bff

So wha happens after you file an answer? Whats the timeline of events?

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A lot of collections 'internet info' is centered around what happens if you DONT respond to a summons. 

But not a lot of what happens if you do. Im trying to study some case dockets and court calendars to figure out what is the standard chain of events.

Im noticing forexample, that right after an answer, the clerk enters a 'Notice of trial'. And thats like a many months away.

So you kick back and play 'discovery' in those months? 

Where can i can I learn what is the process of litigation? There is too much noise I find on motions and notices etc

Surely there must be same game play book out there for the Pro Se ?

Those that have gone through the grinder...what happens after the first paper is filed?

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The first thing you need to do is look up the Rules of Civil Procedure for California (or whatever state you are in). That is the play book that all parties, including pro se defendants must follow. They are online and easy to find with Google.

Using those and doing research on the boards, you have to decide how you are going to proceed. Are you going the route of arbitration or trial. What should you ask for in discovery. You will also be expected to meet and confer with the other side to see if a settlement can be reached. There are also special rules in California and time limits for those rules so you need to understand the court cases surrounding those rules.

Trust me, you do not file your answer and kick back until trial. You have tons of work to do.

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9 hours ago, WhoCares1000 said:

The first thing you need to do is look up the Rules of Civil Procedure for California (or whatever state you are in). That is the play book that all parties, including pro se defendants must follow. They are online and easy to find with Google.

Using those and doing research on the boards, you have to decide how you are going to proceed. Are you going the route of arbitration or trial. What should you ask for in discovery. You will also be expected to meet and confer with the other side to see if a settlement can be reached. There are also special rules in California and time limits for those rules so you need to understand the court cases surrounding those rules.

Trust me, you do not file your answer and kick back until trial. You have tons of work to do.

So instead of a 30 day response period it goes quicker? 

Im sort of counting on the OC to be slow due to so many cases they are suing but they probably have it all automated and ill be fighting a computer. yikes!

 

 

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If you watch your case file, you will be given a court date. In California, if you are in one of the larger counties, it might be 2 years out or more. In the meantime you have to follow the discovery process because you can be sure that they will be looking for a reason to do a MSJ so that they can get the judgement quicker. In fact, be ready to show that there is a material fact of dispute because I almost bet they will try to do a MSJ quickly.

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Arent all these cases public? Can we just see what their standard responses are? How would I find SUCCESSFUL defenses against their standard responses.

Basically how can i learn what counters people use for an open book / account stated with an OC? There must be a chink in their armor

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On 5/11/2021 at 1:51 PM, WhoCares1000 said:

If you watch your case file, you will be given a court date. In California, if you are in one of the larger counties, it might be 2 years out or more. In the meantime you have to follow the discovery process because you can be sure that they will be looking for a reason to do a MSJ so that they can get the judgement quicker. In fact, be ready to show that there is a material fact of dispute because I almost bet they will try to do a MSJ quickly.

How much time passes between the MSJ to decision? HOw to rebute that?

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11 hours ago, bff said:

How much time passes between the MSJ to decision? HOw to rebute that?

If you file a reasonable answer (one that is more than "I cannot afford to pay this debt") and show that there are issues to be decided at trial, you can stop a summary judgement. In fact, California is debtor friendly so the judges will tend to lean away from issuing a summary judgement if you can give a reasonable reason for them to do so.

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11 hours ago, bff said:

Arent all these cases public? Can we just see what their standard responses are? How would I find SUCCESSFUL defenses against their standard responses.

Basically how can i learn what counters people use for an open book / account stated with an OC? There must be a chink in their armor

You can go through the cases BUT you are going to find that about 98% of the cases are either settlements or summary judgements because the defendant did not answer or provided a weak answer. You are better off posting the particulars of this case on this board and member such as @RyanEX who are familiar with California rules can help you in whatever you need, unless the plaintiff is a creditor like Capitol One, Discover, or AMEX who almost always sue on their own debts, either don't have arb clauses or are willing to follow you all the way in arb, and have the paperwork required to prove their case.

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3 hours ago, WhoCares1000 said:

If you file a reasonable answer (one that is more than "I cannot afford to pay this debt") and show that there are issues to be decided at trial, you can stop a summary judgement. In fact, California is debtor friendly so the judges will tend to lean away from issuing a summary judgement if you can give a reasonable reason for them to do so.

 

3 hours ago, WhoCares1000 said:

You can go through the cases BUT you are going to find that about 98% of the cases are either settlements or summary judgements because the defendant did not answer or provided a weak answer. You are better off posting the particulars of this case on this board and member such as @RyanEX who are familiar with California rules can help you in whatever you need, unless the plaintiff is a creditor like Capitol One, Discover, or AMEX who almost always sue on their own debts, either don't have arb clauses or are willing to follow you all the way in arb, and have the paperwork required to prove their case.

The cases that ive been finding are at the appeals level. Like you say they are always the defendant loosing and the ruling saying something like 'creditor had all the paper work to prove xyz and defedant didnt provide anything'

what im looking for is EXACTLY what to ask in discovery before this summary judgement event so i have the 'reasonable answer' . i dont think i will find a smoking gun or anything like that, but ineed to know what to ask for in disocvery so i can tell the judge there are issues here that need more discovery and ultimtely a trial. if i can push this out to a year it would help me prep for a bk

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1 hour ago, bff said:

 

The cases that ive been finding are at the appeals level. Like you say they are always the defendant loosing and the ruling saying something like 'creditor had all the paper work to prove xyz and defedant didnt provide anything'

what im looking for is EXACTLY what to ask in discovery before this summary judgement event so i have the 'reasonable answer' . i dont think i will find a smoking gun or anything like that, but ineed to know what to ask for in disocvery so i can tell the judge there are issues here that need more discovery and ultimtely a trial. if i can push this out to a year it would help me prep for a bk

If you are in limited civil court, read up on CCP 96 and CCP 98.  If you are served with a “Declaration of Plaintiff in Lieu of Personal Testimony at Trial”, you can subpoena the affiant to personally appear at trial. The plaintiff must follow it.  Here is a decision from the CA Supreme Court that addresses CCP 98.  

https://scholar.google.com/scholar_case?case=11539742947026699092&q=“ccp+98”&hl=en&as_sdt=4,5

“We answer the Ninth Circuit's question as follows: Section 98(a) requires an affiant to provide an address within 150 miles of the place of trial at which lawful service can be made of a form of process that directs the affiant to attend trial. Although a subpoena normally must be personally served, in some circumstances witnesses can be summoned to appear at trial without service of process upon the witness personally. Thus, section 98(a) does not categorically require that all affiants be personally present at a location within 150 miles of the place of trial for a reasonable period within the 20 days prior to trial. Such presence is required only if it is necessary for lawful service at that address of process designed to secure the affiant's attendance at trial.”

 

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18 minutes ago, BV80 said:

If you are in limited civil court, read up on CCP 96 and CCP 98.  If you are served with a “Declaration of Plaintiff in Lieu of Personal Testimony at Trial”, you can subpoena the affiant to personally appear at trial. The plaintiff must follow it.  Here is a decision from the CA Supreme Court that addresses CCP 98.  

The thing is, demanding for someone to fly in (or maybe zoom these days) will incur huge costs. And if the debtor looses, they will be responsible for those costs. Am i wrong in my thinking?

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It depends on what the contract says and if you read CCP 96 and CCP 98, you will realize that the person they want to fly in has to be given personal service within 150 miles of the courthouse.

Also, if you write an answer and they do a MSJ without discovery, then you can usually beat that by showing the judge that there is an issue of fact that needs to be decided by the judge. Even if it is something like their balance does not match the balance you have. Trust me, if you file a reasonable answer, a MSJ will most likely not be granted. Especially in California, which again, is a debtor friendly state when it comes to the courts.

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8 minutes ago, WhoCares1000 said:

It depends on what the contract says and if you read CCP 96 and CCP 98, you will realize that the person they want to fly in has to be given personal service within 150 miles of the courthouse.

Also, if you write an answer and they do a MSJ without discovery, then you can usually beat that by showing the judge that there is an issue of fact that needs to be decided by the judge. Even if it is something like their balance does not match the balance you have. Trust me, if you file a reasonable answer, a MSJ will most likely not be granted. Especially in California, which again, is a debtor friendly state when it comes to the courts.

> Even if it is something like their balance does not match the balance you have.

Okay, this is really good. 
The OC is using the usual cause of action: open book and account stated.  These seem impossible to defeat since they just present the statements 

What do you think of raising and affirmative defense of fail to cause action - breach of contract? I would like to demand the contract since it is after all how the fees and interest and balance calculation is made. How do i ask for that in discovery? 'give me the orignal contract'? Esp as ive read they respond with a generic contract without my name on it

I would like to know how else to attack this with an OC. I have heard you say california is debtor friendly, but with the open book / account stated and summary judgements given to creditors, how exactly is it debtor friendly?

thanks for your help, you are giving me little rays of light of hope

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You should come to Minnesota where they can sue you without filing in court and even do sneak peek garnishments before deciding if it is worth it to file in court if you do not answer.

Or go to Georgia where it is trial by fire and you are not allowed any discovery if in Magistrate Court

Trust me, California is a very debtor friendly state. First off, account stated is a legal setup in all 50 states which dates to the time when local stores would set up credit accounts with their customers. I actually have a case from North Dakota from the early 30s that was based on account stated. This is nothing new. As for summary judgements, realize that 95% - 98% of those who are sued either do not answer the lawsuit or provide an insufficient answer (such as I cannot afford to pay). Under the law in any state (or in Federal Court), the judge has to sign off on a summary judgement whether they want to or not. There are many consumer oriented judges who do not like this but cannot do anything if the other party will not participate. Finally, CCP96 and CCP98 are unique to California whereas other states have adopted the business records rules making it easier for plaintiffs to authenticate records in those states.

As for the credit contract, the contract you get is the one they send you because all credit card contracts are like that. You can even get a copy of the contract from the CFPB website if you want to look at it yourself before you file your answer (to say, find an arb clause).

Now, since you mention that this is an OC, you might have a harder time (although not impossible) than with a JDB because they have the records. You will really need to look into CCP96 and CCP98. I suggest you look at the other California threads and talk to board members such as @RyanEX who have experience in California.

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