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Sued by Unifund LLC via Kenosian & Miele

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I am in California and currently facing a credit debt case against Unifund LLC represented by Kenosian & Miele for a Citibank account to the sum of $14,xxx.xx. So far, I have provided my answer (POS filed in court), sent CMRRR on 12/15/14. On 12/27/14 I received documents from Kenosian & Miele (sent regular mail, non certified, no return receipt) containing Request for Production of Documents and Requests for Admission. My questions are as follows:

 

1.) Do I send my Request for Production of Documents to the plaintiff now?

2.) Would it be to my advantage to send my response to the plaintiff's request sooner than later?

3.) Do I need to fill out another POS for (POS-030 or POS-040) when I send out my response to the plaintiff?

4.) Will the POS need to be endorsed by the court house when I send my response?

5.) Will I need to include a copy of the POS to the plaintiff when I send my response to their request? (When I sent my answer to the summons back in 12/15, I was told by the county court clerk that the plaintiff does not need a copy of the POS...only the court and myself)

6.) Will the court need a copy of my response to the plaintiff?

7.) Is a Meet and Confer required prior to my CMC? I really have no interest of doing this with the plaintiff at this moment or should I?

 

My CMC is set for 3/3/15, any other feedback or advise as to what else I should be doing between now and a few days before my CMC would be highly appreciated (I know that submitting my CMC Statement before my CMC date would be required)!!!

 

 

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Welcome.

 

You should consider serving a demand for Bill of Particulars on plaintiff immediately.  Under CCP 454, plaintiff has just 10 days to respond.  If plaintiff does not respond, you will gain a nice objection to the discovery that plaintiff served on you.  See 1111girl's thread for more details.

 

 

When you do prepare your responses, you will serve them on plaintiff and have someone fill out a proof of service for you.  You will not file the discovery or the proof of service with the court.  Just keep it in your records.

 

The Cal. Rules of Court say that you are supposed to meet and confer 30 days prior to the conference.  Debt collectors rarely follow this rule.  I suggest that you try anyway.  Here is a copy of the rule:  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_724

 

Good luck.

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also you are going to want to take your time, by filing sooner the responses you might give them sufficient time to file Motion for Summary Judgment.

Also you are going to want to send discovery of your own AFTER the bill of particulars are responded to by plaintiff.

Happy New year.

 

Seadragon copy of Calawyers famous Bill of Particulars.doc

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I am now working on providing my response for the plaintiff's Request For Admission. While I have seen quite a few samples here on the forum, I am having difficulty in figuring out which responses work best with which particular information the plaintiff is wanting me to admit. I have read on one post to just simply put 'DENIED' on all of them, some suggested 'Defendant is without knowledge to admit or deny therefore denies' while others have a more custom response.

 

At any rate, here are what I am being asked to admit. Any help in giving me a good response to each point would be highly appreciated:

 

1.) Admit that you applied for a credit card from CITIBANK, NA now bearing account number...

2.) Admit that you received a credit card from CITIBANK, NA now bearing account number...

3.) Admit that you made payments on CITIBANK, NA credit card now bearing account number...

4.) Admit that you became delinquent in the payments due...

5.) Admit that you left a balance due and owing on CITIBANK, NA credit card now bearing account number...

6.) Admit that you received statements regarding the CITIBANK, NA credit card now bearing account number...

7.) Admit that all relevant times UNIFUND CCR, LLC has been assigned full right to collect, litigate and settle account number xxxxxxxxxxxxxxxx

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I am now working on providing my response for the plaintiff's Request For Admission. While I have seen quite a few samples here on the forum, I am having difficulty in figuring out which responses work best with which particular information the plaintiff is wanting me to admit. I have read on one post to just simply put 'DENIED' on all of them, some suggested 'Defendant is without knowledge to admit or deny therefore denies' while others have a more custom response.

 

At any rate, here are what I am being asked to admit. Any help in giving me a good response to each point would be highly appreciated:

 

1.) Admit that you applied for a credit card from CITIBANK, NA now bearing account number...

2.) Admit that you received a credit card from CITIBANK, NA now bearing account number...

3.) Admit that you made payments on CITIBANK, NA credit card now bearing account number...

4.) Admit that you became delinquent in the payments due...

5.) Admit that you left a balance due and owing on CITIBANK, NA credit card now bearing account number...

6.) Admit that you received statements regarding the CITIBANK, NA credit card now bearing account number...

7.) Admit that all relevant times UNIFUND CCR, LLC has been assigned full right to collect, litigate and settle account number xxxxxxxxxxxxxxxx

 

what is the date the request from plaintiff were served? you have 30 +5 day to serve your answers, if you have time, follow Calawyers advice and serve the BOP to the plaintiff as soon as possible. when you receive their objection as request, that will assist you a lot in answering their RFP, RFA, and ROGS.

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The plaintiff sent out the RFP and RFA on 12/23 and I received it in the mail on 12/27, no ROG (what is that?). I am planning on sending out my reply either tomorrow 1/21 or 1/21. That should be within the given amount of response time. I have not sent out my BOP yet. That was my next step after I send out my response to their RFP and RFA. Have I made mistake here for not sending out my BOP ASAP? Reason being is that I was still going to research how BOP differs from when the defendant sends out an RFP to the plaintiff. Also, I thought I read somewhere that you can't do a BOP if one of the Cause of Action on the lawsuit is "Account Stated". 

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Have I made mistake here for not sending out my BOP ASAP? Reason being is that I was still going to research how BOP differs from when the defendant sends out an RFP to the plaintiff. Also, I thought I read somewhere that you can't do a BOP if one of the Cause of Action on the lawsuit is "Account Stated". 

 

Not unless you are having difficulty responding to plaintiff's discovery.  As I said in my post above, if plaintiff refuses to respond to your BOP, it gives you a nice objection to use for some of the tougher discovery that plaintiffs sometimes serve on defendants.

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I received a CMC Statement from the plaintiff on 1/23/15. One of the things that I noticed was under "18. Meet and Confer". They have checked the box stating that "The Party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of Court". I have not received anything from the plaintiff other than the initial case summons, RFP and RFA documents...do these count under "Meet and Confer"? My understanding of it when I read the rule was that the Meet and Confer was a request to meet either in person or telephone? Is the plaintiff violating anything here by stating that we have met and conferred that gives me an advantage or is this rule just loosely followed by both parties and doesn't really have much weight in the course of the case?

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I received a CMC Statement from the plaintiff on 1/23/15. One of the things that I noticed was under "18. Meet and Confer". They have checked the box stating that "The Party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of Court". I have not received anything from the plaintiff other than the initial case summons, RFP and RFA documents...do these count under "Meet and Confer"? My understanding of it when I read the rule was that the Meet and Confer was a request to meet either in person or telephone? Is the plaintiff violating anything here by stating that we have met and conferred that gives me an advantage or is this rule just loosely followed by both parties and doesn't really have much weight in the course of the case?

 

 

This is what I was referring to in post number 2 above.  As set forth in the rule, "the parties" are required to meet and confer.  It is not an obligation imposed only on the plaintiff.  That is why I suggested that you try.  Plaintiff would likely have ignored you and then you could have said so.

 

Plaintiff has asserted something in its statement that is not true.  You can point that out, but if you do, the Court might ask why you did not call plaintiff.  Seems to me that you still have time to try to meet and confer with plaintiff then explain in your CMC what occurred.

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Correct. I still have time to send out a meet and confer letter to the plaintiff which is what I plan on doing this week. So if the plaintiff does not reply but stated on their CMC statement that they did, then I can use that against them in my upcoming CMC, right? Will I need to just point that out to the judge when we meet or do I have to do so in a more formal way like filing some kind of motion?

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Reading other posts to educate myself in making sure I submit all my paperwork on time and to be able to defend myself from this JDB got my head spinning (not really quite sure if I am doing fine). One thing I have learned is it appears that I have not done my discovery requests in an orderly fashion. I'm not quite sure if I have messed things up here or not. My CMC is scheduled for 3-2-15 and so far the only thing that I have sent out to the plaintiff are my response to their RFP and RFA and my BOP request. Today (1-27-15) I will be sending out my Defendant's RFP.

 

I'm having doubts now if I can even get a Meet and Confer letter out on time based on the plaintiff's given turnaround time of 30 days for my RFP request when my CMC is on 3-2-15. Or is there still a way for me to send my M&C?

 

Please bear with me folks since all this is new to me and I am really having difficulty understanding the legal process and procedures. It takes me multiple times of reading to gain some sort of understanding on the process, rules and laws most of the time.

 

Thanks.

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I have decided to use ASTMedic's Defendant's RFP. Can anyone tell me if the request for "ALL DOCUMENTS relating to or constituting ANY agreement between defendant and Citibank, NA." covers the request for the actual credit application that includes the defendant's signature? Or do I have to add that in as another item to request?

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for our discovery we used those same questions but first one read: all documents relating to or constituting any agreement between defendant and chase bank usa... referencing the alleged account number XXXXXXXXXXXX bearing the defendants signature.

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I just went ahead and used the following questions:

 

1. ALL DOCUMENTS relating to or constituting ANY agreement between defendant and Citibank, NA .
2. ALL DOCUMENTS relating to or constituting ANY assignment to plaintiff of the account referred to in the complaint.
3. ALL DOCUMENTS constituting statements of account number xxxxxxxxxxxxxxxx showing all payments and credits from inception until present.

 

Should or could I still follow this up with another RFP (Set Two) requesting for specific documents (ie. credit card application with my signature) or do these requests cover anything and everything under the sun regarding the account in question?
 

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you can follow with set two, but would not request the credit card signature application on a set two, they will just object stating that it is not required for an account state theory.

 

im about to leave work, so in short, did you send out a BOP request? if so, did you receive the alleged bill of sale?

 

on request set two, i would be more inclined to request the forward flow agreement, or however they call it on the bill of sale.

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RESPONSE: Plaintiff objects to this request as being overly broad, unduly burdensome, vague, ambiguous, unclear, not limited in time or scope and ill-defined in its use of the terms “all documents". Plaintiffs further objects that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence as it relates to the Defendant’s liability for the debt that forms the basis of this action as Defendant’s use of the credit card constitutes the Defendant’s acceptance of the terms and conditions of the card.

Just sayin. You need to be specific in your requests. Makes for a better compel motion also if you know what you want and show it is relevant to the action.

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RESPONSE: Plaintiff objects to this request as being overly broad, unduly burdensome, vague, ambiguous, unclear, not limited in time or scope and ill-defined in its use of the terms “all documents". Plaintiffs further objects that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence as it relates to the Defendant’s liability for the debt that forms the basis of this action as Defendant’s use of the credit card constitutes the Defendant’s acceptance of the terms and conditions of the card.

Just sayin. You need to be specific in your requests. Makes for a better compel motion also if you know what you want and show it is relevant to the action.

 

Since I already sent out my Defendant's RFP Set One with just those 3 requests, do you suggest I follow it up with another RFP with more specific requests? My CMC is on 3/2/15, not sure if sending out another request this week will fall within alotted timeline since the plaintiff is given 30 days to respond?

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you can follow with set two, but would not request the credit card signature application on a set two, they will just object stating that it is not required for an account state theory.

 

im about to leave work, so in short, did you send out a BOP request? if so, did you receive the alleged bill of sale?

 

on request set two, i would be more inclined to request the forward flow agreement, or however they call it on the bill of sale.

 

I sent my BOP request on 1/23. I am still waiting for the plaintiff's response.

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It really won't make a difference as long as you have enough discovery time left to send and recieve responses. I suggest if they sent you a bill of sale, request the agreement that was referenced in it, usually called the purchase agreement. If they sent you statements but none showed a charge or payment, you may want to request the document that shows you entered into an agreement with them. ( assuming they are suing you for account stated) if you key in on only a few requests, but ones that can help your case such as above, then getting a compel motion will be easier. If they don't have it/ can't get it they are more likely to dismiss. They would dismiss rather than give you the full purchase agreement if you were to get that compel motion granted.

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UPDATE!!!

 

I received a Meet & Confer Letter from Kenosian & Miele today (2/2/15). The letter was sent out on 1/29/15. It says that they have not received my their discovery responses and are PAST DUE (specifically RFP and RFA)! I sent out my response on 1/21/15 CMRRR, I have even received the return card showing me that the plaintiff received my mail on 1/26/15. The M&C letter says I have 7 days from the date the letter was sent out to provide them with a verified response.

 

Any idea or help on how I should handle this matter would be greatly appreciated.

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Since I already sent out my Defendant's RFP Set One with just those 3 requests, do you suggest I follow it up with another RFP with more specific requests? My CMC is on 3/2/15, not sure if sending out another request this week will fall within alotted timeline since the plaintiff is given 30 days to respond?

 

 

No.  Wait until you receive a response.  These are small document cases (the universe of responsive documents is small).  So that is why I like to ask broad requests that should cover just about everything you want in 3 requests.  They are clearly written and, if plaintiff complies with its obligations under the code, you will get the documents you want.

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UPDATE!!!

 

I received a Meet & Confer Letter from Kenosian & Miele today (2/2/15). The letter was sent out on 1/29/15. It says that they have not received my their discovery responses and are PAST DUE (specifically RFP and RFA)! I sent out my response on 1/21/15 CMRRR, I have even received the return card showing me that the plaintiff received my mail on 1/26/15. The M&C letter says I have 7 days from the date the letter was sent out to provide them with a verified response.

 

Any idea or help on how I should handle this matter would be greatly appreciated.

 

 

I would write them a letter saying that you served the responses on 1/21/15.  Tell them that postal records indicate they were received on 1/26.  Telll them to contact you if they have not found them since they wrote you the meet and confer letter.

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Did you verify your response? It sounds like you may have just been missing the verification possibly.

What verification? I am not sure what a verified response is and how to go about it? I sent them my responses to their RFP and RFA (basically telling them that I do not have the documents they are requesting and that I neither admit or deny for their RFA). POS was included when I sent this out via CMRRR. Is there any step here I am missing causing the plaintiff to send a M&C letter? Is my signature required on the response to make it verified?

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It's just a page saying verification. With your name, state that you are over the age of 18 you live in California at the following address, that you have reviewed the contents and know it to be true and that you would testify to it if called as a witness and that you swear under the perjury laws of California.

It actually c sounds like they are saying they didn't get anything and you should send the letter as Calawyer said, but the discovery response is supposed to be verified with a page written like what I stated above and signed by you.

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