easy619

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Everything posted by easy619

  1. the appellate division contacted me to obtain original copies of the trial exhibits. The guy i spoke to couldn't believe the pertinent info on the bill of sale was actually redacted, and that this was used at trial. Tell me about it. I also got the chance to ask some quetions about the oral arguments. The reviewing judges will begin to review the briefs (actually just mine) and the record the week of the oral arguments. the day of the arguments, the judges will each have a tentative decision which i can view shortly before the arguments (probably only an hour or less before, so i won't really be able to adapt arguments). the judges will then hear my oral arguments, and the decision will be formalized afterwards. Despite my not wanting to speak at length in front of the judges, i think i should. I've began to come up with an outline for what i will argue. First i will touch on how plaintiff's unwillingness to even file a brief in appeal simply continues a pattern of willful neglect for the requirements to prove their case, how they have botched things repeatedly all along from discovery, to my motions to compel, to the trial, their evidence, witnes, ect. And trial judge repeatedly let them slide. I will remind them of the multitude of class actions rewarded against midland, that their business model is often illegal and their court cases built on a house of cards with no real evidence. Then i'll move to the forward flow, how and why they never produced despite court order, how their own witness said they have it. Basically i'll re-shoot all the wholes in their evidence peice by piece. Then will come the witness qualification (or lack there of), and then the big boy, the ccp 96 failure. I'll reitterate what the requirements are, the only exceptions to them, and how plaintiff willingly failed to comply. I could use some brainstorming help on one issue though. If the judges were to ask me how the ccp 96 failure prejudiced me, what would be a solid answer? They clearly failed to comply, but they supplemental response did contain the name of the witness, so i can't say that i couldn't research the witness or anything. i'm just worried that I won't really have anything new to offer that's not in my brief, but they could potentially ask me things that could actually damage my argument and leave me worse off then not oral arguing at all.
  2. True. I do wonder if they would question me. As i understand, they will already have a tentative ruling at the oral arguments, and after oral arguments they will send a letter re-affirming the or changing their tentative ruling.
  3. oral arguments scheduled for the end of the month. I'm leaning towards waiving, as plaintiff can't orally argue, and the appeal would be decided on my brief alone. I'm not sure what more i would argue besides what's in my brief. That and i don't really want to get all psyched out again..
  4. Any and all califonia appeal related info is fair game here. Also, I'm wondering if oral argument is even necessary in my appeal, seeing as the court will already have an opinion generated before oral arguments, and with no argument from plaintiff, I would probably only be re-stating what is in my brief. Opinions? Although, I suppose I could perhaps use it to hammer home how plaintiff's failure to even file a reply brief only reinforces the constant failure of plaintiff when it comes to filing timely documents / following code. something like, "either plaintiff agrees with my brief that they should have lost at trial, or plaintiff is simply continuing it's disregard for any and all requirements of winning their claim as required by california law."
  5. There is no case law that implicitly interrprets ccp 96 (believe me i looked). There is, however, this case regarding the former ccp 1825 (which was the prior request for statement of witnesses and evidence): In Border v. Kuznetz (1980) 103 Cal. App. 3d Supp. 14, [162 Cal. Rptr. 881] the appeal court found that trial court did not abuse discretion in denying plaintiff's various motions to relieve him from default in filing a timely (compliant) statement of witnesses and evidence under the former code 1825.1. The sole question was whether these rulings constituted an abuse of discretion. Section 1825.3 and rule 1725 provide that at trial a party may call as witnesses only those persons disclosed in the witness statement and may introduce only physical evidence and documents identified therein, unless relief is granted for any of the causes [103 Cal. App. 3d Supp. 17] specified in section 473. This is the closest thing, considering the prior rule is basically identical. From there, take it to the possible exceptions to ccp 96: The only exceptions are: (1) A person who, in his or her individual capacity, is a party to the litigation and who calls himself or herself as a witness. (2) An adverse party. (3) Witnesses and evidence used solely for purposes of impeachment. (4) Documents obtained by discovery authorized by this chapter. (5) The court may, upon such terms as may be just (including, but not limited to, continuing the trial for a reasonable period of time and awarding costs and litigation expenses), permit a party to call a witness or introduce evidence which is required to be, but is not included in such party's statement so long as the court finds that such party has made a good faith effort to comply with subdivision © of Section 96 or that the failure to comply was the result of his or her mistake, inadvertence, surprise or excusable neglect as provided in Section 473. Knock these out one by one. The only likely applicable excuse is 5, excusable neglect (section 473). I used the following cases in my appeal brief to attack any claim plaintiff could make as to "excusable neglect" for their ccp 96 failure: Border v. Kuznetz (1980) 103 Cal. App. 3d Supp. 14, [162 Cal. Rptr. 881] Kerkeles v City of San Jose (2011, 6th distr.) 199 Cal. App. 4th 1001, Cal. App. Lexis 1261 Dill v Berquist Construction co (1994)24 Cal. App. 4th 1426 [29 Cal. Rptr. 2d 746] Beall v Munson (1962, 1st distr.) 204 Cal. App. 2d 396, [22 Cal. Rptr. 333] Baratti v Baratti (1952) 109 Cal. App. 2d 917, [242 p2d 22] Fidelity Federal Savings and Loan Asso. v Long ((1959, 2nd dis) 175 Cal. App. 2nd 149 [345 p2d 568] Martin v Johnson (1979, 4th distr.) 88 Cal. App. 3d 595 [151 Cal. Rptr. 816] They all deal with what is or isn't excusable neglect. I posted my appeal brief in my appeal thread, which details these cases and my arguments. Hope this helps.
  6. In my case I obtained an order to produce the forward flow, but they never did. Perhaps I could/should have subpoened the doc? Judging by what i've read from another JDB forward flow, it could definitly be used to refute many of their claims.
  7. got this in the mail: "ORDER RE: FAILURE TO FILE RESPONDENTS BRIEF Due to respondents failure to file its brief by the date specified in this courts notice dated ##, the court will decide the appeal on the record, the opening brief, and any oral argument by the appellant."
  8. I noticed that as well..doesn't strictly prohibit respondent, but it's worded friendly to me... by the way still nothing from respondent...my brief was filed near 60 days ago...looks like appellant panel will only hear my side. I'm not sure if I should opt for oral arguments or let my brief speak for itself...
  9. I didn't read the specifics of your case, nor have i appealed vs cach, but i'm in the midst of an appeal vs Muddland Funding in California right now. I have a thread with all of my appeal docs, appeal brief, strategy, ect. most of it is california specific but the principles may well translate to other states.
  10. love to see that my witness cross exam transcript has been downloaded over 100 times..hopefully future litigants can really turn up the heat on these (perjuring?) JDB witnesses who conveniantly remember the exact details of the person on trials account down to cent while being completely oblivious to any other details of the sale. i'd love to see somebody (defendant) bring a big $ lawyer to trial and get one of these witnesses locked up for lying on the stand.. maybe then jdb's would think twice before making a mockery of the justice system to fatten their own wallets...
  11. True, i'm sure as a business they could use their time more efficiently (and for more profit) to crank out generic paper work for new cases that they will win most of by default, rather than spending more money and manpower on continuing to fight my case as it moves into year 3. Profit margins sinking and sinking.
  12. Interesting, I just noticed this in Rule 8.200 (a)(2)Each respondent must serve and file a respondent's brief. MUST. I filed on the 26th of september, there's would be due 30 dyas later (+5 for mailing) which would be the 31st of october. Here is relevant the code for failure to file Rule 8.220. Failure to file a brief (a) Notice to file If a party fails to timely file an appellant's opening brief or a respondent's brief, the reviewing court clerk must promptly notify the party by mail that the brief must be filed within 15 days after the notice is mailed and that if the party fails to comply, the court may impose one of the following sanctions: (1)If the brief is an appellant's opening brief, the court may dismiss the appeal; (2)If the brief is a respondent's brief, the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant. (Subd (a) amended effective January 1, 2008; previously amended effective January 1, 2007.) © Sanction If a party fails to file the brief as specified in a notice under (a), the court may impose the sanction specified in the notice. (Subd © amended effective January 1, 2008.) (d) Extension of time Within the period specified in the notice under (a), a party may apply to the presiding justice for an extension of that period for good cause. If the extension is granted and the brief is not filed within the extended period, the court may impose the sanction under © without further notice. So, they would have another 15 days after the notice. 13 or 14 of which have passed. After that, the will hear the appeal only on my record, my brief, and my oral argument. I can't find any code specifically prohibiting respondent from not arguing orally because of failure to brief. @Seadragon have any idea on where that is or what cases specify this? I haven't received anything. It would appear that by code the clerk should have sent them a notice, but by my calculations their time for that should be up soon as well. I find it humorous though, this failure of theirs to file a timely brief really hammers home all of my briefing on how plaintiff doesn't care to follow code. Just another example.
  13. Update, respondent didn't bother to file a brief. They either don't want to spend any more money at all, think they'll win without it, or think they're going to lose regardless. This leaves my brief and record on appeal as the only things the appellate panel will use to make their decision. i'm fine with that. Either way the case should be calendered soon and i imagine i'll hear a ruling in a month or 3.
  14. waiting for respondent's reply brief. after that i'll have 20 days to file my reply. even if they don't bother to file a reply brief, that's not a forfeiture or admitance or anything in california. I imagine it will be another 1-3 months after all briefs filed to have the appeal heard. I doubt respondent will show or request oral arguments before the appellate panel, so likely the panel will make their decision based on the briefs, the available record supporting, and their interpretation of the law. I think my argument is solid, my only concern is the record. But my primary issue is the CCP 96/97 thing and that has better documentation than the testimony and evidence issues.
  15. Sorry to hear. I didn't feel I had a shot in my trial either once it got going. The only way we can do something about these judges is to appeal. However I think you havea great shot on appeal, given your ccp98 objection is rightful, and this same judge was already overturned in a high profile case. I say make it another reversal and appeal. I have all the info in my thread, it's really not as daunting a task as it seems. You've already taken the time to learn the laws and the relevant statutes and cases. It's not that much more work to appeal, especially if you have a good shot. I can tell you step by step everything you need to do.
  16. in your intro add something about the evidence being non sufficient on its own merits, ie hearsay, no foundation, ect. Also, plaintiff sent a ccp98 dec correct? This should be your primary issue, with all of the evidence and authentication as secondary. You need to cite Target v Rocha, and the recent Rogers case as well.These are ccp98 killers, and this is primary as without the ccp98 dec, plaintiff cant authenticate or lay foundation for anything without the 98. make the ccp 98 non compliance the focus. all the rest is arbitrary to ruling, it only strengthens the argument. Other trial advice: Write a motion in limine to preclude the ccp 98 dec based on non compliance (plenty of these around, and although late couldn't hurt) consider paying a court reporter. makes for a rock solid appeal record.look into if your court allows self recording? Wear a nice suit, act professional. don't talk too much, only answer when asked and object to anything plaintiff offers into evidence or orally as truth unlikely in your case, but consider cross-exam questions (plenty around again) plaintiff may try to settle or ask for continuance, i believe the rule for this was posted earlier other than that, you've done the work, now show up to win and try not to sweat it! court is unappealing but they will respect you if you play by the rules.
  17. I believe you have to file a motion to compel arbitration, no experience there myself. try a quick forum search for arbitration and motions to compel arbitration
  18. Do a quick search for threads by ASTmedic or homelessinCA . mine is up here as well
  19. I corrected all of my citations to the full oficial cite, and cleaned up the grammar stuff. I added some more to the authentication/foundation/hearsay section, thanks to a nice lead from one of the most helpful and knowledgeable board-members: If the witness cannot establish how the records were prepared or how the recorder obtained the information, the foundation is not established. In Remington Investments, Inc. v. Hamedani (1997) 55 Cal. App. 4th 1033 [64 Cal. Rptr. 2d 376], the FDIC took over for a failed bank. To lay a foundation for admission evidence of a Note Ledger establishing the account alleged to be owed by defendant, plaintiff presented the declarations of plaintiff's own vice-president. He declared that he is familiar with the records of commercial paper owned by plaintiff.. He stated that he is a custodian of plaintiff's records, that plaintiff's records are made in the ordinary course of business at or near the time of the event they record, and that they are made by persons who have a business duty to record such information. He declared that he found the Note Ledger in the records plaintiff received from the FDIC. Plaintiff presented no evidence of the recordkeeping practices of the bank during the period allegedly recorded on the Note Ledger, and hence presented no evidence of the manner in which the Note Ledger was prepared, the origin of the information it contained, etc. The Defendant objected to admission of the Note Ledger on grounds of hearsay and lack of foundation for any exception to the hearsay rule. The trial court sustained the objection, and denied plaintiff's motion, ruling that if the witness cannot establish how the records were prepared or how the recorder obtained the information, the foundation is not established. The D'Oench Duhme cases and statutes, created to aid the FDIC in laying foundation for records it acquired from failed banks, did not provide, as the plaintiff urged, that the "records speak for themselves as to enforceability of the debt." A rule allowing or requiring admissibility of any document found in a bank's records without evidence of reliability would be a sharp break with past practice, could raise grave implications for the continued maintenance of reliable bank records over the long term, and is far beyond the scope of the D'Oench, Duhme doctrine. If the vice president of the FDIC cannot lay foundation for documents without establishing how the records were prepared and maintained, despite their being the D'Oench, Duhme doctrine to aid, how can an employee of a third party debt buyer who has admitted to not being familiar with such practices? and this: To be qualified to lay the foundation on mode of preparation and identity of the computer records, a person must generally understand the system's operation and possess sufficient knowledge and skill to properly use the system and explain the result and data. (People v. Lugashi (1988) 295 Cal. App 3rd 632, 640, 252 Cal. Rptr. 434) Ms. JDB testified that she was not familiar with the systems or procedures of CHASE BANK NA. Ms. JDB was clearly not qualified to lay the foundation for any of the documents admitted into evidence, and her testimony was wrongfully accepted as sufficient to lay foundation. Ms. JDB failed to lay foundation for each piece of evidence offered, merely that the records appear in MIDLAND's system. If this argument isn’t good enough for the FDIC, when specific statutes exist to aid them, how can it be sufficient for a Process Analyst working for the servicer of a company claiming to have purchased records from a third party?
  20. @doublethefun9941 some good points. i knew there were grammatical errors, i've cleared most of those but good call on the cases! I wrote most of them down as they were listed in various law books but indeed many are shortened. Good points all around.
  21. agreed. just by listing witnesses, that suggests that if they indeed proceed through trial, they will bring someone . If they ammend, use that case law i posted. use the first case either way as it is one of the only case concerning statements of witnesses and evidence, and it's in our favor.
  22. Thanks. I'm sure there is a few more typos for me to spot too. I really think my ccp 96 / section 473 argument is strong.
  23. Ok, I'd like some opinions/proof reading on my opening brief. I've worked pretty hard on this. MY APPEAL BRIEF-redacted.pdf
  24. thanks. I'll be posting my brief for review. In limited civil, one copy goes to respondent, one to appellate division and one to trial court, right?