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I have edited this post to include this introductory statement because there's a lot here and I feel it's important to read through this saga knowing ahead of time how it will end. You will see how much work and attention to detail I gave this case but it was not enough to come out on top. I lost in Justice Court when the Plaintiff filed a Motion for Summary Judgment (MSJ) and was unable to get the appellate court to reverse the lower court's ruling. Here is the thread for my appeal: http://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/ I have learned several things along the way. The most significant one is that in most cases, there is no "absolute" way a Justice Court judge has to rule on evidence. He can rule one way on admitting certain evidence and another judge can rule the exact opposite way. If both cases went to appeal, the appellate court can rule that neither judge committed error. To wit, winning in Arizona is mostly luck of the draw and as time marches on, good luck seems to be evermore diminishing . The reason for this is because appellate courts in AZ (and most other places) review the admission of evidence for an "abuse of discretion". This means they are not looking for a specific outcome with the admission of evidence (admitted or rejected), but instead are looking for something to indicate the judge had a basis for his decision. Furthermore, if there is nothing on the record that shows the judge had no basis for his ruling, the appellate courts usually won't assume facts that aren't there. This means the evidence itself must be lacking some fundamental element in order to have the appellate court reverse the Justice Court decision. The next important thing I learned is that there is a case here in Arizona named Parker that appeals courts have been applying to JDB lawsuits. Parker says that a witness can testify about business records even if that witness did not create the records or has no knowledge of the person that created them or the manner in which they were created. The way this is being applied to JDB lawsuits is an employee of a JDB can testify about your credit card statements even though the JDB's employee has never seen the records before reviewing them in preparation of giving her testimony. The only criteria for giving this testimony is that the testimony must state 1.) the witness is a custodian of the JDBs records; 2.) the witness has reviewed the records being introduced (and specifically identifies them); 3.) the records were incorporated into the JDBs own records; and 4.) the JDB relied on the records in its normal course of business. If all 4 of those things are present in the witness testimony (or affidavit on MSJ), the Justice Court is free to admit the evidence and the appellate court won't reverse that decision on objections of hearsay or lack of foundation. This doesn't mean the evidence admission cannot be reversed based on some fundamental defect with the evidence itself, however. Examples of this would be a date that doesn't match up with other dates or dollar amounts among the records are discrepant with no rational explanation. It's YOUR job to raise these questions with the lower court. If you don't address them with the lower court, the appellate court won't consider them on appeal. The last important thing I learned is that JDBs are now entering into 'capped legal fee' agreements with their attorneys. This means that the lawyer agrees to represent the JDB for a modest fee if the defendant does not contest the lawsuit (including defaults) and then a maximum amount the JDB will pay on contested lawsuits. In my own case the cap was set at $1,500. The lawyer submitted an affidavit that they spent over $11,000 in time, but stated that due to 'contractual arrangements' they could only charge $1,500 of that to Cavalry. The significance of this is that a few years ago, if a defendant contested the lawsuit and started running up the JDB's legal tab, the JDB would be more inclined to drop the case and walk away. Now, when they know they will spend no more than $1,500, once they reach that $1,500 limit (right around the 2-3 month mark of the lawsuit when discovery takes place), they have no incentive to back down. It will cost the JDB the same to litigate the case all the way to trial and beyond (I appealed and Cavalry never paid more than $1,500) as it would to settle the case once the cap is reached. The cautionary tale here is that JDBs (at least here in AZ) have figured out exactly what they need to do in order to keep a Justice Court decision in their favor from getting reversed. My philosophy is to do whatever you can to keep the Arizona Court System from deciding your fate on a debt collection lawsuit. At this time, the most effective way to do that is via arbitration. There is an arbitration forum here on CIC. I suggest asking for advice there. Also, here is an example of how arbitration was used in Arizona to beat a JDB: http://www.creditinfocenter.com/community/topic/326349-retired-and-being-sued-by-unifund/ Here is a Justice Court Appeals Ruling discussing the use of arbitration in debt collection cases. http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf Update 12-21-2015: The CFPB smacked Midland and Portfolio Financial Services (PFS) pretty hard in a consent order earlier this year. You can read the details here: http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/ The reason this is significant is some of the Justice Courts here have reconsidered how they are treating Midland and PFS when consumers contest the lawsuits they bring. This is from a Justice Court case that was reversed on appeal: http://www.courtminutes.maricopa.gov/docs/Lower%20Court/102015/m7064645.pdf There have been a couple reports of the Justice Courts taking it upon themselves to reject the evidence, even when the defendant doesn't raise the issues of the CFPB findings. Of course, if you are sued by Midland or PFS, certainly address the CFPB findings when objecting to summary judgment or at trial when Midland/PFS tries to introduce their evidence. Update 04-06-2016: It seems the Justice Court appellate court has had a change of heart: http://courtminutes.maricopa.gov/docs/Lower%20Court/022016/m7204120.pdf Ok, on to my story.
Win Capital One Lawsuits!
banksnogood posted a topic in Is There a Lawyer in the HouseI 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.
Hi All, I have 33 calendar days before my Trial Plaintiff (OC) - Citibank South Dakota, N.A, Plaintiff's Attorney - The Moore Law Group Amount sued for - around $17,000 CCP 96 request served and BOP served on the Plaintiff Plaintiff responsed to CCP 96 request and BOP and supplied the CCP98 declaration in Lieu by Dorothy Ruiz. I sent them a letter by CMRR, noting that I was planning to object since they violated the statute by not providing proper witness addresses, as well as put the wrong case # on their response. They sent me an amended CCP96 response just a few days ago, with a corrected case #, but again with no addresses for each possible witness, except for the Plaintiff attorney's PO Box and instructions to contact witnesses through the Plaintiff's Counsel (this screams denial of due process by Plaintiff's Counsel). And they amended without a stipulation CCP96 (d)No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion. So, my guess is that I include their transgression into my MIL, right? Since I had some extra time, I filed an evidentiary objection against the declaration in lieu and have had it served on Plaintiff's Counsel. But reading all these wonderful posts here, now I am realizing that objecting a CCP98 DEC in Lieu with a MIL would be a more technically correct to do it, right? In addition to the MIL, can I refashion my evidentiary objection as the "evidentiary objection in support of the MIL" and have it re-served on the Plaintiff's counsel, or should I leave it alone? I checked the Court's local rules and found out that MIL and Trial Brief are to be submitted on the day of trial. However, there was nothing in the local rules about a deadline to serve both on the opposing Counsel. In that case, do I just have to compliy to Rule 3.1548. Pretrial Submissions? Pretrial exchange: No later than 25 days before trial, each party must serve on all other parties the following: . . . (10)Motions in limine. So, I am using HomelessInCalifornia's excellent MIL as a starting point, but am adapting it to my case since I am dealing with an OC, and not a JDB. Now, are the days before trial actually calendar days before trial? I know when filing regular motions and figuring out how to calendar them, the Court days are actually used, but not calendar days. So, for the purposes of the Trial, does the xxx days before Trial mean Court days or calendar days? If it is calendar days and my calculation of 33 days before the Trial is right, according to the Rule 3.1548. Pretrial Submissions, do I need to (a) have my MIL mailed on the opposing Counsel at least 25 days before trial or does the opposing Counsel need to received the MIL 25 days before the trial? Since I'll need to do carefully modify HomelessInCalifornia's MIL to my needs, I was wondering if I can still use the POS-30 form if I have the Plaintiff's Counsel served by Express/Overnight mail. The POS-030 mentions "first-class" mail, so I am not sure If I can still use the form. Finally, I am planning to also subpoena the Plaintiff's CC98 affiant via the Sherrif Dept, but from what I have read and understood here is that I will not get the Sherriff's declaration of non-service literally until a couple of days before trial. So, I am guessing I just get the MIL served in the Plaintiff's Counsel, but actually bring the Declaration in support of MIL to the day of trial, with the Sherrif's declaration of non-service as Exhibit "A"? Is that correct? Also, what is the deadline to get the Trial Brief served on Plaintiff's Counsel? 25 days as with the other pretrial exchange documents? Many Thanks
Let me start out by saying I HATE being in the position of having to defend myself in pro per against a Junk Debt Buyer in Los Angeles County. I find the whole process stressful and frustrating and would love to hide my head in the sand until it all goes away. It's tough trying to learn on the fly and prepare the best defense possible (although boards such as CI are amazing!), etc. However, now that I've made my official moan and groan, I do realize that my best defense lies in preparing myself for a long haul, in anticipating and preparing for each step of the process BEFORE the issue becomes urgent. Even though I have not even had a trial date scheduled (CMR coming up in about 2 months), and I am still in the process of propounding discovery on the Plaintiff, and I anticipate trying the 'ol Motion to Dismiss I need to also focus on what I believe will be my fall-back before trial... Motion(s) in limine! I've been researching how to prepare a proper Motion in limine and have found some good information already. For example, I have found that some of the common types of motions in limine have included: - Evidence that consumes unnecessary time or duplicative testimony or evidence - Evidence that creates a substantial danger of undue prejudice - Evidence that confuses the issues or is misleading when weighed against the probative value of the challenged evidence - Evidence that lacks foundation - Inadmissible business records or other writings relied upon by a witness - Evidence that raises authenticity issues - Evidence that would be barred by the discovery rules - Exclusion of experts not disclosed in response to a CCP 2034.10 demand - Exclusion of witnesses not listed in the witness list - Exclusion of expert opinions based on speculation - Limiting expert opinion to those opinions provided in deposition testimony - Opinions from lay witnesses - Limiting witnesses to only those identified in discovery There are many items in the above list that I strongly believe I could lay a foundation. I want to throw a wide net over the foundations to exclude... if it works, then without the evidence then it subsequently leads to the logical dismissal (hopefully with prejudice). --------------------- What I have not found is an answer to my questions (remembering that this applies to Los Angeles County Superior Court): Can I combine several of these types/basis issues into a single motion? If not, why not? If so, how would I go about structuring the Motion/Title, etc? Any other input? Thank you all in advance for your assistance in this matter! I look forward to hearing from you.
1. Who is the named plaintiff in the suit? Equable Ascent Financial LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Tara Muren ESQ SBN 260154 Michael Mixer ESQ SBN 99073 John Clinnin ESQ SBN 153881 3. How much are you being sued for? $4000 4. Who is the original creditor? (if not the Plaintiff) CHASE BANK USA 5. How do you know you are being sued? (You were served, right?) SERVED 6. How were you served? (Mail, In person, Notice on door) IN PERSON 7. Was the service legal as required by your state? YES as far as i know Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? They mailed one letter saying i owed them money. i responded with something to the theme of, who are you and how do i owe you money. Show me proof and i will establish a payment plan 9. What state and county do you live in? CA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) im within statute of limitations i think 11. What is the SOL on the debt? To find out: CA listed as 4 Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). current status is Jury trial set for january, last action was DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT TRIAL CCP98 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) yes, they said that the debt appeared valid 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. i asked them to validate debt. not sure if it was the right way though. I did request the credit agency to do debt validation and they said it appeared valid 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Ive already answered with a general denial Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. exhibits are as follows : generic member agreement with handwritten chase an no sig ; bill of sale with no account number or name ; old credit card statements ; affidavit in lieu of live tetimony (latest) 17. Read this article: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits So right now i was going to put a motion in limine (after i reasearch the format) and motion to strike the exhibits for hearsay, lack of standing, a few other points i have compiled. I saw this thread and im not sure if the defendant just left all the evidence and compiled a pre trial brief as indicated http://www.creditinfocenter.com/community/topic/311682-they-quit-dismissed-with-prejudice/ the scenarios is exactly the same except i am in California. It even has the same witness I also want to know how to look up other cases in california to use as reference - or am i allowed to reference the colorado cases the defendant used.?