Legal Question in Credit and Debt Law in California
I received a summons (with no court date) in late December 2009 for a lawsuit filed by a JDB, and I answered Pro Se with an Answer, Affirmative Defenses, Pro Se Notice of Appearance, and a Certificate of Service on the 31st of December. I mailed one copy via Certified Mail to the attorney for the plaintiff, and hand-delivered one copy directly to the courthouse, having them stamp my personal copy for my reference.
The case is from a credit card in which the last payment was made in June of 2005, more than 4 years prior to when the lawsuit was filed, meaning it was filed out of the statute of limitations for my state of California. I obtained proof of when the last payment was made via an old bank statement including the a copy of the check used to make the payment, which correlates to the information on my credit report from all three credit bureaus.
My questions are:
When should I initiate discovery in this case, and what are the time limits in California in which to do so?
I have prepared my First Request for Admissions and my Request for Productions to Plaintiff. I have combined these both in one legal document, but have read that it is advisable to stretch the discovery process out to the greatest extent possible by sending demand for admissions first then when the answers come in from that, send demand for production of documents.
Is this the best way to go about it, or is one collective document just as effective?
I don't mind sending two separate documents, I just want to be as efficient as possible while proving my case.
My prepared First Request for Admissions contains 9 admissions and my Request for Productions contains 16 document requests.
Is this with in allowed amounts for the state of California?
Are there any other papers I should file or time limits I should be aware of in this situation?
I really appreciate any and all help. Thank you very much for your input.
3 Answers from Attorneys
You sound like the very rare pro per who knows what you are doing. Congratulations.
Except for one thing: The contract with your credit card issuer provides for attorney fees to the winning party. If your statute of limitations argument holds water, you will be the prevailing party. You won't be able to recover for your own time spent in legal research for your pro per case. Why not explore the idea of using an attorney? It won't cost you anything, and they'll have to pay more.
If the complaint was time barred, then you have a violation of the Fair Debt Collection Practices Act and can recover statutory damages of $100- 1,000. 714-534-0050
First you have a good defense on statute of limitations. The statute runs 4 years from when you made the last charge or payment as long as the card was not charged off.
Now to discovery. You can start at any time as you are defendant. You have four basic written discovery devices and they must be done in separate documents so don't combine your request for admissions with your request to produce. If you are in limited jurisdiction you are limited to a maximum of 35 discovery requests so don't ask too many. I would do a demand for bill of particulars which is particularly onerous to answer and basically makes the plaintiff itemized and support all the charges. Then I would do your requests to admit. Make sure you make them admit that the last activity on the account was over 4 years ago. I would also send the judicial council form interrogatory 17.0 you should type that out separately on pleading paper instead of using the form which basically makes them state and identify all evidence they use to deny your requests for admission. Hopefully they will get the picture and drop your case at this point.
If they don't and you get the proper answers you might want to file a motion fr summary judgment.
When you get close to trial you could also do a demand for witness and documents under Civil Code of Procedure 96.
If you go to trial and win you should sue them for an FDCPA violations and hire an attorney because they can get fees and you can�t, but at least you don�t have to do any more work.
Hope this helps and good luck.
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