Being Sued by Discover in CA

[blackhawker]

1. Who is the named plaintiff in the suit?

DISCOVER BANK

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Suttell, Hammer & White

3. How much are you being sued for?
$8, xxx

4. Who is the original creditor? (if not the Plaintiff)
Discover Card

5. How do you know you are being sued? (You were served, right?)
I was served papers on 06/28/2016, through the mail, but never received Proof of Service.

6. How were you served? (Mail, In person, Notice on door)
Left on my doorstep and then a copy in the mail.

7. Was the service legal as required by your state? 
Doesn't seem so, but I guess CA allows this type of service.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
I got a few letters from the law firm requesting payment, but I never responded in writing or by phone.

 

9. What state and county do you live in?
Los Angeles, CA

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
02/23/2016

 

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

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

Court Dated Scheduled for 08/03/2017.

 

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? 

I responded within 30 days.

COMMON COUNTS: Open Book Account & 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.

Nothing, but I requested the BOP and they sent me a response "Verified" by the Team Leader for Discover Products along with statements from the past 6 years & the Cardmember Agreement.

After researching several cases, I see that it is virtually impossible to win this type of case against Discover since they are the OC, so what should be my next step? Considering that I don't have enough of a lump sum to offer at the moment and only 2 months until my court date, would I still be able to pursue arbitration to allow me more time or should I communicate directly with the Law Firm to discuss settlement options? I would really like to avoid a judgement.

Any help would be much appreciated.

 

Blackhawker

 

 

[BV80]

@blackhawker

We have some great CA members on this forum.   I'm sure they'll offer some help.

@calawyer

@Anon Amos

@sadinca

@RyanEX

[sadinca]

14 hours ago, blackhawker said:

 

After researching several cases, I see that it is virtually impossible to win this type of case against Discover since they are the OC, so what should be my next step?

im not sure this is true. some recent members have had victories against Capital One. if im not mistaken on one occasion Capital One dropping a debt for almost 20k 

 

[sadinca]

if you check the Hall of fame you will see @veesmith626 posted on March 14 is his victory over Capital One. 

 

has atrial date already been scheduled? 

[RyanEX]

I have seen several posters prevail over original creditors. Some posters have done so more than once. Mostly Cap1 from what I recall.

OCs do have more access to account documents and witnesses than a junk debt buyer would, that is true. However they still have to produce a live witness to authenticate documents, so long as you force them to.

[Anon Amos]

Is it a trial date set for a few months or is it for some other type of hearing?

I've seen about 5 people here beat an OC by going all the way to trial. In all cases the OC did not bring a witness.

I would think it's too late to get it into arbitration and that in CA you are better off with court system anyway.

[Anon Amos]

Also, if it is a trial date coming up you are  close to the deadline to send them the witness and evidence list request form.

[blackhawker]

Thanks for all of the responses guys!

Yes, sadinca & Anon Amos, there is a court trial date scheduled for 08/03/2017 so I have a little less than 2 months. I didn't do any Discovery because I was expecting them to send a declaration in lieu of live testimony, but I never received one.

Is it too late to send them the witness and evidence request form and, if not, where would I get that form? Also, what would be additional steps to take because I want to make sure I get everything done over the weekend so I can start preparing for a trial if need be.

[RyanEX]

They will have until 30 days before trial to serve you with a declaration in lieu of live testimony (aka the CCP 98), so they still have time to get it out. Most of the time they send it right as they come up on that deadline.

You can send your witness and evidence request (CCP 96 request) within the window of "no more than 45 days or less than 30 days prior to the date first set for trial". If your trial is Aug 3rd then you window for that will start in just under 2 weeks. Here is the form for it (pretty easy): http://www.courts.ca.gov/documents/disc015.pdf

Review CCPs 96 & 98 on this page: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=1.&part=1.&chapter=5.1.&article=2.

[blackhawker]

Hi Everyone!

I am about a week and a half away from the trial date and I just received a response to my CCP 96 request for witness and evidence list. In it, they state that the plan to call "Y. B., Custodian of Records for Discover Bank, OR another available custodian of records, employed by Discover Products, INC." Then they list an address in OH.

 

The documentation intended to be offered into evidence at the time of trial is:

Exhibit A: Conformed Summons and Complaint

Exhibit B: Notice of Trial

Exhibit C: Proof of Service of Summons and Complaint

Exhibit D: Answer

Exhibit E: Cardmember Agreement

Exhibit F: Billing Statements

Exhibit G: Affidavit (signed by Y. B., and notarized)

 

What should my next step be? Should I keep moving forward and subpoena the Custodian of Records? Also, are they able to simply bring ANY Custodian of Records, even if they are not listed as a witness in the Plaintiff's Witness and Evidence List?

Your help is much appreciated!

 

Blackhawker

[sadinca]

16 hours ago, blackhawker said:

Should I keep moving forward and subpoena the Custodian of Records?

no. plaintiffs answer to ccp 96 is a  list of the evidence or witness they intent to call or offer at trial. the only person that should be subpoena is the person who signed the declaration in lieu of personal testimony (CCP98). did you receive one?

 

16 hours ago, blackhawker said:

Also, are they able to simply bring ANY Custodian of Records, even if they are not listed as a witness in the Plaintiff's Witness and Evidence List?

 the answer is no. you should send them a Meet and Confer letter stating so. Calawyer has posted better examples of something like this:

Dear___

 Defendant have received Plaintiff's response to the request to identify witnesses and evidence pursuant to CCP section 96.  In response, Plaintiff has stated that it intends to call "Plaintiff's custodian of records".  This response is insufficient under the Code.

 As CCP 96 specifically states, a responding party must give " the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial".  Plaintiff's response does not identify any witness by name much less give an address.  Please be advised that Defendant intends to object to any witness that Plaintiff attempts to call at trial.

 

16 hours ago, blackhawker said:

What should my next step

i would type, file and serve an objection to each of the evidence plaintiff intents to call at trial.  check @HomelessInCalifornia threat for samples. 

[RyanEX]

Also, check to make sure they served you the CCP 96 response in a timely manner. They should have placed the response in the mail no later than 25 days after you placed your request in the mail.

[blackhawker]

Hi sadinca,

 

4 hours ago, sadinca said:

no. plaintiffs answer to ccp 96 is a  list of the evidence or witness they intent to call or offer at trial. the only person that should be subpoena is the person who signed the declaration in lieu of personal testimony (CCP98). did you receive one?

  No, I did not receive  a declaration in lieu of personal testimony.

 

 the answer is no. you should send them a Meet and Confer letter stating so. Calawyer has posted better examples of something like this:

Dear___

 Defendant have received Plaintiff's response to the request to identify witnesses and evidence pursuant to CCP section 96.  In response, Plaintiff has stated that it intends to call "Plaintiff's custodian of records".  This response is insufficient under the Code.

 As CCP 96 specifically states, a responding party must give " the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial".  Plaintiff's response does not identify any witness by name much less give an address.  Please be advised that Defendant intends to object to any witness that Plaintiff attempts to call at trial.

  Sorry, for the confusion. They did list a name and an address for the Custodian of Records. I just put the initials Y.B. and omitted the actual address in OH  because I thought it might be too much information.  Should I just send them a Meet & Confer letter stating that I intend to object to any OTHER Custodian of Records, except for the one listed?

 

i would type, file and serve an objection to each of the evidence plaintiff intents to call at trial.  check @HomelessInCalifornia threat for samples. 

  Ok, I'll check those threads out tonight.

 

 Hi RyanEx,

4 hours ago, RyanEX said:

Also, check to make sure they served you the CCP 96 response in a timely manner. They should have placed the response in the mail no later than 25 days after you placed your request in the mail.

They placed the CCP 96 response in the mail exactly 20 days after I placed my request in the mail.

 

[blackhawker]

Also, in the evidence list, they included "Exhibit C: Proof of Service of Summons and Complaint." There was a Declaration of Due Diligence included where the process server completely falsified the information that the documents were left with "JOHN DOE (actually written in the Proof of Service of Summons), Co-Resident, who tried to refuse service, a white male approx 45-55 years of age, 5'10" - 6' 0" tall weighing 180-200 lbs with brown hair."

What really happened was that I received the summons on my doorstep. When my roommate got home I asked him if someone had tried to serve me papers through him in the past few days and he said that he had not spoken to anyone about a summons for me.

Are they really allowed to simply put "JOHN DOE" as the person they left it with and just leave it on the doorstep? They checked the box stating that "I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct." It seems that there could be a little perjury going on here.

Would I be able to have the case dismissed based on this falsified information or appeal the judgement, if ultimately,  I were to lose?

[sadinca]

2 hours ago, blackhawker said:

Sorry, for the confusion. They did list a name and an address for the Custodian of Records. I just put the initials Y.B. and omitted the actual address in OH  because I thought it might be too much information

yes, but, on your post you also wrote "OR another available custodian of records, employed by Discover Products, INC"  that mystery guy is the one i was referring to.  If Y.B.  is not "available" apparently they intent to call Any other employee.  "Who is Discover Products Inc"? 

[blackhawker]

28 minutes ago, sadinca said:

yes, but, on your post you also wrote "OR another available custodian of records, employed by Discover Products, INC"  that mystery guy is the one i was referring to.  If Y.B.  is not "available" apparently they intent to call Any other employee.  "Who is Discover Products Inc"? 

 

That is correct. the mystery person would be the one that I would object to, right, since they are not listed by name and address in the plaintiff's witness and evidence list? 

  As for Discover Products, INC, I'm not sure, but they listed DISCOVER BANK as her employer and DISCOVER BANK is the  Plaintiff.

**** just googled it and Discover Products INC is a subsidiary of DISCOVER BANK ****

                                                                                                                Also, did you see my other question about the falsified Proof of Service and Declaration of Due                                                                                                                              Diligence by the Process Server? 

 

[sadinca]

14 hours ago, blackhawker said:

That is correct. the mystery person would be the one that I would object to, right, since they are not listed by name and address in the plaintiff's witness and evidence list? 

correct. 

 

[sadinca]

14 hours ago, blackhawker said:

  Also, did you see my other question about the falsified Proof of Service and Declaration of Due Diligence by the Process Server? 

I would concentrate on preparing for trial. proving a falsified POS would be an uphill battle. and if it was not raised as an affirmative defense you may not be able to bring up the issue during trial. 

[blackhawker]

2 hours ago, sadinca said:

I would concentrate on preparing for trial. proving a falsified POS would be an uphill battle. and if it was not raised as an affirmative defense you may not be able to bring up the issue during trial. 

OK. Sounds good. So, I should just send the Meet & Confer letter,  file and serve an objection to each of the evidence plaintiff intents to call at trial, and then concentrate on preparing for the trial?

 

[calawyer]

On ‎7‎/‎20‎/‎2017 at 10:48 AM, sadinca said:

no. plaintiffs answer to ccp 96 is a  list of the evidence or witness they intent to call or offer at trial. the only person that should be subpoena is the person who signed the declaration in lieu of personal testimony (CCP98). did you receive one?

 

 the answer is no. you should send them a Meet and Confer letter stating so. Calawyer has posted better examples of something like this:

Dear___

 Defendant have received Plaintiff's response to the request to identify witnesses and evidence pursuant to CCP section 96.  In response, Plaintiff has stated that it intends to call "Plaintiff's custodian of records".  This response is insufficient under the Code.

 As CCP 96 specifically states, a responding party must give " the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial".  Plaintiff's response does not identify any witness by name much less give an address.  Please be advised that Defendant intends to object to any witness that Plaintiff attempts to call at trial.

 

i would type, file and serve an objection to each of the evidence plaintiff intents to call at trial.  check @HomelessInCalifornia threat for samples. 

The letter is a good idea.  That way, if they try to call someone other than "YB", you can say that you wrote them a letter pointing out that if they intended to call someone other than YB they must identify them by name and address and they ignored you.  It will help.

Are you abbreviating YB here or did they really say "YB"?

[blackhawker]

On 7/24/2017 at 2:23 PM, calawyer said:

The letter is a good idea.  That way, if they try to call someone other than "YB", you can say that you wrote them a letter pointing out that if they intended to call someone other than YB they must identify them by name and address and they ignored you.  It will help.

Are you abbreviating YB here or did they really say "YB"?

 

Yes, I was just abbreviating for Yvette Benner because I didn't want to include too much information. I searched everywhere for her and there seems to only be a LinkedIn account with no picture and only 5 connections. It looks like a "shell" account that they created to try and fool people into believing she is real. We'll see next week!

[calawyer]

I thought so but wanted to make sure because

1.  I wouldn't put it past them; and

2.  "YB" would hardly comply with the code.

 

 

[blackhawker]

Thanks for all of your help on this guys! I just wanted to log a quick update on this case for others who may be dealing with Discover. So...they did, in fact, bring a witness and the judge gave us time to discuss a settlement. The lawyer informed me that they were willing to settle for a lesser amount and would accept a payment plan. I, then, informed him that if "she wasn't truly Yvette Benner, that I would surely object to the witness." He assured me that she was definitely the witness listed and that we could proceed if I wanted to. 

Ultimately, I caved, and settled for a lesser amount. After we agreed upon the amount, I overheard their conversation about how many airline miles she's racked up this year through Discover and that she needs to only use one airline for the rest of the year to get a certain status with that airline.  I figured that she's a professional "Witness," and that is probably all she does.

All I have to say is that they were definitely ready "with a Witness". I can't confirm if it was truly her, but I didn't want to take the chance with having a judgment on my record, so I threw in the towel.  No harm, no foul. At least I was able to push it off for a year until I was in a better position to pay, but for anyone thinking they won't bring a witness from the Original Creditor...think again. Discover is NOT PLAYING.

 

[BV80]

11 minutes ago, blackhawker said:

Thanks for all of your help on this guys! I just wanted to log a quick update on this case for others who may be dealing with Discover. So...they did, in fact, bring a witness and the judge gave us time to discuss a settlement. The lawyer informed me that they were willing to settle for a lesser amount and would accept a payment plan. I, then, informed him that if "she wasn't truly Yvette Benner, that I would surely object to the witness." He assured me that she was definitely the witness listed and that we could proceed if I wanted to. 

Ultimately, I caved, and settled for a lesser amount. After we agreed upon the amount, I overheard their conversation about how many airline miles she's racked up this year through Discover and that she needs to only use one airline for the rest of the year to get a certain status with that airline.  I figured that she's a professional "Witness," and that is probably all she does.

All I have to say is that they were definitely ready "with a Witness". I can't confirm if it was truly her, but I didn't want to take the chance with having a judgment on my record, so I threw in the towel.  No harm, no foul. At least I was able to push it off for a year until I was in a better position to pay, but for anyone thinking they won't bring a witness from the Original Creditor...think again. Discover is NOT PLAYING.

 

You can be pretty sure that the witness was who they claim.  It would be incredibly stupid of them to bring someone else when you could ask for identification.  Lying about her identity would land them in big trouble.

Anyway, you did your best and that's what matters.

[Kzita]

Hello dear All,

I have to agree with you @blackhawker. I have the same case with Disc and the same Law Firm.

Disc had most of my original files respond to my BOP. I stopped sending more request after BOP.

Disc started to filed on 03/18/2015 - I response my answer on 04/2015 - Disc had order to show cause hearing on 03/02/2018 and I have my case management review on 06/02/2018.

After 3 years they law firm only changed name to Suttell&Hammer, APC.

At this time of my life, I don't think I have the energy to fight and burry with paper work. 

Perhaps if any of you have a suggestion what should I write to Disc before my management review date or settle in a smaller amount.

I want thank you for all of you that help me at the beginning of my "answer to response"

I will check out the local legal aids and www.californiacollectiondefense.com

Special thank you to @calawyer @Anon Amos @RyanEX @sadinca @BV80