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I've been putting off dealing with my lawsuit for the sake of my health and sanity but now it is crunch time.

I'm wondering if it is too late for any kind of motions such as motion in limine?

 

In my Demand for Bill of Particulars I asked for:

 

1. The defendant's application for credit card issued by original creditor GE Capital Retail Bank.

 

2. The credit card agreement (alleged in paragraph 7 of the complaint)

 

3. Monthly billing statements reflecting all charges, credits, interest accrued, fees, including but not limited to late fees, and payments alleged in paragraph 9 of the complaint.

 

4. The procedure for disputing all charges in the credit agreement.

 

5. Written regulations and conditions to make payments to the account alleged in the complaint as a whole particularly, the first cause of action in the complaint.

 

6. The agreement to pay interest on the alleged account.

 

7. An account of all money lent and paid, laid out, and expended to defendent as alleged in the complaint at paragraph 11, 17, and 19.

 

8. The balance sheets for the alleged account.

 

9. All statements reflecting the sum of $3,xxx.xx due owing and unpaid alleged in plaintiff's complaint.

 

10. The procedure for disputing erroneous charges in the credit agreement.

 

11. Regulations and conditions to dispute erroneous billing statements of the alleged account.

 

12. All electronically stored information (ESI), including but not limited to, and defendant's tape recorded telephone records of defendant's contact with GE CAPITAL RETAIL BANK to report discrepancies and billing errors in the billing statements.

 

13. All documents concerning investigations conducted of defendant's credit account by GE CAPITAL RETAIL BANK.

 

14. All documents concerning investigations conducted of defendant's credit account by plaintiff CACH, LLC.

 

--------------------------

 

 

This was CACH's initial response:

 

Mr XXXXXXX:

I am writing in response to your demand for a Bill of Particulars. Your request is inapplicable to the causes of action pled in the subject complaint because Plaintiff is not pursuing items of an account and is instead seeking a final sum owed as stated on the monthly bill your client received. (Distefano v. Hall (2nd Dist. 1963) 218 Cal. App. 2d 657, 677) As a result, please be advised that we will not provide a response.

 

Sincerely,

 

Newb Lawyer

Mandarich Law Group, LLP

Attorneys for Plaintiff CACH, LLC

 

--------------------------

 

Then about a month later they sent this:

 

 

Mr XXXXXXX:

I am providing you a further reponse to your bill of particulars request even though Plaintiff still contends that the request is inapplicable to the causes of action pled.

 

Plaintiff believes that under California law, a bill of particulars request is not applicable to the breach of contract and account stated causes of action pled  as they do not seek "items of an account." The Court clarified that a bill of particulars "is not applicable to a contract or promissory note which has an account for its consideration" and that it only applies to "actions based upon contracts seeking to recover 'items of an account.'" (Distefano v. Hall (2nd Dist. 1963) 218 Cal. App. 2d 657, 677). As Plaintiff is not seeking "items of an account," a bill of particulars is inapplicable here.

 

However, as a courtesy and in an attempt to resolve this matter, Plaintiff will furnish to you all documentation it has in its current possession, custody, and control which includes: the card member agreement, Bill of Sale with redacted Loan Schedule, Affadavit of Sale and Statements dated February 2011 - February 2012. Should additional information become available it will be furnished in response to the discovery requests you propounded upon Plaintiff.

 

Sincerely,

Newb Lawyer

Mandarich Law Group, LLP

Attorneys for Plaintiff CACH, LLC

 

------------------------------

 

What they actually attached to this resonse was 3 different pages of "Bill of Sale" documents with various signatures,

a section called Notification Files followed by several pages of a computerized printout with headings related to "my account" listing account number, name, address, etc. and 12 billing statements. I'm attaching these documents below. Notably missing was the "redacted loan schedule" (which I'm not even sure as to what that is exactly), and probably most importantly the card member agreement showing me and the original creditor entering into a binding contract.

 

So at this point I'm considering getting a lawyer to help me out because I have no idea what to do next or what my options are. I'm hoping someone here might be able to help me out.

 

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Did they send you a Declaration (or Affidavit) in Lieu of Testimony Pursuant to CCP 98? Or something similarly titled?

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Did they send you a Declaration (or Affidavit) in Lieu of Testimony Pursuant to CCP 98? Or something similarly titled?

Nope. Nothing at all after that last item.

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@calmbeforethestorm let me get this straight. The bill of sale 3 pages above, and the affidavidt posted above is everything they sent you? Is it your actual trial in 17 days, or is it a case management conference? If it is actual trial, you could be very lucky.

There is a thread pinned in this forum called "questions to answer when posting in this forum. Copy and paste those questions here, redact personal info. Then we can help you better when things are clarified.

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Re read, so that data printout is the redacted loan schedule. Not to worry though, it was printed by cach. 12 billing statements that are unauthinticated. They are suing you on account stated, so they really don't need the card member agreement. If the billing statements show any payments on the account, that is your agreement. Credit cards do not have signed agreements much anymore. But they don't have anything that can authenticate the here say documents they sent you. We need to know if your actual trial is in 17 days.

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1. Who is the named plaintiff in the suit?

CACH, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Mandarich Law Group, LLP

3. How much are you being sued for?
$3000

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

5. How do you know you are being sued? (You were served, right?)
Papers left at doorstep (not served right, got a copy of proof of service where they said they served me in person.

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

7. Was the service legal as required by your state?
No, but I think we are passed that

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Letters sent to me for collecting a debt

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)

Sometime in 2011

11. What is the SOL on the debt? To find out:

4 years (They are within the statute of limitations, suit was brought on in 2013)

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

 

(Non-jury trial set for 6/05)

 

NOTICE OF TRIAL MAILED

NON-JURY TRIAL SET FOR 06/05/15, 08:30 AM, DEPT F43

OSC VACATED - RESPONSIVE PLEADING FILED; CASE SET FOR CMR

FEE WAIVER FILED

RESPONSE FILED

PROOF OF SERVICE TO COMPLAINT FILED

CMR SET 08/05/13, 0830 AM, DEPT. 108, NOTICE FILED & MAILED

COMPLAINT FILED - COLLECTION CASE

SUMMONS FILED

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?

 

The charges are "Breach of Contract" and "Account Stated"

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence. Just Declaration of Venue and Declaration in Support of Reduced Filing fee.

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It's better to send the ccp 96 but it's too late now, but that's OK, don't worry about it.

If you didn't receive a declaration in lieu of live testimony then ccp98 will not apply.

Affidavits are inadmissible at trial if objected to as hearsay. CA evidence code 1200. The case to cite is Elkins v Superior Court.

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It's better to send the ccp 96 but it's too late now, but that's OK, don't worry about it.

If you didn't receive a declaration in lieu of live testimony then ccp98 will not apply.

Affidavits are inadmissible at trial if objected to as hearsay. CA evidence code 1200. The case to cite is Elkins v Superior Court.

Thanks @Anon Amos !

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It's always better to send a CCP 96 request - it requires them to disclose ahead of time the evidence/witnesses they plan to introduce at trial, allowing you to focus your preparation on those listed items.

 

Looks like they've already sent you the typical documents they send everyone (the card member agreement, Bill of Sale with redacted Loan Schedule, Affadavit of Sale and Statements dated February 2011 - February 2012) - besides a CCP 98 (which they didn't send), I can't think of any other documents a JDB typically uses in these cases.

 

As Anon notes above, affidavits are inadmissible at trial (so long as you object properly). They need a real person to come in and authenticate the documents they plan to use, you should prepare to cross-examine a possible witness.

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have you checked the court docket? and just double check they haven't file one with the court. some JDB's file CCP98s with the court but make little "oops" and do not send them to the defendant, then claim they did.

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Just looked at your bills of sale.  They are all dated in 2013, although the document states that the transaction occurred in 2012.

 

None of these documents should be admissible without a witness on the stand saying that they are true and correct copies of Bills of sale executed on or about the date in question.

 

However, even if there is someone who can authenticate them, the documents are still hearsay.  Usually, they would come in under the business records exception to the hearsay rule.  However, in your case, with a document apparently created in 2012 but not executed until 2013, they just could not say that the documents were "made at or near the time of the act, condition, or event".  And that is a requirement of the business records exception to the hearsay rule.  See Cal Evidence Code section 1271 b:  http://codes.lp.findlaw.com/cacode/EVID/1/d10/2/7/s1271

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have you checked the court docket? and just double check they haven't file one with the court. some JDB's file CCP98s with the court but make little "oops" and do not send them to the defendant, then claim they did.

If by court docket you mean case summary then yes, I checked that. There was nothing on there indicating that they did.

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Just looked at your bills of sale.  They are all dated in 2013, although the document states that the transaction occurred in 2012.

 

None of these documents should be admissible without a witness on the stand saying that they are true and correct copies of Bills of sale executed on or about the date in question.

 

However, even if there is someone who can authenticate them, the documents are still hearsay.  Usually, they would come in under the business records exception to the hearsay rule.  However, in your case, with a document apparently created in 2012 but not executed until 2013, they just could not say that the documents were "made at or near the time of the act, condition, or event".  And that is a requirement of the business records exception to the hearsay rule.  See Cal Evidence Code section 1271 b:  http://codes.lp.findlaw.com/cacode/EVID/1/d10/2/7/s1271

@calawyer. Yeah I noticed that too but wasn't sure what to do with that info. Thanks for the tip. This will really help me as I prep for trial.

As for the redacted loan schedule can they use that somehow to show proof. Where does that fit in? I'm a little confused on that.

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@calawyer Also I noticed the affadavit is dated March 29, 2013 (after they filed the lawsuit).
I just looked it over and it doesn't actually mention the date of the sale just the amount due on 3/22/12
Not sure what the legalities are but seems like something I might be able to use against them.

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Yes.  I saw that too.  First and foremost, affidavits are not allowed at trial.  Elkins v. Superior Court.  But even if they were, this is not a "business record".  It was prepared for the purpose of litigation.

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No.  You will cross examine the witness to establish that he/she has no personal knowledge of GE Capital's records.  And you will object to the entirety of the testimony.

 

That is, if they actually bring a witness.

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So maybe I freaked out prematurely. I just need to do my research and prep well for court.
I've never stepped inside a courtroom so I don't know what to expect. I guess I'll have to find some good books on representing yourself.

 

Also,

I've stumbled upon some very important information.

Two of the 3 people who supposedly signed the bill of sale were no longer employed by their respective banks when the sale supposedly occured let alone when they "signed" the bill of sale. I checked out their professional profiles on linked in. Both of them had left their companies a year before the sale.
Seems like I should be able to bring this up in court.

Anyone know how I could go about that?

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Go watch some live trials. Sit in on someone else's problem, and watch how court procedings are handled. You will be more comfortable when your time comes.

If you have info on these people from LinkedIn etc. Bring it to trial with you and or include it in your objection to the BOS.

When they object as hearsay, argue that it's not hearsay becomes you are not using it to show the truth in the matter asserted; but for impeachment purposes and to show the matter asserted (these people worked there when they claimed ) is not true.

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When they object as hearsay, argue that it's not hearsay becomes you are not using it to show the truth in the matter asserted; but for impeachment purposes and to show the matter asserted (these people worked there when they claimed ) is not true.

If you are asserting these people didn't work for their companies at the time they claim (which you are), you'll never get the LinkedIn info admitted for this purpose (unless the judge is a moron).  Anything short of live testimony from whoever entered the dates to assert that they themselves did enter the dates, and that the dates are correct, is hearsay. 

 

Otherwise, I can create a website called BanksThatLie.com and introduce a posting from "GE Capital" stating they never held any accounts in the name of calmbeforethestorm.  By the same token, CACH could create a website called DeabbeatsThatLie.com and introduce a posting from "calmbeforethestorm" stating he opened and used the account and agrees that CACH owns the debt and he now owes the debt to CACH.  Neither of these things are admissible for the purpose of proving the truth of the statements being made.

 

At best, you could get the LinkedIn profile info admitted for nothing more than to show that the LinkedIn website said 'such and such'.  But just because it says 'such and such' doesn't make the 'such and such' an undisputed fact.  If the judge has 2 brain cells to rub together he will know anyone (including the defendant) could have created those profiles and/or the dates could have been entered incorrectly.

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