HotWheels96

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HotWheels96 last won the day on February 20 2014

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  1. You've stated that the Moore Group is suing you, on Cap1's behalf. Who is the listed plaintiff? When I faced Cap1 (for well over $10,000) they sent far more than one statement. I find the fact that they did in your case odd. Please advise.
  2. Once the motion was filed, they dismissed the case. They made no move to oppose the motion and I believe waited only to see if her stating a motion would be filed was a threat or a promise. It was in fact, a promise.
  3. Try to remember we all started in the same shoes you're currently in.
  4. Oh good! I was worried they somehow slipped in that you would be responsible for their fees. Congratulations that they have entered into a settlement agreement for $0. Why didn't they just agree to dismiss it with prejudice though? Why a settlement?
  5. The witness must be an employee of the original creditor, as an employee of PRA is not a qualified custodian of records and anything they say is hearsay. Some questions for you: 1. Where was your 98 signed? 2. Where does it say their witness will be located in the 20 days immediately before trial? 3. Is this address within the prescribed mileage requirements to comply with a 98? 4. Is that address the attorney's office? 5. Does the witness say they are giving so and so the right to accept service in their place? Now for the 96: 1. Is what they offered (in writing and physically) the same things listed in the 98? 2. I already asked but again, is the 98 witness named in the 96? 3. Did they name each possible witness or did they include something like, "and anybody we might bring as an alternate witness with knowledge."? 4. Did they give the street addresses for each witness listed? (In a case I fought they didn't and I ended up sending a letter telling them their response was insufficient and didn't comply with code...but I can be a little aggressive and others might disagree with doing so...YMMV)
  6. YAY!!! The CCP98 is definitely what you want. Question, is the declarant for the CCP98 listed as a possible witness on the CCP96?Now, to the nitty gritty. You're in the homestretch so now's the time to really step up your game. You said your trial is April 1, and it's your job to subpoena their witness. So let's take a very close look at their 98. First, does it comply with CCP 2015.5? California allows the use of a declaration instead of, or in lieu of, an affidavit. The relevant code section is Code of Civil Procedure § 2015.5 which states that, “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form: ( a ) If executed within this state: “I certify (or declare) under penalty of perjury that the foregoing is true and correct”: _____________ _________ (Date and Place) (Signature) ( b ) If executed at any place, within or without this state: “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct”: _____________ _________ (Date) (Signature)” Note that an affidavit or declaration that is signed inside California must state the date and place where it is signed. "However, the key thing to remember is the fact that a declaration signed outside of California that does not state that, “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” does not conform with California law, namely Section 2015.5 of the Code of Civil Procedure , and should be objected to on that basis. The California Supreme Court has also ruled that a declaration that does not comply with the provisions of Section 2015.5is not admissible, see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606. (Internal citations omitted.)"
  7. I'll have to look for my cap1 TB. Give me some time, with the understanding I am fully aware of your tIme constraints. I am on medical leave from having surgery so I'm not moving as fast as I normally would. Hand surgery for a person in a wheelchair can be a real...well, I'm sure you can imagine! In the meantime, I think ASTMedic might have posted his in the sticky about beating Midland in California. Look there too.
  8. Do your rules say you must send a meet and confer prior to the filing of a motion to compel responses? I would NOT send them another copy. If you have the signed green card, they have it and don't want to respond. Discovery can tell the plaintiff a lot. You've basically just removed your wife from the lowest branch (where all the low hanging fruit reside) and made a statement that she's not going to roll over easily. Look to your rules for how to proceed when they fail to respond.
  9. @CRDTNogood This thread was revived from a year ago by another member and as the OP never returned to describe the outcome, it's highly unlikely you'll receive a response from him. Too bad too, I dislike not knowing how members faired.
  10. The case to which I was referring is Resurgence v. Chambers and can be read here: http://www.courts.ca.gov/partners/documents/2011SRL5eResurgence.pdf It's regarding a JDB who sued on a Chase account before the 4 year SOL ran out, BUT, not before the SOL from Deleware ran out. Why is this relevant? Because, California has a borrowing statute; meaning you could state because Chase uses Delaware as their governing law in their credit card agreements and that Delaware's SOL is 3 years, they cannot sue you past that time. The Chambers case is an appellate decision in our circuit and therefore applies to you. You stated that the DOLP was 01/2010 and they filed in 03/2013...get what I'm laying down? If in fact the DOLP was 01/2010, then they only had until 02/2013 to file, though I have seen defendants say it would have expired 01/2013 (and am in fact one of the people who successfully used the 36 months rather than the oft stated here, 37 months). Now, while this should have been a defense mentioned in your answer, it couldn't hurt to include it in your TB now. Especially because Equable didn't send the CCP98 and I feel Equable will be your bigger challenge of the two cases. What does the complaint say about your last payment? Yes you will be hammering on the declaration of non service making sure to cite Target v. Rocha and ensuring you correctly cite you have a copy as an exhibit and then ADD the declaration at the back of the MIL as the exhibit. I've heard a few people forget to include the exhibit. Did you file the declaration of non service of the subpoena with the courts? That'll really frost PRA's cookies. Also you will file the MIL and TB as separate documents and so you will technically have two POS-030 forms. I suppose you could send them together and then make a copy of the POS form but I'm paranoid and send the documents separately. That means if you also experience some paranoia and send the TB and MIL separately, you will then have 4 different POS forms, 2 for each case. Okay? Don't forget to fax them as well. It won't count as service so only fax a copy of each AFTER serving and filing the actual docs. It's just to ensure they have a bit longer to stew on them and hopefully dismiss when they see you will go all the way. Finally, for the sake of clarity, the order of the papers will be the actual MIL followed by a nearly blank piece of paper with the words EXHIBIT "A" on the bottom (center justified is how we do them in my jurisdiction which just so happens to neighbor yours) followed by whatever you cited as exhibit "A" in your MIL. For example I included both a copy of the subpoena and the declaration of non service in mine. That would then be the subpoena as exhibit "A" and the declaration of non service as exhibit "B". Just make sure to list them as the proper, and corresponding, exhibit letter in the MIL and the actual paper divider. Then after all the exhibits you will have the POS form. Make sense?
  11. There's always a chance they'll fail to appear. And, in the event they call you and claim they dismissed it and you don't need to show up, you still better show up. I've heard of cases where they do this and get a default judgment because they really didn't file a dismissal. This actually happened to a very good friend of mine. For PRA, draft, serve and file your MIL and trial brief. If it were me, I would also fax PRA's counsel (whomever they chose) the MIL and TB including all the exhibits, especially the declaration of non service, so they have a chance to look them over and possibly dismiss sooner. No harm in trying right? Your MIL should include Target v Rocha and that ABC Legal cannot accept service of a subpoena on behalf of the declarant. **I'm assuming they used ABC as their service location based on your court's address. My apologies if that's incorrect.** For Equable, hammer on their failure to include the assignment because that's their standing to sue. Not to mention a bill of sale etc. or whatever else you demanded but didn't get. Did you receive every statement or just a handful? Al of these things should be mentioned as well as that the plaintiff is not the OC and anything they attempted to offer was hearsay. Who were the OC's and when is your SOL up based on Cali's four year SOL? I'm trying really hard but with so little info I sort of feel like my hands are a little tied despite really wanting to give you a fighting chance. I ask because we do have the Chambers case and if the DOLP was three years ago and the OC was Chase, Discover, Capital One, etc. there's always the chance [however small] to argue the borrowing statute of three years or to at the very least mention it in the TB. SOL = Statute of Limitations DOLP = Date of Last Payment OC = Original Creditor
  12. Because there was no judgment, just the settlement. Settlements are not listed on the reports.