doublethefun9941

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doublethefun9941 last won the day on July 5 2019

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  1. lthrwing Ithrwing, Just saw your thread and it looks like you are on the right track. You are getting good advice from everyone on the process. Here are my two cents. I have gone up against H&H more times then I would like to admit but have had success every time. H&H are very qualified attorneys and put together good documents and arguments. However, they have one fatal flaw in that their arguments never change from one case to the next. Therefore, it can be easy to figure out how they will litigate the case and use that to your advantage. As you are likely a newbie and just beginning to understand this process I will focus on your Bill of Particulars since that is the step you are on. Unlike other lawyers, H&H will always respond to any document you send including the Bill of Particulars. They will likely send you back a very nice letter regarding your Bill of Particulars that says Account Stated cause of action is not relevant to a Bill of Particulars and leave it at that. However, the final cause of action on your complaint for Open Book Account is relevant to a Bill of Particulars and could be worth a response back to them. Because you are being sued by a Junk Debt Buyer, they will likely not have every statement from Capital One. However, I have argued in the past (including with H&H) that every statement is required to prove an Open Book Cause of Action. "The most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the debits and credits entered into the book account.” Interstate Group Administrators, Inc. v. Cravens, Dargen & Co. (1985) 174 Cal. App. 3d 700, 708. Therefore, Plaintiff must identify and produce all alleged account statements, from a zero balance to the last alleged transaction, for its claim of an open book account. If Plaintiff cannot identify and produce originals of all alleged statements which comprise the alleged “account,” Plaintiff must amend its complaint and remove the Open Book Account cause of action. It by no means a fool-proof argument, but it tells the Plaintiff you know what your doing. When attorneys know you understand all elements in the complaint they filed and can directly argue against those elements, they tend to scale back their efforts. Especially when the debt is smaller like yours. The key is to hit them hard and hit them often. Actively manage the case like you are doing and just keep sending or responding to documents. It may also be helpful to go to google scholar or similar website and do a bit of research into Account Stated and Open Book Account. Understanding what Account Stated and Open Book Account are will help you to respond to their discovery requests and handle your case more effectively. Account Stated is much harder for a Defendant to argue but can be done if you have previously disputed the debt. Also, see CIC forum "Served Summons from H&H - info inside - assistance please?" There is good info in this forum specific to H&H. Homeless in California and Easy619 also have excellent threads with stories of how they went all the way to trial in California. Could be worth a look. Good luck to you. I am not an attorney
  2. Awesome! Congratulations!!! So happy to hear it was a dismissal and not a new trial. Looking forward to the update.
  3. Rookie, Have been following your case and other thread and wish you the best of luck. I agree with Anon Amos that they are similar, but individual objections can be useful especially if you are going up against a pro-plaintiff judge. It theoretically (sometimes still doesn't matter) forces the judge to rule on every single objection instead of just quickly denying the MIL as a whole. Or sometimes having the MIL declared MOOT as the witness showed up, even though there may have been other issues/objections in the MIL than just objecting to the witness. Even if the MIL is ruled on as MOOT, the separate Objection document theoretically still needs to be ruled on as many of the objections may have nothing to do with the witness knowledge or whether or not the witness showed up, but relate to the documents Plaintiff is trying to admit into evidence. People win and lose doing an MIL and people win and lose doing a written Objection document. Some people do both and have mixed results. There is no right or wrong, just whatever you think will win your specific case. There is an example of an Objection in San Francisco Courts Case Number 508927 called Defendants Objections to Plaintiff's Witness and Evidence List. In that case, the Defendant filed a MIL and the Objection document. It may also be helpful to read Easy619 thread as I believe he went through the same debate of Objection vs. MIL. No idea about rules specific to San Diego County. Good luck to you whichever route you choose. I am not an attorney
  4. Easy 619, I have kept up with you case from the beginning and wish you the very best and you are really doing great. As such, here is some constructive input for your document. The document as a whole is very good but it may need some refining here and there. There are a number of grammatical mistakes, missing commas, upper case vs lower case issues, etc. Additionally, if you have time, the Case quotations stick out. Its assumed you shortened them to reduce the number of words, but it makes it look like they are not complete. For example, the complete case would be Border v. Kuznetz (1980) 103 Cal. App. 3d Supp. 14 [162 Cal. Rptr. 881]. Unless you are confined to the number of words, the full caselaw would likely look more professional and likely be easier for the judges to reference. Also, It feels like there is more room in your arguments. Your CCP 96/97 section is very good and hopefully will win your appeal by itself, but it feels like there is the ability in the second half of the document to push harder on lacks authentication/lacks foundation. A writing is hearsay unless under some exception. Therefore, the document must be authenticated, relevant, and allowed under the exception to the hearsay rule. The primary argument here is whether the documents are authentic. Another argument is if the witness is qualified to authenticate the documents. Another argument is has the witness laid foundation as to the authenticity of the documents. Here is a concept from one of your sentences to push the authentication/foundation issue- By testifying that she has never worked for, nor is she familiar with the procedures of CHASE BANK NA, Ms. JDB WITNESS has proved she cannot authenticate the documents nor the policies and procedures associated with the mode of preparation and identify of the documents, including whether or not the documents were made in the regular course of business of a non-party who is not JDB or whether the documents were made at or near the time of each act, condition or event. Also, the witness was not qualified to testify as to the mode of preparation or accuracy of the records to indicate the trustworthiness of documents generated and maintained by non party CHASE BANK NA and therefore this witness has not and cannot lay proper foundation as to whether the documents are authentic, accurate or reliable, even if the records have been sold to Plaintiff and now exist in their system. Not saying this is a good argument, it just feels like you should push the fact the documents could not be authenticated because the witness did not lay a proper foundation as to each exact item admitted into evidence. Also, the fact the court required Plaintiff to produce the Purchase Agreement seems like a argument that can be expanded especially if you objected to the document at trial on the grounds that it was not produced in full in compliance with the court order and therefore could not be authenticated nor could JDB lay foundation as to the content of an incomplete document. Good luck and keep us updated. We are pulling for you. I am not an attorney
  5. Everything works again including Follow button and Content you follow drop down. Wonderful!
  6. For the benefit of the community, I am trying to put together a list of counties within the United States in which the county court website still offer free, downloadable off their website court case documents. The only two left in California are the court websites of San Mateo and San Francisco. If you know of a county in your state in which the county court website still offers free, downloadable court case documents, please post it here. Thanks in advance.
  7. Agree with the post above, GDayMateAZ. I have lost all the same capabilities. Since I can't follow new threads I have had to start writing down the name of the threads in the hopes to follow them at a later date. Is there any other way to follow a thread without having to use the follow button? Admin: Even with these issues still a great site. Thanks.
  8. Any update. It seems like your hearing should be coming up soon.
  9. Your just at the start and there is plenty of time to learn and understand the process. You should ideally fill out the standard 20 questions and the responses will be better. In California it is best to add as many affirmative defenses as possible or you can lose them. Your greatest asset is that the account went from Providian, to WAMU/Chase to whoever now is suing you. (Who is Plaintiff? Likely not Chase as they are not suing right now.) That is going to be a lot of work for them to prove the chain of title through that many companies. Unless you have documented proof this is the same account and can easily prove it, your probably better off filing a answer and giving the letter to them at some point in the future when they send you discovery. Request for Bill of Particulars, Demand for Production of Documents requesting the complete chain of title and an answer to the complaint are probably your best bet at this point. Good luck. I am not an attorney
  10. Easy619, Here is some very good information and caselaw regarding "settled statements" which is the unlimited jurisdiction version of the limited jurisiction "statement on appeal". Not all may be applicable as you are a limited jurisdiction case and some of the stuff is relating to criminal cases but there is a lot of California appellate related caselaw in the links that may be useful to you prior to or at your hearing or even in your briefs. There is also a lot of information specific to the trial judge regarding the statement of appeal. People v. Jenkins, 55 Cal. App. 3d Supp. 55 http://law.justia.com/cases/california/calapp3d/55/supp55.html http://www.capcentral.org/procedures/record_procedures/docs/settled_statements.pdf Additionally, here is a lot of appellate caselaw from an application for permission to prepare a settled statement filed in a criminal case. Still has a lot of California appellate caselaw practical to civil cases and the trial judge as it relates to settled statements.. II. APPELLANT IS ENTITLED TO A RECORD ADEQUATE FOR MEANINGFUL APPELLATE REVIEW.A. Procedures For Settlement Of The Record On Appeal.Counsel files an application for permission to file a settled statement in the trialcourt, explaining why the oral proceedings cannot be transcribed. (Rule 8.346(a).) Thecourt must rule on the application within five days after it is filed. (Rule 8.346( .) Ifgranted, the applicant must deliver a proposed statement for settlement within 30 days ofthat order, unless the time is extended by the reviewing court. (Rule 8.346( .) Respondent can stipulate that the proposed settlement is correct (rules 8.137©(4), 8.346©) or, within 20 days, respondent may serve and file proposed amendments (rule8.137( (4)). The clerk must set a date for a settlement hearing no later than ten daysafter respondent files its proposed amendments, or the time to do so expires, whichever isearlier, giving parties at least five days’ notice of the hearing date. (Rule 8.137©(1).) Atthe hearing, the court must settle the statement and fix the time within which appellantmust prepare, serve and file it. (Rule 8.137©(2).)A trial judge has “full and plenary power” to settle the record, “subject only to thelimitation that he does not act arbitrarily.” (Keller v. Superior Court (1950) 100Cal.App.2d 231, 234; Marks v. Superior Court (2002) 27 Cal.4th 176, 195.) The courthas broad discretion to accept or reject counsel’s representations in accordance with itsassessment of their credibility, but cannot refuse to make an assessment. (People v.Gzikowski (1982) 32 Cal.3d 580, 586.) The court may reply upon the suggestions ofrespondent, the court’s own memory, the court’s notes made during trial, and the court’sright to have the reporter reread such of her notes as may prove helpful (Keller v.Superior Court, supra, 100 Cal.App.2d at p. 234) and the memories of the trial attorneysand jurors (People v. Moore (1988) 201 Cal.App.3d 51, 56.) The court may not declineto settle the record unless after resorting to all available aid, including the court’s ownmemory and that of participants, the court is affirmatively convinced of its inability to doso, in which case it must state reasons on the record supporting that inability. (Marks v.Superior Court, supra, 27 Cal.4th at p. 196.) The court’s own failure of recollection doesnot justify refusal to settle, where the court has no reason to doubt counsel’srepresentations. (Ibid.) The court acts as a finder of fact and can determine whatoccurred based on the recollections of others. (See People v. Bradford, supra,15 Cal.4that pp. 1331-1332, fn. 14.)B. A Complete Record From Trial That Is Adequate For Meaningful AppellateReview Includes All Oral Proceedings At Trial.An appellant has a Fourteenth Amendment right to a record which is adequate topermit meaningful appellate review, and appellate counsel has a duty to ensure that therecord on appeal is complete and to raise all viable issues on appeal. (People v. Alvarez(1996) 14 Cal.4th 155, 198, fn. 8; In re Smith (1970) 3 Cal.3d 192, 202.) As part of thepreparation of the record in a criminal appeal, an appellant may apply to the trial court forsettlement of a statement of any part of the oral proceedings of which a transcript cannotbe obtained for any reason. (Marks v. Superior Court, supra, 27 Cal.4th at pp. 192-194.) An oral proceeding subject to settlement is an “unreported matter, the contents of whichmay be useful on appeal.” (People v. Gzikowski, supra, 32 Cal.3d at p. 585, fn. 2.) Asettled statement is required where, as here, a complete transcript cannot be obtained, butthe appellate record can be reconstructed through a settled statement. (People v. Young(2005) 34 Cal.4th 1149, 1170.) A settled statement generally operates to make up for theabsence of a court reporter’s transcript of oral proceedings. (People v. Grif in (2004) 33Cal.4th 536, 554; rules 8.346, 8.137.) Rules authorizing settlement of the record onappeal are intended to ensure that the record transmitted to the reviewing court preservesand conforms to the proceedings actually undertaken in the trial court. (See, e.g., Peoplev. Pinholster (1992) 1 Cal.4th 865, 922; People v. Wright (1990) 52 Cal.3d 367, 401, fn.6; People v. Holloway (1990) 50 Cal.3d 1098, 1116.) Appellate counsel has a duty tosettle the record where appropriate, and failure to undertake such an effort can result in awaiver of appellate issues. (In re Kathy P. (1979) 25 Cal.3d 91, 102.) I am not an attorney
  11. Sounds like the judge can change your statement to whatever they feel like. Appears your best bet to fight the revisions at the hearing is (5). (5)The trial court judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement.
  12. Have you found anything to prevent the judge from addressing your statement after the legal deadline or are judges immune to deadlines during the appeal process. Keep fighting and keep your head up. Your doing great and we are all pulling for you.