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ticklemore

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ticklemore last won the day on May 4

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  1. Today, was the trial. It was a very stressful experience trying to defend my case on my own for the first time, especially over Zoom (due to COVID). I did file the Motions in Limine to exclude Plaintiff's evidence beforehand, but the court said that Motions in Limine was only for jury trials, so I was very disappointed. Through the testimony of Plaintiff's custodian of records testifying to receiving them from Plaintiff's assignor, they entered into evidence the monthly statements, charge-off statements, and statements showing the dates of last payment. I've raised objection as hearsay because the custodian is a third party to those records, but they were admitted anyway. However, I was able to object to the Affidavit (from the original credit card company) and the Bill of Sale documents, and they weren't admitted. Also Plaintiff made a huge mistake of omitting one of the two Bill of Sale documents (the Plaintiff is the 3rd owner, allegedly) into the Exhibit List. Without those document as evidence, the judge ruled in my favor! I'd like to thank @LoveIsPower and @RyanEX for your providing guidance and assistance! Now the next step is to submit my Propose Judgment and try to recover my costs of the suit through the Memorandum of Costs.
  2. Thank you, @RyanEX for your feedback! I've decided to file the MIL to object to their affidavit just two business days prior to the trial, not giving them much time to respond to my MIL. My trial is on Monday so I will keep you posted on the outcome. I will be prepared to object to their evidence and witness. Thanks again. I really appreciate it!
  3. You don't have to admit anything on their Request for Admissions. If you've had an account with Citibank, and used it, and received monthly, you can choose to admit those facts. I did on mine. However I've denied pretty much the rest, like having an unpaid balance due, or that I owed them, etc. You can also say something like "I can neither admit or deny this request as I have no memory concerning it and no records of it and the information known to me or readily obtainable by me is insufficient to enable me to admit or deny." if you're not sure. You must also deny that you don't have affirmative defenses. You do, because "lack of standing" is one of them. You don't know that Citibank has sold your account to LVNV Funding. You can claim other affirmative defenses even if they may be applicable. On the Request to Produce Documents, you can send them whatever you have, but if you don't have anything else, you don't need to. They are the ones who will have to prove that you've used the credit cards, and more importantly, that LVNV Funding really owns your debt now. These junk debt buyers usually don't have enough evidence to prove this. On the Interrogatories, you can state what you're comfortable stating, but you can also say something like "Discovery is still ongoing, and Defendant reserves the right to amend, supplement or change its objections and responses if and when additional information becomes available." if you don't want to say that you don't have anything currently. After you respond to their discovery requests, you can send them the DEMAND FOR BILL OF PARTICULARS (BOP) or request a set of discovery requests of your own. You've mentioned that you're looking to settle, but you can choose to fight the lawsuit until the end and win it. However you will have to put in a lot of time into it. I know you probably don't have the time because you're taking care your wife and the kids... so whatever you decide to do....I wish you the best of luck!
  4. @RyanEX, now I am debating if I should submit my Motions in Limine (to object OC's affidavit, cardmember agreement, monthly statements, and bill of sale) or hold them off and prepare to object to them during the trial. I would have filed my MIL's if it was normal circumstances, but due to COVID-19, my court trial will done over Zoom, remotely. I am afraid that when Plaintiff sees my MIL's, they will have 3-4 days to respond to my MIL's and more importantly, they may also add the Affiant(Original Creditor) to the Witness List because it's so easy to do that in a remote trial (just forward the Zoom invitation email), compared to paying to fly the Affiant from Virginia to California to testify as their witness in normal circumstances. Their current Exhibit List is pretty much crap, with their Affidavit having weak spots as you've pointed out, and both of their Bill of Sale documents are missing attachments/exhibits that lists the account numbers in the sale. So I think I have a pretty good chance without filing the MIL's. What do you think?
  5. Thank you so much for your feedback, @RyanEX! I really appreciate it. No, I have not sent them the CCP 96 request because that would only apply for limited civil cases, correct? Mine is unlimited, unfortunately. =( This week, they gave me the list of of their exhibits: Bill of sale from OC to 1st JDB Bill of Sale from 1st JDB to 2nd JDB (Plaintiff) Statement showing the date and amount of the last payment Cardmember's Agreement Charge-off statement 2 year period worth of monthly statements prior to charge-off Affidavit (this original post) and list of their witness: Yvette JXXXXX (or some other designated custodian of records for Plaintiff)
  6. No, they didn't send me CCP 98 probably because this is an unlimited civil case (over $25,000), and CCP 98 applies to limited civil cases. Today, they sent me the affidavit rom the original creditor which I added on a separate post here:
  7. Today, I have received below affidavit from the JDB (3rd owner) The Affiant is a person from Pentagon Federal Credit Union who is the original credit card issuer. ----------------------------Start of the document------------------------------ <Page 1> AFFIDAVIT OF FACTS AND SALE OF ACCOUNT BY ORIGINAL CREDITOR (Debt Buyer Actions) I am a/a Richard HXXXX of Pentagon Federal Credit Union ("Original Creditor"), and I have personal knowledge of and access to Original Creditor's books and records ("Business Records"), including electronic records, relating to a pool of charged-off consumer credit accounts sold or assigned by Pentagon Federal Credit Union to UHG I LLC ("Debt Buyer" on 12/28/2018 (the "Sale"), which included the account ("Account") of the consumer ("Consumer") identified in the exhibits attached hereto and incorporated herein. As part of the Sale, Original Creditor assigned all of its interest in the Account, including the right to any proceeds from the Accounts, to Debt Buyer, and it transferred Business Records relating to the Account to Debt Buyer. A true and correct copy of the bill of sale, Lot 1219, is attached as an exhibit to this affidavit. 1. In my position, I also have personal knowledge of Original Creditor's procedures for creating and maintaining its Business Records, including its procedures relating to the sale and assignment of consumer credit accounts. Original Credit's Business Records were made in the regular course of business and it was the regular course of such business to make the Business Records. The Business records were made at or near the time of the events recorded. Based on my knowledge of Original Creditor's Business Records, I have personal knowledge of the facts set forth in this affidavit. 2. Original Creditor and Consumer were parties to a credit agreement ("Agreement"). Consumer agreed to pay Original Creditor for all goods, services and cash advances provided pursuant to the Agreement. The date and the amount of the last payment, if any, made by Consumer are set forth in an exhibit attached hereto and made a part thereof. Consumer defaulted and demand for payment was made by Original Creditor. A true and correct copy of the Agreement is attached as an exhibit to this affidavit. 3. At the time of Sale, Consumer owed the amount set forth in the exhibits attached hereto and made a part hereof, which also set forth the name of the Consumer; the last four digits of the Account number; the date and amount of the charge-off balance; the date and amount of the last payment, if any; the total amounts, if applicable, of any post-charge-off interest and post-charge-off fees and charges; any post charge-off credits or payments made by or on behalf of the Consumer; and the balance due at the time of the Sale. The above statements are true and correct to the best of my personal knowledge. Dated: 4/8/2021 By: (signature) Print Name: Richard HXXXX Sworn to before me this 8th day of April, 2021. (signature of the Notary Public) Notary Public BOUTROS NABIL SALIB AWADALLA Notary Public, COMMONWEATH OF VIRGINIA Reg. No. 7090432 My Commission Expires 01/31/2023 ------------------------------------------------------------------------------------------------------------ <Page 2> CERTIFICATE OF CONFORMITY I, Kristen J. MXXXXX, an attorney-at-law of the Commonwealth of Virginia who resides in the Commonweath of Virginia do hereby certify that I am duly qualified to make this certificate of conformity and hereby certify that the acknowledgement or proof upon the foregoing document was taken by Peter Awadalla, a notary public in the Commonwealth of Virginia, in the manner prescribed by the laws of the Commonwealth of Virginia and conforms to the laws thereof in all respects. IN WITNESS WHEREOF, I have hereunto set my signature, this 8th day of April, 2021. (signature) Kristen J. MXXXXX, Esq. ----------------------------End of the document------------------------------ I am planning to file Motion in Limine for the following reasons (please let me know if you have any advice or comments): Plaintiff did not produce this affidavit before end of discovery (30 days before trial). The trial is 5/3/2021 and this document is dated 4/8/2021 so maybe I can object to the timing? The Affiant who is from out-of-state did not sworn "under penalty of perjury under the laws of the State of California that the foregoing is true and correct” as outlined in https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=2015.5. Stamp on page 1 shows Notary Public's first name to be different than what is on the 2nd page. 1st page stamp is BOUTROS NABIL SALIB AWADALLA and 2nd page refers to the Notary Public as PETER AWADALLA. Can I also object this affidavit as hearsay?
  8. My trial is in two weeks now! I'm so nervous, so I've updated my post and am looking for any advice! Thanks.
  9. Thank you so much, @LoveIsPower! I really appreciate your response. Yes, I've gone through the regular trial route. So far I've survived JBD's Motion for Summary Judgment but was ruled against my Motion to Compel BOP recently. My case is pretty significant in terms of the amount, $42K, so I am a bit worried that JBD will try everything in their powers to present witnesses from the original credit card issuer and an assignee (Plaintiff is the 3rd owner). I guess I will find out their witness list towards near the trial date which is in May 2021. Thanks again for your response!
  10. Hi @LoveIsPower, I know your post is a bit old but do you mind sharing the outcome of your trial? I am currently dealing with an unlimited case in California so I'd love to hear about your experience. Thanks!
  11. I hope you have responded the complaint with an answer on time. A general denial should be fine.
  12. What are the differences between the agreement at account opening and the agreement their pushing? Usually they try to go with the agreement that was in effect at the time the account was charged off. Might be something to your advantage, possibly. I see. Thanks for the feedback. I don’t have any other version of the agreement to compare with the one that Plaintiff has produced. Yes, it seems like it was effective when the charge off happened.
  13. I am wondering if I should send a demand for BOP (Bill of Particulars). During the discovery, the Plaintiff has produced: Credit card agreement that's dated October 2017 which is more than 3 years after the credit card account was opened in April 2014 Charge-off statement dated November 2018 24 months of monthly statements which only shows transactions for 30% of the total principal balance 2 Bill of Sale documents (Plaintiff is 3rd owner) which doesn't show any specific account number and is missing Exhibits referred in the Bill of Sale document
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