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Showing content with the highest reputation since 11/09/2019 in all areas

  1. 3 points
    I just want to say Thank you, to all of you who spend your time day after day assisting regular day to day people, with out asking for anything in return. My wife was served early 2014, just when we were starting to recover financially after the financial crisis. With the help of the wonderful people in this website, she fought all the way to trial. she settled at the end, and accepted an offer that she would not have received otherwise. I was then sued in 2015, however my case was dismissed a few months later. Five years later, we now have two kids, and looking at the possibility of purchasing a property in the near future. We would probably still be underwater without the help extended to us during those difficult times. The job i held the previous years game me the time to stick around and help those who are in the same position i once was; however, i am starting a new job and wont be able to sign in as often as i do now, but i just wanted to say one more thank you to all of you anonymous real life heroes. Thank you!
  2. 3 points
    Actually they are NOT saying you failed to answer the complaint. They are making a big error by reversing the dates. They claim that they served you the DISCOVERY questions on 6/24 and that you failed to answer discovery within 30 days. Does the court's docket show when they filed discovery? You need to file an objection to this MSJ and state that The Plaintiff is in error and that they did not file interrogatories on 6/24 because that is the date they filed their complaint which was not served to you until August 26th. I would state in my opposition that they did send discovery requests on Oct 9th and that you did return the response which was signed for by Plaintiff's council on Nov 4th. Include the signed green card as evidence. I would then state that there is a pending Motion to Compel Arbitration filed by the Defendant which has not been objected to by the Plaintiff within the time limit (cite the court rule on responding to a motion). I would conclude by asking the judge to deny Palintiff's MSJ and to Grant Defendant's MTC as unopposed.
  3. 3 points
    Just wanted to give an update and a big thanks to @fisthardcheese, @BV80, @Brotherskeeper, @nobk4me I submitted my revised Motion to Dismiss along with my affidavit which was notarized by an Attorney in Toronto that included my Permanent Residency status docs from Canada along with my Canadian government issued ID. It took about 2 weeks after submission for a response but I have now received Notice of Voluntary Dismissal filed by the plaintiff. I could not have done this without the help of the board members here and just want to again say thanks so much for your knowledgeable help with my case.
  4. 3 points
    If there's some legitimate racial basis for why you stopped paying your Discover bill, you need to speak to a civil rights attorney ASAP. Otherwise, your ethnicity and that of the arbitrator is completely irrelevant to your arbitration case.
  5. 2 points
    The clock on deadlines for your answer starts ticking on the day you are served not when they filed. File an opposition to the MSJ based on answering and lack of jurisdiction based on the MTC.
  6. 2 points
    Because among all the other cases that they have, you would be forgotten and they might not make an effort to collect from you before you do the BK, especially if you remove your name from all property and bank accounts while you are away. If you go through with this and make their life hell in getting the arbitor's award, the first thing they will do is convert that into a judgement (and if you try to fight that, the judge is going to laugh at you once they show what you did in arbitration because the judge will know that you had your chance to defend yourself). Once they get the judgement, they will immediately do anything in their power to collect, making your life a living hell, even if you are outside of the USA. Do realize that even if they will not make any money, they can foreclose on your house if they have a lien on it, just to show you the power they have (most creditors would not do this in most cases but if you piss someone off enough that they remember you......). The fact of the matter is, they had already shown you that they could win in court. You figured you would do arbitration in hopes that they would not cover the expense and they called your bluff. You are not going to get a 4 - 5 month continuance regardless of what is going on. You will be lucky to get 90 days and more likely, you will get 30 days. They are probably going to win unless the arbitors accept your defenses and even there, they will simply ask Discover to calculate what you owe them without the extra charges and interest and give them a judgement for that amount. The CARD Act of 2009 (which is the law that I think you are citing in your defense) does not give a private right to action which means you should have complained to the CFPB rather than stopped paying your bill. The courts (and arbitration) are not there to enrich you because the other party broke the law. I have now said more than I intended to because I see you as one of those people who want to cut off their nose to spite their face. You intend to go down fighting in a battle you not only cannot win but can cause others grief too.
  7. 2 points
    That was started a few days ago. It's up to you, though, whatever you are comfortable with & we're all here to help. As someone who has been on the board for a while, I can tell you there are quite a few OC threads from California (the state in which the suit occurs matters a great deal) that were fought and won. Some via arbitration, others via the trial process.
  8. 2 points
    These are scams. Although there are examples of sewer service that exist, a judgement cannot be obtained and a lien cannot be placed unless the creditor files a suit in court and wins the case. Even with sever service, the judgement can be voided. In any case, the call is designed to scare you into calling them so that they can strong arm a payment from you. Feel free to ignore and they will eventually move on to better targets when they realize you are not falling for the scam.
  9. 2 points
    THANK YOU @LoveIsPower @sadinca @RyanEX @1stStep and all of you other hardworking and special people who voiced support or were here in this community. I am so grateful for the positive attitudes and vibes shared with me towards winning this case and for helping be part of vanquishing these bloodsucking JDB who wield the power of the judicial system as an extortion racket. Thank you @sadinca for taking the time to supply an excellent example of how to answer discovery and for the documents you have shared. Thank you @LoveIsPower for the encouragement, links, documents and sharing your opinion. Thank you @RyanEX for the answers and opinions. To others in California that have read this far - you can do this!
  10. 2 points
    The judge has zero latitude in terms of what you can pay. His job is to decide if the debt is legit, and that's it. Once Barclay's has their judgment, they can immediately start proceedings to garnish your wages and levy your bank accounts. You might have a couple weeks or a month between judgment and having your money forcibly taken from you. The time to work out a settlement is now before there are additional legal fees. Most of the time, creditors will agree to a monthly payment arrangement. Just be sure you can comfortably afford the payment you agree to, because if you default, Barclay's won't have to go back to court to get a judgment and can immediately begin garnishment and levy proceedings.
  11. 2 points
    Then you have no standing in the matter and cannot file motions regarding the judgment renewal. If the problem is the judgment creates a lien on property you own your issue is with your ex and you will have to deal with them. Unfortunately if he was still listed as a legal owner at the time of the judgment then they can attach a lien to the property. Consult a consumer attorney ASAP as this is much more complicated than a simple judgment renewal if it is not against you personally.
  12. 1 point
    I just wanted to post a quick up date, 7+ months later but I finally received the paperwork for the mutual dismissal. A big thanks for everyone's help, especially firsthardcheese!
  13. 1 point
    There were some extenuating circumstances, Extenuating circumstances play a huge role. Every OC is different, and there can be huge differences from case to case. Back about a decade or so ago, I was able to get a 25% settlement just before charge-off with FNBO. That was normal in those days. Sometimes the state laws can make a difference as well. Back in those days, BOA (now BAML) kept very bad records, and settlements of 10-15% were quite common. My state had very strict records requirements, so I was able to use that to keep BOA from ever suing, and also to beat Cap 1. Still, this is one of the best settlements we have seen from Discover. Other good settlements have generally been between the time Discover was billed for the hearing, and when they paid the bill. I don't recall seeing this good a settlement this early.
  14. 1 point
    Not if your response is that the court has no jurisdiction to hear the MSJ. bingo
  15. 1 point
    I guess I am the only one thinking 30% should be the goal in arbitration with an OC and not so shocked about it.
  16. 1 point
    You're a very nice and humble person. I appreciate you tons
  17. 1 point
    Excellent deal. Take it. BEFORE you sign, read it carefully and make sure this settles all claims. They normally put that language in there, but just make sure. They might have a stipulation that you never apply for nor use a Discover Card ever again. That is normal.
  18. 1 point
    So you believe they are pretending you are dead in order to collect from your live self? Can't believe they are that desperate for business.
  19. 1 point
    Wow - that could be best deal we've ever seen from Discover.
  20. 1 point
    @elansus The Comenity Bank Agreement states that arbitration may be elected by any party even after a lawsuit is filed. Even the party that initiated the lawsuit may elect arbitration for a different claim. The Agreement does not state that arbitration cannot be elected by a party once the party who filed the lawsuit has paid attorney's fees and court filing costs. "4. Starting an Arbitration Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration." Here's how MikeB35 addressed this cost issue in his Reply Brief: PRA’s Response devotes several pages to its argument over the “cost prohibitive” nature of consumer arbitration, bemoaning costs “8 times that which it would cost Defendant,” costs “beyond the reasonable.” According to the explicit terms of the Agreement, this Court is not the proper forum to decide this matter. Any unconscionability argument can and must be brought to the arbitral forum where, "The arbitrator shall have the sole and exclusive authority to resolve any dispute relating to the enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the Agreement or the arbitration provision is void, voidable, or otherwise invalid." (Pl.'s Ex. C, pg. 6.) Ohio courts are not sympathetic to PRA’s argument, either. "`Arbitration is favored because it provides the parties thereto with a relatively expeditious and economical means of resolving a dispute.'" Kelm v. Kelm, 68 Ohio St.3d 26, 29, 623 N.E.2d 39 (1993), quoting Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992). "Arbitration also has the additional benefit of unburdening crowded court dockets." Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 83, 488 N.E.2d 872 (1986).
  21. 1 point
    @Xtreme98, the way I read it, I believe the Plaintiff is saying they filed and sent you the initial complaint on 6/24/2019. Their MSJ is clearly trying to say that you had 30 days to answer the complaint, but did not -- in other words answered by 7/24 to 7/28, taking mailing into account. Can you confirm that you received their ORIGINAL complaint a short time after 6/24/19? Here's what I will look into: In a worst-case scenario, let's say you did file an answer well past 30 days late. Instead of an MSJ, they ANSWERED with their own set of 'admissions' and 'interrogatories,' which you answered and filed on 9/11/19. In fact, you answered them SO well, they know their only avenue is to go backwards and say you should have answered the complaint by end of July or so. That's their argument. We need to find out if the Plaintiff replying to your supposed "late" answers, defeats their claim that you responded too late to begin with. It seems to me the Plaintiff would have sent this MSJ at end of July or later. Instead, they sent admission requests and interogs, thereby continuing the case. So, back to you. Can you show proof that you received their original complaint in Sept or Oct, instead of end of June?? Best, Jimmy
  22. 1 point
    The first place I would call is the Social Security Administration and make sure they are not listing you as deceased (or I would go to the office). Once they list you as deceased, you are going to have a very hard time because next is your checking account being closed and drivers license and vehicle registration being cancelled. In fact, I would notify your bank and the state DMV too that your credit report status is incorrect. There have been horror stories about this.
  23. 1 point
    @elansus You were given leave by the magistrate at a hearing to file your DEFENDANT'S REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND STAY THE CASE PENDING ARBITRATION. If you read MikeB35's threads, the rules that govern a reply to a response are discussed. Normally, you'd have to file a motion for leave (aka permission) to file a reply brief. (IANAL) A reply is limited to addressing only those new issues raised by Plaintiff's Memorandum in Opposition that you did not argue or raise already in your Motion to Compel. You aren't re-arguing what you've already argued and supported in your MTC. Read their Oppo response to see what their main arguments are. You make your arguments to refute theirs and cite the case record, court rules and/or laws that support your arguments. I already pointed out some of these I've noticed in my posts above, with citations from the record. If you can pull a rough draft together, we can refine it here. IMO Here are the main opposition arguments they've raised: I.) "As the Defendant has failed to assert a basis for use of the Arbitration provision in the Card Member agreement, as set forth more fully herein, this case is not subject to arbitration." II.) "The Defendant alleges that the terms and conditions governing the account contain an arbitration provision to which the parties are bound. The Defendant is mistaken." III.) "Importantly, the Defendant denies (1) entering into a credit agreement with Plaintiff, (2) breaching the terms of the credit card agreement, and (3) the balance sought. See Plaintiff's Complaint filed September 16,2019, at Para. No.: 3." IV.) "The Defendant cannot assert a right under a contract in which he claims not to be a party. Likewise, any reliance by the Defendant on the terms and conditions governing the account is misplaced and does not apply to the Defendant as he alleges he did not enter into a credit agreement with Plaintiff." V.) "His denials in his answer are then a purposeful attempt to mislead the Court."
  24. 1 point
    Agreed. I just don’t know for a fact that all courts have made that decision. Hopefully, the OP has precedent that would help him.
  25. 1 point
    To be specific, the MTC should be heard first in order to determine if the court has jurisdiction to determine the merits of the case. If it is decided that a valid agreement to arbitrate exists, then the court cannot render a decision on the merits of the case.
  26. 1 point
    I’ve been in that situation myself. First and foremost, file an objection to the MSJ on the grounds that your MTC takes the case out of the court’s jurisdiction. Improper venue.
  27. 1 point
    Thank you. I'm just trying to wrap my head around the matter, rules and procedures. It is kinda fun in a sense of researching and learning new things. If I hadn't chosen my current path, I might've ventured into law school. I just hope to have some well researched ways for solving this by next week at least.
  28. 1 point
    Two things 1) Check your account agreement for an arbitration clause. If you have an arb clause it can be used to make this go away. Generic agreements for the year the account was opened can be searched for online. 2) While OCs technically have an advantage over a JDB in this type of suit (more likely to be able to produce a live witness from the OC at trial), I have yet to see one apply that advantage in the threads on this board. Every OC thread I've read, they followed the same playbook as a JDB. Of course there can always be a first time, but they are held to the same standard regarding evidence (a live & qualified witness to authenticate documents) and still bear the full burden of proving their case that a JDB does. CA members have beaten OCs using the same strategy.
  29. 1 point
    I agree with BV80. You should focus on the qualifications of the arbitrator. When I provided JAMS with my arbitrator list, I made my decisions based on the professional background and extracurricular activities and volunteer work of the arbitrators presented to me. I avoided those I felt would be more likely to side with a financial institution, and chose the individuals I believed would be fair towards consumers.
  30. 1 point
    The court computers set up specific events so that they can flag cases for dismissal if the plaintiff does not pursue the case. In this case, the are telling the plaintiff that they have to file their motion for summary judgement by such and such a date. They plaintiff may try for a summary judgement even if you do answer but all you have to show is that there are material facts in question that require a trial for the judge to decide. Look for threads that deal with California because there are specific protections for debtors in that state that are not available in the other 49 states. They will show you how to file your answer and prepare to do discovery.
  31. 1 point
    Just wanted to update this post, I did get served for both accounts as expected. The Cap1 is up for trial next week, I have filed a counterclaim due to some clear FDCPA violations. I'm not too worried about this one, the judge is fairly debtor friendly if you know what to say (and I do). The other suit (Synchrony) has a hearing scheduled for my MTC arb. that I filed. I want to help any other folks in Alabama find what I couldn't at first--filing a MTC in small claims. I finally figured out to go to the courthouse and get on their computer system and just look through the small claims cases, especially concerning JDB cases. Once you find a case that is similar you can see if it contains motions, if so you can see and even print (for a fee) a copy of it, thus learning how to compose it to meet your local court rules. Some used a district court cover sheet for motions and some didn't (I didn't). You can file a MTC with your answer, which is what I did, don't forget to include a letter of service and mail a copy to the opposing side (you will also see a sample for that as well). I got notice for a hearing for my MTC a few days later. I'll update again after the upcoming showdowns.
  32. 1 point
    I would be more concerned about qualifications and professionalism. BTW, please keep all of your questions and comments in one thread rather than starting a new thread for every issue.
  33. 1 point
    I filed a Demand for Arbitration with AAA on October 22. Although my case doesn't involve a credit/loan issue, I thought it would be helpful for me to post some information on the process. Today I received an email from AAA with an attached letter addressed to both parties. (I excluded some portions because they pertain specifically to my case.) --- The Letter: The claimant has filed with us a demand for arbitration. The American Arbitration Association (“AAA”) has determined that this arbitration arises out of a consumer agreement and, as such, the Consumer Arbitration Rules (“Consumer Rules”) apply to this dispute. The Consumer Rules may be found on our website at www.adr.org. Under the Consumer Rules, the consumer pays a filing fee of $200 and the business pays a filing fee of $300. We have received the consumer’s $200 portion of the filing fee. So that the filing requirements are complete, the business is requested to submit filing fees of $300, the expedited consumer clause review fee of $250 and its arbitrator’s compensation deposit of $2,500, totaling $3,050. (The clause review fee is only required if an arbitration clause is not registered with AAA.) Please make the check payable to the American Arbitration Association and include a reference to the case number. Checks should be mailed to 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. In the event that payment is being made by a third party, such as an insurance company, please request that payment be sent directly to the business’ representative. The business’ representative should then forward payment to the AAA in accordance with the foregoing instructions. The requested payment and submission should be received no later than December 2, 2019 and the AAA may decline to administer this dispute if the business does not timely respond. It should be noted that the consumer’s satisfaction of the filing requirements triggers the business’ obligation to promptly pay its share of the filing fees under the rules and the business may owe all or a portion of the filing fees even if the matter is settled or withdrawn. The AAA will refund any overpayments received from the consumer with the filing. No answering statement or counterclaim is due at this time and the parties will be notified of the applicable deadlines upon satisfaction of all the filing requirements.
  34. 1 point
    No one is judging you. Your plan and answers to our questions don't match your stated goals so we're trying to find the missing piece to the puzzle.
  35. 1 point
    Well, it will be very difficult to drag out arbitration unless you are actively participating in arbitration. If you stop participating, either the case will be closed or they will just rule against you. Either way, you would find yourself in court very quickly. Also, a BK attorney could file BK and do all the work for you while you are gone. You don't have to be there. Not to mention, if you have any expectations of inheritance, it would be far better to file BK while your father is still alive. Otherwise any inheritance you get would be taken away to pay your creditors. If you have already spoken with a BK attorney, I am sure you have discussed this. I can't see that tax liabilities are any reason to delay BK either. But, you have spoken to an attorney already, and the attorney almost certainly has a better idea of the situation than anyone on this board. If you are certain that BK must be delayed, and you feel it is absolutely necessary to drag things out in arbitration, you should (a) choose possible arbitrators right away. I think you are right at your deadline. Do that NOW. Don't miss any deadlines. (b) File a letter with the case manager, ASAP, of course with a copy to the opposing law firm, stating that due to your father's impending death you are requesting a continuance of the proceedings for 4 months. (c) If no continuance is given, then wait until an arbitrator is chosen. As soon as an arbitrator is chosen, file for a continuance based upon your father's impending death, and you needing to be around to help him. This way, you will probably get your continuance, so you can deal with important matters, without needlessly wasting everyone's time in arbitration. If continuances are denied, then sorry, but the only way to drag things out would be do everything in arbitration, including discovery, by email while you are with your father.
  36. 1 point
    Most people get a 30-year fixed rate.
  37. 1 point
    There are only two defenses to being sued by the original creditor: identity theft and statute of limitations. Whether or not you could convince an arbitrator that they waited too long to pursue this in court or arbitration is debatable and you should be aware probably high risk. NO court or arbitrator is looking for signed card agreement(s) or statements. They are acutely aware the card agreement is nothing more than a document you are given defining the terms of the account. Your use of the card and credit consents to the terms and forms the contract. NOT a signature. The same with the statements. They are merely a document informing you of the account status. No where is your signature or theirs required. They can attempt to move the case on an expedited track yes. Discover is well versed in arbitration and will know exactly how to stop any frivolous attempts to needlessly drag this out to run up their costs. BAD plan. The bottom line is a bad case in court is equally as bad in arbitration. The entire point of invoking arb with Discover is to get a better settlement. If you qualify for BK then just file. There is no point in jumping through all these hoops to drag things out. You are only prolonging your stress and pain. It isn't bothering them one bit.
  38. 1 point
    Did your card/contract have an arbitration clause?
  39. 1 point
    Barclay's will refuse to speak to you because they are represented by an attorney, so you'll need to go through Suttell to work out a settlement. I forgot to mention this earlier, but most of the time, payment plan settlements won't come with a discount. Usually the only way to get a 'better deal' is with a lump sum payment.
  40. 1 point
    Are you serious about filing BK? If so, why are you wasting everyone's time and resources on arbitration?
  41. 1 point
    Your defense(s) would be the same as in court. Either you have valid defenses or you don’t.
  42. 1 point
    You have no defense unless the account was opened fraudulently or they sued you beyond the statute of limitations, in which case you should stay in court since these kinds of defenses are processed faster and with less expense than arbitration. They can try. It depends on the individual arbitrator. Very unlikely. The only possible way is to ask for in-person hearings on every single decision the arbitrator makes. Most arbitrators will catch on to what you're up to and shut the door on it pretty quickly. Plus this kind of thing puts you into the "bad faith" camp and allows the arbitrator to stick you with the entire arbitration bill. Once you get through the 'ground level' arbitration and lose, you can start an arbitration appeal, where you will lose again. From there it goes back to court where you can argue against award confirmation, but since you already flipped the court the bird by taking your case to arbitration, the court is not suddenly going to take an interest in seeing to it that you got a fair shake in arbitration. Your thread is titled "how to win in arbitration". The straight answer is going against Discover, and any other OC that follows you in to arbitration, you never win a case in arbitration that you couldn't win in court. At best you buy yourself some time to file bankruptcy.
  43. 1 point
    Update Got the case law support (thanks to those that helped) Went to court today. Attorneys for Midland no showed. Judge approved MTC and will send letter to validate. This is a very small JP court and he did not seen well versed in the procedure but non the less, was approved. I asked what the time frame for Midland to respond to a motion....he just said court today was the time frame. ?? I did call the court clerk last week as well and asked the same question....and she said that was what court was for?? So from what I have learned....I think.... I should now go ahead and file my Jams and pay the $250. And wait for them to contact Midland attorney. Question: Do I send copy of Jams to the attorney? Do I need the court doc with approval to send it with Jams app. Thanks for everyones help here! First good night sleep tonight in a while! If I am off track, please let me know.
  44. 1 point
    Rule 3. Commencement of Action (a) How Commenced. A civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons and complaint. If the action is commenced by the service of a summons and complaint, the complaint must be filed within 14 days after service. If the complaint is not filed within 14 days, the service of summons shall be deemed to be ineffective and void without notice. https://leg.colorado.gov/sites/default/files/images/olls/crs2018-court-rules.pdf
  45. 1 point
    Wow @BV80!! Your post is a GOLDMINE!! I don't even know where to start! This is going to be INCREDIBLY HELPFUL for current and future visitors to the site!! Now THIS is what I call a useful contribution in a pinned thread!! Thank you!! Being in California, I can 100% attest to this! Not only in my case, but of those of the fine folks I have given some assistance. Amazing! Had no idea the percentage was that high. This is why I've always told people to look at arbitration. I've never used it, but I knew it was very successful. Agree 100%!! IMHO this is what makes this forum great! Again, brilliant @BV80! I'm laughing to myself because I'm wondering why I even replied! 😂 I agree with everything you've said and think your post is unbelievably helpful -- from top to bottom! All I can say, again, is ... THANK YOU! Many, many people are going to benefit from it!
  46. 1 point
    I used Google Scholar, selected Tennesee Courts and entered in " arbitration FAA" in the search. https://scholar.google.com/scholar?q=arbitration+FAA&hl=en&as_sdt=4,43
  47. 1 point
    A HUGE THANKS to @Harry Seaward for pinning this post! Everyone in California thanks you!! 🥳 And, of course, huge thank you to @calawyer! California peeps -- remember: No more arguing and ambiguity -- The Supreme Court of California has said that THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD. Modify ALL your documents with this new ruling! Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019) For anyone in California seeing this post for the first time and thinking, "why is this post so important?" It breaks down like this (with a huge thanks to @ASTMedic's original breakdown): ( ... I am guessing you have already read @ASTMedic's thread and/or @HomelessInCalifornia's thread to familiarize yourself with the entire process. If not, I'll link them at the bottom. Remember ... there is a LONG process before we get to this point. Read up. Learn. Do. And DO NOT MISS DEADLINES! YOU GOT THIS!!) Here we go: 45 days before the day of the trial, you will send a DISC-015 FORM pertaining to CCP 96. The CCP 96 (through the DISC-015) makes the JDB disclose everything they intend to use in court -- names and address of witnesses they intend to call, documents they intend to use, & photo/physical evidence they intend to use at trial. If they don't disclose it to you in the mandated time (within 20 days of service of the DISC-015), then they can't use it in court. YOU CANNOT MISS THE DEADLINE FOR THIS and YOU MUST USE THIS TOOL if you intend to WIN. Again, DO NOT MISS THE DEADLINE for when you are supposed to send this to the plaintiff (through their attorneys)!! They (plaintiff's attorneys) will send you a package with the documents they plan to use and the list of witnesses. In California they are allowed, through CCP 98, to submit an "Affidavit in lieu of live testimony." Meaning, a piece of paper signed by someone saying all the papers they (plaintiff) plan to use are good. They have to serve this Affidavit to you, "at least 30 days prior to the trial" (per CCP 98(a)). This is a way to make litigation less expensive (CCP 96 and CCP 98 are all part of the law governing "Economic Litigation for Limited Civil Cases"), and that way not have to send a LIVE PERSON to testify in court. The thing is, as you should know by now: The papers they sent you are hearsay ... until someone authenticates them. This "Affidavit in lieu of live testimony" is their attempt to authenticate these hearsay documents they sent you. The thing is, this Affidavit is most likely signed by someone who works for the JDB (not the OC) ... so they are trying to use a BOGUS way to apply the "business records exception to the hearsay rule" hoping you don't know they are doing this. The fact is: THIS PERSON THAT WORKS FOR THE JDB CANNOT PROPERLY AUTHENTICATE THESE DOCUMENTS. Only someone from the OC can properly authenticate these documents. In California, regardless of the plaintiff's ability to submit this Affidavit, YOU STILL HAVE THE RIGHT TO FACE THIS PERSON THAT SIGNED THE AFFIDAVIT ... IN COURT. But YOU MUST ASK to face this person in court. You do this through a SUBPOENA. Now ... if you don't do anything (if you don't ASK to face this person in court) ... you're pretty much done, because the court will accept the Affidavit submitted by the plaintiff, AND will accept all the documents that the plaintiff submitted -- hearsay or not. So ... YOU. ARE. 💀💀💀!!! But, of course, YOU WILL DO SOMETHING. Here is what you do. When you receive the package of documents and the list of witnesses (see above), and the "Affidavit in lieu of Live Testimony" -- attached to that Affidavit they have to provide, per CCP 98(a), "... a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial." You will pick the address closest to the court and YOU WILL PAY FOR SOMEONE TO PERSONALLY SERVE A SUBPOENA to the person that signed the Affidavit (the "affiant" -- aka. the witness that you want to show up to court) in those "20 days." The earlier in those 20 days, the better!! (if you have a fee waiver, the County Sheriff will do it for free). "Personally Serve" means to give it to the actual person that signed the Affidavit (affiant), and not just leave it there, or give it to someone else that happens to be/work there. You pay for someone (or if you have a fee waiver, the County Sheriff will do it for free) to PERSONALLY SERVE a Subpoena, because 99% of the time that person (the affiant) isn't going to be available for PERSONAL SERVICE at the address they provided. For a variety of reasons ... like the fact that most of these people work/live out of state. Before this ruling by the Supreme Court of California there was a lot of arguing and ambiguity about if the affiant actually had to be "personally served." NO MORE. THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD. So, after you've tried to PERSONALLY SERVE the subpoena to the affiant unsuccessfully, you will include this fact -- together with this case law -- in your Motion in Limine (MIL) in order to make sure all of the papers they want to introduce in court are INADMISSIBLE. NO PERSON TO AUTHENTICATE hearsay documents IN PERSON ... documents are can't be used. NO EVIDENCE ... the plaintiff DOES NOT HAVE STANDING TO SUE. Remember -- most of the time JDBs do not want to pay for the affiant to fly all the way to California to be witnesses in a trial. If they have several cases in different days, all month long, all year long, it gets expensive -- hence, the Affidavits. BUT ... SOMETIMES THEY DO SEND THE AFFIANT TO TESTIFY!! It does happen, and you MUST be prepared to deal with that!! I won't cover that in this post -- just remember ... if the affiant works for the JDB, then they cannot properly authenticate the documents and the "business records exception to the hearsay rule" DOES NOT APPLY. You can be prepared for that!! And also remember -- YOU MUST SUBMIT A MOTION IN LIMINE (MIL)!! (sometimes several of them). Some courts/judges allow oral MILs, some DO NOT. Your best bet is to WRITE UP YOUR MIL (it helps you prepare!) and submit it before the court's deadline!! Make sure you know of your LOCAL COURT RULES to make sure you KNOW the deadlines to submit your MIL. And make sure you know if the deadline is in "court days" or just regular days. LA County has a nifty "court day calculator" here: http://www.lacourt.org/courtdatecalculator/ui/ Remember, this post has to do with the new CCP 98 ruling of the Supreme Court of California: Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019) If you want to read the actual ruling (and you should), here is a .pdf: SUPREME_CCP98_win_Meza_vs_Portfolio_Feb2019.PDF In a post above I posted the link of the actual oral arguments in front of the Supreme Court of California. It is a FASCINATING WATCH! Especially if you want to witness poise under pressure, and what it takes to be truly prepared to argue your case in front of a judge. And remember: I AM NOT AN ATTORNEY. So caveat emptor, YMMV, I am not responsible, do your due dilligence, etc, etc, etc. I am just simplifying the process for those of us who are not lawyers or experts and need a little guidance in order to know how to proceed. You need to read more than just this post! And you need to become UTTERLY FAMILIAR with the SPECIFICS of YOUR CASE, which may be completely different than someone else's case!!! I am simplifying the ruling of the Supreme Court of California in order to make it useful for people in this forum. There is more meat in that bone (like the fact that if you are a "party" to the lawsuit, then you don't need a subpoena to be called to attend trial), but this is about JDB lawsuits -- and in JDB lawsuits, the affiant is 99.999999% of the time not a "party" to the lawsuit and the only way to get someone who is not a "party" to the lawsuit to appear in court IS THROUGH A SUBPOENA. This post DOES NOT cover A LOT of things like, "what is standing to sue," the use of a Bill of Particulars, Discovery, how to write a proper Motion in Limine, what is hearsay, the specifics of the "business record exemption to the hearsay rule," Subpoenas, on, and on, and ON! THIS POST DOES NOT COVER A LOT OF THINGS YOU MUST KNOW in order to be successful and be properly prepared to WIN. But the answers are in this forum and there are a ton of people that are willing to help you find the answers in this forum or in other places. THIS IS NOT -- I REPEAT ... NOT -- THE ONLY STRATEGY YOU SHOULD BASE YOUR CASE ON. DO NOT PUT ALL YOUR EGGS IN ONE BASKET!! I REPEAT, DO NOT PUT ALL YOUR EGGS IN ONE BASKET!!!! I AM NOT AN ATTORNEY. Did I mention that I AM NOT AN ATTORNEY? Like I said at the beginning, I recommend you read @ASTMedic's brilliant thread, and also @HomelessInCalifornia's outstanding thread -- which are chock-full of information, resources, and guidance!! Here they are: And with this, I bid you adieu. I wish everyone strength, stamina, and a relentless love for self! Always remember, no matter your current situation, YOU ARE WORTHY! I DO NOT CARE HOW CHEESY THIS SOUNDS!! You are NOT defined by your past mistakes, bad breaks, or current situation!! Many have gotten through this!! And all of us who have, are not any more "special" than you. If we can do it, so can you!! YOU GOT THIS!! 🔥 @LoveIsPower
  48. 1 point
    Crown asset sure is filing alot of suits here lately.Seems to me they file against anyone regardless of income..
  49. 1 point
    @Harry Seaward@fisthardcheese I was granted my MTC! My hearing was Friday. It was much easier than I had anticipated. A lawyer from PRA did actually show up, however he really didn't off up any opposition. They consented to the MTC and then asked the judge for an expiration date on filing with AAA due to "having issues with people doing this and then never filing the paperwork". The judge wasn't interested in doing that at all though, he seemed pretty amused at the whole thing. Thanks for all of your help this far! Should I go ahead and file electronically or wait until I get papers in the mail?
  50. 1 point
    Excellent. It sure is peculiar how the naysayers are as far away as they can get every time someone wins in court but when you say you want to fight a JDB in court all you hear is, "Those outdated tricks don't work anymore" "These days they demand all the documentation they need from the OC and all states have adapted to the 'adoptive records doctrine' "or "You can no longer win if arbitration isn't an option and everyone in the courtroom knows you owe the money so you should just work out a settlement."