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So Cal Gal

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So Cal Gal last won the day on November 8 2015

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  1. So Cal Gal
    Thanks to everyone here, I got a dismissal with prejudice from Portfolio in Los Angeles County court. http://www.creditinfocenter.com/community/topic/326835-going-to-trial-this-week-in-california-need-help-with-documents/ PRA had decided to dismiss before I even handed over my Motions.
  2. So Cal Gal
    Thanks everyone! For those who find this thread later, here's what happened and what I learned doing a crash course in fighting the JDB in L.A. County Court. I got there a half-hour before the courtroom opened because I wasn't sure what I would need to do about filing the MILs and wanted a chance to meet the attorney if possible. The JDB's attorney didn't arrive until about 8:45, but it gave me a chance to calm down a bit and hand my papers to the clerk. There was some confusion with filing the MIL without a proof of service, but in the end the clerk accepted everything and said to just go ahead and hand copies to the Plaintiff when he arrived. When the PRA's attorney showed up (not the attorney who filed the suit, but someone "filling in for him") I approached with a copy of the MILs and my Trial Brief. He said, that his boss had already decided to ask for a dismissal. The affiant I subpoenaed for the "Declaration in Lieu" did not show up. There were 11 cases listed outside the courtroom for this morning. Only 3 people showed up and they moved me to the top of the list. The judge called our names and we approached. The Plaintiff moved for a dismissal without prejudice. And the judge looked at me and said "I don't know why the reasons behind the dismissal, but understand that without prejudice means they can refile." Looking back, it kind of feels like the judge might have been trying to encourage me to move for a dismissal with prejudice. But, I was so nervous and relieved that I didn't think it through. Instead, I answered that "I understood." If I had it to do over again (which I do), I would definitely be more timely and organized about the case. If I had followed the timeline provided by some of the other winners in this forum, I could have spent the last week preparing for how to respond and speak up in court. Instead, I spent the week preparing paperwork and was not as confident about the process for court. I was afraid to be too aggressive because I thought I might get in over my head. By all means, even if you only have a few days to get ready - fight it! This is proof that most of the JDB's are looking for low-hanging fruit and even a little bit of push-back can result in a dismissal. But, if you have more time, having a better understanding of the laws and your options may get even better results. For me, this is one down and one to go. Next case is in August and I will be much better prepared. I've downloaded the MC-010 and filled it out. I realize it needs to be filed within 10 days of trial. Do I need to wait for the Plaintiff's notice of dismissal or can I file it right away?
  3. So Cal Gal
  4. So Cal Gal
    For the Motions in Limine that reference the Plaintiff's exhibits. Do I need to print out a copy of each exhibit and attach it to the Motion? If so, should I print out a separate copy for each Motion or can I include one set with all 4 Motions? For example, the MIL to Exclude the Billing Statements references the Billing Statements and the Plaintiff's Trial Witness List. And the MIL to exclude the Affidavit of Assignment references the Affidavit and the Witness List.
  5. So Cal Gal
    Thanks @Shellie98. That helps a lot. The example documents I've been getting here are awesome, but I want to make sure I have a clear understanding in case I have to argue in court.
  6. So Cal Gal
    Thanks for the examples @sadinca. I will go through and break down the objections into separate MIL docs. In working through the Trial Brief, I'm having a hard time with the section on Account Stated. The Plaintiff's single claim is Account Stated. Their brief states "Defendant Filed to Dispute an Charges Incurred" [Original creditor] mailed monthly statements, yada yada... Defendant never disputed any charges until the filing of the Complaint. For these reasons, Plaintiff has established an account stated Defendant. From this it sounds like the failure to dispute charges may establish a debt owed to the original creditor, but it would not establish a debt with the Plaintiff. They include as Exhibit C the JDB's Letter of Intent to Sue with a stated "amount owed." Am I right in thinking that the Letter of Intent to Sue can not establish an Account Stated claim because there is no previous relationship with the JDB? Also, even if the alleged debt was established with the original creditor, the JDB does not have standing to sue if all their "evidence" is inadmissible? Can I object to the Letter of Intent to Sue since it is simply a printed copy from the JDP? There is no proof it was sent or received? Just want to make sure my thought process is logical.
  7. So Cal Gal
    Thanks for the updated citation @small fry. Good idea about making sure the attorney knows I've got my trial brief and objections ready to go. I'll be there early — hopefully they will be too. The declarant was available so the subpoena was served. I'm working on the objections to the Plaintiff's list of Exhibits (listed above with proper citations thanks to @Anon Amos). My question is, should I write up a separate objection for each exhibit or do all the objections go in a single document?
  8. So Cal Gal
    For Sierra v Hale, I have it in my notes as: Sierra Managed Asset Plan, LLC. v. Hale Superior court appellate division reversed a limited civil collection case judgment for plaintiff. the appellate division concluded that the trial court erred in admitting exhibits attached to a declaration, because the declarant had failed to satisfy the requirements of the business record exception to the hearsay rule.A company employee's testimony regarding documents created by company's predecessor-in-interest is insufficient to lay foundation needed for business record exception to hearsay rule. from: http://www.creditinfocenter.com/community/topic/326706-california-sierra-managed-asset-plan-llc-v-hale-2015/?hl=hale
  9. So Cal Gal
    Thanks Anon! Got the court stamp on the subpoena and it's on its way. I will get the objections written up tonight and post a link here for feedback.
  10. So Cal Gal
    Great! Thanks!
  11. So Cal Gal
    Here is a copy of the Declaration in Lieu from PRA's affiant, in case it helps. I can also scan in the exhibits if needed, though it won't be until this afternoon as I have to go to work for a few hours. https://www.dropbox.com/s/po9moii03ypk0xu/declaration-in-lieu.pdf?dl=0 I'm thinking the Objection will be: Affiant is not competent to testify to OC's business practices because he is an employee of the JDB and therefore has no first-hand knowledgeThen, attack the exhibits individually as inadmissable: Bills of Sale (3) can not be authenticated by AffiantAffidavits are inadmissible because they are hearsayThe alleged "Data" records are not admissible as they were prepared for litigation and not normal business recordsThe alleged statements can not be authenticated by AffiantThis is an HSBC account that became a Capital One account which was purchased by Portfolio. Am I right in thinking PRA would have to have a "custodian of records" from each company in order to authenticate any documents? How do I handle the Letter of Intent to File Suit? Do I need to address that? Does it matter that I didn't respond and dispute the charges?
  12. So Cal Gal
    So, I would issue 2 subpoenas: one for the Affiant/Declarant and separate one for his employment records and/or current address? Who would I send the second subpoena to? The lawyers?
  13. So Cal Gal
    @h8spleadingpaper : Thanks for the kind words. The La Jolla address is listed as a PRA address in Google and the affiant is an employee of PRA. So, we'll see. The witness list does show the declarant's name where it states via written declaration, but yes this is this CCP98 that I will be objecting to. As an employee of the JDB, the declarant is not qualified to testify to the OC's business practice. @Anon Amos - they cite case law to support their argument of "Account Stated" see the (redacted) Trial Brief from the Plaintiff below Zin v Fred R. Bright Col - "essential elements" of account statedCalifornia Bean Growers Assn v Williams - "if an debtor does not object, his acquiescence will be taken as an admission that the account is truly stated"Dawkins v Sears Roebuck and Co. - requires written billing error dispute of chargeshttps://www.dropbox.com/s/0wgarygp242ojc4/plaintiff-trial-brief.pdf?dl=0
  14. So Cal Gal

    upload

  15. So Cal Gal
    Argh. I misspoke. I'm not using h8spleadingpaper's example, I have the HomelessinCA's example from here: http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/page-13
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