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Showing content with the highest reputation on 08/20/2015 in Posts

  1. 4 points
    @Anthony81 appeal based on witness qualifications and sufficiency of evidence. I sent you back a pm. If anyone else would ever like to discuss CA appeal stuff, just pm me and I get instant notification via email.
  2. 3 points
    I FINALLY get to add my name to the list....Thanks so much to all for the help. Dismissed WITH PREJUDICE, CITI.
  3. 1 point
    my first job out of college was that of a process server - if you are going to be out of town for an extended period of time definitely keep an eye on eCourts. They will send a process server to your residence. However, if they show up 3 times and no one answers they are allowed to tape the summons to your door and follow up with additional mailings. Might make sense to retain an attorney who can accept service on your behalf and then file an answer.
  4. 1 point
    Actually that is a Notice to File the Bond, which is what you have to file first. Basically you are giving them 20 days to file the bond after serving the notice on them. If they don't file it by then, then you can motion to dismiss for failure to file the bond. I've had cases dismissed because the JDB didn't file the bond within the 20 days, so I always hold them to it.
  5. 1 point
    This is why I doubt they will appeal. If they do, the issue then gets into a normal court with normal rules that must follow previous rulings rather than the judge's whim. It is essentially a Trial De Novo. Would really suck for them to spend all of that money only to find that their issue never even comes up because you beat them on the head with the Bill of Sale issue before they get a chance to bring it up. Better for them to lick their wounds and concentrate on the 98 other cases that they got defaults on.
  6. 1 point
    I'm having trouble uploading, let's see if it's a go now!!!!!! Redacted Objection to Declaration.doc Redacted Trial Brief.docx
  7. 1 point
    I was sued by Portfolio Recovery Associates, LLC I answered a general denial last year in July(2014) once I was served at my home. I answered within the 30 days, went and filed it with the court and received a court date practically a year later to the date of my response. About 45 days before trial, I received a thick envelope UPS(during the year I didn't contact them at all, I didn't send any request for document or anything I DID NOTHING. ****** Back to the envelope. The contents were as followed: 1. Plaintiff's Trial Exhibit List Exhibit A- Citibank N.A./ Sears Card Agreement Exhibit B- Bill of Sale ("BOS")/ and corresponding electronically transferred data(*this page has a heading that says- EXHIBIT 1 ASSET SCHEDULE)/ Affidavit of Sale & Plaintiff's "Sale File" [redacted by Plaintiff's counsel] (*this sale file has no title it is 3 pages long and has your personal info on it such as an account number with only the last 4 digits showing, date account was opened the amount, and charge off date. Everything on this form is in an alphabetical list This is the first page and what they fill in,{I'm trying to be descriptive so you can see if you've received the exact same documents}) Exhibit C- Billing statements including charge off statement for Citibank N.A./Sears credit card Exhibit D- Letter sent from Plaintiff to Defendant(s) re Plaintiff's intent to commence legal action against Defendant* this was nothing but a generic letter stating that they planned on suing me * 2. Declaration in Lieu of Personal Testimony Pursuant to CCP 98 3. Plaintiff's Trial Witness List 4. Notice Requesting and Requiring Parties to Attend Trial [Cal. Code of Civ. Proc. 1987(-©] 5. Plaintiff's Trial Brief 6. Memorandum of Costs (Summary) 7. Proposed order for judgment 8. CCP 96 Like I said I received all of this 45 days before trial so I had just enough time to send them a CCP 96 also. They have to receive it 30 days prior to your trial. When I sent mine I DID NOT send a PROOF OF SERVICE FORM. Make sure you send one with the CCP 96 it's called a POS-030 if you're sending more than one item then also download the POS-030(D) this is a page to submit a list of items. I never received a response to my request for the CCP 96 so right before the trial I was instructed to send them a MEET AND CONFER letter. Make it as a general business letter/heading. My letter stated : Plaintiff cannot reserve the right to call additional witnesses, nor can it reserve its right to amend the list at the time of trial. CCP96 is plainly written and defendant will be objecting to any non-compliance of the statue. I did get a subpoena from the courthouse, when you get it you fill out the whole top portion #2 will be the last point where you fill in your info everything else is left blank, the clerk will then stamp it and sign it. Then you go on-line and find a process server. I paid 85 bucks for mine. I did everything by email. You DO NOT give them your stamped subpoena from the court you keep it. Once they (process servers) have completed their job they will mail the proof of service form to you. You take this form and staple it to the stamped subpoena then file it with the court. My person WAS served on the first attempt. BUT he DID NOT show up in court at all. Of course because he was served I did my trial brief and Defendant's Objection to Declaration.........., as though he was served and coming to court. Below is my Trial Brief and the Objection that I filed and sent to the Plaintiff
  8. 1 point
    @debtzapper I felt that I had them cornered because they brought the suit on me and with arbitration being an option in the agreement. Further it being compelled by the court to arbitrate. Also in a previous hearing I had mentioned in court how Midland files motions or judgments hoping to get a default judgement and they have had multiple class actions lawsuits for their robo signing of affidavits. Plus a article I printed from Midlland"s site where Midland put out a memo to all employee's that stated a case from the Michigan Court of Appeals that ruled that a statement is no longer enough proof to validate a debt. A cancelled check is considered valid proof as ownership for the debt. Midland of course had that stricken from the record and I knew they would but the judge did hear it and was none to happy with Midland.
  9. 1 point
    No, it's not done in person. Or I should say all the pre hearing stuff is not in person. Lots to do before the actual hearing. They are supposed to agree on a place, that could be in the OP S HOME TOWN, OR AT THE Jams office in Cali. There will be 30 days notice at least, and everything has to be in arbitrators hands before that. Jdb's would need to bring their live witness with them. Not to many cases get that far.
  10. 1 point
    @shellieh98 Right, so regardless of what they have on paper it's only a piece of paper until a witness from the original creditor authenticates it during live testimony. I guess I panicked and forgot about that. Thank you Shellieh!
  11. 1 point
    What Claims are subject to arbitration? All Claims relating to your account, a prior related account, or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims. A party who initiates a proceeding in court may elect arbitration with respect to any Claim advanced in that proceeding by any other party. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. If this were me, I would still push arbitration. The above is the very first paragraph of the arbitration section in the agreement. This says that ALL claims including the application and enforcibility of the arbitration provision itself are for an arbitrator to decide. I don't automatically give up my arb rights because they sued me in small claims. I don't make an argument against myself and mention anything about the small claims exception. IF they happen to bring it up, I will refer back to the very first paragraph again. I would argue that the question of small claims is a controversy over the enforcability of the arbitration provision of the agreement and the agreement specifically states such an enforcability question should be decided by a JAMS arbitrator. IF the JAMS arbitrator decided that the agreement precludes JAMS from hearing the case due to a small claims exception, then they can close their case and remand it back to the court to lift the stay. This, of course, will be after Cavalry has paid for a full JAMS hearing on the matter. Which they won't do. That's just how I would do it.
  12. 1 point
    Not sure why you thought they wouldn't reply to your RFD, they pretty much always reply to those. I don't mean that as a criticism, just as a reminder that you shouldn't take anything for granted/expect things to play out a particular way. As it is, the documents they sent you are pretty standard, I received the same objections and what sounds like the same stack of papers in my case. If you are getting close to trial, then you might want to move on from discovery and focus on trial prep. Yes, you want to send them a CCP 96 request, I'd recommend you do that as soon as you enter the window for requesting that: "The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial". Don't miss it. Also, you mentioned the name Maria Marin, who in other threads has been attached to CCP 98 declarations, have you received a CCP 98 from them?
  13. 1 point
    Check the docket. It should show if they filed it. But they almost never file it unless they get noticed to do it. They flagrantly disregard that statute.
  14. 1 point
    The reason using arbitration is very powerful against a JDB is because once an MTC is granted, they become stuck between a rock and a hard place. They do not want to pay the extremely high cost to arbitrate, but they also now have a court order to arbitrate. This instantly shifts all power to negotiate to the consumer/defendant because the JDB can not just simply dismiss the case on their own now due to the court order. Both parties must sign off on any dismissal and that puts you in a position of power over them. @grace0919 used this position of power perfectly to get what she needed out of them. As I said, this is the textbook case on how and why arbitration against a JDB is a very good option.
  15. 1 point
    I'd see if you can negotiate with the judgment creditor. I'd start at 10 cents on the dollar. It's obvious they haven't been successful attempting to collect. Make it clear that you will be paying 1 lump sum that will settle the judgment in full, with a satisfaction filed with the court and a copy to you. Pay with a cashiers check or wire. Do not give any back account information.