Jump to content


  • Posts

  • Joined

  • Last visited

Everything posted by kenpo1980

  1. Shellieh, You know the old saying "if you don't have something nice to say..." At the end of the day this is an advice forum and it is obviously up to each person what they want to do with it. You can obviously say what you want but it is not your place to chastise me or anyone else. As you probably know there is a lot of feelings of guilt, and shame,that come with finding yourself in this situation so do you think it is helpful for you to pile on because someone makes a choice, their own choice, to handle something differenly than what you recommend? Your response is that exact reason many debtors don't ask for help at all.
  2. Thanks Anon! I will post back as to what happens because I know it's helps other and it's nice to know how a situation plays out.
  3. Thanks Anon and not be a downer but I think this may be a bit much at this point. Trial is next Tuesday which means I would essentially need to figure out a way to have everything taken care of between tomorrow and Monday, which seems like a push at best with my job so let me get your thoughts on the below options: 1. Call the law firm and attempt to settle tomorrow, I actually left a message for them yesterday and I believe they tried to call today but did not leave a message. 2. Just show up for trial Tuesday and object to the declaration on foundation and hearsay issues? 3. Just show up for trial on Tuesday and attempt to work out a settlement there? Also, what is the difference between losing at trial versus getting a default judgment? I would assume the main difference is that if you actually have a trial everything is on the record for an appeal. By the way, I do have an appointment to discuss this with a lawyer tonight so I imagine he might have some thoughts at what to do at this point but I am going to end up being able to settle on my own for a few thousand I am wondering if a lawyer is even worth it unless he is pretty convinced he can win the whole thing.
  4. Thanks! So can you direct me to the form for the subpoena and the objection? Also, because I think this may be a separate issue, could I still win just on objecting on hearsay and/or foundation grounds to the Declaration. One appeals case I read did not even get to the issue of the CCP 98 objection becuase they felt the declaration did not meet the requirements under evid code 1721.
  5. Thanks for the responses! So in a nutshell, all I really need to do is attempt service and that should be enough to prove a violation of CCP 98, correct? Also, and sorry if I am not understanding this, but can I just object at trial to the documentation in the Declaration in lieu of testimony? And, if so, how do I do that? Is the objection a foundation objection? Is it a hearsay objection?
  6. Thanks Anon! So I will read those other posts but just a couple of follow-up questions. First, since the time is so short, I believe I am outside the window of time to serve a subpoena and file an objection to CCP 98 so is it even worth doing this at this point? And, in relation to this, isn't attempting service kind of a moot point if the Declarant is based in Colorado but they are giving an address in Los Angeles? Couldn't I argue that attempted service would not even matter in this situation because they violated CCP 98 in the first place? Secondly,how do these trials work and what should I actually bring in as far as written documents are concerned? Third, since I am representing myself, does opposing counsel get to question me and what exactly do I have to answer in terms of questions. Fourth, if I did decide I wanted to get a lawyer to represent me would that be enough to get an extension and would it be worth it financially? The total amount that CACH is suing on is around $6500 and I am wondering what I would be looking at in terms of attorney's fees. I know when I had a student loan issue awhile ago the attorney was paid 10% of what they saved me in the settlement.
  7. Thanks 11Fayez11 for you advice. I do tend to think Anon Amos is correct. So, Anon, what i am finding in my research is that I may have a couple of valid objections to keep all of the evidence out. First, I think I could object on hearsay grounds under Evid C 1271. I found a case, Midland Funding v Edwards which sayw that merely being the person, or entity, currently in possession of documents is not enough to satisfy Evid. 1721. The case is almost identical to mine in that the JDB attempted to rely on testimony from their own employee as a way to validate the documents. The second objection I believe I could raise is not complying with CCP 98. I have not attempted to serve the Declarant but it is very obvious that the Declarant is in Colorado and not able to be served. Rocha & Rodgers make it pretty clear that this approach of giving the address of a legal service is not enough to satisfy CCP 98. Anyway, what would you suggest I do to prepare for trial? And can I just bring up these objections on that day? Perhaps I watch too many court dramas but I thought you could raise objections during trial. Thanks!
  8. So now that I have been looking at this a bit more I am wondering if perhaps I have a real shot here. First, from reading the Rocha case it seems like if I just attempted to serve the Declarant, who clearly cant be served this would be enough to dismiss this testimony. Secondly, it also seems that even if I did not attempt to serve the declarant this evidence should not be admitted in the first place because of foundation issues. Honestly, it seems kind of not right that this kind of evidence from CACH should come in at all because in essences you have an employee from CACH, with no first hand knowledge of the original debt or contract. Could they just win on the affidavit from the Capital One Representative? Am I on the right track here and is there anything you guys can point me to in terms of what I would need to do to perhaps be prepared for trial should it come to that? Tx!
  9. Thanks Sadinca! Your advice has been very helpful! And, I do have a pretty heavy background in working around the law and I know that even if you have the law on your side it is often like playing "Russian Roulette" when it comes to judges. I know people who have gone in with the law 100% on their side and have the judge completely disregard them. Obviously, if you are dealing with a case where there is a substantial amount of money you are going to appeal these types of rulings but if you are talking about a case that is not even worth $10k there is the question of how much is your time, and your sanity worth, in fighting a JDB. By the way I did call CACH's attorney to talk about settling and it was really odd. I ended up getting transferred like three times until I had to leave a VM for someone to call me back. It was a bit strange because I would have assumed they would have been all over speaking with me immediately. No one has called me back yet so perhaps they want to just push this to trial.
  10. Thanks for all of the responses, i appreciate the help on short notice. And, yes , there is an address where I can serve a Notice to Appear on the Declarant. But to be candid, my goal at this point, unless someone thinks I have a real shot at winning this, would be to do anything I can to delay and push this out so that I have more time to get some money together to perhaps settle this. What's kind of a bummer is that the CACH attorney originally wanted this trial in November but for some reason the judge would not allow that to happen.
  11. The case is in Ventura county and I don't think they have as much going on as in LA so I suppose that could be a positive or negative for me.
  12. Thanks for the response. I believe what I am looking at is a C.C.P. 98 - it's called a "Declaration of Authorized Agent in Lieu of Live Testimony" and it is from the custodian of records of at CACH. And, no, I did not not send a ccp96 request. but does that really matter? When I step back from all of the "scary" court papers CACH's evidence that I owe this debt is as follows: 1. An affidavit of Assignment from the original debt seller, Capital One, stating that they sold the debt to CACH 2. The Declaration of Authorized Agent in Lieu of Live Testimony (C.C.P. 98) attached to all of the original statements from the account. 3. "Redacted Account List", which has a redacted account number with my name and address. Actually, they have done a pretty nice job of putting all of their evidence together for me so based on this information is there anything I could hang my hat on at trial or dispute proceduraly? My only goal in going to trial would be if it might push this whole thing out further or if there is a possibility that I could win this. But, on the other hand, if it's going to be an exercise in futility I don't have issue settling as long as CACH is not going to try and push on the total amount and ask for a lump sum, which I don't have. Thanks!
  13. What they sent was a "Declaration of Authorized Agent in Lieu of Live Testimony" under CCP 98. It is from the custodian of records at CACH and I am sure it is pretty standard. I found the Midland Appeal which seemed to say that this may not be enough but I am not quite clear on that. Also, I don't have a problem going in for trial if, at a minimum, I can hold this off longer, but I am not really clear on how I would present my case or do I have to present a case at all? Or do I just object and deny everything?
  14. I am not sure. They sent a whole bunch of records of the bills and then some affidavits as well from various people attesting to the fact that the records are valid? Doe someone need to be physically present to testify to the validity of the records?
  15. Hey all, I have a trial scheduled for next week with CACH, in California, and I am thinking that perhaps I should attempt to settle first so I am seeking some advice. The firm representing the case is Neuheisel and I am kind of getting cold feet because they do seem to have a lot of proof of the debt and I am honestly not sure what defenses I will have available for me at trial. So I guess i really have two separate questions. First, should I just go to trial and, if so, what should I present? Or should I just settle and what approach would be advisable. My main concern here is that I do have a job and I definitely do not want to end up with some kind of judgment which leads to my wages getting garnished but, on the other hand, I am not in a financial position to make some lump sum payment to make this go away. My ideal solution would be either to push this out longer, if I can, because I could probably pay a significant portion of this debt in a few months or perhaps work out a reasonable payment plan. The other thing I have thought about is bringing a lawyer in the mix but my guess is that this may end up costing more than the debt it's self, which is around $5500. Sorry for the short notice but any advice would be appreciated. Thanks!
  16. Thanks for the advice and I wanted to follow-up on how it went for anyone else who has to do this. Basically I showed up to the court, I was like the second person there, and one of the lawyers was kind of enough to let me know that I needed to wait in line as this is how they decide in what order to do the CMCs. When I got into the court I told the clerk what number I was on the CMC sheet and she told me someone had already checked in on that case so I spent the rest of the time trying to figure out who the attorney was. After the judge came in, who s happened to be brand new, she just started calling each case as if it was "at issue" and needed to be set for trial, almost everyone set a trial date. One attorney remained standing for a whole bunch of cases and I figured out she was representing a whole bunch of JDBs. There were a couple of instances in which attorneys were representing debtors but most debtors were not even there and all the judge did was set a trial date asking plaintiff to give notice, I probably could have skipped it... When I got my turn I went up and it took less than five minutes. The judge tried to give us a couple of trial dates but Plaintiff's counsel wanted to push to November, we finally settled on a date at the end of September. All in all it was a completely painless experience other than needing to show up at court at 8:00 in the morning;-)
  17. Cool. Thanks for the information. Ultimately I may decide to settle with them but I am guessing that if I just don't appear to be an easy mark they may come to the table with something more realistic. They did offer something a couple of months ago but I did not even respond it to it because it felt like a reach on their part. What's clear though is that they make most of their money through default judgments because it seems like most people just don't respond at all to the complaint....
  18. Thanks! So just so I understand this, and you kind of answered this before, but is this just really a formality to set a trial date? In other words the court does not try to force a settlement and wont try to get me to admit anything at this conference, correct? In other words I just want to make sure this is not some kind of mini-trial and that I will not be required to put on evidence or something. Also, what does CACH ultimately need to provide in terms of evidence to win this case? I did ask for a BOP and all the sent me was my credit report, a letter from them summarizing what they are claiming is owed, what appears to be the final statement and the affidavit transferring the debt to CACH. Is there anything else they need to provide? Like a contract or an actual list of all of the charges and what they were for?
  19. Thanks for the response, I was pretty worried about this. But I think I screwed up here. I actually did served my statement on CACH but I did not file a copy with the court, which I did not understand I was supposed to do until I saw that CACH had filed their statement so I have a couple of questions. First, what are the possible consequences for this? Should I just play dumb and say that I did not realize I was supposed to file one? Also, what would happen if I just didn't show? I know that's kind of a crazy question but really, what would happen since this is not a trial or a hearing and is not the same as not filing a response? They would not get a default judgment, correct?
  20. Hey all, I have a Case Management Conference scheduled with CACH on Friday morning and I am bit nervous so I was wondering if anyone could tell me what to expect. I did serve a Case Management Statement on CACH. My understanding is that this is really just to set a trial date and really short but is there anything I should expect or be prepared for, I don't want to be blind sided with anything. Thanks!
  21. Hey all, I have completed my response to CACH's response to request for admissions and I think I can figure out how to respond to the interrogatories but can anyone tell me what the format is for respoonding to request for production of docs. I assume it's the same a responding to admissions but just something to the effect of not having the documents after a diliegent search, etc. Also, does the document follow the same formatting as the response to admissions. Also I have a few additional questions which perhaps someone can answer: 1. Who actually sets a trial date? Does CACH need to do this? Do I do it? There are currently no events scheduled on the court's calendar. 2. They sent an affidavit which is from Capital One turning over the debt to CACH for proof of assignment, is this enough or can I ask for more? 3. In terms of proof of the debt all they sent is what I am assuming was the last bill alledgedly sent to me and nothing else. This seems pretty thin in terms of proof of the debt. Don't they need a bit more than this. My take is that all of this is just their attempt to get me to freak out and they did offer me a reduced settlement with all of this paperwork which makes me wonder if I should offer an alternative settlement or is this a bad idea.My thought was that I could just lowball the heck out of them to see what they would go for but I am wondering if this would be an admission. Thanks!
  22. Thanks for the response. All I have done is file the answer thus far and this is the first communication I received from CACH since then. There is no hearing or anything of that nature filed with the court. I am guessing they sent me this stuff because this is normally what they send when someone files an answer. I guess I am a bit confused as to what happens next because I think they were assuming that I would just agree to settle.
  23. Hi all, Well i could use some more help with CACH. I filed my answer and they responded with the following documents: 1. Stipulation for Entry of Judgment - Basically a settlement with monthly payments of $250 per month - reduces the debt by $2000 2. Affidavit of Assignment from Capital One to CACH. 3. A balance statement from April of 2013 showiing what the final debt was (No contract or anything of that nature) 4. Form Interrogatories 5. Request for Admissions 6. A credit report So I am wondering if anyone has any recommendations on how to handle all of this. I assume this "papering" is there way of trying to intimidate me into just agreeing to settle. First, it would helpful to know how I should respond to the interrogatories and request for admissions. And if there is anything I should ask them for. Finally, at this point, what is the time line between now and an actual court hearing. There is nothing listed on the docket as of right now. Thank!
  • Create New...