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CCP 98 Violation Case Law

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Whew! So glad to hear from you today CALAWYER!!!

I appreciate your comment! It's starting to realize it's all a bluff. Momamia contacted me and said they (not sure what JDB) also claimed they'd bring 4 witnesses and didn't bring one. But of course be prepared to object, object, object!

You just never know. If they can get a witness, they bring him/her. Just depends upon trial schedules. But when you subpoena a witness, especially a witness that has filed a declaration in the case promising to be available for service of a subpoena, THAT witess better show up to Court. Not someone else. THAT witness. And if that witness doesn't show up, you should be talking contempt with the judge.

After all, this is plaintiff's party and it is pretty darn rude when they don't show up.

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CCP 1991:

Disobedience to a subpoena, or a refusal to be sworn, or to

answer as a witness, or to subscribe an affidavit or deposition when

required, may be punished as a contempt by the court issuing the

subpoena.

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Because the other side will retitle the witness and then he will not be a managing agent, director, or manager for CCP 1987.

You may wonder "how does he know that?" because it happened to me and I had to appeal on it.

it is best to use CCP 1985 subpoena for that.

a good recent partially published case is Herrara v. deutsch Bank..... look at that for guidance.

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Because the other side will retitle the witness and then he will not be a managing agent, director, or manager for CCP 1987.

You may wonder "how does he know that?" because it happened to me and I had to appeal on it.

it is best to use CCP 1985 subpoena for that.

a good recent partially published case is Herrara v. deutsch Bank..... look at that for guidance.

Correct. And don't ask for documents. Just subpoena the witness. If you ask for documents, you need to give more notice and you really don't want to give plaintiff an opportunity to produce anything that wasn't provided to you in response to your CCP 96 request.

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The title of the witness figures very prominately, and could be stepped around by saying they were not a managing agent, officer, or director(that happened to me) so Think it is better to CCP1985 and have the sherriff serve it. Check with the sherriff if you have a fee waiver then they could serve it for free. Good to challenge CCP98 not so good to use CCP1987. CCP1985 still works for a managing agent, officer, or director.

Just received the minute order in the mail that confirms the case is dismissed without prejudice.

Yes, they can try to sue again, but they won’t—they can't come up with a witness. And whatever evidence they submit has to be declared to be true by a witness. A copy of your signature, bill, etc. means nothing without a witness to back confirm their company’s documents are true.

So, let them send their testimony in lieu of showing up. Yet, it will not count once you file for them to appear—UNLESS they appear. They will not. 9 times out of ten.

On my case:

The judges Disposition states: Court orders case dismissed without prejudice--CCP 98 Defective.

I am surprised why people on these threads believe that anything these lawyers do is actually proper procedure and will fly in court.

Please look and listen to people who have won cases—actual dismissals. I have been researching 100's of cases from Citibank on the Orange County court website. And I found only 3 dismissals. The rest settled. Very sad. :(

Any one of these people could have done what I have done. At a minimum, that would make it so a debt collector reallly had to do their work and provide actual evidence rather than show up and have a defendent cave, because they are not a lawyer and get scared.

In my case, the evidence (as in ALL CITIBANK CASES) was a submitted declaration from a witness who in reality was worth no more than the paper she signed her name on. She only existed on a piece of paper. They could not produce her physically. So—there was/is no evidence that was admissible.

Good luck people. And... is this there more to come? Maybe...

The same firm just filed another case against me from—AMEX. I found out at the courthouse today while researching my dismissed case. Punched in my name and there it was. But, I will be ready.

The case will be a minimum of 1 year out. And this time I know the ropes and I will drag it out as long as possible. They will screw up and it'll be the same stuff they had for the previous case. A copy and paste person's name as the witness to not just mine but 500 other lawsuits acoross the US.

And guess who won’t be happy if MOORE LAW GROUP comes in with their same tactics and faulty procedure. The Judge! He actually told me I did a good job and reminded me to keep all my records and study the statue of limitations in the event they try to file again.

If that isn't way of teilling me he knows how these junk debt lawyers work? I don't know what is.

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Congratulations! I am a public interest lawyer working at a non profit in Berkeley. I represent low income people for free in fighting these cases. We've been successful in most of these cases for the same reasons but what we don't have, and I hope you do (!) is something in writing from a judge explaining (a decision or order) his or her decision. Did the judge issue anything in writing?

Could anyone assist me with handling a Declaration In Lieu? Is it form CCP96?

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The title of the witness figures very prominately, and could be stepped around by saying they were not a managing agent, officer, or director(that happened to me) so Think it is better to CCP1985 and have the sherriff serve it. Check with the sherriff if you have a fee waiver then they could serve it for free. Good to challenge CCP98 not so good to use CCP1987. CCP1985 still works for a managing agent, officer, or director.

You should ASSUME that the witness is NOT a managing agent, etc. and serve a subpoena. If you are wrong, and the witness IS a managing agent, the subpoena still compels the witnesses' presence. If you are wrong about the notice to appear, it is ineffective to compel attendance.

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You should ASSUME that the witness is NOT a managing agent, etc. and serve a subpoena. If you are wrong, and the witness IS a managing agent, the subpoena still compels the witnesses' presence. If you are wrong about the notice to appear, it is ineffective to compel attendance.

Trust me I know, I listened to people who said send a notice in lieu and had problems ever since. use a subpoena it covers you nicely.

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I honestly think that Ramona Aragon lied in the court in my case. She showed up to court and testify all the BS, I should have asked her to show her Drives License or some identification. I really think Hunts is lieing and bringing pepole out in the street pose them as Citibank employe and win cases like mine. We should all find out if Ramona Aragon is a really employe of the bank and maybe start a class action case or ask district att to file charges agsint these pepole to lieing in court. Any thoughts!!!!!

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She is, she was Ramona Chavez before, guess she got married. I believe she is on Facebook and all these other crap social sites, look her up. You should have challenged her in court if you thought she was not who she said she was. I don't know if courts require witnesses to ID themselves, but most likely it was her. I doubt Citi would pull this. They are stupid, but not crazy. You could have given her a major a$$ kicking in court had you known how to do it. Why didn't you ask us? She's a litigation analyst, she's been involved in most of the major Citi cases. She does sign affidavits, which is a real problem for her when faced with the proper direct examination.

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I am going to court on Tuesday and Dorothy Ruiz will supposedly be testifying on behalf of her 98CCP Declaration in Lieu of Testimony. If she does actually show up what is the best line of questioning I can use to blow her out of the court room? All help is greatly appreciated!

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Hello CD,

After reading some of your posts its looks like we are or have experience with Hunt and Henriques among other Debt collectors. I go to Trial this next Tuesday and I have the upper hand at this point. My Question to you is if Dorothy Ruiz indeed shows up as the Witness for the Dec in Lieu of Testimony 98CCP, which I think in all hearsay, what is the best line of questioning to discredit her and show the judge that its all Hearsay. And do you happen to know the Evidence codes for this to back it up? If you would like to chat on the phone I can give you my number, if you are cool with that.

Thanks,

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Did you serve her with a subpoena?

If so, then she must appear. If she doesn't, they will probably dismiss. However sometimes they try to "substitute" another witness. That is when you jump up on counsel table and start throwing a temper tantrum. Strike that. That is when you politely but firmly reminding the Court that a subpoena is not a request. It is an order of the Court. The witness promised to ba available for service and you served her. Plaintiff is in contempt of court.

If the witness shows up in Court, the declaration won't be used (except you can use it to impeach the witness if she says anything different). Your goal will be to show that the witness does not have first hand knowledge of anything that happened at the OC, does not know how the OCs records were created or maintained, and does not know that they are accurate. Assuming the witness does not testify that she ussd to work at the OC, you will want to object to any questions about the OC and OC's records on hearsay grounds and also on the ground that the witness lacks personal knowledge. When it is you time to question the witness, these questions might help:

Cross examination of Dorothy Ruiz

1. Have you ever lived at[list first address in her affidavit where she says she can be served]?

2. You have never been to that address ever in your life, correct?

3. Have you ever lived at[list second address in her affidavit where she says she can be served]?

4. You have never been to that address ever in your life, correct?

5. Have you ever lived at[list third address in her affidavit where she says she can be served]?

6. You have never been to that address ever in your life, correct?

7. You are a [legal spe******t], correct?

8. What does it mean to be served with a subpoena?

SAY, your honor, I would like to show the witness a copy of the affidavit of Dorothy Ruiz in this matter. Give the Judge a copy and give plaintiff’s attorney a copy.

9. Is that your signature at the bottom?

10. And you signed this affidavit on or about [whenever she signed it]?

11. And you signed it under penalty of perjury, correct?

12. Where have you been for the last 20 days?

13. It was not a true statement that you could be served at[list first address in her affidavit where she says she can be served], was it?

14. It was not a true statement that you could be served at[list second address in her affidavit where she says she can be served], was it?

15. It was not a true statement that you could be served at[list third address in her affidavit where she says she can be served], was it?

You honor, I move to excude this witness and all of her testimony as her affidavit was purposely false and intended to mislead the defendant and the court.

When the judge says no, say, in that case, your honor, I move to have the affidavit admitted into evidence for the limited purpose of this cross examination.

16. You have never been employed by [OC], true?

17. What kind of computer system does [OC] have.

18. Has that computer system ever crashed?

19. Have hackers ever broken into [OC's]computer system?

20. What is the job title of the [OC] employees that enter information into the bank’s computer system relating to payments made on [credit card accounts?? ]

21. What is the job title of the [OC] employees that enter information into the bank’s computer system relating to payments made on credit cards.

22. How is interest calculated on those accounts?

23. Who reviews the data for accuracy?

24. How are mistakes handled?

Your honor, I move to strike the witness’s testimony. She has absolutely no personal knowledge of the creation, maintenance or production of the records at issue here. Her testimony is speculation and involves multiple levels of hearsay. It is like testifying about a car accident after reading an account of the accident in the newspaper. She has no first-hand knowledge of any facts at issue and her testimony should not be permitted.

Edited by calawyer

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awhile back...http://www.creditinfocenter.com/forums/there-lawyer-house/311178-observed-trial-between-pro-se-h-h-citibank.html. I didn't put her name at that time but I went back and looked over my notes and it's Dorothy Ruiz. So my question is...since she does works for the OC are the questions 16-24 calawyer just posted applicable?

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awhile back...http://www.creditinfocenter.com/forums/there-lawyer-house/311178-observed-trial-between-pro-se-h-h-citibank.html. I didn't put her name at that time but I went back and looked over my notes and it's Dorothy Ruiz. So my question is...since she does works for the OC are the questions 16-24 calawyer just posted applicable?

No. My questions are "Assuming the witness does not testify that she ussd to work at the OC". And you will know in the first minute or so of the direct examination (if you can't tell from the CCP 98 declaration).

I can't really give you a guideline of questions to ask an OC witness as it will depend on the direct examination and also the facts of the case. One strategy is to get the witness to say that a computer print out was prepared for the purpose of the litigation. If so, object on hearsay grounds. When the plaintiff's lawyer says "business record", you argue it is not a business record because it was not prepared in the regular course of business (but rather for the litigation). There may be other ways to get it into evidence, but plaintiff's lawyer might not be quick enough on her feet to think of them.

Another strategy would be to get the witness to admit that she was not employed at the OC at some point in time when the loan was active. Then you could argue that the witness did not have personal knowledge that the records were created at or near the time of the event....

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To make sure I understand correctly:

Plaintiff, an original creditor, submitted a CCP 98 affidavit by its records keeper, Dorothy Ruiz. At least as of last year Ms. Ruiz worked in Arizona. You believe she may appear personally to testify at trial.

My questions are: roughly how much is the alleged debt, did you send a CCP 96 request, if so was Ms. Ruiz listed as a witness in the response, and what makes you believe she may appear at trial?

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Does CCP 98 apply to Unlimited Civil or just Limited?

I have been searching everywhere and can't find the answer to this. The woman who signed the Declaration in my case has already been accused of robo-testimony / robo-signing. She signed the declaration in Maine. Not sure if CCP 98 applies to this case due to the amount being Unlimited?

Anyone know?

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Does CCP 98 apply to Unlimited Civil or just Limited?

I have been searching everywhere and can't find the answer to this. The woman who signed the Declaration in my case has already been accused of robo-testimony / robo-signing. She signed the declaration in Maine. Not sure if CCP 98 applies to this case due to the amount being Unlimited?

Anyone know?

91. (a) Except as otherwise provided in this section, the

provisions of this article apply to every limited civil case.

(B) The provisions of this article do not apply to any action

under Chapter 5.5 (commencing with Section 116.110) or any proceeding

under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.

© Any action may, upon noticed motion, be withdrawn from the

provisions of this article, upon a showing that it is impractical to

prosecute or defend the action within the limitations of these

provisions.

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91. (a) Except as otherwise provided in this section, the

provisions of this article apply to every limited civil case.

(B) The provisions of this article do not apply to any action

under Chapter 5.5 (commencing with Section 116.110) or any proceeding

under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.

© Any action may, upon noticed motion, be withdrawn from the

provisions of this article, upon a showing that it is impractical to

prosecute or defend the action within the limitations of these

provisions.

Thanks - I found it. Darn. Although I did find that declarations in unlimited civil cases are considered hearsay. If it comes down to trial, I can use that, right? I am sending my opposition right now - thank you for your insight and expertise. :)

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Thanks - I found it. Darn. Although I did find that declarations in unlimited civil cases are considered hearsay. If it comes down to trial, I can use that, right? I am sending my opposition right now - thank you for your insight and expertise. :)

Sorry, for some reason, my introductory comments were missing.

CCP 98 applies only to limited civil cases. If your case is an unlimited action, it does not apply.

Edited by calawyer

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Hello alwaysthesun and others:

 

Is there anyone out here that have met Dorothy Ruiz  in a court after serving your subpoena ? And did you win the case against Citi ?

 

Any sharing would be really appreciated !!!

 

Cheers !

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Hello alwaysthesun and others:

 

Is there anyone out here that have met Dorothy Ruiz  in a court after serving your subpoena ? And did you win the case against Citi ?

 

Any sharing would be really appreciated !!!

 

Cheers !

 

As stated in the other thread, you need to start your own thread and ask these questions.

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I was just in court and the judge gave a continuation to the plaintiff even though I had filed the following:

 

 

Defendant

SUPERIOR COURT OF CALIFORNIA, COUNTY OF oRANGE

CAPITAL ONE BANK (USA) N.A.,

                  Plaintiff,

vs.

 

                  Defendant

)

)

)

)

 

Case No.: --------------------

NOTICE REQUESTING AND REQUIRING PARTIES TO ATTEND TRIAL (CCP Section 1987( B))

 

Date: --------------

Time: ---------------

Dept: --------------

 

TO THE PARTIES HEREIN AND TO THEIR ATTORNEYS:

PLEASE TAKE NOTICE that the trial of this action will commence --------------- at ------- in Department ------- of the above entitled court, located at 23141 MOULTON PARKWAY, LAGUNA HILLS CA 92653-1251.

DEFENDANT HEREBY DEMANDS, Pursuant to Code of Civil Procedure section 1987( B), that ----------------- appear as witness at the trial of this action at the time and place noted above, and at any time and place to which the trial may be continued.

Dated this 19 of June, 2013

------------------

Defendant

 

What should I do at the continuation? Should I file another form under CCP section 98? how would I write it? Please advise.

 

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Did you object to the continuance?  Did plaintiff file a written motion supported by declarations?

 

This is going to be 20/20 hindsight for you but if the Judge ever grants a continuance you want to ask that all witness that have been served with a subpoena be required to attend the new trial date without the necessity of serving a new subpoena.

 

Belt and suspenders approach if the judge did not issue such an order is to re-serve.

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Yes I did object to the continuance but the judge said something about CCP 98 not on the notice to appear ( I might have misunderstood) but it sure had to do with CCP 98. Yes plaintiff capital one (Legal Recovery) had filed declarations. Do I need to refile the form again???

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