h8spleadingpaper

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Posts 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.    

     

    • Like 3

  2. 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.

     


  3. On December 29, 2015 at 9:40 AM, CommoSGT said:

    133. Encore, Encore's officers, agents, servants, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Consent Order, whether acting directly or indirectly, are permanently restrained and prohibited from:

     

    a. Collecting or attempting to collect any Time-Barred Debt through litigation or arbitration;

     

    b. Collecting or attempting to collect any Time-Barred Debt through any means, including but not limited to telephone calls and written communications, without clearly and prominently disclosing to the Consumer:

    i. for those Consumer accounts where the Debt is Time-Barred and generally cannot be included in a Consumer report under the provisions ofthe FCRA, 15 U.S.C. § 1681c(a), but can be collected through other means pursuant to applicable state law, Encore will include the following statement:

    "The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau;"

     

    and

     

    ii. for those Consumer accounts where the Debt is Time-Barred but can be collected through other means pursuant to applicable state law, and may be included in a Consumer report under the provisions of the FCRA, 5 U.S.C. § 1681c(a), Encore will include the following statement:

     

    "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."

     

    Provided, however, that with regard to telephonic communications, Encore is not required to make either disclosure to any individual person more than once per 30 day period. 

     

     

    This comes from the recent CFPB Order (Sept 2015) against Encore et al.  The fact that they are communicating in writing, reads to me like the last line would require the language on every writing...  

    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.

     


  4. 54 minutes ago, Anon Amos said:

    As soon as he calls the witness, as soon as you hear the witness name "your honor I object to this witness being called as he is incompetent" . "He cannot possibly authenticate or lay a foundation for records of OC, as he is not employed there, and they are hearsay and do not meet a business records exception" . 'there is caselaw that supports this as well (Sierra v Hale).

     

    If the judge overrules your objection, then the witness will simply take the stand and attempt to lay a foundation for documents (that you will object to as each document is introduced by the lawyer). Then you will cross examine the witness. When you finish with that; you will ask the judge that witness be impeached and all testimony be stricken from the record.

    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. :-)

     

    • Like 3

  5. "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."

    • Like 1

  6. 4 minutes ago, Anon Amos said:

    I don't think that's it (but read it and see if it helps).

    It might be CACH v Sierra  (or Sierra management ) see if you can search for that.

    It says a bottom feeder can't lay a foundation for OC records,  even if they do show up as a witness.

    If they would have left the website alone I could have found it. There were several conversations about it.

    Let me know what you find, I'll try to find it after work if not

    Also I will pm you later with some tips that helped me.

    Sierra v. Hale?

    • Like 1

  7. 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?

     

    • Like 1

  8. 7 minutes ago, Anon Amos said:

     

    There is recent case law on this but I can't remember the name, and with the recent website overhaul it's impossible to find. I will try to remember and get back to you on this if no one chime sin with it.

    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!


  9. 3 minutes ago, Anon Amos said:

    That is the normal reaction. Don't forget, this isn't your first rodeo, and what you learned, and objections from the last case still apply.

    I'm sure they will, unless they just dismiss.

    OBJECTION: Hearsay CA Evidence Code 1200.  Elkins v Superior Court (as well as sever others listed in Elkins). Doesn't meet any exception to the hearsay rule under CA  Evidence Code 1271.

    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?

    Quote

    Then point out that the  witness said under oath and penalty of perjury he would be her for service and that you successfully served a subpoena and the witness is court ordered to appear.

     

    If that fails (which is unlikely) that's the reason you have the request fro statement of decision (and having filed that the judge is less likely to do this). The statement of decision will help you have a record for appeal.

    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!


  10. 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).


  11. 1 hour ago, h8spleadingpaper said:

    (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.

    (BUMP) (BUMP)  

    :-)

     


  12. 3 hours ago, h8spleadingpaper said:

    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.

     

    (BUMP) (BUMP)

    (Anyone?)

    • Like 1

  13. (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.


  14. 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.


  15. 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."