navy joy

Being sued by Calvary/Winn in California...do I use Doctrine of Laches when responding?

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6 hours ago, navy joy said:

Should all of this drag on after 5/31/18, I then have the SOL in my arsenal of defense?

NO!  They filed the suit before the SOL expired.  You do not have that as a defense at all as long as the case proceeds to trial.  

6 hours ago, navy joy said:

Could I then file to dismiss based on SOL?

NO!

The SOL stopped running the date they filed the case with the court and the clerk stamped it as received.  The SOL stays tolled (stopped) as long as this lawsuit is active.  If for any reason the Plaintiff dismisses the case or the court does the SOL then continues to run as if the case were never filed.  If you get past May under that circumstance then the SOL is a valid defense.  Right now it is NOT a defense you can use.

6 hours ago, navy joy said:

I believe the law group is cutting it awfully close with our account since they provide evidence that the last known payment was 4/14/14.  If I'm understanding the CA law here, the SOL begins when the first payment is missed, so 5/15/18.  Do they have no claim to collect after that date due to SOL laws?

Yes, they cut it close but it is still within the SOL so they filed timely.  No, they do not have to claim to collect after that date.  They simply had to have filed the suit before May 15 2018 at the latest. 

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17 hours ago, navy joy said:

I'm still pretty nervous about the Account Stated first cause of action but I am thankful they provided the second one of "money lent", allowing then for the BOP to be filed. Whew! This is quite the process!  

I understand how you feel. even if they do not respond with statements and simply object to your request based on the account stated caused of action (likely), their lack of answers will assist you in answering their future discovery questions, much easier! 

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19 hours ago, navy joy said:

Do you find that a general denial answer in response to a complaint is the best way to go or to respond to each paragraph denying and then listing affirmative defenses? Can you list affirmative defenses in a general denial?

is the complaint verified?

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4 minutes ago, sadinca said:

is the complaint verified?

I just looked and I see nothing mentioning verified complaint. Is there a specific place I'd find it if it were?

 

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23 minutes ago, navy joy said:

I just looked and I see nothing mentioning verified complaint. Is there a specific place I'd find it if it were?

 

it would be explicitly stated in the caption where the cause of actions are, or a page that looks and reads similar to the last page on this sample:

http://www.barbieslapp.com/spam/sexsearch/complaint.pdf

 

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8 minutes ago, sadinca said:

it would be explicitly stated in the caption where the cause of actions are, or a page that looks and reads similar to the last page on this sample:

Thank you for the example! I re-checked and there's nothing. Not a separate page with verification nor the word verification showing up in any captions. This is good, yes?

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1 hour ago, navy joy said:

Thank you for the example! I re-checked and there's nothing. Not a separate page with verification nor the word verification showing up in any captions. This is good, yes?

good, in that case the best and easier way to answer the complaint is to file a general denial. http://www.courts.ca.gov/documents/pld050.pdf

to answer your other question, yes, you can include your affirmative defenses in box 2 of the general denial. 

you do not need any affirmative defenses, plaintiff has the burden of proof that they own and can collect on the alleged debt. 

I know you must feel that you have to include an affirmative defense, because that is how i felt during my case and my wifes case. In my wifes case we added 17!! affirmative defenses. when my turn came i lowered it down to only 5.  

 

First Defense: Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 

Second Defense: Defendant claims Lack of Privity as Defendant has never entered into any contractual or debt/creditor arrangements with Plaintiff. 

Third Defense: Defendant claims a Failure of Consideration, as there has never been any exchange or any money or item of value between the plaintiff and the defendant.

Fourth Defense: Plaintiff's complaint fails to allege that the alleged Assignor even has knowledge of this action or that the alleged Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating and unfair prejudice against the defendant. 

Fifth Defense:  Plaintiff failed to inform the Defendant in writing of intent to file action on the alleged claim prior to commencement of this action and that the legal action could result in a judgment against the Defendant. 

Defendant reserves the right to amend and or add additional Answers, Defenses, and/or Counterclaims at a later date. 
 

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@sadinca Thank you so, so much! This is extremely helpful! The fifth defense doesn't apply in my case because they did send a separate letter to myself and my husband stating their intention to file a lawsuit back in October or so.  The rest of these defenses, though, seem applicable. Thank you again! I am very grateful for your help!

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i know this process is stressful and nerve-wrecking, but as long as you keep your calendar up to date and do not miss any deadlines, learn the procedures and case laws you will be on better position than other members whom have come on board on these threads a month away from trial and still came on top. 

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Can both my husband file a general denial together or do we have to file separate ones? If we do file our answer together, I would just need to make sure the language reflects both defendants, right? Is one better than the other, really? I'd really love to save that extra $225 if at all possible and file our answer together.  I still haven't been served, even though I'm listed on the complaint and at one point the complaint states "(my name) et al)" as though I'm the lead Defendant.  Can they not serve me and get a default judgment against us?

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19 hours ago, navy joy said:

I'd really love to save that extra $225 if at all possible and file our answer together.

Have you looked into the FW-001 request to waive court fees form?

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12 hours ago, sadinca said:

i dont see why you cant file a single answer with both of your signatures. 

@RyanEX

I would think they could, but I'm not sure. They certainly should only be paying one filing fee.

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21 hours ago, GreenArrow said:

Have you looked into the FW-001 request to waive court fees form?

I have and we don't qualify per the court's list of qualifications.   

Will it hurt us to file our answer as Defendants, et al instead of individually?  We really can't afford the $225 let alone $500 but don't qualify to apply for court fee waiving.

Thanks for your response, Green Arrow!

 

 

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I would think they could, but I'm not sure. They certainly should only be paying one filing fee.

Thanks for your response @RyanEX . Is there some place I can go to read or someone else to ask? $500 (heck! $225) seems steep to pay to respond to an allegation in court! Ouch!

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@Greenarrow

I re-read the FW-001 form you suggested and while we don't fit most of the categories that would make us candidates, it does list the opportunity to state that we can't make court fees and pay for our monthly living expenses and then we itemize our expenses.  How likely do you think the court grants a waiver based on this option?  While paying $225 is going to hurt (let alone if we have to pay $500 to file our answer separately), it CAN be squeezed out of our monthly income (it just makes everything else incredibly tight).  How does this form work? Do we file it first? At the same time as our answer and hope it gets approved? If they don't approve it, does the court bill us for the cost later?

Thanks for any info and clarity you can provide on this form. I really appreciate it!

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@sadinca I noticed on the General Denial form that it states this form can be used if the amount asked for is less than $1,000. The amount asked for in my case is $1400. Does this mean I can not use the general denial form to answer?

http://www.courts.ca.gov/documents/pld050.pdf

I also got my husband's BOP out this weekend.  I was just served a few moments ago (took a week to come back and serve me).  So, now do I send a BOP for me as well?

 

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12 hours ago, navy joy said:

@sadinca I noticed on the General Denial form that it states this form can be used if the amount asked for is less than $1,000. The amount asked for in my case is $1400. Does this mean I can not use the general denial form to answer?

http://www.courts.ca.gov/documents/pld050.pdf

I also got my husband's BOP out this weekend.  I was just served a few moments ago (took a week to come back and serve me).  So, now do I send a BOP for me as well?

 

Read the 2 exceptions right below that line. Yours would be exception #1. GD is fine.

You MAY use this form for a general denial if:
1. The complaint is not verified
2. The complaint is verified and the case is a limited civil case (the amount in controversy is $25,000 or less), BUT NOT if the complaint involves a claim for more than $1,000 that has been assigned to a third party for collection.

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16 hours ago, navy joy said:

@Greenarrow

I re-read the FW-001 form you suggested and while we don't fit most of the categories that would make us candidates, it does list the opportunity to state that we can't make court fees and pay for our monthly living expenses and then we itemize our expenses.  How likely do you think the court grants a waiver based on this option?  While paying $225 is going to hurt (let alone if we have to pay $500 to file our answer separately), it CAN be squeezed out of our monthly income (it just makes everything else incredibly tight).  How does this form work? Do we file it first? At the same time as our answer and hope it gets approved? If they don't approve it, does the court bill us for the cost later?

Thanks for any info and clarity you can provide on this form. I really appreciate it!

I didn't qualify based on the income restrictions either, but I filled out the second page and itemized my expenses. You would file it with the court (NOT the plaintiff) and from there the judge will either grant or deny your request. I'm unsure how the judge decides whether to grant or deny it, but it's worth a try!

I filed mine at the same time as I filed my answer with the court.

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File the fee waiver along with your General Denial. The court will review and give you an answer (within a few days I think). If they deny it, you'll get a letter saying so & 10 days (if I remember correctly) from the date of service to go back to the courthouse and pay the filing fee.

http://www.courts.ca.gov/selfhelp-feewaiver.htm

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@RyanEX and @GreenArrow  Seriously, thank you so much! I feel like I'm a fairly intelligent person but I'm pretty sure it's my fear of screwing this up by misreading or misunderstanding all the legalese that has me second guessing everything! Thank you both for clarifying and correcting my understanding of this process!

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@sadinca @RyanEX @GreenArrow  A couple of confirmational questions for you:

1) Do I apply for waiving the court fees separately from my husband (he's listed as a Defendant) or can we file one form together?

2) Did we ever determine if I can file the General Denial from both myself and my husband or should we file a General Denial separately? 

Thank you so much for your help!

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On 2/12/2018 at 2:50 PM, navy joy said:

@sadinca @RyanEX @GreenArrow  A couple of confirmational questions for you:

1) Do I apply for waiving the court fees separately from my husband (he's listed as a Defendant) or can we file one form together?  since you are filing together i would file a fee waiver together. 

2) Did we ever determine if I can file the General Denial from both myself and my husband or should we file a General Denial separately? 

yes, you can file a general denial together, only that you wont be using the general denial form provided earlier. you would have to type out your on a pleading paper your general denial. here is a sample:

https://www.karlinlaw.com/blog/2012/06/sample-general-denial-answer-filed-in-california-buisness-or-real-estate-lawsuit-with-affirmative-de.shtml

 

Thank you so much for your help!

 

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