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Showing content with the highest reputation since 07/17/2006 in all areas

  1. 28 points
    So if you're just reading this forum for the first time because you Googled "Midland Funding Summons" like I did 9 months ago I'm sure you're freaking out that someone showed up and handed you a summons. Your mind is spinning with all the options you feel you have at this point (and I know first hand that those options seem crappy) but the very last one on your list is "Fight these *expletives*". I'm sure it is the VERY last thing you think you could ever do and the thought of even being successful feels like a long shot at best. Well YOU'RE WRONG!!!!!! It's not as hard as you might think and the odds of you winning when going to court with a JDB (junk debt buyer) are more in you're favor than theirs 90% of the time. They are unwilling to buy the evidence they need to win and have to get someone to vouch for the docs they want to use anyway. So it's a matter of following the rules and calling their bluff and the odds are well in your favor. I am a 33 year old high school grad and work as a Paramedic for the past 12 years. I have a year of college education before becoming a medic so that gives you an idea of where I started my journey on this forum. I have been to the court house, not court before a judge, all of about 2-3 times in my life before this, and those were for traffic infractions. I have NEVER been in a courtroom and I was, to put it lightly, inexperienced in the area of law. So along came this forum and the people that are on here. These people are AMAZING and taught me how to fight my case. Now if you're here to have someone do all this for you then you need to reevaluate your intentions. YOU and only YOU can legally fight your case unless you hire a lawyer. So you need to understand everything about your case so you can defend yourself if your case makes it to court. Read this thread by Coltfan. It really helps us understand standing since it's the key to a JDB case, or any court case. This is how you take apart the JDB's case by making them prove they have standing to sue. Guess what, they usually can't. Two days ago I had court and today I found out I won my case. Here are the docs that I used while fighting Midland. These docs are for your reference and are not legal advice. You need to understand how they apply to your case and what is contained in them in the event you have to articulate a point to a judge. This case was in California and as such case law applies to Cali. Study your local court laws to find due dates for motions and other items. Please read around this forum since your case may not fit mine and other options might be better suited. I used a general denial since the content of the complaint wasn't verified. This, in my opinion, gives the JDB very little to grab hold of if you were to use the wrong affirmative defenses. KISS method, you know. I tried to play as stupid as possible to keep from tipping my hand that I was building my army. Just remember do you really want to ask for docs that will only help build their case against you?? All docs you send to the plaintiff need to have a proof of service attached and signed by someone that isn't a party to the case. Send everything, and I mean everything, by Certified Mail Return Receipt Requested (CMRRR) so you have proof they got it. Save the green card you get in the mail and attach it to your copy of the doc it applies to so you can reference it easily if they say they didn't get something. (Not uncommon) As you get docs from the JDB put them into a binder that is divided into sections so you can easily find what you need if you go to trial. It's easier to do this as you get them than later when you have a huge stack. I got my summons and answered the complaint with the general denial. Do this first since its due no more than 30 days after you were served. I sent my Request for Docs to start my discovery: My Request for Production of Docs (Discovery doesn't get filed with the court so just save copies and the CMRRR for each one you send) They sent me RFA, ROGS and Doc request and I responded: Response to Plaintiff's Request for Admissions Response to Plaintiff's Request for Docs Response to ROGS They responded to my Request for Docs with junk. Junk that most here seem to get in their discovery. When I say junk I mean nothing proving real ownership of your account. At this point I had a choice since most JDB's will respond with as little evidence as possible (since that's all they have). You can either send a Meet and Confer if they don't respond with the evidence needed to prove ownership. If they still side step you then you will have to file a Motion to Compel. But again do you want to tell them you know their docs won't win in court????? Because that is what you will do by forcing them to produce better evidence. Isn't the point to have a better case than your opponent? I was in the process of prepping a MTC and opted to just keep my mouth shut and drill them at the last second when they didn't have much time to work with. Here is the MTC and separate statement but again I never used them. So next was our Case Management Conference (CMC). The CMC is VERY basic and nothing to stress about (but you still will, I did). Dress for war since this will be the first time they get to size you up. This will be in front of a judge so be ready for that too. You will just be asked if things are going as planned and if anything needs to be ironed out. About 99% of the time the JDB lawyer will try and push trial back in hopes you will loose focus and forget something. Didn't work in their favor this time. You can try and fight this or use it to your advantage too since time can work on your side too. Be sure to file a CMC Statement prior to your CMC. After this I opted to go the route of being silent and vanished like a fart in the wind until 45 days before or trial date. This time was a total of 4 months since the rent a lawyer that they hired for the CMC pushed to have the trial moved as far out as they could. So at this point (45 days out) I sent my CCP 96. The CCP 96 makes the JDB disclose everything they intend to use in court. If they don't disclose it then they can't use it so it's a 100% mandatory tool in your case. DON'T MISS THE DEADLINE FOR IT!!!!!!!!! They will most likely respond with the docs they are going to use and any witnesses they plan to use. Most of the JDB will have a CCP 98 (affidavit in lieu of live testimony) submitted in an attempt to get the bogus docs past the business doc hearsay rule with out having to use a live witness. The key here is to subpoena the witness that is listed on the CCP 98 at the closest address to the court. The reason for this is that 99% of the time that person isn't going to be available for personal service there. Notice I say personal service, per CCP 1987(a) the service of a subpoena must not be in care of. It has to be to the witness. DO NOT let the JDB try and side step this. (Edit 6/25/13 - there is now Cali case law about the CCP 98 service. Calawyer posted a thread about it on the forum. Be sure to include it in your brief and MIL because they will attempt to side step the fact that service was unsuccessful.) So per CCP 98 you can attempt to serve the witness 20 days before trial at the address given. They address they give must be 150 miles at MAX from the court. If it's further it doesn't follow the code. They tried to give me 5 addresses to use for service but only one was in the 150 miles and that address was vacant (not good for them). So fill out a Subpoena and have the Sheriff Dept in the county where the address is listed attempt service. If they don't then use a process server. Be sure the server knows that service needs to be to the witness ONLY. It's the law. If service is unsuccessful then you can submit a Motion in Limine just before trial to get the CCP 98 affidavit tossed out. With no witness they have no way to back up the docs they want to use for evidence. I wrote this to help those after me understand why attacking the witness is so important. So next is the Motion in Limine and the Declaration in support of it. This will get the affidavit in lieu of testimony tossed and basically kill the case. No witness to back up the docs then the docs are hearsay and they can't prove they have standing. You also need to file a Trial Brief before trial. This presents your case to the judge. This will educate, him or her, as to why the JDB has no case. It has case law and references to codes of civil procedure in it. It's your case in a nut shell. I also filed a Request for Judicial Notice. This points out facts that may become part of the trial that are so obvious that they can't be contested. An addess is either outside the 150 miles or its not, no debating that. I submitted the request to point out that the mileage for 4 for the 5 CCP 98 addresses were clearly outside of the 150 mile range stated in the statute. I attached printouts from Google maps showing the miles. The MIL, Brief, and judicial notice all need to be sent to the plaintiff too. CMRRR remember? Here is a 60 day pretrial checkoff that was written by Seadragon. Links have been added to the appropriate docs. Next comes trial, if it gets that far. Wear a suit, rent one if you have to. I live in a county that has a fair amount of low income people and when I got called up by the judge I heard a guy behind me say "I thought he was a lawyer". That's what you want. Take your trial binder that you made. Act professional, it will go a long way with the judge. At the beginning of my trial the judge asked opposing counsel if he was a lawyer. I think he was so unimpressed with the lawyer's appearance that he really didn't think he was a lawyer, needless to say the lawyer was PISSED. I'm going to stop here for now. By this point you will be asking questions on the forum that apply to your case so you won't need this. (Edit: I added more about the trial in a post farther down in this thread at people's request. You can read more there about how trial went there) Just remember you can do it. They are beatable most of the time and they usually get stomped. Why do you think most don't go to trial? Thanks to Calawyer and Seadragon. Without them this wouldn't have been possible. Feel free to PM me with questions. I may not see your thread so you might need to ask me if you have a question. If others want to add to this thread feel free. (Oh and Midland if you read this :'> and send a better lawyer next time. The judge had to ask him if he was a lawyer at the beginning because he looked so lost, that's sad.)
  2. 15 points
    Arbitration Overview Arbitration is a clause that is found in most Credit Card Agreements. Your Card Agreement will state that you may use either AAA or JAMS as the arbitration firm. The Card Agreement may also state something about who pays for arbitration. It may say that "they" (the OC or JDB) will pay all of your filing fees. This means arbitration will cost you a grand total of $0, while the creditor will be billed a minimum of $5,000 to complete an arbitration (and many times that price can climb much higher). However, even if your arbitration clause is silent on costs, the rules of the arbitration firm cap all consumer fees at $200 for AAA and $250 for JAMS. This means you would never pay more than $250 max, while the company will still be paying many thousands to arbitrate. Just due to this cost structure alone, almost all JDBs will refuse to arbitrate. This is why getting your case out of court and into arbitration - especially when facing a JDB - is almost like having a golden ticket to a win. Of course, like everything there is no guarantee. However, the odds are strongly in your favor with arbitration against a JDB. (If you are dealing with an OC - especially a big bank like Discover or AmEx - then your arbitration experience and strategy will be much different than with a debt collector JDB like Midland or Cavalry. More details on differences in taking an OC bank to arbitration are below). Strategies of arbitration: 1. It's not a Bluff, it's arbitration - You are going to ask the court to move your case to arbitration because that is the proper forum per the card agreement. This is not a "bluff" to scare off the JDB. This is a strategy that must be followed through with. It is ok if the JDB does not magically drop the case just at the mention of arbitration. The JDB will continue to work the case as if arbitration was never said, even after you file a Motion to Compel Arbitration in court. The JDB may even pay the initial filing fee of $900 to follow you into arbitration once you start the case. However, soon after that $900 filing fee, the JDB will be sent a first arbitrator retainer bill of about $5,000. This is why you continue arbitration. You are not bluffing, because your case is the same in arbitration as it was in court. You will be making the same arguments and have about the same chance of winning on those arguments (slim, in all honesty). The big difference here is that the JDB must now pay large sums along the way to allow this to happen. So you are not bluffing, you are just moving your case into a forum that they do not like and which forces them to make a cost/reward analysis on whether to continue the case or not. 2. Settlement Opportunities - The goal of arbitration is to create a situation that gives you the best settlement advantage (i.e. settling for $0 with a mutual dismissal with prejudice). There are 3 key points where this comes into play. #1 - After the court grants your MTC and before the JDB pays the $900 filing fee to the arbitration firm. #2 - after the JDB pays the filing fee but before their $5,000 retainer is due (after the arbitrator is chosen). #3 - After the first conference call and before the discovery deadline, just before the hearing where another large retainer bill is due. If the JDB does not reach out first to talk settlement, these are the points I would send an email letting them know I am willing to offer a mutual dismissal with prejudice (minimum). Do not forget to always include an expiration date for your settlement offer. I like to make my offers expire on the same day the next event is due (i.e. a payment deadline for them to pay the arbitration fees, or the discovery deadline date, etc). If they do not agree to your offer, or counter for a higher amount you can not or are not willing to pay, then I just decline the offer and allow arbitration to proceed to the next step until you get to the next key settlement point where I make my same offer again with a new expiration date. 3. Object. Object. Object. - In arbitration, if you do not object to something in writing you lose your right to it. Therefore, anything that happens that falls outside the arbitration rules and especially the supplemental consumer rules, you must object in an email to the arbitrator and CC'd the JDB attorney. Objections not only preserve your rights under the consumer rules, but they also can create side issues that must be dealt with by the arbitrator. The arbitrator's hourly rate to respond to these side issues can really eat up the JDB's $5k retainer before you even get to discovery. Especially if you have phone hearings on these side issues (HINT: always ask for a phone hearing as part of an objection). This causes arbitration to be slow and expensive, which can position you into a better settlement opportunity. 4. Initial Conference Call - This first call once the arbitrator is appointed is where you can set the tone to let the other side know that you are not bluffing and you mean business. They should come away from the call knowing very well that you intend to see this case all the way through to the final hearing (even if you really don't want to). This call is usually fairly quick and informal. It is designed to set the scheduling of discovery and a hearing date. However, you should assert some things during the call that tips the other side into knowing it will not be an easy push over win like they would have in court. I would ask the arbitrator for the other side to submit the name of their witness they will bring to the hearing with personal knowledge of the alleged account. If not already covered by the arbitrator, I would ask for an in person hearing. I would be prepared to give a time-frame when the arbitrator asks how long you will need to present your case at the hearing (I would say at least half a day - aprox 3 - 4 hours). 5. What About an OC? - If you are dealing with an Original Creditor (not a JDB) they may take the arbitration all the way through to the final hearing. Money is far less of an issue with the big banks, and unlike a JDB, these banks are not counting on collections as their sole source of income. Therefore, the OC banks will proceed with arbitration with much less trepidation than a JDB, so you must modify your strategy and expectations. With some OC's, they will never agree to a mutual walk away, however, using arbitration may help you get a much cheaper settlement offer than you would by staying in court. My goal with an OC would be to use the long, slow arbitration process to buy some time to save up a lump sum to offer them for settlement. You can use the same settlment opportunity points as yo would with a JDB, but instead of "mutual dismissal", your offer may be to pay 50% of the debt, for instance (or what you can realistically offer as a lump sum payment) in exchange for a dismissal of their court case against you. If you can't come to an agreement and go to the hearing and "lose" the final hearing with an OC, check your card agreement for any arbitration appeal language. Some OCs like Discover and AmEx have an appeal option written into the contract. The appeal is before a 3-arbiter panel. This means the arbitration process starts all over again, only this time you have 3-arbitrators which triples the bank's costs. This is where arbitration costs can skyrocket well over $100,000. After you file an appeal and get 3 arbitrators appointed, this is likely the best settlement opportunity with an OC. (when they are staring at a new $20k initial arbitrator retainer bill after just paying around $10k - 20k for the first arbitration in total). Starting Arbitration First thing is first - Your court case. If you have been sued, you must answer by the court's deadline. Don't worry about the actual arbitration case for now. You must file your answer and/or Motion to Compel Arbitration with the court before your deadline. (A sample Motion To Compel Arbitration is at the bottom of this post) In court, the important thing to remember is when you are asking for arbitration, you effectively put everything about the alleged debt and account in the back seat. You are saying that the court has no jurisdiction to hear this subject and that it is for arbitration only. Therefore, do not fall into the creditor attorney's trap of trying to continually bring back up the debt and anything related to it. Do not answer their questions prior to going in front of the judge about the debt. Instead you just assert that it is a matter for arbitration and you will be asking the court to grant your MTC. When facing the judge, they may talk to the attorney first who will go into the information about the debt. Just wait for your turn to speak and state that you have a pending MTC that speaks to jurisdiction and that you would like to have that heard first before getting into the merits of the case. Getting a granted MTC is like a golden ticket against a JDB. This should be ALL that you focus on in court. When you file the MTC you essentially put a wrench into the JDB's auto-pilot lawsuit mill. The ONLY question now before the court is whether there is a valid arbitration agreement between the parties (you will show that there is with your card agreement and affidavit). And if there is found to be a valid arbitration clause, then according to case law (from state and SCOTUS), then the court MUST order arbitration. This is the one and only issue that should be covered in court. AFTER the court grants your MTC and orders the parties to arbitrate, then you should move on to actually filing the case in arbitration. Filing your Answer and MTC in Court VERY IMPORTANT NOTE: Before doing anything in court, you should look up (or get a copy from the court) your local court rules! All courts have their own set of rules and it is impossible for anyone on this board to know for certain your specific court's rules. You especially want to read the rules on filing an answer and filing a motion and be sure you are complying with those rules (and time-frames) when you are taking these actions in court. When you are sued, you are required to answer the lawsuit within a certain time-frame. That time-frame is different for each court, according to the rules of that court, but a general time is between 20-30 days. In some courts, you are allowed to file a Motion in place of an answer. However, in this thread, I suggest filing an answer WITH your Motion to Compel Arbitration (MTC). This is not a requirement, but it may change this one element in your case: Filing a MTC only (in place of an answer) allows the Plaintiff to dismiss the case without prejudice on their own before the MTC is ruled on by the judge. However, if you have filed an Answer AND the MTC, most courts do not allow the Plaintiff to dismiss the case on their own and they would need to get your cooperation to file a joint stipulated dismissal. When that happens, you have the right to tell the attorney that you will only agree to a dismissal WITH prejudice (and this permanently puts an end to your case and the alleged debt too). Very Important Note: It is imperative that when you file an answer, you mention arbitration as a defense. In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration. In your answer, after you deny all allegations in the complaint, you should create a new section with the following title: “Affirmative Defense”. Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. Along with your MTC it is generally a good idea to include an affidavit that testifies that the included Card Agreement you are submitting is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise". A quick google search will show you how an affidavit should be formatted and worded. It does not have to be complicated or special, it just has to be your own words stating you have the correct card agreement. The Affidavit should be notarized before filing with the court. This is the only document that is necessary to notarize, as it is a sworn statement. Having the affidavit is also a good way to counter the most common argument a creditor will make against your MTC, by saying you have the wrong card agreement. Your affidavit is your sworn testimony and the only way to counter this is for the Plaintiff to present a witness with knowledge of the bank's card agreements during the time your account was active. (In other words, it would have to be sworn testimony from the Bank itself, and not the JDB or the attorney's word). Because of this, your affidavit usually eliminates any doubt that the Card Agreement is accurate and valid. This answer and your MTC can be filed at the same time. However, if you are up against the deadline to file an answer, the answer is the most important element to avoid a default judgement. The answer should be a short and easy document to file, so get that done first if pressed for time. You may then file the MTC a week or two later (as soon as you can, but no later than allowed by the court rules). Some courts require that you set a hearing date for your MTC. If your court requires this, make sure you do this at the time you file. In some instances, you may be required to contact the other side's attorney to work out a date for a hearing after you file the MTC. Make sure you know your court's rule on setting up a hearing. Some courts automatically schedule a hearing for you, and in some cases the judge will rule on your motion without a hearing at all. This is a matter of a court by court basis as they all operate in their own way with their own rules. Checking court rules on filing motions is essential. Filing The Arbitration Case Go to the website of either AAA or JAMS, depending on which one your card agreement mentions. Find the document titled "Demand for Arbitration". The instructions for filing are at the top of this Demand form. Remember that you are filing for CONSUMER arbitration, so follow the instructions for CONSUMER cases. When filing arbitration, I very strongly recommend filing some claim against the JDB. Remember that when you ask for arbitration and file it, you have now flipped the roles. YOU are the "Claimant" and THEY are the "respondent". This is essentially like you are now "suing" the JDB, only in arbitration instead of court. Think of it just like that. You would not file a lawsuit against yourself, so do not do it in arbitration. I would never mention THEIR claims against me, nor the debt in any way. Instead, I only file MY claims against the JDB. Do not worry at this stage about the details of your claims because this initial claim is allowed to be changed, added to or dropped at any time before an arbitrator is assigned to the case (and even after, you can still make changes with the arbitrator's permission). If you have nothing very strong with proof against the JDB, I would file with something such as "violations of state and federal consumer debt collection laws" or perhaps, "Violation of the Fair Debt Collection Practices Act", etc. Or even a simple "Billing dispute" will do if you have no violations of law against them. Again, it doesn't need to be more detailed then that at this stage and if your claims never pan out, you have the ability to drop them later (or you may find NEW claims to add if the JDB violates the laws during the ongoing case). When sending in the Demand for Arbitration, I never send money initially. If you are required to pay the $200/$250 consumer filing fee (or any portion of it), then the arbitration firm will tell you to submit that in order to continue. They will never reject your filing, but will send you a case number and request for payment to move forward. Having the case number is key evidence that you filed the case (which may be needed for Court later). If the Card Agreement states that "they" will pay for your filing fee, I will include a cover letter with my Demand form stating that per the Agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS. Also when sending the Demand, I send it to AAA/JAMS and to the attorney for the JDB at the same time. I send both CMRRR and retain the green cards. Although the Demand Form instructions say that proof of service is needed, I simply include a "certificate of service" with my forms that states that I certify that I sent a copy to the JDB by USPS Certified Mail. If there is ever a question about service after I file, I will have the green card to submit as proof if needed. Remember, that this is now YOUR case against the JDB. It will be up to the JDB to file a COUNTER CLAIM in arbitration for the alleged debt. They have a set amount of time per the rules to file a counter claim. Make sure you know the rules. It will not be uncommon for the JDB to not file their counter claim in the allowed time frame. If they file after the allowed time, you must file a written objection noting this and ask for their claims to be stricken as untimely. Always file written objections to EVERYTHING that falls outside the rules in arbitration. When you object, also ask for a hearing on the matter (see arbitration strategies section above). NOTE: It is likey that in such situations, the arbitrator will rule in favor of the creditor almost every time and allow things like untimely filings anyway. Do not let this discourage you. The point is that you filed the objection, forced at least a response from the other side and for the arbitrator to make a ruling. All of this cost them time and money. Even if nothing goes your way on objections, you should continue to make them for every problem you encounter. They add up and they increase the pressure on a JDB (or an OC) to settle. The fact that using this Arbitration method has now reversed the roles (you are the claimant who has brought claims AGAINST the JDB) AND combined with the fact that the Court has granted your MTC, means that the JDB is now stuck between a rock and hard place. They can't just dismiss the court case on their own (they need your agreement for a stipulated dismissal because of the granted MTC) and they also can't drop the arbitration case without your agreement (not only is it not their arbitration case, but yours, but they would also be violating the court order to arbitrate). Because of this, you are now firmly in the driver's seat. The JDB does not want to spend a ton of money and time to arbitrate, but also does not want to violate the court order. This means YOU are in control of the settlement agreement. You can tell the JDB that you will stipulate to a mutual dismissal with prejudice (meaning you will dismiss your arbitration case against them with prejudice and they will dismiss the court case against you with prejudice). You win. Filling Out The JAMS Demand Form The Jams Demand Form is located on the JAMS Website at https://www.jamsadr.com/rules-download/ Tips on filling out the JAMS "Demand for Arbitration Form" are as follows: Instructions: Be sure to read and follow the instructions for filing a case on this first page of the form. Respondent: The respondent is the JDB/OC/Creditor who sued you. They would be listed as the "Plaintiff" in the lawsuit, but are the "Respondent" in arbitration because you are the party filing the case here. Fill out the JDB/OC/Creditor's name and contact information here with the law firm or attorney's information below them in the "representative" section. If you know or can find the attorney or law firms email address to add here, it will be helpful as most of JAMS' communications after the initial filing will be by email. This can also expedite the confirmation of your case being filed in JAMS. Claimant: You are the claimant. Fill out your information in this section and leave the "representative" blank. Mediation in Advance of Arbitration: Do NOT check this box. Nature of Dispute & Claims Sought: This is the section where you can briefly list what claims you have against the creditor. Again, this can be as simple as "Federal and state consumer debt collection law violations", or listing the actual law or statute that was violated, or listing "Consumer debt dispute". Following that with something such as "Seeking Actual, Statutory and Punitive Damages". Again, I would suggest to NOT mention the lawsuit filed against you on this form. Amount in Controversy: Use your best judgement. If you have no violations to claim against them, this could be the alleged debt amount, or it could be the alleged debt amount plus $1,000 for an FDCPA violation, or the debt amount plus $2000 for an FDCPA and FCRA violation. Or perhaps you don't want to list the debt amount at all and just have 10 TCPA call violations and want to claim $5,000 (10 TCPA x $500). Again, use your best judgement. Arbitration Agreement: In this section, I simply spell out where the Arbitration Clause is located. It usually looks something like this; "Section 7 on page 15 of the attached Cardholder Terms of Use Agreement". Request for Hearing: YOUR city, State. This is the location that JAMS will select should an in-person hearing take place. Election For Expedited Procedures: Do NOT check this box. Again, the entire point of this strategy is to make the process slower and more expensive for the other side. Checking this box will defeat that entire purpose. Signature: Sign and Date this section (should go without saying) Consumer and Employment Arbitration: Check the box that says "YES. This is a consumer arbitration." Respondent #2: If you have claims against a second entity, such as the law firm representing the JDB, then you would add them as a second respondent in this section. That is all. You may leave the remaining sections blank and you are ready to file. Again, be sure to double check the requirements to file back on page 1 and follow the instructions carefully. Filling Out The AAA Demand For Consumer Arbitration Form The AAA Demand For Arbitration Form is located at https://www.adr.org/ConsumerForms This form is a little more straight forward and shorter to fill out than JAMS. The instructions for filing are located at the bottom of this single page form. I always use the email address at the bottom of the instructions to send in my AAA case filings. I print off the filled out form and my Arbitration Clause (AAA does not require the entire card agreement, only the arbitration section) and any other item you are subitting with your case. I then scan the documents to a single PDF file and attach it to my email. In the body of my email, I explain that I am submitting a new consumer arbitration case and (if stated in the card agreement) that the contract states that the business is to pay all filing fees, so I request that the business forward all filing fees directly to AAA. If you need help filling in the sections of this form, see the answers to the JAMS form above, as they are essentially very similar. Sample MTC (Note that is Sample is to show you an idea of what an MTC should look like. Never Copy/Paste this directly into your motion. Adding case law from your own state is a good idea) MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following: 1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). 3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION. (b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY. (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT (d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US. (e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT. 5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”. 6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 7. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration. Respectfully submitted this day ________________, 2014 (Your name), Defendant, pro se Sample Proposed Order Even if not required by your court rules (REMEMBER, you are ALWAYS to check your local court rules on requirements to file a motion before filing your MTC), it is probably wise to include a proposed order. Making the Judge's job easier to grant your MTC can't be a bad thing, IMO. Here is a sample Proposed Order you can include in a seperate page with your MTC: ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION Case No. xxxxxxx : COURT OF XXXXXXX COUNTY _____________ (name of plaintiff) VS. Case No. XXXXXXX _____________(your name) The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED: _______ GRANTED / _______ DENIED Further, this case shall be stayed pending the outcome of private arbitration. This _____ day of _________________, 2018 By: ________________________ Judge of the ____________ Court
  3. 15 points
    First court date over an out of SOL debt with a jdb. I asked for his atty assignment contract which they did not provide. Course they sent a few other things I asked for but they amounted to squat. I was prepared for a long debate over the SOL on this, my whole case was going to start with that and move to their complaint if the court said it was within SOL. The atty for the Plaintiff was very young maybe in his twenties. He approached me in the hall and asked if I was going to settle before court and that he had plenty of evidence against me, You think he scared me. I said tell it to the judge, he got real arrogant, see the Gunny was dressed in jeans and a rock and roll tee shirt,(Led Zepplin to be specific) He started with your honor i am representing my client and have been authorized by the assignment contract to do such. I stood up and said, Objection your honor, the judge asked me why so soon, I said I have no strict proof from the Plaintiffs atty that he in fact is authorized by assignment to represent anyone today, I asked for the assignment and contract during discovery and received no such proof. The Judge asked if he had a copy of that contract and he said no but i can have it here on the next court date if i can have a continuance, I objected again and the judge asked me if that was all I was going to do today, I said if the Plaintiff tries to make a statement that he cannot prove you bet your sweet pitooty, I said your honor this case has been going on for over a year, it is not my fault that the Plaintiff, who is an attorney is not prepared for court, he figured he could get a quick default or harass me in the hall way into signing an agreement before court. So why should the court and myself be subjected to a continuance just because he is unprepared for court. The Judge agreed. He said produce the contract and the atty said he could not, i stood up again, and the Judge looked at me kind of snide and asked "what is it this time than you object to?" I said nothing your honor but i can make a simple motion that that will end this case right now. He said make your motion, I said I motion for a dimiss with prejudice, because it is obvious that this attorney want things his way, and that happens to be the easy way, he is in no way prepared to work for his money, since he cannot prove that he has been assigned bu his client then he has no standing to even bring a suit. The Judge said you drive a hard bargain Gunny but i tend to agree motion to dismiss with prejudice is granted. As I was walking out of the court house the atty approached and said what the hell was that **** you pulled in court? I said in your arrogance and your attitude towards someone that is not wearing a suit and assuming by the way a man is dressed that he is incompetent and not even having the common decency to ask if I was an atty got you shot down in flames, burn baby burn.
  4. 14 points
    Enjoy: http://caselaw.findlaw.com/ca-superior-court/1632471.html Big shout out for Fred Schwinn, a tireless, excellent, debt collection defense attorney.
  5. 14 points
    Upon the occasion of my 4000th post I want to reflect on the great advice and discussion which has made CIC a great part of my everyday life. With the help of the greatest of human beings, I have become fearless of legal proceedings, and have gained power of self realization that no one will be able to use the law to scare me into submission. It is the forum as a whole who have not only helped me in my times of need but have given the opportunity to help my fellow man to lose the fear and make good decisions when faced with scary propositions. As a group we help to shed fear, make the best part of us shine through, and together give people options to deal with very real and life changing events. To Admin and all the moderators, your providing a forum that allows the public to discuss credit issues during a time of the greatest economic depression in history has given people hope. I personally salute all that you do and have done. To all the long-term posters, you are definitely exhaulted among humans and are the sheepdogs in life necessary in human existence. Your tireless efforts are a blessing for scared people who get scary legal paperwork quite literally dropped in their lap. I Salute you guys also. We have learned much here and I vow to stay on until we can all say "Isn't a collection lawsuit one of those antique methods of debt collection torture?" The resistance lives on!
  6. 14 points
    Hello fellow CIC members! Awhile back I posted about a Midland case I was helping a friend with where Midland sent discovery after multiple arbitration election attempts. She ended up having to file a MTC which was answered with a request for dismissal. As always, I wish to convey my gratitude to those who offered insight into how to handle a discovery response post arb election. My friend is also very grateful to the fantastic board members who assisted. It's a shame because her husband questioned why anybody would help them and was suspicious of my motives for offering to tell her all about my personal experiences. Naturally I explained that our not so little community here is helpful because we all know how scary and stressful hours upon hours of research for a case can be. It's about being a good person and paying it forward. I feel very blessed to belong to such a wonderful group of people who have made regaining some strength and confidence possible to so many people in need.
  7. 14 points
    I have stayed out of this until now, but I think I have a perspective that has not yet been voiced on the board. In my view, every time one of you makes an appearance in court, you stand as an ambassador for the thousands or millions of pro pers that will follow in your wake. If you are a debt collection defendant, you must be prepared. You must expect no assistance from the Court simply because you are not a lawyer. You must understand any briefs you file—you must read the statues and cases you cite and understand them. You don’t have to be a great speaker but you should be prepared, polite and respectful. If you are a pro per plaintiff in an FDCPA case, you need to do all of the above and more. Many Federal Judges do not love FDCPA cases. They view them as “small cases” that take valuable time away from deciding tough constitutional cases, heinous federal crimes or difficult statutory construction. So you need to show these judges that the cases DO matter. Debt collectors ruin lives, jobs, and marriages. As Congress found, “There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” 15 USC 1592(a). Again, you are all ambassadors. When pro pers appear unprepared, that can feed or create a judicial preconception that can cast a pall on those who follow. When FDCPA plaintiffs trivialize the injury caused by violation of the statute, that can similarly create hurdles for those whose lives have been seriously injured by an industry that seeks to profit from others’ misfortune.
  8. 12 points
    This should be my final case. SOL has since ran its course on any others.
  9. 12 points
    I suppose this is as good a time as any to announce this. Been quiet as I've been in process with it, and I actually have a life to handle outside of here. I have obtained counsel, working on contingency, through referral from here. He comes highly recommended from the best source for California litigation on the site, so I feel quite comfortable. We are suing CACH and Mandarich Law Group for Rosenthal violations in attempting to collect on a debt already judged not owing. We will be serving opposition shortly. We are looking to move forward as a class action suit. Obviously, that would be open to individuals who have won judgment against CACH as represented by Mandarich Law Group but who have received collection notice or calls since winning judgment in favor of defense at trial or after the case was dismissed with prejudice.
  10. 11 points
    Got a dismissal from Portfolio today, my second win. Now one more to go!
  11. 11 points
    Willingtocope's advice should apply to ANYONE who offers help in a PM. Anyone who offers advice that can be supported by law (statute) or a court ruling will not have a problem posting in an open forum. If that person does have a problem offering his advice in an open forum, then no matter his excuse, you should wonder if his advice is actually supported by law or if it's merely his opinion, and he knows he can't support it if questioned or contradicted by others.
  12. 11 points
    I haven't posted in this forum but I was served about 6 weeks ago. I asked for and got a continuance and had my hearing today. I was so worried going into this, but I read some posts in here and got some amazing information. The lawyer tried to settle before the hearing - I declined. He presented a ton of documentation - I kept my mouth shut, except to say that I had not been provided with the docs before today, despite requesting them. The judge ripped him a new one because the documents he provided showed no clear correlation between the account referenced in the complaint and the store name of the card (GEMB/Old Navy). He also said that there was no clear proof that Midland had ANY right to collect this debt on behalf of anyone, OR that it was even tied to me to begin with. CASE DISMISSED!! So, thank you to everyone for posting your stories. They really helped!
  13. 11 points
    Much like everyone here I have never been to court, had no knowledge of any legal jargon aside from what I saw on TV, mostly The People’s Court, and never thought I would ever be in a situation where I would have to be in front of a judge – much less be a defendant of any type of lawsuit. Sadly it seems like many people nowadays I found myself having to fight a JDB. If it hadn’t been for this board and the many people who have posted their stories and celebrated their victories for all of us to read, I honestly don’t know if I would have been able to win my case. I am beyond grateful because of all the advice and help everyone here openly and generously gives. These boards were a great help – especially on days when I didn’t know what to do next and more importantly on the days where I questioned myself about being able to win – reading about how others fought and won their own case gave me the confidence to keep fighting. It is with great sincerity and all my heart that I say THANK YOU! THANK YOU! THANK YOU! Thank you a million – trillion times over to everyone here. My story starts about a year after I had been laid off, there was knock on my door one Saturday afternoon. I opened my door to find a process server, envelop held close to his chest, asking for me by name. My question of yes was answered by him saying aloud my name and announcing what seemed like to the whole world – when in reality he was just loud enough to echo in my apartment courtyard – that I was being sued by Capital One. I numbly accepted the summons/complaint and stared after the stranger as he walked away smiling. I felt as if I had just been punched in the gut. My mind was racing, my heart was pounding, and I had no clue about what to do. After the initial shock wore off, I read the summons/complaint forward and backward, and then re-read it again and again just to be sure that I didn’t miss anything. Reading it was enough to let me know what I had to do first – file an answer and I had 30 days from the date I got the summons in my hand. I ran to my calendar and counted exactly 30 days from the day – and I recounted and recounted. Although I never considered myself being OCD after having just been handed the summons/complaint, it wasn’t farfetched to think I was fast becoming one. Ok so now what? I knew I had to file an answer, where and when to file my answer the only question left was how do I file an answer. And then what, what happens after I file my answer? I did what everyone does I Googled. I searched and I searched and I searched. I found a great wealth of information. I found one or two other boards like this one where other defendants were searching for answers and asking for help. I found articles about this epidemic of JDBs buying defaulted debts and suing everyone and anyone. I found a ton of blogs from lawyers/firms, some good and very helpful and some just blah, basically saying “yes fight the lawsuit and you can win … but you need to hire our firm to do it because you won’t be able to understand all the legalese that comes with lawsuits.” Which in a way is true, the legalese of it all is almost incomprehensible because of all the convoluted language, not to mention the time frame/line of all paperwork you must file needs to be followed to the T, it’s all very intimidating to say the least. It’s almost like learning a second language, difficult to pronounce, understand, etc at first but once you put it into practice you become so fluent you can easily tell someone FU, which is what you’ll be saying to the JDB only in there own language. So back to my search, I also found a very interesting site call The Robing Room. A site where “judges are judged” Yup-Yup. It’s exactly what it says it is. A site where people, lawyers, plaintiffs, defendants, anyone really can rate and review judges. Which in my case was very helpful. I looked up the first judge assigned to my case and wow. He did not get, at least from a defendant’s stand point a very good rating or very good reviews. From the reviews he always sided with the plaintiff, evidence or better yet even with the lack of evidence, he always ruled in favor of the plaintiff. I definitely did not want him to preside over my case. So I filed a peremptory challenge (170.6) basically telling the courts that I did not believe I would get a fair trail with this judge. But I’m jumping ahead of myself. So how did I know to file a peremptory challenge, well that very first night I couldn’t sleep. I stayed up all night searching, researching, and eventually I ended up on Amazon and found 2 books that were great in helping me to understand exactly what type of sh”” I was in. Honestly that first night I felt as if I was drowning in it. Although I was watching every dollar and pinching every penny, I decided to just bite the bullet and spend the money and buy the books. The first book Stick It To Sue Happy Debt Collectors helped to explain things in such a way that I felt I could actually do this, I could fight them and win. The second book Turning the Table in Credit Card Lawsuits although no longer available on Amazon was about how one man won his own case, the significant thing about it was that he had done it in my state CA. And it was this book that I learned about being able to dismiss a judge (peremptory challenge). Here’s a quick rundown of my case: - I received the summons in 2012 - Filed my answer on the 29th day of the 30 days I was given. For 3 weeks straight I wrote and re-wrote my answer with my affirmative defenses and sworn denial. I had tried to get assistance from the local Legal Aid office, that ended up being a bad idea. The guy at the counter told me I should just settle, the plaintiffs in this type of lawsuit always won their case, and all this after I just handed him the complaint/summons even before I could utter a single word. I ignored him as if he had not spoken and politely said thank you for your time and walked away. - I filed my discovery (request for admissions, request for docs, bill of particulars) - I also filed a 170.6 to dismiss the judge in the case. The clerk smiled and said “Good for you. That judge is an a$$****” - After filing my all my paperwork, I received a CMC letter not a week later. - The court accepted my 170.6 and reassigned my case to a different courthouse with a new CMC date. - I received the answers to my discovery, they objected, denied and gave me nothing. - Attended the CMC in 2013. Thankfully the judge seemed fair and reasonable. It was a quick meet and greet. The judge looked over the paperwork, and gave a trail date for the following year. She advised that both parties should try to settle the matter out of court and that was it. - So 8 months came and went, heard nothing from the plaintiff all year except for 1 settlement offer letter. I didn't bite. - Unfortunately, I missed my opportunity to send them my second set of discovery after they sent me their answers. And after reading this thread (http://www.creditinf...-in-california/) I don't feel as bad. I had hoped like ASTMedic that my silent treatment will work in my favor. - 4 months before my trail I just received their discovery, Request for Admissions, Genuineness of Docs, and form interrogatories. With help from calawyer, I answered their discovery and sent it back to them. - Now 1 ½ months before our trail I go and check the court docket online and to my surprise I find that the plaintiff had requested to have the case dismissed but the court rejected their request. Why? Apparently the plaintiff failed to tell the court that they had switched attorneys/law firms – epic fail on their part. Major win for me! It took them about 2 weeks to get everything straight with the court, they finally informed the court about the new attorney/firm and filed to have the case dismissed without prejudice and it was. While I would have preferred to have had it dismissed with prejudice in the end all that mattered was that it was dismissed and I won. In my search, although it may sound cliché and it may sound horrible, but it felt good to know that other people were going through the same thing, that I wasn’t the only one. And suddenly I wasn’t so afraid any more. I had those days were I felt confident and was able to put the lawsuit to the back of my mind, knowing I did all I could and just had to wait for their next move. And I also had those days were I questioned everything I did, did I do enough, was there something else I could do, etc. etc. Thankfully those days were far and few in between, on nerve wrecked days I would read the threads where people shared their own victories, and I knew and believed it could be done. I could win. And here I am, the nightmare of a lawsuit gone. I definitely cannot say it enough Thank You! You guys are amazing!
  14. 11 points
    I had a question raised about memorizing objections which then led to how my trial binder was organized. I think the answer to that could be useful to others as well: There was no way I could memorize those individually for each piece of evidence. So, I had those all printed and in my binder. DO separate your binder into sections. Use tab dividers to flip more quickly to each section. I couldn't afford tabs so I tore up post-its into strips, and taped them to pages to use as tabs. 1) I had Opening Statement on top, 2) Objections came next (with the Objections cheat sheet first, followed by the objections for each evidence, followed by those essays on objections I posted. 3) The third section was then the Objections to Calling Attorney to Stand and Calling Defendant to Stand. 4) The fourth section was the CCP 98 objection 5) Next came the Rule 3.1332 Objection to Continuance. 6) Sixth was the Dorsey argument and a copy of the Dorsey opinion. 7) Then came the General Objection information (materials about Objections themselves) 8) Then came the Questions for Plaintiff's Witness(es) 9) Next was the Closing Statement Checklist 10) Next was a section called Authorities where I had the breakdown information on the case law I had cited as well as breakdowns on what the evidence codes and other statues all meant so I could look them up if need be. 11) Then came a tab for Witnesses and Attorneys where I had printed out all the information and photographs, etc. that I could find about plaintiff's attorney and proposed witnesses. In the pockets of the binder, I kept a backup set of loose evidence objections as well as copies of those documents I felt I might need to hand out, like the Rule 3.1332 objection. In my bag, I had copies of every document filed and served and every piece of discovery and every letter ... in other words everything about the case was in there if I happened to need it. * * * When a piece of evidence came up (as in plaintiff mentioning it or trying to submit it), I immediately objected. "Objection, Your Honor." I didn't have to think whether or not I would be objecting. Object to everything. THEN worry about looking up what your objections are. If you get nervous and are flipping like crazy for the right page, start off with "Objection, Your Honor. Defendant objects for reason of ... hearsay ...." Just speak slowly. Don't sweat it. You'll have the page by then. Just relax. The judge knows you're under pressure. Odds are he'll be patient. If he or she isn't, then simply, say, "Apologies, Your Honor, I'm not an attorney and I am looking up that document and my objections." (I didn't have to do that, and I did take what seemed like an eternity to find each objection sheet, but the court knew I wasn't wasting time and was very patient. If plaintiff complains, then they're just trying to harass you, and the court is likely to see that and not look favorably on them. Just be humble about it. After saying "Objection, Your Honor," I then flipped through the binder to find the page for the particular piece of evidence and I simply read aloud to the court what my objections were. That's the material in red. I never had to go to the black material, as the judge knew all the evidence codes to which they belonged. It saves you a lot of worry and work. You should know what CCP 98 is about, CCP 96, and CCP 1987(a). Familiarize yourself with the key cases that are in your MIL ... like Elkins. You don't have to memorize them, just be able to recognize the names and look them up in the case authorities sheet (like the one I made and posted). Your briefs will do most of your argument. In your declaration in support of your trial brief, I recommend that you do let the court know that you are NOT an attorney, and that you therefore ask for the court's indulgence.
  15. 11 points
    Many times the JDB will provide nothing or object to your requests. These are insane objections, but happen all the time. You will have to determine how you will handle this if the JDB objects. There are two schools of thought, do nothing because the JDB just failed to prove their case, so see you in court, or file a motion to compel. I do nothing and tell them I will see you in court. However, that is something each consumer should research. In the highly unlikely event the case goes to trial, and proper discovery and challenges to the evidence was done, the JDB stands about a 99.99% chance of losing. I was a party to one of those rare cases that went to court. So you might ask, what happens when the JDB thinks the rules of evidence don't apply to them and moves forward with the trial. You point out the rules of evidence to apply to them and object to their hearsay for the reasons stated above. Here is a personal experience and how this specific judge ruled in my specific case. While I think this would be the common ruling in most courts, this is how a judge ruled in my case and does not mean a judge will rule the same in your case. They should and if not, in my opinion, you would have an excellent slam dunk appeal if they did not. The JDB tried to admit their evidence of standing by affidavit and a bill of sale., They also had disclosed no witnesses from the original creditor that would testify. In other words I had won before the judge took the bench. I objected of course. The other side argued to the judge that the records should be admitted under the business records to hearsay exception. This was the ruling and almost a word for word quote from the judge. "You can't take somebody else business records, drop those business records in your file (as the judge picks up a piece of paper and drops it in a file he had on the bench), put that file in your file cabinet, shut the file cabinet, and then claim those records are now your own business records and are admissible under the business records exception to hearsay." Objection sustained. Of course that meant case over as the JDB had now failed to meet the element of standing. If I owed the debt and all the other elements the JDB would have to prove were now irrelevant. They just lost their standing so they just lost their whole case. The issue of owing the debt never even made it to argument. In fact, I conceded the element of owing the debt (not saying you should be any means). I knew they could not prove standing so to speed things up I just stipulated to owing the debt (again not saying you should). The main thing to remember is the party suing you has the burden of proving their case and all the elements of their case. You need to make sure you follow the rules of the court and the rules of procedure for the state you find yourself in. Not following the rules can turn a slam dunk winning argument into a loser and an overall loss for the case. Finally, don't be intimidated. Send discovery, dispute their evidence, make them prove their case and when they fail to do this or don't comply with the rules of evidence, attack. When you fight back, you have just done what 98% don't do, fight back. Think that number is too high. Go to your local state court and pull the cases from the JDB that files the most cases. See if you can find even one that went to a full blown trial that was for less than 15K allegedly owed. What you will find is tons of defaults, settlements and granted motions for summary judgement. And of course if sued, if you have even a remotely legit violation on the other side, file a counterclaim. JDB don't like people who fight back and they really don't like people that not only fight back but who turn the tables on them and sue them.
  16. 11 points
    Of course the JDB is going to say you owe them because they bought your debt from the OC. Really, you did? Well let's see about that. Would you care to prove you have standing. A fair question of course, so how does the JDB, generally speaking, attempt to do this. They produce (or should) a bill of sale/assignment/affidavit showing they bought your debt from the original creditor. That is fine and how they would prove ownership of the debt. So, the JDB sends or presents to you a bill of sale that shows on a certain date they bought your account from the OC and there is some legal jargon about how they now have all the rights of the OC. All of this seems clear cut and in fact it is all legal (generally speaking) to this point. Very praying on the horrible financial times of people who never set out to default on the debt (exceptions to every rule of course, but 99% of people don't set out at the start to default, regardless of what collectors say) and in true vulture form trying to peck your eyes out, but legal. Okay so how do you challenge standing after everything above has happened? You start asking the JDB to prove their standing. Yes they will most likely present you with some paper documents that will say they own the debt. Pay very close attention to what they produce. A lot of the time it is just a letter written by themselves saying you own the debt. This is what happened to me. The JDB actually presented a letter saying they owned the debt and what day they bought the debt. However, it was written by them and on their own letterhead. The judge was not impressed. Other common ways they will try to prove ownership is to show a bill of sale for numerous account, sometimes in the thousands. They will show a bill of sale, for example, that shows on XXX date JDB bought 10,000 accounts from the OC. That might be true, in fact for the sake of argument let's say it is 100% true. How does one challenge that bill of sale. The answer is make them prove one of those 10,000 accounts was actually your account. Them simply buying 10,000 accounts and claiming one of those 10,000 accounts was your account is not proof they bought your account. In other words you don't want to discuss or challenge 10,000 accounts, you want them to prove your account was one of the 10,000. Other ways they will try to prove standing is through affidavits and their word. They will actually just say they own the debt. Unfortuantley, their statement they own the debt will be enough if not properly challenged (generally speaking). They might also send you admission requests (part of discovery) and ask you to admit they are the owners of the debt. While this is impossible for the consumer to admit, as the consumer was not a party to the alleged sale of the account, this should never be admitted or left unchallenged. They will also send you discovery and constantly refer to themselves as the owner of the account using some type of legal jargon. The statement(s) they make as fact they own the debt should always be challenged. A JDB knows standing is something that dooms them almost every time if the consumer challenges standing. They will try numerous ways to get you to not challenge or concede their standing. Again, anytime a JDB refers to themselves as the owner of the debt, it needs to be denied or challenged. You should wear out the word alleged !! The JDB will attempt to use hearsay to prove they have standing. This is not a problem if it is not challenged. In fact, thousands of defaults and summary judgements are won all the time with the JDB using nothing more than hearsay. A common form of hearsay is an affidavit. The affidavit is hearsay by definition, even the JDB won't dispute that. However, the affidavit can be admitted and/or deemed correct and true if unchallenged. This goes for bills of sale and other documents allegedly proving ownership. I see posts all the time where somebody says this will be inadmissible because it is hearsay. Again, even the JDB is not going to say a piece of paper is not hearsay. The argument is going to be if the hearsay is admissible. Hearsay is admitted into evidence all the time. For what this board is mostly about, the business records exception is the usual exception (and a legit exception in many cases, just not in JDB cases). So while an affidavit is hearsay, you can't just assume it won't be admitted. This is where you will have to read your courts rules of procedure. It will tell you if you must challenge the affidavit (usually you do) and if so when and how. A good rule is, if in doubt, challenge. The most common way a JDB gets their evidence admissible is by sending the consumer discovery, which the consumer either ignores or does not answer properly. This will cause the evidence (generally speaking) to be admitted or if there are requests for admissions, the admissions deemed admitted. This is almost a sure fire way to lose your case if this happens and for obvious reasons should be avoided at all costs. The JDB will pepper through out their discovery requests; written statements as they are already established facts they are the legal owner. Again, the reason for this is even the JDB knows not proving standing means they can't win and if they don't win they are not getting your money. A consumer needs to always (in my opinion) dispute anything that even remotely has to do with standing. If the JDB provides a bill of sale, you challenge that bill of sale. If they send an affidavit, you challenge and submit your own affidavit disputing the alleged facts in the JDB affidavit. You can ask for a witness list from the JDB (assuming you have been sued). That witness list better included witnesses that can authenticate evidence and the JDB standing. Pay careful attention to so called witnesses that will authenticate the evidence. A ton of the time they will just be a witness from the JDB. That JDB witness will simply state the JDB records say you owe them money and they own the debt. That is worthless and nothing different from the consumer saying they checked their records and don't owe the JDB anything. For a JDB to properly prove standing, the JDB must get a witness form the original creditor to testify to the sale of the account and how the account prior to its sale was kept and maintained. This witness must have personal first hand knowledge of your account specifically. While there might be a case in some court, to date, I've never seen one case where this happened. It is stated to the consumer all the time this witness will be in court, but I've never seen it happen. The reason is simple, money. The OC once they sell the account no longer has any interest in the account (no dog in the fight). Many times the terms of the sale to the JDB will state the OC will no longer have anything to do with the account. In other words the JDB agrees they won't be able to demand a witness from the OC to testify in court. Don't forget that many JDB are second, third and even six or seventh alleged owners of the account. In these cases each owner of the debt must be in court to testify to the alleged sale of the debt. This is referred to as the chain of custody. It is virtually impossible for the JDB to establish a clear chain of custody if there is just one prior owner (OC) and it gets even harder and harder every time the debt is bought and sold. For example, if Midland bought a debt from Asset Acceptance and Asset bought the debt from LVNV, and LVNV bought the debt from Citibank, to prove the chain of custody in court would have to go something like this. Witness from Citibank to testify they sold the debt to LVNV. Witness from LVNV to testify they bought the debt from Citibank and turned around and sold that debt to Asset. Witness from Asset to testify they bought the debt from LVNV and turned around and sold the debt to Midland. Witness from Midland they bought the debt from LVNV and why you now owe Midland for the debt that was originally owed to Citibank. In other words an absolute nightmare for a JDB. Even assuming the one in a million chance all these witnesses show up to court, they all must have specific knowledge about the account, and we are talking about tens of thousands of accounts changing hands. Finally, the account Midland allegedly bought would have been sold to them, in this example, for about one cent on the dollar. So assume the debt is 5K. That would mean Midland bought the debt for $50.00. Do you even want to do the math on how much it would cost Midland to prove standing in the above example. Keep in mind they still might not win or if they did there is a good chance the judgement would never be collected. In my opinion, a consumer sued by a JDB should demand not only all documents that would prove standing (you do this in discovery) but the witnesses that are going to authenticate the evidence. There needs to be a request for a complete accounting of the debt, dates of the alleged sales, and a challenge to each and every document a JDB produces.
  17. 11 points
    Please, people. Have some common sense and use general amounts and alias names wherever possible when answering these questions. Lawyers for the creditors and collectors have been known to read this board too. And one unlucky member showed up in court to find all her discussions here being presented as evidence against her.
  18. 10 points
    Victory!! CASE DISMISSED! Thank you, Thank you, Thank you to everyone who replied to my request for help and offered information. UNIFUND did not pay their portion of the JAMS fees by the deadline set by the Court. I updated the Court as requested and they dismissed the case with prejudice! To anyone who is new to this forum and needs help, pay attention to the great advice that is being offered here and follow it. Once again, THANK YOU!
  19. 10 points
    I posted yesterday in a thread about standing that I had written some posts about standing and offered to send the poster the link via PM. I got a lot of other requests via PM and questions about standing. So, I decided to take everything in various posts in reference to standing and put it into one post about standing. As always, it's my opinion, how I see the law and the issue of standing, and my personal experiences. It is in no way legal advice or 100% fact and undisputed. It is my opinion and how I see the issue of standing. I am not an attorney and have never step foot in a law school. While the rules of hearsay and standing are pretty much the same across the board, you should always check the local rules in your area along with rulings and precedent that is relevant to the court and case you might find yourself facing. Before you rely on any of this advice or use a strategy based on this post, please contact an attorney. This is not legal advice. When somebody tells you to challenge their (JDB usually) standing to sue, or make them prove they even own the debt, what does that mean. What is standing to sue, or standing in general, as it pertains to the law. Standing just means somebody's right to even be asking the court for whatever they are asking for. On this board it almost always refers to a creditor or junk debt buyer to even sue you. In other words, does whoever suing you own the debt and have the right to even ask the court for a judgement ordering you to pay them. Original creditors, generally speaking, don't have problems with standing. They originated the debt. They entered into the contract/agreement with you. They conducted transactions with you on a regular basis. You might have used the card, they sent you statements, you paid the creditor each month in full or a certain portion. If there were amendments to the agreement or disputes, you settled those or accepted the amendments to the agreement directly with the original creditor. So if an original creditor (a few common examples are Citibank, Chase, Discovery) sues you for an unpaid debt, if the original creditor decides to really fight and spend money to win (which is not a given by any stretch) they have decent odds of proving standing. They can send a witness to court that will have (or claims to have) personal first hand knowledge of the records which the lawsuit is based. On a side note, and for another discussion, is the fact one can still attack an original creditors records and the witness. Having a witness from the original creditor is not a sure fire slam dunk win, but for this post I'm not going to discuss that. Just remember, it's not a sure fire loss just because it is an original creditor suing you. The odds are a ton greater the original creditor can meet their burden of ownership. I know two posters on this board that have beaten big time original creditors when the original creditor and not a junk debt buyer sued them for the debt. What happens when those original creditors decide not to sue and sell the debt under the theory of something is better than nothing. They sell the account to what is commonly referred to as a junk debt buyer. Some common ones are Midland, LVNV and Asset Acceptance. There are hundreds out there, those are just some of the more common that you will see in numerous threads on this board. When a junk debt buyer (JDB) buys the debt from the original creditor (OC) the JDB now steps into the shoes of the OC. In other words the JDB now owns the account and the contract between you and the OC is now between you and the JDB. The JDB can't change the contract/agreement terms, and all the rights and responsibilities of the OC are now those of the JDB. It works both ways. All of your rights are in no way changed. The same rights you had with the OC, you now have with the JDB. So to recap with a common example. Original creditor and consumer enter into a credit card contract/agreement. The consumer for some reason can no longer make payments and defaults. The OC after about 6 months charges off the debt (keep in mind charge off is an accounting term and in no way means the debt is not collectible or enforceable simply due to a charge off). The OC decides not to sue and sells the debt to a JDB. The JDB now owns the defaulted, charged off debt. The JDB can now send letters and make calls to the consumer to pay the bill that was once owed to the OC. The JDB can decide to sue and they will sue in their own name and call themselves the owner of the debt. In other words the lawsuit will look something like, Junk Debt Buyer, Plaintiff VS Consumer. All of this is legal and the JDB right to enforce the contract/agreement of the OC is written in the contract. This is why the defense of lack of privity fails. The agreement allows the OC to sell or transfer your account to another party and you don't get a vote. So what happens when the JDB sues, you receive the lawsuit and say to yourself, "Who in the heck is (insert JDB name here)." That is actually you, in your mind saying "Does this company even have standing." You're on the right thinking by wondering why the OC is not the one suing. You've never entered into any contract with the JDB and now they are suing you and demanding the amount of the charged off debt plus tons of interest. Again, this is all legal (generally speaking). When you are sued there are certain things the party suing must prove for them to win. These are called elements. Elements are vital and required in winning and all elements have to be proven for the party suing to win. In a credit card lawsuit the elements would be; 1. There was a contract (meeting of the minds) between you and the creditor. 2. There was money lent by the creditor to the consumer. 3. The consumer was asked to pay the money back. 4. The consumer did not pay the money back. 5. The consumer owes a certain sum that is allowed under the contract. 6. The creditor has acted according to the contract and the consumer has not. 7. There is a clear amount in the lawsuit demanded and the demand is proper under the terms of the contract. 8. The person or company suing is the legal owner of the debt/account which is the subject of the lawsuit (STANDING). All of these elements must be proven, not some of them, but all of them (these are general elements and are basically the general elements in cases, as anything with the law, there are exceptions). So, if the party suing can prove everything but # 8 (standing), they lose (assuming there is a trial or dispute challenging standing). If they can prove you owe 10K, did not pay the money back, in fact, you can even admit you owe the 10K (not recommending that, just saying you could), but if they can't prove you now owe that 10K to them, they lose. In other words, the owing of the 10K is not in question, the only question is who do you owe (Who has standing).
  20. 10 points
    Case got DISMISSED against Cavalry & Winn Law group!!! Sent CCP 96 and got this lovely gift in return. Special thank you to @calawyer @Scientific @Seadragon @Anon Amos @ASTMedic @racecar @bravoflaca2000 @helpme and the rest of all those AMAZING people who helped me win my battle against these scumbags and their attorneys! Blessed to have found this forum! Words cannot express my appreciation and gratitude for all your help! I cannot repay back the time and support you all have given me but I hope to help and inspire others to KEEP ON FIGHTING! JDB's don't like people who FIGHT BACK!! THANK YOU AGAIN!!! I updated my original thread with the results. Cheers my friends!
  21. 10 points
    "Today, the Consumer Financial Protection Bureau (CFPB) filed a lawsuit in a federal district court against a Georgia-based firm, Frederick J. Hanna & Associates, and its three principal partners for operating a debt collection lawsuit mill that uses illegal tactics to intimidate consumers into paying debts they may not owe. The Bureau alleges that the Hanna firm churns out hundreds of thousands of lawsuits that frequently rely on deceptive court filings and faulty or unsubstantiated evidence. The CFPB is seeking compensation for victims, a civil fine, and an injunction against the company and its partners." http://www.consumerfinance.gov/newsroom/cfpb-files-suit-against-debt-collection-lawsuit-mill/
  22. 10 points
    After filing a counterclaim, I received a message from Asset Acceptance's attorney. They canceled the Motion for Summary Judgment hearing and sent me a proposed settlement which I'm sure the client will like. They are dismissing the case with prejudice and removing the account from her credit records in return for us dropping the counterclaim. So, yay! A win for my client
  23. 10 points
    BTO429: Gunny: That's exactly what I did! LOL I showed up to pre-trial and they didn't. The judge asks me to the bench, I stand there before him while he is reading through the case. He says, " How many times is it now that the Plaintiff's have failed to show up to court?" I just looked at him and said "Several, your honor" He started talking to the court clerk on the minutes and said let the minutes show that the defendant appears and the Plaintiff does not, dah, dah dah....I said excuse me your honor, " I move to dismiss based on the Plaintiff's failure to prosecute this case". He stopped and looked at me for a minute and finished talking to the court clerk... Let the record show this case is dismissed. I said "Dismissed, with prejudice your honor?" He said, "no, I can't do that, let it show dismissed without prejudice" He said if I do that they will just have this thing back in front of me. I said "Okay, your honor. Thank you. Can I be dismissed?" He said "Yes". I started out the door and down the stairs and toward the door and the court clerk hollared at me to come back into the court, the judge wanted to say something to me. I was like....okay??? I went back into the courtroom and the clerk said, she was just about out of the building and laughed. I said "I was just trying to get out the door" I went back up in front of him and he started quoting to the clerk again. "Let the record show, dismissed with prejudice" "There you go Ms. Defendant". I just about died. I said "Thank you, your honor!" With a big ole CHEESE grin on my face as I walked out of the courtroom for the 7th time! It was a win, and I BIG WIN for me. This thing has lasted 2.5 years, and it was over $16k. I'm sooooo happy, happy, happy!
  24. 10 points
    Your ok you just made an offer to avoid the time and expense of going to trial and did not admit any liability. Rule 1 don't talk to the junkdebtbuyers. Rule 2 if you feel like talking to the junkdebtbuyers refer to rule one.
  25. 10 points
    Some love him, some loathe him, good viewing all feelings aside.
  26. 10 points
    I won judgment in trial yesterday ... http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/ I hope my story and the materials I have prepared and gathered can be of benefit to others. When you are down, there are good people with good hearts and warmth and experience and knowledge to help you out. We're there for you.
  27. 10 points
    I haven't seen a post where a moderator accused you of being negative for the reasons you claim. The few times I've responded to any of your posts has been because of your critical and judgmental responses to other posters. Show me a post that shows what you claim. That is absolutely not the case in regard to a response to a DV. It has always been the case that most CAs/JDBs will send a copy of a cc statement to validate a debt. They are not sending anything different now. How do you know this? I suggest you take a look through this site and note all of the case law you will find for various states. Also note that the case law has been provided to include either in a motion or an opposition to a motion. Take note also of how many times a poster is told to read their rules. Not one person here has said ""it is easy, type up a document like this and insert your details, file it, show up and the case will be dismissed with prejudice". I have never told anyone that this is easy. In fact, most of the posters here have not done so. Most of us, at one time or another, have pointed out that it's up to the judge. Some JDBs show up with nothing, but the judge still rules in their favor. Other judges understand the defendant's point about the proof of ownership, and rule in favor of the defendant. We never know for sure what's going to happen. What we do know, however, is that if one doesn't at least try to fight back, one will definitely lose. Most people in debt collection cases can't afford attorneys. If they could afford an attorney, they either wouldn't be sued in the first place, or they'd go ahead and settle. Most of those who come here for help do so because they can't afford an attorney, but they want to fight, especially if they live in a state where their wages might be garnished. They know they might lose, but they don't want to spend the rest of their lives wondering "what if I had just tried". That's when we tell them to study their court rules and start researching. We've even suggested they go to court and sit in on debt collection cases in order to learn what goes on. If, after researching and doing their best, a defendant loses, they won't have to spend the rest of their lives wondering "what it". I'm sorry that you don't seem to be able to comprehend the purpose of this site.
  28. 9 points
    Hi guys, Just wanted to give an update. I GOT ACCEPTED INTO LAW SCHOOL! Two years ago I created a thread here stating I was studying for the LSAT and was going to apply for the fall of 2014. My first "cold" run at a practice LSAT was not so hot, so I decided to take a full year to study for it. I took the June 2015 LSAT, improved my LSAT score by 16 points and applied to six different in law schools in September. Today I heard back from the first school and the feeling is euphoric. I don't start school until September of next year, so I will still be around for a while but I will not forget the people here. My goal is to practice in the area of consumer civil litigation, among other areas. There is a dire need in the State of New York for affordable legal civil services to the poor or near poor. A lot of times people go unrepresented in areas such as divorce, custody matters, civil disputes etc and it can have just as a severe impact on a persons life as a criminal matter Much of what I learned from these boards will no doubt help me be a better advocate in the future. Thank you all
  29. 9 points
    My short story: I was sued by a creditor last year. I was lucky enough to find this site online. The people on this site were amazing in helping me figure out what to do and understand all the legal stuff. I want to thank you all for everything. There is NO way I would have been able to understand what was going on and how to fight the lawsuit on my own. My credit score is now 711! It was in the low 600's last year. Anyway, just wanted to say I am grateful to all of you who give so much of your time and information to help people on this site.
  30. 9 points
    I originally posted on this site for help in responding to a summons from PRA (regarding a 6k Citibank debt), however living in FL and not knowing the law i was excited to retain @LawKitty . She has been so thorough in explaining everything and being realistic about the possible outcomes of the suit. She allowed me to set up a payment plan!! I made my first payment on saturday, and she got to work on tuesday (monday being a holiday)! Tuesday afternoon she sent me an email with all the info she had submitted to the court electronically. Within HOURS, pra emailed her with a mutual decision. PRA dismissed with prejudice, agreed i would not receive a 1099, the tradeline would be removed from the cra's, and they would not sell the debt or ever attempt to collect on it again!!!!! @LawKitty got me the best possible outcome in less than one day!!! I strongly recommend anyone in FL being sued by the junk debt buyers reach out to her. I honestly thought this process would take months, and that absolutely was not the case. Thank you guys so much for all the help and directing me to @LawKitty.
  31. 9 points
    Let me start by thanking ASTMedic for laying out the guidelines in "How I beat Midland in California" that I basically copied and then updated with the Target v. Rocha info that Calawyer and several others pointed out. Because of what I learned here I was able to get Absolute Resolutions to dismiss their case the morning of the trial. If it had not been for this forum and the many helpful contributors I don't know what I would have done. Now it is my time to give back, so I am attaching redacted copies of the documents that I spent so much time researching and typing up. I hope this will help someone else as much I was helped by the other contributors to this forum.
  32. 9 points
  33. 9 points
    A quick recap: I was sued by Midland Funding over an old credit card debt for about $7,500. I answered the suit, we did discovery and they promptly filed for Summary Judgement. The first SJ was continued so Midland could get the proper document from CHASE spelling out my account. The second Hearing for SJ, I won by pointing out they did not have that. You can read about it here: http://www.creditinfocenter.com/community/topic/325986-a-victory-in-motion-for-summary-judgement-of-sorts/ So it's been six weeks or so since their motion for Summary judgement was dismissed and the case set for trial. And I really have done nothing to prepare. I was at a loss for exactly how to prepare for trial and really my hope was they would offer me a settlement in the $2,000 range. Their attorney had left me with a "we will send you our best offer right away" after the hearing but I had heard nothing until today. Today I get a letter in the mail from the attorneys (Love, Beal and Nixon) I figure it's a settlement offer of $5,000 or so and I think "let the negotiating begin". But no, it's a voluntary DISMISSAL from Midland. WOOHOOO... so frickin happy! And so glad all my hard work, late nights, effort and even representing myself pro-se in court paid off! Obviously they decided that fighting me to get a judgement they had little chance to collect much on just wasn't worth the time, energy and expense. I've already filed a complaint with AG of Oklahoma about their practices. I got kind of a cryptic response "we are aware of the activities of Midland Funding, LLC but we do not disclose investigation details" so maybe they are already being looked into. I have seen so many Summary Judgements due to a lack of activity on those being sued, I hope something happens to limit them. For those of you in a similar situation my advice is FIGHT! Fight hard! Do your research, file your papers, and just fight them tooth and nail at every turn. Don't let them scare you or intimidate you, when push comes to shove they usually don't have the necessary papers to win. Also just the act of fighting may cause them to give up and look for much easier targets. Forgive my back patting, but I am in a state of near euphoria today. This has been a long hard road and I haven't been this happy about something in a long time.
  34. 9 points
    Folks...realize this is an open and public message board. Anyone who wants to join is welcome to sign up and participate. While us moderators and administrators do our best to block out right spammers or idiots, not everyone is who they claim to be. Some are here to solicit business or even scam you out of your money. BE AWARE that if someone uses "Private Messaging" to offer you services or secret methods for dealing with your problems they probably don't have YOUR interests at heart. If they're not willing to discuss their methods in open forum, they are likely hiding something. Please report anyone who wants to deal privately...
  35. 9 points
    I beat Midland (Greene & Cooper) in bench trial today. The lawyer came unprepared for bench trial..he thought he was there for summary judgement. He asked the judge a few times for a few minutes to review the files. He called me to take the stand. and proceeded to ask me questions about purchases in the statments that he had. I answered not that I recall to every question he asked. In the end he asked to have the case dismissed without prejudice. I am not concerned as the sol has since passed and they cannot file on this account again. I was prepared to object to every piece of evidence they had in the claim and in discovery. This case has been long and alot of work. Thank goodness it is finally over! Thank you everyone that has answered questions, posted helpful information and helped me to win this case, I appreciate this site more than I can say. I am doing a happy dance!!!!
  36. 9 points
    A new case was published today by the Appellate Division of the Superior Court in Southern California. It follows Target Bank v. Rocha and reverses a trial court judge who thought Target v. Rocha was wrong. Here is a link: http://www.courts.ca.gov/opinions/documents/JAD14-11.PDF I will post the official citation when we get it. Kudos to Ian Chowdhury, a NACA member in Southern California for doing such a good job.
  37. 9 points
    http://www.creditinfocenter.com/community/topic/325069-edit-had-court-again-update-2-17-15-its-over/ Thanks to all of you! Thank you soooooooooooooo much for your guidance, encouragement, support! midlandvsme.pdf I didn't realize that some of us posters were talking in conversations and alot of the work I did was not shown in thread. I am going to try and pull everything together that I used, did, found researching, etc, to hopefully help others the way you all helped me.
  38. 9 points
    Here is the "miracle" -- quite-quite educating: JDB’S ATTORNEY: My (inaudible)… Ummm… so I guess I don’t have to get to the issue about whether or not the account belonged to the appellant because she stated on the record that she is not disputing that she had the account, well, let’s just skip through to the admissibility portion of the argument… And the admissibility of evidence is reviewed on an abuse of discretion standard. And the trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds… and here the trial court admitted the evidence as submitted by the plaintiff in the lower court which was an affidavit of debt showing a sum certain is due and owing, that an account had been purchased from an original creditor FIA Card Services, also known as Bank of America, that account was, this specific account, Ms.XXXXXX’s account was sold to Cavalry SPV I who sued for the debt and they… JUDGE: What evidence (inaudible) what evidence is it that the account was sold? JDB’S ATTORNEY: The bill of sale that was provided in the summary judgment motion, Your Honor, which was titled… uhm… titled as a … Bill of Sale and Assignment of the Loans stating that… JUDGE: I see that, but how did you get that? How is that admissible? JDB’S ATTORNEY: That’s admissible because it’s… uhmmm… well, it’s… I guess… it’s a business record of the plaintiff, Your Honor, and... JUDGE: Who… who is establishing it is a business record? JDB’S ATTORNEY: Well, it’s a b-business record… it’s…uhmm… it’s referenced, well… the sale of the account is referenced in the affidavit… JUDGE: But the document is not referenced. JDB’S ATTORNEY: the specific document, Your Honor, is not referenced. JUDGE: So… it’s… JDB’S ATTORNEY: But the affidavit is sworn under penalty of perjury and states… JUDGE: But the affidavit does need to be made under… with personal knowledge JDB’S ATTORNEY: That’s correct, Your Honor JUDGE: Ok JDB’S ATTORNEY: It was… It does state that they have reviewed the books and records. JUDGE: They need to attach the books and records and reference the books and records that they are talking about then. JDB’S ATTORNEY: So they, I mean, they do state in the affidavit that the account was purchased and… JUDGE: it’s not something (inaudible) the affiant doesn’t know that, right? Except for looking in the books and records JDB’S ATTORNEY: Correct, You Honor, and (inaudible) stated the books and records show that the account was purchased from FI.. JUDGE: And they have to reference the document that establishes that JDB’S ATTORNEY: I… I mean… I don’t know that they… specifically have to reference… JUDGE: Yes, they do JDB’S ATTORNEY: (long pause): So, Your Honor (pause) the affidavit states that they purchased the account from FIA Card Services (pause) and that the books and records include the electronic business records that are the billing statements, and… uhm… the billing statements shows that there are purchases and payments on the account. And the standard for admissibility of evidence is an abuse of discretion…so I don’t believe that (inaudible) the appellant has shown that the trial court abused its discretion in admitting the evidence… JUDGE: The evidence must be admissible, right? Under some rule, some evidence rule, so…the documents need to be authenticated. You can’t just attach a bunch of billings if there is no one to say these are accurate. JDB’S ATTORNEY: Well, if Your Honor was going to say that the Bill of Sale is not authenticated and it shouldn’t be attached, I believe there is still enough evidence to show that the account was purchased from FIA Card Services in the affidavit JUDGE: She doesn’t have personal knowledge of that except for looking at the affidavit… JDB’S ATTORNEY: No… JUDGE (correcting herself): Ugh, the bill of sale JDB’S ATTORNEY: She’s… She’s looked at the electronic business records, the bill of sale included JUDGE: Then she needs to attach them JDB’S ATTORNEY: It is included in her review of the file though. I don’t believe that you have to attach the bill of sale JUDGE: She needs to reference it JDB’S ATTORNEY: I understand you are saying that she needs to reference it, Your Honor, but I don’t believe it is required that she… JUDGE: It is required JDB’S ATTORNEY: that she has to attach it to her affidavit JUDGE (in a condescending tone): supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify. So, for example, if-if we had a trial and this woman came in, she couldn’t just get up here and say that the account was sold JDB’S ATTORNEY: She could on personal… JUDGE: She would need… JDB’S ATTORNEY: She could say “I have reviewed the books and records…” JUDGE: She would need… JDB’S ATTORNEY: (inaudible) JUDGE: She would need to show what she looked at JDB’S ATTORNEY: I disagree, Your Honor, that it has to be attached to the motion. She has stated in the affidavit form that is sworn under penalty of perjury that “I have reviewed these records” JUDGE: What… What records? JDB’S ATTORNEY: the electronic records JUDGE: She needs to produce them JDB’S ATTORNEY: the electronic business records JUDGE: She needs to produce them just as she would if you were at trial. You could not… JDB’S ATTORNEY: (inaudible) JUDGE: You could not. You could not call a witness to trial and have her just get up on the stand and say “I reviewed some records and… uhm some electronic records and..uhm… this is what I’ve found” JDB’S ATTORNEY: I think that’s done all the time, Your Honor, people say they’ve reviewed the books and records and they don’t actually provide them as an exhibit. So, I mean, the affidavit itself says that the account was purchased from FIA Card Services, Alaska Airlines Bank of America credit card account. It says all of the information, it says when it was open it says… JUDGE: She says the principle balance due and owing is $XXXX. How does she know that? JDB’S ATTORNEY: Because she reviewed the electronic business records (inaudible) Bill of Sale, I mean, is just an exhibit for Your Honor… JUDGE: where is the electronic billing record that shows that the balance of $XXXXX? Where is this? JDB’S ATTORNEY: That would be included as a separate attachment of the billing statements JUDGE: Then how are those… How did you get those admitted? She doesn’t reference them JDB’S ATTORNEY: She references reviewing the electronic business records. We’ve attached them for Your Honor to review, if you wanna exclude them, I believe that all the information she had set forth in the affidavit still enough to get summary judgment when the appellant admits owning and having the account and hasn’t put forth anything showing that someone else owns the account. There is no fact and evidence to contradict the fact that Cavalry SPV I is the owner of the account. JUDGE: Her only issue on the appeal is whether or not the document shouldn’t be (inaudible) considered by the court and admitted. And the answer is to that question is: no, they should not have JDB’S ATTORNEY: So, and I, I guess (short nervous laughter) I disagree with that well and the trial court and the appellate court has even agr…disagreed with that. The court of Appeals, Division I and Division II, have upheld affidavits, uhm, such as this. So I didn’t cite to the court of Appeals because I didn’t (pause) know it was (pause) the appropriate thingY (haha, did she really said that?) but I would be more than happy to provide (inaudible) an additional brief, Your Honor (pause) the purpose of summary judgment is … JUDGE: So if you thought this was sufficient, then why did you attach anything to her affidavit? JDB’S ATTORNEY: (inaudible) it is just what we always do, so the court can see… JUDGE: the question is why you didn’t have an affidavit that referenced the documents that you want the court to consider? An affidavit that said “attached are all the billing records. Here’s the true and accurate copies of the billing records that we keep on file”. Why did you not have an affidavit that said that? JDB’S ATTORNEY: ‘cause the affidavit said they reviewed the electronic business records and those were incorporated as electronic business records … when they purchased the account… So I mean it says, #7, Your Honor, “…in connection with the purchase of the account, FIA Card Services Alaska Airlines transferred copies of its electronic business records to Cavalry SPV I, which records were loaded into the computer system and which are maintained in an electronic format” JUDGE: then attached is a print-out of the electronic records? JDB’S ATTORNEY: Yeah, I mean, lots of courts across the state are not requiring… JUDGE: I’m granting the motion to dismiss JDB’S ATTORNEY: (inaudible) it’s not a motion to dismiss, it’s, Your Honor, it’s… it would be remanded to uhm JUDGE: I’m dismissing the order of summary judgment… JDB’S ATTORNEY: Ok JUDGE: …so you can start over again down back in district court (long pause) JDB’S ATTORNEY: thank you, Your Honor BAILIFF: All rise! JUDGE: Somebody needs to fill out the order. Hmm, usually it is the prevailing party... (after looking at me, sighed and departed to her quarters to fill out the order)
  39. 9 points
    Hello Everyone! I have been lurking around this board since June 2013 when I found out I was being sued by Midland Funding for 1300.00. Yes, 1300.00 - punks. ASTMedic's thread "How I Beat Midland in California" was one of the first pieces of info I found and gave me hope I could fight and win too! I just had court this morning, here's my story: Sued While Out of the Country This whole thing was especially stressing and drama because when they filed on me - I was living out of the country for 6 months trying to work remotely and reduce my living costs in a cheaper local than SF, CA where I am from. The process server tried to get my roommate to answer the front door (we live in a large apt complex) at 9 am on a Sunday morning so of course that didn't happen and my roomie called to say he thought someone was trying to serve me. Luckily San Francisco County Civil Superior Court Cases are all available to view online- so I was able to access and read the complaint even though I was abroad. The fact that they couldn't complete the service didn't stop them from filing a false proof of service with a made-up description of my roomie, claiming substituted service. Tried to Settle When I found out about this, I still had several months left in my stay abroad and I wasn't going to cut it short for such bs. I didn't have anyone I could ask to stand in line and file papers for me - plus I needed a fee waiver which you can only get by appearing in person. I tried to settle with Midland but they wanted almost 800$ in a lump sum or the total amount in monthly payments - but of course if you do payments then the clock starts on the debt all over again and probably at that point, you've established a "business relationship" with them legally speaking. Plus there was going to still be some reference on my credit report to the case - settlement to avoid a default judgement or something- I don't remember exactly but I know when I pressed for the details on that aspect - it was clear that it really sucked. These people- JDBs- are really disgusting. A Trick if You're Sued While Abroad or Otherwise Jammed Up So with my 40 day response deadline (in CA you get 10 extra days if served my mail) ticking down I did a Hail Mary and wrote up some lame answer/denial and fed-ex'd one to the court and one to my roomie so he could mail a copy to Midland and fill out the proof of service, etc. The court rejected my docs and returned them to my address in SF. BUT according to a lawyer I had a free consult with when I returned to SF, sending the docs to Midland made them THINK I had responded and therefore they did not move for the default judgement. That lawyer printed out a general denial for me and sent me down to the court house to file it. So technically I responded well past (about 2 months) the 40 day deadline but since Midland hadn't moved for a default judgement; I was able to file my answer with the court no problem. The other thing I learned later was process server companies also offer court filing services. So I could've filled out the docs and paid someone to file them on my behalf. For me that was cost prohibitive because I couldn't afford the almost 300.00 dollar court filing fees plus whatever the service fees are. Especially on a 1300.00 case but that's what Midland is counting on, right? Other Challenges: Stipulated Ex Parte Motion for Continuance My Case Mgmt Conference was set and then cancelled by the court. I had been planning to use the CMC to discuss the fact that I was planning another live/work cheap locale abroad sojourn but I got no chance to do that and received instead a notice of trial date that was set for, wait for it, my birthday. It was also right in the middle of the 7 months I planned to be abroad. So I pm'd "CALawyer" on this forum and he told me about filing a stipulated ex parte motion to continue trial date. I had to call up the lame legal crew at Midland, spoke with Sarah McElroy Robinson or Robinson McElroy- whatever- who has that bad SoCal accent/habit of answering questions with a question inflection. When I asked her who she was she said, "I'm a lawyer?" and I actually replied, "Are you sure? You don't sound too sure!" I was assuming she was a paralegal they just stuck on the phone. Then I realized later her name was on the docs as one of the lawyer posse. Sarah said to send her proof of my travel plans (airline reservation made before the trial date was set) and my stipulation and she'd sign it if she "liked what it said." I figured that meant I shouldn't put in any language like "The Plaintiff has no case" as I had in my CMC statement. I found a copy of a stipulated ex parte from a lawsuit involving Apple online and just took the form of it and citations in it and adapted it to fit my situation. This was a big hurdle. I didn't know that after I filed the ex-parte that I had to go to a walk-in hearing about it - luckily the court sent the docs back to me with a note about I had to appear. Luckily I was able to appear and they granted the ex parte literally the day before my flight. It was beyond down to the wire. Back to the States to Fight this BS So I came back to the States 7 weeks ago specifically for the trial. I had asked them to move the trial to at least 35 days after my date of return so I would have time to file CCp 96, subpoena, MIL, etc. It was extremely tight and I had to really focus and devote the majority of my time to this from the day after I stepped off the plane but I made it. When I was abroad I had used AstMedic's post and Seadragon's checklist to put all my relevant deadlines on my Google calendar and make my game plan. I wasn't able to work as far out as they had but I was still able to get everything in by deadlines but like I said: it was tight and not ideal and cost me a bit more $ overall. Pro tip: I wish that at the beginning of all this I had sat down and read thru all the court rules of my local court. Each local is different with filing deadlines. I realized later they had the complete court rules on the website(duh) and luckily found the info about serving a MIL either 10 days prior to trial via mail or 5 days prior via personal service just in time. However, not soon enough to avoid the personal service fees which cost 250.00 dollars. It cost 250.00 because I had to do it twice - because the address that Midland uses on all its court filed docs is actually a PO Box store. And I needed personal service. The PO Box store gave the process server the corporate office address on Midland. It's not on any of their docs filed with the court. Of course, I could've avoided the expense of personal service if I had been able to drop the MIL in the mail to them 10 calendar days before trial but I didn't have it done in time. Extreme Pro Tip: If you miss the mail deadline and need to serve your MIL via Personal Service the address for Midland's Corp Office is: Midland Funding, LLC, 3111 Camino Del Rio North, Penthouse, San Diego, CA 92108 My Docs I used a combo of AstMedic's and Homeless in CA's docs with some of my own flourishes. I just dropped the whole Target v Rocha case into my MIL. I later learned reading Homeless in CA's "Going to Trial in CA" thread about the page limit for MILs -15- mine was 17- but I didn't have the time to refile it so I let it ride. I should have just attached Target v Rocha as an exhibit and that would've been fine that way in terms of page limit I believe. Pro Tip: Search for whoever signs the Affidavit in Lieu of Live Testimony on LinkedIn for their professional profile. The guy who was trying to say he was qualified to vouch for the authenticity of my docs wasn't even employed by Midland when they purchased my debt. His professional profile consisted of a tour of duty in the Army as a paralegal and managing a mobile wireless store. I attached his LinkedIN as an exhibit in my MIL. Latin Pro Tip: Motion in Limine - Limine is Latin - pronounced like - "lim-a-nee". I was pronouncing it "Lie-meen". I am still not hooked on phonics. Court But No Trial So today was the trial date. Start time was 9.30 and I was there at 9.20. I signed the calendar on the podium like I saw the lawyers do and noticed Midland's rent -a -lawyer hadn't signed in yet. I was briefly hopeful no one would show but then a guy in a wrinkled, cheap suit comes in, goes to the Podium and then looks around and asks for me. Awesome. From this thread I knew his request to talk outside was SOP. Now it gets crazy: I follow him out and he has his arms folded against his chest and he squints at me and says, "So what is your defense?" Instantly I was offended by his demeanor and attitude and also somewhat baffled he was asking this, like, what do you mean what is my defense? The fact that you have no case, how does that sound? WTF. So he says, "Why do you think that?" So now I have no patience and I say, did you read the trial brief or the MIL? He says he's only seen my Answer and isn't aware of the MIL. So I just rapid fire, "I filed a Motion in Limine, you're not going to get the Affidavit in Lieu of admitted and you have no standing. It's a frivolous and malicious lawsuit. Come on, man, why are you trying to play games? You're an attorney and I'm in Pro Per and you're going to try this bs?" and I start moving back to the courtroom. He asks if he can ask me another ? and I point to the courtroom and say "You can ask me ?s during the trial." I believe at that point he might have gone to the clerk's office to get the brief or the MIL. So then he comes back in to the court room and sits in the row behind me in the galley. A few minutes pass and he asks about a settlement. So I turn around and say "Are you f-ing kidding me?' He says he's not and I don't need to be so defensive and let me tell you something. So I go off and tell him - "let me tell you something: you should be ashamed of yourself for using your law degree in this manner, clearly if you had gone to any decent kind of law school you'd know you didn't have a case. The people you work for are bottom feeder "finance" people and I use the term finance loosely because filing junk lawsuits based on the fact that 90% of people won't participate in the lawsuit process has nothing to do with finance and instead is an attempt to turn unsecured debit into secured debt and it wastes time and money and clogs up the court system." Then he tells me he's going to dismiss my case so why be so hostile? So I tell him, "Ha! Don't do me any favors. Yeah, you can dismiss it with prejudice." and turn back around in my chair. He says, "Oh, I can't do that." (yeah, really, especially since you're not the fucking judge, asshole) Then he says, "You must be a really fun person to hang out with." So I just laugh and say without turning back around, "You know man, you don't need to worry about who I am or what I am like or anything like that. I can tell you what I'm not, I'm not a scummy fucking lawyer. A rent- a-lawyer." Then he says, "I just want to know one ? Did you spend the money?" "Did you spend the money because to my personal knowledge.." So I wasn't going to answer but when I heard the word "personal" I turned a bit in my chair with a smile and said "Objection! You have no personal knowledge of this matter so shut the f*ck up." Then the judge came in and they started going down the dockett. Real lawyers with real cases were there and then me and rent-a-lawyer from a 4th tier law school. We got called up and Rent-a-Lawyer asks for the dismissal without prejudice because they gave me the "wrong address" on the CCP98. I ask for dismissal with prejudice because they have no foundation, their docs are hearsay and I don't want them to be able to refile and waste more of my time. The judge asks me if I am saying that someone else owes the debt. I say it's possible and that's why I am fighting this because they are claiming the original creditor was Chase and I never had a Chase card. I realize now I should have pointed out/ asked - "Which of the 7 addresses on the CCP98 was the wrong one?" But with this Judge it might not have helped anyway. She tells rent -a- lawyer that they should make sure it's my account before refiling because she's "heard of that happening before" and then dismisses without prejudice. So, she sucked. She came in with an obvious bias for the Plaintiff in that she was assuming that I owed debt. She definitely didn't give me any special consideration as an In Pro Per. I wouldn't be surprised if she takes bribes/kickbacks - SF Gov't is notoriously corrupt. Why else so friendly to the JDB and opening the court to yet another bs lawsuit to clog the calendar? She clearly wanted to get the case knocked off the dockett as quickly as possible yet wouldn't shut it down for good. So I booked it out of there, not too pleased, but happy it was done at least and a real lawyer (old WASPy dude, grey hair, expensive navy suit, etc) follows me out to tell me that I "won in there" and I can file for all taxable costs. I told him I had a fee waiver and ask about filing for the service fees and he said I could ask for that. Then in the elevator a guy tells me he's a court reporter and he heard my exchange with rent-a-lawyer and he was hoping he got assigned to my trial "ohh fireworks!" and I said, "that guys was bs." and he said, "I could tell." So that's story. I'll poke around here for how to file for costs info and see if I get anything. Not holding my breath on that but I will file for it. Logic would suggest they won't refile this for 1300.00 but who the f*ck knows. At least my docs are all ready to go if they do. This has been a huge waste of time and money. These JDBs should be in jail for what they are doing. I like how poor, working class and middle class folks are the ones in this country who are expected to have morals and "pay their debts" while rich assholes who run corporations can leverage their companies into untenable positions that spark a global financial crisis and then can get free money from the gov't to bail their asses out. Did those mutherfuckers spend the money? Because from my personal knowledge...... It's fucking bullshit. Special thanks and deep gratitude to AstMedic, CALawyer, Seadragon and Homeless in CA. Fight the Power!
  40. 9 points
    hard to believe, folks, but summary judgment in plaintiff's favor was reversed and dismissed today on this appeal in a Superior court. I will start producing more details within a few days. Too tired now.
  41. 9 points
    Got a Dismissal from Plaintiff Without Prejudice at my Trail Readiness Conference this morning My thread is here http://www.creditinfocenter.com/community/topic/323269-another-on-being-sued-by-cach-mandarich-law-group-in-ca/ I beat CACH for being totally sloppy. They messed up on so many levels I don't think they had a chance. I'll update my thread with details soon...but I'm happy. I just hope they stay away until SOL runs out. I could not have done it without this forum and great group of people. Special thanks to @Anon Amos and @calawyer, as well as everyone else who chimed in with advice as well as those who blazed the trail in their threads and info and examples/documents and experience they provided.
  42. 9 points
  43. 9 points
    My court case was today and the judge ruled in my favor after 20 minutes of waiting in the lobby past my scheduled time. The lawyer didn't call or show up. It appears based on the book the court had out that I was the only midland case for the day. I'm glad this website was here to give the information to fight the case. Thank you all!
  44. 9 points
    Case against UNIFUND was Dismissed with Prejudice. Woooo hoooo! I would like to thank CALawyer, Racecar, Anon Amos, Qbert and others who had their threads updated. I thank all the people on this board. ALL of your info and help is much appreciated!! If you won your case, I suggest everyone to Pay it Forward and help others to beat these JDBs!
  45. 9 points
    Hi Everybody I just wanted to thank you for all your support I joined a few years ago and ended up with 3 cases! I started fighting them on my own and 2 of them got weird and unique. I hired a lawyer to help with them. I kept one for myself to fight with your help and I got steam rolled in court even though within days in the same court, the same type of case another proper won with the exact same arguments. My judge didn't like and/or agree with CCP 98 arguement and said it didn't apply. He also said he didn't agree with Target Rocha either. I knew I lost when he made that statement. His demeanor towards me and towards their lawyer was so obvious it wasn't funny. His decision was made before I entered court didn't matter what I did. I was horrible sick at this time period and that was another stress I couldn't deal with as I had no health insurance. I decided I HAD to appeal and lawyer needed to help. Well the day is here WE WON our appeals today. I now have 3 wins against collections agencies! IT can be done! I have been absent about a year but still wanted to thank this kind, generous community for all your help and even phone calls... CALawyer and Seadragon you were both part of these WINS THANK YOU so much!
  46. 9 points
    After 2 long years of seemingly mountains of paperwork, the court reversed the judgment against me . As I said the whole time I would not pay Midland Funding a dime. All came down to the business records hearsay rule. The SC found the trial court erred in letting any Business Records be admitted. Without a witness, they claimed that an affiant from MCM could NOT attest to Midland Funding's business records. Everyone check the affadavit again!!!! The court ruled this was the error. Thank you to all who followed along on my wild and wacky ride!!!! Offered support and help!!!! And Thank you to whomever said that Benson was a death penalty case. The commissioner agreed!!!!!!! Can't wait to keep helping keep AZ free from bottom feeders!!!!!!!!
  47. 9 points
    I recently got a Dismissal without Prejudice filed by Capital One (CO) in North San Diego County. I beat them at their own game by following steps taken by other members on this board - specifically SeaDragon. This was a credit card suit whereby CO claimed I owed roughly $3000. CO hired a local attorney in San Diego - Legal Recovery Law Offices; I believe they handle all CO's lawsuit in SD. The Complaint did not have any contract or other exhibits attached and plead only Breach of Contract and Account Stated. Once I was served with the Complaint, the following defense strategy was used: 1. File an Answer ON TIME (within 30 days): You can get the answer form online at your local court. Take the time and Deny each and every allegation raised in the Complaint - "Defendant denies the allegations contained in Paragraphs 1-5 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged ......" . Specifically deny the Paragraph that refers to the written contract - "Defendant denies in Paragraphs 6-8 as there is not, nor has there been any agreement, written, oral or implied with the Plaintiff and Defendant. a. Make sure you read on this board all about affirmative defenses you can raise, i.e. failure to state a claim, court lacks subject matter jurisdiction - lack of standing, statute of limitations, statute of frauds, failure to request arbitration, invalid assignment, failure of consideration, FDCPA violations, and other equitable defenses, i.e. laches. 2. At your First scheduled hearing - REQUEST A JURY TRIAL! Most law firms will drop their cases shortly since costs handling a jury trial will exceed the debt owed. Don't make any offers to settle since it is too early in the game to quit. 3. If you are served with Interrogatories, Admissions, and requests for documents, do not panic. Make sure you respond and answer each interrogatory and deny all admissions. You can ignore producing any documents unless you had sent CO "dispute letters" or similar. If you do not have an answer to the interrogatory, state so with "I lack sufficient information and knowledge to answer this question". Do not admit to anything they ask you. 4. After answering P's Interrogatories - DRAFT YOUR OWN INTERROGATORIES, Admissions, and Production of Documents and serve on P - you can look on this board for examples. I basically used P's format and started with the Contract issues - offer, acceptance, consideration, breach, and damages. I got specific when it came to details of the debt - charges, payments, over limit fees, past due charges, etc.. Make sure you ask for dates on "missed payments" and "last payment made". You want to make sure you nail down specific dates for Statute of Limitations (4 years in CA) facts. b. Production of Documents - very important to request copies of credit application, card holder agreement, changes/modifications to interest charges, statements, and "all other relevant documents". 5. P's response to my interrogatories, etc.. was to send me CO's 2005 Card Holder Agreement and the last two years of statements AND a CCP 98 Declaration by Wandi Chamberlain - CO's legal rep in Lieu of Personal Testimony. In her Declaration she failed to lay the proper foundation/lacked personal knowledge/no authentication required by the Hearsay Exception for Business Records - she was not an employee of CO, only an agent of a subsidiary, did not state when the account was opened, agreement not signed, and other insufficient conclusions - totally bogus boilerplate P Declaration. They also included in their "packet" a CCP 1987 - Requesting Parties to Attend Trial and to cut-off anymore discovery. Of course, they requested that I attend Trial. 6. Now, you MUST send P your own CCP 1987 and request that Wandi Chamberlain appear on the Trial Date - make sure you save your proof of service. 7. By now you have your Trial Date. About 10 days before your trial, PERSONALLY SERVE SUBPOENA DUCES TECUM on Wandi Chamberlain at the bogus address given in P's CCP 98 declaration. Do not allow the Marshal to "sub-serve" anybody else - even if the CCP 98 declaration states that you can serve someone else instead of Wandi. Only name Wandi in your subpoena. The service will fail since Wandi will never travel from VA to appear in court. 8. Before or at your Trial Readiness Conference, file and serve your Motion in Limine to throughout Wandi's declaration, contract, and statements (all Exhibits attached to declaration) as Hearsay evidence. This forum, specifically SeaDragon, has sample Limine motions you can use. Once I served the Limine motion and awaited my trial date - CO caved and filed the Dismissal a few days before trial. CO cannot win any of these cases unless they can provide a "legal rep" capable of providing testimony as to your specific credit card account. All their evidence gets tossed as Hearsay since they haven't gone through the requirements of the Business Records Exception. Wandi's declaration is completely bogus and the fact she doesn't reside within 150 miles of the courthouse and subject to a subpoena, the courts will not allow the declaration and attached exhibits. File an Answer with Affirmative Defenses, Request Jury Trial, Respond and file your own Interrogatories-Admissions and Documents Request, File CCP 1987 Requesting P's main Witness to Attend Trial, and file your Motion in Limine and watch how fast CO dismisses your case. Thanks to all the knowledgeable members here - I hope my strategy will make you a winner against any Capital One lawsuits.
  48. 8 points
    I wanted to update everyone and thank everyone for their help . I received notice today that the JDB has had the case dismissed WITH prejudice. While it took forever and had me totally stressed, you guys were right, the JDB decided their best option was to walk away the safest way they could and that was an awesome result for me. THANK YOU ALL again and again!!!
  49. 8 points
    I won my appeal! It was a long process, but in the end justice was done and I won. Received the official decision today, posted in my appeal thread. Won for different reasons I thought I would, glad I made a comprehensive argument.
  50. 8 points
    As you all know, we started this journey a little over a year ago. http://www.creditinfocenter.com/community/topic/315129-equable-ascent-financial-in-cali/ and here http://www.creditinfocenter.com/community/topic/319053-1-day-before-trialagainst-equable/ We had our trial this past Feb 2013 and Judge set a continuance for this May. Unfortunately, we were able to knock out ALL their evidence and so we had to wait to see if EAF was going to fly out their affiant or not. So about a month ago they filed a Dismissal w/o Prejudice and like so their character they didn't send us an official dismissal. We went to the Court House and got an official copy. I want to Thank CALAWYER and SEADRAGON for their tremendous help, encouragement and undying support. I also want to thank others here ASTmedic, Anon Amos, Rivertime, RTE, pertyaspeso and all others I may have forgotten for their encouragement, and for thinking of us that Feb day. Not many knew that 1 week before the trial, I was in an accident which left me wheel-chaired bound and unable to be there for my spouse. So as you can all imagine what the week of Trial was like. I had to get off my pain meds and prep my spouse and role play. OBJECTIONS: Object to BILL OF SALE.doc Object to AFFIDAVIT OF SALE.doc Object to BUSINESS CARD AGREEMENT.doc OTHER RESEARCH: Evidence.doc Other Hearsay Exception.doc Personal knowledge - TRIAL PREP.doc Opening statements.doc Consumer Protection.pdf Contracts 1 of 3 - https://drive.google.com/#folders/0B0lfU9YL5kEVMU5iZjdvNmduVUk Contracts 2 of 3 - https://drive.google.com/#folders/0B0lfU9YL5kEVMU5iZjdvNmduVUk Contracts 3 of 3 - https://drive.google.com/#folders/0B0lfU9YL5kEVMU5iZjdvNmduVUk Let me know if you can't access any of the documents. Thank You Again...