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h8spleadingpaper last won the day on February 2 2016

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  1. For those who followed this thread, sorry I’ve been away for a while. Quick update: After taking the case under submission, the Judge ruled in my favor and I eventually recovered costs for the process server. It was a tough fight and it really didn’t look good during the Trial. In the end, I think that asking the Judge for a Statement of Decision and following up with a Post Trial Brief were what saved the day. Thanks so much to all, especially calawyer, without whom I couldn’t possibly have pulled out the win on this one.
  2. Finally sent a C&D letter, since I felt more confident after getting the letter with the “due to the age of this [alleged] debt, we won’t sue” language. Hopefully, this will be the last time I hear the name “Midland.” Thanks everyone.
  3. Right, but I didn’t want them to react by filing a lawsuit, since I may move soon. Don’t want to have to come back here to fight the case.
  4. UPDATE - After a cessation of a month or two, it looks like Midland has started up again. Just got another collection/settlement letter in the mail. This time however, it contains the language about them not suing, due to the age of the alleged debt. Guess they finally got the memo. Looks like I can safely send them the “go pound sand” letter now, since they know they can’t sue.
  5. Thanks, CommoSGT. What I mean is, other than at Trial, how could I use this information? A violation of FDCPA can result in a monetary claim, but what does the violation of a Consent Order get a consumer who isn’t currently being sued? Leverage somehow against further collection activity maybe? Thanks.
  6. I agree with CommoSGT fully that 133.b.ii would apply in my case (Midland is specifically named as a subsidiary of Encore in the CFPB report, the alleged debt at issue is definitely time-barred in California, and no language to the effect of, "The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it” has been included with any of the letters Midland has sent). So I guess my question is, how do I use this to my advantage? We’ve established that a violation of the Consent Order does not constitue an FDCPA violation. If I’m not being sued on the alleged debt currently, is there anything in the Consent Order violation that I can use to my advantage? Thanks for your thoughts. PS - Interestingly enough, in the last month, Midland’s calls (which were almost daily) and letters seem to have stopped. For some reason however, I expect they will start up again. Just a hunch based on their past behavior.
  7. Makes sense. I’ll give it a shot. BTW, for anyone else looking for the full case citation, it’s: (Sierra Managed Asset Plan, LLC v David C. Hale 240 Cal. App. 4th Supp. 1; 193 Cal. Rptr. 3d 265; 2015 Cal. App. LEXIS 816). If it doesn’t help me, maybe it will still help another. And sometimes, that’s just what it’s all about at the end of the day.
  8. @Anon Amos So, do I use the incompetent witness objection (Sierra v. Hale) when Plaintiff’s council first attempts to call this witness, or only after my cross exam? Thanks.
  9. Does that sound like it? EDIT - Above post just came down. I guess that’s it. Thanks, Anon!
  10. "While a trial court has broad discretion in determining whether a witness is qualified to testify concerning the identity and mode of preparation of business records, a declaration and testimony at trial from the authorized agent of a creditor's assignee regarding the unpaid balance on a credit card account did not meet the necessary foundation. At best, all the declaration and testimony established was that the assignee received records originating from the creditor concerning the account in question. This fell short of the foundation necessary for admission of business records as against a hearsay objection. The declaration and testimony were insufficient to permit any court to determine that the sources of information and method and time of preparation were such as to indicate its trustworthiness (Evid. Code, § 1271, subd. (d)). Further, it was error for the trial court to receive the declaration of the creditor's custodian of records, which attended the exhibits. Upon the debtor's hearsay and foundational objections, it was incumbent upon the assignee to produce a qualified witness to lay the business records foundation required by § 1271, based upon personal knowledge of the identity and mode of preparation of the documents."
  11. Hey, @Anon Amos. I have this tip from calawyer (who’s extremely busy right now and may not be reachable, or I’d ask him directly - plus I’ve already bothered the heck out of the poor guy with my ignorance): "You should object to any testimony from the witness as to the business practices of Capital One on the ground that the witness lacks personal knowledge and any testimony is hearsay. You should object to any testimony about account statements on exactly the same grounds." Stupid question: Does this mean that I can/should object when Plaintiff’s council is examining the witness, or does it mean that I should object based on the above arguments after I’ve cross-examined them and established that they have no personal knowledge? Sorry, I’m totally burnt out and can’t think straight. Thanks. EDIT: Oh, wait. I think I’ve got it. I would wait for Direct Examination to finish, then when the Judge asks if I have any objections, I would object an the above basis, right?
  12. Thanks so much for your help, Anon! Wanted to “like” your post, but I’ve hit my max for the day. Cheers, friend!
  13. I would SO appreciate this! I get the feeling there will be some dirty tricks attempted by the opposition and I’m certainly no legal scholar (though I’m trying my best). Thanks!
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