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Posts posted by kenpo1980

  1.  I know this has probably been asked thousands, and if you have a thread you want to direct me to feel free.

    So, I have a fortunate situation in which a generous relative is offering to help me pay off my bad debt so that I can start the process of  rebuilding my credit score but I am not sure how to begin this process.

    To cut to the chase I have about $16,000 in written off debt that is with third party collection agencies. $10,000 of  this is from pay day loans, yes I know how bad these are, $5500 is from credit card debt and about $500 is from past medical bills  that I completely forgot about. Most of the debt on my credit report looks legit

    Since these collections agencies seem to pride themselves on scare tactics, and deception, I am wondering how best to approach  them and how much I should realistically be offering to pay given that the damage to my credit is already severe and knowing that most of these companies probably paid pennies on the dollar for these debts. The Pay Day Loans have gone third party within the past six months so they are very "fresh" but the credit card, and medical debts, are 3-5 years old but, none the less, are still getting reported.

    Funds are not unlimited, and I am realist in terms of my credit score, but, at a minimum, I would like to stop the harassment and stop these debts from continuing to be reported. I  am not disputing the debts but, on the other hand, I don't want my relative to  shell out $16,000 when I could have settled this debt for  fraction of this and gotten the same outcome in terms of my credit score.

    Any advice will be greatly appreciated. Thanks!


  2. I had the same issue but I don't think it really matters as much with cases certified for publication. I just mentioned it as follows:


    The recent California Appellate decision in Sierra Managed Asset Plan v. David Hale (appended hereto as Exhibit A) filed on 8/20/2015, and certified for publication...


    It also didn't heart that the judge  was in front of was one of the author's of the opinion;-)

    • Like 1
  3. Hey all,


    Well it was a good thing I checked my calendar, and spent all day Sunday preparing, because it turned out my trial was today and I won! So, first, let me thank everyone who helped me out here, with a special shout out to Anon, qbert and shellieh98.


    So just to let everyone know how this whole things went down. I spent Sunday preparing all of my objections to the CCP 98  and i showed up at the court first thing this morning to file this with the court. I then preceded to the assigned department, checked in and sat down.


    There were only a few cases in front of me and most of them were handled very quickly. It  was finally down to me and one other guy waiting for the JDB attorney who was in another department  on another case. When she finally showed it  was the same lawyer from my CMC and she was ready to proceed immediately.


    The case for the other guy went up first and I felt so bad. He was not represented, had no understanding of the legal process and basically stated over and over again that he owed the money - I just wanted to yell "shut up and stop talking!" As in my case the JDB provided a Declaration pursuant to CCP 98, to which did not object, no matter how much the judge tried to help him, and the JDB won.


    So I went up, and immediately the judge started referring to the objections I had filed on the CCP 98. He did not even address the subpoena issue and started hammering the JDB attorney on how this custodian could possibly testify to the validity of the records. He then started grilling her about the fact that the Declaration only referred to the original creditor but the Affidavit was from the second creditor and that there was no proof of chain of title. 


    She then asked for a continuance, and I objected. The judge asked why she needed one and said this was the day for trial and she should have brought the witnesses. She then made the comment that she was not aware of these objection and that people usually file them first, which I knew the judge would hammer on. He came back and said again  that this was a  trial and that I could object to evidence as it is admitted. Finally, he said to prepare an order for dismissal and file it with the court. Pretty awesome!

    • Like 3
  4. Thanks Anon. Actually there was a case that came out on 8/20 from the court of appeals, Sierra v Hale. It was virtually and identical situation to mine. In this case the Declarant showed up so the CCP 98 objection was moot.

    In a nutshell the court said you can't use declarations from custodians with no personal knowledge of the records. So basically JDB can't just have their own custodian testify. This case is certified for publication which means it can be cited.

    • Like 2
  5. Excellent Anon. Thanks!


    Also, I have to admit that after spending all of this time preparing I feel pretty positive about my chances and I have you and everyone else here to thank for that.


    Really this case should be dismissed immediately because of the improper CCP 98 or the Sierra case.  And,  I guess that brings one last question. How do I handle discussions with the opposing counsel? Are they likely to try and offer a settlement before trial, obviously I would not consider anything over 50% since they already offered a 30% settlement, but, if they do, am I better off taking my chances with the trial to see if I can get everything tossed?


    The judge who has my case does not seem to have much of a track record in collection cases, that I could find anyway. And I am just wondering how likely he would be to deny an objection firmly based on a recent decision by the court of appeals.

  6. Okay so I am pretty much done with my list of objections/trial brief and it occurred to me  that I have no idea what it cost to file this with the court and if I actually have to file it before trial. I checked on the court website and I did not see anything listed for filing of objections or a trial brief so I am wondering if it is free or if it falls under those $60 filing fees.


    Also, in court what is the etiquette for giving a judge a trial brief. Do I just ask to approach or do I try to do just as the clerk? Tx!

  7. Thanks those are excellent document!! So, and I know I have asked this before, but are there any objections I can't raise, or present on the day of trial?


    In other words, even though it would have possibly saved me this whole headache of even going to trial in the first place had I done these objections before they are not "waived" at this point, correct? In other words, the only way I would waive these if I did not present these at trial.

  8. Yes, their offer of 30% to settle  this close to trial seems a little low. If there were confident they would win I woud have assumed they would have perhaps come back at like 80% or something.


    I am really just writing a statement of my objections, which I guess is kind of like a trial brief. I do have quite few examples from California of objection only pleadings but if you have any samples you want to share let me know .


    Also, and I know  it's not this easy, but just on the Sierra v Hale case alone the judge should completely keep out the declaration. I am actually going to bring copies of that case since it is not yet available anywhere but on-line.Tx!

  9. Hey all, I thought I would start this under a new thread so it is viewed today. If you want to see the thread I am  bridging this off of it iit will probably be a bit below this one..


    Anyway, I have a trial coming up with CACH on Tuesday (in California) and I am preparing my trial brief but I have questions about a few objections I should be making.


     I am  primarily objecting to is the Declaration of Authorized Agent in Lieu of live Testimony by a CACH's Custodian of Records. Assuming the judge is even willing to let this in at  I was going through and objecting to each paragraph individually.


    I have listed the objections I am wondering about how to object to at the end of this post but I am also wondering I could just not do one general objection to the whole Declaration based on the recent ruling of the court of appeals in Sierra v Hale, which states that this  type of testimony does not fall under the Business Exception Rule. Could I just object to the whole thing as hearsay and cite to Hale?


    1. "There is no record that Defendant ever disputed the balance shown as due and owing on the monthly statement."


    2. "Despite Plaintiff's demand for payment, Defendant has failed to many any payments whatsoever."


    3. "Thus, there remains a due and owing to the Plaintiff the sum of $XXXX.XX"


    4. "The plaintiff is authorized to sue on this account as it has purchased  aforementioned debt from HSBC BANK NEVADA, N.A. & ITS AFFILIATES. An Affidavit of Assigment is attached hereto as "Exhibit 2", and is incorporated herein by reference."


    5. "Consequently, due to the serious deliquency on the the account, it has been necesssary for Plaintiff to refer Defendant's account to it's attorney for collection of the balance as due as described herein.  Accordingly , the plaintiff requests and aware of attorneys fees pursuant to California Civil Code 1717.5 in the amount of $XXX.XX"


    6. "Accordingly, the plaintiff, respectfully requests that judgment be entered in it's favor and against the Defendant in the amount of $XXXX.XX, broken down as follow: (i) $XXXX.XX Prinicipal Balance; (ii) $XXX.XX Attorney Fees; and (iv) Costs of $290.00"


    Any help will be much appreciated. Thanks!






  10. So, just to be clear, the affidavit of sale mentions me by name and list an account number that is partially redacted, which I don't understand.

    In terms of presenting the objections am I wrong in thinking I can just file them with the court before trial and then give copies to the judge and the JDB attorney that day?

    Also, and I know I asked this before, but if the JDB starts asking questions about whether the debt is mine or questions about it being my address on the statements how do I respond. Obviously the issue is not whether they have my address correct but the validity of the documents they are presenting for evidence.

    Finally one last thing I discovered by going through these threads is that the Declaration CACH submitted is from some guy who evidently works for a sister company of CACH in Denver and has the title "Officer of Affidavits". Not sure if I even need to bring this up, or how I would prove this on my end other than LinkedIn, but thought I would mention it..

  11. Thanks RyanEx and I actually thought that myself. Since we are so close to trial you would think they would only offer to settle for a a little bit less than the full amount or just go to trial. The attorney I spoke with, who was awesome by the way, was willing to take the case on short notice and just walk into the trial  and win based on what I told him.


    I think I am pretty clear on what I need to do moving forward but as I look at this  I do have a couple of other things I am wondering about how to deal with at the trial.


    First, I have an "Affidavit of Assignment" from the "second OC", I will get to that, and it is probably pretty typical. It is from a "Representative of Capital One" and it just says that the account was "subsequently sold, assigned and transferred to CACH". It has my name and the final balance on the account. There is no additional record to document the sale to CACH and there is no indication of who this person is that signed off on this. My assumption here is that I could make objections to this at trial based on Foundation but I am wondering if this is true.


    Secondly, and I didn't even think about this, but the original account was sold to Capital One from HSBC and half of the statements are when it was with HSBC so I am wondering if there is another objection in here anywhere? Would they have needed an Affidavit from HSBC as well.


    Finally, and the major point here, there is no one from either of the original creditors testifying to the validity of the actual statements attached. The only person doing that is a CACH employee. Perhaps I am reaching here, and obviously an unfriendly judge could make all of  this moot, but it seems like it might be relevant. TX

  12. Thanks for the response Shellieh98 , i appreciate it. It's just that, as you can imagine, having these financial issues is stressful enough and the last thing I wanted to do is get into a back on forth when I am coming to a forum like this asking for advice. 


    Obviously, I did everything that was required to even get a trial date set but, like a  lot of people, I honestly thought I could perhaps come up with something to settle this before trial and that did not happen which is why I procrastinated, In terms of the subpoena service the issue, my understanding was that I had to have several attempts made prior to trial and even if that were possible it's not 100% that a judge would still not accept the testimony in Ventura County, which is where I am located. And that these JDB attorneys are starting to bring witnesses with them because they are getting challenged on this issue so much. 


    At any rate it is moot point now because the JDB called me the morning about settling and offered a lsettlement number, which was about 30% of the debt, and coincidentally what the lawyer was going to charge to represent me. Since I don't have money to make a lump sum and they will not do any type of payment plan unless,  it's for the full amount, it looks like we are going to trial so all I can do is prepare for that.

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