RyanEX

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Everything posted by RyanEX

  1. Looking good! I would proceed as normal until you see your online case file updated. But sure seems like they're throwing up the white flag, congrats!! I wouldn't expect them to take another run at you. They want easy defaults & settlements - you showed them you know what your doing and they don't want any part of that. They can always sell it to someone else, but you can deal with that if it comes up. Once it's officially dismissed, you can get the process going for recovering your costs (filing fees) and rub some salt in that wound!
  2. Calendar days means all days, weekends & holidays included. So, for example, if your trial is set for July 27th, then your window consisting of 30-45 days prior to trial would be June 12 - June27. The form just needs to be filled out & signed, then send to plaintiff's attorneys along with a POS. it should be sent CMRRR so that you can confirm delivery & provide proof if needed. Nothing else needs to be attached - keep copies for yourself, of course.
  3. I don't know why your judge reversed the motion deem facts admitted. But it's a good thing, so I would just take it and move on. Your two threads are a bit confusing (honestly, it's best to keep everything in one thread). In your first thread you wrote that you have a MSC at the end of this month - in this thread you are calling it trial, a trial that was continued to 2 months from now. To me, it seems what you went to on Friday was your MSC, where the judge reversed the motion to deem facts admitted and then set your trial date, for 2 months. Just want to make sure everything is clear? You have a couple of important things coming up ahead of trial. During the period that is 30 to 45 days (calendar days) prior to trial, you can serve the plaintiff a request for evidence and witnesses they intend to present/call at trial. This is referred to as a CCP 96 request, or just CCP 96. Plaintiff is required, by code, to send you a description and copies of evidence & the names/addresses of any witness(es) they intend to call. If they to not reply in time (rare, but it happens), they cannot enter any evidence at trial or call any witnesses (so long as you object). If they do reply, they are constrained to only the evidence and witness(es) they list in their response, nothing more. In other words: no surprises. Obviously this is a big advantage to you as you will know what you need to prepare for. Do not miss that window, don't send it too early, don't send it late. The form you can use is: DISC-015. You will also need to use a proof of service. CCP 98 allows a party to submit a Declaration (or Affidavit) in Lieu of Live Testimony. Basically, it's an affidavit from a JDB employee who will state that they examined your file and, of course, that everything in the JDBs lawsuit is true. The code requires that they serve this upon you at least 30 calendar days before trial. However, there are conditions. Read CCP 98. The most important condition is that the CCP 98 declarant must be available to be subpoenaed during the 20 days before trial, because you have a right to question them.You will attempt to subpoena as soon as you get into that 20-day window. I have yet to see one successfully served and they never show up at trial - meaning you can have the CCP 98 thrown out.
  4. How is this going, did your process server give you a declaration of diligence?
  5. Like others, the lawsuit against me listed several lawyers as representatives for the plaintiff. I took the first name listed for plaintiff's counsel, and addressed all items to that person & listed only that person on the POS.
  6. Unfortunately I don't know what to do about this. I've always understood the code to be specific about those deadlines, I don't know how to get out of it once you're late and plaintiff files/is granted the motion to deem facts admitted. @calawyer would know better than any of us what options you may have.
  7. In CA, a plaintiff doesn't have to attach those items to the complaint. However a plaintiff should have most of those items as CA law changed a few years ago and now requires that they have them before filing a lawsuit. However (as you noted), CA still sets a high bar for getting those items admitted into evidence at trial - that has not changed. If you know the rules & procedures (and follow them!) and object properly, an affidavit or bill of sale (or any other item a plaintiff produces) can't be admitted into evidence unless properly authenticated - meaning they have to produce a live and qualified witness from the original creditor and any other creditor/collector that has owned the debt.
  8. You can claim insolvency if that's the case (that at the time immediately before the 1099-C was issued, you had more overall debt than overall assets) - with the exception explained below by BackFromTheDebt. I was issued a 1099-C a few years ago, even with the added amount from the 1099-C as income, I was still insolvent so didn't have to pay tax on it, I filled out an IRS Form 982 and included it with my return. This link explains it pretty well IMO: https://taxmap.irs.gov/taxmap/pubs/p4681-002.htm#en_us_publink100052679 IRS link with explanation (and insolvency worksheet on page 6): https://www.irs.gov/pub/irs-pdf/p4681.pdf IRS Form 982: https://www.irs.gov/pub/irs-pdf/f982.pdf
  9. They failed to name a witness on the CCP 96 response, they gave up their right to call one when they did so. Naming someone after the fact, then saying that person has a medical issue is ridiculous, IMO - and it shouldn't matter since they weren't named in the CCP 96 response anyway. I'd tell them to pound sand. Regarding continuances... http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332 I believe the reference to "the rules of chapter 4" refers to "Chapter 4. Ex Parte Applications" in this index http://www.courts.ca.gov/cms/rules/index.cfm?title=three If a party needs a continuance they should have a very legit reason (very rare circumstance, something that couldn't be avoided) when asking for one. A medical issue with a witness that they should not be able to bring anyway, due to their CCP 96 failure, is not a good reason.
  10. Explanation I found regarding 1542 https://www.mindingyourbusinesslitigation.com/2016/08/think-your-release-is-ironclad-consider-california-civil-code-section-1542/ They are, more or less, admitting defeat... but would like to absolve themselves of any lawsuits from you regarding this suit & and (probably) be off the hook for paying you back for your costs (filing fee, process server, etc.). I was offered this the morning of my trial, I declined and got a dismissal w/o prejudice anyway and then got my costs back.
  11. Love it. Congrats! Be sure to twist the knife by filing for your costs!
  12. Arbitration is a route you could take, but you need to be sure you can invoke it. If you don't remember when you opened the acct, you can pull a free credit report (visit the FTC website to find the link) and look it up there, then try a search for the corresponding Agreement for that year. In the meantime you can fire off a BOP right away. If arbitration isn't an option or you'd rather fight it in court, then yes the General Denial is what you would need. CA members have had a ton of success fighting JDBs. You can wait til you get closer to the deadline to your answer.
  13. Never! This is just the beginning. Lot's of good help here. You have plenty of time to learn.
  14. i find it odd they would tell you a suit has been filed and to 'keep a look out for a summons'. You typically wouldn't get such a warning because you could then actively try to evade service. I would check your court's online system to confirm. Anyhow, if it has been filed and arbitration is not an option for you, then file a general denial. The laws in California are quite favorable to defendants in these types of lawsuits, especially when it's a junk debt buyer like Portfolio. They will shoulder the entire burden of proof and they often (pretty much every time) do not have it. Even if you really want to settle, you should fight it anyway - it is very unlikely they will offer/accept any good deal on this unless you are all the way up to the eve of trial. http://www.courts.ca.gov/documents/pld050.pdf https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/
  15. I imagine the person who sued you in this case could reasonably prove you signed the contract in CA. They would be the original party and could personally testify. If something like this came up in a debt collection lawsuit with a JDB, they would have a far tougher time proving you signed/applied for a card in a particular county.
  16. Yes. Usually it's the one particular debt I had that defaulted at $7,000... which was my highest. It's about 4 years past the SOL at this point. They still try. It's nothing but a phone call to them that might last 2 minutes or 15 minutes, and maybe someone gets scared enough to send them some money. That's why they do it. When I don't bite they sell it off, probably for pennies, maybe even a dollar or two, and a new bottom-dweller picks it up and gives it a shot.
  17. Sounds like a scare-tactic/scam call. I get this type of call about every 2 months or so. Over the summer it was every month, on the same old account, by a different company, with the same script. Often with a threat to sue that never materializes. "I'm such and such contracted by blah blah to serve some documents upon you. But you can get ahead of this before it's escalated to their legal department by calling this number with this file #..." As noted above, a process server doesn't call ahead. Sometimes I tell them "sure, here's my address, I'll be there all day tomorrow so feel free to stop by and serve me." They never show, or they insist that I should call the number anyway. I've gotten this type of call once on an account within the SOL, but mostly on debt outside the SOL. Call/confirm with the court whether or not there is a case against you. That'll tell you all you need to know.
  18. Agree. No need to do certified mail for the General Denial. Most everything else: do certified.
  19. File the fee waiver along with your General Denial. The court will review and give you an answer (within a few days I think). If they deny it, you'll get a letter saying so & 10 days (if I remember correctly) from the date of service to go back to the courthouse and pay the filing fee. http://www.courts.ca.gov/selfhelp-feewaiver.htm
  20. Read the 2 exceptions right below that line. Yours would be exception #1. GD is fine. You MAY use this form for a general denial if: 1. The complaint is not verified 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.
  21. By the way, since your husband was served instead you personally, that counts as substitute service. Keep an eye on your online case file and (hopefully) when it's updated it should say so. Substitute service gives you a longer period to file your answer. In the meantime there's a good chance Portfolio/Winn will try to contact you, likely by phone, to inform you they've filed suit and to offer a settlement. They assume you have no idea how to fight & will tell you that they will win unless you settle. You can listen to them if they have an offer, but don't tell them anything. They are always looking to get you to say something that will hurt you. Their best offer isn't going to come anytime soon anyway, not til the date of your trial is close.
  22. I would think they could, but I'm not sure. They certainly should only be paying one filing fee.
  23. We understand your nervousness, because we've all been there. Don't worry, this is just the beginning and California has laws that are very good for consumers/defendants in these types of cases. You'll have time to learn and get comfortable. Technically, a BOP is not appropriate for an Account Stated cause of action and they'll object to it, but you can send one it anyway because it'll make them work a little. When they do object, you can use that in some of your discovery responses a bit further down the line. The General Denial is easy. However, once you file it, it gets the ball rolling in your case (your first conference at the courthouse will be scheduled shortly thereafter, etc). My advice: take your time, use these 30 days (until your answer is due) to read up, educate yourself, ask questions, etc. Then file your General Denial a little closer to the deadline. You can also take that time to explore some different options. Have you read this thread? It's got a great explanation of how these cases work: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/ Also, go to this thread and copy/paste the questions (with your answers) back in this thread. It'll help us out. ou can make some of the answers (dollar amounts, etc) a little vague since we sometimes have "prying eyes" checking out the forum. https://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/ Welcome to the board!
  24. You're okay. This time. You didn't do it correctly. But in this case I wouldn't consider that you "totally messed up". Specifically regarding the general denial, the important thing is that you get it filed with the court correctly & on time. You can correct the way that you served it upon the Plaintiff: have your friend send the copy of the signed POS with another copy of the GD, no need to send this item Certified (CMRRR). But in the future, there will be items that you will need to serve upon the plaintiff correctly & on time. There will be hard deadlines for some items and you need to get it right the first time. This is the procedure: Your friend will send an item along with a filled out, but unsigned, copy of the POS to the Plaintiff. Certified. Then they will sign the POS and you'll keep that and a copy of the item for your records.Once you see that your certified mail was delivered, print out the record and add it to that item. P.S. - You should post questions like this (related to your case) in your main case thread instead of starting a new one. It'll be easier for you & us if everything is the same thread should you/we need to go back and review it
  25. Dying to see it. And get the story behind it. Haven't been this giddy and consumed by anticipation since I saw the first teaser for Back to the Future 2 back in 1989.