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jene_rae's Achievements

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CIC Member (4/6)



  1. Sorry it took me so long to get back but I'm happy to say I WON!!!! My Trial Brief was so strong that their attorney walked up and said it was dismissed without prejudice. The Judge looked at me and asked if I understood what that meant and I smiled ear to ear and said yes I do. I asked about making it with prejudice and the judge couldn't really tell me much but he said I wouldn't worry about anyone coming after you again. My record now: I won American Express vs me I won Cach, LLC vs me I won Cach, LLC vs me I'm officially done! Now I can have my brain surgery for my super rare IIH neurological disease and start feeling better with this heavy lawsuit load off of my shoulders. I owe so much thanks to calawyer, HomelessInCalifornia, ASTMedic and everyone else that has posted on this site. Don't give up and don't give in. I saved over $30k fighting these blood suckers. You can too.
  2. Today 12/12/14, So if I wanted to file a MIL I have 20 days before my court date on 1/5/15, meaning I have time if I fax and overnight a M&C to attorneys today and I would have to file my MIL no later than 12/16/15. Yikes that's a lot of stress on me and don't forget I'm the one with the rare brain disease and it's the holidays. (sorry, talking to myself...lol). I can do it if needed but I'm thinking of making a very well put together Trial Brief (one judge in another case said that mine was better than most professionals, attorneys) Super stoked from that one. Objections: (not in this exact wording) 1) Affidavits (hearsay) are not admissible at trial except by statute (such as ccp98) site: CA Evidence code 1200, cite Elkins V Superior Court. 2) They are supposed to tell me who they intend to call, not who they may call from a pool of candidates, And: They are supposed to give me the address of the witness as well so that I can do research and prepare to cross examine them at trial. By this I was deprived of due process. (any case law to site here?) Any thoughts? Thanks
  3. Thanks Anon Amos and everyone that has helped me with this. I sent them a letter just stating that this M&C is a reminder that you need to file a Motion for a Protective Oder for the Privilege Log, Document 1, Purchase agreement between Original Creditor and CACH,LLC/"Flow Agreement for Purchase and Sale of Charged Off Accounts". They sent me a settlement offer. NO thanks! lol Let me get my Trial Brief together with what I have found and what everyone has helped me with on here and I'll share it soon. I'm feeling much better now about my position. Thx!!
  4. Update: Received their response to my CCP 96: Plaintiff submits the following witness and evidence list: Witnesses 1. Plaintiff intends to call one of these potential witnesses: Magic West, Christie Coston, Tom Vigil, Angelica Martinez, Peter Hubar, signe Espinoza, Alex Calonje or Victoria Mason, who are employed as Custondian of Records for CACH, LLC; located at 4340 Monaco Street, 2nd floor, Denver Colorado 80237, and can be reached through Plaintiff's attorney's office, Mandarich Law Group, LLC at phone #. 2. Plaintiff intends to call named Defendant, Me Evidence Plaintiff will submit the following: 1. Bank of America, N.A./FIA Card Services, N.A. credit card account statements ...exhibit 1 2. Bank of America, N.A./FIA Card Services, N.A., Bill of Sale with Redacted Loan Schedule...exhibit 2 3. Bank of America, N.A./FIA Card Services, N.A, Affidavit of Sale...exhibit 3 (was not supplied to me in discovery!) 4. Plaintiff intends to introduce any relevant discovery; and 5. Plaintiff further intends to introduce documents allowed for impeachment purposes pususant to CCP 97. Questions: Exhibit 2, Bill of Sale and Assignment of Loans. So it mentions between Cach, LLC purchaser and FIA Card Services, NA seller, pursuant to the loan sale agreement dated June 21st, 2013. 1)Exhibit 3 is an affidavit of sale and certification of debt and it mentions that FIA Card Services, NA is a wholly owned subsidiary of Bank of America Corporation and is successor in interest...signed April 21, 2014. (They did not send this document to me in discovery but as a document to my CCP96 request) Are they allowed to do this? 2) So it seems they are bringing in a witness so I don't need to subpeona anyone right? 3) I'm going to argue that they should show all transfers because it is necessary to show standing. I also looked up CCP 2031. 310c and the other alternative is to serve a motion in limine at trial excluding all evidence that was not produced in discovery. So this would be their affidavit of sale and the alleged trade secret log, right? thanks for the help!
  5. So are you saying that at my trial date, Jan 5th, I can request the judge to review the document in his chambers or do I need to file something ahead of time? My judge is very flexible and kind to Pro See (thank goodness). Should I send a M&C that I will be requesting this at trial?
  6. Thanks to everyone that replied. As for their "Privilege Log" I do not see that they ever filed it with the courts. I went on the courts website and looked up my case and no mention of it. Since CACH did not file this with the courts do I still need to try and file a motion to compel? The burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192 see Ev. C. §§402, 405.
  7. Received Summons from CACH, LLC (attorney Mandarich Law Group) Complaint: Breach of Contract and Common Counts Discovery completed CCP96 sent Awaiting CCP98 cut off date 12/19/15 and will Subpeona any witness. (Won last case against them here) Court date Jan 5th, CA San Joaquin County 1st Question: CACH is Plaintiff and notes Bank of America, N.A. is Plaintiffs assignor BUT the Bill of Sale provided from discovery, production of documents, says CACH,LLC is purchaser and seller is FIA Card Services. Is this usually correct or do they need to provide a bill of sale from Bank Of America to FIA Card Services??? 2nd Question: Received Privilege Log; Purchase agreement between OC and Cach "flow agreement for purchase and sale of charged off accounts - Trade Secret??? Calif Evidence Code section 1060 and Calif Civil Code section 3426.1. How can I fight this? A few small technicalities I found wrong: amount on Summons compared to Bank of America bank statements provided by Cach, they state that "within the last four years, the defendant failed to make payments but there are a few payments listed in those four years and Bill of Sale they have no mention of my ss# or account number. 2 time winner and looking for 3rd win...need smoking gun.
  8. Can anyone tell me the process of filing and collecting funds in San Joaquin County, CA? I have two court cases that I won. (1) American Express (2) CACH, LLC. I filed and mailed the MC-010 against (1) but never received a response. I'm about to file the MC-010 against (2) but want to make sure I'm not missing something. I'm only asking for my Filing fees of $225 on each case. Any help is much appreciated
  9. Just to let everyone know that I won this case! Here is the letter that I received from the court/judge. CACH,LLC VS ME RULLING ON COURT TRIAL This case came on for trial in the above-captioned Court, Judge xx, on March 19, 2013. Plaintiff was represented by xx; Defendant appeared in person. Evidence was submitted and the matter taken under submission. The court now finds as follows: This is a collection action on an assigned credit card account. Defendant moved in limine to strike or exclude the Declaration of Peter Huber, custodian of records for Plaintiff, submitted pursuant to C.C.P. Section 98. The stated bases for the Motion to Exclude was that Declarant Huber (whose place of business is Denver, CO) was not available for service of process at place within 150 miles of the place of trial as required by CCP Section 98(a) during the 20 days immedediately prior to trial. According to Defendant (me) tried to serve Huber at the place designated (ABC Legal Services in Oakland, CA) but he was not available there. As such, he could not be made subject to the jurisdiction of the Court and was not available for trial. Plaintiff's counsel did not dispute that Mr. Huber's physical location was in Colorado, but argues that Huber's designation of an agent for service of process med due process requirements, and the Declaration should be received in evidence. Although neither side called it to the Court's attention, a case exactly on point is found in Target National Bank v. Rocha (2013) 216 Cal.App.4th Supp.1. The Superior Court Appellate Division of Santa Clara County found that (1) personal delivery is the only mode available for serving a subpoena; and (2) Plaintiff's custodian of records could not be personally served with a subpoena at the address of a legal services business, even if the custodian authorized the business to accept service where the custodian was not physically present at the business address. This Court find the reasoning of Target National Bank, supra, convincing. As such, the Declaration of Huber is inadmissible and judgment is found for Defendant. 3/24/14
  10. I won in court against American Express in 2013! Now fighting CACH...plan to win there too!
  11. Due to some advice I took, I decided to drop the MTC. I have received their Discovery and just starting to go over it. Will be needing help I'm sure of that. But for now I'm just floating on cloud 9 because I just won my other case against OC American Express on Monday!!!! Now I'm fired up
  12. Had court on Monday and I WON American Express!! That's my husband doing a happy dance. LOL Ok, showed up to court but they didn't. Guess they knew they had nothing on me and I was ready to rock and roll. The best part was when the Judge told me that I did my homework and research very well and that I wrote better than most attorney's he's seen. I owe a BIG THANKS to the following people that helped me along the way: Hotwheels96, Anon Amos, calawyer, Seadragon, HomelessinCaifornia, helpme and Shelieh98. Shout out to calawyer for always responding so fast to my messages. 1 down and 1 more to go! Now I have to fie and get my court fees back...
  13. I had court on Monday and I WON American Express!! That's my husband doing a happy dance. LOL Ok, showed up to court but they didn't. Guess they knew they had nothing on me and I was ready to rock and roll. The best part was when the Judge told me that I did my homework and research very well and that I wrote better than most attorneys he's seen. I owe BIG THANKS to the following people that helped me along the way: Hotwheels96, Anon Amos, calawyer, Seadragon, HomlessinCaifornia, helpme and Shelieh98. Shout out to calawyer for always responding so fast to my messages. 1 down and 1 more to go! Now I have to file and get my court fees back...
  14. Trial Brief to be filed and mailed tomorrow. Could anyone please review, add and/or comment? I. INTRODUCTION AMERICAN EXPRESS BANK, FSB ("Plaintiff") is attempting to collect on a debt alleged to be owed by defendant, (“Defendant”). Plaintiff’s claim for account stated lacks proof, because Plaintiff has failed to show that the elements required to be an account stated have not been met, and Plaintiff has failed to show that a contract existed between Defendant and the Plaintiff. Plaintiff’s claim for damages of $5,308.72 is not the same amount requested in the Plaintiff’s Trial Brief, under Introduction of $4,827.01 and under B. Defendant is Obligated to Pay the Entire Amount Due, $4827.01 and also mentioned in the IV Conclusion, Defendant failed to pay as agreed, leaving a balance of $4827.01. Plaintiff’s claim that the account number is xxxxxxxxx392004 is not the same account number in the Plaintiff’s Trial Brief, under Statement of Facts as xxxxxxxxxxx2004. Plaintiff’s Trial Brief, Plaintiff’s Exhibit List dated July 29, 2013, Exhibit “1” Copy of Card Agreement only matches up with one of two separate Card Agreements, Plaintiff sent with their Discovery dated October 1, 2013. Plaintiff’s Responsive Statement of Witness and Description of Evidence [CCP§96] dated September 3, 2013 neither identifies the witness by name or address. Plaintiff sent responses to my Discovery dated October 1, 2013 stating that “Original verifications will be forwarded to you by our office once they are received”. Therefore Plaintiff’s responses to Defendant’s Request for Production of Documents Set No One, dated September 30, 2013, Plaintiff’s responses to Defendant’s request for admissions set No One, dated October 1, 2013 and Plaintiff’s responses to Defendant’s Form Interrogatories Set No One dated September 30, 2013 (NEED TO FINISH) Plaintiff has failed to show that the alleged account is the result of authorized charges, a necessary component of credit account billing under the Fair Credit Billing Act. Plaintiff cannot argue implied waiver as they have no showing that communication has occurred to settle the alleged account, a necessary element of the Account Stated theory of litigation. Additionally, the failure to supply a Bill of Particulars is mandatory and failure to provide such response is indeed an error of law which is preserved for appeal. Defendant has rigorously denied the allegations of the complaint based on the failure of Plaintiff to engage in basic discovery, submission of inadmissible hearsay in an effort to mislead the court as to the validity of their purported claims, and to attempt to deny defendant of inalienable rights in litigation, specifically Discovery, Cross-Examination, Personal and Subject matter jurisdiction, and admissible evidence to support their heretofore unproven claims. II. STATEMENT OF FACTS. Plaintiff failed to produce a Bill of Particulars pursuant to CCP §454 and under CCC 128.7 and therefore should be precluded from admitting evidence. Plaintiff’s response was defective to defendant’s request for statement of witnesses and evidence pursuant to California Code of Civil Procedure section 96. Under the section, plaintiff must set forth the “names and addresses of witnesses” (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) it intends to call at trial. Plaintiff has not done so. Instead, plaintiff has claimed that it intends to call “The witness currently designated as the Custodian of Records and Person Most Knowledgeable with regard to the business records of Plaintiff”. This neither identifies the witness by name or address. Defendant answered the complaint with a general denial. Defendant has meritoriously defended in good faith. This lawsuit by Plaintiff has brought great distress on defendant. III. ARGUMENT Plaintiff Can Not Prevail on its Account Stated Claim. Plaintiff alleges an account stated. “An account stated is a document — a writing — which exhibits the state of account between parties and the balance owing one to the other; and when assented to, either expressly or impliedly, it becomes a new contract.” (Biltmore Press, 6 Cal. App. 3d at 901) “[T]he account, in order to constitute a contract, should appear to be something more than a mere memorandum;, it should show upon its face that it was intended to be a final settlement up to date. And this should be expressed with clearness and certainty.” (Coffee v. Williams, 103 Cal. 550, 556 (Cal. 1894)) “An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing. To be an account stated, it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.” (Maggio, Inc. v. Neal, 196 Cal. App. 3d 745, 752- 53, 241 Cal. Rptr. 883 (1987) (quotation omitted)) In order to constitute an account stated, there must be an “element of finality” to the statement, which is missing when the parties continue transacting business and “statements [a]re sent periodically.” (Am. Fruit Growers, Inc. v. Jackson, 203 Cal. 748, 751- 52, 265 P. 926 (1928)) ”t is clear that a statement rendered cannot be said to be an account stated unless it is intended to be such and expressly or impliedly is assented to as such by the party to whom it is rendered. There is in the case before us no element of finality, as the parties were still transacting business. These statements were sent periodically and business was continued between them as before. There is no ground whatever for the contention that the account was rendered and intended to be an account stated, or that [the charged party], either expressly or impliedly, considered that it was such.” Whether an alleged debt is an account stated is a question of fact. See, Fogarty v. McGuire, 170 Cal. App. 2d 405, 409, 338 P.2d 992 (1959) “The action upon an account stated is not upon the original dealings and transactions of the parties. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.... f in writing, it should appear to be something more than a mere memorandum and should show with clearness and certainty that it was intended to be a final settlement up to date. Whether these conditions exist is usually a question to be determined by the trier of fact from all the circumstances of the case, and in reaching that determination reasonable inferences can be drawn in support of the claim of either party if there is any credible evidence warranting such action.” (citations omitted). Plaintiff has failed to produce any writing which indicates that xxxxxx assented to the account between them. Because Plaintiff cannot present evidence showing an account stated other than the hearsay documents discussed above, Plaintiff has no admissible evidence of an account stated. Plaintiff cannot, therefore, meet its burden of showing an account stated. IV. CONCLUSION Plaintiff is not entitled to any recovery on its Complaint. For this reason, Defendant respectfully requests that the Court enter judgment in favor of Defendant xxxxx. Defendant, xxxxxxx, requests this case be dismissed WITH PREJUDICE, that Plaintiff be ordered to remove all trade lines held in Plaintiff’s name against the Defendant from all credit reports, and prays for costs of suit in the amount of $505.36 plus any damages and any further relief the court will allow. Defendant is not an attorney and has never attended law school. Defendant has spent over 160 hours trying to maneuver around the legal system to figure things out on his own as pertain to this case, understand what is at issue and what Plaintiff’s case is, calculate defense and write pleadings, find and learn case law, travel to seek legal advice and assistance, and learn California statutes and codes and rules and other authorities and Court procedures. Defendant was recently diagnosed with a rare disease, Psedutumor Cerebi and a movement disorder, Myoclonus Dystonia and lost employment over 3 years ago being unable to work due to illness. Defendant cannot afford an attorney and has had to represent himself. Plaintiff depends upon the lack of legal expertise, sophistication, knowledge, and experience and the inability to afford qualified counsel on the part of the Defendants it targets for lawsuit. This unwarranted and clearly evidentially unsubstantiated lawsuit against Defendant on the part of the Plaintiff, a sophisticated junk debt buyer with volumes of litigation experience on a national basis, has severely impacted Defendant’s health. Defendant has had to dedicate all his energies and time to research and prepare for this litigation on a full-time basis, which has meant that crucial time needed to pursue therapies has been irrecoverably lost since August 23, 2012 (date of service) to October 21, 2013 (date of trial) by Plaintiff’s pursuit of a case on which it knew it had no standing, should not have initiated, and should have dropped immediately even before it received an Answer. This lawsuit has been malicious and frivolous. This lawsuit has resulted in extreme emotional, physical, and economic hardship on the Defendant. Plaintiff should be sanctioned and incur not only Defendant’s costs but be held accountable for reparations for damages and such other relief as the court may deem fit and reasonable. Plaintiff should be required to make immediate restitution and to remove all trade lines held by Plaintiff against Defendant from all credit reports. This case should be dismissed with prejudice. Executed at xxxxx, California and respectfully submitted on this 9th day of October, 2013.
  15. I received a Plaintiff's opposition to defendant's motion to compel further response to bill of particulars and monetary sanctions. Plaintiff stated: "Discovery, available to either plaintiff or defendant, is designed to aid in the preparation of proof at trial, while a bill of particulars merely amplifies the complaint in order to make it easier for the defendant to prepare his or her pleading. It has nevertheless been conteded that where modern discovery devices are available there is no need for the bill of particulars. (See 61A Am.Jur.2d (1999 ed.). pleading 737;71 Harv. L. Re. 1473. Here Defendant filed an Answer and therefore the BOP would not serve to amplify the Complaint or assist Defendant in preparing her responsive pleading? This is CACH vs Me in California
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