h8spleadingpaper

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Everything posted by h8spleadingpaper

  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!
  14. Excellent. So I’m trying to imagine how Plaintiff’s council might use the declaration if there is no witness to testify to it. Would he just start reading it out loud? Or maybe paraphrase it, at which point I’d raise the objection that council is testifying? And do I need to point out to the judge that I’ve filed a Statement of Decision request, or will he/she know about it from having reviewed all of the paperwork in advance? I just don’t want to call attention to it if I don’t have to, because it would almost sound like I was somehow issuing some kind of backhanded threat. Thanks!
  15. Thanks, Anon. I’ve really been stressing (if you couldn’t tell). By the way, I did successfully subpona the CCP 98 declarant via personal service in this case. But I have a funny feeling that if he doesn’t show, Plaintiff’s council will try to use his CCP 98 declaration anyway. Is there any way to prevent them from doing this that you know of? Just trying to somehow prepare for every eventuality I can over here. Thanks! PS - I never submitted my written Objection to the CCP 98, because I was under the impression that the declarant HAD to show, once subpoena’d. In retrospect, I think I probably should have submitted it anyway, but didn’t really know what to do with a successful subpoena service (the declarant in my last case couldn’t be served).
  16. Thanks, Anon! I’ll take it to the courthouse tomorrow morning and fax a copy to the Plaintiff (not really sure why it goes to them, but I’ll cover that base anyway).
  17. (BUMP from earlier post) "2. I read a post by Anthony81 on @John4600’s thread that indicates his judge allowed both the CCP 98 Declaration AND testimony by the live witness. Calawyer was kind enough to let me know that this should not be acceptable. Any idea how do I argue against this if it happens to me too? 3. Plaintiff alleges that the purported OC on this account charged it off in May, 2011, yet they supplied an alleged "past-due" cc billing statement dated August - November 2012 (a four month super bill??). It’s too late to put it in my Trial Brief, but it seems like there ought to be a way to use this at Trial. After all, how could the OC have charged off the alleged account in May as Plaintiff and the affiants claim in their declaration and affidavits, if the OC was still sending billing statements in November? Note - the alleged Bills of Sale contain dates after this timeframe, if it matters. 3. ....what CCP or caselaw do I cite if the Plaintiff tries to argue at court that as an alleged Assignee, they “stand in the shoes” of Capital One and can therefore authenticate and testify to the identity and mode of preparation of alleged Capital One docs? Or, alternately, that as the Assignee, they can authenticate and testify to it because they are one of the parties to the transaction? If anyone needs clarification of what I mean by this, PLEASE feel free to ask. I’ll be monitoring the board day-and-night until this is over in a few days." Thanks.
  18. Thanks, @calawyer. So I think I’ll try to run down to the court first thing Monday morning, file a Request for a Statement of Decision (I assume that should be the official title) and fax a copy to Plaintiff (I’d rather not hand it to them on the morning of Trial, because I’ve read here that I shouldn’t let them hand me anything either). I haven’t been able to find a good exemplar of a Request for a Statement of Decision anywhere, so I copied one that was submitted by a Plaintiff and changed the wording to reflect the parties involved (i.e. - switching “Plaintiff” to “Defendant” and vice versa). How does this sound? "NOTICE IS HEREBY GIVEN that Defendant respectfully requests a statement of decision under Cal. Code of Civ. Proc. § 632. Defendant respectfully requests the statement of decision set forth the basis of the decision finding in favor of Plaintiff, if applicable, including, but not limited to, the admissibility and credibility of Plaintiff’s evidence and the testimony provided by Plaintiff’s witness regarding the admissibility of business records from the alleged original creditor and sufficiency of the proof of assignment of the purported subject debt to Plaintiff." I wish it sounded more all-encompassing and generic, but maybe the specificity is good for me? Thanks, everyone.
  19. Thanks, Commo. Maybe some of the California folks will still be able to read my thread in time to lend a last minute had with things.
  20. Is anyone still on the boards here? Seems like most people have dropped off since the site was reconfigured on January 1st. I could really use the help as I’m in the last few days before Trial, if anyone knows of a way for me to find out who’s currently on. Thanks.
  21. Thanks, @CommoSGT. Do you know if I’m required to serve it on them, since it’s something intended for the judge alone? I only ask because I’d have to pay to have a local shop fax if for me and I’ve spent a small fortune on postage for other documents related to this case already. If I do have to it’s okay, just wanted to make sure first. Thanks! EDIT: How does this sound for the language going of the request for a Statement of Decision? "NOTICE IS HEREBY GIVEN that Defendant respectfully requests a statement of decision under Cal. Code of Civ. Proc. § 632. Defendant respectfully requests the statement of decision set forth the basis of the decision finding in favor of Plaintiff, if applicable, including, but not limited to, the admissibility and credibility of Plaintiff’s evidence and the testimony provided by Plaintiff’s witness regarding the admissibility of business records from the alleged original creditor and sufficiency of the proof of assignment of the purported subject debt to Plaintiff."