h8spleadingpaper

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Posts posted by h8spleadingpaper


  1. Okay, I’m sure folks are probably busy enjoying their well-deserved weekends.  So I’ll just throw a few more questions out and see if anyone chimes in:

    1.  One of the pieces of evidence I filed an Objection to was an alleged Affidavit of Assignment from an Angela Tucker (a supposed “representative” of Capital One).  I objected on the grounds that affidavits are inadmissible at Trial (Elkins vs. Superior Court), along with the fact that her job title is not stated as Custodian of Records (or other type of qualified witness).  My Trial Brief and Objections have already been filed, but I stumbled across this and wondered if it’s worth mentioning at Trial?

    http://www.slodebtdefense.com/uploads/2/5/8/1/25816994/shohdy_-_conformed_complaint.pdf

    This is a Class Action Complaint against an unrelated JDB that used a CCP 98 Declaration, also allegedly signed by Angela Tucker, and using a “c/o: ABC Legal” address.  When personal service of the subpoena failed, the defendant turned plaintiff and sued for an FDCPA violation.  So my thought here is that  Angela Tucker may be a totally fictitious entity.  Just wondering if there’s any way to get any mileage out of this at Trial?

    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.  My main argument at Trial will be that Plaintiff cannot demonstrate a proper Chain of Title on the alleged account because the Bills of Sale do not mention my name or the alleged account number at all (though they disingenuously attached printout pages with my personal info on them in order to try to fool the judge and I into thinking they’re part of the Bills of Sale, which they are not).  Further, the Bill of Sale which purports to transfer ownership from Capital One to Absolute Resolutions Corp. has not been authenticated by anyone at Capital One (Evidence Code 1400), is hearsay (Evidence Code 1200) and does not qualify as business records of Capital One (Evidence Code 1271) because it has not been testified to by a Custodian of Records or other qualified witness (the only thing close is the aforementioned Affidavit of Assignment by Angela Tucker, which I’ll be objecting to on the grounds that it’s not admissible (Elkins vs. Superior Court).  So my question is, 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.

    • Like 1

  2. 3 hours ago, h8spleadingpaper said:

    I would file the request for statement of decision even if I thought the judge wouldn't like it. The judge isn't going to have a problem with it, and it sends a good message. You can probably file it any time before trial and send plaintiff a  copy with POS.

    Thanks, @Anon Amos.  So I’m guessing that it needs to be filed in advance of Trial?  I can get it to the court on Monday (planning to go there anyway, in order to look at Plaintiff’s brief), but it will be physically impossible to get it to Plaintiff before Trial.  Does this pose a problem?

    Edit: It does mention he timing on this in ccp 632, but it is a bit confusing.

    I see what you mean.  My reading of CCP 632 is that if the Trial finishes in a day or less, the request must be submitted in advance (no mention of how far in advance).  But then it goes on to say that if it finishes in a day or less, the request can be made orally, on record, in the presence of both parties.  Totally contradictory, so I’ll plan on making the request in writing, in advance. So if the Statement of Decision request is filed in advance, should I somehow call the judge’s attention to it at the beginning of Trial?   Also, does a Declaration in Support of the Statement of Decision request need to be filed with it?  

    PS - It looks like this is indeed going all the way to Trial, as my Case Summary was updated this morning to indicate that the Plaintiff filed their Trial Brief with the Court, the day after they received mine. :-(   I’m going to have a bunch of questions over the next few days, so I really hope folks here might be able to help out.  Hope it’s okay that I reference a few people here, in hopes that they might receive notice of my current situation.  Thanks.  @Anon Amos   @RyanEX  @sadinca

    BUMP

    (I have several other questions, but don’t want this one to get lost in the shuffle - thanks!)


  3. 4 minutes ago, CommoSGT said:

    @h8spleadingpaper   Do you have a fax number for the plaintiff?

    @CommoSGTYes.  Are you recommending that I fax a copy of the request for a Statement of Decision to the Plaintiff?  Would that be something that’s required (don’t see anything about it in CCP 632), or merely a strategic move?

    Also, I just re-read the Case Summary and I think that the entry about the Plaintiff filing it’s Trial Brief may be a mistake.  Last week, I filed written Objections to the Affidavits and my Trial Brief with the Court, all on the same day.  There are entries on the Case Summary for my Objections, but not for my Trial Brief.  Instead, there is one for the Plaintiff’s Trial Brief, again on the same day.  So I think that the clerks at my court may have bungled things yet again, by listing my Trial Brief as the Plaintiff’s.  Uggh.


  4. 2 hours ago, Anon Amos said:

    I would file the request for statement of decision even if I thought the judge wouldn't like it. The judge isn't going to have a problem with it, and it sends a good message. You can probably file it any time before trial and send plaintiff a  copy with POS.

    Thanks, @Anon Amos.  So I’m guessing that it needs to be filed in advance of Trial?  I can get it to the court on Monday (planning to go there anyway, in order to look at Plaintiff’s brief), but it will be physically impossible to get it to Plaintiff before Trial.  Does this pose a problem?

    Edit: It does mention he timing on this in ccp 632, but it is a bit confusing.

    I see what you mean.  My reading of CCP 632 is that if the Trial finishes in a day or less, the request must be submitted in advance (no mention of how far in advance).  But then it goes on to say that if it finishes in a day or less, the request can be made orally, on record, in the presence of both parties.  Totally contradictory, so I’ll plan on making the request in writing, in advance. So if the Statement of Decision request is filed in advance, should I somehow call the judge’s attention to it at the beginning of Trial?   Also, does a Declaration in Support of the Statement of Decision request need to be filed with it?  

    PS - It looks like this is indeed going all the way to Trial, as my Case Summary was updated this morning to indicate that the Plaintiff filed their Trial Brief with the Court, the day after they received mine. :-(   I’m going to have a bunch of questions over the next few days, so I really hope folks here might be able to help out.  Hope it’s okay that I reference a few people here, in hopes that they might receive notice of my current situation.  Thanks.  @Anon Amos   @RyanEX  @sadinca

     


  5. Hey, all.

    Sorry to beat this dead horse again, but it looks like I’ll probably be going it without a court reporter.  Most of them I contacted didn’t get back to me.  One that did wanted $995/day or $550/half day, plus minimum of $120 for transcription, which I can’t afford.  Another quoted me $750/day or $375/half day, but told me they’ll have to call me back on Monday to see if anything opens up (they want to reserve their people for trials that last more than one day).  So I just don’t think that the court reporter thing is going to happen.  Does anyone know if asking for a Statement of Decision is likely to p@ss off the judge?  The one I think I’m going to have seems pretty fair-minded toward defendants, so if asking for a Statement of Decision is seen as some kind of insult, I wouldn’t want to tick him/her off.  If it is appropriate to ask for one, when would the time be right to submit it?  Right at the beginning of Trial?  Before Trial?  

    Finally, someone else on the boards was nice enough to send me the attached exemplar.  I’d of course have to change to word “Plaintiff” to “Defendant” and vice-versa anywhere they appear in the document (it seems like it was written by my old nemesis H&H).  Thanks for any insights you may be able to provide.  

     

     

    Statement of Decision.jpg


  6. Hey, all.

    I’ve been completely unsuccessful in finding a court reporter for my upcoming trial (99% of the places I contacted didn’t even reply and the others were busy).  So I’m thinking that the next best thing would be a Statement of Decision and someone here on the site has kindly sent me an exemplar to use.   While I’ll never know for sure who my judge will be, I do know who it’s supposed to be, based on which judges usually take even and odd days at my courthouse.  I’ve watched this person try cases before and he/she seems very fair to defendants, IMO.  So my question is, do requests for statements of decision piss judges off when you submit them?  It sounds like they make extra work on the judge, so I don’t want to upset mine, but I do like the idea of at least having a judge state why they rule as they do.  Just trying to figure out if it might work against me to ask for one.  Also, does anyone know when they have to be submitted by?  Thanks.


  7. Thanks, @shellieh98.  So you’re saying you think I should send a written Objection to the CCP 98 Declaration even though the declarant was successfully served?  I’ve done written Objections to all of the evidence so far, but didn’t think it was necessary for the Declaration, since the witness has been subpoena’d (?)  I’m pretty sure that calawyer’s post on 12/28 is saying that I shouldn’t have to.  Maybe I misunderstood?


  8. Happy New Year, everyone.

    I had a quick question regarding the CCP 98 Declaration.  It was listed on Plaintiff’s CCP 96 Response, but I’ve since had the declarant personally served with a subpoena.  This should render the declaration obsolete, but I’d like to send a message to that effect to the Plaintiff, while also letting the court know that it shouldn’t be admitted (I can imagine Plaintiff showing up without a witness and trying to get it admitted as evidence anyway).  Normally, I’d send a written Objection based on deficiencies in the CCP 98 declaration, but again, it doesn’t really seem appropriate, given that the declarant has since been personally served.

    I’ve already sent the Plaintiff objections to (2) affidavits named in the CCP 96 response and have objections to the remaining evidence almost ready to go (minus the CCP 98).  I’m wondering if it would be appropriate to also submit an objection to the CCP 98 declaration (something to the effect that Defendant objects to its admission at Trial, due to the fact that the declarant has been personally served).

    Thanks for any opinions on this.

     

     


  9. Still no luck with finding a court reporter.  Several people have said they were unavailable, while most haven’t bothered replying.  One sweet lady that I contacted doesn’t do court work but has reached out to several others who do on my account, none of whom replied.  I think she’s more annoyed than I am about it.

     

    Anyway, I’m currently working on my Trial Brief and am wondering if anyone has a defense for the “Indebtedness” Cause of Action.  Also, I used to have a great site for looking up caselaw by party name, but can’t seem to find it anymore.  Same for looking up causes of action; I think I used CACI for this last time, but the jury instructions have no entry for “Indebtedness” as a cause of action.  Can anyone provide links or point me in the right direction again?  I’m coming into a bit of a time crunch, so I really appreciate any help at all.  Thanks!


  10. @h8spleadingpaper

     

     

     

    Collection letters for the debt for which they're currently suing?

    No sir (or ma’am).  They've never sued.  I was just trying to clarify, since stick&rudder asked me to differentiate whether I was referring to suit SOL or reporting SOL.  So I was just referring to the SOL for lawsuits, which Midland missed without filing a Complaint.  Thanks and sorry for any confusion.


  11. Thanks as always, calawyer!  That’s great info to have.

     

    ​This is a total aside, but I just saw this old post of ASTMedic’s on sweatinginca’s thread:

     

    "As for the various BOS they have to conform to both CCP 98 and CCP 2015.5. If they don't then you can object based on those grounds too."

     

    The Bills of Sale obviously aren’t my biggest concern right now and I'll have other arguments against them anyway.  But I’d never heard of any such requirements for the bills of sale.  It seems a bit bizarre, no?  


  12. Thanks, @stick&rudder.  Midland got in their first communication before the SOL for filling a Complaint (suing) was up, but have continued to send collection letters right up to the present.  They get a pass on the initial collection letter (since SOL had not lapsed at that point), but I’m wondering if the more recent letters would be required to contain the “can’t sue” language due to the SOL for suing having lapsed last year.  I’m assuming now that they wouldn’t have to send me anything with the “we can't report” language until 7 years after the alleged delinquency, based on the info BV80 gave me previously.


  13. @h8spleadingpaper

     

    You're not bugging me at all.  :-)

     

     

    That's partly correct.  If the debt is outside the SOL for collection, but is still within the 7-year credit reporting period, they only have to inform you that they won't sue.   If the debt is also outside the credit reporting SOL (7 years), they must inform you of both.

     

    They only have to provide that information if they send a collection letter.   They can stop collection attempts before either of the SOLs expire and never have to send another letter again.

    Okay.  So in my case, they sent an initial collection letter before the SOL kicked in (as well as many others since), but none have contained the language about not being able to sue or report, despite the fact that the alleged debt was supposedly purchased in mid-2014 (after the new rules took effect).  So is there a violation here, or did they never need to send a letter with the “not able to sue/report” because the first correspondence was sent before the SOL was up?

     

    Also, according to my credit reports, Midland has continued to report on this alleged account well into 2015, despite the fact that the SOL was up in 2014.  Would this be a violation as well?  Thanks.


  14. @h8spleadingpaper

     

    CA Civil Code 1788.52(d)(2) & (3):

     

    (d) (1) A debt buyer shall include with its first written

    communication with the debtor in no smaller than 12-point type, a

    separate prominent notice that provides:

     

    (2) When collecting on a time-barred debt where the debt is not

    past the date for obsolescence provided for in Section 605(a) of the

    federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

       "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. If you do not pay the

    debt, [insert name of debt buyer] may [continue to] report it to the

    credit reporting agencies as unpaid for as long as the law permits

    this reporting."

       (3) When collecting on a time-barred debt where the debt is past

    the date for obsolescence provided for in Section 605(a) of the

    federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

       "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, and we will not report

    it to any credit reporting agency."

    Sorry to bug you again @BV80, but I just have to ask one last question about this.  Midland is claiming that the last payment on this alleged account was made in February 2011, while their first correspondence with me was in September of 2014.  So at the time of their first correspondence, the alleged account would not have been time-barred for legal recourse (though it is now).  

     

    Does CA Civil Code 1788.52(d)(2) & (3) indicate that they would have to include the language about not being able to sue or report only if the initial communication is delivered after the SOL has expired?  Or does it mean that even if the initial communication is made within the SOL limits (4 years in California), that they still need to send another letter indicating that they won’t sue or report once the SOL limit is reached, even if they previously communicated with me beforehand?  Sorry if I’m being dense about this; I often read legalese different ways and don’t know which is correct.

     

    Thanks, everyone.


  15. If they don't show, then I assume it would just go away (as you probably wouldn't make an issue over it at this point) because your case would be getting dismissed.

     

    Thanks, Anon.  Out of curiosity, why would they dismiss if the witness doesn’t show?  In my case, the witness is also the CCP 98 declarant (president of the JDB firm).  According to their CCP 96 response, they intend to either use the CCP 98 or his live testimony.  Personal service of the subpoena on him has been successful, by the way.

     

    Still having trouble finding a court reporter, if anyone knows of someone in my area or another way to look.  I did Google and Yelp searches and emailed a bunch of companies, but the only reply I’ve gotten back has to express that they’re unavailable.  I’m kind of wondering if maybe there is a certain kind of court reporter service that I’m supposed to be looking for?  It seems like most of the websites I’ve visited mention things like providing meeting space and transcripts for depositions, but not for sending a reporter to a trial.  Thanks, everyone!  :-)


  16. Also, on a side note (and my above question is actually more important to me), I just happened to notice this language on form SUBP-001 (CA Subpoena form):

     

    "DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY."

     

    Does this only apply if personal service on the Declarant is successful (as opposed to leaving it with whoever will accept it after 3 tries)?  Does it “go away” if the case is dismissed right before Trial?  Who initiates the punishment?  The Court?  The Defendant in the case?  Just curious.  Thanks!

     


  17. So I’m going to try to get a court reporter on this one.  I’m about 3 weeks out from trial, so there should be time (I would hope).  Just throwing a few general questions out there, in case anyone has any experience with this process:

     

    1.  Is there a good way to find a Pro Tempore court reporter?  I thought that last time I found a link on the court’s website that provided some names, but I can’t seem to locate it now.

     

    2.  About how much should I expect to pay?  I think I’ve heard estimates of $200 elsewhere on the site (?)

     

    3.  Anyone know how far in advance a court reporter generally needs to be booked?

     

    4.  Do I need to notify the court in advance if I intend to use one?

     

    5.  If I book a court reporter in advance and then the Plaintiff dismisses a few days ahead of time, can I cancel their services?  I don’t want to screw anyone over, but I’d hate to shell out that much money for someone that doesn’t end up having to do anything.

     

    5.  CCP 1033.5  seems to indicate that Pro Tempore court reporter costs are recoverable via MC-010.  Am I correct?

     

    Thanks as always, everyone!

    • Like 1

  18. Hmmm...  I thought I had something here, but maybe not.  It appears as though the alleged account was supposedly sold to Midland by the purported OC in late August, 2014 (roughly a month before the SOL in California) and immediately began reporting on my CR.  So nothing I can burn them on there.  But then there’s this:

     

    "FDCPA 809(a):

     

    Validation of debts

     

    a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

     

    (1) the amount of the debt;

    (2) the name of the creditor to whom the debt is owed;

    (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

    (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

    (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor."

     

    I assume that the above is referring to a “dunning letter.”  The first communication I received states only the alleged balance owed, the alleged OC, and a settlement offer.  There is no mention whatsoever of the 30 day period for disputing the debt (which I think would be a violation of FDCPA).  Further, the letter (dated 09/10/2014) states that Midland bought the alleged debt from Citibank on 08/29/14 (the same date they began reporting on my CR).  Now I’m no math genius, but this letter would seem to demonstrate, by their own admission, that they waited more than 5 days after first contact (the tradeline entry) before sending this letter.  So I had a few questions:

     

    1.  Am I correct in thinking that the tradeline would be considered the first communication? Or would it be this letter?

     

    2.  Regardless, a proper dunning letter was never sent after this correspondence either.  But how I could prove this, since I would imagine that they would just generate a fake one, along with a false POS and backdate both if sued?  

     

    Thanks for any insights.  I’d love to hurt these guys, if it’s possible.


  19. Oh wow, CommoSGT!  Do you happen to have the thread that the above quote was taken from?  I looked up CA Civil Code 1788.50, but it essentially just gives definitions for what a “Debt Buyer” is and what is considered “Charged Off Consumer Debt” from January 1st, 2014 on.  But I’m VERY interested in the idea of hitting Midland with violations, as it definitely looks like there have been some violations here.  Does it usually end up being worth the cost of using a CA consumer attorney (I’m guessing this was recommended because it’s too much for the average pro per to handle)?  

     

    By the way, I looked up the CFPB entry on this and boy, is it a doozie.  It’s also interesting that it involved Portfolio, who I fought earlier this summer.  The link, which also provides some great info on the kinds of abusive practices JDBs routinely engage in can be found here, for those who are interested:  

     

    http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

     

    If I’m reading it right, the CFPB ruling also bars Encore (and I’d assume Midland) from reselling this alleged debt.  If that is the case and I can chase them off by going after them for violations, this purported account may go bye-bye.

     

    I’d love to find something like this on Absolute Resolutions V, LLC, since I’m going against them in court in a few weeks.