navy joy

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

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58 minutes ago, sadinca said:
1 hour ago, sadinca said:

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 response, @sadinca . Is this because we are filing together that I would no longer use the other form?

 

 

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1 hour ago, sadinca said:
1 hour ago, sadinca said:

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 response, @sadinca . Is this because we are filing together that I would no longer use the other form? Does it matter (other than I can't use their list of affirmative defenses) that it is a real estate answer sample? I am assuming I could take the verbiage of the multiple defendants and apply that to a pleading paper? I'm pretty sure I saw a sample of pleading paper posted on one of the other threads I was reading. I'll find it. Thank you for this sample! I'm assuming I'd use the affirmative defenses you mentioned earlier in this thread still?

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14 hours ago, navy joy said:
14 hours ago, navy joy said:

 Is this because we are filing together that I would no longer use the other form? yes, on the form there is only room for one name and one signature. Does it matter (other than I can't use their list of affirmative defenses) that it is a real estate answer sample?  I am assuming I could take the verbiage of the multiple defendants and apply that to a pleading paper? you can use the same verbiage up to the point where the general denials begin.  I'm pretty sure I saw a sample of pleading paper posted on one of the other threads I was reading. the BOP i posted earlier was in pleading paper, was it not.  I'll find it. Thank you for this sample! I'm assuming I'd use the affirmative defenses you mentioned earlier in this thread still? yes, if you decide  to move forward with those affirmative defenses. 

 

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Bill of Particulars request.doc

 

yes, you can use this one, simply change the caption and the footer. 

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4 hours ago, navy joy said:

Great! Thank you for confirming! I believe the BOP is on pleading paper.  I'll use that as my starting off point! Thank you so much!!

Not sure if you're aware, but everything that you send to the JDB needs to be certified mail with return receipt. They can be pretty sneaky and claim that they never received it!

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22 minutes ago, GreenArrow said:

Not sure if you're aware, but everything that you send to the JDB needs to be certified mail with return receipt. They can be pretty sneaky and claim that they never received it!

Yes, did that with the BOP I sent out last week. THANK YOU!   I do have a question about the general denial answer - do I send Winn a copy via certified mail and return receipt as well? Or is there a different type of service I should be using?

Thank you for the info! I really appreciate it! 

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1 hour ago, navy joy said:

Yes, did that with the BOP I sent out last week. THANK YOU!   I do have a question about the general denial answer - do I send Winn a copy via certified mail and return receipt as well? Or is there a different type of service I should be using?

Thank you for the info! I really appreciate it! 

yes, everything you file in court you have to serve a copy to plaintiff. You do not have to mail the general denial via CMRRR, but pretty much everything else, i would send via CMRRR.

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Thank you, @sadinca and @RyanEX ! So, just send a copy of my answer to them without certification via regular mail.  Anything I send to them directly, certify to have proof and anything I submit to the court, I just need to send them a copy but, again, not certified.  You guys don't know how helpful you've been to me! Thank you so much for all of your help!

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On 2/15/2018 at 3:22 PM, navy joy said:

hing I submit to the court, I just need to send them a copy but, again, not certified

just for clarification, the only thing i would not send CMRRR is the answer. There may be some documents that get filed with the court that i would prefer to send via CMRRR, example would be a notice of motion. 

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Thank you for the clarification,  @sadinca

So, I got a packet of papers back today in response to the BOP sent. Cover letter was a lengthy explanation how they do not need to respond to the BOP under Action 1 (Account stated) and quoted cases, then acknowledged they would respond because of action 2 (Money Lent).  The paperwork included was the complaint (again) and then the few pieces of papers they sent back in the summer when I asked for verification of  the account.  They sent a couple of account statements, a janky looking "sale" receipt from Synchrony to them which is a typed out paragraph a signature and what looks like a copy and pasted logo of Synchrony Bank at the top left. That's it. 

What should my response to this be?

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14 hours ago, navy joy said:

They sent a couple of account statements

when you say "a couple" is that literally just two statements?

14 hours ago, navy joy said:

few pieces of papers they sent back in the summe

what documents are those? 

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11 minutes ago, sadinca said:

when you say "a couple" is that literally just two statements?

what documents are those? 

Ok, I sat down and flipped through more carefully, noting the statements.  They have included 4 statements - April, May, November, December of the same year.  They've included a Bill of Sale that is a one-paragraph summary of the transfer/sale of the account with no new information in it (as in, all info in the paragraph is info that can be found in a credit report or statements). This is the one that looks janky to me. They have also attached a "Schedule A" form that is a columnized half sheet with, again, all of our personal information, account number, etc and the purchase date at the top (all info found on a statement or credit report). The last page is a Proof of Service document, notating who mailed the packet to us. They also included the filed complaint again, maybe to fatten up the packet??? And, on top of all of this, was a cover letter explaining how they do not have to abide by BOP for their first cause of action but would respond based on their second cause of action, citing case law.  That's it.

What do I do with this info? Nothing they sent is new. It's everything they sent to me back in June when requesting verification. What are my next steps, if any (other than filing our answer which we will do next week)? In that regard, to confirm, I have 30 days from being served to file that is including holidays and weekends, correct?  So, if my husband was served on 2/4, we have until 3/7 to file. Does that seem right? My plan is to file our answer by the 1st of March to be safe. 

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57 minutes ago, navy joy said:

o, if my husband was served on 2/4, we have until 3/7 to file.

to my calculations the 30 day mark would be on 3/6. if you have your answer ready, i would file the answer the next available time you have. that way you dont have to stress about answering on time. 

 

1 hour ago, navy joy said:

What do I do with this info? Nothing they sent is new. It's everything they sent to me back in June when requesting verification

I would send plaintiff a meet and confer (M&C) letter to plaintiff informing them the answer and documents they sent you are not sufficient to satisfy your BOP demand. if you decide to send the M&C you would have to options on the verbiage that would be included. you could threaten to motion to compel, if you are willing to move forward with filing a motion to compel if plaintiff does fully comply with the BOP demand. a successful MTC can request the court to either compel Plaintiff to produce the information requested or preclude Plaintiff from offering any such evidence at trial on this matter

Or, you could send the M&C letter no threatening to MTC. the purpose of this letter not threatening a MTC is mostly a chest puffer. to show plaintiff you know the rules, and wont be an easy target for them. 

a note i would make, is that some of or members have had mix results on MTC further BOP. some have won their MTC  further BOP and prevented plaintiff from producing any more evidence not in the BOP. others have not been successful, judge stating that the documents not in BOP could also be requested during Discovery. 

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Hi  @sadinca  @RyanEX

(for some reason, the forum is not allowing me to tag Green Arrow)

I received a response to the BOP I sent on my behalf (since my husband and I were served one week apart).  It is different than what was sent for my husband's BOP in that after the same cover letter explaining they don't need to respond to a BOP for "account stated" action and citing lawsuit cases, they then attached what looks like a formal response to my BOP. It is titled "Plaintiff's Response to Defendant's  Demand for Bill of Particulars.  It's on case filing paper and looks as though they will be filing it in the county court.

2nd page states "General Objections and Reservations of Rights" and lists three objections by the Plaintiff".  Here is what is says:

"1) objects to each and every demand to the extent it calls for a response evidencing or embodying confidential communications between Plaintiff and their attorney, on grounds that such communication is protected by attorney-client privilege. 

2) Plaintiff objects to each and every demand to the extent that it calls for a response evidencing or embodying the work product of his attorney.

3) Plaintiff has not completed his investigation of the facts relating to this case, has not completed his discovery in this case, and has not completed his preparation for trial. Thus, his responses and answers below are based solely upon the information presently available to him. Plaintiff anticipates that further discovery, independent investigation, legal research and analysis will supply additional facts and add new meaning to existing facts, as well as establish new factual conclusions and legal contentions, all of which may lead to substantial additions or changes to and/or variations from the information set forth below. The following responses are given without prejudice to Plaintiff's right to produce evidence of subsequently discovered facts. Accordingly, Plaintiff reserves the right to change any and all of his responses as additional facts are ascertained, legal research is completed, and contentions are made. The responses contained herein are made in a good faith effort to supply as much factual information as is presently known, but in no way should be to the prejudice of Plaintiff in relation to further discovery, research or analysis. Plaintiff reserves the right to amend or supplement these responses should this become necessary or appropriate. 

Without waiving such objections and reservations, Plaintiff responds to Defendant's Demand as follows:

Plaintiff is only required to produce an itemization of the account alleged within the pleadings indicating what accounts are the subject of the lawsuit. Plaintiff has been contacted by attorneys of record, WLG, and hereby complies with this Bill of Particulars: A diligent search and reasonable inquiry has been made in an attempt to locate requested documents. Plaintiff is continuing to search its records for documents are responsive to this demand. Plaintiff will comply with this request and will produce all non-privileged responsive documents in its possession, custody or control which are relevant to the issues in this litigation. Attached hereto and incorporated herein are true and correct copies of billing statements dated April 11, 2014, May 13, 2014, November 12, 2014, and December 10, 2014, the Bill of Sale and the Schedule Excerpt."

 

It's then signed and dated and the above listed documents are attached behind.  These documents are the same ones sent with my husband's BOP and the same ones sent in June of 2017 which I asked to verify the account.

 

***** My questions*****

What does this mean? Do I respond? If so, how?  Does this filed response hurt my side of the case?

Thank you for any help you can provide! 

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2 hours ago, navy joy said:

they then attached what looks like a formal response to my BOP. It is titled "Plaintiff's Response to Defendant's  Demand for Bill of Particulars.  It's on case filing paper and looks as though they will be filing it in the county court.

they will not be filing it in court, even thought it is in pleading paper. question. did you send your request or your husbands request for BOP on pleading paper format?

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Yes, both my request and my husband's BOP request was on pleading paper.  I think this freaked me out a bit more because 1) it looks official; 2) it's different than what they sent my husband and 3) all of their jargon in what I typed above. What are they saying exactly and can I use any of that? I know they are giving smoke and mirrors to answering the BOP - is it just a bunch of fluff to cover up the fact that they most likely don't have any other paperwork than what they've sent us 3 times now?

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2 hours ago, navy joy said:

What does this mean? Do I respond? If so, how?  Does this filed response hurt my side of the case?

plaintiff is rallying on a couple of case laws to dodge the BOP demand. those objections only work for the Account Stated cause of action. if i remember correctly there is also Money Lent? to that they have to respond your demand to BOP. 

how do you respond? my answer to this question would be the same i posted on  February 21:

"I would send plaintiff a meet and confer (M&C) letter to plaintiff informing them the answer and documents they sent you are not sufficient to satisfy your BOP demand. if you decide to send the M&C you would have to options on the verbiage that would be included. you could threaten to motion to compel, if you are willing to move forward with filing a motion to compel if plaintiff does fully comply with the BOP demand. a successful MTC can request the court to either compel Plaintiff to produce the information requested or preclude Plaintiff from offering any such evidence at trial on this matter

Or, you could send the M&C letter no threatening to MTC. the purpose of this letter not threatening a MTC is mostly a chest puffer. to show plaintiff you know the rules, and wont be an easy target for them. 

a note i would make, is that some of or members have had mix results on MTC further BOP. some have won their MTC  further BOP and prevented plaintiff from producing any more evidence not in the BOP. others have not been successful, judge stating that the documents not in BOP could also be requested during Discovery. "

"Does this filed response hurt my side of the case?" this wont get filed in court. however, their responses will make it easier to answer their discovery questions when they do serve them. 

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6 minutes ago, navy joy said:

What are they saying exactly and can I use any of that? I know they are giving smoke and mirrors to answering the BOP - is it just a bunch of fluff to cover up the fact that they most likely don't have any other paperwork than what they've sent us 3 times now?

yes, and when the moment comes, you will turn around their answers on them during the discovery phase. 

in your case i would recommend sending a M&C letter, which is what i would do. in it you can either threaten to MTC or not. 

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Thank you so much, @sadinca You've been extremely helpful.  I completely forgot your recommendation for the M&C letter, even after re-reading my own thread today! This whole situation flusters me and I'm really nervous about getting this whole thing wrong. :(  I'm trying to remind myself to take a deep breath but I'm so discouraged with everything I keep reading. I'm not convinced my case is strong and couple that with my fumbling in the dark to figure all of this out...well, discouraged is the best word right now.  Thank you, truly, for your help! 

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16 minutes ago, navy joy said:

Thank you so much, @sadinca You've been extremely helpful.  I completely forgot your recommendation for the M&C letter, even after re-reading my own thread today! This whole situation flusters me and I'm really nervous about getting this whole thing wrong. :(  I'm trying to remind myself to take a deep breath but I'm so discouraged with everything I keep reading. what have you been reading? just keep learning and getting yourself familiar with the process. have you read the threat from homlessincalifornia? I'm not convinced my case is strong you dont have to prove your case, they do. and as i see it, it appears that they only have 4 non-consecutive statements.  and couple that with my fumbling in the dark to figure all of this out...you are doing well. take a deep breath. i'll be here tomorrow and i can send you a sample of my M&C letter. then i suggest take the weekend off this matter for a least a weekend. well, discouraged is the best word right now.  Thank you, truly, for your help! 

 

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Thank you! I'm going down to the courthouse to file our answer tomorrow morning.  I'm looking over my defenses (which I used your list of 5 you included back on page 2 of this thread) and realized Affirmative Defense #1 may not apply to me as on the complaint they list the JDB as an "assignee of OC".  Does that mean the first affirmative defense must be taken out of my General Denial now?

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@sadinca, If I read the Plaintiff's Answer to the BOP correctly, I'm curious if Plaintiff in this matter has filed a Privilege Log with the Court.

16 hours ago, navy joy said:

"1) objects to each and every demand to the extent it calls for a response evidencing or embodying confidential communications between Plaintiff and their attorney, on grounds that such communication is protected by attorney-client privilege. 

2) Plaintiff objects to each and every demand to the extent that it calls for a response evidencing or embodying the work product of his attorney.

 

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14 hours ago, navy joy said:

and realized Affirmative Defense #1 may not apply to me as on the complaint they list the JDB as an "assignee of OC".  Does that mean the first affirmative defense must be taken out of my General Denial now?

think of it this way: do you know for sure they are the assignee of OC? not saying that the alleged bill of sale they produced is forged, however, the bill of sale has to be authenticated by a witness. 

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