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Hi, I've been studying the Plaintiff's (Plaintiff (Citibank) is also OC) witness' CCP98 declaration in lieu of live testimony, and am trying to go through the exercise of poking as many holes through it as possible. I am still planning on serving a subpoena on this witness, but am looking for some help in coming up with various objections to each declaration paragraph. It will help during trial I have used parts of Seadragon's defendant CCP 98 declaration, as well as bits and pieces of other declarations online. I have come up with some stuff on my own, too. I'd really appreciate if someone took a stab at my objections and told me what improvements might be needed. Thanks! Here we go: _____________________________________________________ Declaration in Lieu of Live Testimony at Trial (CCP 98 DEC) Citibank (South Dakota), N.A. ,Plaintiff Black Metallic, an individual, Defendant. I Dorothy Ruiz, am an Assistant Vice President with Citibank (South Dakota), N.A. (Plaintiff.). If called upon to competently testify in this matter, I could and would competently testify as follows: 1. I am thoroughly familiar with the manner in which Plaintiff maintains the records for outstanding accounts. I have found Plaintiff's records, practices and procedures to be accurate and reliable. 1. Objection. Affiant makes statements regarding documents and events for which no evidentiary foundation has been laid that affiant in fact has personal knowledge as alleged (Evid. Code 702(a)). Hearsay (Evid.Code 1200). Lack of proper foundation. The allegations that the affiant is thoroughly familiar with the manner in which Plaintiff maintains the records for outstanding accounts, does not confer personal knowledge of the specific documents in issue. 2. Plaintiff's records are kept in the ordinary course of business by designated agents of Plaintiff who are required to accurately record any and all business transactions or events on the computer system. All such entries are made at or near the time of the transaction or event. I have personally reviewed Plaintiff's records as they relate to the Citibank Credit Card Account XXXXXXXXXXXX1234 ("Account"), opened in the name of Black Metallic (hereafter "Defendant") and make this declaration based on this review. 2. Objection. Affiant avers that she is familiar with how the records are being maintained, but does not seem to be a custodian of the records, and does not seem to have the personal knowledge of the record keeping in the regular course of business (Evid. Code 702(a)). The affiant alleges that she has personally reviewed the Defendant's account, but the Defendant objects to this because the affiant appears to have reviewed the record just for the purposes of the litigation and has no personal knowledge of how these records are being maintained during the regular course of business (Evid. Code 702(a)). 3. These computerized records are the principal records for sums and owing to Plaintiff for any and all transactions resulting from the use of a credit card account established by Plaintiff for a customer. The records reflect all debits and credits in connection with the use of the credit card account, including against whom and in favor of whom the entries are made, with the entries made in the regular course of business, with a statement of the credit card account provided to the credit account holder on a monthly basis. These monthly statements are automatically provided after the closing date on the statements 3. Objection. Affiant assumes facts not in evidence. Affiant also lacks personal knowledge to make these assertions. Defendent objects to it on grounds of Hearsay (Evidence Code 1200), lack of personal knowledge (Evidence Code 702(a)), improper authentication (Evidence code 1402). . 4. It is the normal practice and procedure of Plaintiff to require a potential customer to submit an application requesting the establishment of a credit account with Plaintiff. The application, if written, as well as copies of payments are microfilmed, imaged or maintained by the computer system as electronic media to facilitate storage of records and are maintained at least the required of time as part of the bank's normal business practice and procedure. When available, the microfilm copies are true and correct copies of the originals. 4. Objection. Affiant assumes facts not in evidence. Affiant also lacks personal knowledge to make these assertions. Defendent objects to it on grounds of Hearsay (Evidence Code 1200), lack of personal knowledge (Evidence Code 702(a)), improper authentication (Evidence code 1402). 5. By executing the credit card account application for a Citibank (South Dakota), N.A., CITI AT&T UNIVERSAL MASTERCARD credit account, or by use of the credit account, the Defendant agreed to be bound by the terms and conditions set forth in applications and account agreement. Plaintiff issued credit to Defendant Black Metallic. Attached hereto as Exhibit "1" is a copy of the signed application of the applicant. 5. Objection. The Exhibit "1" does not contain any signature of the applicant. Instead, it is a computer-generated report that may have possibly been created just for the purposes of the litigation. Affiant assumes facts not in evidence. Affiant also lacks personal knowledge to make these assertions. Defendant objects to it on grounds of Hearsay (Evidence Code 1200), lack of personal knowledge (Evidence Code 702(a)), improper authentication (Evidence code 1402). 6. Defendant ceased making the required payments on the account pursuant to the account agreement. There are no unresolved disputes on the account. Accordingly, Plaintiff accelerated the remaining balance and brought suit for the principal balance of $15,000.00 which is now due. 6. Objection. States an improper legal conclusion as to the status of defendant's loan. Affiant assumes facts not in evidence. Affiant also lacks personal knowledge to make these assertions. Defendent objects to it on grounds of Hearsay (Evidence Code 1200), lack of personal knowledge (Evidence Code 702(a)), improper authentication (Evidence code 1402). 7. True and correct copies of the statements are attached hereto and incorporated herein collectively as "Exhibit 2", including the final statement showing the principal balance due and owing $15,000.00 as of April 1st, 2010. Also, attached hereto as Exhibit "3" are copies of payments received by Plaintiff from Defendent. The account number currently ending in 1234, previously ended in 2345, 3456, 4567 7. Objection. Improper authentication (Evidence code 1402). There can only be an original and a duplicate. Copies in Exhibit "2" are inadmissible as evidence. The "check images" in Exhibit "3" are also inadmissible due to being copies. Moreover, the check images are illegible, and as such inadmissible. 8. Plaintiff requests that Exhibit "1", Exhibit "2" and Exhibit "3" be accepted in lieu of the original documents. 8. Objection. Improper authentication (Evidence code 1402). These documents are not properly authenticated, are neither the proper originals or duplicates, and, as such, the Defendant requests that they be stricken from the record and excluded as evidence. 9. Plaintiff cannot utilize small claims court due to economic impracticallity. The volume of delinquent credit account that Plaintiff pursues and the fact that judgments in small claims court require a court appearance, would require Plaintiff to hire additional personnel. 9. Objection. Requiring witnesses to appear in court is a standard due process that cannot be foregone because of the Plaintiff's economic concerns. 10. Wherefore, Plaintiff respectfully requests that the Court enter Judgment in favor of Plaintiff Citibank (South Dakota), N.A. and against Defendant Black Metallic. in the principal sum of $15,000.00 plus court costs. 10. Objection. Defendant requests the Court to strike the affiant's CCP 98 declaration as hearsay (Evidence Code 1200), and lack of personal knowledge (Evidence Code (702)(a)), Improper Authentication (Evidence Code 1402). Affiant assumes facts not in evidence, and Defendant requests that it be stricken from the record and excluded as evidence. 11. Pursuant to CCP Section 98, affiant is available for service of process care of <address given within 150 miles>, for 20 days immediately prior to Trial. I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. Dorothy Ruiz Assistant Vice President.