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OhBoy!

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  1. Hi Mima, I won my case last month in SD with Midland. It went down to the wire and lasted a year. My file of paperwork ended up being 5 inches thick. The people in this forum helped me do everything so feel good about being here and know you will win this battle. PM me if you want to know what I did to win. OhBoy!
  2. Hi all, I just want to say thanks to all the helpful people here in the forum, I was able to beat Midland and get my case dismissed... It took a whole year to get through this process and I came out victorious... Seadragon and CALaywer have been a great help and pretty much gave me the tools to put my case together... Thank you so much. The bottom line is DO Not Stop Fighting until you win! The funniest thing is when I subpeonaed the affiant at the Midland office the supervisor said to my process server "She works out of the MN office, you will never find her for service here" = Game Over! This forum has everything you need to win your case. CA Lawyer Thanks Seadragon Thank you for the pinpoint help when I needed you
  3. How can I word this Move for a Continuance a little better?... "Defendant hereby moves the court for an order requiring that the trial of the above-entitled numbered case set for trial May 4, 2012 be continued to May 24, 2012 or for not less than 30 days, on the grounds that defendant has evidence that the affidavit in lieu of live testimony is inefficient. The motion is based on the affidavit of Ashley Lashinski, which is attached to the initial declaration and incorporated by reference, all the records and files in this case, and any evidence that may be produced at the hearing. " Is this not efficient??? Thank you OhBoy!
  4. III CONCLUSIONBuild on this above a bit more... CCP 98 does not protect the plaintiff in the suit, which makes the complaint at issue full of unsupported claims, hearsay and inaccuracies. The Declaration in Lieu of Live testimony must be excluded from the record as it fails to meet the most basic requirements of CCP98. -->>>Anyone else have suggestions??? I don't know that you can ask for a dismissal of the entire case here...at the very least, stick to the issue at hand - getting the Declaration precluded. -->> How should I word it to do this, the judge mentioned he was going to make a decision once he gets our briefs...
  5. Okay, this is what I have so far... let me know if I should add or take out anything... I will file tomorrow. Also, how should I add the "request for continuance" if I cant get the decision in my favor???? once again thanks everyone for all of your offerings here. It really helped me. _______________________ MIDLAND FUNDING, LLC Plaintiff, vs. XXXXXXXXXXX Defendant ) ) ) ) ) ) ) ) ) ) Case No.: XXX_X_X__XCXXX_C_X DEFENDANTS SUPPLEMENTAL BRIEF IN RESPONSES TO COURTS REQUEST FOR ADDITIONAL BRIEFING The defendant below submits this supplemental brief is in response to the courts request for additional briefing from the parties. I.INTRODUCTION The trial hearing on May 4, 2012 for this case needed more authority to exclude the Affidavit in Lieu of Live Testimony Pursuant to CCP 98 from the record. The Plaintiffs have violated a number of statutes in the course of their proceedings. 1. Plaintiffs witness was not located for service at the given address within 150 miles of the courts required by CCP 98©, and thus the CCP 98 declaration is not valid or admissible in Court and should be excluded and struck. A true and correct copy of the attempted service is attached hereto as Exhibit A. II. DEFENDANTS MOTION IN LIMINE TO EXCLUDE PLAINTIFFS DECLARATION IN LIEU OF LIVE TESTIMONY 1. Plaintiffs have submitted a Declaration of Ashley Lashinski in Lieu of Live Testimony pursuant to CCP 98 dated 03/29/2012. The affiant states her place of business at address 16 McLeland Rd, Ste. 101 St Cloud, MN 56303, which is outside of 150 miles from the court. The affiant states she can be served at 4 California addresses, which of one is within 150 of the court. An attempt to serve Ashley Lashinski was made at the business address listed within 150 miles on May 8, 2012 but was a bad address and was told by the supervisor that “personal service on her would be impossible here”. A true and correct copy of the attempted service is attached as Exhibit A. Defendant objects and request the court that it be stricken from record. 2. CCP 98 says you must provide “a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place.” A subpoena must be personally served. CCP 1987(a)(“a subpoena must be made by delivering a copy or a ticket containing its substance, to the witness personally.” This affidavit did not apply because it does not give an address where personal service could be accomplished. Moreover, “a current address… affiant is available for service of process at that place” is what the code says, not current address”es”. This is further demonstrated by the fact that defendant was given 5 addresses. That simply demonstrates that the witness will not be there to accept service (unless she claims she can be in 5 places at once). And it is completely insufficient to “designate” or “in care of” an attorney or other person to accept service, the code does not allow it. 3. According to Herrera v Deutsche Bank National Trust Co. 196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011), the affiant was not a percipient witness and the Declaration was vague on the affiants true service address. The Declaration was executed outside of California and was not witnessed and no oath was taken by an officer of the court in the jurisdiction it was made. 4. In Mathews v Eldridge 424 U.S 319 (1976), “Where credibility and veracity are the issue, written submissions a wholly unsatisfactory basis for decision.” Justice Kennard questioned whether there would be a problem accessing credibility and veracity in a trial by declarations? “It is crucial”, she said, “in a trial court to observe demeanor to determine truth”. 5. The affiant Ashley Lashinski, further is an employee of Midland Funding and cannot authenticate records of another entity. III CONCLUSION Defendant believes the witness, Ashley Lashinski was never in California to be served personally, which has been proved with the attempted service of process, and the explanation from the supervisor at the service address attached in Exhibit A. CCP 98 states a single “address” where affiant can be served within 150 miles, not “addresses”. CCP 98 does not protect the plaintiff in the suit, which makes the complaint at issue full of unsupported claims, hearsay and inaccuracies. The Declaration in Lieu of Live testimony should be excluded from the record and the suit dismissed with prejudice and allow recovery for all costs of suit. Defendant also requests damages for lost wages, reproduction costs, document preparation costs, violations of Cal Civ code 1788 et. Seq. and any relief the court deems proper.
  6. Okay, so this will go where the title goes? Is there any thing else I should put in the body of the paper? Thanks for you help again!!! OhBoy!
  7. Thanks 1stStep, Is there an example I can follow to daft this? or maybe a line or 2 you can drop so i can have something to follow? Thank you... I will be writing everything up after work today and filing it with the court tomorrow. -OhBoy!
  8. Hello everyone, I am almost there. Today I serve the subpoena to the affiant and was told by my Process Server she didn't work in the office but in MN where her address is. - Boom!!! The Process Server is writing the declaration for me to file stating this. So now, I have to put this brief together and I'm unsure how to lay it out. Is there any forms or examples anyone has or can share here so I can follow the layout? Since the trial has ended I would like to make sure the judge can understand completely what I 'm trying to do to get this affidavit excluded for the record and then case dismissed. 1. Prove the affiant isn't serviceable at the address - DONE 2. Prove that CCP 98 doesn't protect the affiant in this affidavit having multiple addresses - DONE 3. Prove in a citing that this case needs to have live witness testimony and the Declaration in Lieu is not admissible. - DONE Is there anyting else I'm missing that will push me in to the endzone? -OhBoy!
  9. It all makes sense CALawyer, Thanks. I was able to serve the subpoena to the affiant at the San Diego address on the affidavit but the Process Server had this to tell me: He talked to the supervisor and said she does not work there and works in a MN office. She isn't serviceable there. The Process server is writing a declaration for me and I will file it with my Motion in Limine to exclude Affidavit in Lieu of Live Testimony. I still have a question: Should I file it as a Motion or a supplemental brief? Still not sure how to write this out... I will have to get this done tomorrow and filed by Thursday. Thanks again for all the help here. You guys have got me riding a good one. I feel like I still have a chance even after I blew it in the trial.
  10. Hi Seadragon, I will use this case to cite, where is a good site to review the case? thanks. I have a question on the subpeona... "subpoena the affiant and request the employment history of the affiant, the training of the affiant and the location of the affiant for the 20 days prior to trial." Is there a format to write this out on the paper? Or is there a form I can complete to make this happen? ALso, if I am to supeona all these items, will the judge have time to get make a decision by Friday? Looks like I have some work to do here! Thank you again. OhBoy!
  11. This judge wanted me to file some case-law that supports the exclusion of the affidavit by rule of ccp 98... So some case-law and anything that proves the affidavit should be excluded form the record. I think the info you gave about the "single address" and the code is good for proving, but would need a case to cite... i can use elkins but I did use that one in trial and he may wamt to see anothter. Any suggestions? I cant say thanks enough! OhBoy!
  12. That is pure brilliance CALawyer. Thanks. Now I have to figure out how to file this info with the court so the judge can make his decision "in my favor"!! Seadragon, mentioned serving the affiant even though the trial is over, I can, but will it make a difference? I think the Code alone states a single address, not alternative addresses, for affiliant to be personally served. Also, how do I write this out in "court language"? Pleading paper? I really appreciate all of your help offered, it really lifts some of the stress off when I see you guys helping out in times like this. I know I sound dumb but I have this so close to being dismissed but it could easily go the JDB way as well. Thanks again for all of your help here. -OhBoy!
  13. Thank Seadragon, I have never done a subpeona, is there a ready made form where I can put her name and serve, or do i have to write out a pleading paper to serve? Will this work since the trial is over? Thanks. Also, I cant PM yet, as Im too new and i dont have 10 posts yet. Is there an alternative? -OhBoy!
  14. Thank you Seadragon, It looks like you want me to Subpeona the affiant today, but the trial was yeasterday. The judge is giving us a week to file some case law as to why the affidavit should/shouldnt be admissible. I like the example you gave and will use them... My question is, Should i still Subpeona the affiant even after the trial, One thing I did notice is on the CCP website under section 98 it reads "(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial." So if there is "addresses" on the affidavit but the "current address" is outside 150 miles, do I have standing there? Thanks for all you help OhBoy!
  15. Hi All, First of all thank you to everyone for all of your offerings on this forum, it is awesome for those of you who give your time to help us. Thank you. I have used the offerings of this forum to build my defense and did a good job up until the Affidavit in lieu of live testimony ccp 98 was served to me. Once I read it I noticed the business address of the affiant was in MN, which is well beyond 150 miles of the court. I notice there was 4 other addresses in which the affiant says she can be served to testify in court, one of them being in San Diego where the case is being heard. I overlooked it as "since her main address is in MN, it will be easy for the court to exclude it." So I didnt serve the affiant at the local addresses on the affidavit but rather put my trial brief together with motion in limine to exclude. I had my trial yesterday with Midland and it didnt go so well... The judge as it stands right now, finds the affiant can authenticate the bill of sale, billing statements as evidence... Midland also, had a copy of my pre-approval form in the declaration. Since I stated in my trial brief the affiant's business address is in MN which is outside of 150 miles, it should be excluded. But with the other 4 c/o addesses in CA and one in San Diego within 150 miles, he isn't sold on granting it as admissable. He felt her spirit is not in San Diego. He has given until May 11, 2012 to find some case law and good fact where I can prove that the affidavit is not valid and the affiant is/was not in spirit of 150 miles. So, hopefully I can get some help on this last hurdle to the finish line. Any offering will be great and thanks again for everything.. -OhBoy!
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