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Everything posted by rikkivs

  1. After going around in circles since Countrywide was our lender we finally got a permanent loan mod. Interest rate is the same, it's still a 30 year fixed loan but there is principal reduction and thus a decreased monthly payment by $700 including escrows. All we had to do was file BK before they responded! ha ha ha
  2. Things have changed but back in the day American Express did exactly what you suggest; they gave me and my spouse the mortgage loan based upon my credit but HIS employment history. This helped out our credit for a time and sadly we refinanced at the peak of the boom. It was a mistake because it was a sweet loan. I don't know if Amex originates mortgage loans anymore, but there may be companies out there who have similar programs. If you have a stable employment history and work in a stable sector anything is possible. Have you considered privately funded loans?
  3. After three years, we finally got a decent modification offer from BoA BUT....the trial period is three months and after that they will forgive over 100K in principle (they say). BUT...my concern is tax consequences. It is my understanding that mortgage forgiveness act only goes till the end of 2012, so if at the beginning of 2013 they forgive some principle, won't we get stuck with a tax bill? OR do the tax ramifications occur based upon the year the modification was initiated in trial? Hopefully you all can help us with this...it's been a horrible rollercoaster ride and we don't want to get screwed in the end. Thanks:) To explain the first mod pyt is due Nov 1 then Dec 1 then Jan 2013! After which time they say they'll forgive some of the principle...
  4. You have spent a lot of time helping fellow Californians here. Do you have a PayPal account so we can make donations?Your kindness is worthy of praise and compensation.
  5. You are a kind, generous and loving person for providing this exceedingly relevant information. There are documents that verify the spouses mental conditions also. Our bad though, for not getting an attorney for the trial. The good thing is that the pleadings speak for themselves. Big time. They show the issues, meet and confer letters and everything so I get this now. Thanks so much. I shall have to work on this the rest of the week now so I don't miss the deadlines for filing any of this stuff. Lastly what does JNOV mean? Thank you.
  6. I didn't know about using this as a strategy. I am not absolutely certain about the timelines though since our trial was a bench trial and was less than one day. Since we didn't ask for statement of decision at trial orally does that mean we waive the privilege of getting one? Trial occurred earlier this week.
  7. Leagleeagle my old friend. Never once have I claimed to be an expert on CA law at all. The only thing I've discussed with any hint of authority is Bill of Particulars and Motion for more definite statement from personal and other experiences. Yes it was apparent that the spouse was tongue tied and the spouse asked the judge from the beginning if I could speak because I did all the work! Of course the judge said NO because I am not an attorney, but he did say he understood that spouses work together on these things. hahhahahahahhaha My spouse had absolutely no clue and this is a problem! I will consider a motion to reconsider for certain and I have only ten days for one! So thanks for the suggestion to 1st Step. And Coltfan I figured you might like the analogy! Sometimes we have to understand the nature of our losses. I know that we lost because my spouse didn't prepare and I was too darned neurotic about everything. Lesson learned and there are no hard feelings at all! Either way it goes we'll be quite fine because we found happiness from within8-)
  8. Cannot give too much information but the trial was yesterday and we lost on a technicality. The judge assigned was new because our main judge was caught up in another trial. The judged asked the spouse if they were an attorney representing themselves based upon the pleadings. However pleadings and such do NOT make up for a lack of trial practice. 1 simple technicality can ruin your whole trial even IF you have proper documentation that you were right about a specific matter. If they get a piece of dog crap and try to enter that into evidence, if you don't object with something reasonable they will get it into the record and that piece of dog crap is evidence before the court of your debt. A stupid analogy...I know but all true. That is why it is vitally important to not only get your pleadings to be tight but to also understand a little bit about trial procedures so you won't go so far just to get slammed. If you want more details PM me. We are fine though, there are other options we can take to have the court reconsider or do a motion to set payments or something else. We will be fine. All of this taught us a valuable lesson too, if one spouse does all the legal work and the other spouse doesn't study what they are supposed to study then the couple isn't unified to the degree it ought to be and can be easily crushed. Lessons learned on a lot of levels now me and the spouse are contemplating the nature of happiness and oddly the loss at trial doesn't bother us to the extent that it might have a couple of weeks ago even. We're okay:)
  9. Leagleeagle once again you're still saying incorrect stuff trying to quote CA law to me and just repeat what I've already said. BV80's quote below goes to the heart of the matter about vagueness. It makes absolutely no sense to try to answer a complaint without a BoP or motion for more definite statement if they dont even provide an account number on their suit. This is obvious and plain sense. As to the BOP you were in error about it being a discovery device, then when called upon it the only thing you did is cite CCP 454 which we all know about already. CCP 454 is not discovery it is an amplification of the pleadings. Instead of pointing the finger at me for alleged reading comprehension issues look at yourself. You once again are in error.
  10. Yes because your friend is trying to personally serve the subpoena, I believe you are in the right time frame. Whatever the case, best wishes for the outcome of your trial!
  11. No that is why the MDS should be filed first then if time is ticking an answer can be filed which is still consistent with the initial position A motion for more definite statement includes how they arrived at the suit amount and language from the contracts that were allegedly breached etc such that the issues can be narrowed. MDS and BOPs are supposed to elucidate the pleadings. That means make the pleadings more intelligible. The issue of vagueness is contentious as I mentioned before, but at this point every single judge that I've come across always grants a BoP demand or motion to compel further BoP because although the pleading forms are standardized, they are not legally sufficient. A person can sue you and say you owe them money. But you have to understand the nature of their allegations and ask for an MDS. This is what the JUDGE told the oppositional rental attorney in our settlement conference last week. So just stick with what you know and advise others on what you understand. Don't bother me becauseI am discussing issues that you don't quite understand. BTW you were incorrect about using compound ADMIT and DENY statements with OBJECTIONS in ADMISSIONS Which is what I said above. I think your reading comprehension needs work. You argued with me, then you contradict yourself above, then front like you're right. Nope your wrong and having a negative attitude about it makes your attacks worse. Incorrect, that is why they have the motions to dismiss for failure to state a claim and demurrer devices. Just because people do pleadings like that all the time as a matter of course, does not make these pleadings legally sufficient. If your logic worked, anybody could sue anyone at any time and all they'd need to do is allege it in their complaint. That is unacceptable and most judges, when this is brought to their attention would not deem it a reasonable complaint. INCORRECT!!! A Bill of particulars and a Motion for more Definite statement serve the same purpose; to ELUCIDATE the pleadings. Although some judges treat both procedures like discovery they serve a different purpose than traditional discovery, yet compliment it. Whatever they present in the MDS or BoP is what they are LIMITED to talk about at trial. So again these processes can benefit a defendant if they are saavy. Incorrect. You don't know what you're talking about and have chosen to pick on me but you haven't been on the board as long. There are many posters who have benefitted from things I have said in particular on THESE ISSUES. So go piss up a rope and leave me the hell alone. Your arrogance is nasty.
  12. The difference in approach comes from the fact that I deal in California and speak to the unique quirkiness of our states RCP and Rules of Court. California has some devices that immediately can put plaintiff on the defensive and it turns out that many other states have similar vehicles that aren't used as often as they ought to be. The Motion for a more definite statement, or Bill of Particulars (depending upon which state you're in) serves a vital purpose because off the bat they must give you an itemization of the account from zero balance and they have to show how they arrived at whatever balance they allege you owe. In most states, if the MDS is lacking in some areas or plaintiff did not submit one, terminating sanctions can result and or exclusion of evidence, provided the Defendant is astute enough to draft these motions etc. The next reason why these MDS and BOPs are so important is that you can see the evidentiary stuff to see how tight their case is. Obviously if you did an MDS and they came back with a stack of papers that had your name and identifying information you would not win the lawsuit but you would be able to get a good settlement. In my estimation it makes sense to understand the nature of complaints against you. The other issue that was brought up a few threads ago is in affirmative defenses. I cannot stress enough their importance, provided they are relevant. In particular the account stated defenses are useful! Leagleeagle and Coltfan have a different approach to these suits. Time will tell whose methods are most effective, but in the meantime I don't want to get into pissing matches either:mrgreen:
  13. I am lucky for living in a podunk town. I called to ask about filing a trial brief and the clerk said nobody had ever asked her that! She had to ask the other clerks and the rule is that if it's a jury trial you must file one, but you are not obligated to file a trial brief for a court trial. I lucked out on that one because it seems like every time I have stuff to do I get sick and I got sick this weekend when I was supposed to be working on the brief! Thanks for all of your support everyone. I will be sure to let you know how this turns out in a few days for trial:)
  14. Yes I got sick over this weekend and am afraid I won't be able to turn one in on time. The trial is scheduled for a few days! But I guess even if I prepare something and turn it in late it may be better than not doing anything at all. Thanks very much. This has kicked my tail!
  15. Is a trial brief required by the court before trial? Can we get sanctioned for not turning one in?
  16. Texas has some unique quirks that used to work for creditors, like sworn accounts and account stated suits but some judges are realizing that those causes of action abuse the process. This is good advice, there are a few primers I attached since 2009 for citizens of Texas that were prepared by debt defense attorneys and they say the same thing you are saying, that certain causes of action routinely employed by debt collection attorneys on suits are inappropriate. Rock on:)
  17. Palisades Collection, LLC v Kedik (2009 NY Slip Op 08259) http://www.philipstern.com/files/Brief_sample_-_SJM_Debt_Buyer_Collection_Case.pdf
  18. The Lack of Evidentiary Foundations Fosters Fraud - Credit Slips Theory and general reliability, however, represent only part of the foundation. Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for the admissible of such records: 1. The business regularly uses a computer. 2. The computer is reliable. 3. The business has developed a procedure for inserting data into the computer. 4. The procedure has built-in safeguards to ensure accuracy and identify errors. 5. The business keeps the computer in a good state of repair and has regular and professional maintenance. 6. The computer system has appropriate firewalls and security features in order to eliminate the possibility of corruption or manipulation of data. 7. The witness had the computer readout certain data. 8. The witness used the proper procedures to obtain the readout including the entry of a proper user-name and password and the proper commands. 9. The computer was in proper working order at the time the witness obtained the readout. 10. The witness recognizes the exhibit as the readout. 11. The witness explains how he or she recognizes the readout. 12. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols and terms for the trier of fact. 13. The business has implemented a proper computer policy and system control procedures that limit access to the data. 14. The computer system can generate reports as to when any original data was changed, modified, or deleted, including the time and date, the name of the employee taking such action, and the basis for the action. 15. The business exercises control over access to the database. 16. The software programs have been verified for accuracy and all patches, fixes, and new features have been and are uploaded on a regular basis. 17. The business has implemented regular audit procedures to assure the continuing integrity of the records. 18. The business has a regular system to backup all databases and checks the system for accuracy on a daily basis. 19. The witness has complete access to the computer system and database, is familiar with how the data is entered, stored and maintained, has personal knowledge of ally verification and security systems, and can testify that all of these matters were personally verified in connection with the evidence proffered. 20. The witness must be able to offer evidence of sufficient training, experience and expertise in these areas to offer the detailed foundation evidence required for authentication. How should the attorney for the Debtor deal with this type of evidence? It is suggested that a Motion to Strike the Affidavit with the defective account data should be filed. This type of motion can be filed pursuant to Rule 7012 of the Bankruptcy Rules and Rule 12(e) of the Federal Rules of Civil Procedure. The motion must be filed with “20 days after service” of the Affidavit and the substantive objection is that the document is replete with data or account information that is not admissible and therefore immaterial to the issues before the Court. With the number of affidavits and legal documents that are currently being executed by third-party providers, or by document assembly and preparation operations pursuant to "signing authorities," it is essential that these foundation rules be enforced in every case in order to prevent the complete high-jacking of our system of justice and to prevent a total disregard for the Rules of Evidence.
  19. Congratulations! And to be sure, their witness came all the way from Virginia? So you subpoened her in Virginia then?
  20. Did the court allow them to reschedule?
  21. So there has been a discussion the last two days about sending a notice to appear to a person from plaintiffs side to show up at trial. Some posters believe that doesn't make sense because you are advising your adversary to show up. Others believe that you only should do a notice to appear in CA provided they did a CCP 98 declaration in lieu of testimony. But what about another scenario, where no discovery was conducted by either party and plaintiff did not submit a CCP 98 declaration in lieu of testimony? The name of the witness they want to call was disclosed during CCP 96 demand. Should I notice or subpoena this person to show up so that if they don't we will win? Or wait to see if they'll show up and roll with it.
  22. I didn't do a notice to appear or a subpoena because the time frame isn't quite there yet. I have a few more days to do either. And some say that I would be forcing my adversary to show up, while others feel that if they don't show its an automatic win. I don't know how to play that but the person who verified the coopy of the account is not eh same person they claim to call as a witness through their ccp 96 disclosure. AND they didn't attach an affidavit to their ccp 96 response packet only a name of a witness they intend to call,no address to send him such notice either...
  23. it is alleged oc actually. Now I am trying to figure out how to cross examine to get them impeached with my evidence! For a while they didnt send us a verified copy of the account, for months in fact but they sent us a verified copy of the account a few days ago. However there are so many inconsistencies when we look at our bank account statements at that time and their alleged payment history with payments recorded that we certainly never made and monies they say we took out on certain dates that we never did. This creditor used to be seen as an entity that helped people build their credit and this was our third or fourth account with them, after paying off previous ones. But after we got this account with them, the inaccuracies in billing began, the company culture where nobody takes responsibility for anything etc etc etc So I am trying to figure out how to show my bank statements for certain time periods that they said I made a payment and my bank statements show no such payments were ever made. Any advice on these difficulities is appreciated. Thanks 1st Step.
  24. anyone with experience in this?please chime in!
  25. I am in California and trial is coming down pretty soon. How likely is it that they will show up with the witness they specified in their ccp 96 statement?