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Everything posted by RyanEX

  1. You won't be able to request a dismissal for that. What date is your trial? What other steps have you taken (making a CCP 96 request of them, etc)? Does Hunt Henriques represent Cap1, or do they represent someone bought the account?
  2. I believe the only item you're likely able to claim is the filing fee. Costs for mailing items won't be considered. Those 3 entries refer to the plaintiff's request to dismiss, but not generation of the notice of dismissal; here is how it looks on my old case file: "Notice of Dismissal SD generated"
  3. If your trial date is in November, then your window to send a CCP 96 request is coming up. Please don't miss that, it's important to your defense. A few CA members have been missing that lately and it makes it harder to prepare/help.
  4. Check these out, are they same? ADMISSIONS 1. Admit the genuineness of the docs attached, monthly statements for OC C/C with the account # XXXX 2. You applied for and opened a CC account with OC. 3. A CC was issued to you by OC with the account # XXXX. 4. You used the CC and made charges and made payments to the OC. 5. Monthly billing statements attached were mailed to you at (my address) indicating monthly debits, credit and payments made on the account. 6. You were mailed and received a cardholder agreements for this OC. 7. The date of last payment or transaction occurred (lists date) on the OC. 8. On (specific date after date below) you were indebted to OC the sum of (lists amt) on an account stated for charges to your OC. 9. On (specific date before date above) you were indebted to Plaintiff the sum of (lists amt) on an account stated for charges to the account. INTERROGATORIES 1. State your name, any other names by which you have been known, and your address. 2. State the date and place of your birth. 3. State, as of the the time of the INCIDENT, your driver's license #, the state of issuance, the exp date and any restrictions. 4. State each residence ADDRESS for the last five years and the dates you lived at each ADDRESS. 5. State the name, ADDRESS, and telephone # of each employer you have had over the past five years and dates you worked for each. 6. Identify all documents that are part of the agreement and for each state the name, ADDRESS, and tele # of the person who has each DOCUMENT. 7. state each part of the agreement not in writing, the name, address, and telephone # of each person agreeing to that provision and the date that part of the agreement was made. 8. Identify all documents that evidence each part of the agreement not in writing and for each state the name address and telephone # of the person who has each document. 9. Identify each agreement excused and state why performance was excused. 10. Identify each agreement terminated by mutual agreement and state why it was terminated, including dates. 10. Identify each unenforceable agreement and state the facts upon which your answer is based. SPECIAL INTERROGATORIES 1. (Hereinafter, "request" refers to and means "a request for the admission of a fact which is made by plaintiff in Set One of Plaintiff's Request for Admissions, dated (date prepared) and served within) For each of your responses that is not an unqualified admission, please state all facts upon which you base that response, identifying that response by reference to the number of the request to which it is made. 2. For each of your responses that is not an unqualified admission, please state the name, address and telephone number of all persons who have knowledge of the fats supporting your response, identifying that response by reference to the number of the request to which it is made. 3. For each of your responses that is not an unqualified admission, please identify all documents which support your response, identifying that response by reference to the number of the request to which it is made.
  5. We have some samples of answering Cavalry discovery request around here. What firm is representing them? (Mandarich, etc)
  6. You're not sunk. CCP 96 requests are an important weapon & not taking advantage of it makes your job harder, but you can still employ all the other tools (trial brief, MIL/Objection, subpoena the CCP 98 witness, etc). Another member made the same mistake recently & won their case (via dismissal prior to trial): https://www.creditinfocenter.com/community/topic/330259-calvary-spv-i-in-california-help/page/2/#comments. Try PMing @jcman and see how they handled it. Not utilizing CCP 96 means that you won't have a specific evidence and witness list ahead of time, which would have made writing up your trial brief and MIL/objection much easier. Now you'll have to be a bit more general when you write those up. The good thing is that all these JDBs tend to use the same documents (bills of sale, account statements, affidavits, etc) so you will have some idea of what to address. Start with any items they have sent you.
  7. You won't file it with the court. Yes, definitely use a proof of service & make copies of it and the CCP 96 request for your records. And mail it with delivery confirmation/certified mail. Take care to mail it within the proper time frame, between 30 to 45 calendar days from trial.
  8. Not unusual. I didn't her from them at all until the end when they sent me discovery requests at the deadline (about 65 days before trial).
  9. You can send it, but since you are under 30 days to trial, they do not have to respond. It's a long shot and I doubt they give you a break, but you never know. Did they send you a CCP 98?
  10. I would send a CCP 96 request anyway and have them make an official witnesses & evidence response to that request. You can send a CCP 96 when you are between 30-45 calendar days out from trial. Form here: DISC-015, should be served with a proof of service and via certified mail/delivery confirmation. Sometimes they give bogus addresses, sometimes not. I was given a legit address in San Diego for mine.
  11. I see a few missteps in the UNIFUND CCR LLC v. DEAR case. 1) the defendant admitted to certain things (that it was his acct, that he made charges to it, never contested any charges)... I wouldn't have admitted to any of that. 2) he didn't subpoena the CCP 98 witness. CCP 98 clearly states that a declaration is admissible if: You have a right to cross-examine a live witness. But you give that up if you don't attempt to subpoena the witness. I'll have to read UNIFUND CCR LLC v. DEAR more closely, but there are cases that counter the idea that a JDB employee can authenticate OC records ( MacLean v. City and County of San Francisco , People v. Khaled , Cooley v. The Superior Court of Los Angeles County , Taggart v. Super Seer Corporation ). Did they send you an evidence & witness list on their own or did you send them a CCP 96 request first? And by "friends check(ed) out the place for me", what does that mean? Did they confirm the actual person works there?
  12. What's your trial schedule like? How much time do you have?
  13. Based on a web search it appears Gatesstone and NCI are debt collection agencies that worked for AMEX. How much time do you have to answer their discovery request? They would have included a proof of service with the requests, indicating when they placed it in the mail - you have 35 days from that day to place your response in the mail.
  14. Only if OC's are now more likely to produce a witness. JDBs, in CA, have it just as hard now as they did then.. CA code has not changed - we can still get evidence tossed if a witness is not produced. I'll need to search for more recent threads when I have some time.
  15. I don't think facing an OC is quite as dire a situation as described above. In terms of what they can produce, an OC does have an advantage over a junk debt buyer in that if they wanted to, they could produce a witness to attest to the records/documents they would want to submit as evidence. The operative word there is "IF". There have been CA members who have fought an OC and won because the OC was not willing to produce a live witness. If they are unwilling to produce a live witness at trial, then they face the same obstacles that a JDB does - you can object to documents, affidavits & bills of sale, etc. because under CA code those items don't stand on their own (so long as you object) - it doesn't matter if it's an OC or not - in CA you have a right to cross examine a live witness (Elkins vs Superior Court). HotWheels96 beat an OC twice, and it seems one of those was a case for more than $10K Here are links to 2 of HotWheels96's threads (though they are both about the same Capitol 1 suit): https://www.creditinfocenter.com/community/topic/319158-my-capital-one-trial-was-today/ https://www.creditinfocenter.com/community/topic/319164-how-i-beat-capital-one-triumphs-and-tragedies/
  16. Anyone have thoughts on this? I'm not sure how specific jcman should be in their Trial Brief regarding the items Cavalry has sent via discovery. Go ahead and call the items out by name? Or keep in general terms?
  17. I've known it to be court days, but it may vary from county to county. Even if it's too late, it's still worth filing and, importantly, serving upon the plaintiff. It lets them know you understand how to attack their case in court and that you'll be coming prepared.
  18. The one affirmative defense that I think is worth pursuing is statute of limitations (when it applies). From your answers you understand that the SOL affirmative defense wouldn't apply to your case - so I think you're general denial is fine. You are correct, a Bill of Particulars isn't proper for an Account Stated complaint. But that doesn't mean you can't ask for it anyway - of course they can object, but they'll have to write that up and send it to you, which makes them work How do you know you cannot pursue arbitration because it's Capitol One? Did you pull a Cap1 card agreement from the year the alleged account was opened to make sure there is no arbitration clause? Even if arbitration is not available to you, defending your case as-is is a good option. CA laws place the burden of proof on the plaintiff, and they don't make it easy on them (so long as you know how to press that advantage), see this thread for a basic rundown of trial strategy: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/
  19. Do a search on the site, there are Briefs & Objections that CA defendants have used that are available for you to grab and edit to fit your case. Look for more recent threads since those briefs should cite more recent case law.. I can help you with the search, but work is going to have me busy for a bit before I can.
  20. Welcome to CIC! It will help us if you start your own thread as @BV80 suggests. In the meantime, regarding affirmative defenses, if you thought the debt might be beyond the statute of limitations I'd definitely want assert that affirmative defense; but I don't think I've seen much success asserting the other affirmative defenses.
  21. There is still window of a few days that you might receive a CCP 98 declaration. If plaintiff intends to use one, the code says it must be served (placed in the mail) at least 30 days before trial. Keep an eye out for that in your mail this week, may show up in your online case file too. If it comes in, you'll want to subpoena that person once you're within 20 days of trial. In the meantime you can start working on a Trial Brief & an Objection to their evidence.
  22. You may have a point there. If an original creditor goes by the laws of a different state, a state that has a different SOL period for a given contract, then CA may recognize whichever SOL law is shorter. I'll need to look up the code.