Jump to content

CA Trial Question, copies of statements


custer
 Share

Recommended Posts

I am in California.

I am going to trial in 2 weeks for a collections debt on a cc, my first trial was postponed, the original "evidence" was a declaration from the Credit card company stating that I owed the money.

The judge told us that they must testify in person for the new trial

Today I received a packet from the law firm suing me that included a copy of all of the statements from the cc company.

I am under the impression that this is not allowable as evidence unless there is an affadavit to athenticate attached.

Can anyone verify this? Can you point me to the law that states this?

Thank you

Link to comment
Share on other sites

I am in California.

I am going to trial in 2 weeks for a collections debt on a cc, my first trial was postponed, the original "evidence" was a declaration from the Credit card company stating that I owed the money.

The judge told us that they must testify in person for the new trial

Today I received a packet from the law firm suing me that included a copy of all of the statements from the cc company.

I am under the impression that this is not allowable as evidence unless there is an affadavit to athenticate attached.

Can anyone verify this? Can you point me to the law that states this?

Thank you

You are accurate that without a witness to testify and authenticate or an afidavit they are just records. The attorney can thunder on but needs someone from OC to say I am custodian of records for OC and these statements were made blah blah blah...

Link to comment
Share on other sites

I think the judge is referring to CCP 98 the 150 mile rule. here is a link for CCP:

http://law.justia.com/california/codes/2009/ccp.html

There is a thread on this board about CCP 98.

I think that you got them on the run. The judge will listen to them if they bring a witness. If they produce an declaration in lieu of live testimony make sure to serve a notice in lieu of subpoena for attendance at court on the affiant. most likely they will try to dismiss. if the affiant does show make sure to ask them questions along the line of this case:

http://www.stevenslee.com/news/EDiscovryWoutAdmissUseless_JDB_Proof.pdf

Your next move in my opinion should be an oral motion to dismiss at the next hearing. you said CC company is the OC suing you or JDB attorney. if they cannot get a witness to testify then their case is sunk.

It is a little frenetic at trial time so any pressure you put on them is good. also it shows the court your "fishing" and not "cutting bait". anything you can do to help the judge to dismiss this thing is good.

Link to comment
Share on other sites

If they produce an declaration in lieu of live testimony make sure to serve a notice in lieu of subpoena for attendance at court on the affiant. most likely they will try to dismiss. if the affiant does show make sure to ask them questions along the line of this case:

You can do this under CCP 1987(B). There are some timing issues be sure to read you must serve this a certain number of days prior to court date and must have POS.

Link to comment
Share on other sites

But make sure you look at California rules of civil procedure and not Federal Rules! You need to consider doing a motion in limine to exclude the unauthenticated statements. This is because just in case you missed the CCP 1987 b deadline, you still have leverage with them prior to the trial. Motions in limine can be brought on the threshold of trial. Since they are trying to railroad you, the judge will likely be receptive to such a motion. CaLawyer is knowledgeable in this area. Your basis for the motion in limine would be that they've had ample time to produce authenticated evidence from the original creditor and they've not done so. The unauthenticated statements do absolutely nothing to show you have any financial obligation to the plaintiff. I don't know what causes of action they're suing you under nor if you've made formal discovery requests but their so called evidence is inadmissable. And even if they magically provided an affidavit to you out of the blue, the affiant would need to testify at trial but you would need the opportunity to deposition them too, so either way given the time constraints you guys are under, its highly likely they'll dismiss the suit without prejudice right before the trial. Get your motion together just in case...

Edited by rikkivs
Link to comment
Share on other sites

Thank you for all of your help. I am in Nevada County in California. The plaintiff IS the OC with the lawfirm representing them. Does that make any difference?

The opposing attorney has been calling me to settle this case, I am planning to return his call to hear what he is offering.

Per 1987 b it says that I must serve a notice to the attorneys. The trial is Dec 10, so am very close to the 10 days.

Whom do I ask to attend in the notice?

Given that the judge stated they must appear to testify, why would I need to do this?

Given that there is no authentication, When should i file the motion in limine? The day of the trial? Its a trial in front of the judge who advised me as a pro per that I have a better chance of presenting my case to a judge (not a jury)

and he is the only judge.

You mentioned that the suit could be dismissed without prejudice, does that mean they could bring the suit again? Do I have a better chance of getting a dismissal with prejudice on the day of the trial?

Edited by custer
Link to comment
Share on other sites

Thank you for all of your help. I am in Nevada County in California. The plaintiff IS the OC with the lawfirm representing them. Does that make any difference?

California Rules of Civil Procedure will be in affect in all counties, Rules of Court can very based on your county.....

The opposing attorney has been calling me to settle this case, I am planning to return his call to hear what he is offering.

Remember to start very low, have a number in your mind that you can do, try to come up with lump sum settlement, payment plans are not recommended. Create a e-mail address on one of the free services and get everything in writing. If it is in writing it is real! Typical offer would be full amount over 12-24 months payment or 50% in lump sum 30 days. They may ask for stipulated or consent judgement, no go to these.

Per 1987 b it says that I must serve a notice to the attorneys. The trial is Dec 10, so am very close to the 10 days.

Whom do I ask to attend in the notice?

The name of the person that is in the avidavit or declearation is who should be named.

Given that the judge stated they must appear to testify, why would I need to do this?

It is a fail safe, what if the judge didn't make a note of it, or a good number of pretrails aren't captured by a court reporter due to courts don't have the money, simply a protection on your part to say even if the judge missed it or doesn't remember this person needs to show up....

Given that there is no authentication, When should i file the motion in limine? The day of the trial? Its a trial in front of the judge who advised me as a pro per that I have a better chance of presenting my case to a judge (not a jury) and he is the only judge.

You mentioned that the suit could be dismissed without prejudice, does that mean they could bring the suit again? Do I have a better chance of getting a dismissal with prejudice on the day of the trial?

If dismissed with out prejudice they can bring the suit again. If you show up to court and they show up without a witness and attemp to try the case you could win outright. IMO attorney calling to settle 10 days prior to trial could be an indication he has no witness and knows he will have to dismiss the case, but you never know you will need to speak with him first.

Best of Luck

Link to comment
Share on other sites

So I will answer the specific questions about the motions in limine. Your local rules of court and local rules of civil procedure lay out precise timelines for these types of motions. However, a motion in limine is typically one done on the threshold of trial and that could mean the day of the trial. Like I said, I don't know if you asked them for specific items in written discovery, but they need to authenticate their statements with a witness and you'll need to give the witness a deposition. If they try to introduce written testimony in lieu of live person, please see the CCP 98 discussions on this board.

The motion in limine should be based upon the fact that they've been litigating the case for a while and haven't produced a shred of authenticated evidence. Just for good measure listen to Skippy and serve a Notice to Appear to the witness they plan to bring to trial. Fingers crossed. Please talk to the attorney like Skippy said too. In some counties, the judges want you guys to talk in a meet and confer session to settle the case possibly, and or discuss possible motions before trial occurs so that trial can possibly be avoided etc. Stay confident and calm and look at other discussion threads for pointers. Best Wishes.

Link to comment
Share on other sites

Thank you again, your time is much appreciated.

My original trial got postponed and moved the day before the trial.

Regarding witnesses, for the first trial the OC's law firm filed a declaration in lieu of testimony. That person was more than 150 miles away, so I was going to try and get that thrown out. For this trial, the OC's law firm sent the statements with no authentication nor any list of witnesses.

Would I send a letter to the attorney stating that I want whomever produced those docs to appear?

In any case I will prepare a motion in limine to have them excluded.

As far as settling. The reality is that I am in so deep and have other creditors to deal with, so I do not expect them to offer any settlement that I can meet. Odds are I go bk. Before the last trial date, I offered 5%, A month ago they mailed me a settlement offer of 60%. In his voice mail the OC's lawyer did mention a stipulated consent. I will just listen.

Whatever happens I learned a lot and hope that others dealing with these issues can learn from my experiences. If I knew 2 years ago what I knew now, I would have been able to settle these things

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.