noname2

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About noname2

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  1. I would use a process server, and expressly instruct them not to serve the subpoena on anyone except the witness. If the declarant's address is in the Bay Area, I've had success using one fairly cheap process server: PM me if you're interested.
  2. You have a "reasonable" period of time before trial to subpoena the declarant. I think the common interpretation of "reasonable" is about ten days, with some more tacked on for a subpoena duces tecum. So yes, the CCP 98 declarant is still fair game. I'm extremely skeptical that any continuance will be granted at this point though, short of a major medical emergency. There's not even enough time left to do a proper noticed motion: it'd have to be ex parte. @ pata: At this late stage of the game, I'd argue that your energies are best focused on prepping the motion in limine, preparing your written objections to evidence, going over and organizing your reference materials, etc. Was their CCP 98 declaration sent in a timely manner? Am I correct in guessing that the declarant is Carol McNellis? Does the declarant even claim to have personal knowledge regarding the business records of Chase AND Global Acceptance, etc.? What I'm getting at here is that you perhaps might consider devoting less time and energy to the bill of particulars, which would be inapplicable to their account stated cause of action anyways, and focus instead on the underlying weaknesses of their case: lack of standing, lack of authentication, hearsay, etc. You have a stronger than usual case here, as GCFS isn't even the original debt buyer, and since Chase's consumer records are (publically) less than entirely reliable.
  3. Sadly, I'm inclined to agree. I even recall one DE Supreme Court Case that expressly states that a payment towards an account tolls the statute. Still, the contrary stance has worked at least once!
  4. Hmm. I'm looking at CCP 337, which states that that the SoL starts to run from the "last item." But I suppose a payment can qualify as an "item." Looks like I jumped the gun!
  5. I'm not an expert on Utah procedural law, so grain of salt and all that, but I'd imagine filing a Reply Brief would be wise. Your Customer Agreement will state that the place of execution is Delaware, that the original creditor is located there and extends credit from there, etc. Chances are your state's permitted interest rates etc. are all less generous than Delaware's: include the fact that the contract has been utilizing Delaware law to permit a higher interest rate than Idaho would allow, which demonstrates that Delaware has had the most significant relationship to date. Basically, Delaware has its paws all over this case, so it's a bit much to argue it doesn't meet the Most Significant Relationship test. Basically, your Customer Agreement, combined with the creditor's presence in Delaware, should be enough: don't forget that the original (Delaware-based) creditor is (was) just as much a party to the contract as you are! And that, to date, payments were sent to Delaware, Delaware law has applied, etc. I'm not sure it's wise to hammer the fact that you lived in Idaho rather than Washington: while I'd still include it to further demonstrate their ignorance, your goal is to make Delaware law apply, not Idaho law. And of course include the fact that they're late.
  6. Ah, gotcha. Glad to hear there isn't something we've been overlooking! But you're right, as always it comes down to the judge, and judges can (and often do) get things wrong. But that just means we have to step up our game and keep hammering the obvious truth: no reasonable reading of Distefano can include breach of contract, especially since a bill of particulars is meant to address the fact that you don't have to include the contract when pleading breach of contract!
  7. Account stated is their ONLY cause of action? I'd argue that the statute of limitations doesn't run from the date of the final payment, but rather the last item you charged to the card. Do you think that could bring the statute of limitations back in your favor?
  8. Do you recall what the basis was regarding why a bill of particulars was not warranted for a breach of contract claim?
  9. If you trust your lawyer, and he is telling you their dunning letter amounts to an FDCPA violation, I see little reason not to go along with that. At teh very least, it makes for fairly good leverage against the debt collector: you can use it to reduce, or even eliminate, the alleged debt. Midland Funding, at least in California, is no exception to that rule.
  10. Oops, sorry, finger slipped there. Skip 2: that's for plaintiffs and cross-plaintiffs only. For 4, you can either have a very brief statement of the case, or just write "CONSUMER CREDIT COLLECTIONS (specific causes of action (breach of contract, common counts, etc.)) For 5, I believe you're technically entitled to a jury trial, but unless they're demanding a ton of money you're not going to get one, so non-jury is alright. For 6, you're fine. If something major and unexpected happens when the date is set, you can always move to continue the trial. I emphasized it earlier because while "injured" is a good reason to continue a trial, "on vacation" is much less impressive for the presiding judge. For 8, that is correct. If you end up getting a lawyer later, he/she can just sub in with little difficulty. For 10, it really depends on the judge, but I'd at least take a gander at the package. They're brief, and you can say you did it. For 16, it's simply asking if you've already completed discovery. I'm guessing you haven't yet, correct? If not, click "b", then put in "Defendant" as the party, a brief description of what you intend to serve "Requests for Admission, Form Interrogatories," etc., and a rough date of when you think you'll get back the responses. Remember, they're entitled to a little over a month to respond to discovery, and it's not uncommon for them to request an extension of a week or two. It's also not uncommon for them to play Hide the Ball... Basically, I'd pick a date four months or so from now, then start working on discovery immediately. For 17, look at the Complaint. If it says "Limited Civil" anywhere, and/or it's asking for under $25,000, it's a limited civil case. In that case, check (a). If you plan to file a cross-complaint for more than $25,000, check (. Otherwise, leave it blank. Odds are, you're going to check (a). For 19, you might want to give them a call soon to do the meet and confer requirement. It's mostly a formality, but expect them to try to talk you into settling. If you're unable to do so, you can either explain unavailibility in the box, or just leave it blank if you're feeling a little adventurous. Keep in mind some counties take this requirement a bit more seriously than others: In SF, for example, collection cases routinely leave this section blank, with nary a consequence that I can think of. YMMV. For 15, that might become necessary down the road, but for now I'd leave it blank, as you don't currently anticipate filing any motions to compel/dismiss/for summary judgment, etc. As for 18, that's the one I'm least sure of. My inclination though is to leave that out of here, but I'll admit I'm not completely sure how to respond. Sorry for rambling on. Hope that cleared up at least a few things.
  11. When you say "Case Management Confidentiality Statement" did you mean "Case Management Conference Statement"? If so, the form you linked to is the correct one. As for how to fill it out, just go over each question with the expectation that 1) it will be written in plain English, and 2) not all of the questions will apply to your case. For example, several questions are solely for the Plaintiff, and say so explicitly. Others are about Complex Cases (yours does not qualify). In general, you need only answer questions 1, 2, 4(a and , 5, 6 (important! If you're planning a trip anytime in the next, couple of months, say so here!), 7 (also important to the court: 3 hours is a safe number for collections cases, although it'll probably be closer to 1.5-2 if there's a motion in limine hearing first), 8, 10(a) (and c, if any of those options interest you), 16, 17, and 19. Furthermore, 12, 13, 15, and 18 are also worth taking a closer look at: see whether or not they apply to your case. For a simple collections case, no supplements should be needed that I can think of; YMMV. As for WHAT to put in those categories, it depends entirely on your case. When was the Complaint filed? Have you done discovery yet? If not, when do you expect to do so? Have you met and conferred with the Plaintiff yet (mostly about settling, although this is also when you discuss things like mutually available trial dates, any discovery issues you anticipate, etc.)? As for what to expect, there's a lot of variation between counties. San Francisco County will tell you not to show up for cases like this, and simply mail you a trial date. Santa Clara County will have you appear, but it's a quick matter that mostly revolves around trying to get the parties to look into ADR, selecting a trial date, seeing how discovery's coming along, etc. No idea how Contra Costa County works, but in general these things are quick and routine, so don't sweat it too much.
  12. There's nothing to forgive; shoot, you may ultimately be right!
  13. Do they give any special definition of "Plaintiff," one that might include the original creditor?