Calawyer...Motion in Limine Granted!

[jewel1325 13]

Hello everyone…and special thanks to Calawyer!

I had my day in court today. I was literally shaking in my boots! The judge finally called my case. The rent a lawyer tells him that he would like to proceed on a CCP 98 declaration in lieu of live testimony. I then proceeded to tell the judge that the declaration did not meet the requirements of CCP 98, and explained that the witness lives in Virginia. The address provided in the declaration for process of service within 150 miles would not accept the service of a subpoena duces tecum. I gave him the affidavit of the process server….and the tables turned. The judge pulled out his book and read CCP 98 and began to lecture the rent a lawyer about the requirements. After that he granted my motion in limine to preclude introduction of evidence at trial.

What I don’t get is that the rent a lawyer still wanted to question me after the judges ruling. His questions were easy though. He actually looked more nervous then me. At one point he even dropped his papers all over the floor. The judge even interrupted him on some of his questions and told him that it wasn’t relevant. The only thing is that I won’t know the judges ruling until a couple of weeks. He said that he would send it in the mail. He did make a nice comment though about me being prepared. I just hope he rules in my favor!

Thanks everyone for helping me through this process. I will keep you posted.

[1stStep 242]

That's awesome!! Great job!!

[calawyer 1,848]

YEAH!!!!!!!!!!!!

Win or lose, I am really proud of you.

If the MIL was granted, they do not have any evidence of the amount of the debt, do they?

[jewel1325 13]

Calawyer.....no they had no other evidence at all.

The judge asked the attorney if he had any other evidence prior to kicking the declaration out. The rent a lawyer responded that he didn't have any other evidence. The Judge then asked him if he had the bill of particulars that he had ordered. The attorney responded that he didn't have that either, and only had one invoice.

I'm hoping for the best! Calawyer thanks so much for all of your help! You are an angel! I feel good about how everything went today. Just wish the judge would have given his ruling.

Edited April 25, 2010 by jewel1325

[rikkivs 35]

So Jewel did you get a motion in limine to exclude the CCP 98 declaration OR did you do a motion in limine via CCP 454?

Please clarify.

Regardless, congrats. You were prepared and took this seriously and were rewarded for your efforts.

Best wishes with the future dealings in this case:)

Edited April 24, 2010 by rikkivs

[jewel1325 13]

rikkivs....my motion in limine was based on CCP 454.

I also tried to subpoena the witness at the address that he provided in his declaration. The address belonged to the JDB attorney's office and not the witness. The process server tried twice to serve the subpoena, and they refused to accept it both times. The process server sent me his affidavit regarding the attempts to serve. I told the judge that the declaration did not meet the requirements of CCP 98 as soon as the hearing started. The judge asked for the affidavit and looked it over. He then pulled out his civil code book to review CCP 98. He began to explain to the attorney that the witness did not have jurisdiction because he lived in Virginia and didn't provide an address within 150 miles for process of service. As a result, the declaration was stricken. He then asked the attorney if he had the BOP or any evidence. The attorney said that he only had one statement and no BOP. The judge then granted my motion in limine.

I sure hope I did everything right. Not only was I nervous, but everything was moving so fast. I did get to show my dispute letter sent to another JDB attorney 2 years ago for the same account, and also their response to my dispute stating that they were no longer pursuing collection per their clients request.

I will keep you posted. I'm hoping for good news!

[calawyer 1,848]

I sure hope I did everything right. Not only was I nervous, but everything was moving so fast. I did get to show my dispute letter sent to another JDB attorney 2 years ago for the same account, and also their response to my dispute stating that they were no longer pursuing collection per their clients request.

I don't think that matters. As I understand it, the declaration was rejected for failure to comply with CCP 98. The MIL was granted because plaintiff didn't comply with the Court's order re the BOP. So plaintiff's only evidence was whatever it got from you when you were called to testify. I'm sure you didn't offer any evidence about the amount of the debt, and the amount owing is an essential element of both causes of action, so I don't see how the plaintiff could possibly prevail.

[jewel1325 13]

You are absolutely right Calawyer with the CCP 98 declaration and the MIL.

The only thing left after that was for the rent-a-lawyer to question me, and I held firmly that I didn't owe the alleged debt.

[calawyer 1,848]

The only thing left after that was for the rent-a-lawyer to question me, and I held firmly that I didn't owe the alleged debt.

Then the plaintiff is toast.

[admin 896]

Alright jewel and calawyer!!

[goodguy2 10]

Then the plaintiff is toast.

burn baby burn!!!!!!!

[ADSOFT 48]

Hmm, so even if you get CCP 98 to rule out the evidence, and the motin in Limine, IF a lawyer shows up you should be prepared to get on the stand?

They did the same to BidSx, but the judge told the lawyer in that case that it would be tough to win with out a Bill of Sale.

Jewel what did the lawyer ask you?

I can't see what you could admit that would get past the BILL OF SALE requirement.

[rikkivs 35]

Because despite Jewel's diligence I don't think she won this case! However, she was able to get the motion in limine granted BECAUSE the plaintiff did not follow the court's motion to compel. This is key! Do a motion to compel and let them disobey a court order, then you can get sanctions and motions in limine and set them up to fail by degrees, increment by increment.

[InProPer 10]

Congrats Jewel, I am very happy for you, I am going through the same situation now and I like your style.

I was curious about the witness you were trying to subpoena. Was this the Affiant that signed the affidavit of sale?

Either way, congrats!

[GoDownSwinging 10]

Way to go! You've given everyone hope, knowing you can stick it to 'em

[aqui 10]

Congrats ..I'll definately follow your leads...i'm in a similar position and preping for trial after MTC BOP was granted and plaintiff can't produce...will do MIL and subpoenas....thanks for a sharing.

[Seadragon 840]

while judges may overlook the one mistake pointing out their case is a cardhouse is definetly a good approach.

I feel sorry for the appearance attorneys who have to take the brunt of the bad case going down flaming. But it is the reason they are sent. Judges won't make sanctions because they could be charged with bias. They are reticent about giving a pro per a win because they stick their heads in the sand or put the blindfold on when it comes to plaintiff's non compliance with a statute. Let a pro per miss a deadline and bingo default.

so Make sure you have a good trial brief to direct the court in what you are going to present let them know how the plaintiff messed up. research you JDB and find out when they usually file the declaration.

You see they file them with the court so 1 they have the documents ready for the appearance attorney and 2 it gives the court something to focus on when reading for the case if you have nothing there, they are going to root for plaintiff's.

[saint al 90]

We who are in Florida salute you! Be Blessed! S.A.

[debt_prose 10]

From what i understand in California, they won't even bother to answer BOP since they (OC & not JDB) sue you on "account stated" and TILA (Truth In Lending Act)... your thoughts? Anyhow, big congrats to jewel1325 on job well done w/ MIL

[bidasx 10]

Indeed, I received a Judgment for the Defendant based on CCP 98. Without the witness everything they have is hearsay. They then put you on the stand and try to get you to admit and validate all of their information for them. Unless you stayed up to date on the month to month details you surely don't have the knowledge nor records of the debt amounts or specific knowledge of the debt.

[calawyer 1,848]

From what i understand in California, they won't even bother to answer BOP since they (OC & not JDB) sue you on "account stated" and TILA (Truth In Lending Act)... your thoughts? Anyhow, big congrats to jewel1325 on job well done w/ MIL

Each JDB is different but they usually include several "common counts" such as "money had and received", “money lent or paid”, “goods sold and delivered”, or “quantum meruit.” And they dont "bother" to respond to a BOP at their peril. Under the Code, they must respond "or be precluded from giving evidence thereof."