Sign in to follow this  
LILI

LILI

Recommended Posts

Can someone review this?

Is this an acceptable demurer for the superior court of california, county of los angeles. 

There was a summons and complaint issued by capital one for credit card debt. Amount is 20K limited civil case

 

 

 

Share this post


Link to post
Share on other sites

My questions are whether those facts are appropriate in this demurrer?

is this the right type of motion? It’s a objection to the complaint, that’s the same as a demurrer right?

generally does it look ok?

can  the answer be filed at the same time as the demurrer?

this is for my dad, does he have to go down to the courthouse or can someone else file it for him, like a family member?

 

Share this post


Link to post
Share on other sites
2 minutes ago, LILI said:

My questions are whether those facts are appropriate in this demurrer?

They are not.  While your circumstances are sad and understandable for default they are not a defense to a lawsuit for the default or to deny a MSJ.

7 minutes ago, LILI said:

3. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements or billing of said debts.

The court is well aware there is no mutually signed contract in a credit card case.  Capital One does not have to provide one to prevail. The other issue is they do not have to provide all the itemized statements to prevail either.

It appears you are using defenses that are designed for a junk debt buyer.  Capital One is an original creditor and has all the necessary documentation to prevail.  There are things you can do in the California courts but it very possible he missed the time line to do them.

11 minutes ago, LILI said:

1. Defendant received the Plaintiff's Complaint on or about November 26, 2019 via substitute service. Defendant answered the complaint on or about December 17, 2019.

December 17th isn't even here yet.  Has an answer been filed with the court and served on the Plaintiff?

9 minutes ago, LILI said:

is this the right type of motion? It’s a objection to the complaint, that’s the same as a demurrer right?

I do not know if this is the right type of motion or not or if it is even necessary.  Did they file a MSJ?

9 minutes ago, LILI said:

this is for my dad, does he have to go down to the courthouse or can someone else file it for him, like a family member?

I believe anyone can file it for him.  The major problem is even if a family member gets power of attorney you cannot represent him in court.  You are practicing law without a license.  He needs to either hire an attorney, file BK, settle or let them get the judgment.  If he is disabled and on SSI or SSDI they cannot levy his bank account with that money or garnish it.

Share this post


Link to post
Share on other sites
9 minutes ago, Clydesmom said:

December 17th isn't even here yet.  Has an answer been filed with the court and served on the Plaintiff?

The answer is drafted and not filed yet. I was thinking to have him file the answer and demurrer at the same time since the courthouse is far, about an hour drive. 

Share this post


Link to post
Share on other sites

The plan was to file an answer, and then call them to settle. But not go through the whole court process. The answer would create leverage for better settlement.

 

Share this post


Link to post
Share on other sites

the reason i put those facts in in the demurrer is because the cause of action listed in the complaint is common counts. Common counts mean there is an account stated debt and there is an assumption that the defendent held those statements without objection. my point was the defendent never held those statements without objection because he was too sick.still no good?

Share this post


Link to post
Share on other sites
11 hours ago, LILI said:

Common counts mean there is an account stated debt and there is an assumption that the defendent held those statements without objection. my point was the defendent never held those statements without objection because he was too sick.still no good?

No good.  The reasons the defendant didn't object are not LEGAL ones.  Under the law if he was too ill to handle his financial affairs he should have appointed someone to do so for him.  While it is understandable it is not a defense to not paying.

Is he alleging there is fraud in the statements now?  The other issue with that is a consumer only has 6 months to dispute a charge.  Once that time passes the charge is automatically valid and no longer disputable.  The only possible way out after 6 months would be for the consumer finding themselves in collections or sued and discovering the entire account is fraudulent.  Under that the charges could be disputed as the party being targeted as the defendant is also a victim.

12 hours ago, LILI said:

They did not file a motion for summary judgment yet, only a complaint

You really should research all the California threads.  There are a lot of options available to consumers there but in all of them I have never seen a demurrer recommended and based on what you posted you don't have a legal basis for one.

11 hours ago, LILI said:

What do you think capital one would settle for? on 18K for a disabled 81 year old who has no income besides SSI. 

Cap1 is one of the top 3 most aggressive creditors when it comes to litigation.  Typically we see anywhere between 60-80% of the debt.  You start with a low number and then work your way up to the best number you can afford and they will take.  Cap1 may demand proof of disability and income to approve a very low settlement.  That is not unexpected.  However, they could also refuse to settle at any number even if it means they never collect.  Settlement talks are not admissible at trial so there is no harm in trying.

Share this post


Link to post
Share on other sites

One thing you need to consider:

Is he “judgment proof”?  
 

There really is no such thing as judgment proof, but there are some people from whom a judgment cannot be legally collected, such as only income from disability or SS.  The laws vary state to state.  You need to find out the laws in your state.
 

If one is “judgment proof”, then one has much greater leverage in settlement negotiations.  As in, take this or you get absolutely nothing. 
 

Realize some creditors would rather have an uncollectable judgment on the record than a small settlement.   If he is judgment proof, he will have to live with a judgment on his record if negotiations fail.   

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this