AuthorCat

Being Sued by LVNV through Hunt & Henriques in California

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I would like someone who is from California to help advise, please. Understanding that the new law, the Fair Debt Buying Practices Act (California Code Section 1788.50 - 1788.64), puts stricter validation responsibilities on JDBs, and I need to draft a BoP, should I mention this new law in my BoP?  Or just KISS (keep it simple, stupid)? The FDBPA, by the way, is mentioned in the Complaint.

Also, I've read at Nolo the following:

 

Quote

 

Defenses to Debt Buyer Collection Lawsuits

If a debt buyer sues you for collection of a debt, there are a number of defenses you may be able to use to challenge the debt buyer's right to collect on the debt. Here are some of the most common defenses to a debt buyer lawsuit.

Missing Paperwork

In many states, a debt buyer must have paperwork demonstrating the agreement between you and the original creditor in order to sue you or to add interest or attorneys fees onto the balance. For credit card debts, this paperwork is often in the form of a cardmember agreement. Cardmember agreements have information about which state law applies to the case and how much the debt buyer can collect in interest and attorneys fees.

Often a debt buyer does not have this paperwork, and may never be able to get it from the original creditor. Many creditors do no cooperate when debt buyers ask for cardmember agreements, often because they have sold the debt "as is."

Some debt buyers will attach your regular billing statements to the lawsuit, and try to pass them off as the cardmember agreement. However, this is not a sufficient substitute for the actual agreement.  http://www.nolo.com/legal-encyclopedia/common-defenses-debt-buyer-lawsuits.html

 

Do I therefore specifically request in the BoP the cardmember agreement?

Also, based on my case below, do I need to check #2 on the General Denial (the Complaint has not been verified, only venue and certificate of assignment of the complaint have "I declare under penalty of perjury..." and signed by the attorney)?

Any and all advice how to proceed is very welcome.

 

1. Who is the named plaintiff in the suit? LVNV Funding, LLC

2. What is the name of the law firm handling the suit?  Hunt & Henriques

3. How much are you being sued for?  $1387.39

4. Who is the original creditor? Credit One Bank

5. How do you know you are being sued?  Summons & Complaint in Civil Court ~ Not verified.

6. How were you served?  In Person

7. Was the service legal as required by your state?  Yes

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, San Bernardino

10. When is the last time you paid on this account?  No grounds for SOL (4 yrs in CA)

11. What is the SOL on the debt?  California SOL: 4 Years

12. What is the status of your case? Just Served (Christmas Eve 2015)

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?  No

15. How long do you have to respond to the suit? 30 days  ~ Complaint for (1) Account Stated, (2)  Open Book Account.

 Did you receive an interrogatory (questionnaire) regarding the lawsuit?  No

16. What evidence did they send with the summons? Exhibit A: credit card statement (07/2014) ; Exhibit B: credit card statement (02/2015) That's it.

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8 hours ago, AuthorCat said:

I would like someone who is from California to help advise, please. Understanding that the new law, the Fair Debt Buying Practices Act (California Code Section 1788.50 - 1788.64), puts stricter validation responsibilities on JDBs, and I need to draft a BoP, should I mention this new law in my BoP?  Or just KISS (keep it simple, stupid)? The FDBPA, by the way, is mentioned in the Complaint.

Also, I've read at Nolo the following:

 

Do I therefore specifically request in the BoP the cardmember agreement?

Also, based on my case below, do I need to check #2 on the General Denial (the Complaint has not been verified, only venue and certificate of assignment of the complaint have "I declare under penalty of perjury..." and signed by the attorney)?

Any and all advice how to proceed is very welcome.

 

1. Who is the named plaintiff in the suit? LVNV Funding, LLC

2. What is the name of the law firm handling the suit?  Hunt & Henriques

3. How much are you being sued for?  $1387.39

4. Who is the original creditor? Credit One Bank

5. How do you know you are being sued?  Summons & Complaint in Civil Court ~ Not verified.

6. How were you served?  In Person

12. What is the status of your case? Just Served (Christmas Eve 2015)

15. How long do you have to respond to the suit? 30 days  ~ Complaint for (1) Account Stated, (2)  Open Book Account.

 16. What evidence did they send with the summons? Exhibit A: credit card statement (07/2014) ; Exhibit B: credit card statement (02/2015) That's it.

1. since the complaint is not verified your answer will need to be filed within 30 calendar days from the day you were served. a simple general denial will suffice.

2. in your place I would send the BOP template that can be found on these threats, which was drafted by the  one and only Calaywer. just keep it simple. the BOP demands plaintiff to set forth all items and details of the account. arguably, that includes any signed agreement.

Bill of Particulars request.doc

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1 minute ago, sadinca said:

1. since the complaint is not verified your answer will need to be filed within 30 calendar days from the day you were served. a simple general denial will suffice.

2. in your place I would send the BOP template that can be found on these threats, which was drafted by the  one and only Calaywer. just keep it simple. the BOP demands plaintiff to set forth all items and details of the account. arguably, that includes any signed agreement.

Bill of Particulars request.doc

Thanks so much for responding, SadinCa! I will send my BoP tomorrow, CMRRR, as advised in these threads.

Quote

1. since the complaint is not verified your answer will need to be filed within 30 calendar days from the day you were served. a simple general denial will suffice.

The language on the Summons states:

"You have 30 CALENDER DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff."

I was served around 9:30 a.m. that morning. Reading the above, will the 30 calendar days clock start ticking beginning the following day or the day I was served?

Another question: since there are two causes of action and they're identical in language (looks like copy and paste) and one is "Account Stated" but the 2nd one is "Open Book Account", can I use the Open Book Account in my BoP to avoid an Objection by LVNV's attorney's? Since I understand that Account Stated allows the Plaintiff (Plaintiff's attorneys)  to OBJECT to the BoP, maybe it's a good idea to draft my BoP using the 2nd cause of action?

Thanks so much for your invaluable help, SadinCa!

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if you were served, lets say, at 9am on December 12. December 13, would be day one. However, I would not wait to the last day to file my response. in my experience we always filed on 2 or 3 days before the deadline. you never know what could happen. I almost miss my deadline once because I counted the days wrong. (some months have 31 days... who knew!)

I would send the BOP as it was drafted. Plaintiff cannot pick and chose which cause of action to apply in their response. if they do I would pressure with a Meet and Confer letter.

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if you were served, lets say, at 9am on December 12. December 13, would be day one. However, I would not wait to the last day to file my response. in my experience we always filed on 2 or 3 days before the deadline. you never know what could happen. I almost miss my deadline once because I counted the days wrong. (some months have 31 days... who knew!)

I plan to file and serve my General Denial + PoS exactly in the timeline as you advised. I've already marked it on my calendar. :-)

 

Quote

I would send the BOP as it was drafted. Plaintiff cannot pick and chose which cause of action to apply in their response. if they do I would pressure with a Meet and Confer letter.

Okay. Will do. I just thought that I'd get a better response if I could point to the 2nd cause of action. Will be CMRRRing my BoP tomorrow morning. I will continue to update this thread as the case proceeds.

Thanks for your help, SadinCa! I've got more clarity and it's a really, really nice feeling.

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we used to do it that way, citing all causes of action, Calawyer suggested this new version.

 

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even if you cite both cause of action on your case, it is likely that they will object to one of them (account stated) and disregard the other one.

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7 hours ago, sadinca said:

even if you cite both cause of action on your case, it is likely that they will object to one of them (account stated) and disregard the other one.

Sometimes the law is so strange! You'd think that, when they take the time to draft two causes of action, they were making stand-alone arguments that could be addressed separately, but now I read that they can just disregard the other if they object to one. I mean, they're going to, anyway - at least, I expect them to - but then I do find that curious in law.

Anyway...I need to fill out my PoS (30) for the BoP...there are three attorneys listed on the Complaint. But only one signed the documents under the venue section...do I list all three on the PoS "Name of person served"? Or just the one who signed the venue verification?

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Stranger than fiction.  

 

During our cases, we addressed the POS and all correspondence to the firm handling the case (pos: midland management llc. M&C: dear midland management llc.) I figure they will sort their correspondence to the appropriate lawyer of the day, i dont have to make it easier for them. 

You may see correspondence from one or more lawyers of the firm. 

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20 minutes ago, sadinca said:

Stranger than fiction.  

During our cases, we addressed the POS and all correspondence to the firm handling the case (pos: midland management llc. M&C: dear midland management llc.) I figure they will sort their correspondence to the appropriate lawyer of the day, i dont have to make it easier for them. 

You may see correspondence from one or more lawyers of the firm. 

I'll just address all correspondence and PoS's to the firm handling the case, then. No need to mention specific attorneys. They'll sort it out. :-)

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On 1/7/2016 at 11:36 PM, sadinca said:

 

I saw under another thread by bikermunda that you posted that it wasn't necessary to send the Plaintiff (in this case, H&H who are representing them) a signed copy of the Answer. Does that apply to the answer in the form of a General Denial, too, SadinCa? Or do they require I send them a stamped copy of the Gen. Denial?

This is what you posted:

 

Quote

 

once your general denial is ready and good to go, you will then prepare a proof of service.

http://www.courts.ca.gov/documents/pos030.pdf

you will make 2 copies of those documents. one goes to the plaintiff (you do not have to mail them a stamped copy of the answer), The original and one copy you will take to court, they will after you pay your initial fees, they will stamp them both and you will keep a copy.

 

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The general denial you serve upon the plaintiff is not required to be a stamped copy. you can serve it, then file in court along with the POS.

The reason I do it this way is because if I file first my general denial, then serve a stamp copy, I would have to return a second time to court in order to file the POS. the clerk will now allow you to file a POS if the general denial has not been served, for obvious reasons.

 

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1 hour ago, sadinca said:

The general denial you serve upon the plaintiff is not required to be a stamped copy. you can serve it, then file in court along with the POS.

The reason I do it this way is because if I file first my general denial, then serve a stamp copy, I would have to return a second time to court in order to file the POS. the clerk will now allow you to file a POS if the general denial has not been served, for obvious reasons.

So the court will be fine with that? They won't put up a stink that it had to be a stamped copy served on the Plaintiff, and that I was bad for not having done it, yada, yada, yada.

Also, I've served the BoP on the Thursday on the 7th and they received it on the Monday the 11th (have no idea why it took so long since they're in CA, too!). I haven't heard from them yet. Not even an objection. Is this normal?

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7 minutes ago, AuthorCat said:

So the court will be fine with that? They won't put up a stink that it had to be a stamped copy served on the Plaintiff, and that I was bad for not having done it, yada, yada, yada.

 

Very unlikely that that will be the case.  in the very bizarre case that they do make a stink as you mention, just file your answer then re-serve a signed copy.  but that shouldn't stop you from filing your answer. I wouldn't wait to file my answer on the last date though.  during a friends case, the court wouldn't take my friends answer because their card reader was down and would only take cash payments. she had to scramble to find an atm before the clerks closed the window.

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18 minutes ago, AuthorCat said:

Also, I've served the BoP on the Thursday on the 7th and they received it on the Monday the 11th (have no idea why it took so long since they're in CA, too!). I haven't heard from them yet. Not even an objection. Is this normal?

snail mail takes a few days even when mailing within California. during my case plaintiff was only 10 miles away, same county, and mail would arrive on the 3th day. however, your BOP demand should give plaintiff with 10days +5 for mailing for them to serve their response.  to my counts, they still have 2 more days to serve their answer, and 3 days for USPS to deliver it, so just hold on tight a week or so. 

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1 hour ago, sadinca said:

Very unlikely that that will be the case.  in the very bizarre case that they do make a stink as you mention, just file your answer then re-serve a signed copy.  but that shouldn't stop you from filing your answer. I wouldn't wait to file my answer on the last date though.  during a friends case, the court wouldn't take my friends answer because their card reader was down and would only take cash payments. she had to scramble to find an atm before the clerks closed the window.

The last day to file is Saturday, the 23rd. I'm filing tomorrow, Thursday the 21st. If their card reader is down, I still have Friday.

So the Gen. Denial is my Answer, yes? I just don't want to have to stand in front of the clerk and have them tell me I need to file an Answer in addition to the Gen. Denial.

Thanks so much for helping me, sadinca. Without this board and your experience, I would've been tearing my hair out of the roots by now!

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1 hour ago, sadinca said:

snail mail takes a few days even when mailing within California. during my case plaintiff was only 10 miles away, same county, and mail would arrive on the 3th day. however, your BOP demand should give plaintiff with 10days +5 for mailing for them to serve their response.  to my counts, they still have 2 more days to serve their answer, and 3 days for USPS to deliver it, so just hold on tight a week or so. 

I'll do that, sadinca. I just thought they'd be happy as could be to serve me with an objection to my BoP since they claim it's "Account Stated". But they still have five days, so it can still happen and they just want to drag this out to make it more of a nail-biter for kicks and giggles. :rolleyes:

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6 minutes ago, AuthorCat said:

So the Gen. Denial is my Answer, yes? I just don't want to have to stand in front of the clerk and have them tell me I need to file an Answer in addition to the Gen. Denial.

Thanks so much for helping me, sadinca. Without this board and your experience, I would've been tearing my hair out of the roots by now!

yes, the general denial is your answer. you are generally denying all the allegations within the complaint. if you have any affirmative defenses (e.g. Statute of limitations) you would check the box on field #2 and state the fact on the field below it.

no worries. just paying it forward.

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As SadinCa mentioned,  you do not have to have documents stamped by the court before sending them to the bottom feeders. 

In fact,  you are better off if you save the stamped copies of documents for your records. 

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51 minutes ago, sadinca said:

yes, the general denial is your answer. you are generally denying all the allegations within the complaint. if you have any affirmative defenses (e.g. Statute of limitations) you would check the box on field #2 and state the fact on the field below it.

no worries. just paying it forward.

Whew! Thank  you! It's already so expensive to file as it is, and then should I have had to file two responses it would just break my very thin piggybank.

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24 minutes ago, Anon Amos said:

As SadinCa mentioned,  you do not have to have documents stamped by the court before sending them to the bottom feeders. 

In fact,  you are better off if you save the stamped copies of documents for your records. 

I never knew this was possible. I thought I always had to make two stops to the courthouse to get them a court-stamped copy and a signed PoS. Thanks to experienced people who share their experiences on this board, I've learned so much already.

You all are AWESOME!

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5 minutes ago, AuthorCat said:

I never knew this was possible. I thought I always had to make two stops to the courthouse to get them a court-stamped copy and a signed PoS.

That was my impression too. a few times I filed my documents on one day, the next day I would go again, dragging my two year old during my day off or take time off work, stand in line for 30 minutes on a good day, just to file the POS.  such a pain.  until I stop doing it that way.

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Those are very common misconceptions.  It is possible to make far fewer trips to court and get better results with the POS when you carefully plan it all out to your advantage. 

I always mailed the POS myself as well , but I did have a friend sign it after I filled it out for them.

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7 hours ago, sadinca said:

That was my impression too. a few times I filed my documents on one day, the next day I would go again, dragging my two year old during my day off or take time off work, stand in line for 30 minutes on a good day, just to file the POS.  such a pain.  until I stop doing it that way.

I hear you. I had to go pick up my daughter early from school, drive twenty minutes, and with a tired child in tow, wait around a half hour or so to first file the papers then come back the next day to file the PoS my husband had mailed the day before. If the courthouse was close by (as it is now), I wouldn't have minded. But it was twenty minutes on the freeway! And only with good traffic. Ugh.

Believe it or not, speak of the devil...I received a letter today from H&H. I'm thinking it was the expected objection to my BoP. Nope. They sent me a settlement offer! They're offering me a chance to settle a debt they've never validated, willing to settle for a little more than a third of the the amount they're suing me for. Why are they doing that?

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7 hours ago, Anon Amos said:

Those are very common misconceptions.  It is possible to make far fewer trips to court and get better results with the POS when you carefully plan it all out to your advantage. 

I always mailed the POS myself as well , but I did have a friend sign it after I filled it out for them.

Yep. Planning is everything. I did everything by the book! I had other people outside of my family sign and mail the court-stamped docs, although I had filled them out for them. For some strange reason, it was in my head that they could somehow see if I or someone else went to the post office. I was a little paranoid. lol

By the way...today I received a letter from H&H. I thought it was their objection to my BoP but instead, it's a settlement offer! They're offering to settle for a little over a third of the amount they're suing me for. What does this say about their case? What should I read into it?

I still plan to file my Gen. Denial tomorrow, though.

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