Legal Question in Civil Litigation in California

There are several ways to respond. The most common way is with an answer, but you can also file a demurrer, a motion to strike, a motion to quash service, etc. If you believe the plaintiff has violated the Fair Debt Collection Practices Act (FDCPA) in a way that requires the dismissal of the case, then you probably want to bring a motion to strike. But I'm not persuaded by your argument.

Spears v. Brennan is a state court case from Indiana with no precedential value in California. Other courts have disagreed with Spars, holding that "verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt." Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). The U.S. Court of Appeals for the Ninth Circuit -- whose jurisdiction includes California -- has adopted this standard. Clark v. Capital Credit & Collection Servs., 460 F.3d 1162 (9th Cir. 2006).

The letter that you say basically just laughed at you may well have been enough to satisfy this test.

You say that the lawyer who wrote that letter "is the defendant's trust attorney", but the defendant is you. If he's really your attorney, then there probably is a conflict. But if he's the plaintiff's trust attorney, then I don't see a problem. Even if there is a conflict, it can be corrected without dismissing the case.

Note that the FDCPA applies only to third-party debt collectors. It generally does not apply to the creditor itself. If your letter was in response to actions taken directly by the creditor, then the FDCPA probably won't help you.

Your best bet is to consult with a lawyer in your area who can review the case with you in detail.

Good luck.

If you have been served with a Summons & Complaint, meaning you are defendant in a lawsuit, you'll have to file either an Answer, Demurrer, or Motion[s] as appropriate. If you have valid basis for a motion to dismiss, so be it. The facts will determine that. If you have valid grounds to counter sue or bring other defendants into the case, you file a Cross Complaint. With all that said, if the amount in question is enough to justify you hiring an attorney to represent you, then feel free to contact me if serious about doing so. Otherwise, you are going to have to learn how to effectively practice civil law and procedure in compliance with the Rules of Court against an experienced attorney who does, and is seeking a judgment against you. You will be held to the same standard of knowledge and law as an attorney. Your call.

I want to add a bit to my earlier response, since I wasn't very clear about how California courts are likely to respond to your reliance on the Spears case. Cases from outside of California are not binding on the courts of this state, but your court may be persuaded by the Indiana court's logic. The same is true of federal court decisions, including those from the Ninth Circuit.

Spears was decided by the Indiana Court of Appeals, not by the Indiana Supreme Court. The decision would be more persuasive in other jurisdictions had the Supreme Court handed it down.

You will be free to argue that Spears interpreted the FDCPA correctly, but the court deciding your case is unlikely to agree. Many cases have interpreted the same statutory language at issue in Spears, but I believe none of them have reached the same conclusion. Instead, they have held that the FDCPA imposes a much lighter burden on debt collectors. That is how you are court will probably rule, too.