Author Topic: Substitution of Attorney by CA  (Read 3100 times)

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aqui

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Substitution of Attorney by CA
« on: April 10, 2011 05:32:48 PM »
I was serverd with a summons for a alleged CC debt by CACH, LLC in Oct 2010. The original Creditor was CLOUT but they claim that it's a BOA since i think BOA bought Clout in 06/07. I did however make a payment to BOA on the debt in 2007 before they wrote it off in '08. Well i did answer the complaint and proceed to seek discoveries of which they choose to answer the ones that were less harmful to them before claiming discovery limit has been exhausted. (35 in California - i thought it was 35 per interrogatories,admission and production since they cannot be combine due court rules.) Last week i filed my case management review statement due 15 days prior to CMR. Instead of recieving their CMR Statement i got a substitution of attorney form stating that they have changed the attorney who was assigned to the case.

Questions:
1.Is this a strategy to buy more time on their part and how should i prepare for the new attorney if they missed the CMR deadline to file.
2. Can i dispute or introduce statement from the original creditor at trial and use the chain of custody defense?
 

transborder

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Re: Substitution of Attorney by CA
« Reply #1 on: April 11, 2011 12:47:54 AM »
You could (heavy emphasis here) file a motion for sanctions since they missed the CM deadline - most likely though, it will be ignored...

this is to buy time. The former attorney probably was subbed out because of workload or maybe a weak record at trial. Chase does this in LA County - if you answer suit, it is transferred out of the in-house counsel to another attorney. IMHO, this is done to rack up the maximum damage against the defendant.

If I were you, I'd submit a bill of particulars - it does not count against the 35 item limit. It helps you out tremendously- first, it makes them complete an itemized listing of your account...if its lower than they ask in suit, then the lower amount prevails. It also locks them out of surprising you with high fees later.

aqui

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Re: Substitution of Attorney by CA
« Reply #2 on: April 11, 2011 06:48:41 AM »
Thanks for the suggestion Transborder i will proceed with the BOP and keep you posted!

aqui

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Re: Substitution of Attorney by CA
« Reply #3 on: April 23, 2011 05:46:32 PM »
Transborder - i mailed the BOP as suggested and still haven't recieved their CM statement...the review was this week and based on the case summary a Order to Show Cause was set for May. What does that means?

transborder

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Re: Substitution of Attorney by CA
« Reply #4 on: April 23, 2011 09:32:16 PM »
It now means that the court is aware of the missed deadlines... and the hearing is to determine what is going on... I'd now move for sanctions and get a hearing put on the calendar.

aqui

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Re: Substitution of Attorney by CA
« Reply #5 on: April 29, 2011 02:14:10 AM »
Thanks Transborder, will consider same!

aqui

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Re: Substitution of Attorney by CA
« Reply #6 on: April 29, 2011 02:31:27 AM »
BOP UPDATE: Just got a objection to the BOP claiming that it exceeds code 454 and refering to a statement that was sent earlier w only alleged total owed and a verification signed by attorney claiming that Plaintiff is out of county where office is located. Any suggestion of what next to do? Secondly, can the attorney signed the proof of service by mail for the BOP?

Shadowbuddha

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Re: Substitution of Attorney by CA
« Reply #7 on: May 02, 2011 12:35:34 AM »
CCP 454 intimates that one might not need every last detail, but a statement with alleged total is certainly not enough.  Are they suing under an account stated?  I believe under account stated they don't need to fill out a BoP.  Verification by the attorney is acceptable re: 454.  Attorney shoud be able to sign proof of service by mail for it.

"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

aqui

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Re: Substitution of Attorney by CA
« Reply #8 on: May 02, 2011 01:32:51 AM »
the summons says "open book account and an account stated in writing" on the cause of action.
Would you then suggest that i send a meet and confer letter informing them of a motion to comply? and try to see what else i can get from them. I know they can't/should have a difficult time producing  the itemized charges, as the alleged charges were done prior to BOA assuming ownership of the account.

Shadowbuddha

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Re: Substitution of Attorney by CA
« Reply #9 on: May 02, 2011 02:23:37 AM »
Perhaps someone with more experience will chime in, but my knowledge of CA civ pro is still pretty weak so I really can't give an opinion on it at this point.  I would research further what "open book account" means though, as that might allow you to get a BoP.  They could technically still win on the account stated, but always good to make them work harder.  Remember though, even on account stated, they still need to properly put the evidence in the record, and JDB's are notoriously bad at that.  Make sure to read the sticky about chain of custody in the JDB forum.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

aqui

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Re: Substitution of Attorney by CA/Objection to BOP
« Reply #10 on: May 26, 2011 07:13:04 PM »
THANK YOU GUYS!!!!!!  :woohoo: :woohoo:
...i was a good student today in court at a hearing to show cause. I was happy when the Judge suggested that i should file a MTC because plaintiff has objected to my BOP. I even tried to throw the kitcken at them but only got the sink.

The judge asked if the case was all good for trial and i told him that apart from the Plaintiff's objection to my BOP, which i might have to file a MTC for, its all ready...so he said he will set bench conference for July and that with such date i'll have ample time to have the MTC heard.

Well, the Plaintiff's attorney was not in court...LOL...so the judge instruct counsel on sanction for non appearance, at which point i asked for sanction for failure to file CMR(the reason for the hearing in the first place)...The judge was like a CMR was not file. I told the judge that i have not recieved any from the plaintiff...so he looked through the file and order sanction #2 in the amount of $100.00 payable in 20 days for failure to file CMR! LOL

Now all i have to do is get my motion date and i am ready to go at them again! THANKS GUYS......for all your help and suggestions!!! 
« Last Edit: May 26, 2011 07:18:40 PM by aqui »

cprems

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Re: Substitution of Attorney by CA/Objection to BOP
« Reply #11 on: May 26, 2011 07:59:56 PM »
I would have motioned to dismiss with prejudice, if allowed.

Them being sanctioned is awesome.


THANK YOU GUYS!!!!!!  :woohoo: :woohoo:
...i was a good student today in court at a hearing to show cause. I was happy when the Judge suggested that i should file a MTC because plaintiff has objected to my BOP. I even tried to throw the kitcken at them but only got the sink.

The judge asked if the case was all good for trial and i told him that apart from the Plaintiff's objection to my BOP, which i might have to file a MTC for, its all ready...so he said he will set bench conference for July and that with such date i'll have ample time to have the MTC heard.

Well, the Plaintiff's attorney was not in court...LOL...so the judge instruct counsel on sanction for non appearance, at which point i asked for sanction for failure to file CMR(the reason for the hearing in the first place)...The judge was like a CMR was not file. I told the judge that i have not recieved any from the plaintiff...so he looked through the file and order sanction #2 in the amount of $100.00 payable in 20 days for failure to file CMR! LOL

Now all i have to do is get my motion date and i am ready to go at them again! THANKS GUYS......for all your help and suggestions!!!
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aqui

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Substitution of Attorney/MTC BOP
« Reply #12 on: July 12, 2011 11:10:49 PM »
 :woohoo:..Another Win for the Team.... :woohoo:

Thanks to you all for your assistance on this board. Appreciated the constant feedback and suggestion.

Motion to compel BOP scored today in court and the Plaintiff admits he only has the last two statements. Can someone suggest the next move....should it be motion to dismiss or do we still have to go to trial?

HERE is a Copy of the Motion Ruling!
__________________________________________________ _____________
Case Number: Hearing Date: July 12, 2011 Dept: 77

CACH LLC V. XXXXXXX

Dís Motion to Compel a Further CCP 454 Bill Of Particulars on a Credit Card Balance is GRANTED in part and DENIED in part. .

P is to serve a further bill of particulars within 30 days that itemizes each unpaid purchase made by D on the credit card.
Dís request for the credit card contract and assignment of account to P is denied; neither are ďcopies of the accountĒ required under CCP 454.
Pís response consisting only of the 4/08 and 5/08 statements of account showing merely the balance due and not the itemized purchases do not satisfy CCP 454.
P must provide an itemization of the date of purchase, the item or service purchased and the price.
« Last Edit: July 12, 2011 11:15:32 PM by aqui »

coltfan1972

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Re: Substitution of Attorney by CA
« Reply #13 on: July 13, 2011 12:54:31 AM »
Motion for summary judgement against the other side. 
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.
Scroggin made a "mockery" out of CBOJ's deposition.

Scroggin made "perverted one-liners" during his deposition.
Scroggin called CBOJ'S counsel "a little witch"

Scroggin used the FDCPA as a "sword of intimidation."
Scroggin loves suing debt collectors.

Scroggin is proud of his behavior and "unapologetic."

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ- 3:12-cv-128, Eastern District of Ark.

kevinmanheim

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Re: Substitution of Attorney by CA
« Reply #14 on: July 13, 2011 01:09:28 AM »
I would reach out to the other side and offer a settlement agreement that wipes out the debt and prevents either party from bringing suit in the future on any claim.

The advantage here is that it will stop CACH from selling the debt to one of their buddies, and you facing a new lawsuit.

CACH has 1000 heads.