

 

5.  You used the credit card  and made charges and made payments to the  CAPITAL ONE BANK (USA), N.A. credit card, Account  Number xxxx.

 DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

 

6.  Monthly billing statements, attached hereto as Exhibit 2, were mailed to you at xxxxxxxxxx, indicating monthly debits, credit and payments made on the account.

 DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

7.  You were mailed and received a Cardholder Agreement for this CAPITAL ONE BANK (USA), N.A. credit card, Account Number xxxxxxx.

 DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

8.  The date of last payment, or transaction, occurred on xxxxxx, on the CAPITAL ONE BANK (USA), N.A. credit card,  Account Number xxxxxxx.    

 DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

9.  On xxx you were indebted to CAPITAL ONE BANK (USA), N.A. the sum of xxxx  on an account stated for charges to your  CAPITAL ONE BANK (USA), N.A. credit card  Account Number xxxxxxx.

 DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

10.   On xxxxxx, you were indebted to Plaintiff the sum of  $xxx on an account stated for charges to the account.

 DENIED  Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit, therefore Defendant denies.

 

11.   All conditions precedent to payment of the unpaid principal balance due on your  CAPITAL ONE BANK (USA), N.A. credit card, Account Number xxxxxxx have been performed, waived, satisfied, or extinguished.

???????

 

 

12.  You have no valid affirmative defenses to this action.

DENIED ??

(I filed a General Denial with no specific Affirmative Defenses)

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Just wondering if I could get a quick overview on my admissions answers.(previous post)..I guess my pressing questions are #3, #11 & #12...Do I admit I applied for a Capital One card?

I don't even know what #11 means...and not sure at all about how to answer #12.

 

Also since they sent me 2 years of statements in response to my BOP, should I leave that one alone and move on to Discovery (Docs)?

 

Thank you in advance...I hope I'm not asking too much, I'm just a bit nervous about making the wrong move here.

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i think I have seen these same questions being answered somewhere around here. but I cant locate them.

 

to admission 1 and 2, I would add that you have never been employed by Capital One, therefore you cannot authenticate the alleged records.

 

number 3 I may add: Defendant opened a credit card with CAPITAL ONE BANK (USA), N.A account number XXXXXXXXXXXX1234 which is currently open and in good standing.  but I think It would be better if you object: Objection, this request calls for accounts not relevant to the subject matter of the pending action and is not reasonably calculated to lead to the discovery of admissible evidence.

 

 

for 12, I would type something like: Objection: calls for legal impression of counsel. Investigation and discovery are ongoing and not complete. Defendant reserves the right to supplement or amend this response.

 

I have no idea what number 11 means. sorry.

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