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Hello All, 

I'm an attorney in California and am looking for a little insight from you all. I am helping my uncle deal with a collections lawsuit and have a very specific question. We have filed an answer and served a bill of particulars on the plaintiff. Is it wise to send a follow-up letter asking inquiring about a settlement? If so, when? Anything that must be included/excluded from the letter? 

All advice is greatly appreciated. @calawyer @sadinca

Regards, 

 

Sevanski

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I guess there could be differing strategies to settlement: get rid of the case as quickly as possible or minimize the amount paid (or defense the case).  Assuming your strategy is the latter, a debt buyer should not be able to prevail in any case in California where the rules of evidence are followed unless it is able to call a witness from the OC at trial.  The debt buyer (obviously) knows this.  So if you communicate to the Plaintiff that you also know the game, you will minimize any payment or get rid of the case altogether.

You do this by targeting discovery at what matters:  All account statements, the underlying agreement, the forward flow agreement (only if you are willing to move to compel), serving a CCP 96 request for all witnesses, trying to subpoena a CCP 98 declarant, etc.  Many debt buyers dismiss when a defendant is represented by a lawyer.  The chances are even greater if the defendant is represented by a lawyer who knows the game.

 

If the defendant just wants to get rid of the case as quickly as possible, go ahead and send a letter.  They will settle at any time.  But you will almost always pay much more at the beginning of the case than you will later on.

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I would press the Bill of Particulars as the reward could be exclusion of their evidence UNLESS you are in Los Angeles county in which case pushing discovery would be better.

Motion to preclude when they don't answer the BoP

http://www.creditinfocenter.com/community/applications/core/interface/file/attachment.php?id=2927

Supporting caselaw

http://www.creditinfocenter.com/community/applications/core/interface/file/attachment.php?id=2928

They usually cite Distefano so here was a reply

http://www.creditinfocenter.com/community/applications/core/interface/file/attachment.php?id=2929

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They push the cases into either Chatsworth Or Norwalk courts. Both of which are plaintiff leaning and do not follow the evidence code. So when a defendant gets representation and the fields are equal they usually dismiss without prejudice usually day of trial.

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