ADSOFT

I win, I win, I win, Judgement for the defendent.

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I won one of the cases guys. This was the big one, the other one is small, I will probobly win that one too, but I'm not worried.

I will tell you guys later about it, I have been up since 10pm last night.

All I can say is thank god, and thank CCP 98 a).

Doing the happy dance:

xdancexxdancexxdancexxdancex

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Thank You Guys.

This is how it all happended ( ... or as they say, "how it all went down",lol).

I'm going to threw it from start to finish so other can learn. If you just want to know what happended at the trial you can read the last paragraphs. But I recommed that you read from start to finish so you don't make the same mistakes I did and you get a feel what you are up against.

I was being sued by a JDB for a total amount of $5000 debt, Court Costs (to be set by judge, approx $1000) + interest for 6 1/2 years from the time I stopped paying (it took them 1 yr to find me and serve me, and 1 3/4 to bring me to tria, I had accrued about $2000 in interest). I was looking at about $8000++ if I lost, and I doubted that I could settle for under $4500.

Now I have a good background in contract law,it's where I get my courage to deal with creditors and do business deals as I work for myself and have to write software contracts and buy/sell/resell computer equipment.I took a college course on contracts, which could be applied torward a law degree. However, since my knowledge of contracts has kept me out of court with my business dealings, I don't have much experience in court procedures (Civil Procedure as it's formally called). I can honestly tell you guys, that it is very difficult to write an Iron Clad contract that can't be found where one of the parties has breached,... if you look hard enough.

So my only chance was to find a way to that the OC had breached or that the JDB had no contract with me, hence they can never win. I was being sued by a JDB, so they don't have first hand knowledge, but I quickly learned not to rely on a judge knowing the law since the judge I was dealing with didn't even know that it was a Local Rule to have a case dismissed if the plaintiff doesn't show up to a case management hearing(wtf, remember that thread), and many people in other states where fighting affidavits from custodians of records without first hand knowledge of the OC debt (hence they are not eye witnesses) and losing, wtf. So it seems that it's possible for a JDB to buy a debt, have their custodian of records print out some numbers from a computer, create an affidaviat, which is second hand info(a written testimony) and get a judgement. .... well that's were the plaintiff was going, however I had on more hurdle to overcome on top of that!!!!

I turns out that on this case (the first one I was served) I never responded to discovery. The reason I didn't is that I didn't know every superior court in California has local rules that in some areas are different for every court. So you could be sued in Los Angeles County and in Santa Barbara County (or whatever court within that county) and you can run into a snag because each court has special rules. I had been sued in Los Angeles County years ago, and you get a trial date upon submitting your summons. Not the case in the county I was being sued in, in this county you file discovery and then ask for a trial date ( I guess the court makes more $$ that way ???).

The extra hurdle I had was due to my lack of responding on time,it got me trouble. The plaintiff had sent me set of addmissions, which state I owed approx, $5000 to the OC. Since I never responded that I deny that (even though I did DENY those allegeations in my response to the summons), the plaintiff filed a Motion to Have Addimissions Admitted, that means that I CANNOT argue that I didn't owe that $$ to the OC and hence the JDB since they SUPPOSEDLY bought the debt :shock::roll:, wtf how am I going to get out of this one????? I think it goes with out saying, ANSWER YOUR ADDMISSION or ask for an extension.

Well it turns out that they had Admissions admitted over 1 yr ago and had never asked for a trial date. I was waiting for MSJ (Mot for Summary Judgement) but it never came. I was going to fight hard at that point and I knew how to respond to it, so I bided my time, but the MSJ never came.

About some time in Nov 2010. Plaintiff asked for a trail date. Trial was set for Today at 9am.

About 40 days before trial I was sent an affidavit from the Custodian of Recs of the JDB, with a bill of Sale from the OC and a printout which summarized the fees against me. The bill of sale has the sig of the Vice President of the OC(a nationally known creditor which most of know or have heard of :shock::confused:, omg).

I recieved the Affidavit during the christmas season, a time when I wasn't ready to deal with this. I took an extra 2 week vacation, because I figured that I was going to have to settle.

I have a really bad neck problem, and sometimes it's hard to even read the newspaper, so at times even if I wanted to prepare for my case it was difficult, so I really understand when some of the members here say they have a dissability which makes it difficult to gather the weapons to defend themselves. I got well enough to focus full time on this problem, since last wednesday but I reallys saw no way out.

One of the members here BIDSX(I will post his thread later ) based on violation of CCP 98. If someone testifies against you, it's your 6th amendent right to cross examine them, but you have to supeona them. However, I wasn't sure if that was going to work for me, because I hadn't answered admission, and they got me on admitting I owed $5000 to the OC. So, things were not looking good for me. Settlement was the only way out for me at this point. CCP 98 violations were not going to work for me.

Well Wednesday Night I got a revealation: My Contract knowledge kicked in.

To have a contract 4 elements must exist 1 of which is Consideration (an exchange of something of value). The had me that I had exchanged that values was transferred between me and the OC, but they had not proved that something of value had exchanged between them and the OC. So basiclly, they showed I owed $$ to the OC (but, I will later show, that in my case that wasn't enough ) but they had to prove they owned the debt(consideration between the OC and JDB), which is done via a BILL OF SALE.

So I set my goals on breaking the contract between the OC and JDB. The first was to rule out the Affidaviat. It turns out for CCP 98 to work they have to give you address to subpena the affiant. I couldn't find it on the Affidavat, but I wasn't sure how it was supposed to be communicated between plaintiff and defendent. What made things more complicated is since the Affiant (custodian of recs) duty is to testify not to tell me where to contact him for subpena it made things, worse. I didn't know if I was supposed to subpeona the affiant at the Plaintiffs business or what.

Well it turns out that my book on filing a lawsuit in california address how to use written testimony (affidavits). He said that you write a separte letter and serve it on the opponent, but It didn't say if you mail it seperatly, or attach it to the motion to admitt the affidavit. For three days I researched CCP 98, but I couldn't find caselaw on its use(still haven't). I also couldn't find an affidavit example that used CCP 98. Well it turns out that I found the affidavit used against me in LA COUNTY, the address to subpeona is at the bottom. I also had to go back home to see if maybe in my case it was on seperate detached letter that was in the envolope the affidavit was served in. No luck. It was sunday night about 9pm and all I could think of was that maybe Plaintiff submitted it to the court but not to me. I had to know, wtf???

The only way to know for sure was to go to court house and see what was submitted. Court is close Sunday night at 9pm, BUT their website is open 24/7: Got online and had to pay for 18 pages that inclulded the affidavit (testomony, bill of sale, proof of service, and other exihbits). ....no subpeona address was there. :)

But that was no, guarnette of a win. I had talked to lawyers and said making a motion to deny on CCP 98 might not work, and as you all know I had the Addmissions admitted prob to deal with.

Well I wasn't going to only count on CCP 98, so I worked on building a defense that bill of sale between the JDB and OC was unenforceable and that the testimony of the affiant was hearsey because he didn'th have enough info. I don't want to get into how I was going to prove that. That is the subject of another thread: Impeaching the testimony of the Custodian of Records (but I will post ).

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Part 2

At this point I had 3 cards up my sleeeve.

1) Violation of CPP 98 a)

2) Unenforcable Bill of Sale

3) Affiants evidence was hearsey

although that would be enough to win, IF I COULD PROVE IT, might not be enough they had me on addmissions.

I had to somehow prove that I didn't $5000 to the OC: My Knowledge of contract law kicked in again: The Element that every contract must have CONSIDERATION (BILATERAL).

It turns out that in the PLAINTIFFS recquest for addmissions they got me to agree to owing $5000.00 bucks, but failed to get me to admit that I owed $5000 on the stated ACCOUNT!!!!8-)8-)8-)

They F'ed up. Whay becuase for me to owe someone $5000 that someone has to show I got something in return for it. With out me addmiting that I owe $5000 ON THE ACCOUNT I was being sued on, their ADDMISSIONS are meaningless. I never said I owed $5000 on that ACCOUNT .xdancex

I now had 4 cards up my sleeve. I was ready to ROCK:evil: JDB, bring it on!!!

My 5th card was to file an appeal if CPP a) violations were not admitted. I had a lawyer that would back me on that already.

Well I got the court house, I was the first one up. It was they same judge that didn't know a local rule existed to dismiss a case if the plaintiff fails to show up to CMH.

When I come up to the stand she saw me, and remembered me. She also saw the stack of docs I had infront of me and a slight fire in my eyes.

The judge called for the Plaintiff whom was not present. I quickly asked for a motion to my case dismiss with predujed. The judge said, "you can ask for that but you probobly won't get it", WTF, here we go again!!!88-) Judge then said, "there is an Affidavit submitted with this case, please have a seat, we will return to this". I'm like :confused:, now what?? I quickly thought, don't P.O the judge 8], so I politly took a seat.

Judge was actually going through role call so wasn't ready to hear my case. But as I was waiting for to determine who had shown up for court, I was rehearsing what I was going to say. And how I was going to have to fight to Impeach the Testimony in the Affidavit. I also, rehearsed how I was going to get in my motion that CCP 98 was violted. I was going to play my cards 1), 2) , 3) , 4) just like I have presented them to you guys hear. And I had all my paper work ready to do that.

I was the first Trial called, and the first litigant up(no plaintiff consul present). I was not nervous, as I had attended 3 hearings and CMH in front of this judge already and the assistant of the judge. I was more determined than nervouse, but what worried me was that there was no court reporter, so if after motioning violation of CPP 98 a) the judge denied it, I would not have grounds for appeal , my 5th card.

When I got up, the first thing that came out of my mouth was, "Judge I object to the testimony in this case as it violates CPP 98 a)"!!! I read statue to the judge out load so everyone could hear it. And I ended with, "I wanted to subpeona the declarant but there was no address given, I move for Judgement for the defendent"

The judge replied, "Well, I was going to say that, but you didn't let me get a word in. JUDGEMENT FOR THE DEFENDENT!!!!, you couldn't subpeona" The judge came through 8]:)

Had I not spoken first, would have things went that smoothly ????? Who knows.

I'm sorry I dragged out the whole story, but I wanted to point every detail for those who are worried and don't know how to put up a defense. I also want to point out, that you shouldn't just have One card to play but several. I also want give special thanks to SKIPPY1960 who drilled into my mind that I should always go prepared with statues printed.

Did I over prepare for my case? NO!!!! You never know what is going to happen in court. One my college roomates once told me, "Always prepare for the unexpected". Nothing could be more than the truth in court.

Prepare for court with a printout of all your statues, line up your cards, and be prepared to cash them in one by one. AND EXPECT THE UNEXEPECTED.

That's my story guys, I hope it helps some of you out there.

Special thanks to the following people:

1) Calawyer, for his patience and wisdom and special assistance

2) Capital Hill, for making me take the serious and for pushing me to go the extra yard.

3) Skippy1960, for pointing out that I should go printouts of statues and motions ready to be signed by judge

4) BidSx, for sharing with the board his success with CCP 98 a) and how to use it court. I will later post his thread, it was very helpful, and I had his first post printed out and infront of me, as I was addressing the court.

5) Jewel, for sharing info with me

6) Trueq, I consider the guy a Maverick, you have to know how to work with one.

7) And Last, but by no means least, ADMIN for this great board. I consider it my home, if it's ok with her!!!:), your the bomb!!!!

And all the other people who helped me and gave me moral support here. I didn't want to let you guys down, so I wasn't going to settle even with all the cards against me!!! I had to find a way to win, to make the board proud!!!

And a 8-) to the Plaintiff and all you JDB's out there

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wow kudos to you and thanks so much for taking the time to write all of that. I am certain it will benefit many.

There is alot of info there. But for those in middle of theire case, or at what ever point they are in, they will be able to read up to that point and know what to do next.

You have to have gone through the whole process or be in the middle of it to dig into it.

But, I'm sure there are many who are looking for a template or set of steps/strategy to deal with this.

Thanks for the input.

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She also saw the stack of docs I had infront of me and a slight fire in my eyes.
LMAOOOOO this always always gets them to allow you to speak first. for me, everytime i walk to the stand with fire in my eyes and a stack of papers, the judge always looks at me and goes something like "so whats this all abouot."

this is great i had to chuckle a minute when i read this part.

I'm sorry I dragged out the whole story,

the floor is yours. all good!

and congrats! well deserved. job well done.

by the way, i may need you expertise in contracts im trying to destroy a settlement stipulation. (another day, another time, another thread)

congrats again.

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LMAOOOOO this always always gets them to allow you to speak first. for me, everytime i walk to the stand with fire in my eyes and a stack of papers, the judge always looks at me and goes something like "so whats this all abouot."

this is great i had to chuckle a minute when i read this part.

the floor is yours. all good!

and congrats! well deserved. job well done.

by the way, i may need you expertise in contracts im trying to destroy a settlement stipulation. (another day, another time, another thread)

congrats again.

There were a few times I chuckled too as I wrote this. :), good court drama.

I was sweating bullets there for a while. :roll:, ... lol now that I look back.

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Adsoft, what did the Plaintiff have to say when the judge said you won? Will they appeal? Were they there? Did they try to argue anything??

The plaintiff didn't show up.

It was just me against the written testimony of thier JDB'S custodian of records.

After reading BIDSXs post I knew that my only chance was to have the testimony of the JDB stricken. I had 5 bullets (cards to play), and I lined them all up.

I have been thinking up of other ways to discredit the Custodian of Records. If you want a chance to win, it seems that you should focus on denying everything and learning how to Impeach the Custodian of Records testimony.

Learn about your 6th amendant right to cross examine a witness.

I'm not an expert on doing this YET, but I'm working on developing that skill, others should to. If you deny everything successfully, it will come down to you and the custodian of records. However, you should prepare to have him on the stand, if necessary.

Or

You can prepare to discredit his testimony as hearsay, that was going to be my second bullet if the Judge had allowed JDB's testimony.

You have to prove that the testimony(written or Live) of the Custodian Of Records is HEARSAY.

From the outset that should be your goal. I'm pretty sure that Calawyer will back me on that. But from a contractual point of view, I know for a fact, if I can prove that there is no contractual obligation between me and the plaintiff, they can never get a conviction.

Even the Judge in Bidsx's case said to the plaintiffs lawyer, "It's going to be very hard to win, without a bill of sale". In other words no "bill of sale", you don't have the right sue and never get a judgement. But that's only with JDBs.

With OC you have to prove breach of contract, unenforceable contract, fraud, etc.

That's why I say deny everything till the produce an ITEMIZE BILL with a CONTRACT and YOUR NAME ON IT, and can prove YOU USED THAT ACCOUNT.

If in your answer you agree that you owe the bill, you lost. They want to make you pay by legal means, they have to prove what I just said.

Deny, Deny, Deny, you never know, at the end thier testimony might not hold up, be admissible, or you might find they breached (even if it's your bill, they may have breached and you don't know it till you see an itemized bill and a contract in front of you).

Make them put all the cards on the table.

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I won one of the cases guys. This was the big one, the other one is small, I will probobly win that one too, but I'm not worried.

I will tell you guys later about it, I have been up since 10pm last night.

All I can say is thank god, and thank CCP 98 a).

Doing the happy dance:

xdancexxdancexxdancexxdancex

CONGRATULATIONS !!! 8-)

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CONGRATULATIONS!!!!!!!

Awesome job!!!

I do have a question, if you don't mind, since I am in the middle of all this with an OC.

You wrote:

Well Wednesday Night I got a revealation: My Contract knowledge kicked in.

To have a contract 4 elements must exist 1 of which is Consideration (an exchange of something of value). The had me that I had exchanged that values was transferred between me and the OC, but they had not proved that something of value had exchanged between them and the OC. So basiclly, they showed I owed $$ to the OC (but, I will later show, that in my case that wasn't enough ) but they had to prove they owned the debt(consideration between the OC and JDB), which is done via a BILL OF SALE.

Would you mind sharing the other 3 elements to a contract?

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Congrats Adsoft, you did it!!!! You beat a JDB at its own game.

Now comes the fun part. The Court should enter a judgment in your favor. You should get a certified copy or two from the clerk's office. You can demand that the reporting on your CR be updated and the entry on this tradeline removed.

More fun. You are the prevailing party in this litigation. You are therefore entitled to your costs. At a minimum, this would include the fee you paid to file your answer. You will need to do a memorandum of costs. Search my posts for the procedure--I detailed it for someone else not too long ago.

Again, congrats.

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Congrats Adsoft, you did it!!!! You beat a JDB at its own game.

Now comes the fun part. The Court should enter a judgment in your favor. You should get a certified copy or two from the clerk's office. You can demand that the reporting on your CR be updated and the entry on this tradeline removed.

More fun. You are the prevailing party in this litigation. You are therefore entitled to your costs. At a minimum, this would include the fee you paid to file your answer. You will need to do a memorandum of costs. Search my posts for the procedure--I detailed it for someone else not too long ago.

Again, congrats.

Thank You.

You helped me alot.

I already went to court house and the Judgement has been record. It was recorded on Tuesay. Got a copy in my hands.

I have another case comming up around June. I have a few tricks up my sleeve on this one. I'm preping for it now.

Also went to the Law Library today and did research on BOP, got sample forms on how file BOP, MOTION TO COMPEL BOP, MOTION TO BLOCK TESTIMONY FOR FAILURE TO COMPEL TO BOP.

Got them all on disk will be posting them. I started a California thread a couple of days ago. If you like it, maybe we can turn it into a stcky. Ask Admin. We need our California sticky back. Admin Might be able to start a section where there is a thread for every state.

Quick question.

The JDB never reported on my credit report just the OC. How ever now Midland is reporting and Midland was not the Plaintiff in my case. Is that wild or what? Maybe the JDB hired Midland to collect?

Do I get the right to remove both the OCs and JDB from my CR? Or just the JDB?

Can I send that to CR agencies? only.

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