Los Angeles, CA asked in Bankruptcy and Collections for California

Q: California debt collection question...

I am being sued by an original creditor in California. The cause of action is both "account stated" and "open book".

1.) Do these two causes contradict one another?

2.) Why would the creditor select both?

3.) If I ask for a Bill of Particulars for the open book, then what happens to the "account stated" action?

4.) Does the Bill of Particulars need to be filed with the courts or just sent directly to the plaintiff?

5.) What steps should I take after receiving a response from the BOP?

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1 Lawyer Answer
Gregory Mark Fitzgerald
Gregory Mark Fitzgerald
  • Bankruptcy Lawyer
  • Santa Ana, CA
  • Licensed in California

A: Multiple causes of action is routine and are generally plead in the alternative. They can also prevail on all causes of action. They may also prevail on one cause of action and lose on the other. That is why they do that. Nor does the BOP have any impact on the alternative causes of action. The BOP is not filed with the courts. It is served on opposing counsel. The failure to respond to the BOP request can provide you the opportunity to defeat the claim due to the non compliance. If they respond to the BOP the only issue is its adequacy. You should also know that many times collection claims can be proved up simply by using the defendants own testimony (assuming the claim is valid). This is why we typically do not recommend defendants represent themselves in these types of cases. If you are the debtor and are present in the court, opposing counsel can simply ask you a few questions (such as: did you have an account, and therefore an agreement, did you incur the debt, etc.) to prove up their cases. That is, it can be easier to prove up their claims using your own words than their documents (or lack thereof). Hope this helps!

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