WWOW

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  1. The rental attorney asked the judge for a short recess to call the office as she was not aware that the affiant had been subpoenaed....she came back to say that they were going to dismiss the case...I asked it be dismissed with prejudice...that was agreed by the judge....I asked for costs, and he said I would need to fill out the forms to request them....
  2. Yes...the case was dismissed in front of the judge as the plaintiff's witness did not show up, and when I requested with prejudice, he agreed (said I deserved it)...that was on August 23rd, and I filed with the court the MC-010 and mailed with proof of service on August 27th. The plaintiff's never filed an objection with the court.
  3. Thanks Calawyer. I finally found the previous posts with links and suggestions on forms to complete for judgment and also a possible pleading for judgment....still confused, I stoppled by to talk to the court clerk....I asked her protocol for collecting on the MC-010...she told me "I already told you that the case is closed and you can't collect"....I told her this was a different case....she looked it up and stated "this case is closed too. You can't collect unless the judge gave you an order to collect. The plaintiff's have no reason to pay you without it"....I stated that I had asked the judge about receiving reimbursements of my costs and that he said "you will need to prepare the proper forms". I also never received an order from the judge/court on the day of trial....so she told me "well then, you need to write a letter to the judge, because this case is closed and you cannot collect costs"....This court clerk looks like she has been running that court window for a long time, so I don't think she is giving me misinformation, but everything I have read is contradicatory to what she is saying.....so, I am going to write a letter to the judge (in pleading) requesting costs, and see if they grant them to me....kind of odd too, that I filed an MC-010 to the attorneys for the OC on a separate case that they dismissed without prejudice a day before the trial, and the attorney's office sent me a check within 5-days of service of the MC-010 by mail...
  4. I filed with the court and served a MC-010 to Midland for a case dismissed with prejudice 30 days ago. They never objected to the memorandum of costs. Is there a time limit they have to pay the costs? And, if they are in default, what is the course of action to collect on the costs? Thanks for your help.
  5. Carol-Lynn, I didn't think to ask as I have filed MC-10's after the case was dismissed....someone else would probably confirm, but I believe in the trial brief, I should have asked for costs, etc. Also, I had to create the trial brief into a word.doc, so if you don't want the labor of doing that, just let me know and I will forward it to you.....I did omit the section on the second cause of action for "book account" as my case was only account stated.....Thanks again for the link...it really saved me!!!
  6. My last trial of three trials (2nd with Midland) is over. The judge made a tentative ruling based on our trial briefs and the plaintiff's judgment was denied WITH Prejudice. The attorney for the plaintiff's told the judge that she was there to request a dismissal without prejudice and argued that the subpoena was not served timely....(it was served timely)....but the judge said it didn't matter, that the plaintiff failed to provide sufficient evidence to support its only cause of action, Account Stated. My first case with Midland, I neglected to prepare the proper due diligence timely so I was receiving the plaintiff's answer to rfp, and CCP 96 after the case had already been dismissed. Neither one of us even filed a trial brief...I had one ready, but as it was short cause, wasn't sure if we were suppose to file it. I basically won because the subpoenaed legal spe******t was not there and their case was based on the affidavit. This case I followed the order of business but only prepared a trial brief after receiving a copy of theirs....I want to sincerely thank the person who posted a link of a trial brief written by an attorney for a defendant in San Mateo Superior Court....it was soooooo helpful! I did screw up slightly, as the judge said since she had already ruled on the case, I should have submitted my request for reimbursement of costs, so they were denied....but she did smile and remind me that the ruling was "with prejudice" I hope that I do not have to use the resources of this site in the future, but if I do, I know where to get support and help. THANK YOU all so much!!!! Without your help, I know I would have had 3 judgments against....and special thanks to the "regulars"...racecar, coltfan, seadragon, leagleagle, calawyer (and apologies as I know I am missing a few, but you are sincerely thanked too.)
  7. Well, I received my order approving a continuance for another 3 weeks today....and sent out a letter to plaintiff's for completion of the BOP I sent them.....got home and I had overnight package from attorney's for plaintiff's with a Request for Dismissal.....since it was without prejudice, they will be back, but I will be one step smarter in defending my case. Thanks everyone for all your help!!!!!
  8. Okay, so I won my first case with Midland as the affiant did not show up and the case was dismissed (I have a separate thread on that) Today I recived a reponse to my RFP's....I got a bit nervous when I saw that they included a signed application...only it was dated 2008, and the account began in 2000....after a second review of the docs, I realized this was for the case that was just dismissed. I did also receive a response to my CCP 96 for my second case....No response to my RFP's yet though....since I have never seen a response yet, I am wondering if mine is standard. It stated: 1. Affidavit in Lieu Testimony, etc....(and it was typed that way) 2. Notice of New Ownership and Pre-Legal Review from MCM, etc. 3. Final bill statement dated 9.26.11, etc. 4. Billing Statements dated 4.26.10 to 9.26.11, etc. 5. A Bill of Sale transferring defendant' account, etc. 6. Affidavid singed by Martin Lavergne for Chase Bank, etc. 7. Data printed by MCM, Inc. from electronic records rovided by Chase pursuant to the Bill of Sale/Assingment of Accounts dated 10.12.11 in connection with the sale of accounts from Chase to Midland 8. Copy of Defendant Michael XXXXX's answer filed on 5.7.12 (THAT IS NOT ME) 9. Plaintiff's Discovery Requests 10. Testimony of (Me) Plaintiff reserves the right to introduce rebuttal evidence that may not be included herein should it become neccessary to refute evidence or testimony presented by Defendant. Is this their normal response to a CCP 96...I couldn't find another one posted and I never got a response to one on my first case...I would assume that it is because they didn't have my name correct in #8. My biggest concern is #10.? Should I be objecting to anything or filing any motions, MIL, etc.? Thanks so much for all the continued support! I have 3 cases in 5 weeks...down one and two to go...Whew!
  9. If trial is not continued, it will be Monday, July 30th....isnt' it too late to aske for arbitration? or do I ask at trial?
  10. legaleagle: The damages in complaint are $9655.37 This is a short cause trial....there are no CMC's, no trial brief, nothing....you walk into the courtroom and present any documents to the judge which are not already in their file....the plaintiffs replied to the BOP in 10 days + 10 days for mailing...I recevied them on the 22nd and the trial date is set for the 30th...I did not have time for a motion. Therefore, I tried for a continuance...below is what was presented to the court in a declaration (acceptable by the judge)...and thanks to all the posts to compile the verbage.. TO THE HONOROBLE JUDGES OF SAID COURT: I XXXXXXXX, the defendant, request a continuance in the above said matter which is currently scheduled as a CV Court Trial - Short Cause on July 30th, 2012 at 9:00 a.m. in Department 105, to allow defendant sufficient time to prepare for trial. Defendant served a request for Bill of Particulars on July 3, 2012. Defendant asked for a Bill of Particulars setting forth the items and details of the account on which the cause of action for Money Lent and Paid, of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, all payments or credits that have been made to the account and any agreement assigning the account at issue to the plaintiff. Plaintiff’s response on July 19, 2012 was wholly deficient. “Plaintiff responds by attaching presently available billing statements on the account on which the complaint in this action is based. Additional statements, if and when located, will be sent in a Supplemental Bill of Particulars. Plaintiff reserves the right to amend this bill of particulars at such time as any other statements showing transactions are located”. Plaintiff provided an incomplete smattering of statements, from July 2010 to July 2011. Plaintiff’s response also did not provide a signed agreement assigning the account at issue to the plaintiff, complete itemized details of the account on which the cause of action for goods sold and delivered including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction and all payments or credits that have been made to the account. The information requested in Defendant’s Bill of Particulars is the bare minimum that Plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars. The defendant requests a continuance in order for the plaintiff to complete their discovery as set forth in defendant’s Request for Bill of Particulars and to obtain and review that documentation in order to prepare for trial. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. To date, the continuance declaration is still with the Judge and the plaintiff's have not objected to the continuance... I am not sure I understand the statement "a contract can not be abandoned in order to seek a more favorable judgment than the contract would offer"....what is considered more "favorable"? Thanks so much!
  11. Thanks racecar....it looks like I don't have a case as they have provided statements "previous transactions between the parties establishing the relationship of debtor and creditor" and since I do not have a basis for "attacked only by proof of 'fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.' I guess I will hope for a continuance to have more time to negoatiate a settlement.
  12. I have a short cause trial set for Monday against FIA Card Services, represented by Hunt & Henriques. Not a JDB. Per the court clerk, I filed a Declaration for Continuation of Trial on 7/20/12 (due to lack of BOP evidence provided). The declaration is still with the court. The complaint is: Civil Limited less than $25K, Contract: Rule 3.740 Collections 8. Common Counts. 9. Other: Bof A & MBNA merged. Bof A and MBNA established FIA Card Services, N.A> (FIA) a credit card bank and effective 10.19.06 all MBNA & Bof A card accounts are issued and administered by FIA a. Within last 4 years 1. Open book account 2. account was stated b. within last 4 years 4. money lent 5. for money paid, laid out I sent a BOP and CCP 96. On July 21 I received bank statements from June 2010 to June 2011. And a pleading that stated "in compliance with defendan'ts demand for a bill of particulars, plaintiff responds by attaching presently available statements on the account on which the complaint in this action is based. Additional statements, if and when located will be sent in a Supplemental Bill of Particulars. Plaintiff reserves the right to amend this bop at such time as any other statements showing transactions are located"... I also received an objection to my CCP 96 as it was 3-days late. Court date if not continued is July 30. Obviously, they have not provided the documents requested in the BOP. Other than responding to the BOP and and CCP, I have had no other written correspondence with them. After reading numerous posts on Common Counts, it seems that these collection accounts usually have two counts, including Breach of Contract...this complaint just has Common Counts. Would my defense be lack of supporting evidence based on the plaintiff's incomplete BOP? Would you recommend settling prior to the trial, or take my chances? Also, I read somewhere that I was suppose to send any legal filings to the plaintiff, but I only sent it to the attorney of record? Thanks for any help!
  13. I DID WIN AGAINST MIDLAND FUNDING this a.m. The plaintiff sent a substituted attorney. She showed up late, just as the second roll call was happening. I don't like to make judgements on people, but she was an ederly lady, wearing a crumpled black skirt and suit jacket, and juggling a canvas bag and an accordian file full of documents. She looked quite disheveled and drew the entire attention of the court. The judge did not know her. The judge called us forward, and asked if we were both ready. He asked the plaintiff what evidence they were presenting, and if they had it all. She stated that if was the Affidavit in Lieu of Testimony. He then asked me if I had any evidence or documents. I confirmed that they had the filed subpoena and proof of service. He did confirm that, and then the attorney stood up and stated that there was not any service of subpoena...the judge read off what he had...she denied ever receiving the subpoena and stated she needed to call the office of where it was "supposedly" served. I was going to mention that I had a copy of the Answer to their CCP 96, served via mail on July 9th, which also stated the subpoenaed witness I was calling to trial. But I read somewhere, that silence is sometimes golden. She came back about 1/2 hour later. She told the judge that there was service to an employee, but since it went to an affliate law office, the subpoena notice must have gotten lost in a file. Therefore, they would request a dismissal. The judge smiled and said to me, I don't think you would object to that. I stated "no", but I would like the dismissal to be with prejudice. He replied that he thought that was appropriate, and looked at opposing counsel, and there was no objection. I also asked for costs, and he said I had to complete the form and request them. Case done! I sincerely thank everyone who has posted on my threads, and everyone elses threads and posts that I have been able to read and learn from. This website is truly a miracle. I did learn a few things today about short cause trials today. According to the check in sheet, the court allowed 1 hour. I had also written a MIL that never came into action, as well as a time consuming trial brief that wasn't required either. And, in this type of case, I believe that it is best to file everything with the court, even if it is not required... Unfortunately, I have another case against Midland in 3 weeks. I was extremely lucky on this case, as my RFP was late...with 5 days mailing, the docs weren't due until today and my CCP 96 was late, and no BOP...the only thing I did timely was the subpoena. In my new case, I have timely RFP's, BOP's, CCP 96 and the witness is being subpoenaed today.....the case is from the same law office, so I am not sure if they get wind of me, they may have a better plan of action....any input if I should be filing anything else or being doing any additional due diligence?
  14. Thanks Seadragon....I would have hated to get blindsided! But I need clarification....if the court allows the declaration, do I state the case (Taggart v. Super Seer Corp) and the actual case language or just the "argument for the court" you presented And not so lucky, it was stated under the perjury laws of the State of California.
  15. I have a short cause trial tomorrow against Midland Funding. I subpoenaed the "legal spe******t" witness per the Affidavit in Lieu of Testimony...The witness is in MN and I am in CA....If the witness doesn't show, and opposing counsel asks for a Dismissal Without Prejudice, can I ask the court for Dismissal With Prejudice...and if so, do I state my case based on the Affidavit is not admissable....also, has any defendant brought contempt up to the court against the witness for not attending, or sanctions on the plaintiff's attorney for knowing the witness was not going to appear? I hope tomorrow I can post a success story too!
  16. Sat on case from FIA Cards Services, Inc. represented by Hunt & Henriques (thought we would settle, not just totally lazy)...trial is set for July 30th....sent a BOP and CCP 96 on 7.3.12. I received a response to the BOP today, July 19th. All that was provided to me were statements from July 2010 to August 2011 (I believe the account is 10 years old). It came with a pleading that stated " In compliance with defendant's demand for a bill of particulars, plaintiff responds by attaching presently available billing statements on the account on which the the complaint in this action is based. Additional statements, if and when located, will be sent in a Supplemental Bill of Particulars. Plaintiff reserves the right to amend this bill of particulars at such time as any other statemtns showing transactions are located". I also received an Objection To Request For Statement of Witnesses and Evidence based on they were served 27 days and not 30 to 45 days before trial.... My plan of attack was to file a continuance as I did not think I would receive the proper documents in a timely manner based on other posts from lawsuits with the same firm. Do I continue to try to settle, or do I have any basis of defense....Why did they not send that they "have an agreement to settle the case"? It seems they are now open to any documents as evidence to the court as without any prior knowledge to me because of my late filing of the CCP 96. Also, I thought I read some where that the plaintiff does not have to provide an original contract if it is over 2 years... Thanks for your help....definitely needed
  17. I spoke with the civil clerk today, and she stated that if I wanted to request a continuance, first I need to do ASAP, and second, the Judge will accept a declaration in pleading form with supporting documents ($20 to file) vs. a motion to compel a continuance ($60 to file)....what would the title of the declaration be....Declaration in Support of Trial Continuance?....and is it written the same as a motion? Thanks!
  18. Is service by fax recgonized by the courts, or does the party you are serving have to agree to it?
  19. Other than the original complaint based on common grounds (with no supporting docs) and a proof of service, I have nothing unless they respond to my BOP or CCP 96...this is not a JBC, but attorneys representing FIA Card Services....they have NOT served me with a CCP 98, CCP 96, RFP, Interogs....NOTHING! There are no witnesses (no avidavit served) and I have nothing to use as evidence as I have received nothing....The court is in Morgan Hill...a south county division of Santa Clara County,CA....I read they take MIL's the day of the trial and a continuance must be done at least 3-days prior to trial....I also read they don't like to give continuances based on lack of preparation....I think I need to file something with the court on the 23rd (20 days from service of the BOP and CCP96) and 7 days before trial, if I do not receive a response, but I am not sure if that should be a motion for continuance based on lack of time to prepapre or a motion to dismiss based on lack of evidence provided? Just a side note, this is a law firm that accepts service for the "legal spe******t" for Midland Funding at one of the five locations on Midland's Affidavit in Lieu of Testimony.
  20. There are a lot of pieces missing here.... When were you served? The POS is dated 3.12.12, via mail and the complaint filed 3.1.12. Never received it via improper service as the process service gave notice of service to nobody that exists in the house and never received the mailed docs. Only knew of service via checking another case, and it popped up. Contaced attorney, who gave an extension to file an answer to the complaint of April 22, 2012....as that date was a Saturday, filed a general denial on Monday April 24, 2012. The courts then set a trial date of 7.30.12 What pre-trial hearings did you have? There are no pre-trial hearings set in this court...it goes directly to short-cause trial...the file clerk told me that due to saving time, all collection cases go directly to trial. Did you do discovery? Totally my fault, but I did nothing as I truly thought this would settle, so I did nothing until I realized I was being unrealistic and on July 3 I sent them BOP's and a CCP 96....the plaintiff's have filed nothing in regards to documents or evidence....since the BOP was sent via mail, I realize that they get 15 days to respond ( which would be the 18th and trial is set for the 30th)....I am going to say I need a response by the 23rd, for good grace sakes....I need to know what to file if they don't respond as, no documents have passed anyone's hands and what to file to stay proactive....if I show up for trial, all I have is the filed common ground complaint...I believe that I should at least have a response to the BOP...they have not objected to it, or the CCP (which was filed under 30 days)...but we are talking small court, pushing collection cases thru without CMC's, etc... Would love to file a dismissal, but at least a continuance?
  21. 1. Who is the named plaintiff in the suit? FIA Card Services, N.A> 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Hunt & Henriques, Attorneys at Law 3. How much are you being sued for? $9655.37 4. Who is the original creditor? (if not the Plaintiff) FIA Card Services, N.A.: Bank of American (it was typed on complaint as American, not America) Corporation (B of A) and MBNA Corporation (MBNA) merged. B of A and MBNA established FIA Card SErvices, N>A (FIA) a credit card bank and effective Oct 19, 2006 all MBNA and Bof A credit card accounts are issued and administered by FIA 5. How do you know you are being sued? (You were served, right?) I have a proof of service noting "subsituted service 6. How were you served? (Mail, In person, Notice on door) Via mail....which was never received. Found out about the law suit via online when checking on the status of a dismissal of another case for the same county. Contacted the attorney of record and was emailed the docs. She stated service was proper but would extend the answer 30-days. The proof of service stated (X) home: a competent member of the household.........informed him or her of the general nature of the papers. A Declaration of Reasonalbe Diligence was filed stating that the second attempt "per Jane Doe, Who refused to give name, resident, a white female approx. 45-55 years of age, 5'4" - 5"8" tall, weighing 120-160 lbs with blonde hair; subject not available at this time." My husband and live alone as our children are grown and live in another county. I do not have blonde hair (red head), and no one has lived, visited, or would otherwise been at our house during the service period. When advising the attorney of this fact she stated "maybe you dyed your hair"...yeah, right! for service I didn't know I was getting? 7. Was the service legal as required by your state? From the above, I would say no. But I did accept service via email with a 30-day extension. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I remember. 9. What state and county do you live in? Santa Clara, CA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The complaint doesn't state a date, but I would believe 2010-2011 11. What is the SOL on the debt? No 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). The only documents filed was the plaintiff's orginal limited civil complaint based on common grounds. I filed a general denial with the court on 4.24.12 and a short-cause trial date of 7.30.12 was set. I sent with proof of service a BOP on 7.3.12, and a CCP 96 on 7.3.12....there has been no documentation that I know of from the plaintiffs other than there complaint filed on March 1, 2012. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? They filed a complaint on March 1, 2012. After 30 day extension due to improper service of process, I filed a General Denial on April 24, 2012...and the 30-day was extended from our phone conversation/emails noting the response of date April 22, 2012 which was a Saturday, so papers were filed on Monday the 24th. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing sent other than an ADR information sheet, and to date I have received nothing.
  22. Thanks 1ststep, but why not a contiuance for lack of docs on the BOP? They have performed absolutely no due diligence in their case to date and their common grounds complaint is not verified?
  23. I was served with a complaint based on common grounds from Hunt & Henriques for FIA Cards Services. The initial service was improper, so the attorney granted an additonal 30 days to answer the complaint. I filed a general denial and then received a letter from the court for a trial date of July 30 (90 days out and a short-cause trial). I knew I was out of state on that date, but assumed that we would negotiate a settlement prior to, therefore I did not file a motion for continuance. As of July 14th, we are no where near settling. I have not received any documents from the attorney's office preparing for trial. On July 3rd, I sent a BOP and a CCP 96 (I realize the CCP 96 was late by a couple of days). As we are so close to the trial date, if I do not receive BOP docs (realistically within 20 days) which would be the 23rd, should I file a motion for continuance based on lack of time to prepare? or possibly file a motion to dismiss based on lack of evidence from the plaintiff?
  24. I was served with a complaint based on common grounds from Hunt & Henriques for FIA Cards Services. The initial service was improper, so the attorney granted an additonal 30 days to answer the complaint. I filed a general denial and then received a letter from the court for a trial date of July 30. I knew I was out of state on that date, but assumed that we would negotiate a settlement prior to, therefore I did not file a motion for continuance. As of July 14th, we are no where near settling. I have not received any documents from the attorney's office preparing for trial. On July 3rd, I sent a BOP and a CCP 96 (I realize that was late by a couple of days). As we are so close to the trial date, if I do not receive BOP docs (realistically within 20 days) which would be the 23rd, should I file a motion for continuance based on lack of time to prepare?
  25. Service was accepted by an employee of Hunt & Henriques for Midland who told the process server this was her job and that she is authorized to accept service for the witness...they did not request witness fees at the time of service.