h8spleadingpaper

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Posts posted by h8spleadingpaper


  1.  

    FDCPA suits: For SOL violations - what matters is when they filed the suit. If they filed the lawsuit before the SOL was up, they are okay, there is no violation. When there is a violation, you have just one year from the date on which the violation occurs to file a suit against them.

    Okay, this may be important for reasons unrelated to this case (I can start a new thread, if needs be).  Midland has been pursuing me rather aggressively of late, with many phone calls and several written settlement offers, on a separate alleged account.  These actions are very reminiscent of what happened with PRA right before they sued in the case above.  Midland has not opened a case yet (I just paid a buck to check the docket online).  

     

    However, I just pulled my annual free credit report from all (3) agencies and Midland is reporting on them all.  While all of the CRs indicate a "Date Opened" or "Placed For Collection" date late in 2014, I believe that this entry only indicates when Midland began its collection activity.  Equifax and TransUnion also have very recent (like a week-old-recent) "Date Reported" entries, while Experien has a "Reported Since" date from January of 2015.  While the alleged OC doesn't appear on any of these new CRs, I pulled one from 2013 that does show it, along with a "Last Payment" entry of February 2011.  

     

    So my question is, if Midland hasn't yet sued (and I believe that I'm now outside of SOL in anyone's book), are they allowed to be reporting?  Since I'm sure that the answer is "yes," does it matter that at least (2) of the CRs show reporting dates outside of SOL?  Thanks.


  2. Okay so I'm sorry to belabor this topic, but I'm getting no help from my court.  I printed out and signed the first page of MC-010 (not the POS page, since it seems like that would come later).  I took it down to the courthouse and, as usual, got a very unhelpful clerk.  I told her that I had been waiting for a mailing of the court's notification of dismissal of my case, but that none had ever arrived and I was worried that I might miss the deadline for filing for costs.  She gave me a blank look and asked if I wanted a printout of the Case Summary.  I told her I did not, as I had already seen it and noted that the court backdated the entry for dismissal.  There is no indication on the Case Summary of a Notice of Entry of Dismissal being generated, filed or sent.  Instead, the following two entries appear:

     

    07/xx/2015 CASE FILE RETURNED TO CIVIL DEPARTMENT FROM COURTROOM.

     

    07/xx/2015  DISMISSAL WITHOUT PREJUDICE FILED FOR THE ENTIRE ACTION AS

    TO ALL DEFENDANT(S) AND ALL CAUSES OF ACTION(S).

     

    I reiterated to the Clerk that I had been expecting something from the court in the mail regarding the dismissal, but hadn't received anything.  She again offered to print out the Case Summary.  Getting nowhere with this line of inquiry, I asked her if MC-010 was supposed to be filed with the court before or after being served on the Plaintiff.  She said that's legal advice, which she can't give.  She disappeared into the back of the office for about 10 minutes with page 1 of the MC-010 form (the original, not a copy).  When she finally re-emerged, she said she'd take it and give it to their writ department.  I then asked for a conformed copy of page 1 and received it.  I asked if I should wait to hear from their writ department before sending anything to the Plaintiff and she again said she couldn't give me legal advice.    

     

    So my plan (for lack of a better one), is to send a copy of the conformed copy of page 1 of MC-010 to the plaintiff today, along with a POS from my neighbor today.  I don't know if I then need to send a copy of the POS to the court because...  you guessed it... the Clerk wouldn't tell me.  Does anyone know the following?

     

    1.  Why the court wouldn't have mailed me anything about the dismissal?  Will their failure to do so give the Plaintiff the ability to weasel out on paying the costs, since we're just over 15 days from the trial date?  I know that Rule 3.1700 says 15 days from the mailing of notice of dismissal, but since the court never sent such a document (and probably never will), I'm assuming that the 15 day clock will have to start from some other date.

     

    EDIT - Based on what I just read on another website, I'm pretty sure that I can count 15 days from the date of the Plaintiff's Notice of Ruling for Dismissal Without Prejudice of the Entire Action that I just received, since the Court never sent me anything.

     

    2.  Is the Plaintiff supposed to be served with a conformed copy of MC-010 or just a regular copy?

     

    3.  Is the Plaintiff supposed to get something from the court's writ department before they pay?

     

    4.  MC-010 didn't ask for any receipts from the process server, so I didn't include any.  Is that correct?  

     

    5.  I also just read that I might need to send form MC-011 along with MC-010.  Does that sound right?

     

    6.  Does it seem alright to skip the CMRRR for sending the above, since the court has a copy?  I'm so tired of paying for all of this postage that I can't recover on.

     

    7.  Rule 3.1700 includes the following:

     

    "The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case."

     

    Does this mean that I need to include some kind of Declaration in Support of MC-010, or is page 1 of MC-010 with my signature on it enough?

     

     

    Thanks, everyone.  I honestly tried to answer the above questions on my own, but I'm not getting it and don't want to give PRA any way to skip out on paying due to a technicality.  I don't know why the court doesn't have instructions for these things.   :dunno:


  3. Having a lot of difficulty cutting and pasting the old exported posts, so I'm going to try to post them here as attachments.  Sorry for the inconvenience this may add, but I wanted to get the information back out there, for those who may need it.

     

    Portfolio Recovery : Hunt & Henriques - Is There a Lawyer in the House - Credit InfoCenter Forums1.pdf

    Portfolio Recovery : Hunt & Henriques - Page 2 - Is There a Lawyer in the House - Credit InfoCenter Forums2.pdf

    Portfolio Recovery : Hunt & Henriques - Page 3 - Is There a Lawyer in the House - Credit InfoCenter Forums3.pdf

    Portfolio Recovery : Hunt & Henriques - Page 4 - Is There a Lawyer in the House - Credit InfoCenter Forums4.pdf

    Portfolio Recovery : Hunt & Henriques - Page 5 - Is There a Lawyer in the House - Credit InfoCenter Forums5.pdf

    Portfolio Recovery : Hunt & Henriques - Page 6 - Is There a Lawyer in the House - Credit InfoCenter Forums6.pdf

    Portfolio Recovery : Hunt & Henriques - Page 7 - Is There a Lawyer in the House - Credit InfoCenter Forums7.pdf

    Portfolio Recovery : Hunt & Henriques - Page 8 - Is There a Lawyer in the House - Credit InfoCenter Forums8.pdf

    Portfolio Recovery : Hunt & Henriques - Page 9 - Is There a Lawyer in the House - Credit InfoCenter Forums9.pdf

    Portfolio Recovery : Hunt & Henriques - Page 10 - Is There a Lawyer in the House - Credit InfoCenter Forums10.pdf

    Portfolio Recovery : Hunt & Henriques - Page 11 - Is There a Lawyer in the House - Credit InfoCenter Forums11.pdf

    Portfolio Recovery : Hunt & Henriques - Page 12 - Is There a Lawyer in the House - Credit InfoCenter Forums12.pdf

    Portfolio Recovery : Hunt & Henriques - Page 13 - Is There a Lawyer in the House - Credit InfoCenter Forums13.pdf

    Portfolio Recovery : Hunt & Henriques - Page 14 - Is There a Lawyer in the House - Credit InfoCenter Forums14.pdf

    Portfolio Recovery : Hunt & Henriques - Page 15 - Is There a Lawyer in the House - Credit InfoCenter Forums15.pdf

    Portfolio Recovery : Hunt & Henriques - Page 16 - Is There a Lawyer in the House - Credit InfoCenter Forums16.pdf

    Portfolio Recovery : Hunt & Henriques - Page 17 - Is There a Lawyer in the House - Credit InfoCenter Forums17.pdf

    Portfolio Recovery : Hunt & Henriques - Page 18 - Is There a Lawyer in the House - Credit InfoCenter Forums18.pdf

    Portfolio Recovery : Hunt & Henriques - Page 19 - Is There a Lawyer in the House - Credit InfoCenter Forums19.pdf

    Portfolio Recovery : Hunt & Henriques - Page 20 - Is There a Lawyer in the House - Credit InfoCenter Forums20.pdf

    Portfolio Recovery : Hunt & Henriques - Page 21 - Is There a Lawyer in the House - Credit InfoCenter Forums21.pdf

    Portfolio Recovery : Hunt & Henriques - Page 22 - Is There a Lawyer in the House - Credit InfoCenter Forums22.pdf

     

     

    • Like 1

  4. 1. Who is the named plaintiff in the suit?

    PORTFOLIO RECOVERY ASSOCIATES, LLC

     

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

    HUNT & HENRIQUES

     

    3. How much are you being sued for?

    $7,xxx.00

     

    4. Who is the original creditor? (if not the Plaintiff)

    HSBC BANK, NA

     

    5. How do you know you are being sued? (You were served, right?)

    I received a solicitation in the main from an attorney offering to defend me.  I was never served a Summons or Complaint by the Plaintiff.  Almost a year after the Complaint was filed with the court, I received a Proof of Service form for the NOTICE OF TRIAL, signed by a legal manager at the Plaintiff's attorney's office

     

    6. How were you served? (Mail, In person, Notice on door)

    Never served Complaint or Summons.  Served Proof of Service form for NOTICE OF TRIAL by mail.

     

    7. Was the service legal as required by your state?

    No, though I suspect they will claim "Sewer Service"

     

    8. What was your correspondence (if any) with the people suing you before you think you were being sued?

    Nothing

     

    9. What state and county do you live in?

    Los Angeles, CA

     

    10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

    No particulars provided by Plaintiff

     

    11. What is the SOL on the debt?

    4 years in CA 

     

    12. What is the status of your case? Suit served? Motions filed?

    Complaint filed, Answer Served on Plaintiff's attorney and accepted by the court, set for Trial 07/xx/15

     

    13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

    No

     

    14. Did you request debt validation before the suit was filed?

    No

     

    15. How long do you have to respond to the suit?

    Answer has been served.  About to send Demand for BOP

     

    16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

    Absolutely nothing


  5. To my fellow Pro Per defendants,

     

    Right before my trial, I had my initial thread for this topic taken down.  However I was able to first export most of the information contained therein, and after hearing from several other members about how helpful the thread had been to them, I decided that I just had to try to bring as much of it back to the site as possible.  I apologize in advance if the posts look a bit odd; I'm having to cut and paste them into this new version from .pdf files.  The conclusion to this thread may be found here:  http://www.creditinfocenter.com/community/topic/326248-portfolio-recovery-hunt-henriques-new/.

     

    I hope that having things divided this way (into a Part 1 and Part 2) isn't too confusing.  It's my sincere wish that the information contained herein helps others who come after me.  The time, effort, and endless patience shown by so many who helped me on this site deserve to live on for posterity. 

     

     

     

     

     


  6. You can't file lawyers fees for yourself either.

    Ha, no.  I just meant that I would assume that a Pro Se can't file for fees rendered by an attorney early on (which didn't happen in my case), based on the fact that they are representing themselves at trial.  

     

    PS - Sorry that I asked about postage above.  In going back through the exported pages of my old thread, I found that calawyer had already answered that one for me.  D'oh!  (facepalm)


  7.  So now, I would technically be just past the 15 day deadline from the backdated entry on the Case Summary.  However, I've never received anything in the mail from the Court indicating the dismissal, and I just received Plaintiff's Notice of Ruling for Dismissal Without Prejudice of the Entire Action in the mail today.  Can I still file to recover costs, based on the date this document was sent?  I could get the paperwork out tomorrow morning.

     

    (BUMP)

     

    Also, it looks like the MC-010 just goes straight to Plaintiff, along with POS?  No need to send it to the Courthouse first or in addition to Plaintiff?  I'll definitely take that $100+ in subpoena fees.  Thanks!


  8. Check your online case file, see if the clerk generated/filed the Notice of Entry of Dismissal. If yes, and it's been at least a few days since it was generated but has not arrived to you in the mail, I might go ahead and file/serve the. If it hasn't been generated yet, then maybe a call to the clerk to see if they are just backed up/behind on it.

     

    Okay, looks like I'd better shake a leg on this (if it's not already too late).  The Court didn't enter the dismissal on my Case Summary until several days after the trial.  When they did, they backdated the entry to several days before the trial (yes, I'm pretty furious about this - it shows that they were obviously aware of the dismissal ahead of time, but like the Plaintiff, didn't bother to let me know.  I was checking the Case Summary every couple of minutes in the days leading up to trial, in hopes of a dismissal).  @calawyer should just love this bit of info.  So now, I would technically be just past the 15 day deadline from the backdated entry on the Case Summary.  However, I've never received anything in the mail from the Court indicating the dismissal, and I just received Plaintiff's Notice of Ruling for Dismissal Without Prejudice of the Entire Action in the mail today.  Can I still file to recover costs, based on the date this document was sent?  I could get the paperwork out tomorrow morning.

     

    Regarding process server fees, postage, plaintiff contesting costs: it's all the links/codes I referenced. Did you check them out?

     

    Yes, I did.  Looks like the only thing I can try to recover for is the process server fees, not postage.  Bummer.

     

    Also, just figured I'd throw this out there, even though I'm sure it doesn't have a snowball's chance.  When I first found out that I was being sued, I contacted an old acquaintance who knows a bit more about the law than I.  Because I was scared of what might happen, he managed to get me to sign a contract, agreeing to pay him $300 for providing me with a fee waiver and an Answer to the complaint.  I paid him and was given a couple of really crappy-looking 1 page photocopied documents that he had obviously downloaded from the internet.  By the time I got them, I had already begun reading things on this site and knew that I could put something much better together, which I did.  Just wondering if anyone thinks there is a way to recover some of the $300 that I paid him as lawyer fees.  I should note that the person I'm referring to is NOT an attorney, so I'm assuming the answer is "no."  I'm also assuming that having chosen to represent myself as the Defendant also precludes filing to recover lawyer fees as well.  Just figured I'd fling it on the wall out there and see if anything sticks.  Thanks.

     

     


  9.  

     

    First step is to "file and serve a Memoradum of Costs (MC-010)  within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk" > California Rules of Court  3.1700.

     

    My case was about 2 weeks ago and I haven't received anything in the mail from the Court.  If I keep waiting for them, do I run the risk of losing out, or does this seem normal?

     

    Fees that can be recovered are listed in CCP 1033.5. Generally speaking, a pro se can get back the filing fee & process server fee.

     

    No filing fee for me, as I was granted a waiver.  In regard to process server fees, I paid to try to have the CCP 98 "witness" served, but I also paid a process server to deliver the Answer to the initial complaint to Plaintiff as well (I didn't originally know that CMRRR would do the job for this).  Does anyone know if I can recover for this, or if it would be shot down as a cost based on my own mistake?  Similarly, I had thought that I could also recover for all postage related to the case (mailing things to Plaintiff, as well as the Court).  Anyone know if I'm correct about this?  I see that line 13 on the MC-010 form is listed as "Other."  Not sure what my total postage costs were, but there were quite a few $6 charges for CMRRR and several $20 charges for overnighting things to make deadlines.  Just wondering how likely the opposition is to balk at about $110 in process server fees and $100-$200 in postage fees.  And if they do balk, how do they go about it?

     

     

    BUMP


  10. Dear Future Pro Se's,

     

    As promised, here are the redacted versions of the Trial Brief, written Objections, and Declaration in Support of written Objections that I used in my case:

     

    Defendant's Trial Brief:

     

    REDACTED TRIAL BRIEF.doc

     

    Defendant's Objection to Plaintiff's Declaration in Lieu of Personal Testimony at Trial:

     

    REDACTED OBJECTION TO PLAINTIFF'S DECLARATION IN LIEU.doc

     

    Declaration of Support of Defendant's Objection to Plaintiff's Declaration in Lieu of Personal Testimony at Trial:

     

    REDACTED DEC IN SUPP OF OBJECTION TO PLAINTIFF'S DECLARATION IN LIEU.doc

     

    You'll need to read the entire documents, line-by-line, and tailor them to meet the specifics of your case (by changing things like the Causes of Action, etc).  You may also have to add things to the docs (for example, there was no Breach of Contract Cause of Action in my case, so if there is in yours, you may want to introduce arguments regarding this).

     

    Wherever possible, I've tried to indicate specific items that you will need to fill in with your own info by using brackets   "[  ]" or replacing my information with "XX"s, or using "he/she" when referring to particular people in the case.  You should be sure to go over everything very carefully and replace my particulars with your own, including the info in the footers of the docs (very easy to miss, if you're not looking for them), in order to avoid giving the impression that you are re-using form docs without understanding them.  

     

    I really hope that these will help future people on the site.  It goes without saying that I am not a lawyer and have never attended law school.  Nothing in this thread should be considered as constituting legal advice of any kind.  Just some thoughts from a fellow Pro Se, who was fortunate enough to find this site and receive the very generous help of some excellent human beings.  Good luck with your journey.

     

    Best,

     

    H8spp

    • Like 5

  11.  

    First step is to "file and serve a Memoradum of Costs (MC-010)  within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk" > California Rules of Court  3.1700.

     

    My case was about 2 weeks ago and I haven't received anything in the mail from the Court.  If I keep waiting for them, do I run the risk of losing out, or does this seem normal?

    Fees that can be recovered are listed in CCP 1033.5. Generally speaking, a pro se can get back the filing fee & process server fee.

     

    No filing fee for me, as I was granted a waiver.  In regard to process server fees, I paid to try to have the CCP 98 "witness" served, but I also paid a process server to deliver the Answer to the initial complaint to Plaintiff as well (I didn't originally know that CMRRR would do the job for this).  Does anyone know if I can recover for this, or if it would be shot down as a cost based on my own mistake?  Similarly, I had thought that I could also recover for all postage related to the case (mailing things to Plaintiff, as well as the Court).  Anyone know if I'm correct about this?  I see that line 13 on the MC-010 form is listed as "Other."  Not sure what my total postage costs were, but there were quite a few $6 charges for CMRRR and several $20 charges for overnighting things to make deadlines.  Just wondering how likely the opposition is to balk at about $110 in process server fees and $100-$200 in postage fees.  And if they do balk, how do they go about it?

     

    Did H&H buy this debt on or after Jan 1, 2014?

     

    Nope.  

     

    IMO, no beehive to disturb; as much as these people behave like they're ignorant of the code, they know what's in there and that they're on the hook for costs when they dismiss. Besides you're beyond SOL anyway.

     

    Great, thanks!


  12.  

    Unfortunately they don't have erase the trade line after dismissing your case. Fortunately though, the allowable reporting time on their trade line is tied to the allowable reporting time of the trade line from the original creditor. 

    Thanks, RyanEX.  Does this seem kind of strange to anyone, though?  I mean, if it was dismissed, shouldn't the reporting also stop?  Sometimes dismissals arise from the fact that a defendant has demonstrated that the alleged debt is clearly not theirs.  It seems like in such instances (which, granted, is not quite the same as my situation, since the case was dismissed prior to trial), Plaintiff would have to stop reporting.  


  13. Now that the trial is over, I have some questions about the Plaintiff reporting on my CR.  The last time I pulled my credit report (2013), this JDB had a tradeline thereon.  So I'm currently considering pulling my CR again and looking into a possible FDCPA violation for reporting on a disputed (and dismissed) account.  My questions, for any who may have knowledge and experience in such matters, are as follows:

     

    1.  I should be able to pull a free annual credit report again.  Rather than using up this once-a-year option however, I'm wondering if having been sued is a qualifying event for receiving a report (similar to how a consumer can get a free report if turned down for a credit card, etc).  This way, I could hold my free annual report in reserve, in order to check things again in the coming months.

     

    2.  If the JDB is still reporting on my CR, is this an automatic FDCPA violation?  Or do I need to write them to remove it first?  

     

    3.  Does the fact that the case was dismissed without prejudice allow the JDB to continue to report on my CR for a period of time?

     

    4.  Is suing for an FDCPA violation difficult, or relatively straightforward?   

     

    5.  Finally, I'm interested to hear peoples' thoughts on whether or not suing for an FDCPA violation would be worth it or not.  To be more specific, SOL on this alleged account was up in California almost a year ago.  So I'm wondering if going ahead with pursuing an FDCPA violation would likely cause the JDB to try to renew their efforts to re-open the suit, or perhaps less likely, since they would realize that I'm an aggressive defendant.  I realize that no one has a crystal ball to look into and give me a definitive answer on this; I'm just trying to gather some educated opinions so that I can make a more informed choice.

     

    Thanks for any input you may have.


  14.  

    Anyway, I again want to say how proud I am of you.  If you have any doubt at all that it was your efforts that brought about this result, think again.  You were not one of those defendants ushered into the back room to cut a deal.  Your case was dismissed before you even got there.

     

    Nicely done!

     

    Thanks, calawyer.   You were such an inspiration, my rock through all of this.  I've told some close friends and a family member about how very much you and others on the site did to help me.  You may never meet a single one of them, but believe me when I tell you that they all deeply appreciate you, and were touched by what you did for me.  I really needed help, and it meant so very much to us that someone who didn't even know me was willing to reach out and to give so generously of their time.  You have our eternal love and gratitude.  

    • Like 2

  15. I'm calling mine another "win" for California, as noted above.  Dismissal Without Prejudice from Portfolio (case is now outside of SOL):

     

    http://www.creditinfocenter.com/community/topic/326248-portfolio-recovery-hunt-henriques-new/

     

     

    Could not have possibly done it without this site.  An enormous, heartfelt "thank you" to all, particularly the tireless calawyer and AnonAmos.  I owe you both so very much.  Thank you!!!

    • Like 4

  16. Hey, folks.

     

    Sorry I've been gone a while.  Not to overshare, but some chronic health problems were exacerbated by all of the trial prep, and I was pretty incapacitated for a week afterward.  I'll be posting my redacted Trial Brief and Objections soon, but don't want to leave people hanging any longer, so here's what occurred in the final days of my case. 

     

    Several adverse things happened in the weeks leading up to my trial, which caused a lot of added stress.  For one, a well-intentioned member of the site warned me that the Plaintiff's council might be trolling the site for information to use against defendants.  I found out later that this was based on one or two incidents in the past, where members hadn't been as careful as perhaps they should have in what they disclosed.  At the time, being under a lot of other pressures and only a week or so out from trial, I panicked, started deleting posts, and finally (since there were 22 pages to go through and no time to do it), had the thread taken down.  There really was no logical reason for me to do this; there was nothing incriminating to worry about and I certainly had never made any admissions that would help the opposition, even if they did somehow manage to find the time to look for, much less locate my thread.  Similarly, it made no sense for me to worry about the opposition knowing how I intended to fight them, since I was going to be giving them my trial brief anyway.  But as the old saying goes, while pressure sometimes creates diamonds, more often than not, it creates coal.  The point here is, always be absolutely sure that you are not putting anything in your threads that could damage your case (i.e. - personal information, admission of anything, etc) in case the unthinkable happens and if falls into enemy hands.  That way, you'll have no reason to panic the way I did and risk depriving yourself of the valuable input that others may be able to offer by removing your thread.  Luckily for me, folks on this site stuck right by me when I started this (new) one and matters continued after a brief setback.

     

    There was also the matter of my judge.  For months, I had been calling the court and even stopping by in person to ask who my judge would be, only to be told that the judge would not be assigned until the week of my trial.  Going back to the first days when I found out that I was being sued, an acquaintance who has spent a lot of time at my local courthouse had warned me about a particular judge there who was known to be pro-Plaintiff.  There are differences of opinion as to whether any judge is truly pro-Plaintiff or pro-Defendant, and I respect that.  But what I did come to learn in the final stages of things was that, to a varying extent, much can come down to the judge and whether he/she chooses to accept a defendant's arguments or not.  This came as a bit of a surprise to me (as it no doubt does to some of you), and only served to increase my anxiety over the fact that I wasn't being told who I would be getting.  At one point, one of the clerks actually told me that a completely different judge from the one who I ended up with would be presiding.  I could tell he was basing this an entry in my Case Summary, which probably meant nothing at all (obviously, I was right about this).  

     

    A few days before my trial, I called the Clerk's office again and wouldn't relent.  They had, after all, told me that they would finally reveal the mystery judge's name during the week of trial.  This time, they finally connected me with the clerk that actually works inside the courtroom during proceedings.  She informed me that my judge would be the very same one an acquaintance had warned me of back at the start of things.  I let out a heavy sigh and she asked if her response was good or bad.  I told her that for a Defendant, it was probably not good.  In a low voice, she informed me that she agreed with my assessment of the situation.  My heart sank.  I had observed this judge in action and witnessed him informing the courtroom that he believed cc statements to be "self-authenticating."  I looked into issuing a Peremptory Challenge to have the judge removed, but since the court had denied me knowledge of who he was up until that point, the deadline for filing had already passed (different courts have different rules on this - for me it was 10 days prior to trial).  I called the clerk back and explained the situation.  She informed me that all I could do was to file the Peremptory Challenge on the morning of my trial and that the judge would rule on whether it was timely or not.  I fretted over it, but in the end decided that this judge would most likely just rule against me on it and I'd have a PO'd pro-Plaintiff robe set against me the whole time.  

     

    I'd love to be able to tell you all that on the morning of trial, I strode into court with my chest puffed out and my head held high, and proceeded to destroy the opposition, despite my concerns.  However, this wouldn't be honest and, moreover, I think that the truth might be of use to those who find themselves feeling less-than-sure of themselves when the day rolls around for them.  In reality, given all of the setbacks, having to take state exams just days before trial, and in dealing with assorted health problems, I was still racing to prepare the night before (not at all how I planned for things to go).  As a result of the extra stress, my insomnia kicked into high gear and I didn't sleep.  I dressed my best the next day and went in to court feeling resigned.  All options were now on the table.  I was tired and hurting as I sat down and started looking over my Brief and Objections.  The words were swimming before my eyes and I was upset that after working so hard on this for so long (with others working just as hard to help me out), it might all go down in flames.  But I decided to keep my cool (or at least to appear that way), and gave off the appearance that I was thinking profound thoughts.  No matter what, I was not going to make this easy on them.

     

    There were pages and pages worth of trials and motions posted outside the court room that day.  The plaintiff's rent-a-lawyer flew in on a broomstick and started complaining in a loud voice that she was overbooked and overworked.  I thought, "This is good for me."  She started calling defendants out into a side room to cut deals, while we all waited for the judge to show up (he was late, just as he had been when I observed him weeks earlier).  When she finally got to me, I had a few hints ready to drop her way about the fact that I had a very good case and was prepared, but it never became necessary.  As soon as we got in the other room, she informed me that she was going to dismiss without prejudice.  Not what I had expected, but with my enormous binder under one arm, I decided to press my luck a bit by citing CCP 581(e), and telling her that only a dismissal with prejudice would do.  She countered that she couldn't do that unless the trial had begun.  I stalled for time.  She told me (I'm paraphrasing here), "Look.  I don't know what your case details are.  I haven't even seen your trial brief.  But Plaintiffs almost never re-file these cases, especially if it would be outside the statute of limitations."  At that, I agreed to the dismissal without prejudice.  I went over and quietly talked to the clerk, asking if there was any way to get it in writing that my case had been dismissed.  She made a joke about me not believing the Plaintiff's attorney.  I asked, "Would you?"  After all I'd gone through, I wanted to hear it from the judge's own lips.  Finally, when the judge was a full 20 minutes late to begin proceedings, the clerk announced in front of a packed court room that my dismissal was in the system and I could go.  At this, I felt comfortable enough and left.  

     

    There are a few points that I'd like to make about the above.  One is the fact that exactly one day after the Trial, I received a notice of dismissal from the JDB's lawyers in the mail, which had been sent several days before all of this.  Had it gotten there two days sooner, I could have spared myself a lot of grief.  When I looked at the dates, what I came to realize is that on the very day that the opposition received my Trial Brief and Objections, they printed and signed the dismissal letter.  However, since this was on a Friday afternoon, it was never actually postmarked until Monday (I'm sure they didn't bother to rush it right down to the Post Office for me).  Now, my original strategy in sending the Brief and Objections to the Plaintiff had been to illicit just such a response.  However, I didn't get it to them as early as I had planned (at least a week ahead of the trial).  Thus, while the strategy does appear to have worked, it wasn't quite timely enough.  So if you plan to use a similar strategy, I would highly recommend that you consider getting your brief to the opposition a full week in advance.  Also, be sure to check your court's rules ahead of time, as some actually require you to serve a brief on the Plaintiff, and may have rules about when you have to do it.

     

    The other thing I'd like to point out is how very important it was for me to go to court that day, despite feeling defeated.  Anything could have happened, had I not.  There could have been no dismissal letter floating around in the USPS NeverNeverLand.  Had there not been, it would have been easy for the Plaintiff to ask for and receive a default judgment, without knowing anything about my case or being prepared for my arguments or any evidence that I might choose to present (I still can't believe that an attorney for the Plaintiff actually admitted that she had no details about my case and hadn't even read my Brief).  She was overloaded with cases, in an emotional tizzy, and might not have fought very hard if pressed.  Simply put, once it's down to the wire like that and you've committed to going through with things, there's nothing to lose and everything to gain by having your day in court, in my opinion.  I did the research, prepared well (with an incredible amount of support and help from heroes like calawyer and Anon), was thrown some hard curve balls, thought I was down-and-out, showed up anyway, and got a dismissal.  We all tend to think that the opposition is working every bit as hard as we are on our cases, grinding teeth, and burning the midnight oil to beat us.  In reality, the JDB was not prepared for a fight, used a rent-a-lawyer, and decided to go after the low-hanging fruit.  If you prepare for war but get thrown some really hard luck, things can still go your way.  Just don't give up.

     

    Maybe not the adventure story you were all expecting, but for me, it was a happy ending nonetheless. 

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