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Showing content with the highest reputation on 11/15/2021 in all areas

  1. I should add — I won a case in Wisconsin after the judge threw out the Cap 1 affidavit in support of their accounting because state law said the affiant had to have first-hand knowledge of the account and the accounting methods. The affiant was a “legal support specialist”. The judge in my case ruled, correctly, that there was no evidence a “legal support specialist” had the proper knowledge of the account. I filed an objection to the affidavit and the accompanying evidence and the judge agreed. I am now a VP in banking IT. I know all about the issues of different account data being spread throughout multiple databases. The vast majority of the time the banks get it right. But often they don’t. I have seen situations in more than one bank where a software error or a database error cost a bank dearly. There is a recent thread in which someone beat a $42,000 case in a California court by attacking the accounting. Look it up, read it, learn from it.
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  2. @the brat Don't worry about the affirmative defenses or second guess yourself there. Any affirmative defense you cannot prove will have the same effect as if you did not assert it in the first place. You should understand what they mean and how to argue them; but you have more important things to be concerned about. The judge will usually not even inquire about an affirmative defense until you have already lost the case; so if you can't prove one it will be moot anyway. Good Luck..
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  3. I had a tough time understanding this concept and I wanted to make an attempt to clear it up for the people that come after me since I see it a lot. Once it clicked for me it really changed how I need to fight my case: I know how it may seem. You send off a doc request and they send back paperwork and then your heart sinks thinking "oh god, they have all this evidence??!!!!" These cases from the JDB, and even some OC, are not made JUST on the docs they have. It's made or broken on the fact that they HAVE to get a witness to court to testify about the proffered docs. They could have every bit of evidence you could think of but those docs don't mean squat without a witness. They attempt to do this the cheap way by having an affidavit entered into evidence to attest to the validity of the paper docs they proffered. These docs have to prove that they now own the debt (chain of custody) and the amount claimed in the suit is able to be backed up with statements (not a partial record). The only way they can be entered into evidence is if someone can testify about them. This is from my brief and cites Cali codes, look into your states codes: You HAVE to challenge this affidavit by subpoenaing the affiant. Either they don't show and then the affidavit is hearsay or they show and you can then question them to prove they don't have FIRST HAND KNOWLEDGE of the documents. This is what breaks 90% of the JDB cases. Some cave sooner due to getting it through their thick skulls that this is going to cost them more than it's worth. This is also why some have been successful in winning with an OC. They just flat don't want to spend the money to win the case.Now even if the witness shows up that witness has to be able to testify with FIRST HAND KNOWLEDGE to the docs they are trying to use to prove they own the case (this applies to the bill of sale and EVERYTHING ELSE). So if the JDB is using docs from the OC they need a witness from the OC too to testify about the OC docs they're using. This has California case law but the same concept applies to all the other states. This has reference to a case that is used a lot: I hope this helps clear the muddy waters.May 2013 Edit: So I see this a lot and I though like this when I was new. "Should I point out poor service of the summons at trial?" or some other small detail. Really in the big picture most judges won't hammer a plaintiff over something so simple. Once you are to the point of standing there in front of the judge you better focus on something more substantial. "Phone calls and foot lockers? Please tell me that you have something more, Lieutenant. These two Marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill." Col. Jessep - A Few Good Men Don't try and pin your case on something so simple when there are MUCH larger holes to be knocked in their evidence. Your case isn't won because of how many times you can pick at them. It's won when you rip a huge hole in their case. Focus on things like accounting history for the account, poor chain of custody proof, and the CCP 98 witness. In the food chain of your case it goes like this: The CCP 98 witness not being avaiable for service or not showing at trial. Their crappy bill of sale and other docs that they dont have to prove they really bought your acct. Full accounting history for the acct from zero balance to closing balance. You need to hit those as hard as you can in that order. If you destroy the first the two below that are DOA. If they get the judge to allow the CCP 98 then focus on the BOS. You kill the BOS then the account history means little if they can't prove they bought your specific account. Now this isn't to say if something small and procedural rears its head you don't capitalize on it (just ask Rivertime about blind siding a plaintiff). Just so I'm crystal clear, have each of those things ready to go. Case law ready and everything for all those points of attack. The problem is once in a while people think "Oh I got this won since the CCP 98 witness wasn't avaiable" and then they don't have the other two ready in case a judge pulls some crap and let's the CCP 98 affidavit through even though they shouldn't. Then they stand there frozen cus they had all their eggs in that basket and now they're screwed. Don't makes this mistake!!!! A rule I work and live by is this: "Two is one, one is none!"
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  4. Today, I received a photocopy of the Request for Dismisal filed by Regent & Associates and the attorney representing Equable Ascent Financial with the Superior Court of California -- Orange County. After sending them a Demand for Bill of Particulars, they immediately knew they didn't have a case that would hold up in court against me. Time to celebrate... YES!
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  5. If using Private Contractual Arbitration in your affirmative defenses, to basically get it on the table.... What is the best or proper way to state it?
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  6. You need to state it as an available affirmative defense. If Arbitration is not an available affirmative defense in your jurisdiction, then as Nobk4me recommended, use "Lack of Jurisdiction". "Waiver" is another option for arbitration. Or "Contractual obligation to Arbitrate" The affirmative defense section is NOT the place to plead your defenses. It is the place to list the legal basis of your defense. Your local and state rules should specify the recognized affirmative defenses available. Here is a link to an example of an answer with affirmative defenses.
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