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collectionfighter

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  1. I have an investment account, in which the assets are forex and on margin (collateral for a loan). Can these investment assets be garnished?
  2. Heads-up, be prepared that JDB will bring a witness. They know defendants will object their CCP98 so they counter-fight now. And it happens a lot lately, according to a consumer debt attorney. my case was in Orange county and the judge overruled all objections, and admitted everything including the non-complying CCP 98, a live witness testimony (not the same person on the CCP98), incomplete Bill of Sale, non-complying Affidavit. The judge also admitted my proof of address which showed I didn't live at the address on the credit card statements. Despite my proof of address, he still ruled against me and grant JDB judgement in their favor. The judge said he didn't agree with Target v. Rocha so he said the server could have left the subpoena there (even though the people at that office said they didn't know any one by the name of the witness). The judge also agreed that the CCP 98declarant and the live witness didn't have personal knowledge, but he said personal knowledge wasn't required. JDB's records should be good enough to prove the debt, and so all hearsay objections were overruled. I felt like I was knocked down to the ground when the judge said what he said. It was unbelievable. the judge was the assigned judge too, not a sub. At the end of trial, we mentioned how his rullings were conflicting and inconsistent with other courts, he just said very calmly that how he rules.
  3. My case was very similar to SeaDragon's case. I was a pro se all the way to the last 2 wks before trial. Everything was going as planned, except that I learned that JDB would bring a witness due to the fact that they had lost ground on the CCP98 so much lately. I decided to hire a competent lawyer to represent me in trial because I thought I would be nervous to cross examine the witness. On trial date, JDB brought a witness, not the same person on CCP98. My lawyer objected both the CCP 98 and the witness at trial. Unfortunately, the judge said he didn't agree with Target v. Rocha decision, and overruled objection of CCP98. The judge also overruled hearsay, lack of foundation and admitted the CCP98 and live witness' testimony. He also admitted the Bill of Sale which didn't have my name or account number. The judgment against me was soon entered. I wonder if anyone know if there is a limited amount that JDB could levy my bank account? I don't keep much money in there, but I need to keep some to pay bills.
  4. A California Consumer Defense Attorney said that most credit card companies incorporated in Delaware for a reason: This state doesn't have a cap limits for the interest rates charged on credit cards, so the credit card business is more profitable there. However, Delaware has 3 years Statute of Limitations. Often, the credit card Agreement has a "Choice of State Laws" provision, in which the credit card company would chose Delaware as the choice of state laws so that they can charge whatever interest rate they want. So, if a California consumer is sued by a credit card company that is incorporated in Delaware (Chase, BOA, Capital One, Discover, to name a few), the SOL should be 3 years instead of 4. Any member here can confirm? If the above is true, what is CA case-law we can use? I only know of a New York case law Portfolio Recovery v. King.
  5. ADMISSIONS; 1. NAME had a credit account number 1111111111. Deny. 2. Credit account number 1111111111 was issued to NAME by CHASE Objection. I cannot deny or admit an act done by CHASE, which I did not have knowledge of. 3. NAME received periodic statements regarding credit account number 1111111111 issued by CHASE Deny. 4. As of on or about FILING DATE, the balance owed by NAME the credit account number 1111111111was $10K. Deny 5. NAME has not made any payments on credit account number 1111111111 since FILING DATE Objection. This Request calls for legal conclusion. Without waiving objection, I state that I have never made any payment to the alleged account. 6. NAME submitted a payment toward the outstanding debt on credit account number 1111111111 within the three(3) years immediately prior to FILING DATE. Deny. 7. CHASE assigned account number 1111111111 to PORTFOLIO RECOVERY ASSOCIATES, LLC. Objection. I cannot admit or deny an act done by CHASE. I do not have knowledge of said assignment. 8. NAME received through the U.S. mail a pre-legal notification from PORTFOLIO RECOVERY ASSOCIATES, LLC regarding credit account number 1111111111 Deny.
  6. Interrogatory No. 1: Did you ever submit a request for a credit account to CHASE? Answer: Objection. This request is too broad and unclear. It lacks specificity to which credit account or type of credit requested. Interrogatory No. 2: Did CHASE issue a credit account number 1111111111 in your name? Answer: Objection. I do not have knowledge of what CHASE did/does. Interrogatory No. 3: State the approximate date you open THE CREDIT ACCOUNT (for the purpose of these interrogatories, THE CREDIT ACCOUNT shall mean credit account issued to you by CHASE account number 11111111111) Answer: Objection. This interrogatory contains a premature assumption that THE CREDIT ACCOUNT was issued to me. Without waiving objection, I state that I did not open or do not recall opening THE CREDIT ACCOUNT . This interrogatory is not applicable to me. Interrogatory No. 4: IDENTIFY (for the purpose of these interrogatories, IDENTIFY shall mean to state the name, address, and telephone number) each and every person other than yourself who has ever had possession of any credit card for THE CREDIT ACCOUNT. Answer: Objection. I do not have personal knowledge of individuals that had possession of any credit card for THE CREDIT ACCOUNT. Without waiving objection, and based on documents provided by Plaintiff, I believe that the actual account holder of THE CREDIT ACCOUNT was someone else that has same last name as and similar Social Security Number to those of mine. Plaintiff bears the burden to investigate this information with the original creditor of THE CREDIT ACCOUNT. Interrogatory No. 5: DENTIFY each and every person who you ever authorized to use THE CREDIT ACCOUNT. Answer: Objection. This interrogatory is not applicable to me and contains a premature assumption that I had THE CREDIT ACCOUNT. Without waiving objection, I state that I was not aware I had the authority on THE CREDIT ACCOUNT, and did not make authorization on THE CREDIT ACCOUNT. Interrogatory No. 6: Did you use THE CREDIT ACCOUNT? Answer: Deny. Interrogatory No. 7: Is $10k, the amount set forth in the complaint in this case as the sum owed as of filing date, your balance due as of that date on THE CREDIT ACCOUNT? Answer: Objection. This interrogatory contains a premature assumption that THE CREDIT ACCOUNT was mine. Without waiving objection, I deny that I owe any amount on THE CREDIT ACCOUNT. Interrogatory No 8: If you do not agree that $10k the amount set forth in the complaint in this case as the sum owed, is your balance due as of filing date on THE CREDIT ACCOUNT, state all facts upon which you base your denial that the sum of $10k is your balance due as of filing date on the THE CREDIT ACCOUNT. Answer: Objection. This interrogatory contains a premature assumption that THE CREDIT ACCOUNT belongs to me. Without waiving objection, I state that did not use THE CREDIT ACCOUNT, and did not incur the alleged balance on THE CREDIT ACCOUNT. Therefore, I owe nothing on THE CREDIT ACCOUNT. Interrogatory No. 9: Did you ever report to CHASE (for the purpose of these interrogatories, CHASE shall mean and refer to PORTFOLIO RECOVERY ASSOCIATES, LLC, and/or its predecessor, CHASE, and/or any collection agent or agency purporting to present PORTFOLIO RECOVERY ASSOCIATES, LLC or CHASE, as to this account) that the credit card for THE CREDIT ACCOUNT was lost and stolen? Answer: Objection. This interrogatory is not applicable to me. Without waiving objection, I state that I was not aware of the existence of THE CREDIT ACCOUNT, and/or the idea that THE CREDIT ACCOUNT was lost or stolen. Therefore, no report was made in writing by me to CHASE Interrogatory No. 10: Did you ever report in writing to CHASE or PORTFOLIO RECOVERY ASSOCIATES, LLC that there was any problem with THE CREDIT ACCOUNT, which problem remains unresolved? Answer: I did not aware of THE CREDIT ACCOUNT, and as a result, did not report in writing any problem to CHASE or PORTFOLIO RECOVERY ASSOCIATES, LLC before filing date, the date this action was initially filed in court. Interrogatory No. 11: Did you receive periodic statements from CHASE regarding THE CREDIT ACCOUNT? Answer: Deny. Interrogatory No. 12: State the approximate date of your last payment to CHASE on THE CREDIT ACCOUNT. Answer: Objection. This interrogatory is not applicable to me and contains a premature assumption that THE CREDIT ACCOUNT belongs to me. Without waiving objection, I state that I did not make any payment on THE CREDIT ACCOUNT. Interrogatory No. 13: Have you ever corresponded with CHASE in writing regarding THE CREDIT ACCOUNT? Answer: No. I wasn't aware of THE CREDIT ACCOUNT, and as a result, did not make any written correspondence with CHASE regarding said account. Interrogatory No. 14: Have you ever corresponded with PORFOLIO RECOVERY ASSOCIATES LLC in writing regarding THE CREDIT ACCOUNT? Answer: Yes. I wrote to PORTFOLIO RECOVERY ASSOCIATES LLC after I was served the Summons and Complaint, requesting for Debt Validation and proof that PORTFOLIO RECOVERY ASSOCIATES LLC had the legal authority over THE CREDIT ACCOUNT. I also wrote to PORTFOLIO RECOVERY ASSOCIATES LLC demanding it to void the Cancelation-of-Debt Tax Form. Interrogatory No. 15: State all facts upon which you base your denial of the complaint in this action Answer: a) According to details on statements of THE CREDIT ACCOUNT and the data sheet provided by Plaintiff, PORTFOLIO RECOVERY ASSOCIATES LLC, THE CREDIT ACCOUNT belongs to someone else. (Side note: My brother's name is on the statement and there was a cash advance check $k made out to his name only) I did not apply, charge, or paid for THE CREDIT ACCOUNT. c) I have never agreed to the terms and conditions, by contract or by implication, of THE CREDIT ACCOUNT. d) I have never entered any contract or agreement, by written agreement or by implication, with PORTFOLIO RECOVERY ASSOCIATES, LLC. e) I did not receive any pre-trial statements and/or notifications from PORTFOLIO RECOVERY ASSOCIATES, LLC, regarding THE CREDIT ACCOUNT. f) I lived at a different address than the address shown in statements of THE CREDIT ACCOUNT during the time period of such statements. (side note: I have rent/lease agreement and few letters mailed to a different address, where I actually lived during the 12 months of the statements) Interrogatory No. 16: State all facts upon which you base each affirmative defense to the complaint in this action. Answer: a) According to the details on statements of THE CREDIT ACCOUNT and the data sheet provided by Plaintiff, PORTFOLIO RECOVERY ASSOCIATES LLC, THE CREDIT ACCOUNT belongs to someone else. I did not apply, charge, or paid for THE CREDIT ACCOUNT. c) I have never agreed to the terms and conditions, by contract or by implication, of THE CREDIT ACCOUNT. d) I have never entered any contract or agreement, by written agreement or by implication, with PORTFOLIO RECOVERY ASSOCIATES, LLC. e) I did not receive any pre-trial statements and/or notifications from PORTFOLIO RECOVERY ASSOCIATES, LLC, regarding THE CREDIT ACCOUNT. f) I lived at a different address than the address shown in statements of THE CREDIT ACCOUNT during the time period of such statements. g) I did not receive any pre-trial statements regarding consumer rights which are protected under FAIR DEBT COLLECTION PRACTICE ACT. h) I did not receive any pre-trial statements and/or notifications from PORTFOLIO RECOVERY ASSOCIATES, LLC, regarding its intention to bring legal actions against me.
  7. Hello all the great helpful members, Interrogatories and Admissions are due by tomorrow. I have them completed but I thought I should have them double-checked by the knowledgeable members here first. A little back ground of my situation: the credit card account has both my name and my brother's name as joint holders. this account is 14 yrs old so OC/JDB doesn't have the initial credit application. This credit card was used and monthly payments were made by my brother ONLY. I never used it or made any payments. BUT I AMTHE ONLY PERSON SUED BY PRA. For additional details, my initial post is here http://www.creditinfocenter.com/community/topic/322811-need-help-dealing-with-hunt-and-henriques/#entry1281529. We are on the 36 days mark before trial. And my answers to JDB are due tomorrow on the 35 days mark. if they find my answer insufficient, too bad for them because they opposed (and succeed at it) trial continuance. Please double check my answers below and let me know if my answers would be damaging to my defense.
  8. Thank you so much for your response. I started a thread last week here http://www.creditinfocenter.com/community/topic/322811-need-help-dealing-with-hunt-and-henriques/#entry1281529 The Declaration provided 2 addresses. One was Plaintiff's address which is in VA. The other one is ABC Legal Services which is few miles from the court house. I have learned a lot in this forum and I am doing exactly what the members here advised me. Court date is 37 days away (mid March), so I can't subpoena the witness yet. At this point I am trying to go through line by line of the Declaration ccp98 to poke as many holes on it as possible. Of course all the evidence are hearsay, lack of foundation. I also want to argue that the Affidavit of Sale did not comply with CCP 2015.5. JDB provided a Bill of Sale, which is very general. My name and the credit card number weren't t listed. it was not notarized. There is also an Affidavit of Sale, which was notarized, with my name and the credit card account number listed. But this Affidavit didn't have the sworn statement of penalty under perjury. I just received a letter from JDB attorney. Since I had told them this credit card wasn't mine, they sent a fraud affidavit and questionaire and requested me to complete. Basically, they assumed that I claimed fraud when I denied that I had no knowledge that this account was in my name. This letter and fraud affidavit aren't a part of Discovery, but the questions are very similar to the Admission Requests in Discovery . Should I ignore it?
  9. Thank you for the clarification. So, I can object the Affidavit of Sale right? It was notarized in FL but it didn't have the penalty under perjury statement
  10. The Declaration itself swear under penalty of perjury under the law of the State of CA. It wasn't notarized and didn't disclose the location of execution. As for the Affidavit of Sale (an exhibit to the Declaration) , it was notarized in Florida, but there was no language sworn under penalty of perjury, at all. not even in general penalty of perjury.
  11. According to legal dictionary, in order for the declaration/affidavit to be legally effective, it has to be under oath administered by a notary or authorized officer. The Declaration filed by JDB wasn't notarized and I am objecting it in my motion in limine, but I am not sure what case law/California Code/Federal code I should cite for my argument? Please help
  12. BTW, I am not due to respond their discovery for another 2 weeks. they propounded their discovery even later than me.
  13. Yes, I have, but all they sent were the same stuff as in the Declaration in Lieu of Live Testimony. they gave me same stuff over and over, which are 12 months worth of the statements (fax copies only) and some bs bill of sale and affidavit
  14. @RyanEX, since you mentioned CCP2015.5, so I checked. May I ask if the Declaration must be notarized? In my case, the language was conformed to CCP 2015.5 but the Declaration wasn't notarized I am a bit confused when the CCP 2012 and 2015.5 say MAY instead of MUST (as shown below) 2012. An affidavit to be used before any court, judge, or officer of this state may be taken before any officer authorized to administer oaths. 2015.5. Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:
  15. So, If I cross-complaint that JDB misrepresented the legal status of the debt (claiming they own the debt when they are not), all i need to do is preventing them from proving their standing, right? that is the only thing i intend to cross-complaint any way. just so i can recover the court costs. I am in CA by the way.
  16. Yes, my name is on the fax statements and the summary sheet of the account.
  17. Hello all the great helper out there: I have a question, If I, as a defendant in a collection case, file cross-complaint that plaintiff has violated FDCPA and RFDCPA (California), but don't successfully prove my claims in court, what can happen to me? Will the court make me liable for plaintiff's attorney and trial costs? NOTE: I am not trying to bring a separate case, just a cross-complaint in the same court, demanding for recovery of my own court fees. Thank you so much.
  18. Hi Clydesmom, I should have clarified that PRA filed this suit against me within SOL, which was in 2012. Today is a bit more than 4 yrs, so PRA can't come back at to sue my brother if they don't get a judgment against me. of course, if my brother is to testify, he wouldn't say that i was a cosigner. he would say he is the ONLY account holder and it must be a mistake that my name is included in the account. PRA has acknowledged that it doesn't have the original cc application or cc agreement, so there is no way that they can prove i am a joint account holder. They have nothing to prove that i have agreed to the terms of the CC. I never used it, never paid for it, never signed anything on this account.
  19. Hi Ryan, Thank you so much for your answers. they are very helpful. I just want to clarify few other things as i am preparing for trial. I am very nervous so it doesn't hurt to be over prepared, right? 1) Actually you do have time to file a motion to preclude evidence. Usually you do this in the week(s) leading up to trial. You need to check you court's local rules so you know the deadline for filing a Trial Brief & Motion In Limine (MIL). Could be a little as 5 court days before trial, could be more. Local court rule said that MIL must be filed no less than 20 days before trial. And i am preparing for that. However, CCP98 said subpoena is within 20 days before trial. this means, I can't argue that the affiant isn't available at the address she provided because the time i must file MIL is before I am allowed to subpoena her. 2) You'll read up on this in the linked thread. Subpoenaing this witness is key. i am preparing to subpoena her. My question is, my server must meet her when serving the papers, right? I have seen a JDB's attorney argued that the affiant can authorize someone else to receive the subpoena on his/her behalf. I am not sure if it was a valid argument? 3) See the answer above. Not sure if you want to try and compel anything else. I wasn't really trying to compel. I just want to move the court to prelude anything else not given. However, before doing that, i must meet and confer, so i just want to know what I am allowed to ask for in my meet and confer letter. (of course they wont give me what i ask for and thus, I can move the court to preclude then). Even if they can come up with additional stuff, they will not have anything against me since none of the transactions show my name cuz my brother was the only one used or paid for the account. i will listen to your advice and leave my brother out of this. I just thought it will be my last defense if my other defense fail in court. Again, thank you so much for helping.
  20. 1. Who is the named plaintiff in the suit? PORTFOLIO 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? $10k+ 4. Who is the original creditor? (if not the Plaintiff) CHASE 5. How do you know you are being sued? (You were served, right?) SUMMONS SERVED 6. How were you served? (Mail, In person, Notice on door) IN PERSON 7. Was the service legal as required by your state? YES8. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE 9. What state and county do you live in? CALIFORNIA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I NEVER USED OR PAID FOR THIS ACCOUNT. THE DEBT WAS MY BROTHER'S 11. What is the SOL on the debt? To find out: 4 YEARS 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online CURRENTLY IN DISCOVERY. NEED LOTS OF HELP HERE. TRIAL DATE IS MID MARCH 2014. MOTION TO CONTINUE IS PENDING 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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO, BUT I DID WHEN I LEARNED OF THE SUIT 15. How long do you have to respond to the suit? GENERAL DENIAL FILED 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. NONE Hi everyone, I cosigned my brother to open a credit card back in the day when we both were in college. I never used or paid for this account and had forgotten about its existence. in 2009, my brother lost his job and defaulted this credit card. Chase sold the account to PRA, and in 2012 PRA, represented by H&H, sued me, just me and not my brother. I filed a general denial. Case is set for mid March but i have been able to get very little evidence so far. I started Discovery late so I had to file a motion to continue. H&H opposed so the hearing for motion is next week. If my motion is not granted, i will have to go to court with what ever H&H gave me. Here are what they gave: 12 months of credit card statements (fax copies from Chase) with both my name and my brother's name. 1 spreadsheet summarizing the account, both of our names, SSNs, date account open, last payment, default date, balanceBill of sale from Chase to PRA, (a bulk sale)Affidavit of sale, someone from Chase making an affidavit of the transfer of the debt, acknowledging the me as a debtor & the balanceDeclaration in lieu of live testimony. H&H gave the same things above over and over for every discovery i requested, including the BOP. those evidence are also the same things included in the Declaration of live testimony HERE ARE MY QUESTIONS: 1/If my motion to continue is not granted, I will not have time to file motion to preclude or compel additional evidence. so, in trial, CAN I OBJECT ANY ADDITIONAL EVIDENCE introduced by H&H? if yes, on what grounds? any code or case law will help a lot. 2/On PRA Declaration, the affiant said, "i can be served at address XXXXX within 20 days prior to trial". she didn't state whether she worked there or lived there. the Declaration was not notorized so i cant argue it was not executed in CA. the address given was of a legal vendor, just down the street from court house. How can i object this Declaration, other than arguing she doesn't have personal knowledge? 3/if my motion to continue is granted, i will demand for additional/amendment of BOP. What items can be covered in BOP, besides the credit card statements? by the way, the cc statements were marked as fax copies. Can i object them since they aren't original? 4/H&H never in any of the discovery asked me to disclose any witness i may introduce. So i never disclosed. Will i be able to bring my brother to trial as a witness? 5/ Should i bring my brother to testify that this account was his ONLY and i had nothing to do with it? SOL has run out so PRA can't sue my brother after this suit. I greatly appreciate any input.
  21. I am in CA so the rules there maybe different. However, I know that you must file an Answer (includes 2 parts, Denial and Affirmative Defenses) within TX mandated period. Search the county court's website where your case was filed for information how to file an Answer. Check out the self-help center. The court should have some generic forms that you can use. If not, you will have to write on paper. Also, Check out some Articles on YOURLEGALLEGUP.COM (Articles tap) for information how to fight your case. Most of the time Collection Agencies don't have enough evidence to win, but if you don't know how to fight, they will win. you dont have/need to purchase anything on that site. If you are not sure if the debt is yours, you must proceed with Debt Validation request. here is a template that you can use. Good luck Dispute Letter.docx
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