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Showing content with the highest reputation on 08/09/2013 in all areas

  1. I won!!! I won! I won!!! The judge dismissed my case with prejudice while I was on the stand! YAY!!! I could not have done this without the good people here. A heartfelt thank you to Calawyer, you are amazing beyond words! Thanks also going out to HotWheels, Unemployednomore, HomelessInCalifornia, ASTMedic, anyone who replied to my posts, and anyone whose posts I read! Thank you!!!
    2 points
  2. Looks like the OP has done a admirable job situating themselves in a advantageous position with good leverage. This far into the game the OP should have a good feel for their likelihood for success. Opposing seems to be giving a glowing endorsement of the OP's favorable odds. At this point I would likely want everything including the kitchen sink as settlement. Settlement items that cross my mind: any judgment vacated; written stip of no liability (preferably in the court record); no NDA or extra $$$$ for NDA as separate settlement line item; my trial/appeal costs (s/b non-taxable as an itemized settlement amount FAIK); and ca$h. Some would prefer to attempt to get their name in lights with some shiny new case law that is "helping out their fellow man". Depending on the circumstances and the willingness to fight I believe it is possible to have both a win and $$ but it is likely to be a bit more work starting with winning an appeal opinion (one that is unlikely to be successfully appealed by opposing), getting a reverse and remand back to the trial court, documenting and proving up the unclean hands (or worse) of opposing/counsel, and (worse case) having to continue to fight and kick butt in the trial court. All fine and dandy, especially if your personal motto is "the only easy day was yesterday". Assuming at least some interest in pursuing a favorable appeal opinion, for me the devil is in the details of the settlement and the personal situation and attitude of the person negotiating it. Best advice I would have is just common sense: don't sell yourself short in any negotiation. Additionally, if the desire for an opportunity to make some case law is important, as a way of giving back and/or nice win trophy, don't sell that goal short either as it is not easy to situate yourself near the goal-line for a possible published opinion from an appeal tribunal in a debt collection case. Oh, and if it isn't reduced to writing it probably did not happen. My favorite scenarios are Heads I Win, Tails I Win. If similarly situated, ideally I would be fortunate enough to really want to prevail on appeal and be willing to do whatever it takes on any remand but also I would be more than happy to permit opposing to make me an "offer I can't refuse". Best of success to the OP.
    1 point
  3. Few things feel as good as beating these bottom feeders, huh? Enjoy your win, you totally earned it! :)
    1 point
  4. I'd still do the BOP. The bill of particulars furnished by the plaintiff is treated as an "amplification" of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, Plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. (See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.)
    1 point
  5. First, read my signature... Second, pay off the loan and your CCs. You may see a drop in your "sucker score" because of less "utilization",but your FICO Mortgage score should rise....
    1 point
  6. I've received a couple of inquiries about Opening Statements. As I mentioned earlier, the one I prepared was not well received. However, the judge did give me some advice about opening statements, and I know examples are hard to find. So, I'm sharing a reply I gave to the most recent inquiry: "I received a reprimand, however mild, for my opening statement. The judge did not care for mine at all. I would be doing you a disservice were I to post it or share it. However, the judge did give me some advice on what an opening statement should be. An opening statement is a general outline of the case and the deficiencies thereof. it is a broad outline of what you feel the plaintiff's case to be and how you refute it. For example, a common premise of an opening statement might be: Your Honor, if it please the court, I would first ask the court to note that I am appearing in pro per and that I am not an attorney admitted to the bar nor have I studied law. I ask the court's indulgence in advance. I first heard of this matter by way of Summons and Complaint served on me on ____ __, 201_. It is clearly apparent and shall be readily demonstrated that the evidence presented by the plaintiff is hearsay, lacks foundation, lacks authentication, lacks personal knowledge, and is inadmissible. It is further evident that plaintiff has in no credible way even demonstrated that plaintiff has standing to sue. Plaintiff attempts to enter into evidence documents created by a third party whose procedures and methods for ensuring accuracy are unknown to any witness plaintiff would attempt to present. Plaintiff is a junk debt buyer and has purchased the alleged debt. No history of business or relationship exists between Defendant and Plaintiff any time prior to commencement of this action. Plaintiff has attempted to circumvent the requirements of CCP 98 in order to shuttle into evidence documentation that is unsubstantiated and presents a case of hearsay based on hearsay. During impeachment, it will be shown to the court that plaintiff's witnesses are incompetent and unqualified. Should it be necessary, defense will demonstrate the many inaccuracies and discrepancies and misrepresentations inherent to all documents which plaintiff attempts to submit into evidence. Defendant has already denied the Complaint and requests that the Court direct plaintiff to first prove that it has standing to sue as that fact is in question and everything thereafter becomes moot. Thank you, Your Honor. That's a rough, and I'm not saying it applies to your case, as I don't know your case. But you get the idea. :-)"
    1 point
  7. Well, you just never know how a court will rule. There's an adage in the law, something like "a bad settlement is better than a good lawsuit." If the terms are favorable, I would take the settlement and stay out of court.
    1 point
  8. No. Under CCP 1032 (a) (4), a "prevailing party" is a party in whose favor a dismissal is entered. Under 1032 (, a "prevailing party is entitled as a matter of right to recover costs in any action or proceeding." You are a party in whose favor a dismissal has been entered. You are entitled to costs.
    1 point
  9. Generally, speaking a MSJ is telling the trier of fact, no need to have a trial or hearing, because based on the writings(motion) the otherside cannot win. I am not sure why you would want a decision made without a hearing? The whold idea of using arbitration is the cost of the arbtration and arbitrators time at the hearing. If you say hey you can do this part via Motion and no hearing, it will make it less expensive for the otherside who is footing the bill. Finally, if you can defeat their claim via a law or statute, why not let them present their case and squash them at a hearing. All the while them paying the arbitrator $400 or more per hour to do so.....
    1 point
  10. Best thing to remember is that the opening statement shouldn't argue the case. It's a statement of what you'll prove - or what the plaintiff can't prove. Should be short and to-the-point. No rambling about case law and whatever else you might have put into a trial brief. The way I created my opening statement was to list each cause of action brought by the plaintiff and say, very simply, why the plaintiff could not prevail. Here it is (obviously you can't parrot this, but it might help you make your own!): As stated in my general denial, Plaintiff lacks standing to sue upon the alleged account. Plaintiff has based its case upon the existence of a contract, yet Plaintiff will not be able to produce a valid or admissible contract during trial. Plaintiff will not be able to succeed on its breach of contract claim. Plaintiff also alleges an account stated claim yet Plaintiff will not be able to produce evidence regarding any use or existence of any alleged account for which the defendant bears responsibility. In addition, Plaintiff can offer no accurate, valid, or admissible so-called final or closing statement on the alleged account. Therefore, Plaintiff's claims regarding account stated will fail. Plaintiff offers inadmissible evidence that lacks foundation and credibility, and cannot be authenticated by Plaintiff, its witnesses, or its declarant. In addition, Plaintiff's potential witnesses are incompetent and unqualified to testify upon any relevant details regarding the alleged account. Plaintiff's evidence will NOT show Plaintiff's legal ownership or right to collect on the alleged account. Plaintiff's entire argument rests upon the existence of a contract, which it cannot provide. Lastly, I am not an attorney, Your Honor, nor have I attended law school. I therefore request the Court's patience in advance. Thank you.
    1 point
  11. Looks like this case is on the brink of being settled. M/F is going to pay me a good sum of money and dismiss with pred to agree to a mutual walk away. Its not over yet but its looking good so far. We are just finalizing the agreement. The Arbitration road was long and stressful at times but extremly effective! It didnt go as smoothly as some others experienced but in the end it worked out better than i thought it would. Thank you to every single person who helped out!! Linda7, Mat, S F just to name a few. I couldnt have done this without you! All the late night emails and working on this through holidays. I must of drove you guys nuts with my paranoid emails anytime something didnt go as planned. Some of the CIC members even helped me get my court motions completed through the Thanksgiving holiday while they had family and friends over. All this for someone they didnt even know! I had a lot of people helping me out with this asking nothing in return for themselves. This is something that I will never forget. Thank you!! I will continue to keep everyone updated until this is over.
    1 point
  12. Congrats to you. You stood up to a lawyer. And you won. For any future lurkers out there that just happen to read this thread, please review the following rule of court on continuances: http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332 As set forth in that rule, a party MUST make a motion to continue in writing. It MUST be supported by declaration showing good cause. That means illness, death, etc of a witness. You did well today. Again, congrats! PS. You are the prevailing party and are entitled to your costs of suit. THat means the fee you paid to answer the complaint at least. Here is the form: http://www.courts.ca.gov/documents/mc010.pdf
    1 point
  13. Medic you need help. I think you are suffering from lackoflawsuititis personality disorder (LPD) While it isn't obvious from your behavior I think you want to beat Junkdebtbuyers like a big school yard bully. shellieh98 will be in soon to help you she is the creditinfocenter RN and junkdebtbuyer hater
    1 point
  14. My question is will a judge be willing to grant the MIL before a MTC was attempted? I agree with your tactics but just wonder what would be seen as appropriate by a judge.
    1 point
  15. REVISED: Not certain if I posted this already or not, but I broke down the codes cited and wrote notes for each so I would know their significance. I had this in the authorities section of my trial binder. I didn't memorize it entirely. I did memorize particularly key authorities and kept this as a cheat sheet for my reference if needed. AUTHORITIES (CASES & CODES & ACTS) CITED.docx
    1 point
  16. http://www.supremecourt.ohio.gov/LegalResources/Rules/evidence/evidence.pdf Start here, this is what you need to read through. Compare what they gave you to what the rules require. Any deficiency is what you should concentrate on. Sometimes they allow stuff into evidence that they really shouldn't, it's up to the judge.
    1 point
  17. Right now, your biggest enemy may be the afidavit in lieu of testimony. Here is the governing statute in California: CCP section 98. A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies: (a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial. ( The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition. The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit. Often, the address given is the plaintiff's law firm address. The witness is not really available for service and does not intend to testify. You can flush this out by trying to serve a subpoena on the witness. If you want to do this, you should do so immedaitely. Here is a form: Subpoena: http://www.courtinfo.ca.gov/forms/fillable/subp001.pdf Fill it out. Your attorney friend can sign it for you. If he won't, bring it to the court and a clerk will sign it. Then give it to a process server and have the witness served. If you don't serve them with a subpoena, the affidavit may be used at trial. THis doesn't mean that you can't object, however. It may be that the witness does not have personal knowledge of anything said in the affidavit. You can object on those grounds and on hearsay grounds. As the statute itself says, ""To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case" Good luck.
    1 point
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