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ficofightr last won the day on December 8 2009

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  1. For limited civil cases, the other side doesn't file CMC statement and just shows up. The only real purpose for CMC for most collection cases is to identify any discovery issues and set the trial date. Just propound discovery before your next CMC date and hopefully they don't respond and you can follow CA rules and send them letter giving them last chance and then you can decide whether you want to file motion to compel or just wait it out. When you get to your next CMC in April, request soonest trial date available. MB is in trouble and if you can get to trial as soon as possible I think MB will just not show up or dismiss. Also, make sure you clarify who the plaintiff is. Not sure what kool-aid that judge was drinking.
  2. CACH may have some turnover lately as well as a few other JDB's so that disorganization can work in your favor.
  3. One thing I've noticed observing my local courthouse in my research is a lot of OC lawsuits are done by declaration. If your state allows them to make a declaration in lieu of live testimony, you need to make sure you send the appropriate demand that the declarant show up in court. Often times they don't show and dismiss because it's not worth a long plane flight. Another way to win is to NOT force the OC to produce documents. I know there are lots of aggressive tactics recommended here to compel opponent to produce documents, but I have seen against OC's that doesn't work as well because now they have an order and will produce *more* documents than they would have if left to their own devices. So just let discovery close and see if they have produced enough documentation to prove their case. In the cases that I've won, I've laid low and didn't fight the plaintiff's objections to my discovery requests. I let discovery expire and they are now limited to whatever documents they provided. There may be nuances on how this works in your state so check your state & local rules. In CA, for cases under $25k, you can require that the other party provide you a complete list of all documents and witnesses who will testify.
  4. But for any hearings that are pending, I have seen 3 now that Mann-Bracken attorney did not show. They may eventually recover but any pending litigation you have a huge advantage now if you can force them to send someone to court and they don't show up. I personally witnesses 2 cases and heard about another from a collection attorney I talked to in the lobby who was an attorney for Cap One.
  5. If you have any merit in filing a noticed motion that will get your case dismissed... even something like motion to compel discovery if they haven't answered yet, then do it b/c MB attorney won't show up and you'll likely have the case dismissed at the motion hearing.
  6. I've confirmed this in court last week by talking to two collection attorneys (the bad guys). Apparently, some rent-a-lawyers are not getting paid either. This one guy had a case where he admitted to everything and was representing himself and about to get killed by the Mann-Bracken attorney did not show up and it got dismissed.
  7. Yeah your first filing you pay a fee $200 now, sucks. But you can get a fee waiver if you qualify. After that, you only pay fee for motions that require a hearing. You don't pay any extra for submitting your proof of service, case management statement, trial briefs, motion in limine, for example.
  8. Wait a sec... backup a step. How many days do you have before trial? You can still serve a demand to appear perhaps?
  9. CCP 98 sounds like it's very clear what is allowed or not, but I've seen different judges allow or exclude these declarations for a variety of reasons that aren't the letter of the law. Here's what I would do - calawyer may have a different approach. 1. File Motion in Limine to Exclude the Declaration in Lieu of Live Testimony and cite the 150-mile statute. You can state in there that there is a handwritten address in the declaration but that address belongs to ABC business. Further, you can do some of your own investigation and attempt to call that person if the number is listed or do a reverse address lookup. If you can get the declarant on the phone you can verify his location by zip code. In your motion you can say "I have personally verified Mr. xyz answered 123-456-7890 which is an Anaheim, phone number, which is 345-miles away from this courthouse." 2. When making your motion, state something like this: "Defendant moves to exclude John Smith's Declaration in Lieu of Live Testimony, or in the alternative, requests a continuance and leave of Court to serve a demand for John Smith to appear at trial for cross-exmination". Then go into your argument why CCP 98 statue says that the Declaration is invalid. It's a catch-22 here... you can leave out the "or in the alternative" and just hope the judge rules in your favor since if the judge throws out the declaration, you'll win the case easily. But if the declaration is really damaging to your case, you'd rather have the continuance and serve demand to appear and hope that he doesn't fly out. Also, be prepared for trial if judge does decide to throw out the Declaration and proceed with court. Finally, consider the *contents* of the Declaration. Most of these Declarations in JDB cases are prepared so sloppilly that even if it was allowed as testimony, you can still challenge the contents as hearsay. For example, you'll have JDB declarant testify by Declaration as custodian of records and they use that to try and admit evidence of OC documents. So what if the Declaration goes in (well, of course it's even better for you if the Declaration is not allowed)... even if that JDB witness was on the stand and said those same things under oath, you'd just object to it as hearsay. The real key to victory here will be what is said in the Declaration and who said it (OC or JDB). The best case is to have the Declarant in court then you can cross-examine for things like "what documents did you use to determine the amount owed" and they'll talk about computer screens or copies of account statements -- i.e. no personal knowledge. But you can still win even if you lose on the CCP 98 request. If you want to PM me what is said on there I can give you my opinion on a strategies in court.
  10. PM me with your email I can help you with the CM110 form. I've filed a few of these in CA. It's really just for facilitating discovery and trial setting issues. They want you to "talk" a lot hoping for settlement. For your trial time estimate it's whatever you think it will go. This is so they can schedule cases. If it's bench trial short cause limited civil case it will usually go 15-mins if only Plaintiff has witness. Some Plaintiffs say "1 hour" but it rarely goes that long.
  11. It's hard to win on those service errors because the service processor will just say something like: "I knocked on the door, this man matching that description answered the door, I said 'are you Mr. Defendant' and he answered in the affirmative." They'll get away with stuff like that all the time. To win suit against them you'll typically want something easier to prove/enforce like FDCPA violations.
  12. Start a new thread. Look at the template on what info we need to help you. Don't agree to anything and if they keep calling you you can send them a C&D or say that "this is your work # and you are not allowed to receive calls at this number" unless it's obvious it's your home #. Make them send everything to you in writing. Send a DV at this point. They are still a couple months out from actually filing a lawsuit against you, if they do at all. Sometimes if you send DV notice the just sell th eaccount to someone else since they know you will fight.
  13. What did the proof of service of the summons say? If you swear you were never served that's usually enough to get it vacated as courts like cases to be proven on the merits. However, check who the process server is. I've seen cases where if the process server was a Sheriff, the judge would give the Sheriff the benefit of the doubt. Also check with the proof of service says. Did they attempt service multiple times and you weren't home and they documented it? What you can show is the process server information is not reliable because you were home on the days they said you weren't. Or your wife was home and she submits a declaration under penalty of perjury that she was home and did not receive any documents. Are you in a large apartment/condo or some other address that a process server could make a mistake? I've seen defaults vacated for apartment/condo dwellers b/c it's easy for the process server to just drop it off at the wrong door (sometimes on purpose to your neighbor). Also, check the timeline and statues for your state. Some states say within X months you can vacate for certain reasons, and within Y months for other reasons. If the proof of service shows an address that you did not live at, include documentary evidence of your actual address on the day of service. This is the most powerful way to get it vacated "I didn't live there, here's my address, here's proof".
  14. This is an account stated so best case is if they list multiple causes of action the judge will strike just the causes of action that are not 'account stated'. If they only have one cause of action in there and it's as you quoted, it's account stated and BoP doesn't apply. Do they list separate counts in the complaint? Sometimes they will plead breach of contract as first count and account stated as second count. Also, did they allege an account stated between the original creditor and you, or between the Plaintiff and you? This makes a difference in how they plan to prove it and how you fight it.
  15. The only way you can exclude it now is if the declaration is faulty. 1. Did they serve it to you 30-days or longer before trial? If less than 30-days it doesn't count. 2. Did the declarant swear under penalty of perjury? 3. Is the address in the delcaration within 150 miles of the courthouse? The only other thing you could do if it's a legit CCP 98 Declaration is request continuation and that the witness is show up at trial. You can try the judge will often give you benefit of the doubt being self-represented, but it's up to the judge's discretion at that point. Finally, consider whether the declaration alone is enough to prove it's your account, the debt owed, and the assignment. In some cases, I've seen the declaration go into evidence but they still don't have enough proof. For example, the declaration allows JDB to lay foundation to introduce an Affidavit of Debt, but the affidavit itself is hearsay or the date on affidavit is well past date of breach or assignment that you can still object to it as hearsay even if they use the declaration to lay foundation.
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