silverjacket

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Posts posted by silverjacket



  1. Here is a brief outline of my case:
    - Sued over credit card debt.

    - It's an OC, and they had hired an attorney to file suit.

    - They mailed the ccp 98, along with all the monthly statements since account is opened, and the affiant testified under penalty of perjury...under the laws of the state california, that the foregoing is true and correct.

    - I already served the subpoena, requiring this affiant to appear on court day.

    - The affiant claims the regulars on the affidavit: have personal knowledge, familiar how the business is run, all these statements are duplicates from originals, and generated in the course of business.

     

    - I was able to speak to 1 attorney over the phone. I explained him my situation, however, he told me that I don't have a strong case... even AFTER I quoted him all the questions that we all discussed here on the board. He even told me straight out that even though we proved & showed to the court that she is not one reliable witness, etc, etc, etc after all the questioning, the judge might still rule on their side. However, this is not the case that I've read all over this forum. Any input ?


    - Since I've never been into a court, can you guys share with me the sequence of events on how the proceeding is from the minute you walk in. I might help me visualize and prepare myself mentally.

     

    - What kind of wording should I use if I don't think the witness is telling the truth ?

     

    - What kind of wording should I use after I am done questioning the witness ?

     

    - What kind of wording should I use if I don't agree with witness' answer ?

     

    Thank you for any responses !!!!


  2. - I was able to speak to 1 attorney over the phone. I explained him my situation, however, he told me that I don't have a strong case... even AFTER I quoted him all the questions that we all discussed here on the board. He even told me straight out that even though we proved & showed to the court that she is not one reliable witness, etc, etc, etc after all the questioning, the judge might still rule on their side. However, this is not the case that I've read all over this forum. Any input ?

     

    - Since I've never been into a court, can you share with me the sequence of events on how the proceeding is from the minute you walk in. I might help me visualize and prepare myself mentally.

     

    - What kind of wording should I use if I don't think the witness is telling the truth ?

     

    - What kind of wording should I use after I am done questioning the witness ?

     

    - What kind of wording should I use if I don't agree with witness' answer ?

     

    Thank you for any responses !!!!


  3. The only way a business record can be authenticated is getting the original creditor to state under the penalty of perjury in the State of California that the information is correct....now does any of those documents been authenticated as such...NO...so unless your JDB plans to bring in an employee who in the regular course of business whose job is to input and ensure accuracy of the output ccan attest to that EVERYTHING is HEARSAY...

     

     

    Do you have any section code for this argument ? I might have to use this "authenticated" business record for argument.


  4. Yes, too late. You didn't file any discovery? You should probably start a new thread. I hope you answered their discovery.

     

     

    I just found out about all these from this board. And all this time I was thinking of settling, so didn't put enough time to go the other way.

    Any other input that you can give me to prepare or ask at this point during trial ?


  5.  

    DE rule of civil procedure 33 (5) © Scope; use at trial. -- Interrogatories may relate to any matters which can be inquired 

    into under Rule 26( B), and the answers may be used to the extent permitted by the rules of 
    evidence.
     
    DE rule of civil procedure 26( B) Discovery scope and limits. -- Unless otherwise limited by order of the Court in 
    accordance with these rules, the scope of discovery is as follows: 
    (1) In general. -- Parties may obtain discovery regarding any matter, not privileged, 
    which is relevant to the subject matter involved in the pending action, whether it relates to the 
    claim or defense of the party seeking discovery or to the claim or defense of any other party, 
    including the existence, description, nature, custody, condition and location of any books, 
    documents, or other tangible things and the identity and location of persons having knowledge 
    of any discoverable matter. It is not ground for objection that the information sought will be 
    inadmissible at the trial if the information sought appears reasonably calculated to lead to the 
    discovery of admissible evidence.
     
    My main request was any and all employment verification of the affiants, employment history, work address, work phone number. These were, of course, objected to. When they filed their MSJ (they all do) I responded in my opposition that I was being denied discovery. I had other weapons about the bill-of-sale, personal knowledge, too but I harped on being denied discovery. I specifically referenced rule 33(5) and 26( B) when I told the judge this. He looked just a little impressed. ALWAYS cite the rule you want enforced by the rule number (JMO). The judge denied their MSJ and told the attorney to get me the information on the affiants that I requested. Of course, they did not. They don't even know who they are, especially the affiant from the OC who ended her affidavit with "we have no further interest in this account".
     
    I motioned to preclude the affidavits, again stating that I am being denied discovery after the court has ordered them to produce it. What lawyer would want to come to court and explain to a judge they see every day that they refused to satisfy an order of the court?
     
    That is what I think won it for me. Hope this helps others.

     

     

     

    My trial is set for this Friday. I'm guessing it's too late to file for discovery ?  :(


  6. The only way a business record can be authenticated is getting the original creditor to state under the penalty of perjury in the State of California that the information is correct....now does any of those documents been authenticated as such...NO...so unless your JDB plans to bring in an employee who in the regular course of business whose job is to input and ensure accuracy of the output ccan attest to that EVERYTHING is HEARSAY...

     

     

    Will it be different if the one suing is OC, and not JDB ? And this witness Ms. Ruiz is an employee of this same OC.

     

    Also, can you list any other questions and law reference that you can think of ? Sorry to make you work , but I can use ALL the help I can to fight this off. I really really appreciate it !!!


  7. Are they authenticated? They can authenticate them if the send an affidavit that SPECIFICALLY references those documents and satisfies the requirements of 803(6) business exception. Notice I said satisfies and not states. Listing all of the requirements of the business exception does not satisfy them. You can't just say in an affidavit "the records were generated during the normal course of business transmitted by a person with knowledge at or near the time blah blah blah." and then say here is one of those records, it's evidence.

     

    OK, how do I know THIS document is part of "the records"? Who is this person "with knowledge"? How do you know they have knowledge? Was it checked for errors? Did you find it in the computer or did someone print it out and hand it to you? How secure is your computer? Has it ever been hacked? 

     

    If none of these facts are in the affidavit (don't bother looking for it, it's not there) then the requirements of 803(6) have not been SATISFIED. 

     

    Their evidence is paper thin and worthless without a witness.

     

     

    Ok, interesting... how are these statements authenticated ?

     

    And all these questions below that I quoted, have someone actually asked these in courts and when the other attorney object, the judge favor us and tell the witness to answer accordingly ?

    " OK, how do I know THIS document is part of "the records"? Who is this person "with knowledge"? How do you know they have knowledge? Was it checked for errors? Did you find it in the computer or did someone print it out and hand it to you? How secure is your computer? Has it ever been hacked? "

     

    This board is getting more exciting minute by minute ! Beats any law school I guess....


  8. Well, I told you I would be back. Just got the letter, dismissed with prejudice! It's going to be the year of the Pro Se!

     

    In the MSJ I told the judge that I was being denied information about the affiants that I requested in interrogatories. The judge told the attorney to get me that information. 20 days later I filed a motion to preclude any docs from the affiants they didn't get me info on. Took a few weeks but I just got the letter.

     

    I guess they didn't have the info? Go figure.

     

    Take that Midland!!!

     

    :<img src=:'>  xshakeitx

     

     

    flyerfan:

     

    Care to share what kind of information you requested ? This might help us fight...  thanks !!


  9. The documents they are giving you ARE hearsay. Ask Coltfan1972. Hearsay is only allowed as evidence under certain exceptions. One of those exceptions most used in debt cases is the "business records exception".  There are certain criteria that a business record must maintain to satisfy that exception. Read rule 803(6) and it will tell you. One of these is that the record must be generated during the normal course of business. You can't sue somebody for owing you money and then when they say I want proof, go to your computer and type up an invoice for that amount and call it a business record. Now, if you go to your computer and print out an invoice from 2010 and say, here is an invoice we generated 3 years ago that the defendant never paid... it's a business record (there's more to it than that but that is the idea).

     

    There is also a rule (I believe 901) that says it must be an original or duplicate. Note it does not say copy. It must be generated in the same way that the original was generated. That way they know it will appear the same as the original, not with lines from a shitty copier going down it or with a sticky note covering the part of the invoice that has "PAID" stamped on it, etc. It is easy to modify a copy, add a signature, remove a line... you name it.

     

    You could find a statement in someone's trash, copy it and say "Here is an account that I bought and this guy owes me money. My brother signed this affidavit and my mom redacted a bill of sale that SHOWS it's mine. Pay me".

     

    Yours is from the OC, I know, but I want to show you how flimsy their evidence is in a court of law. Of course, it is perfectly legal and acceptable if it is not challenged. Challenge it and watch them scramble.

     

    flyerfan:

     

    Thank you for the detailed explanation and examples !! Really appreciate it !

    For my case, the plaintiff sent copies of statements along with their ccp 98. And yes, these are duplicate copies from original statements. Do you think I could have any arguments about this ? And yes, in their ccp 98, these statements were said to be generated in the course of business.

     

    Does anyone in this board know any attorney that could help on this one ?


  10. One strategy is to get the witness to say that a computer print out was prepared for the purpose of the litigation. If so, object on hearsay grounds. When the plaintiff's lawyer says "business record", you argue it is not a business record because it was not prepared in the regular course of business (but rather for the litigation). There may be other ways to get it into evidence, but plaintiff's lawyer might not be quick enough on her feet to think of them.

     

    helpme or others :

     

    Can someone entertain me on what is the difference in the eye of the law between : prepared for the purpose of the litigation vs business record. And what does exactly means by "it is not a business record because it was not prepared in the regular course of business (but rather for the litigation)" ?

    Thank you for any input on these 2 items!! Really learned a lot !!


  11. Two options.....pay up or appeal. "I don't like the fact that I lost" is not grounds for appeal. You have to show judicial error of some sort, that evidence was misinterpreted or deemed admissible when it shouldn't have been, or some other reversible error the court made. Very involved, lots of paperwork, very expensive and you'll lose 90% of the time. If you didn't object in court to whatever the issue was, you lose it for appeal. Even if you win, it doesn't mean the case is over.....the decision usually sends the case back to superior court for a new trial or further action. Or, you can file a motion to reconsider / reargue. That lets the court know you think their decision is crap and you're giving them a chance to change it before you appeal. Either way, you have to be on solid legal ground when you challenge a judge. How much is this for? That determines how hard they'll fight you.

     

     

    Ok, thanks for the tips. Since they still have to work to get their money (even though they win), do they usually still open to reduced settlement ? The amount owed is 17K, and they are willing to settle for 9K.

    Next questions: so at this stage, are we just typically fighting for procedural alone ? And hope the judge rules in our favor and dismiss the case ?


  12. Printed from electronic storage is not the same as generated. Read about originals or duplicates in rule 901 (I believe).

     

     

    If Dorothy were to respond by saying 'Yes' to that question (Were these statements generated for the purpose of this litigation?), does it mean we can object by saying "How do you know that these are of the same versions with the original copies" ?


  13. It wasn't my case. I went to observe because I was up against Citi and Hunt and Henrqiues with the same Judge presiding. My case never got that far because they dismissed it. As I was sitting waiting for Court to start, the JDB lawyer and the pro per were talking about settlement.

     

    1) Never agree to a settlement, unless it's a dismissal. This pro per says yes I would like to consider. then he threw some dollar amount at th elawyer and the lawyer says well let me discuss with my client. The Client was Dorothy Ruiz.

     

    Court was in session and Dorothy Ruiz is put on the stands...She works for Credit Services of Citi in Arizona but pro per never really asked her to explain indetail what she actually does. I can tell she didn;t do the grunt of the work...her nails were finely manicured and long....wears tons of makeup and her favorite color is RED...How do I know. Where I sat in the courtroom to observe, she sits right in front of me....of all places ...

     

    This is how prepared the Pro per was in questioning the Witness....Mam on page ??? of the statements you brought why is there a discrepancy with the charges of late fees. Based on my claculation it should be this...What????!!!!  I couldn't beleive what I just heard and the Judge was trying to coach him into asking other types of questions but in the end the Judge had to rule in JDB's favor I think it was for $28k including late fees....

     

    Hope this helps...

     

    Ouuch, so in this case Midland won the case for 28K ??

    Also, I'm wondering if anyone knows... in the case the OC gets judgment, where do we stand ? Are we lost completely ?


  14. Hey helpme,

     

    Thanks for the reply !

    Wow, so she actually flew in from Arizona to attend your case ? Must be a big case !

    And what is the outcome of your case if you don't mind me asking ? Also, if you win, what are the questions that you use to 'break down' her credibility in front of the judge ? And which court house were you tried ?

     

    I'll try to look up the thread with the list of questions you mentioned, should be able to find it.

     

    Thanks for any input, for you and many others here !


  15. Wow this is very useful info. I wish I had found this site long time ago.

    My court date is set for this Friday. I had served subpoenaed for Ms. Ruiz to appear, and filed an objection to declaration in lieu of live testimony.

     

    1. Anything else that I can do at this point to better my position ?

    2. If they win judgment, is there a way I can appeal ? Or I'm pretty much dead ?