lthrwing

Sued by Portfolio Recovery Orange County CA Summons and Complaint

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Hi! Thank you for putting this site together. I have never been sued. I have looked through the posts on this site but I am still very confused on how to reply to the Summons Complaint. I would like to create a post that is clear and detailed on how to address this Summons in the hopes of assisting anyone else facing the same. Please help. I think I would like for the Plaintiff, Portfolio Recovery Associates, to drop the case. I am not sure how to proceed. If I can't get them to drop the case then settling for a smaller amount to pay them is my second hope. I am unemployed. I do have all the pages of the Summons & Complaint scanned and can upload them if needed. The Summons was served at my door and I have 30 days from 08/18/16 to respond. I do owe the money but it was owed to Capital One Credit Card. I would rather not pay the amount since I am unemployed but if I have to I would like to have to pay a lot less. I would also like this to go away as easily and painless as possible. I would rather not have to go into the Court House. Please tell me in detail the steps I should take. The following are my beginning questions;

-Do I want to challenge the Plaintiff by requesting they supply proof I owe them the money in the hopes of them not wanting to put that much effort into the case or do I want to request Arbitration or should I submit something else?

-What do I send in reply to the Summons, what does it look like and what should it say?

-Do I send my reply USPS Certified with tracking and proof of delivery?

-Is the Summons and Complaint valid and done correctly? Is there anything about this Summons and Complaint that says it's an easy win for me?

 

I noticed that others have posted specific questions and answers to help assist so I am supplying that info as well;

1. Who is the named plaintiff in the suit?
Portfolio Recovery Associates.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Hunt & Henriques.

3. How much are you being sued for?
$1967.00.

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

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

6. How were you served? (Mail, In person, Notice on door)
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?
By mail by Portfolio stating they will open a case.

9. What state and county do you live in?
California, Orange County.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Jan 2014.

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

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).
Summons and Complaint, waiting to respond.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
I have not.

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.
I have not.

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 from 08/18/16 (day served), They did not include a questionnaire.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.                                                                                                                  No Affidavit. Included Exibit A which is a copy of a Statement from Capital One from Jan 2014 showing I made a payment and Exibit B which is another Statement from Capital One showing I did not make a payment for Feb 2014 and also an attached document that states "Your Account Has Charged Off, it is now being serviced by the Recoveries department, call 1-800-###-#### if you have questions about this notice." with no other information on that document. No Contract.

Please help me and others by explaining to me step by step what I should do now that I have been served. Thank you all!

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The above snapshots are most of the pages that came in my Summons and Complaint form Portfolio Recovery. I left out a couple pages that were part of the Statements from the Original Creditor Capital One that talked about the Interest Rate, Making Late Payments and so on.

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Welcome.

It does not appear that your complaint was verified, so you can file a general denial instead of going through the complaint paragraph by paragraph admitting or denying each allegation (a verified complaint swears, under oath, that the allegations of the complaint are true.  There is a simple form to fill out for a general denial.  Here is a link:  http://www.courts.ca.gov/documents/pld050.pdf

 

Once you file (and serve on plaintiff's lawyer) the general denial, the Complaint is "at issue".  That means plaintiff has to prove its case against you and may not simply get a default judgment.  Assuming it is true that you were served on 8/18, you have 30 days from that date to file the general denial.

If you have any questions about filling out the form, simply ask and we will help.

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Hi calawyer! Thanks for the quick reply! I wasn't clear on the understanding of "verified/unverified", so I researched it a bit and guess what? I got confused again... of course! LoL!


Please correct me if I'm wrong, the two most COMMON ways to reply to a Summons and Complaint like this one is by either a General Denial or an Answer. Since you mention that it appears to you that only a General Denial is needed as a reply because the Summons and Complaint seems to be UNVERIFIED, I researched that.


After some research I found the following (let me know if this is not correct please);


"A general denial is a blanket denial of all the allegations in the complaint.  You may use the general denial form (PLD-050) if the complaint is UNVERIFIED; or if it is VERIFIED, if it’s a limited civil case.  A limited civil case is where the amount the creditor is asking for is less than $25,000. However, if your case is one where the person suing you is a third party who is collecting the debt for someone else and you’re being sued for more than $1,000, you cannot use the general denial form and will have to use the answer form."


"A verified complaint will have a verification page somewhere in the documents that you were served.  A verification will declare under penalty of perjury that the complaint is true and correct.  This is not the same as a declaration regarding venue, which looks similar to a verification page. The declaration regarding venue will just talk about where you live and why filing the suit in a particular court is proper.  If it doesn’t mention that the allegations in the complaint are true, then it’s not a verification."


"Most complaints here in Ca do not have to be verified under penalty of perjury. Things can be alleged under information and belief. The latter gives you more room to change your allegations etc as more information and facts are discovered. Harder to do when you verify your allegations under penalty of perjury. If the complaint is verified in CA, then the answer must be verified as well."


"A verified complaint is one signed by the party or the attorney who verifies the contents to be true."


"Verifications are signed and notarized by the person signing the document."


"A VERIFIED Complaint is where the plaintiff (or, in limited cases, the plaintiff's counsel) swears to the allegations, demonstrating to a court that the plaintiff has investigated the charges against the defendant and found them to be of substance. In many jurisdictions, a complaint does not need to be verified unless a rule or statute specifically states otherwise.


Typically a plaintiff verifies a complaint by attaching a page at the end containing a statement made under oath that:

•The plaintiff has reviewed the complaint.

 

•Regarding the allegations of which the plaintiff has personal knowledge, the plaintiff knows or believes them to be true.


•Regarding the allegations of which the plaintiff does not have personal knowledge, the plaintiff believes them to be true based on specified information, documents, or both."

 

"Complaints in California can be unverified, or verified. Most complaints are unverified unless a particular statute or code provides otherwise, although any complaint may be verified at the option of the plaintiff."


"A VERIFIED complaint means one that is supported by an affidavit. You can tell it is "verified" if it bears a notary signature and seal (usually on the last page of the pleadings). An "unverified" complaint simply means that the litigant (or counsel) has signed the complaint but it is not notarized."


"A general denial is a blanket denial to the whole complaint. Unlike a specific denial, there is no need to respond to the allegations individually, paragraph by paragraph. This is permitted only for unverified complaints. Code of Civil Procedures 431.20(a)."


"An answer is a formal statement, in writing, of your defense to the lawsuit. You can say that what the plaintiff claims is not true. Or you can say it is true but give more information and reasons to defend your actions or explain the situation. There are some answer forms that you can use depending on the type of case you have:

•Answer-Contract (PLD-C-010)
•Answer-Personal Injury, Property Damage, Wrongful Death (PLD-PI-003)

If you do not find the correct form to fit your case, you will have to formally prepare the document on pleading paper in accordance with the California Rules of Court, rules 2.100 to 2.119 . Code of Civil Procedure section 431.30(b)  explains what you should put in your answer."


"The General Denial (PLD-050) form can be used in certain types of civil cases, but not in others. It is a form that generally denies what the plaintiff is claiming. You must use this form if the amount asked for in the complaint or value of property involved is $1,000.00 or less. You may use a General Denial form if the complaint is not verified or the complaint is not verified and the case is a limited civil case ($25,000.00 or less) BUT NOT if the complaint involves a claim for more than $1,000.00 that has been assigned to a third party for collection."


So looking at my Summons and Complaint we see that LIMITED CIVIL is indicated, the Plaintiff is asking for more than $1,000.00 but less than $25,000.00, there isn't a Verified document and Portfolio Recovery IS NOT considered a Third Party collecting the debt for someone else because in the Complaint it's mentioned, in line#4, 7, 12, 17 and 23 (see pictures in above snapshots), that Portfolio Recovery is now the owner. So it does seem that a General Denial reply answer is allowable.


You said, "Once you file (and serve on plaintiff's lawyer) the general denial, the Complaint is "at issue".  That means plaintiff has to prove its case against you and may not simply get a default judgment".

So calawyer, are you thinking that if I submit the Answer/reply as a General Denial, that Portfolio Recovery will not want to waste the time and drop the case??


Question is.... will Portfolio Recovery be able to prove that I owe Portfolio Recovery the money I owed Capital One?

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13 hours ago, lthrwing said:

 

So looking at my Summons and Complaint we see that LIMITED CIVIL is indicated, the Plaintiff is asking for more than $1,000.00 but less than $25,000.00, there isn't a Verified document and Portfolio Recovery IS NOT considered a Third Party collecting the debt for someone else because in the Complaint it's mentioned, in line#4, 7, 12, 17 and 23 (see pictures in above snapshots), that Portfolio Recovery is now the owner. So it does seem that a General Denial reply answer is allowable.

I do not see any verification form in the documents you have posted.  Just for future reference (and for other posters), here is an (unsigned) verified complaint for federal court:  http://www.barbieslapp.com/spam/sexsearch/complaint.pdf (last page). And here is one for state court where the plaintiff has used a verification form:  http://www.layman.org/Files/fpc-roseville.pdf (last page).


You said, "Once you file (and serve on plaintiff's lawyer) the general denial, the Complaint is "at issue".  That means plaintiff has to prove its case against you and may not simply get a default judgment".

So calawyer, are you thinking that if I submit the Answer/reply as a General Denial, that Portfolio Recovery will not want to waste the time and drop the case??

Probably not--at least not immediately.  If you read other posts on the board, you will see that debt buyers send some discovery and also do a pretty poor job of responding to your discovery.  Every debt buyer is a bit different but many will dismiss shortly before trial if you demonstrate to them that you understand the game and are ready to proceed.


Question is.... will Portfolio Recovery be able to prove that I owe Portfolio Recovery the money I owed Capital One?

Exactly!

 

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1 hour ago, Xerxes said:

Is it common in California for debt buyer plaintiffs to not even bother with a breach of contract count in the complaint?

Yes.  That cause of action is fraught with peril for JDBs because they can't prove the contract, much less that it has been breached.

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calawyer, thank you for posting the Verification examples. I agree that it appears that the Plaintiff has not included a Verification Form within my Summons and Complaint. So, a General Denial is what I need to now fill out.

I do see you mentioned earlier that I will need to mail (serve) the Plaintiff Attorney, but I was hoping to get a little more detail... reason for my question below.

Question: Once I obtain the General Denial Form, fill it out and I'm ready to mail it, how many copies do I need? Will I just be mailing the General Denial or will I need to send other documents with the General Denial and if so what are those other documents? Once I have all I need to mail, who do I mail to; the Court House and the Plaintiff's Attorney? And, do I send by USPS Certified with Proof of Delivery to both the Court and the Attorney?

 

I'm hoping to get a step by step list posted by one of you showing a "most likely" path of action based on my Summons and Complaint.

So far this is what it looks like;

1. Was served at home with the Plaintiff's, Portfolio Recovery, Summons and Complaint.

2. Noted that the Summons mentions the Amount of Time I have to respond.

3. Noted the Complaint mentions Limited Civil and the Amount I'm being sued for.

4. Noted the Summons and Complaint packet is divided into several parts; 1) the Summons. 2) the Complaint. 3) the Exibit. 4) the Statement of Location/Venue. 5) the Civil Case Cover Letter. 6) the Alternative Dispute Resolution (ADR) Info Package.

5. Thoroughly read and researched every page of the Summons and Complaint.

6. Due to this wonderful website and the graciousness and expertise of Poster calawyer, it was brought to attention that my Summons and Complaint doesn't contain a Verification Form/Document and is a Limited Civil Case and is a case seeking more than $1,000.00 but less than $25,000.00 and the Plaintiff, Portfolio Recovery, is not a third party collecting a debt for someone else but is the proclaimed owner... which means I am able to respond to the Summons and Complaint using a General Denial Form.

7. Need to obtain the General Denial Form and fill it out.

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You'll need the General Denial, along with a Proof of Service (POS). First class mail is good enough for most everything in your case. This corresponds to USPS 1st class: POS-030.

You will need someone to serve (mail)  both items to the plaintiff's attorney. That person must be an adult & not a party to the lawsuit: so a friend, relative, co-worker, etc. You can file the GD & POS yourself at your courthouse.

You can follow this procedure: Fill out and sign your General Denial & fill out (but don't sign) the POS. Make a copy of each and give the copies to the person who will serve it (mail it) for you. They will mail the GD & unsigned POS to the plaintiff's attorney. Have them sign the original POS. Take the originals to the courthouse and get them time stamped, then have them make copies, then file the stamped originals and keep the copies for your records.

Proof of delivery/tracking: You don't need this for the General Denial. What matters is filing it with the courthouse, you don't need to document that the plaintiff received it - save your money. This is probably the only time you don't need proof of delivery. You'll want proof of delivery for just about everything else in your case. You can use Certified Mail with Return Receipt Requested (CMRRR) at the post office for that.

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Nice!! Thanks RyanEX!

So, regarding the documents I now need in order to reply/respond to my Summons and Complaint, the General Denial and the Proof of service or POS, starting with the General Denial;

I have now looked at the General Denial Form that calawyer kindly supplied in earlier posts, but I now have questions on how to fill it out. If you guys could assist that would really be great!

1. On the General Denial, in the top left section it states ATTORNEY OR PARTY WITHOUT ATTORNEY and asks for name, address, email and so on. Is this where I put the Plaintiff's Attorney info?

2. Below that is states SUPERIOR COURT OF CALIFORNIA , COUNTY OF and asks for address and branch. The Court involved in my case is the Superior Court of California, County of Orange, Central Justice Center, Civil Division. What do I need to put in the Branch section?

3. Beneath that is the Plaintiff Section where I assume the Plaintiff's Name is entered.

4. Beneath that is the Defendant Section where again I assume my name is entered.

5. To the right of that is the Case Number section where I assume I enter the case number.

6. Beneath all that is a section describing reasons why I can or can't submit a General Denial.

7. Beneath that is Number 1 which asks for the Defendants Name where I assume I put my name.

8. Beneath that is Number 2 Check Box which states DEFENDANT STATES FOLLOWING FACTS AS SEPERATE AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Do I check this box and if so what do I need to write?

9. Beneath that I date and print and sign my name.

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1. On the General Denial, in the top left section it states ATTORNEY OR PARTY WITHOUT ATTORNEY and asks for name, address, email and so on. Is this where I put the Plaintiff's Attorney info?

Here, you’d put your name and address, and next to “attorney for” you’d type “Pro se” to indicate that you are a party without attorney.

2. Below that is states SUPERIOR COURT OF CALIFORNIA , COUNTY OF and asks for address and branch. The Court involved in my case is the Superior Court of California, County of Orange, Central Justice Center, Civil Division. What do I need to put in the Branch section?

On here, it will be SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE.

The address, which is 700 Civic  Center Drive,

And next to Branch: Central Justice Center.

3. Beneath that is the Plaintiff Section where I assume the Plaintiff's Name is entered.

Portfolio Recovery Associates,

4. Beneath that is the Defendant Section where again I assume my name is entered.

Your name

5. To the right of that is the Case Number section where I assume I enter the case number.

Yes.

6. Beneath all that is a section describing reasons why I can or can't submit a General Denial.

 

7. Beneath that is Number 1 which asks for the Defendants Name where I assume I put my name.

yes

8. Beneath that is Number 2 Check Box which states DEFENDANT STATES FOLLOWING FACTS AS SEPERATE AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Do I check this box and if so what do I need to write?

you may use the Statute of Limitations if the alleged debt is close to the 4 year limit. The statement you posted shows a payment on 2014, so SOL is not even near.

9. Beneath that I date and print and sign my name.

Yes.

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i would advise you remove the attachments. they served its purpose and i dont think there is a reason for them to remain on open forum. 

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17 minutes ago, sadinca said:

i would advise you remove the attachments. they served its purpose and i dont think there is a reason for them to remain on open forum. 

I 2nd this. Can be used to identify you, which has happened. I would also edit some of the specific info in the 1st post (like the dollar amount owed), round up or down, make it a little vague.

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Also, research sending a demand for BOP (bill of particulars), it's a simple document that you can send right away and then file and serve your general denial closer to the deadline, to buy some time.

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Sadinca/RyanEx - thank you both so much for the reply!:D Regarding the change of dollar amount in post 1... done! Regarding removal of Summons and Complaint pages... I was hoping to leave them for future support so others can see what the pages actually look like. I know when I was initially searching my case I was lost and having all the pages to view as an example would have really helped out. And, I'm hoping to have this post turn into a really easy straight forward example of how to address this type of Summons and Complaint scenario. I believe I have Blacked Out the personal info and any other info that is irrelevant such as addresses and phone numbers. But if it really is not a good idea to keep the blacked out pages on Post then I will remove them.

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Posts don't seem to be sticking anymore. A few have been posted by calawyer and Vpick001 and RyanEx and others but they aren't listed. And, when I received email from the site that posts had been posted, I clicked the link in the email that should take me to the post on the site but instead it takes me to a site error 2S136/C "We could not locate the item you are trying to view". Checking into this and will get back shortly.

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Okay, so from reading other post, apparently there was an issue and it now seems fixed... at least it appears to be since my posts are sticking now.... Since I have what the other posters posted to my topic in my email, I'm going to type what they posted so it's included.

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Reposting due to error with board:

So, the list of steps look like this so far;

1. Was served at home with the Plaintiff's, Portfolio Recovery, Summons and Complaint.

2. Noted that the Summons mentions the Amount of Time I have to respond.

3. Noted the Complaint mentions Limited Civil and the Amount I'm being sued for.

4. Noted the Summons and Complaint packet is divided into several parts; 1) the Summons. 2) the Complaint. 3) the Exibit. 4) the Statement of Location/Venue. 5) the Civil Case Cover Letter. 6) the Alternative Dispute Resolution (ADR) Info Package.

5. Thoroughly read and researched every page of the Summons and Complaint.

6. Due to this wonderful website and the graciousness and expertise of Poster calawyer, it was brought to attention that my Summons and Complaint doesn't contain a Verification Form/Document and is a Limited Civil Case and is a case seeking more than $1,000.00 but less than $25,000.00 and the Plaintiff, Portfolio Recovery, is not a third party collecting a debt for someone else but is the proclaimed owner... which means I am able to respond to the Summons and Complaint using a General Denial Form (thanks calawyer) along with a Proof of Service (POS) (Thank you RyanEx!) (Links supplied in above Posts).

7. obtained the General Denial (link thanks to calawyer) (http://www.courts.ca.gov/documents/pld050.pdf) and filled out using the examples supplied by Sadinca as follows (much appreciated!):

-On the General Denial, in the top left section it states ATTORNEY OR PARTY WITHOUT ATTORNEY and asks for name, address, email and so on. Is this where I put the Plaintiff's Attorney info? Here, you’d put your name and address, and next to “attorney for” you’d type “Pro se” to indicate that you are a party without attorney.

-Below that is states SUPERIOR COURT OF CALIFORNIA , COUNTY OF and asks for address and branch. The Court involved in my case is the Superior Court of California, County of Orange, Central Justice Center, Civil Division. What do I need to put in the Branch section? On here, it will be SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, The address, which is 700 Civic  Center Drive, And next to Branch: Central Justice Center.

-Beneath that is the Plaintiff Section where I assume the Plaintiff's Name is entered. Portfolio Recovery Associates.

-Beneath that is the Defendant Section where again I assume my name is entered. Your name.

-To the right of that is the Case Number section where I assume I enter the case number. Yes.

-Beneath all that is a section describing reasons why I can or can't submit a General Denial.

-Beneath that is Number 1 which asks for the Defendants Name where I assume I put my name. Yes.

-Beneath that is Number 2 Check Box which states DEFENDANT STATES FOLLOWING FACTS AS SEPERATE AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Do I check this box and if so what do I need to write? You may use the Statute of Limitations if the alleged debt is close to the 4 year limit. The statement you posted shows a payment on 2014, so SOL is not even near.

-Beneath that I date and print and sign my name. Yes.

8. Obtained and Filled out the Proof of Service (POS) (thanks RyanEx for the link POS-030), pretty self explanatory plus it contains an instruction sheet. DO NOT SIGN THE POS!

**** Thanks to Anon Amos who suggested the following: "Also, research sending a demand for BOP (bill of particulars), it's a simple document that you can send right away and then file and serve your general denial closer to the deadline, to buy some time."

**** I researched a bit and found that a Bill of Particulars (BOP) is allowed in California and when pertaining to a credit card collections case, requests that the Plaintiff supply the following;

•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.

**** I also found the following info regarding the BOP; "A bill of particulars requests details on everything the Plaintiff states is the meat of the case. This prevents surprises, enabling the Defendant to prepare the strongest defense possible. A bill of particulars is also in the best interest of the judicial process overall: The sooner a Plaintiff and Defendant are on the same page about the exact nature of the lawsuit, the more efficiently and effectively the case can move through the system."

**** And also.... "A demand for a bill of particulars in California is authorized by Code of Civil Procedure section 454 and is an excellent tool for forcing a plaintiff to itemize the total sum upon which the complaint is based.

A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose in that it allows defendants who have been sued generally on an account (certain actions in contract or quasi-contract) to force plaintiff to itemize the account on which the complaint is based.

A plaintiff who sues on an account is not required to set forth in the complaint the items of account. See Code of Civil Procedure § 454. Therefore, it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty. However, on written demand by the defendant, the plaintiff is required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof. See Code of Civil Procedure § 454.

This procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim such as whether it was on a contract, quasi-contract, etc. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well.

It is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions.

Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive in that contradictory evidence is also admissible. On the other hand, a bill of particulars is conclusive as to the items and amounts claimed, meaning that no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars.

And since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to a total of 35 discovery requests pursuant to Code of Civil Procedure § 94.

A demand for a bill of particulars appears to be a little used procedure today. Yet it remains a viable tool for the defendant in an action on an account. Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that demand was made and complied with.)

One possible reason for its declining use is that some attorneys simply fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company such as a debt buyer that may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars.

The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 days, 15 days if the demand for a bill of particulars is served by mail. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.

If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court by filing a noticed motion to amend the bill of particulars just as he or she would to amend a pleading.

The bill of particulars furnished by the plaintiff is treated as an "amplification" of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.

Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts. Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc., (1983) 152 Cal. App. 3d 785, 790. Common counts include (1) money had and received; (2) money lent or paid; (3) services and material; (4) goods sold and delivered, and (5) quantum meruit.

However even though the code authorizes a demand for a bill of particulars in an action "on an account," it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498.

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat'l Bank (1966) 247 Cal.App. 2d 427, 433.

If plaintiff delivers no bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion."

**** So, a Bill of Particulars sounds like a really good idea to fill out and send to the Plaintiff's Attorney BEFORE sending the General Denial and Proof of Service to the Plaintiff's Attorney. Is my assumption and Anon Amos's suggestion valid??

9. (the following is pending verification that submitting a Bill of Particulars (BOP) is a good idea to submit before the General Denial and Proof of Service) Here's what to do with the General Denial and Proof of Service once they're filled out... THIS IS THE 1ST REPLY TO SUMMONS AND COMPLAINT PART... (thanks RyanEx!); Make a copy of each (end up with the original General Denial and the original Unsigned POS plus a copy of both) and give the COPIES to the person who will serve it (mail it) for you (non-relative and not associated to the case, must be an adult). They will mail the General Denial and UNSIGNED POS first class mail to the Plaintiff's Attorney. Once the copies are mailed, have the same person sign the original Proof of Service. Then take the originals (the General Denial and Signed Proof of Delivery) to the courthouse and get them time stamped, then have them make copies, then file the stamped originals and keep the copies for your records.

10.... More to come!

 

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Reposting due to error with board:

So in case my question was lost in translation... LoL! .... Regarding the Demand for Bill of Particulars (BOP) which is Code of Civil Procedure Section 454 (thanks Anon Amos), when should I send the Bill of Particulars, should it be mailed or served, if mailed what type of mail, do I send a Proof of Service, do I copy the attorney and file with the Court or just send to the Attorney, and so on?

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Reposting due to error with board:

RyanEX said:

Bill of Particulars (BOP) first, you can do that right away. Serve it with a Proof of Service (POS), first class mail Certified Mail Return Receipt Requested (CMRRR).

The General Denial (GD) you can wait, if you like, until you get closer to the due date (30 days from service of the summons). Also with a Proof of Service (POS), no need to send it Certified Mail Return Receipt Requested (CMRRR).

Whenever you serve any item, you'll be serving it upon the plaintiff's attorney(s).

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Reposting due to error with board:

sadinca said: and you do not need to file the Bill of Particulars (BOP). but keep a copy for your records.

 

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Okay, so a Bill of Particulars is what I now need to get working on and send to attorney, here is my example of a Demand for Bill of Particulars (BOP) Code of Civil Procedure Section 454 since I wasn't able to find a good enough example on the Net or a download....... PLEASE REVIEW AND LET ME KNOW IF I SHOULD MAKE ANY CHANGES BEFORE SENDING. Thanks everyone!

 

 

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Example of BOP Image File small.jpg

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