kb917

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Everything posted by kb917

  1. If I file a motion to compel (same attorney, same JDB as OP), I am asking the court to compel the Plaintiff to provide all documents asked for in the BOP, including the Bill of Sale, correct? If they cannot answer/provide, it is inadmissible, correct? What would I file after that point? Motion to strike for lack of standing? Thanks!
  2. Is there a form to 'verify' the answer? My mom is getting sued by the same folks. They never once tried to collect, just sent the complaint. No reference to any account numbers, just a 'Citibank' in small print on one of the last pages. So, since I've done this before, I have most of her affirmative defenses ready, just doing some last minute research and came across the suggestion to verify the answer. Thanks!
  3. I filed my opposition and unfortunately, I was not prepared enough in that opposition, as the judge granted the MSJ. He noted that while I brought up items worth a defense, I did not have any evidence to support my issues. I would suggest that, even if you aren't sure you can do two motions at the same time (I think you can), do it anyway. Better to 'over-do' it than not enough. Unfortunately, in my case, I lost. I did file BK just in time, though (my case was over $25,000 and no way I can afford it). At least their lawyers had to spend time and money to fight me. Good luck. I wish I knew more. Try contacting calawyer...they really know their stuff and were very helpful to me.
  4. Just one? That seems like nothing for them to go on...is it a junk debt buyer? How many points do they have in their motion (usually, it goes line by line, stating what is undisputable)? If they haven't provided you with anything, you should try shooting out a bill of particulars request. Not sure if it is too late for that, though. If they can't provide you everything you request, they can't include it as evidence. And if your time for discovery isn't up, you still have a right to request it. Check your civil code of procedure. Seems like they couldn't have won on this had you fought it more timely, so maybe try asking for a continuance or something. One statement is not enough for them to sue on...what is the complaint? Breach of contract? Common counts?
  5. Have they provided you a copy of the agreement? You can file an opposition stating that the actual damages are disputable as you have no contract to confirm or deny (since the amount is more than the balance - attorneys fees and such would be referred to in the contract/agreement). That's really all you can argue, if it is the case.
  6. So I guess I will be taking a big risk, then. If the motion goes through and my opposition gets denied, will the judgment be placed AT the hearing? I guess what I don't know, is if the judge will approve the opposition prior to the hearing?
  7. What happened at the hearing? Did the judge rule AT the hearing, or will he rule later? I have some timing issues here - I will have to file BK if he goes for a judgment, but I will have to do it before a judgment is rendered in order to avoid it.
  8. Don't roll over. That's what all of these creditors are counting on. They get the bailout money, sue you for more money and don't have to spend much on legal because most people are too intimidated by their tactics. Check online for the Florida rules of civil procedure. Their motion should include a "statement of facts". You need to go line by line and either list as disputed, or undisputed, and then list why. If they list in their statement that they have 'damages' - you can dispute that they have failed to mitigate their damages. Did they attach an affidavit to the motion? If so, did the person who signed it state they have 'personal knowledge of the account'? This is fightable. In CA, the affiant has to have signed within 150 miles of the trying court, if not, it is inadmissable as evidence. Start checking now - you won't have much more time to file your opposition. Good luck!
  9. When I say "use CCP 98", I meant that they violated it and I could use it against them...but that doesn't apply since it is unlimited. The declaration is sound as far as the declarant "swear(s) under penalty of perjury under the laws of the state of California that the foregoing is true and correct?" She did that, yes. However, she states that she has personal knowledge of the facts. There are quite a few hearsay statements in the declaration as well...alluding to the fact that because they practice business one way, that it must apply here, even if she doesn't have all the evidence. I have already sent the opposition to the motion, but I did not send an opposition to the declaration. Is that separate? I did note in my opposition that I opposed the declaration...is that enough? Or should I also send an opposition to the declaration under separate cover? Thanks.
  10. That's what I thought when I read it - uh...you're admitting you have no application? OR an original agreement? Ooookaaay, thanks? Ha. They do have statements, which is why I am not going for the MIL. On top of all of this, the woman in the declaration has been found guilty of robo-signing and robo-testimony. AND, tons of stuff in the news about a certain BIG NAME CREDITOR (who shall remain nameless;) ) who is now being forced to refund customers over $85mil in interest and late fees (the exact type of account in this suit). I want to buy as much time as possible to see how THAT plays out. If it turns out they have to refund this account, it may need to be moved to Limited Civil. Wouldn't THAT be something?
  11. Like the other poster said - if you didn't file an adequate answer with the court, you are pretty much screwed. Sorry. I had assumed, since you went to court already and a judge gave you more time, that you had followed the process? If so, start looking on this site for some more help on how to file your opposition to the motion. How far out is the hearing? In California, you only have until 14 days prior to the hearing to file an opposition.
  12. Thanks - I found it. Darn. Although I did find that declarations in unlimited civil cases are considered hearsay. If it comes down to trial, I can use that, right? I am sending my opposition right now - thank you for your insight and expertise.
  13. Are you being sued by the Original Creditor (OC)? If not, fight it. Junk debt buyers don't have nearly as much pull as an OC. If you are going against the OC, you should fight it too but it may be more difficult. If you file BK Chp 7, they get zip. If you file 13, you will be paying them for the next 5 years. Good luck.
  14. I did find this quote from the OC Courts website: In small claims court police reports and medical bills can be introduced into evidence without having the police officer or doctor in court to authenticate the document. In a Limited or Unlimited Civil case these out-of-court statements (called hearsay under the rules of evidence) are generally not allowed, particularly if you want to use them to prove the information that is in them. This is one of the reasons why it is difficult for non-lawyers to try a case in the Superior Court. The rules of evidence are complicated and can make it difficult to get evidence into the court record.
  15. My case is with an OC. The trial date is set for December 3, but they have filed a motion for summary judgement. I am filing my opposition - their entire basis for their evidence hinges on this woman. Here is the case that was dismissed because of her testimony:American Express Bank v. Tancreto and here is an article about it. Now, I am sure I can't use CCP 98 in this case - as it is unlimited. It would be nice to use it since she signed in Maine. But if her declaration (NOT an affidavit) is really considered hearsay, I'd like to do something about that. And, she admits in her declaration that they cannot find the application that established the account. Nor have they included the original agreement upon which the account was established. I'm throwing darts here - just trying to see what sticks. Thanks for the input...I don't want to have her entire declaration discounted, as it contains the admissions that she can't find the contract. I am just going to have to go line by line and dispute what is 'disputable' I think.
  16. I'm in the same situation. I want to discount the plaintiff's declarant, but because this is 'unlimited', i can't find the correct code of procedure to do so. I thought I could use CCP98, and I don't see that I really CAN'T, but I don't want to look like a moron including something that doesn't apply. Much of her declaration is hearsay and I don't think it is admissible, mainly because she has been in cases where she's been found to be a robo-signer. I'd like to subpoena her, but I just don't know where to turn. Please let me know if you find any more. Thanks.
  17. Does CCP 98 apply to Unlimited Civil or just Limited? I have been searching everywhere and can't find the answer to this. The woman who signed the Declaration in my case has already been accused of robo-testimony / robo-signing. She signed the declaration in Maine. Not sure if CCP 98 applies to this case due to the amount being Unlimited? Anyone know?
  18. Can you look up on your court website to see if the original motion was denied, and why? The court must have approved your opposition, otherwise the original motion would have been granted - I would think. I would file another opposition...but make sure their's was actually filed. They could be trying to intimidate you. The people that are suing me did that. They sent a bunch of crap - like a (proposed) Judgement, a (proposed) order granting motion for summary judgement, all wrapped up in a nice box to try to show me that they think they will win, and 'this is what it will look like when we do'. I'm not a lawyer and not familiar with FL court rules. I am filing an opposition this week and have my fingers crossed. Keep fighting. You have nothing to lose at this point, right?
  19. The case doesn't indicate, but it was enough for the Judge to drop the case, Amex gets zip.
  20. In addition, I just found a case American Express Bank v. Tancreto, in which the same woman that signed my declaration is accused of robo-testimony. Wonder if this is usable?
  21. The opposition needs to be filed by 10/15. I sent them a BOP and they responded with everything but the agreement and application.
  22. I, too, am filing an opposition this week. I need to know how to format it? Do I go line by line from their Motion and note my opposition/agreement to their points? Or can I just state my own oppositions by my own format? They admitted, in their affidavit that they CAN NOT produce the application, nor have they been able to provide the original agreement. They were only able to provide an updated cardmember agreement from 2011 (card opened in 2005). My point of attack here is that they are charging fees and interest based on an agreement that they can't find. And, this is AMEX. They have just been required to refund Blue Sky customers (my kind of card) late fees and interest. How do I include this new news into my motion, if possible??? Thanks everyone - any help/suggestions appreciated.
  23. Have you already filed an opposition to their summary judgement request? If not, you should do so. You only have until 15 days (I think) prior to the hearing to file the opposition. Do you have a trial date?
  24. Interesting news came out yesterday regarding Amex Centurion (my plaintiff). Oh, sweet karma. They are being forced to pay major fines and refund customers over $85 million. I am considering using this in my Opposition to Motion for Summary Judgement. Just not quite sure how to word it. I have nothing to lose at this point...I want to buy some time and let this go to trial instead of a judgement hearing. I was thinking something along the lines of: 1. Defendant has not completed discovery and therefore needs more time to ascertain whether plaintiff's claims are fact. 2. Plaintiff has failed to provide initial contract, has admitted that such document is 'unavailable', therefore claims on interest due and other fees are unverifiable. 3. In light of recent news events, including charges against the Plaintiff for unlawful practices, Defendant requests more time to ascertain whether or not Plaintiff used such practices against Defendant. * I know #3 may be a long shot, but wouldn't it be awful if I spend all this time defending myself, then losing, only to find out that I am one of the customers that they are required to refund? This is what happened with my case with Chase. They were in the WRONG, big time, and ended up having to drop the suit. I wish this news story had come out a bit sooner, because I am playing with time here. Any suggestions on my opposition? Thanks.
  25. Hi there - Not sure if this is applicable in Texas, but hitting them with a Bill of Particulars request could be quite beneficial. Since they are a JDB, if they can't provide the documents, they can't use them as proof. And, they only have 10 days to answer your request here in California. Good luck.