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Showing content with the highest reputation on 02/27/2017 in Posts

  1. Synchrony Bank = free JAMS. The best arbitration clause you can get. This means you have a winning case. All you need to do is have the court grant your Motion to Compel Arbitration.
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  2. They can withdrawal the ccp 98 if they want. I wouldn't bother fighting anything over the subpoena service. You would have a good argument that the witness shouldn't have been allowed to testify, or any evidence to be admitted for that matter, due to the fact that the ccp 96 response was late. I would think there is grounds for appeal since the ccp 96 response was late, but rather or not it's worth all the work and expense should be heavily weighed.
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  3. If this case were my mine, I would file a Notice of Appeal within the 30 day window following entry of the trial court judgment. Instructions for filing an Appeal in a Civil Limited case are here: http://www.courts.ca.gov/documents/app101info.pdf Its disappointing, although not a complete surprise that Beekeeper's trial court was unfamiliar with the relevance of Sierra v. Hale or Midland v. Romero (even though they should be familiar with both). But the Appellate Panel overseeing the trial court's decisions will certainly need to know and consider both decisions carefully. That is what the Appellate Panel is there for. The panel may find Sierra v. Hale instructive as to whether a jdb's trial witness can properly authenticate a third party's documents when the jdb attempts to enter them into evidence over a defendant's hearsay objection. Below shows how the Orange County Appellate Division followed the reasoning in Sierra in reaching their decision in Midland v Romero: "Defendant also made a hearsay objection to Smith’s declaration, which contained documentation purportedly indicating Defendant’s indebtedness and Plaintiff’s ownership of the account as the assignee." ... "Defendant relies on Sierra Managed Asset Plan, LLC v. Hale (2015) 240 Cal.App.4th Supp. 1 (Sierra). In Sierra, the plaintiff was the assignee of an unpaid credit card account originating from Citibank, N.A. (Citibank) (Id. at p. 3.) Plaintiff filed a section 98 declaration of Marc Roberts. (Id. at p. 4.) The declaration attached exhibits showing assignments of the account, the account agreement, and account statements reflecting the unpaid balance due. (Ibid.) Roberts was personally present at trial and was cross-examined by the defendant. (Ibid.) The trial court, over defendant’s objections based on lack of personal knowledge and hearsay, received the declaration and exhibits. (Ibid.) None of the documents attached to the declaration were created by plaintiff, and Roberts was not the authorized custodian of the Citibank documents. (Id. at p. 8.) Roberts stated in the declaration that he had never worked for Citibank and “did not have personal knowledge about the account or charges in question, other than the information he knew from acquiring the documents from Citibank.” (Id. at p. 9.) The defendant testified and “acknowledged the account, but denied any knowledge of the purchases or the balance due on the account.” (Id. at p. 4.) The Sierra court held Roberts’s declaration and testimony did not meet the “necessary foundation,” and that “at best,” his declaration and testimony established that plaintiff as assignee received records originating from Citibank. (Id., at p. 9) That court concluded the records were inadmissible hearsay and the result was prejudicial. (Id. at pp. 9-10.) "... "We find Sierra instructive and respectfully disagree with Unifund’s holding concerning the business records exception to hearsay." "Here, Smith had personal knowledge that the documents were part of Plaintiff’s business records, but did not satisfactorily establish those documents were a part of the prior creditor’s business records under Evidence Code section 1271. That is, there was no evidence regarding the mode of preparation or other information indicating trustworthiness. Therefore, the trial court abused its discretion by overruling Defendant’s objections to Plaintiff’s evidence." It's also worth noting here that, prior to Sierra v. Hale or Midland v. Romero, the San Diego Appellate Division employed very similar reasoning in an unpublished ruling in favor of CIC member easy619. The Appellate Division there decided that the judgment entered by the trial court (against easy619) was not supported by sufficient evidence and it was unanimously reversed. In that unpublished opinion, the Appellate Division found that: The jdb's sole witness at trial could not properly authenticate Bank statements as the witness was not the custodian of records, nor did the witness testify that they were familiar with the preparation of the records. Rather the witness testified that they were an employee of the parent company of the jdb. Further: The jdb's witness did not testify that the parent company of the jdb was in any way involved in the preparation of the records, and there was nothing in the record to reflect any connection between the parent company and the jdb. Thus: Under these circumstances, the trial court erroneously applied the Evidence Code section 1271 business records exception and improperly admitted the records submitted by the jdb. This San Diego Appellate Division opinion was not published, but again, their reasoning was very similar to that of the later court in Sierra.
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  4. Thanks so much calawyer! I'm proud of myself. I owe it all to you guys. I've been on cloud nine ever since. It's the weekend, time to celebrate!
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  5. I am so happy and so proud of you. Most lawyers I know are terrified the first time they go to court. For some, it never passes. But to educate yourself and have the courage to stand up and face a professional litigant represented by a lawyer in court is just such a feather in your cap. I am so glad that you reaped the rewards today. I hope you have a most excellent weekend and, somehow, I think you will. Don't forget that you are entitled to recover your costs because you are the prevailing party. Even if this only amounts to your filing fee, it will look better in your pocket than theirs. Congrats.
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  6. Thanks! And thanks to you too sadinca for your help on this board as well! I've been all over these forums and I've gotten support and help from all of you guys whether you know it or not. For all those who say it can't be done, you guys know better! And now I do too!
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  7. You negotiated a big reduction in the amount claimed. You should be pleased that all of your efforts have been rewarded.
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  8. Only a government entity can initiate criminal charges.
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