Jump to content

Sample Motions, Forms, Affirmative Defenses


Recommended Posts

  • 3 weeks later...
  • 2 weeks later...
  • 2 weeks later...
  • 2 weeks later...

:confused:Any advice on kansas statutes, affifmative defenses, and what to do when your credit report lists the attorney/JDB as only a CA, with the comments section of the CR saying "chargeoff or collection, placed for collection" but the JDB/ATTORNEY/CA lists themselves as the attorney for the alleged OC for a list of about ten different items , half my husband's, half mine, (not sure they are accurate at all), without a doctrine of neccessities, asking for attorney fees, interest, costs. The attorney/jdb is listing the OC AS THE plaintiff, but my CR contradicts this. It is a company that is torturing my life! Anyone heard of KRAMER and Frank? Help, help, help, please, please, please? Oh, and we moved just before getting serv when we went back for some final belongings. In our initial response, we gave them our correct address, they have ignored it, and are not sending us the detrimental paper work they are obviously sending to the county? I need help in whatever way possible. I can not afford an attorney, and I believe I have counter claims, please help?

Link to comment
Share on other sites

It would help if you would start a thread in "Is There a Lawyer in the House". More people will see your thread there.

Also, please copy and answer the questions in the following link, and post them in your new thread.

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

  • Like 1
Link to comment
Share on other sites

http://www.creditinfocenter.com/community/topic/317482-need-fast-help-court-next-week/#entry1205384(Arizona Opposition to Summary Judgment)

 

http://www.creditinfocenter.com/forums/there-lawyer-house/311922-sued-collection-agency-must-fight-post1145369.html#post1145369'>http://www.creditinfocenter.com/forums/there-lawyer-house/311922-sued-collection-agency-must-fight-post1145369.html#post1145369

http://www.creditinfocenter.com/forums/1142823-post11.html'>http://www.creditinfocenter.com/forums/1142823-post11.html

http://www.creditinfocenter.com/forums/there-lawyer-house/311160-need-help-72-yr-old-grandma-served-broward-county-florida-post1138364.html#post1138364'>http://www.creditinfocenter.com/forums/there-lawyer-house/311160-need-help-72-yr-old-grandma-served-broward-county-florida-post1138364.html#post1138364

http://www.creditinfocenter.com/forums/there-lawyer-house/307888-response-bill-particulars-post1138246.html#post1138246'>http://www.creditinfocenter.com/forums/there-lawyer-house/307888-response-bill-particulars-post1138246.html#post1138246

http://www.creditinfocenter.com/forums/there-lawyer-house/310777-help-discovery-needed-against-midland.html#post1132212'>http://www.creditinfocenter.com/forums/there-lawyer-house/310777-help-discovery-needed-against-midland.html#post1132212

http://www.creditinfocenter.com/forums/1129946-post83.html'>http://www.creditinfocenter.com/forums/1129946-post83.html

http://www.creditinfocenter.com/forums/there-lawyer-house/310449-asking-advice-missouri-resident-post1128840.html#post1128840'>http://www.creditinfocenter.com/forums/there-lawyer-house/310449-asking-advice-missouri-resident-post1128840.html#post1128840

http://www.creditinfocenter.com/forums/there-lawyer-house/307067-being-sued-midland-llc-also-new-2.html#post1121305'>http://www.creditinfocenter.com/forums/there-lawyer-house/307067-being-sued-midland-llc-also-new-2.html#post1121305

http://www.creditinfocenter.com/forums/there-lawyer-house/309532-motion-quash-subpoena-preserve-objections-trial-appeal.html#post1119991'>http://www.creditinfocenter.com/forums/there-lawyer-house/309532-motion-quash-subpoena-preserve-objections-trial-appeal.html#post1119991

http://www.creditinfocenter.com/forums/1122217-post91.html'>http://www.creditinfocenter.com/forums/1122217-post91.html

 



That is the ones I have posted. Read the threads also. Thank you

Edited by Seadragon
  • Like 3
Link to comment
Share on other sites

Seadragon, I am saying a prayer for you every hour today. This is exactly what EVERYONE should be doing: POST YOUR REDACTED MOTIONS!!!

We need to build a HUGE library of motions, doesn't matter how redundant, one message base for EACH AND EVERY STATE, so people can use the motions and other filings that others provide, improve on them and RE-POST THEM TO THEIR RESPECTIVE STATE FORUM.

Let's get organized, People!

Too much time is spent by newbs just trying to learn the ropes. I say, let's just give people the TOOLS they need to at least buy themselves some peace of mind so that they aren't so bogged down by the PROCESS and have time to learn what they are doing as they go along.

The best way to learn is BY EXAMPLE. So POST YOUR EXAMPLES!! More more more!

Every state with one forum posting, fill it with documents, templates, etc.

The way this site evolved presents a backwards process for people coming here for help: first you must wade through pages and pages and pages of people asking for this, getting responses in hit and miss fashion and then finally you start to piece together the thing you need to write.

LET'S RE-STRUCTURE, STARTING NOW!

Post sample motions, put a little explanation to them. Describe how to use them. Post the case law cites. GIVE THE EXAMPLE, and let others learn by them.

ONE MESSAGE BASE FOR EACH STATE, PLEASE!

It will make this SOOO much easier for everyone and collectively we will defeat these bastards! Not everyone needs to be a lawyer! It helps, sure, but in most cases, all one needs is a simple response of some sort to make the lawyers go away. So let's post the simple responses, to give to our brothers and sisters in LOVE the SANITY and TIME they need to figure out what they are doing.

WHO IS WITH ME? Let's see it by POSTING THOSE REDACTED PAPERS!!!

Come on, now!

THANK YOU SEADRAGON!!!!!!!!!!!!!!!!

  • Like 6
Link to comment
Share on other sites

WIKI! WIKI! SOMEONE START A PRO SE WIKI ALREADY, DAMN IT!

I'd do it but I'm bogged down with 4 credit card lawsuits, IRS collections and summonses, traffic ticket, foreclosure, and other little ****.

A PRO SE WIKI is the ultimate solution for freedom fighters. Post all the motions, notes, trial strategies, law discussions, transcripts, etc. into the wiki, and have an accompanying forum for discussion. In this way, one need only post a link to the wiki page with the motion, document, etc.

The wiki software that Wikipedia uses is available for free. All we need is a place to host it:

MediaWiki

The features and functionality are all already there to support everything I've suggested and more: the ability to post files (like .doc or .odt or .tiff), ease of editing, others can edit/collaborate. Why has no one done this already?

SOMEBODY DO THIS, DAMN IT! I JUST DON'T HAVE THE TIME!!

Link to comment
Share on other sites

Seadragon, check your cite for CCP 98©. 98© doesn't exist. I think that's supposed to be 98(a):

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

Link to comment
Share on other sites

I started with Seadragon's stuff and ended up with this. It's still not entirely tight. There are some areas that need work. For instance, I didn't have time to delve into "Cooley v. Superior Court (2006) 140 Cal.App.4th 1039", which I took verbatim from Seadragon's work and just assumed it meant what I hoped it did (it didn't, but close enough to not be seen as a total douchebag by the judge) and I'm only assuming the cites to "California Forms of Pleading and Practice" are correct, as well as all the cites relating to section I where motions in limine are defined. No surprises if you do your own research. Always check the cites! Anyone can cite a document but not all do-it-yourself lawyers do it properly. I find so many bad citations that are relied up by people that I would've thought would know better in otherwise strong documents that, if caught, would destroy their case. So always do your own due diligence and check those cites!

Just in general, I'm not a guy well-versed in the California Code of Civil Procedure, Evidence Code, etc. I've only studied them to the extent that I needed to understand a particular statute for a particular reason but beyond that my knowledge of the code is weak. I wrote my document based on my superior knowledge of the common law and contracts in general, and am assuming the basic tenets are represented somewhere in the CCP, civil code, evidence code, etc. and that as a pro se the judge will give me leeway (I didn't cite that one supreme court ruling that held that a pro se's pleadings are to be understood by their corresponding legal maxims or principles even if not stated in full).

I started on this at 6 in the morning and finished it in the nick of time to have it sent off to the post office for service by 5pm. I feel it's "good enough" but by no means a slam dunk. I think it's good, but we'll see what the judge says. It may not be good enough to get the case thrown out. On the other hand, the other side may decide it's too much trouble for under $10K of debt and go away. And I still haven't done the answer to their MSJ.

I offer this here without any warranty express or implied. It may not be what you're looking for but it's a start. That's the biggest benefit I got out of Seadragon's stuff: someplace to start.

Thanks, Seadragon!

START HERE

Name (Pro Se)

c/o 123 Address

Somewhere, California

415/xxx-xxxx (for official court use only)

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE

CAPITOL ONE BANK (USA), N.A. ) Case No. xxxxxxxx

)

Plaintiff, ) DEFENDANT'S NOTICE OF MOTION,

) MOTION IN LIMINE, MEMORANDUM

vs. ) OF POINTS AND AUTHORITIES, AND

) DECLARATION IN SUPPORT THEREOF

(NAME) )

) DATE: xx/xx/xxxx

Defendant ) TIME: 12:00 PM

____________________________________) DEPT: xxx

TO ALL PARTIES AND WITNESSES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that Defendant intends to move this court, on xxxxxx x, 2012 in Department xxx of the Hayward Hall of Justice at 12:00 pm for an order:

1. Excluding the Declaration of (Robo Declarant) on the grounds that:

a. the Declaration does not comply with CCP §98(a)

b. the Declaration contains self-contradicting averments and impeaches itself

c. the Declaration appears to be potentially fraudulent

2. Barring submission of evidence not propounded before xxxxxxxx x, 2011, the date Plaintiff served their response to Defendant's request for a Bill of Particulars, and barring substitution of a witness other than (Robo Declarant), based on Code of Civil Procedure § 454.

The motion rests on the ground that the evidence submitted by Plaintiff is inadmissible under California Evidence Code and Code of Civil Procedure and is supported by the accompanying memorandum of points and authorities, Defendant's declaration, the papers and records on file herein, and on such further oral and documentary evidence as may be presented at the hearing of this motion.

Respectfully submitted on this xxth day of xxxxxx, 2012.

________________________________

(Name), Defendant

In Propia Persona

Edited by MagnusTheDestroyer
oops
Link to comment
Share on other sites

Notes for the Points and Authorities below this post:

Other notes: (as I read through to redact)

- I'm not so sure CCP 98 applies in a Demand for Bill of Particulars. It seems on the face of it to mostly apply to depositions and such. This may not be a strong argument.

- I make several assertions without cites for foundation (i.e. when hammering on the declarant in part II). This would be strengthened mightily with proper cites. Perhaps someone else can offer some?

- I made certain statements in the Declaration in Support of Motion in Limine (found in a subsequent posting) that I incorporate by reference in this document. The reason I do that is because the Declaration is based on personal belief, which requires an affidavit, or at least a sworn declaration, which the P&A is not. So I put certain beliefs and averments into the Declaration as a sworn document, then incorporate it here by reference to avoid the embarrassing mistake of placing personal belief into an unsworn document (and I didn't want to make this document sworn...see how that works? There's logic in there...somewhere).

- case law cites for section III on CCP 454 definitely need to be included to give that part some bite. I'm sure it's not as simple as I try to make it out to be, but then that's a symptom of not enough time. Sometimes you just have to wing it as best you can, eh? :)

- the style is copied from the attorney's paperwork that I was responding to. It was clean and worked well for my purposes to I adopted it. You can use whatever style you want in your numbering and lettering as that is not controlled by any rules of court (as far as I know) but all I can offer is keep it simple, clean, and consistent.

Edited by MagnusTheDestroyer
oops
Link to comment
Share on other sites

Name (Pro Se)

c/o 123 Address

Somewhere, California

xxx/xxx-xxxx (for official court use only)

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE

CAPITOL ONE BANK (USA), N.A. ) Case No. xxxxxxxxxxx

)

Plaintiff, ) POINTS AND AUTHORITIES IN

) SUPPORT OF MOTION IN LIMINE

vs. )

)

MARIA C ISMAIL )

) DATE: xx/xx/xxxx

Defendant ) TIME: 12:00 PM

____________________________________) DEPT: xxx

I. CALIFORNIA JURISPRUDENCE RECOGNIZES MOTIONS IN LIMINE

“In limine is defined as ''on or at the threshold; at the very beginning; preliminarily'' [black's Law Dictionary (5th ed.) (1978)]. A motion in limine is a motion directed to the judge outside the presence of the jury to limit or exclude certain evidence or testimony in anticipation of such references by adverse counsel or witnesses (see Cotchett & Cartwright, CALIFORNIA PRODUCTS LIABILITY ACTIONS, Ch. 10, Trial, § 10.01[6] [2d ed. Matthew Bender]). Such a motion generally is brought at the beginning of trial, although it also may be brought during trial [People v. Morris (1991) 53 Cal. 3d 152, 188, 279 Cal. Rptr. 720, 807 P. 2d 949; Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 56 Cal. Rptr. 2D 803].” California Forms of Pleading and Practice Vol. 33 Ch.373 §373.11

Motions in limine are well-established in California Jurisprudence: “The power of a California court to grant a motion in limine, although not specifically provided for by statute, is found in the court's inherent power to provide for the orderly conduct of proceedings before it, to control its process and orders to make them conform to law and justice, and to exclude irrelevant evidence whose probative value is outweighed by the probability that its admission will create undue prejudice, confuse the issues, or mislead the jury [Code Civ. Proc. § 128(a)(3) [Deering's],(8) [Deering's]; see Evid. Code §§ 350 [Deering's], 352 [Deering's]; Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451, 238 Cal. Rptr. 339; Davis, ''Pre-Trial Motions to Suppress Prejudicial Matters,'' 4 Trial Lawyers Q. 43, 45 (1967)” California Forms of Pleading and Practice Vol. 33 Ch.373

II. PLAINTIFF'S DECLARATION IS DEFECTIVE AND INADMISSIBILE

Plaintiff has submitted a DECLARATION OF PLAINTIFF IN SUPPORT OF SUMMARY JUDGMENT dated (Month) (day), 2011 (hereafter “Declaration”) that includes numerous defects which precludes it from being admissible as evidence in this case. Said Declaration does not comply with California Code of Civil Procedure § 98(a), which requires that the declaration include “a current address of the affiant that is within 150 miles of the place of trial”. Declarant's statement avers under penalty of perjury to have been executed at “Chesterfield County, VA”, which according to Google Maps is approximately 2,900 miles away from Alameda County.

Declarant claims to be “employed” by Plaintiff in the capacity of what appears to be a “Authorized Agent”, but does not aver to be an officer of the corporation or otherwise identified as having a specific scope of employment that would give her personal knowledge of the account.

Nowhere does Declarant aver that she has personal knowledge of the account from its inception but has merely "reviewed all attachments", which at best represents an incomplete record of an account, and claims "they are true and faithful reproductions of defendant's electronic file".

Declarant attempts to introduce hearsay evidence into the proceedings without the ability of the trier of fact to evaluate the credibility of the witness. Declarant's statements are too generalized to provide the defendant and the court necessary information to confirm the physical attributes and source of the documents in order to determine their authenticity. Defendant hereby incorporates in full by reference Cooley v. Superior Court (2006) 140 Cal.App.4th 1039 (wherein the authenticity of evidence per California jurisprudence is addressed).

Declarant further claims: “A true and accurate copy of the Agreement which was in effect at all times pertinent herein, is attached hereto, marked Exhibit '1'...” (Declaration of Plaintiff in Support of Summary Judgment, page x, lines xx-xx). The referenced Plaintiff's “Exhibit 1” appears to be a photocopy of a document with the title, “Capital One Customer Agreement” and is dated “2010”. Reviewing Plaintiff's “Exhibit 2” (on page 1) shows a statement dated “Mar. 01 – Mar. 28, 2010” with a “Previous Balance” of “$x,xxx.xx”, inferring that the account predates that particular statement by some indeterminate period of time.

Based on the above, it can be reasonably concluded:

1. Declarant offers no evidence that Plaintiff's Exhibit 1 was ever provided to, or received by, Defendant, and Defendant is without knowledge of ever receiving such;

2. Declarant offers no evidence that she has personal knowledge of the account itself and therefore her testimony is mere hearsay;

3. Declarant impeaches herself and any claim of “personal knowledge” by averring that Plaintiff's Exhibit 1 is a “true and accurate copy of the Agreement which was in effect at all times pertinent herein”, while Plaintiff's evidence clearly demonstrates that the account predated 2010 and so therefore the agreement proffered cannot have been “in effect at all times pertinent herein”.

Furthermore, incorporated herein by reference as if in full is Defendant's Declaration in Support of Motion in Limine, in which additional issues regarding the admissibility of Plaintiff's declaration are raised on Defendant's belief.

III. PLAINTIFF IS BARRED FROM INTRODUCING ADDITIONAL EVIDENCE

Per California Code of Civil Procedure § 454, a party to an action “...must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof.”

Attached as Exhibit 1 to Defendant's DECLARATION IN SUPPORT OF MOTION IN LIMINE is a copy of the “Demand for Bill of Particulars” that was sent to Plaintiff's attorney on record by mail. Plaintiff's attorney responded formally to Defendant's demand on or about November 9, 2011, with PLAINTIFF'S RESPONSE TO DEMAND FOR BILL OF PARTICULARS (marked as Defendant's Exhibit 2) along with a copy of the documents filed with the court and identified as as “Exhibit 1” and “Exhibit 2” in Plaintiff's DECLARATION OF PLAINTIFF IN SUPPORT OF SUMMARY JUDGMENT.

In their response, Plaintiff did not provide “a copy of the account” per CCP § 454, as discussed in part II (above). Therefore, Plaintiff should be barred from introducing additional evidence and furthermore should be barred from substituting their witness for the same.

CONCLUSION

Defendant objects to the Declaration on the above stated grounds and for good cause shown moves the court to find that the Declaration of (Robo Declarant) and all attached exhibits be stricken to prevent the undue prejudicing of and injury to Defendant by the introduction of unfounded and hearsay evidence at trial.

WHEREFORE, Defendant prays that this motion be summarily granted and this Court enter an order striking Plaintiff's RESPONSE TO DEMAND FOR BILL OF PARTICULARS and further preclude Plaintiff from presenting any more evidence, which would only serve to prejudice the rights of Defendant.

Respectfully submitted this xxth day of xxxxxxxx, 2012.

________________________________

(Name), Defendant, In Propia Persona

Edited by MagnusTheDestroyer
redact redact redact
Link to comment
Share on other sites

This is where I put statements that are my "belief" and that must be sworn to in order to be proper for submission as part of the motion in limine. I used this declaration to bring forth the talk of robo-signers in the credit card industry, and to bolster my belief in the P&A that the declaration was merely robosigned. I can't say for a fact it is, but in my true opinion (as explained above and below here) it is my belief that it probably was, and so I express that in this document, swear my name to it, and reference it in the P&A as further support for my motion. Not sure this is perfectly legit but it doesn't seem to break any of the rules of consistency that I can think of with regards to motions and such.

I'm a software guy, so to me this is all just software. It's programming. You find the right statements, library calls, functions, put it all together, make sure the syntax is correct, make sure your punctuation marks are proper and closed...it's the same thing as writing a program. When you read through it, it's like running the program. Assuming your brain is working right, you should be able to read through the "program" and at the end have the result that you wanted. If not, if your arguments don't support your conclusion, that's a bug, and you need to go back and re-work that until you get it right. And you institute error-trapping by adding citations to bolster the assertions. Judge thinks you're in error? Nope, check the cite (the error trap): all is good, keep on processing. Anyway, couldn't help but notice the analogies. A lot of "pro se" guys I know are former programmers. It's a natural fit.

START HERE

Name (Pro Se)

c/o 123 Address

Someplace, California

xxx/xxx-xxxx (for official court use only)

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE

CAPITOL ONE BANK (USA), N.A. ) Case No. xxxxxxxx

)

Plaintiff, ) DEFENDANT'S DECLARATION IN

) SUPPORT OF MOTION IN LIMINE

vs. )

)

(NAME) )

) DATE: xx/xx/2012

Defendant ) TIME: 12:00 PM

____________________________________) DEPT: xxx

I, (NAME), declare:

1. That the attached Exhibit 1 is a true and correct copy of the “Demand for Bill of Particulars” that Defendant served on Plaintiff on xxxxxxx x, 2011, and that Defendant was lawfully served the same.

2. That the attached Exhibit 2 is a true and correct copy of Plaintiff's response to Defendant's demand for Bill of Particulars.

3. That Defendant is aware of notorious allegations in the contemporary news media about the nation's banks, including those that issue credit cards, employing fraud and deceit in the pursuit of debt collection. To educate the court as to this ongoing alleged fraud, Defendant has attached Exhibit 3, an article entitled, “JPM Chase Quietly Halts Suits Over Consumer Debts”1, that appeared in the online publication American Banker. And while the article is primarily about JPMorgan Chase, it is Defendant's belief on first hand observation that it is common and public knowledge that the American news media has been reporting almost day after day for several years now the transgressions committed by virtually all large and small operators in the banking industry, and it is so reported that the allegations such as those made in the American Banker article are known to not be limited to any one particular institution but is endemic throughout the industry. Defendant makes no such accusation here against the plaintiff, yet there are to be found and Defendant brings to this court's attention several anomalies in Plaintiff's proffered “Declaration in Support of Summary Judgment” that render it suspect in Defendant's eyes. To wit:

1. Declarant's title is so hastily written as to leave it almost undecipherable without considerable thought and pondering. It caused Defendant quite some consternation and study to finally determine that the title read, “Authorized Agent”. On an important document such as this, where an accusation of serious import is being made in a legal forum, it is Defendant's belief that it is generally accepted and agreed in American jurisprudence that an accuser would want to take great caution in insuring their allegations are completely legible. Instead, it is Defendant's observation that this writer seems rushed, as if perhaps they had many more such declarations to sign during their shift, and that such hasty writing might further indicate a rushed state of mind that might prevent a declarant from fully comprehending the document before them that they are executing.

2. Defendant addresses and demonstrates in her POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE a lack of integrity between what the Plaintiff's Declarant avers in her statement and the actual nature of the documents attached thereto. It is Defendant's belief that such mistakes further indicate a lack of actual comprehension by the declarant as, again, it is Defendant's belief that it is generally accepted that a serious accusation such as the present case calls for prudence and care in making such allegations and Defendant has shown that there is a question as to whether such prudence and care was taken here.

3. Defendant draws attention to what Defendant believes may well be a forged signature for (Robo Declarant), as it seems to be in the form of the letters “R” and “D”, or perhaps a squiggle, and leaves Defendant with a deeply felt sense of impropriety, based upon Defendant's knowledge and belief through her study of the banking industry in the United States and the shenanigans they have been involved with since the banking system began to collapse in 2007.

I declare under penalty of perjury that the foregoing statements are true and correct.

Executed at Somewhere, Alameda County, California, on this xxth day of xxxxxx, 2012.

________________________________

(Name), Defendant

In Propia Persona

(footnote 1) The article can be accessed on the internet at the URL JPM Chase Quietly Halts Suits Over Consumer Debts - American Banker Article

  • Like 1
Link to comment
Share on other sites

cobble together a case with cases that address the points you are making. There are no cases on point and I think judges are using that to make rulings that are inconsistent with established case law. For the record I lost my case and had to appeal(not very appealing) BUT the MIL did make the plaintiff's in that case (an OC) dismiss. As in all things mileage will vary. and don't forget Elkins v. Superior Court that case actually makes declarations in a contested trial where the witness was subpoenaed not allowed

I started with Seadragon's stuff and ended up with this. It's still not entirely tight. There are some areas that need work. For instance, I didn't have time to delve into "Cooley v. Superior Court (2006) 140 Cal.App.4th 1039", which I took verbatim from Seadragon's work and just assumed it meant what I hoped it did (it didn't, but close enough to not be seen as a total douchebag by the judge) and I'm only assuming the cites to "California Forms of Pleading and Practice" are correct, as well as all the cites relating to section I where motions in limine are defined. No surprises if you do your own research. Always check the cites! Anyone can cite a document but not all do-it-yourself lawyers do it properly. I find so many bad citations that are relied up by people that I would've thought would know better in otherwise strong documents that, if caught, would destroy their case. So always do your own due diligence and check those cites!

Just in general, I'm not a guy well-versed in the California Code of Civil Procedure, Evidence Code, etc. I've only studied them to the extent that I needed to understand a particular statute for a particular reason but beyond that my knowledge of the code is weak. I wrote my document based on my superior knowledge of the common law and contracts in general, and am assuming the basic tenets are represented somewhere in the CCP, civil code, evidence code, etc. and that as a pro se the judge will give me leeway (I didn't cite that one supreme court ruling that held that a pro se's pleadings are to be understood by their corresponding legal maxims or principles even if not stated in full).

I started on this at 6 in the morning and finished it in the nick of time to have it sent off to the post office for service by 5pm. I feel it's "good enough" but by no means a slam dunk. I think it's good, but we'll see what the judge says. It may not be good enough to get the case thrown out. On the other hand, the other side may decide it's too much trouble for under $10K of debt and go away. And I still haven't done the answer to their MSJ.

I offer this here without any warranty express or implied. It may not be what you're looking for but it's a start. That's the biggest benefit I got out of Seadragon's stuff: someplace to start.

Thanks, Seadragon!

START HERE

Name (Pro Se)

c/o 123 Address

Somewhere, California

415/xxx-xxxx (for official court use only)

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE

CAPITOL ONE BANK (USA), N.A. ) Case No. xxxxxxxx

)

Plaintiff, ) DEFENDANT'S NOTICE OF MOTION,

) MOTION IN LIMINE, MEMORANDUM

vs. ) OF POINTS AND AUTHORITIES, AND

) DECLARATION IN SUPPORT THEREOF

(NAME) )

) DATE: xx/xx/xxxx

Defendant ) TIME: 12:00 PM

____________________________________) DEPT: xxx

TO ALL PARTIES AND WITNESSES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that Defendant intends to move this court, on xxxxxx x, 2012 in Department xxx of the Hayward Hall of Justice at 12:00 pm for an order:

1. Excluding the Declaration of (Robo Declarant) on the grounds that:

a. the Declaration does not comply with CCP §98(a)

b. the Declaration contains self-contradicting averments and impeaches itself

c. the Declaration appears to be potentially fraudulent

2. Barring submission of evidence not propounded before xxxxxxxx x, 2011, the date Plaintiff served their response to Defendant's request for a Bill of Particulars, and barring substitution of a witness other than (Robo Declarant), based on Code of Civil Procedure § 454.

The motion rests on the ground that the evidence submitted by Plaintiff is inadmissible under California Evidence Code and Code of Civil Procedure and is supported by the accompanying memorandum of points and authorities, Defendant's declaration, the papers and records on file herein, and on such further oral and documentary evidence as may be presented at the hearing of this motion.

Respectfully submitted on this xxth day of xxxxxx, 2012.

________________________________

(Name), Defendant

In Propia Persona

Link to comment
Share on other sites

From Seadragon's motion in limine example:

"8. Barring the use of a pointer or other object in hand while speaking."

Why?

To prevent the use of an object to harrass a defendant by the use of subliminal messaging much like a conductors baton, some defendants have issues with abusive men and an object in hand is tantamount to saying I am beating you into submission.

Look into cases you have seen an object in hand distracts the judge and jury away from an attorneys face while they are lying so that the same will not see indicators of lying.

This can be used to your advantage in court where a pen can be used in the same manner keep the pen in your left hand and don't make big gestures but small movements and where you touch it with both hands while the judge speaks.

Link to comment
Share on other sites

Seems like a stretch. I'd want to see a successful argument where someone pulled this off without he judge deeming it frivolous. My guess is that it would have to be motioned for with pretty strong backing arguments.

All this is complete BS anyway. Since my loss to Chase last year I have been focusing on common law and more recently administrative procedure, both very powerful tools in fighting off scumbag CC companies, because they give you way more rights and leeway than the equity court you end up in when you answer to a complaint.

I'm currently "testing" some theories with non-statutory abatements. I have a suit pending from Midland that I have yet to answer and it's probably past the 30 days limit to respond since I got served. However, I'm not worried about it. If Midland motions for summary judgment then I'll just show up at the hearing with an abatement (common law), or a motion to strike (which is a form of statutory abatement from what I've so far gathered).

I'll be writing more about this as we go on. Everyone here has been wasting time trying to learn all the ins & outs of equity court. All you really learn in the end is that the deck is stacked against you. The trick is to never allow yourself to enter into their jurisdiction. Once you are then they have you and you have to battle your way out. But by staying clear of their jurisdiction you can lob molotov cocktails from a safe distance and watch as they run for cover.

The latest I'm looking into is a Writ of Error Coram Nobis. This seems to be a nuclear legal device. It basically exposes the fraudulent courts as being in foreign jurisdiction, therefore they have no jurisdiction over us because we have 11th Amendment immunity. I can't say I understand it totally as I'm still just scratching the surface on it, but if you're interested search on YouTube or the internets for "Rod Class Coram Nobis", or start at Rod Class Official Website

Link to comment
Share on other sites

  • 2 weeks later...
  • 2 weeks later...
  • 2 months later...

Hello I need some help filing a Motion to Dismiss over a credit card debt in

Michigan I have all my points and authorities documents including a Exhibit.

My question is I am not sure of the correct form to use to request the

hearing for the motion to dismiss can someone please guide me I went to the court website that has the forms and found a notice of hearing and motion but i want to make sure this is the correct form and does it have to be notarized. any advice is appreciated

Share

Share this post on Digg

Del.icio.us

Technorati

Twitter

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...