kb917

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Posts posted by kb917


  1. You could do a motion to compel because they did not send you everything you asked for in your BOP. 

     

    As far as answering your admissions, I would deny them using the line @shellieh98 gave you.  

    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. Wait until you see the complaint. They are rarely verified.  If it is actually verified, you will have to go paragraph-by-paragraph and respond to the complaint.  You will also need to verify your answer.

    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. 8-)

    Good luck. I wish I knew more. Try contacting calawyer...they really know their stuff and were very helpful to me.


  4. All they sent was a cc statement from 2009.

    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. They do not list damages in Statements. I just realized the amount they are asking for is more than what is stated on the account statement - probably attorney fees. I can not get through to their lawyer, just a supervisor. She says she will not take offer to client. I tried calling citibank directly, but get kicked back to law firm. I faxed a letter and sent it via registered mail to law firm with my settlement offer. How do I know if the lawyer even takes offer to citibank for consideration? How do I know if they accept or deny? Just take supervisors word or does it need to be in writing? Supervisor told me I could not negotiate this, accept their offer of 50% or go to court. I don't really know if I have a defense - that's why I'm posting here. Thanks to all of you for all of your input thus far!

    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. 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!


  7. You don't want to "use a CCP 98". That is a strategy the debt collector wants to use.

    Affidavits are permitted in support of summary judgement. They are not permitted at trial (unless CCP 98 applies and is complied with).

    You do, however, need to respond to the summary judgment motion and object to the declaration. Was it sworn before a notary public? If not, does the declarant "swear under penalty of perjury under the laws of the state of California that the foregoing is true and correct?"

    If not, the declaration violates CCP 2013 or 2015.5 .

    Of course, even if the affidavit does comply with these sections, there are many other reasons to object. Does the affiant say that she has personal knowledge of the facts? Does the affiant state facts showing that she has personal knowledge? Does the affidavit include hearsay statements, etc.

    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.


  8. 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?


  9. 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.


  10. 91. (a) Except as otherwise provided in this section, the

    provisions of this article apply to every limited civil case.

    (B) The provisions of this article do not apply to any action

    under Chapter 5.5 (commencing with Section 116.110) or any proceeding

    under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.

    © Any action may, upon noticed motion, be withdrawn from the

    provisions of this article, upon a showing that it is impractical to

    prosecute or defend the action within the limitations of these

    provisions.

    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. :)


  11. I did speak to a lawyer the other day about this issue and he told me that the affidavits are considered hearsay in an unlimited trial. But you still want to file a motion in limine to make sure it is excluded as hearsay.

    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.


  12. 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.


  13. 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.


  14. 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?


  15. 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?


  16. Doggy,

    Generally, speaking you will need to resspond to their MSJ. Your response should be title-

    Defendants Opposition to Plaintiffs Motion for Summary Judgement

    You should file a similar documents as the plaintiff filed all with a similar title as above.

    To win or beat Summary Judgment you must point out "triable issues of fact", or said another way you need to show the court in your opposition that their are "genuine issue of material fact".

    Attack their "Standing to bring the suit", where is your name and account number regarding this bill of sale. Do the documents provided show your account or the account referenced in the complaint.

    What is the affiant for their side testifying about, you should be able to poke some holes there also.

    Finally, you will need to file an affidavit yourself, to support your contentions in your motion. If you don't you will loose...

    Best of Luck, not from Indiana so cant help on your civil procedure...

    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.xangelx


  17. Unhelpful.

    Where did you get this information?

    Here is one way a Judge might do so: Plaintiff's demand for $25K includes an amount for interest using some crazy contractual rate under the cardmember agreement. However, plaintiff can't even produce the applicable contract much less get it admitted into evidence. Adios interest.

    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.


  18. Filed an answer today and will start working on the other paperwork. Thanks everyone who sent PM's (I can't reply yet because I have less than 10 posts).

    For anyone following this or dealing with the same thing, please see the thread Midland Funding LLC suit? by kakarat99 (Again, I can't link due to post #). There are some great examples there, it looks like he's on the right track, and it's the same Firm representing Midland so the paperwork he was sent is EXACTLY the same as mine.

    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.