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Everything posted by calawyer

  1. Right. But they tried that on Summary Judgment and lost. To try the case with the paperwork that the Court already rejected is not a good way to endear yourself to the Court. He needed a witness to say that plaintiff owned the debt.
  2. I would bet my bottom dollar that the lawyer did not have a witness. Without a witness, they would only have you to call to the stand. And while they might do a searing cross exam on you sufficient to establish the debt and non-payment, there is absolutely nothing you can say about assignment. That is why plaintiff dismissed without even trying.
  3. Welcome. Are they really saying they don't have to respond to a demand for production? There is a California case that suggests they may not have to respond to a Bill of Particulars in an action on an account. But I have not seen that argument before with a demand for production. Did they cite a case?
  4. I will apologize for my absence at another time. But I had to post the news of this gift we received today from the California Supreme Court. Cal Supremes held that a CCP section 98 declarant must be subject to actual personal service at the address given, and that the requirement is not satisfied by the defendant/defense counsel agreeing to accept service of a subpoena at that address. The case is Meza v. Portfolio Recovery Associates http://www.courts.ca.gov/opinions/documents/S242799.PDF
  5. Sorry I have been AWOL lately. I won't bore you with the details. Lack of service is an excellent ground to seek relief from default. It is possible, but hard, to do it yourself. I would really recommend that you speak with an attorney like Ian Chowdhury (http://www.californiacollectiondefense.com/), to see if you could retain him at least for the purpose of getting the default set aside.
  6. I don't see anything about a settlement conference. Maybe Plaintiff messed up. But you have to go anyway for the trial readiness conference so that rule of court is good to know. You should check out the form they want you to fill out and post any questions you may have.
  7. On the front of their Statement, they list November 9 at 9:30 in Dept C-66 as the date, time, and Dept of the Settlement Conference. So THEY think there is one scheduled on that date. In the local rules for trial readiness conference, do they say that there will be a settlement conference? In any event, you should attend. If you want to do a brief statement of your own, you should point out that ALL issues are disputed. THey say "none" but when you file a general denial, that puts everything in the complaint at issue. And you dispute the assignment and the amount owed.
  8. On the front page of the Mandatory Settlement Conference Statement, did they list a date, time and Dept??
  9. Check the online docket to see if the Court has calendared a settlement conference. You should also check the local rules to see if the Court sets one in EVERY case. Also, did plaintiff list a date, time, and Dept on the caption page?
  10. So happy for you. And so amazed that a Hospital would not be aware of the leading California case on this issue. Maybe I am naïve. Maybe they wanted to see if you knew the law. If so, shame on them. Again, nice going!
  11. Responding to your post as well. A BOP entitles you to "a copy of the account". I usually ask for the assignment and any contract as well. I don't want to say this on the forum, but we are not entitled to the assignment or contract under CCP 454. JDBs either don't know the rule or haven't read it in a long time and usually give us the assignment and contract too. But I wouldn't ask for more than that. If you want further documents, we can do an RFP later. Send the original signed BOP to plaintiff. The correct way to do it is to send a proof to plaintiff all filled out but unsigned (you are supposed to sign it AFTER you have sealed the envelope and mailed it). I will tell you, however, that no one does it correctly. THey send a copy of the signed proof instead.
  12. Let's hereby change our BOP to read as follows: "...setting forth the items and details of the account on which plaintiff's complaint is based..." No need to flag any cause of action that permits a BOP. Just makes it easier for them to object.
  13. As to dismissed or stayed, I think staying it is contemplated by CCP § 1281.4. If Plaintiff doesn't respond by the time of the hearing, tell the court that you sent it to plaintiff on ____ for approval as to form and have not heard back. The Judge will probably ask you to do it again.
  14. The reports are very useful and I applaud JAMS for being so transparent. Something everyone should check when evaluating an arbitrator. I have them saved on my system. I have also seen rulings that agreeing to the JAMS rules, trumps the language in the contract and also California law. I have also seen rulings the other way. Just an issue that one should consider especially if there is no right to appeal.
  15. The OP said that the AGREEMENT provided that the losing party must pay all arbitration costs and fees. That would be a valid reason, in my opinion, not to elect arbitration if I believed that the arbitration forum would uphold it under Civil Code section 1717 (although this section makes any such obligation reciprocal so that should be considered if you have a good case). JAMS is not the only arbitration forum and all have their own rules which should be checked. While it may be true that some attorneys are not experienced in arbitration, most CONSUMER attorneys (i.e. NACA members) are. They have to be in a post Concepcion world where most consumer contracts are presented on a "take it or leave it" basis and contain arbitration clauses and class action waivers. You should ask any attorney you are considering whether he or she has experience in arbitration.
  16. Generally, a demurrer in collection cases (as well as in most "run of the mill lawsuits" ) is not a great strategy decision. Here is why: In collection actions, most Plaintiffs use the judicial council form complaint. It is an uphill climb to contend that a bunch of judges got together to draft a form that somehow does not contain all of the essential elements of a cause of action. Sometimes, there will be an element missing from a complaint and a demurrer will be appropriate. But the court will grant leave to amend if your demurrer is sustained. So you must ask yourself, "can plaintiff amend"? If so, all you have done is spin your wheels and you have educated your opponent as to a part of its case of which it had not been aware. If, however, the plaintiff cannot amend, a demurrer might be appropriate. One example might be where the complaint on its face shows that it is barred by the SOL. In that situation, plaintiff can't fix the problem and it may be worth the effort.
  17. You might want to prepare a proposed order compelling arbitration. Submit it to Plaintiff for approval as to form and walk it to the hearing to give to the judge. If you want to post something here or by PM, I will take a look at it. Simple order: You filed the motion on ___ Plaintiff didn't oppose Court orders that this case be stayed and the matter submitted for arbitration at _______.
  18. Yup. This is another win for one of Ian Chowdhury's clients. It is a nice case to keep in mind as it is the only case to address the situation where Plaintiff gives you a bunch of addresses and tells you to figure it out. It is also excellent because it goes on to say that even if the declarant could have been served, the declaration is not admissible because it contained hearsay and the declarant did not have personal knowledge to meet the business records exception to the hearsay rule.
  19. If signed, it would satisfy CCP 1788.58(b). If it is unsigned, it would depend on whether it is the type of prom note that is typically "e-signed" or one clicks to agree. But in either event, you are not likely to demur to the complaint so the attachments are interesting just to see what cards Plaintiff is holding.
  20. Don't think so. Not sure where you got this list of cases and I have not checked them all because many of them do not contain citations. However it appears to be a list of cases that either do not apply the doctrine at all (the first case on the list, State v. Parker, is a criminal case where credit card records were authenticated by an employee of the credit card company itself) or apply it to situations that do not involve a JDB. Note: there is an Arizona case that has applied this rule to a JDB, Midland Funding, LLC v. Howell (Az. Ct. App 2013), however Westlaw states that it is not published and does not create legal precedent under Arizona law. My only point in having this dialogue is that I don't want anyone who later views these threads to come away with the impression that the application of the incorporation "doctrine" to JDBs is widespread and fail to make appropriate objections to a JDB's attempt to introduce records. There is no substitute for conducting research on your own state's law. However, even in states that do apply the rule to JDBs, the "doctrine" SHOULD not apply-- precisely because most JDBs do not incorporate the OC's records into their own. Under most forward flow agreements I have seen, JDBs receive an excel spreadsheet not records. They have to request (and pay for) records if they want them. In my opinion, that practice is not faithful to a "doctrine" that was developed for a situation where a business buys out another and truly incorporates the records into its own and relies on them both to its benefit and its detriment. My source, in case anyone wants an excellent reference to the law of the 50 states, is the NCLC manual on collection actions. Shameless pitch for NCLC: https://library.nclc.org/node/50674 These manuals are expensive, but are simply the best on consumer law that exist.
  21. This is where the procedure in California may differ from Illinois. But when I am in court it is almost always because someone filed a motion. So There will be a motion, an opposition, and a reply brief. In these briefs, we have already told the court what the facts are and what the law is and we are there to answer any questions that the court might have.
  22. Wow. Great opinion. Great judge. I bet I know who your lawyer is.
  23. I usually just state the proposition of law. For example here, I might say "strict compliance with every requirement must be shown where jurisdiction is based on constructive service." If it is a really important point, I might say "and the citation for that proposition is the Clinton case cited on page 3 of our brief, your Honor." You do not need a million cites for the same legal proposition. You just want to make sure the case has not been overruled. I usually pick most recent decision from the highest court. If I want to make the point that this has always been the law, I might cite a few additional cases in a string cite.
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