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Everything posted by browniebrownie141

  1. Hi, I am also from Los Angeles, California. 1. The general denial form that you put in on, is ONLY for $1000 or less, please take a closer look ( in the middle where the big general denial wording, down under that) .... 2. If I am correct, you may want to consider using form PLD-C-010, you can find this : http://www.courts.ca.gov/documents/pldc010.pdf ( of course, you can go to same website and from there, then click FORMS/RULES, then search under pleading, you can see different one. 3. Like the ladies and gentlemen here, you may also consider to apply for "fee waiver", if approved, then you would not need to pay for filing, motions and many other fee(s). http://www.courts.ca.gov/selfhelp-feewaiver.htm 4. As for the Affirmative Defense(s): http://www.saclaw.lib.ca.us/uploads/files/forms/Attach4.pdf One suggestion is to make sure the A-D you are about to select, would NOT be contradict to each other. Most of the people are rushing to make decision, & they think the more A-D the better, it is NOT neccessary the case. For example, the SOL -statue of limitation, if you stopped making payment & has been more than 4 years, SOL is good, IF yours is less than 4 years, not good ! 5. Since your deadline is so close ( Tuesday, right! ) I really suggest you to personally go to the Court filing clerk office and submit your paper to answer / repy to Summon. Bring 2 copies of everything with you, they will need to "stamp" ( called file-stamp) the papers, they will keep 1 for the court, 1 copy - for yourself, 1 copy send it to plaintiff attorney office. 6. After you turn in the papers to Court filing Office, next step is send a copy to Plaintiff. Proof of service form: When mailing those document to plaintiff, it has to be done by someone else, that means, you can't take it to post office or take to UPS/ FEDEX to send it by yourself !! I know it's sounds crazy, but it has to be done by another person. Take a look at form POS-30 or POS-40 or others you like: http://www.courts.ca.gov/forms.htm?filter=POS 7. www.lasuperiorcourt.org is Superior Court of California website. Go to "case summary" and type in your case #, it then shows your case , from the Court's clerk filing office, what is the status of your case. It is very important you know what's going on, if plaintiff makes any move, such as motions, etc, they must file it with the court ( except Discovery papers), this way, you can see what's going on. DO NOT depend on plaintiff's notice / letter. Keep in mind, most of the document, requires a reply within certain deadline, so pay attention to it.
  2. @shellieh98: They responsed to my discovery after I sent them “meet & confer” letter. And through-out their response, in their own writing , they do not & did not have credit application, user agreement, billing statement, could not accounted for the account balance, do not / did not have any contract signed between plaintiff & defendant. Only ½ page titled “ Bill of Sale/assignment” stating HSBC sold / transfer to plaintiff, but so brief that it does not reference any account name / #s. And another computer print page- 1 column only (1 inch wide) printed my name & address, but separated from Bill of sale/ assignment, bottom says data prepared by plaintiff. Original creditor sold to 2nd JDB, and 2nd JDB sold to Portfolio Recovery Asso, LLC (=plaintiff). Yet, the bill of sale they came up with, surprised me. I originally expected them to come up with many funny affidavit(s), they did not. Or should I say, not yet. Looking at some case law(s), suggesting that kind of “partial bill of sale” have been used by many JDBs, and often got thrown out, because once again did not reference to name & account #s, I know I need to “attack” it this way. I put 11 reference case law(s) on my MSJ, all focusing on lack of evidence, standing, privity,…I even had 2 on exactly partial bill of sale like that. I heard or read somewhere about CCP96, once submitted, the other party would have to disclosed all evidence and witness will be used, those are not on the listed would not be used during trial, right ? Is it advisable for me to do it NOW for the MSJ or it is only for trial? If it is only the the trial, I would for sure remember this and if my MSJ get rejected, will sure use it ! Can you also touch on “counting the dates- not too early / not too late” relating to CCP96? I think I also need to find out the actual form for CCP 96 and CCP98. I totally agreed with you, I am sure the plaintiff would file opposition, and perhaps it’s own MSJ- but they would need to come up with reason(s) for such MSJ. In most cases, defendant made serious mistakes in discovery, admitting something they should not have, thus, plaintiff hit them with MSJ. But once again, this is something out of my control, what I can do, like you suggest, is to learn and to prepare for it. I turned in my discovery response to them, almost 3 before they sent theirs to me, although we shot at each other almost the same time. Like I said, they would need to come up with reason(s) for MSJ to me. I did not fall for the “hole” in answering their discovery. But who knows, they want to file MSJ, they will file it, right ! Million thanks When the whole thing is over, I will send you some flowers, or buy you a bottle of wine, ...
  3. @shellieh98: First of all, I truly appreciate your input, and I mean it. I know the path I picked is not the conventional way, or perhaps, not in the right order. But I do want to cut it short. The plaintiff's " don't have this & that".....throughtout their response to my discovery, and I pointed out the exact pages and lines written in my undisputed statement that went along with MSJ. The reason I ask about subpoena--can I.....because, I want to close "loose end". The hearing date for the MSJ is two and half month away, the plaintiff can throw some meaningful / non-sense material(s)/ affidavit(s), right ! And, it is because I also listened to you and others, and why I am thinking and asking about the subpoena issue. Yes, I mentioned that the Bill of Sale/ assignment does not referenced to my name and account #, and I will use these to attack, and I had also put that down on undisputed statement, that went along with MSJ. When you mentioned that I could "request" the document from plaintiff, since I used up all 35 questions maximum allowed in discovery, how do I request it from plaintiff in your opinion ? Or once again, back to sending the subpoena to plaintiff, using the SUBP-045 ( out of state ) ? Tell me, if it were you, what steps and how would you do it, in conventional way ? Million thanks
  4. Also, 1 more question: the HSBC person who signed the Bill of Sale/ assignment, seems to be located outside of california, so, can anyone just confirm for me, which form should I use: SUB-045: http://www.courts.ca.gov/documents/subp045.pdf OR SUBP-002: http://www.courts.ca.gov/documents/subp045.pdf Million thanks
  5. @shellieh98: Gettting back to the "Bill of Sale" concern, can I subpoena/ ask for document(s) directly to HSBC ? From plaintiff's discovery response, they said any subpoena/ request would need to go thru plaintiff's attorney-- is that non-sense? Can I send the subpoena directly to HSBC? --providing I case file the subpoena with the court and proof of service to plaintiff's attorney. When I obtain the response from HSBC that indicating HSBC did not sell directly to plaintiff, and plaintiff can't show complete chain of custody of documentation, privity no longer in place. Million thanks
  6. I filed the MSJ Vs. the plaintiff. I also sent a letter to Equifax, with copies of summon from portfolio recovery associates, llc, & copies of my MSJ, asking equifax to help me sorting the capital one out. Listening to many you, i understand the whole thing is really strange, and I need to sort it all out. Meanwhile, i start reading on court rules on msj, and deadline dates to response to opposition and how to response, etc. If anyone has experience in MSJ, please free feel to jump in and share you experience, especially the "Do's and Don't " and any other "things to watch out for" ?? I will keep you all inform, thanks for all of your support, I mean it. Million thanks
  7. I am sorting this out,....& need to find out, how it is going to affect the lawsuit? I mean, Portfolio Recovery Asso, LLC, filed an lawsuit Vs. Me, then they realised I chose to fight, now, they sold the account to Capital One, what are the possible outcome? Would this lawsuit dismissed by plaintiff and then Capital One later file a new lawsuit, ...DeJaVu all over again ???? These JDBs only file lawsuits waiting to collect when most people do not response to Summon, then, ie, default-judgment/ wages garnishment + more... But I still can't believe it..... I will send a letter to Equifax, sending them with copies of the lawsuit summon, and "case summaries" from lasuperiorcourt.org, so that they know.... What else can I do ?
  8. @BV80: The original credit was HSBC, they then sold to 2nd JDB, then 2nd JDB sold to Portfolio Recovery Asso = 3rd JDB= plaintiff , now, just find out, they sold to 4th JDB- Capital One. Today, I received a letter from Equifax, indicating that alleged account was "transfer/sold", and the name Capital One pop's up. Thanks
  9. Today, there has been a development....and I could not believe it.... Today, I received a report from Equifax, indicating that, the alleged account - the very lawsuit I am fighting Vs. Portfolio Recovery Asso, was just sold to Capital One, from plaintiff Portfolio Recovery Associates, LLC DURING the lawsuit while we are still going on !!! Sometime earlier, I noticed there were many firms who did soft pull on my credit reports, while I was concern that they "may be" hunting down my other accounts, ....Capital One sent me a letter, asking me some questions. All this time, I did not have any business with Capital One, but I responsed their letter: 1. I asked them why did they conduct a soft pull on my credit report. 2. sent along validation of debt request and ceased and desist letter ( just in case if there were the one on my another account) 3. I further told Capital One that there are 2 lawsuits going on, first Portfolio Recovery Asso. Vs. ME on this alleged account, and my separated lawsuit Vs. Portfolio Recovery Asso on FDCPA violations. Capital One never responsed. Now, my question are: -Any law(s) / rules that Portfolio Recovery Associates, LLC violated -- Can they really sell the alleged account during lawsuit ? -What should I do to Portfolio Recovery Associates, LLC ? -Do I need to notify the Court about this "event"? -How should this "sale" affecting the lawsuit here ? If Portfolio Recovery Associates, LLC later file a dismiss on their own, is there a way I can make them pay for my expenses spent on this lawsuit ? Or do I need to file a lawsuit for this ? Million thanks
  10. @BV80: Thank you so very much,....I truly appreciated. And for all others, Thank you, for your feed back and advice,...
  11. Hi Great piece here, million thanks,...and I have a few questions: 1. when is the deadline for CCP 96? I am also from california, los angeles to be exact. 2. "The key here is to subpoena the witness that is listed on the CCP 98 at the closest address to the court" ..... What do you mean by the closest address to the court ? 3. "The reason for this is that 99% of the time that person isn't going to be available for personal service there. Notice I say personal service, per CCP 1987(a) the service of a subpoena must not be in care of. It has to be to the witness. DO NOT let the JDB try and side step this. (Edit 6/25/13 - there is now Cali case law about the CCP 98 service. Calawyer posted a thread about it on the forum. Be sure to include it in your brief and MIL because they will attempt to side step the fact that service was unsuccessful.)" -Personal service...means ? -The subpoena must be sent to the person who did the bill of sale/ assignment or affidavit? Cannot be sent to plaintiff 's attorney office ?? If so, how do I find out the address of that person ?? -what to be include and what brief and what is MIL ???? -what do you mean they will side step service was not available ???? 3. "So per CCP 98 you can attempt to serve the witness 20 days before trial at the address given. They address they give must be 150 miles at MAX from the court. If it's further it doesn't follow the code. They tried to give me 5 addresses to use for service but only one was in the 150 miles and that address was vacant (not good for them). So fill out a Subpoena and have the Sheriff Dept in the county where the address is listed attempt service. If they don't then use a process server. Be sure the server knows that service needs to be to the witness ONLY. It's the law. If service is unsuccessful then you can submit a Motion in Limine just before trial to get the CCP 98 affidavit tossed out. With no witness they have no way to back up the docs they want to use for evidence. I wrote this to help those after me understand why attacking the witness is so important." -at the address given-- how do we get the witness's address? when the plaintiff 's attorney mentioned all request must be done thru them? I don't think they will provide the witness's address, right ? -who gave you 5 address ? "Judge called us up and began looking at the MIL. The rent a lawyer proposed that CCP 1987(a) applied and that I should have served Midland directly. I countered that 1987(a) states that service in person is required and that serving a "witness" in San Diego would no longer be economical litigation. Judge took 15min in chambers and came back out and stated that the MIL was granted. He stated that CCP 98 clearly applies here and that the legislature wouldn't have written it as such if they didn't intend for it to be applied in that way." -What is MIL ? -that serving a "witness" in San Diego would no longer be economical litigation?? -Did you file motion of Limine because the address of the witness was more than 150 miles away and you did not send the subpoena to plaintiff's attorney address? -what's ccp 1987 ? Million thanks
  12. @BV: Million Thanks, I mean it. Just a quick questions, I don't quite understand the first one ? Can you explain, please ?
  13. @debtzapper: That is a great website, in fact it has been helping me on many subjects, from the start to now. Still, thank you for bring this up. I know I am the person who needs "to do the work", not others, after all, I am the person who got sued. During my search, I came across a lots of cases that were plaintiff 's MSJ, others mostly are defendant got defaulted judgment because they did'nt respone to summon, I got a few others which I posted, mostly were out of state, this is the reason why I started this posting at the very first place. I posted what I came cross, the 3 new jersey cases, the missouri case, & the colorado case, others may be able to use as well, as there may be some viewers here from those states. Meanwhile, just simply open my mouth asking while searching, hopefully some other guys from california came across, throw me a case or 2, I hope you understand this online-searching-path, sometimes got lonely. Million thanks
  14. @ BV80: I replied during the 30 days communication period. I know this becasue I did this before, ...I mean, Original Creditor sold this account to 2nd JDB, they contacted me, I responsed with DV and cease and desist letter, never hear from them again. Then 2bd JDB sold the account to 3rd JDB = plaintiff, so I replied with DV & C/D letter, then they kept sending and calling, then, turned it attorney for lawsuit. They have a Bill of Sale/ assignment, which is small paragraph from OC, which is a surprise! But the Bill of Sale does printed my name or account #. Just a very very brief reading. From their response to my Discovery ( all 35 questions of admission/ interrogatories and document request) , they revealed in writing response that they do not have any signed contract, no signed credit application, no agreement, no other monthly billing statement. This is why I am drafting MSJ, searching for California's case law(s) that the plaintiff lacks of evidence/ lack of privity....but I found many are out of state. AND Shellieh pointed out first focus on " no other trial-able issue. Do you have any California case-law(s) that I can use for quoting ??
  15. Before the lawsuit, and once again enclosed with my answer contract to summon. Problem is, I did not send my 1st VOD+ cease and desist letter in certified + signature return....I regret that. But I still have the mailing receipt from post office.
  16. @ BV80: Long time ago, and I actually got a letter from plaintiff's attorney, rejecting VOD and ceased and desist letter, saying request was untimely. When I replied the summon, I did not opt the cross complaint, but I used denial + affirmative defense: lack of privity. Then they shot me with their discovery, and I shot my to them, so making it complicate to add my cross complaint on the same case, therefore, I filed a separate complaint --FDCPA and FCRA violations Vs plaintiff. Apart from this, and I try to stay focus on getting some california case law --lack of evidance/ lack of privity, can you help me to pull out may be just 1 or 2? so that I can use, please ! Million thanks
  17. @ debtzapper: --Post #25 JOSE N. VASQUEZ-Yes, I came across with that one, too. But they granted the L & J asset and burst Vasquez, kind of the oppsite what I am looking for.... http://scholar.google.com/scholar_case?case=2449868936170401351&q=midland+OR+asset+OR+cavalry+OR+portfolio+OR+unifund+%22valid+assignment%22&hl=en&as_sdt=4,5 --Post #27 is great, are those in blue color also other case law(s) ? --Primary, I am trying to locate some California case law(s) that emphasis on, lack of evidance. Million thanks
  18. 1 more question, when I draft my "motion to strike" Or motion to....?.......+ subpoena, Would that be enough if I list civil code 96 and 98 in the Points and Authorities section ? Million thanks
  19. @Shellieh98: Focus on " there is no other trialable issue(s)", is important. So, when I draft a new motion, it should be " motion to strike evidance" ? -- for the 1 page Bill of sale/ assignment + using the Subpoena. .......( before going for the MSJ, right?) 1 thing: looking at the http://www.courts.ca.gov/forms.htm?filter=SUB Should I use SUBP-002 form or should I use SUBP-045 ? SUBP-002 personal appearance + production of evidance ( but in state only) SUBP-045 deposition ( not appearance ) + production of edivance ( out of state ) @debtzapper: Do you have any case-law(s)-- California that states the JDB lack of evidance, e.g. no contract signed, no OC's credit application, no OC's agreement, no further billing statements...etc ? Look above, I found a few but all out of States,.....I want to CRY..... Million thanks
  20. @shellieh98: Can you please tell me what is CCP 96 & 98? Sorry, I am not as smart as you all are, still learn as I go, go as I fight.... @debtzapper: Those are great piece, any california case law ? I am living in California. I found that GA one, too. I was so happy then I realized it's GA, I also found 3 New Jersey 's ( MRS-L-001265-10 ) ( #A-1313-10T3) (#A2822-09T2); Missouri ( #358-S.W.3d58 Mo2012) and Colorado ( 308 Ga.App 469 Ga.Ct.App 2011 )..... BUT I need California ones.....( taking a deep breathe) .....because Million thanks,
  21. @shellieh98: -yea, "motion to compel" to response discovery ( all 3 admission, interrogatories and requestion for doc to be produced) was granted because they did not responsed / their attorney did not responsed. -but no sanction was granted as I was respresenting myself. -"They should have bill of sale OC to JDB 1, then bill of sale JDB 1 to JDB 2. They need an affidavit from oc....." No, they just sent me a 1 page "Bill of Sale/ assignment, signed by OC to them,and that was so brief, that it only occupied 1/3 of the paper, Bill of sale / assignment does not referenced to my name nor any account #.....this is why I think, I am in a better position. Yeh,...it is a endurance race. I agree with you. Most of the time, too many people ignored the Summon, they resulted in getting default judgment, salary garnishment,.....all these and that....for those who fight.....is a marathon.
  22. First of all, thanks for all the input, I mean it. Perhaps I did'nt explain my situation enough, so here it is: Original creditor sold the account to 2nd junk debt buyer (JDB) then, sold it to 3rd JDB ( = plaintiff), filed lawsuit Vs. me. Common count,open account, less than $5K, refused to validation of debt, refused cease desist letter. When I first sent completed set Discovery to them ( I case filed stamped and proof os service for my protection) , they refused to reply. Then I sent Meet & Confer letter, they refused to reply. I filed motion to compel, then they replied. From their reponse, they admitted that they do not have any contract, nor any agreement from OC, no user agreement....the only thing they have is a so -called 1 page Bill of Sale/ assignment, which by the way, does not even reference to my name / account on it. But the Bill of sale/ assignment, was signed with OC, which does not making any sense. if it's the real Bill of Sale, it would be from 2nd JDB. My bet is, this 1 page Bill of sale, more like ....you know what I mean... I am thinking "about double barrel shooting" , First subpoena the person who signed the Bill of Sale ( OC) for hearing appearance and production of documentation to break their Bill of Sale assignment, then...filing for MSJ as they themselves admitted, they don't have any other evidance. No contract with plaintiff and defendant; no contract / agreement no other evidance/ Bill of Sale crashed, chain of custody broken = Lack of Privity. This is the reason why I am now looking for case law. when I did the search, I find many case ( the type I am lookinf for, defendant's MSJ Vs. platiniff ) turns out to be FDCPA/ FCRA related, while they are useful to me, as I do filed a separated lawsuit Vs. the plaintiff. But I could ONLY found 1 that is similar to what I want, but it was a case in GA, not California....this case, I was hoping I could use because it was indeed very very interesting.... The plaintiff actually filed MSJ Vs. defendant, because they had 1 page of Bill of Sale, ( similar to my case), the Judge granted the MSJ to plaintiff. Then, the defendant appealed, stating the Bill of Sale was not referencde to his name & account #. So, they crashed that MSJ, and granted the defendant. I think I am in a better position than that defendant 's ( the GA's case-law) : WIRTH v. CACH, LLC. 300 Ga. App. 488, 685 S.E.2d 433 (2009) WIRTH v. CACH, LLC. -- October 15, 2009 William R. Carlisle, Sugar Hill, for appellant.Fred J. Hanna, James T. Freaney, for appellee.In this action on an open account, we granted Donald Wirth's application for an interlocutory appeal to review whether the trial court erred in granting summary judgment in favor of Cach, LLC (³Cach´) omits claim to recover past due sums under a credit card account agreement Wirth allegedly entered intowith Providian National Bank (³Providian´). Wirth appeals, arguing that Cach was not entitled to summary judgment because the record failed to include or reference a written assignment proving that Cach was the real party in interest, as assignee of Providian. Finding that Cach failed to show that it was entitled to file suit to recover the outstanding debt against Wirth, we reverse. ³Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56©.´ (Citation and punctuation omitted.)Rabun v. McCoy, 273 Ga.App. 311, 615 S.E.2d 131 (2005). ³We review the grant or denial of summary judgment de novo, construing the evidence in favor of the non movant.´ Id.So viewed, the evidence shows that Cach, alleging it was the assignee of Providian, brought this suit to collect the principal amount of $2,310.72 owed on a credit card account agreement allegedly entered into by Wirth and Providian. Attached to the complaint was a standard cardmember agreement entitled ³PROVIDIAN NATIONAL BANK VISA AND MASTERCARD ACCOUNT AGREEMENT.´ Wirth filed an answer to the complaint, in which he asserted that Cach was not the real party in interest (OCGA §9-11-17(a)) and also filed a counterclaim under the Fair Debt Collection Practices Act. 15 USCS §1692e. Thereafter, Cach filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on its complaint. Attached to its motion was an affidavit from Tiffany Corrales, who identified herself as an authorized agent of Cach and business records custodian of its credit card accounts, including that belonging to Wirth. Corrales stated that Providian ³assigned all rights and interests of [Wirth's account] to [Cach].´ Cach also moved for partial summary judgment on Wirth's counterclaim, arguing that Wirth failed to prove any genuine issue of fact to support such claim. Finding ³no genuine issues of material fact and [that] Cach is entitled to judgment as a matter of law,´ the trial court granted Cach's motion for summary judgment and entered judgment in its favor and against Wirth in the principal sum of $2,310.72, plus interest,attorney fees and court costs. The trial court also granted Cach's motion for partial summary judgment and dismissed Wirth's counterclaim with prejudice.Wirth argues that the trial court's order was not supported by any evidence of a written assignment to prove that Cach was the real party in interest. We agree. ³THE DOCTRINE OF PRIVITY OF CONTRACT requires that only parties to a contract may bring suit to enforce it. [Cit.]´ Scott v. Cushman & Wakefield of Ga., Inc., 249 Ga.App. 264, 265, 547 S.E.2d 794 (2001);  OCGA § 9-2-20(a). ³A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.´ (Punctuation and footnote omitted.) Nyankojov. North Star Capital Acquisition, 298 Ga.App. 6, 8, 679 S.E.2d 57 (2009). Further, the writing ³must identify the assignor and assignee.´ (Footnote omitted.) Id. To prevail on its motion for summary judgment, Cach, as movant, has the burden of ³establishing the non-existence of any genuine issue of fact,´ including Wirth's assertion that Cach is not the real party in interest, and ³all doubts are to be resolved against [Cach].´ (Citation and punctuation omitted.) Sawgrass Builders v. Key, 212 Ga.App.138(1), 441 S.E.2d 99 (1994).Here, Cach relies on the Corrales affidavit to show that Providian assigned to it ³all rights andi nterests [to Wirth's account].´ The affidavit, however, fails to refer to or attach any written agreements which could complete the chain of assignment from Providian to Cach. Further, the account invoices upon which Corrales relies reflect that Wirth's account was with Washington MutuaL I need to have case law that defendant's filed MSJ that plaintiff does not have evidance.....I really wish I could use this one....honestly I was and then little almost cry....its's from GA , not california. Ladies, Gentlemen, anyone can give me a helping hand, lead me to the right direction ? Million thanks
  23. spent my lunch time @ law library, then, went back after work....and just came home.... I got a very nice lady who walked me thru on how to use West-Law classic, checking different court and unchecked those I don't want want, put in search keywords,....spent more than 20 mins with me.... I think I am doing this wrong, most of the case law(s), are FDCPA & FCRA,...( when I used defendant's motion for summary judgment to conduct the search) Most of the motion for summary judgment were filed by JDB-the plaintiff, not from defendant. ( more than 4500 + cases) Other case-law(s) are defendant's response/ reply to plaintiff 's MSJ. I tired "lack of privity", lack of legal standing"....does not work.... I found 2 cases that I could use for FDCPA/ FCRA violations later. I even found a free link for using lexus-nexis: http://www.lexisnexis.com/clients/CACourts/ But I could'nt find what I need !!! What I am doing it wrong ? There must be some case law(s) that JDB don't have the contract and someone filed MSJ Vs them.... Why could'nt I find it ? Any suggestions
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