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Found 7 results

  1. Introduction: Sued by JH Debt Portfolio Equities, LLC (JDB2), debt purchased from Oliphant Financial, LLC (JDB1) whom purchased from OC (Capital One) Account and Debt are unknown to me (Pro Se Defendant) Responded to Petition with General Denial and Special Exceptions, requested Disclosures from Plaintiff (required multiple additional requests to comply to get documents) Responded to Plaintiff's Request for Admission with Denials. Current Delimma: Plaintiff (JDB2) filed Motion for Summary Judgment. In the motion the Plaintiff specifically refers to Bussiness Record Affidavit and an Affidavit for Attorney Fees. The motion fails to enumerate the facts at issues and which pages of attached evidence address the facts, it does have documents attached as evidence, all of which fail to show a direct link between the Plaintiff and account. (Attached) How do I specify issues of fact and objections if the motion is stated in a general manner? Strategically, if I go through all of the pleadings and motion and identify related evidence + weaknesses I do myself a disservice. I would be stating the grounds for their case, giving them all the info they need to strengthen their case, and it providing them with information regarding my strategy, knowledge base, and abilities. Can someone please help me with how best to address this issue? I know that I can request revisions by specifying things that are vague or ambiguous, but that my request is too general it will be denied, and am again unsure because their entire motion is too vague and ambiguous. I welcome your related experiences and advice. Thank you in advance. JDB-MSJ.pdf
  2. Hi. I have to go to court next week to defend myself against a Motion for Summary Judgement from Midland Funding. I have never been to court and do not know what to expect. Following is link to the Complaint, my Answer, Plaintiff's Motion for Summary Judgement and my Objection to Motion and Request for Documents. Also please see my responses to common questions below. Thank you in advance for any advice you might offer. *******EDIT - If you can't open files below see other link in my next post below ************ Complaint: https://www.evernote.com/shard/s447/res/9d65396d-9099-4f47-9436-1b3c79784d0b My Answer to Complaint: https://www.evernote.com/shard/s447/res/41cff245-a48c-4b0c-b1ae-0c2c479497d7 Plaintiff’s Motion for Summary Judgement: https://www.evernote.com/shard/s447/res/4ea10ea3-a221-4f66-99bb-f4ff5f7e9010 My Objection to Motion: https://www.evernote.com/shard/s447/res/3d47dcdc-fe54-421f-9ab7-54ee5fd7cf9f My Request for Documents: https://www.evernote.com/shard/s447/res/82843a43-805b-4e74-8b54-355e4c1bdd4f 1. Who is the named plaintiff in the suit? Midland Funding 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Lustig, Glasser & Wilson from Massachusetts 3. How much are you being sued for? $1527 (about $315 of that is fees tacked at charge off) 4. Who is the original creditor? (if not the Plaintiff) GE Capital Retail Bank (TJ Maxx credit card) who then sold to Synchrony Bank 5. How do you know you are being sued? (You were served, right?) Yes, served - see below- 6. How were you served? (Mail, In person, Notice on door) Husband answered door and was given papers while I was upstairs 7. Was the service legal as required by your state? I believe so, yes 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? None with me but my 11 year old son may have answered a call from them once 9. What state and county do you live in? RI 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never did. Called in TJ Maxx in December just around Christmas to pay bill but I was told I could not as it had just been charged off. 11. What is the SOL on the debt? To find out: 10 years in RI 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). Served and I answered complaint. Midland immediately sent Motion for Summary Judgement. I filed an Objection to Motion for SJ and I requested Documents. Hearing for Motion is next week, 9/22/16. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 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. NO 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? No Questionnaire. Re: Midland’s claims, please see the link to Complaint below as there are 18 counts 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. Affidavit 1: “Legal Specialist” with access to records for Midland Credit Management Affidavit 2: “Affidavit Documentation Specialist” of Synchrony Bank Bill of Sale Seller Data Sheet A last document that looks like a TJ Maxx bill with total amount charged off
  3. I'm writing up my Objection to Plaintiff's Declaration in Lieu using @h8spleadingpaper's objection as a exemplar. I have a few questions and am hoping the California folks can help me out. For Argument A ("Failed to Comply With CCP Section 98") H8 states the declarant "does not say where the declaration was executed. He also does not give an address in California where he may personally be served." For my case, the declarant does give an address in La Jolla, CA where "this affiant is available for service of process ... during the 20 days immediately prior to trial. If service is of process cannot be effectuated at the aforementioned address, I authorize the Defendant to contact attorney XXX for purposes of effectuating proper service on my behalf." Also, the last line of the Declaration says "Executed on this day XXX, at San Diego, CA." So, I'm thinking I should either strike Argument A or rewrite it such that it only says the declarant was unreachable* by the process server. * The subpoena will be issued on Monday and I'm guessing the declarant probably won't be available, but will know for sure soon enough. I go to trial this week as well, so am getting the subpoena in just under the wire. I won't have 5 days to file the objections with the court, but do plan on overnighting a copy to PRA's lawyers so that they are aware I plan to fight back with gusto. Is this correct? -- PS: I'm terribly behind. I have two cases in motion - but they will be months apart. Unfortunately, I haven't been organized and missed my chance to do the preliminary stuff on suit #1. Nevertheless, I am inspired by those that have crammed a lot of learning into a short time and come out the other side. I'm determined not to let being behind stop me from trying. (Also, I worry that not fighting this will send the wrong message when it comes to suit #2. So, I'm in it to win it.) The one thing I have done is read, read, read this forum! I've seen that the members here will help people who are willing to do the work - and I am willing to work hard. Will probably have more questions over the next week, but I'll keep them all contained in this thread. Thanks in advance!
  4. A motion in Limine A motion to Strike An objection Does one pack more of a punch? Are they are filed the same way? Thanks
  5. In the process of preparing my objections to evidence that was sent to me and I have no clue how to prepare it. Can someone send me some examples of MIL or objections to evidence ( affidavits). Subpoena'd the Custodian of Records and she was served today, so not sure if I still include the objection to the CCP98 if not then all i have to object to are the affidavits thats why i"m in need of example of an objection that is tailor to the affidavits and not so heavily on the CCP98 (being that she was served today) Correct me if I'm wrong. Thanks all
  6. 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.
  7. Business Records and Hearsay Objections, court procedure? I would like to ask a procedural question. If a plaintiff attempts to introduce a “business record”, and the defense objects that it is not qualify as a business record, but the plaintiff has the required support for admitting said business records...how would this typically be handled in a courtroom? Would the judge sustain the defense’s objection, but then offer the plaintiff an opportunity to demonstrate compliance with a business records exception? Is there such a thing as 'tentatively sustained'? Or would the judge defer on a ruling? I guess what I'm trying to figure out is...how could a custodian validate a business record at trial if the business record can’t be introduced until it’s been validated by the custodian...I know there must be a break in this circuit somewhere. Thanks!