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Question about Response from a Bill of Particulars Request

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based on California Civil Rule...
Question about Response from a Bill of Particulars Request based on California Civil Rule 454.

Sent lawyer written request. Lawyer replied with two years worth of credit card Statements.

To be more Specific, Lawyer sent the last two years of credit card statements on an over that is over 10 years old.

So, according to Cal Case Law, Plaintiff's legally limits the evidence and recovery to only the transactions set forth in the response.

This doesn't make sense, BALANCE ON THE oldest date they sent is $12,400 and the last balance from the most recent card statement is $10,300.

by this definition, doesn't it seem that they owe us money?

they are also suing on Account Stated as well, Open Book is the first Cause of Action.

Please let me know.
Submitted: 6 years ago.Category: Legal
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8/1/2011
Lawyer: MShore, Attorney replied 6 years ago
MShore
MShore, Attorney
Category: Legal
Satisfied Customers: 25,285
Experience: Negotiate, Draft, and Review many complex commercial agreements each year.
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Thank you for the post, I am happy to assist you by answering your questions. What case law are you relying in your understanding?
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Customer reply replied 6 years ago
The bill of particulars furnished by the plaintiff is treated as an “amplification” of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.

We agree with the Assessor that Code of Civil Procedure section 454 grants a defendant in an action on an account the right to request a bill of particulars, and that a plaintiff's response legally limits the evidence and the recovery to the matters set forth in his or her bill
- in KALSKI v. ANTONOVICH, 2009

The chief "amplifying" effect of the bill, however, is one of limitation: The items specified limit the nature and amount of recovery which might otherwise be permissible under the allegations of the complaint
- in California procedure
Lawyer: MShore, Attorney replied 6 years ago
Thank you, is the $2100 additional claimed based on legal/collection fees?
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Customer reply replied 6 years ago
These are basic credit card statements when the Credit Card was open and used.

Transactions consist of charges for goods and services on the credit card as well as payments made to creditor.

the only other charges are Finance Charges from keeping a balance on the card.

so, in the two years of statements, it just happened that I paid more to creditor than charged. that's the reason for the lower balance.

Card went into Charge Off shortly after last statement provided by Plaintiff.
Lawyer: MShore, Attorney replied 6 years ago
ok, so that I understand the big picture, your argument is that the creditor owes you money despite the charge off on the account?
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Customer reply replied 6 years ago
I don't know, that's what I'm trying to clarify.

What exactly constitutes a list of credits and debits?

In reality and how the Procedure is supposed to work, the PLAINTIFF is supposed to send all transactions from zero or inception. So, basically, you get the same total as if you would in the Account Stated.

BUT, they didn't do that and only sent last two years.

So, Yes, if I can, I would like to make the point that by only sending two years worth of statements as their response, they actually owe me money.

So, am I applying Case Law correctly?

And if so, how is Finance Charges calculated? Is it the Finance Charges listed on the statement, which is from the balance prior to oldest statement sent by Plaintiff.

OR, would finance charges be recalculated as if the first statement sent b plaintiff was at zero?

Lawyer: MShore, Attorney replied 6 years ago
You are applying the case law correctly but the argument does not pass "the laugh test" in that I assume it is undisputed that at some point you neglected to pay the balance on the account per the credit card repayment agreement, hence the charge off, and then claim that the creditor owes you money. The finance charges are calculated based on the balance owed at the time of the last statement plus applicable accruing interest and late fees. Please let me know if you have any follow up questions.
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Customer reply replied 6 years ago
Sorry, yes I do need a clarification.

I don't understand the answer.

So, based on the figures I provided of the beginning and ending balances, what is their claim exactly?

And it sounds like the Finance Charges Posted in the statements IS a "Transaction"?

Lawyer: MShore, Attorney replied 6 years ago
They are claiming $12,400.I am assuming the most recent credit card statement is dated before the oldest date they sent. If the assumption is correct, they are claiming the $10,300 plus late fees and finance charges that kept accruing since the last statement. Yes, the finance charges, once applied, constitute a transaction.

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Customer reply replied 6 years ago
Sorry, still don't understand.

You stated before that I'm applying the law correctly,

if I am, Case Law is ONLY on the transactions they provided and they are precluded from using transactions they have not included in their BOP.

It is a "limiting" procedure - as in, they are limited to use ONLY the transactions they provided.

A balance is not a transaction. The effect is adding all credits and debits of the transactions.

So in effect, one should only add up the transactions.

If they have provided a BoP from zero, where all of the transactions do ADD up to the Balance of $10,400, then yes, they can include every transaction.

But from I asked before and you stated I was applying correctly, they are precluded from using transactions they don't include and can only sue on the transactions they do include.

Again, using Civil Code 454 and Request for BoP is a "limiting" procedure.

From what your saying, they haven't limited anything.
Lawyer: MShore, Attorney replied 6 years ago
Did they include the application of interest or any other calculation to explain the increase to $12,400? If so, they then are including transactions.
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Customer reply replied 6 years ago
No, account started in year 2000, they only provided statements from 2008 to 2010.

We asked for a full BofP.

The only evidence is:
-two years of statements
-2008 cardmember agreement
- and a Declaration, which does not state any information as to any specific transactions nor how they came up with the starting amount of $12,400.
Lawyer: MShore, Attorney replied 6 years ago
ok, you mention a 2008 credit card agreement, is their theory that upon execution of that agreement you ratified the prior 8 years' statements and that is why they only have to show from 08' to 10'?
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Customer reply replied 6 years ago
I've read it several times and just re-read it.

I find no language even referring to previous years' statements.

They only provide statements from 2008 to 2010 because they admit in their Declaration that they "Destroy" all documents after 25 months. original contract in 2000 and any documents created are legally destroyed after 25 months.

A computer listing of transactions can be a legal document if it is sworn to it's authenticity by a person employed by them. But they don't provide this.

Lawyer: MShore, Attorney replied 6 years ago
ok, the likely resolution here would be, if you make the argument you have made during our exchange, is a court finding that the balance indicated on the first 2008 statement presented is "ground zero" for the account balance owed, finance charges and late fees accruing from that date forward and the total what is owed on the account.
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Customer reply replied 6 years ago
Relist: Answer quality.
was looking for a more definitive answer.
Customer reply replied 6 years ago
Relist: Answer quality.
Original answer doesn't seem to be based on case law.
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