RyanEX

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Posts posted by RyanEX


  1. 1 hour ago, Goody_Ouchless said:

    Don't waste your time. Using and paying the card meant that you agreed everything was OK. Those Micky Mouse defenses get laughed out of court.

     

    I believe Yolo is simply looking to figure out what would work best for their trial brief, not what the winning argument will be in court. Serving/filing a trial brief & written objection are part of the strategy in CA; when served ahead of time, I've noticed plaintiffs are more likely to dismiss before the trial date, which is of course preferable to dragging things out until the morning of trial/showing up to the courthouse, etc. Not a bad idea to make the brief as solid as possible.

    • Like 1

  2. 1 hour ago, Ddjcplus4 said:

    I read they are both - JDB and lawyer’s collecting on behalf of OC’s. In my case they say they are collecting for capital one. Thanks!

    What entities are named in the intent-to-sue letter? Hunt & Henriques is one. Capitol One is mentioned because they held the original acct. Is any other entity named? Hunt & Henriques often represents JDBs like Midland Funding & Portfolio.


  3. 6 hours ago, Casper said:

    BK = bankruptcy, which is a last resort, but is sometimes a necessary evil, especially when dealing with Original Creditors who can always prove their case.

     

    make sure you have the right court website, which is usually by county for for debt cases.

     

    The bar they have to clear varies from state to state.

    So long as a defendant follows the proper steps they can use CA code to require an original creditor to clear the same bar as a junk debt buyer: provide a witness, who possesses first-hand knowledge of  record keeping/creation practices of the account, to authenticate plaintiff's evidence via live testimony. JDB employees don't measure up to that standard. An OC employee could measure up to that standard, so long as they worked in the proper department. OC lawsuits make up a minority of CA debt collection lawsuits posted here, but on this board I have yet to see an OC send a live witness to a CA trial. CA members have have forced dismissals in those cases too. We are lucky to have those codes in place.

    I don't think Ddjcplus4 has said if they are being sued by an OC or a JDB... @Ddjcplus4 ?


  4. 35 minutes ago, Ddjcplus4 said:
     
     

    Wow! That’s not good! BK? Please explain @Casper. Thanks for answering! They haven’t tried to serve me. It’s been about 3weeks since the @letter of intent .” 
    do you think I should wait to respond? Just unsure how to respond. 

     

    I wouldn't listen to that. BK is a pretty extreme option when you live in a state that has great laws for a consumer in this type of case. CA residents have a great track record against these lawsuits.

    They'll most likely file suit, keep an eye on your civil court's website. In the meantime you can determine if arbitration is an option - if it is, great, because that seems to be the quickest way to deal with it. If not, that's fine too - the CA Civil Code stills favors you, but the trial route takes longer/is more involved.

     

     

    • Thanks 1

  5. 21 hours ago, PleaseHelpConfused said:

    Hello all, I have my CMC coming up, and I’m wondering if there is any advice any of you can give me, or is there anything I should bring. 
    Thanks in advance 🙏🏼 

    Pasting this from another thread asking close to same question:)

    Case management conferences (CMC) are pretty simple.; usually they last 5 minutes or so. Judge just wants to make sure things are going okay (no discovery problems, etc), then potentially set a trial date if both parties intend to go all the way to trial. Judge may ask you if that's what you want. Know what dates over the next 6 months or year that you cannot attend trial, so that the judge doesn't schedule on those days.

    Case management conferences are NOT the time to argue your case, only to discuss the issues above.

    There is a case management statement (here: CM-110) that you need to fill out, file & serve to plaintiff ahead of the CMC. It's not a big deal and I think most judges don't even read them, but good to complete anyway.

    Dress professionally to the CMC - that always impresses the judges.


  6. BOPs aren't appropriate for Account Stated cases. But there's no rule that you can't ask, and it makes them work. So that's fine, you don't need to meet & confer over it :)

    Pretty standard documents that they sent you. You'll have a chance to attack those items later, closer to trial.

    What do you intend to ask for in discovery? You can if you want, but most people don't - the thought being: why ask them to look for evidence that is only useful in helping them with their case? Your aim is simply to disqualify what they intend to use as evidence, via the CA evidence rules. The less they come up with, the less you need to address.

    Case management conferences (CMC) are pretty simple.; usually they last 5 minutes or so. Judge just wants to make sure things are going okay (no discovery problems, etc), then potentially set a trial date if both parties intend to go all the way to trial. Judge may ask you if that's what you want. Know what dates over the next 6 months or year that you cannot attend trial, so that the judge doesn't schedule on those days.

    Case management conferences are NOT the time to argue your case, only to discuss the issues above.

    There is a case management statement (here: CM-110) that you need to fill out, file & serve to plaintiff ahead of the CMC. It's not a big deal and I think most judges don't even read them, but good to complete anyway.

    Dress professionally to the CMC - that always impresses the judges.


  7. 3 hours ago, YOLO YOLO said:
     
     

    What about if the affidavit is signed by somebody claimed to be a Document Record Controller by the OC.

    Should I file a Subpoena for the employment record and resume of the Affiant to find any discrepancies on the resume?

    Should I try to do that? How do I file such a subpoena?

    I dont want to base all my hope/defense on the affiant not showing up at trial to authenticate the debt.

    Is this a CCP 98 affiant?


  8. Looks like Calvary now owns the Citibank debt. If they sent a letter stating intent to sue, then it's very likely they will. Don't panic, you seem to already have an idea about combating it with arbitration - which has worked out very well for our members. See this active thread for a CA member compelling arbitration: https://www.creditinfocenter.com/community/topic/331706-california-sued-by-calvary-court-vs-arbitration/

    The Mercantile Adjustments Bureau debt: do you know if they now own the debt? Or does BofA still own it and MAB is a collection agency representing BofA?

    Welcome to the board.

    • Thanks 1

  9. FYI: you may be mixing up two different witness types - a witness that would be named in a CCP 96 reponse vs. a witness that signs a CCP 98 statement. They are not necessarily the same.

    CCP 96 request is fairly simple process. You'll fill out the DISC-015 along with a proof of service & have them both mailed to plaintiff. Be sure to get proof of delivery (Delivery Confirmation, Certified Mail, etc). You don't file CCP 96 -  just keep copies of it, the POS, and a print-out confirming delivery.

    They have to serve (mail) their response within 20 days of the date you mail the CCP 96 request; so it could potentially take as long as 25 days for you to get the response (assuming they respond). Any witness they may name in their CCP 96 response does not have to be subpoenaed, they are saying they plan on bringing that person; but they do have to supply a name & address for that person - it cannot be a "person most knowledgeable"...CA code & the CCP 96 request both specify that it must be a name & address - you can object if they list a "PMK".

    The witness that will need to be subpoenaed would be the CCP 98 witness (if they use one). That is separate from the CCP 96 request. They have to serve the CCP 98 declaration/affidavit at least 30 days before trial, you can subpoena that witness beginning 20 days before trial. CCP 98 requires that witness be available within 150 miles of your court, so you won't need to subpoena in SDakota.

    • Like 1

  10. Check the online case file, it should identify what form of service they are claiming. It may have been "Substitute Service" which is common. If that's the case you'll have 40 days to respond starting the date they mailed the copy that you received; the packet should have contained a Proof of Service indicating what day they mailed it. Important to confirm both the service type and date.

    You'll have two good options by which to fight this in CA: arbitration or trial. Arbitration seems to be the quicker/less demanding route; you'll want to look for a card agreement (you can look for generic agreements online) and review the arbitration clause if it has one.


  11. 1 hour ago, kcoble24 said:

    Thanks for your response Love Is Power, With that information I feel like I am ready to fight this and see what happens. My wife has tried contacting Lawyers and they say that the amount is too small for their services. I will continue to do my research when it comes to fighting this. My question is this: From my research Arbitration is the best play here correct? If so, do i fill out a motion for Arbitration as my response to the lawsuit?

     

    Thanks!

    Both arbitration and the trial route are good options in CA, as the CA code is favorable to consumers going the trial route. But the trial route (which is what I did in my lone case) is longer, and from what I've gathered, substantially more involved than arbitration. I don't know much about arbitration (one of these days I'll get to reading some of those threads), but you'll be in good hands with some of the other members who are & if for some reason that doesn't work out, you'll still be in good shape with the trial route too.


  12. 1 hour ago, LoveIsPower said:

    @lolazu -- A few weeks ago I sent you (via PM) a few templates for MIL's to get you started ( @RyanEX is right -- it is best to call them "Objections" now a days in most counties -- you have to check the Riverside County Local Rules, just in case).  Please work on those and if you need help reviewing them, post your questions so we can help you iron them out.  

    Please do not wait until the last minute.  I know the whole thing can seem overwhelming and scary, but putting things off and missing deadlines can truly hurt your case.

    What did they the clerk tell you about deadlines for Objections/MILs?  By how many days did you miss the deadline?

    One thing about the bold, even if the court has a deadline for a filing like this, a person absolutely still has the right to make objections verbally in court. Getting to know the objections by writing them up is helpful. Just as importantly, a written Objection served to plaintiff ahead of trial has the effect of communicating that a person does know how to beat them in court... and this is when they typically decide that they'll need to dismiss, IMO, (they don't like losing in court, they'd rather let it go and move on to lower hanging fruit).

    • Like 1

  13. I think that CCP 96 and CCP 98 deadlines apply to original court dates, not continued dates. From what I've seen, these JDBs rarely come up with anything new when these continuances are granted, they just use the time to try to get a settlement. If that's the case here, I would tell them to pound sand.

    Prep an Objection (instead of calling it a Motion in Limine) to their alleged evidence. File it and serve it to them ahead of the continued date.

    For future reference: you could have objected to their request for continuance. Trial dates are firm, and if they needed a continuance then CA code says they needed a serious reason to do so (plaintiff or plaintiff's lawyer became gravely ill just before the trial date, etc). And code says they should motion for it ahead of time, even just a day or two, not while standing there in court realizing their pants are down; their lawyer being unprepared/under-informed is not an excuse. But if you're not armed with the right code you can't object.

    Rule 3.1332. Motion or application for continuance of trial

     

    Quote

     

    (a) Trial dates are firm

    To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.

    (Subd (a) repealed and adopted effective January 1, 2004; amended effective January 1, 1995.)

    (b) Motion or application

    A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.

    (Subd (b) amended effective January 1, 2007; previously amended effective January 1, 1995.)

    (c) Grounds for continuance ...

     

     

    • Like 1

  14. Hi PleaseHelpConfused,

    We understand your fear of this situation - we have all been through it. You'll find a lot of help here. I noticed you started this thread on Dec 27 - sometimes it takes awhile for us to reply but please don't be afraid to bump your thread if you don't get a response within a few days... sometimes we overlook new posts.

    Let's get to some of your questions:

    Quote

    I did also search a few of these boards that had great information on it however I don’t understand most of it, I did see that it looks like I should file a general denial form, but also it says that’s only if I’m being sued for $1000 or less… So I’m confused as to whether I should fill out that form.

    The General Denial is the most commonly used form. To use it one of the following two options must apply:

    1. The complaint is not verified; or

    2. The complaint is verified and the case is a limited civil case (the amount in controversy is $25,000 or less), BUT NOT if the complaint involves a claim for more than $1,000 that has been assigned to a third party for collection.

    The exception you are worried about is in option #2 (that the amount needs to less than $1,000) - but that exception also requires that the complaint be Verified. Option #1 states that you can use the General Denial if the complaint is not Verified. Most of these complaints are actually not verified... so let's confirm this for you. A verified complaint will include a page where the Plaintiff or attorney states (more or less) that "the facts set forth in the complaint are true". Do you have such a page? If no, then it is not verified and you can use the General Denial under Option #1. *Please note that there is often a page that has a verification of VENUE - that is not the one we are talking about.

    Quote

    It looks like the case was open on December 16 of this year but I was served on December 21 of this year so I’m not sure if the calendar days starts from December 16 or from the 21st.

    Your timeline to respond starts on the date you were served: Dec 21st. Since you were personally served, you get 30 calendar days to respond which is Jan 20th. There is a specific process for filing your answer at your courthouse & serving a copy of that answer to the plaintiff. Let us know once you have confirmed the question of verification and we'll guide you through that.

    Welcome to the board :)


  15. Not sure if you can motion to compel arbitration this late in the game. What else has happened in your case?

    - Did they send you discovery requests (Admissions, Interrogatories, Doc Requests)? And did you answer?

    - Did you serve them a CCP 96 request for a witness & evidence list?

    - Did they send you a CCP 98 declaration/affidavit in lieu of testimony?

    Don't think the short-term disability will impact what they do. In their minds, should they prevail (not saying they would), they would get the judgment and wait til the situation changes and then try to collect.