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Enjoy: http://caselaw.findlaw.com/ca-superior-court/1632471.html Big shout out for Fred Schwinn, a tireless, excellent, debt collection defense attorney.

I am in a serious predicament In CA. I have trial on January 12, 2015. I sent discovery they sent discovery. They had nothing but generic paperwork and some statements. I thought would show up next month and argue my case based on the evidence. I didn’t think I’d hear from them and never prepared for more or did a trial brief etc. I figured I’d go in and argue the evidence in person. Then, yesterday via mail I received a CCP 96 including a CCP 98 from a Unifund Authorized representative Doug Hallock. I wasn’t worried UNTIL I saw that now they have included all of the sudden a Notarized affidavit from Sasha Deesha – in Missouri stating she was a document control officer from Citibank and it was sold to Pilots receivable and then assigned (generically) to Unifund. This document was NOT ever included in the entire Discovery—but it was dated from last year. It has my accurate ss# on it etc This to me ruins me. . ALSO, I DON’T’ HAVE ENOUGH TILME TO CCP 96 THEM NOW or file anything BECAUSE I HAVE UNTIL Friday 12-12-15( the 30 day mark for them to receive it ). Can I fax off a CCP 96 so it falls within the 30 days and get a friend to mail a copy as well that will arrive after the 30 days? I MUST know what else they have as evidence. I was blindsided by this affidavit. Clearly, I needed a trial Brief and/way more preparation, but now I’m stuck being too close to trial-- 30 days before the trial date. What are my options. I MUST have the affidavit thrown out. How can I do that? What should I DO? I DON’T WANT TO LOSE THIS CASE. Should I hire a lawyer and see if the case can be put off? I am over my head, but still want to win this. Given they legally but willfully waited till the last second to send me a CCP 96 and CCP 98 (which included an affidavit I have never seen until yesterday), now the issue is I have NO time left to respond legally because it’s too close to trial. I feel defeated. What can I do? Anyone reading this who can advise, you are literally saving my life right now. I have to take action by this Friday to make the 30 days and I’d have to hire a process server to personally deliver. But I can’t ever take the time off of my new job to handle this mess. Please advise. I still don't think I could prepareanythign by Friday anyways. I need SERIOUS help right now. I was very stupid to have let this happen. I was caught off guard, But I can't let them win .

Hi All, Its been a long time since I've checked in. I did a little browsing on westlaw earlier today, and found a few federal decisions that viewed the Rocha and Rodgers cases unfavorably. As general matter, how are limited civil courts ruling based on this law when the affiant is found to be more than 150 miles away? Perhaps this is a question for Calawyer and Sandinca?

Hi, I have been sued by Midland Funding LLC and I've been doing the pre-trial litigation work past couple of months. I just received CCP98 from Midland Funding LLC in San Diego. Anybody heard of Monica Maxwell? She seems to be the person who has knowledge of the evidence in the discovery.

Hello to all, I'm hoping you all can help me. Your help is most appreciated. I received a packet: CCP 98. It came with 2 exhibits, statements and bill of sale that does not say my name nor account. The CCP 98 starts with, "I ______, do hereby declare as follows: I am an authorized agent and duly qualified of records of the Plaintiff..." The trial is next month (2/24/15) in Los Angeles, California. However, the CCP 98 document was executed at Denver, Colorodo, which is over 150 miles of the court. And the law office of the plaintiff is located in Sacramento. The other odd part is, the POS-040 states the declarant as the lawyer and not the authorized agent in the beginning of the CCP 98. In the last page of CCP 98, it states: the declarant will be made available for live testimony at trial if defendant serves a notice to appear at trial (gives address that is within 150 miles, the address is to a law firm that files and serve legal process, one that was never mentioned in any previous papers). Then it says: "in lieu of service of a notice to appear at trial, defendant may mail same to plaintiff's counsel's office (the one in Sacramento) and the declarant will submit to the the jurisdiction of the court and appear at trial. My question is what should I counter with? What form? Today, I also received a DISC-015, that says: Request for statement of witness and evidence for limited civil cases (under 25k). How do I respond to this form as well? Thanks in advance.

Hi, All. Does anyone have a reliable process server they can recommend (based on past personal experience) in the Greater San Diego area? I need to have a subpoena served on a JDB employee there. The job will require that they attempt personal service up to (3) times before leaving it with anyone else, sending me an Affidavit of Due Diligence (preferably in both electronic and hard copy form), and do it all in a very timely fashion. Any leads are very much appreciated, particularly if you can tell me a little bit about your experience with the company or individual being recommended. Thanks!

Listen, I am not a lawyer and I am not an expert, by any means, but I've been reading this forum for over a year, and now that I have also had some experience in these matters, I feel compelled to make a few observations about (what seems to me to be) the general strategy that JDBs (junk debt buyers) use, at least in California. 1st – The JDBs depend upon the fact that most defendants are not going to answer the complaint filed against them, which allows the JDB to receive a default judgement, winning the case, and allowing the JDB to then proceed to garnishing the defendant's wages. 2nd – If the defendant does file an answer, the JDB's attorney will attempt to trick the defendant into admitting guilt or into making an error when responding to discovery requests, which the attorney will use to win their case. 3rd – JDB's attorney sends the defendant a CCP 98 (affidavit in lieu of live testimony) that will allow JDB to enter as evidence any documents attached, unless the defendant subpoenas the witness listed in the CCP 98 and files an objection to the CCP 98. 4th – The JDB's attorney, almost always, knowingly lies on the CCP 98 when they say that the witness will be available for service for the 20-days prior to the court date at an address within 150 miles of the court. It has been my experience, and it seems to me that in most cases filed in California, that a defendant has an excellent chance of getting their case dismissed if they simply follow the guidelines provided by ASTMedic in his topic: How I beat Midland in California. In addition, since ASTMedic's case, there have been two excellent cases that provide even more case law to use against the JDBs' strategy: Target v. Rocha and CACH v. Rodgers. Besides ASTMedic's guidelines, I also highly recommend the following two links that this forum lead me to, and which were particularly helpful to me. The first is a little old now, and was prior to Target v. Rocha and Cach v. Rogers, but contains actual filed court docs: http://www.plainsite...sandra-pacheco/ The second is the opinion from CACH v. Rodgers: http://www.courts.ca...ve/JAD14-11.PDF

Mates: I'm defending my uncle in a lawsuit by AMEX and have a question for you all... Are there any significant differences in how I should approach the upcoming trial since I am dealing with the original creditor? They filed a CP 98 and I will attempt to have Linda Salas served in the coming days, but obviously, she won't be there. The process server will give me a declaration indicating that she wasn't there, and I will object to her declaration in lieu of testimony at trial. From what I can gather, they will have no legs to stand on at this point, and it should be a directed verdict. Am I missing something here? Oversimplification? On the other hand, if that declaration gets in, I think were screwed... but oh well, my uncle is flat broke.

A new case was published today by the Appellate Division of the Superior Court in Southern California. It follows Target Bank v. Rocha and reverses a trial court judge who thought Target v. Rocha was wrong. Here is a link: http://www.courts.ca.gov/opinions/documents/JAD14-11.PDF I will post the official citation when we get it. Kudos to Ian Chowdhury, a NACA member in Southern California for doing such a good job.

http://www.fullmanfirm.com/2013/03/declaration-in-lieu-of-live-testimony/

I recently got a Dismissal without Prejudice filed by Capital One (CO) in North San Diego County. I beat them at their own game by following steps taken by other members on this board - specifically SeaDragon. This was a credit card suit whereby CO claimed I owed roughly $3000. CO hired a local attorney in San Diego - Legal Recovery Law Offices; I believe they handle all CO's lawsuit in SD. The Complaint did not have any contract or other exhibits attached and plead only Breach of Contract and Account Stated. Once I was served with the Complaint, the following defense strategy was used: 1. File an Answer ON TIME (within 30 days): You can get the answer form online at your local court. Take the time and Deny each and every allegation raised in the Complaint - "Defendant denies the allegations contained in Paragraphs 1-5 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged ......" . Specifically deny the Paragraph that refers to the written contract - "Defendant denies in Paragraphs 6-8 as there is not, nor has there been any agreement, written, oral or implied with the Plaintiff and Defendant. a. Make sure you read on this board all about affirmative defenses you can raise, i.e. failure to state a claim, court lacks subject matter jurisdiction - lack of standing, statute of limitations, statute of frauds, failure to request arbitration, invalid assignment, failure of consideration, FDCPA violations, and other equitable defenses, i.e. laches. 2. At your First scheduled hearing - REQUEST A JURY TRIAL! Most law firms will drop their cases shortly since costs handling a jury trial will exceed the debt owed. Don't make any offers to settle since it is too early in the game to quit. 3. If you are served with Interrogatories, Admissions, and requests for documents, do not panic. Make sure you respond and answer each interrogatory and deny all admissions. You can ignore producing any documents unless you had sent CO "dispute letters" or similar. If you do not have an answer to the interrogatory, state so with "I lack sufficient information and knowledge to answer this question". Do not admit to anything they ask you. 4. After answering P's Interrogatories - DRAFT YOUR OWN INTERROGATORIES, Admissions, and Production of Documents and serve on P - you can look on this board for examples. I basically used P's format and started with the Contract issues - offer, acceptance, consideration, breach, and damages. I got specific when it came to details of the debt - charges, payments, over limit fees, past due charges, etc.. Make sure you ask for dates on "missed payments" and "last payment made". You want to make sure you nail down specific dates for Statute of Limitations (4 years in CA) facts. b. Production of Documents - very important to request copies of credit application, card holder agreement, changes/modifications to interest charges, statements, and "all other relevant documents". 5. P's response to my interrogatories, etc.. was to send me CO's 2005 Card Holder Agreement and the last two years of statements AND a CCP 98 Declaration by Wandi Chamberlain - CO's legal rep in Lieu of Personal Testimony. In her Declaration she failed to lay the proper foundation/lacked personal knowledge/no authentication required by the Hearsay Exception for Business Records - she was not an employee of CO, only an agent of a subsidiary, did not state when the account was opened, agreement not signed, and other insufficient conclusions - totally bogus boilerplate P Declaration. They also included in their "packet" a CCP 1987 - Requesting Parties to Attend Trial and to cut-off anymore discovery. Of course, they requested that I attend Trial. 6. Now, you MUST send P your own CCP 1987 and request that Wandi Chamberlain appear on the Trial Date - make sure you save your proof of service. 7. By now you have your Trial Date. About 10 days before your trial, PERSONALLY SERVE SUBPOENA DUCES TECUM on Wandi Chamberlain at the bogus address given in P's CCP 98 declaration. Do not allow the Marshal to "sub-serve" anybody else - even if the CCP 98 declaration states that you can serve someone else instead of Wandi. Only name Wandi in your subpoena. The service will fail since Wandi will never travel from VA to appear in court. 8. Before or at your Trial Readiness Conference, file and serve your Motion in Limine to throughout Wandi's declaration, contract, and statements (all Exhibits attached to declaration) as Hearsay evidence. This forum, specifically SeaDragon, has sample Limine motions you can use. Once I served the Limine motion and awaited my trial date - CO caved and filed the Dismissal a few days before trial. CO cannot win any of these cases unless they can provide a "legal rep" capable of providing testimony as to your specific credit card account. All their evidence gets tossed as Hearsay since they haven't gone through the requirements of the Business Records Exception. Wandi's declaration is completely bogus and the fact she doesn't reside within 150 miles of the courthouse and subject to a subpoena, the courts will not allow the declaration and attached exhibits. File an Answer with Affirmative Defenses, Request Jury Trial, Respond and file your own Interrogatories-Admissions and Documents Request, File CCP 1987 Requesting P's main Witness to Attend Trial, and file your Motion in Limine and watch how fast CO dismisses your case. Thanks to all the knowledgeable members here - I hope my strategy will make you a winner against any Capital One lawsuits.

Uh-oh, preparing my MIL and trial brief and just realized the subpoena was supposed to be filed with the clerk! Process server attempted service (failed of course) and i thought i was ready to go but just came across this. What to do? trial is next monday. Theoretically could file it in the morning and have them attempt service on tues weds thurs then file MIL on friday. Trial brief needs to be filed and served 5 calendar days (weds) so im unsure how to incorporate the MIL in that any advice? burning the midnight oil tonight. Will be consulting with clerk in the morning, but wanted to gather feedback from here, as the MIL is critical to the case

Just got back from court. Not a bad outcome but not what I'd hoped which was of course win or dismissal. The rent a lawyer, Stuart Rine shows up and wants to put me on the stand because of my admissions (I admitted my address and that I had the card) Then he blathered on about the witness not being served. The judge said its right here, she did, better get your docs from your boss in order. Haha The judge was pretty mean, told me this wasn't a game (no idea what he meant by that). I explained that I had tried to work things out with OC, they agreed to reducing interest from 28% (they slammed me right before anti-slamming law came into effect), i made a good faith payment of $330 before new interest rate was in effect and then never heard from them again until lawsuit. He said their evidence looked fine to him and I started to freak out but took the advice of not speaking unless absolutely necessary. He asked me if I could prove what I just told him. I said I would have to pay my bank hundreds of dollars to get records of electronic payments. Then he stopped, looked through docs and said "the witness needs to be here. I will continue this and the plaintiff has to bring a witness. And a good one, not just someone who has seen the papers. The plaintiff will have a hard time doing this. He looked at rent a lawyer and told him to tell his employers that he was going to stop allowing ccp 98 and that he was aware of target vs. rocha. He said he was new at these "lowly" cases and this was the first time he'd seen someone like me use it. He told me to come back in November with a statement. Lets see if they dismiss or actually bring a credible witness. I won't start collecting bank statements - burden of proof is on them. Guess it'll be my word against theirs. I thought this would be over today but I think I still have a good chance?

If I served plaintiff, midland funding, with 1987 notice to appear, ( i mailed 30 days before trial) nd the same day I received ccp 98, in lieu of live witness (yes, you know that one, where there is an address 150 miles within court house along with 4 other addresses all over California) do I still need to subpeona affiant in ccp 98? Does 1987 trump 98???? I just can't seem to get past my frustration that an affiant/ witness can be legally allowed to say she will be available in 5 different places for 20 days before trial in ccp 98 where it clearly states personal service only. Unless she has a star trek transporter its impossible and shouldnt be allowed! What a misuse of sherrifs, funds for process servers, etc! This clearly violates due process of witness cross examination! Thanks for listening and thanks for your knowledge of law.

I had a tough time understanding this concept and I wanted to make an attempt to clear it up for the people that come after me since I see it a lot. Once it clicked for me it really changed how I need to fight my case: I know how it may seem. You send off a doc request and they send back paperwork and then your heart sinks thinking "oh god, they have all this evidence??!!!!" These cases from the JDB, and even some OC, are not made JUST on the docs they have. It's made or broken on the fact that they HAVE to get a witness to court to testify about the proffered docs. They could have every bit of evidence you could think of but those docs don't mean squat without a witness. They attempt to do this the cheap way by having an affidavit entered into evidence to attest to the validity of the paper docs they proffered. These docs have to prove that they now own the debt (chain of custody) and the amount claimed in the suit is able to be backed up with statements (not a partial record). The only way they can be entered into evidence is if someone can testify about them. This is from my brief and cites Cali codes, look into your states codes: You HAVE to challenge this affidavit by subpoenaing the affiant. Either they don't show and then the affidavit is hearsay or they show and you can then question them to prove they don't have FIRST HAND KNOWLEDGE of the documents. This is what breaks 90% of the JDB cases. Some cave sooner due to getting it through their thick skulls that this is going to cost them more than it's worth. This is also why some have been successful in winning with an OC. They just flat don't want to spend the money to win the case.Now even if the witness shows up that witness has to be able to testify with FIRST HAND KNOWLEDGE to the docs they are trying to use to prove they own the case (this applies to the bill of sale and EVERYTHING ELSE). So if the JDB is using docs from the OC they need a witness from the OC too to testify about the OC docs they're using. This has California case law but the same concept applies to all the other states. This has reference to a case that is used a lot: I hope this helps clear the muddy waters.May 2013 Edit: So I see this a lot and I though like this when I was new. "Should I point out poor service of the summons at trial?" or some other small detail. Really in the big picture most judges won't hammer a plaintiff over something so simple. Once you are to the point of standing there in front of the judge you better focus on something more substantial. "Phone calls and foot lockers? Please tell me that you have something more, Lieutenant. These two Marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill." Col. Jessep - A Few Good Men Don't try and pin your case on something so simple when there are MUCH larger holes to be knocked in their evidence. Your case isn't won because of how many times you can pick at them. It's won when you rip a huge hole in their case. Focus on things like accounting history for the account, poor chain of custody proof, and the CCP 98 witness. In the food chain of your case it goes like this: The CCP 98 witness not being avaiable for service or not showing at trial. Their crappy bill of sale and other docs that they dont have to prove they really bought your acct. Full accounting history for the acct from zero balance to closing balance. You need to hit those as hard as you can in that order. If you destroy the first the two below that are DOA. If they get the judge to allow the CCP 98 then focus on the BOS. You kill the BOS then the account history means little if they can't prove they bought your specific account. Now this isn't to say if something small and procedural rears its head you don't capitalize on it (just ask Rivertime about blind siding a plaintiff). Just so I'm crystal clear, have each of those things ready to go. Case law ready and everything for all those points of attack. The problem is once in a while people think "Oh I got this won since the CCP 98 witness wasn't avaiable" and then they don't have the other two ready in case a judge pulls some crap and let's the CCP 98 affidavit through even though they shouldn't. Then they stand there frozen cus they had all their eggs in that basket and now they're screwed. Don't makes this mistake!!!! A rule I work and live by is this: "Two is one, one is none!"