Xenophon

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About Xenophon

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  1. There is also a form for Proof of Service. POS-030 http://www.courts.ca.gov/documents/pos030.pdf
  2. I believe they can stll call in trying to collect, since the law suit its just another way to try to collect on the alleged debt.2. I believe you can be represented without you being incourt unless you receive an order to appear from the other party. I read of a case where defendant's lawyer did not bring with him the defendant to court the day of trial. Despite plaintiffs objections the judge overuled saying that if plaintiff wanted defendant pressent during trial he should've sent an order to appear to defendant. That defendant was not mandated to attend if that was the defense strategy. Pls correct if im wrong
  3. BOP = Bill Of Paticulars Other acronims you may see around is RFD or RFP= which mean request for documents or request for production. RFA= request for admissions ROGS. Interrogation questions. All these request you will receive feom plaintiff in about a month or so after your answer
  4. @string thank you. I will look for that doc. can you think of an example of "arguing the case"?
  5. Question: Homelessincalifornia posted and objection cheat sheet. the first objection on the page is: OBJECTION AUTHORITY Arguing the Case (in the Opening Statement) p. 3 can you object during plaintiff's opening statement? and can someone post and example of that? also what P.3 means?
  6. thank you guys all your input and opinions are much appreciated. this helps a lot to really understand this a lot better. kinda sucks that judges cannot be impartial and let their own agendas or prejudices drive their decisions.
  7. @string @RyanEX @Anon Amos just for the sake to help me understand better, what would you guys have done differently? I understand that not subpoenaing the affiant was perhaps what destroyed his case. sticking to the lack of contract on a common counts as well as an account stated to me seems irrelevant since on those theories a contract is not required. but when the judge said that a custodian of records from JDB can authenticate the statements from WF was a bit of a surprise because Cooley v the supreme court of LA came to mind, that a custodian of records cannot attest with personal knowledge to the facts and practices of an entirely different entity. or this happened because defendant did not file the proper objection to the affidavit in lue of live testimony?
  8. I think that's what happened in this case. Docket for his case shows no, objections, only a general denial, case management conference, notice of trial filed by plaintiff, Declaration filed by plaintiff (48 pages long), and plaintiffs proof of service. I am assuming that defendants objection to ccp98 would be in there. what is may be in the "declaration" does any one knows? trial briefs?
  9. I went to the court this morning to get a feeling of how the trials are executed. Only one case was heard, the others were either dismissed prior to trial, settled, or defendant didn't show. only one case was heard, a pro per defending against Portfolio Recovery Associates on common counts. this is pretty much how the case went. please provide any thought? defendant first started claiming that the plaintiff did not provide the alleged contract. the judge explained that the contract was not required under the common counts theory and that to prove their case "they simply have to establish a piece of paper such a bill statement mailed to you, without any objections by you and your receipt basically you charging on the credit card and they've done that they do not have to provide the original contract" Defendant: these documents they are producing they are claiming.. these records belong to WF. Judge: long ago the courts have concluded that a custodian or records for a collection company can lay a foundation sufficient for me to enter a judgment... they have sufficient foundation in their declaration. if you wanted to challenge their declaration of foundation you have the right to notice this employee, that notice requires notice within a certain amount of time. the Portfolio employee has laid sufficient foundation for the Wells Fargo Records. Defendant: How is an employee of Portfolio have first hand knowledge of the account that was created by WF? Judge: they don't have to have first hand knowledge, that's why it is called admissible hearsay. they don't have to have first hand knowledge. Defendant: but it is hearsay evidence Judge: the courts across all California, have permitted portfolio recovery to proceed this way. there are no cases out there that say they have to bring in a WF or visa employee to testify about this. I do not see on your answers anything that states that this is not your account. did you use this account? you are under oath. did you use this account? Defendant: I do not have any recollection of ever using any account. Judge: its ok, you don't have to have a recollection, not having recollection is not an affirmative defense, it just means that you have a bad recollection. is there anything else you'd like to tell me? no. well Portfolio recovery, like midland funding and all these collections companies that are very big and purchase lots of credit card debts from various credit card companies, they are permitted, legislation, permits them to come into court and sue. and legislatures of the state haven't mandated them to bring an OC employee to authenticate. if you have difficulty with that concept you can go to the legislature and complaint. that's not what the law requires, they can proceed on what is hearsay under the business record exception created for collection agencies so that they can continue with this type of business... ... I do not have any evidence before me or suspicion that portfolio recovery did not acquire this debt. sometimes people challenge the acquisition of their debts. they have given me documentation here that they purchased the debt from a banking institution. sometimes there is mistakes, sometimes attorneys come in, or even brokers and say "look it, this credit card, is something, maybe a transfer to another account" there are mistakes, they happen all the time. but you just can't come in and say, "judge, I don't remember this debt" because most people don't remember their credit cards. they are not suing you on breach on contract, because they are smarter than that, they can sue on "common Counts" which is a piece of paper mailed to you at your mailing address, saying "look you used the account, we want to get paid for" its the way it works.
  10. you can consider CCP 98 as a plaintiff request to admit in court the affidavit of that person in lue of live testimony. it does not need be included in CCP 96 response. anything else, besides the CCP 98 that they try to introduce during trial that is not included in CCP 96, cannot be admitted, but you will have to raise that objection if and when it happens. please, someone correct me if I am wrong.
  11. who was named on their ccp98, it should say some addresses where the affiant can be subpoena. those addresses should be within 150 miles from the court address.
  12. @Anon Amos Thank you. i read somewhere in these forums of a case where CCP96 was sent out overnight, which gives plaintiff 20+2 days to serve their response, JDB replied at the 20+5 days of them serving CCP96, and managed to have all the evidence thrown out due to late reply. i realize its a long shot but maybe worth it...