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SoCalGal last won the day on October 22 2016

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  1. Thanks, @Anon Amos and @RyanEX. You're right, my research shows that the SOL does not get tolled during a lawsuit in CA. So, I guess the only decision is whether to 1) lay low and risk them re-filing, in which case I can maybe get my fees back, or, 2) send them a meet and confer letter to request they uphold the agreement to dismiss with prejudice. To be clear, a meet and confer letter is just a formal letter, correct? It doesn't need to be on pleading paper because it won't be filed with the court?
  2. The written agreement was prepared by HH. I signed and returned it, but they never provided me a copy of their signed document. Their considerations were that they had to "enter into the mutual release", file a voluntary dismissal with prejudice, and agree not to sell the debt. My considerations were only that I had to "enter into the mutual release", which I did by signing the agreement. As part of the mutual release, both parties agreed to pay their own fees. If they don't hold up their end of the deal, does this mean that I can file for fees once the case is officially dismissed? It was temporarily dismissed in Sept, and was awaiting them to send the final request for dismissal.
  3. I had a written agreement with Hunt & Henriques lawyer last September to dismiss my case. They agreed to dismiss with prejudice. Now, they have finally filed for the dismissal and requested it "without prejudice". How can I respond to this? Is there form to fill out? Do I send a letter to the attorney? The statute of limitations is up in April, but it's also the principal of the matter. We had an agreement and I want them to adhere to it.
  4. I didn't ask for removal of the trade line because something I read states that it is against the credit agency rules for reporting entities to negotiate a removal and I was worried about asking for something that might delay a response so close to the trial date. So far, I agreed to the release and they filed a conditional dismissal. I signed the agreement, but am stilling waiting for them to file the final dismissal with the court. I definitely consider this a win! Just trying to be patient until the final details get resolved.
  5. I sent off the CCP96 request and heard back today. Although they Objected to the request as "being untimely," they supplied a list of exhibits and witnesses (Bill of Sale, Affidavit of Sale, data record and 5 possible witnesses including the individual already subpoenaed to testify. At the same time, but in a separate envelope, I received a letter from Hunt & Henriques stating that they would like to resolve this matter before trial and are authorized to extend an offer of "mutual release of claims" with each party bearing their own costs and fees. I have a few days to respond before the offer is withdrawn. So, my question is, if I accept a mutual release of claims can I request that the dismissal be with prejudice so that they can't refile the case? I'd rather not go to trial, but I also don't want this starting all over again a couple months down the road and there is still about 8 months left before statute of limitations runs out. Since my earlier question started mid-case, I have included the answers to the forum questions to provide better background information. 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates 2. What is the name of the law firm handling the suit? Hunt & Henriques 3. How much are you being sued for? $5XXX 4. Who is the original creditor? (if not the Plaintiff) Portfolio Recovery Associates 5. How do you know you are being sued? (You were served, right?) I was served 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes 8. 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? Los Angeles County, California 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Documents state 5/2013 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 (many states have this information posted - when you find the online court site, search by case number or your name). - Suit Served - Responded with General Denial - Received Declaration in Lieu - Subpoenaed the Declarant - Trial was continued because the declarant was unavailable - Sent a CCP96 to Plaintiff - Plaintiff responded that a CCP96 was untimely, but provided a list of exhibits and witnesses - Plaintiff sent a letter with an offer for a "mutual release of claims" 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. Yes. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I have 4 days to respond to the offer of a mutual release of claims, otherwise trial is in 2 weeks. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The CCP96 response includes: - Bill of Sale (with attachment of a data record, but no list of assets) - Load Data (I think this refers to the data record showing name, partial account number, etc) - Affidavit of Sale (from the original creditor) - Billing Statements for 1 year - a list of 5 potential witnesses (one of these witnesses is the Declarant who was subpoenaed and is supposed to show up for trial)
  6. I'll keep Rule 3.1332 on hand for next time. I don't think it would have helped today. The judge basically said I was lucky the Plaintiff requested a continuance because he might have been inclined to quash the subpoena since it was not issued with "reasonable time" for the witness to respond. I kind of interpreted the "date first set for trial" as meaning it is too late for the CCP 96, but don't have much experience so thought I'd see what the smart folks here thought. If I can't send the CCP 96, then I'll have a whole different set of questions.
  7. My trial date was today. I served a subpoena on the declarant in the Plaintiff's CCP 98 which was delivered Friday. The lawyer for the JDB claimed he had no notice of the subpoena and therefore not enough time to get the witness to appear. They asked for a continuance. I objected saying that the declarant should have been at the stated address for the 20 days preceding trial. The fact that they were not there to receive personal service doesn't affect the fact that the subpoena was issued properly. (The process server left the subpoena with the receptionist who promised to "email" it the declarant right away and provided me with a proof of non-service.) The judge agreed with the Plaintiff and gave the JDB a 45-day continuance saying that a subpoena must be served with a "reasonable time" for the witness to prepare. My question is that now that the trial has been continued, can I issue a CCP 96? I didn't do this previously, but now I would like to lock in their witness and exhibits so that I can prepare proper motions against them.
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