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Received an affidavit from JDB lawyer


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Hi,

When I last left things off, I had sent the JDB attorney a meet and confer letter noting that the single billing statement they had sent in response to my BOP request was insufficient. So they decided to send me an affidavit signed from a Capital One rep, which I have included a link to since it is too large to attach:

https://docs.google.com/open?id=0B3sXyDKzKsFQNWYzNTczMWUtOWU1Zi00MWY1LThmYTUtMGY5YTUxNDc4ZDc5

I recall reading from previous posts that this is considered hearsay. Though after seeing this letter, I am starting to get a little more worried. What's your advice, what should I be doing next?

Thanks!

Edited by Bandito
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They're trying to cloud the issue...basically they are trying to get you to drop your BOP.

Personally, I'd file a motion to compel/preclude. They probably cannot provide the information necessary to answer the BOP.

As far as the affidavit goes, I think you subpoena the affiant to appear... I'd bet she'd become unavailable pretty quick.

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I always suggest that people not pursue this endless discovery with motions to compel, etc. What do you expect to accomplish? If they don't produce the documents the first time, STOP ASKING. How many chances do you want to give them to beat you? Tell you what. YOU contact the original creditor and pay the several thousand dollars for all the paperwork, statements, etc, and then send them to the JDB lawyers to use against you. I'm sure they'll be happy you did that for them.

Edited by legaleagle
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Anyone else laugh when they noticed the plaintiff's lawyer is named Michael Hunt? Ok, sorry about that, takes me back to a childish joke.

I do see legaleagles point in not pushing matters, to allow them to attempt to try their case with little documentation, but I think the ultimate goal of the BOP is PRECLUSION. From my example, I filed a MTC BOP and ultimately won the preclusion. It just solidifies that what they've already sent me is really all they have, which is basically nothing. Now I can focus on attacking what they submit and to go from there.

As with anything, there's always that risk that they do provide all the documentation, although doubtful as I have yet to see anyone say that they have. And with the preclusion, it prevents them from surprising you at the last minute with information they were able to gather prior to trial.

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I say it every chance I get, don't force your opponent to come up with the evidence to beat you. Don't subpoena witnesses that only helps the other side. Don't file a motion to compel if you have properly asked for the evidence, if they have objected as irrelvant or too much trouble to obtain.

I understand it might nerve racking to say see you in court. At a maximum I would file a motion to preclude/motion in limine. It has been argued here before, and I see the point a little, although disagree, that you want to make sure the other side won't surprise you in court. If you have done discovery right, that won't happen, or if it does it is a slam dunk appeal.

The other side sends you a victory and you want to say, no wait, try a little harder, I bet if you really try or if I get a judge to force you, you can come up with that evidence to kick my butt in court with.

Forcing the other side with motions to compel and follow up letters that they better come up with the evidence or else, is like getting a speeding ticket and you subpoeaning the officer to court.

Same thing with affirmative defense(s) and flipping the burden to yourself, why? The other side knows, or they dang sure should, what it will take to win. Request that info. No law says you have to say please or wait that is not all you'll need to win against me, please provide more and better evidence against me.

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It just solidifies that what they've already sent me is really all they have, which is basically nothing.

That is where I respectfully disagree with you. You don't need it solidified. You followed the rules, they will have not if they try to sneak something in.

It's like Demi Moore in A Few Good Men objecting to a question. The Judge says overruled and she she says, but we strenuously object Your Honor. Then the other attys, rightfully so, point out the huge error she made, only for her to say but I got it on the record. In which her law partner says, you say it once you got it on the record, anything more makes it look like we're scared.

They have given you their evidence. So you don't need to be really sure. You asked properly, they responded, good enough. No are you really sure this is all you have.

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Anyone else laugh when they noticed the plaintiff's lawyer is named Michael Hunt? Ok, sorry about that, takes me back to a childish joke.

::spew:::ROFLMAO2: My friend who used to be a bartender used to get prank calls about that!!! Only took one time yelling around into the bar "Is ****** here??" for them to learn ....

Sorry to interrupt.... but that still makes me giggle....:lol:

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I say it every chance I get, don't force your opponent to come up with the evidence to beat you. Don't subpoena witnesses that only helps the other side. Don't file a motion to compel if you have properly asked for the evidence, if they have objected as irrelvant or too much trouble to obtain.

In California, if you do not move to compel, you waive any objections to the response (CCP 2031.310 "Unless notice of this motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.") That has the following ramifications:

If plaintiff promises to provide all responsive documents, and does not, you would have cause to complain at trial if plaintiff tried to introduce documents it had not given you.

But, if plaintiff objects to your request and does not produce all documents, you will not have a leg to stand on if plaintiff suddenly shows up at trial with documents you have never seen.

Your call.

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In California, if you do not move to compel, you waive any objections to the response (CCP 2031.310 "Unless notice of this motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.") That has the following ramifications:

If plaintiff promises to provide all responsive documents, and does not, you would have cause to complain at trial if plaintiff tried to introduce documents it had not given you.

But, if plaintiff objects to your request and does not produce all documents, you will not have a leg to stand on if plaintiff suddenly shows up at trial with documents you have never seen.

Your call.

Right, the problem is when the other side say we object as your request is irrelvant or too much trouble to get, then you try to compel them. Like you just said, I would not object to their response that it is irrelevant. If they tried to introduce at trial I would say look Judge, we both agree this is irrelevant. They argued it in discovery and I agree, so why are they bringing it up now?

If they give you a response that might hurt you later then yes compel them, but if their response hangs them, then heck no, don't try to compel a better response.

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Right, the problem is when the other side say we object as your request is irrelvant or too much trouble to get, then you try to compel them. Like you just said, I would not object to their response that it is irrelevant. If they tried to introduce at trial I would say look Judge, we both agree this is irrelevant. They argued it in discovery and I agree, so why are they bringing it up now?

If they give you a response that might hurt you later then yes compel them, but if their response hangs them, then heck no, don't try to compel a better response.

In California, a very dangerous strategy for two reasons:

First, a party represented by a lawyer never objects on one ground alone. Let’s say we are talking about account statements. They will say it is not relevant, it is privileged, and burdensome. When they want to introduce a previously-unproduced document at trial, they will rely on the objection that suits them best. For example, they will say that the request is burdensome because the OC sent you account statements every month and you already have them in your possession.

Second, assume plaintiff only asserted a relevance objection. If you say, “I agree Judge, these are irrelevant and should not be admitted at trial”, this will not resonate with any Judge that knows the rules of evidence. Of course account statements are relevant. It is obvious that you are trying to hoist the plaintiff on its own petard. However appropriate that might be, most Judges will follow the rules of civil procedure and evidence.

I never want to be in a position where I only win if the Judge takes pity on me.

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My understanding here is that the MTC with the BOP in Cali is the proper way to go in terms of procedure. Is that correct?

I bring that up because in some states you are allowed to go straight for a motion to preclude in discovery. This goes for a failure to answer, which providing an incomplete or evasive answer is counted as. I think it's important that people understand that what works in one state may be a big fat case loser in another.

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In California, a very dangerous strategy for two reasons:

First, a party represented by a lawyer never objects on one ground alone. Let’s say we are talking about account statements. They will say it is not relevant, it is privileged, and burdensome. When they want to introduce a previously-unproduced document at trial, they will rely on the objection that suits them best. For example, they will say that the request is burdensome because the OC sent you account statements every month and you already have them in your possession.

Second, assume plaintiff only asserted a relevance objection. If you say, “I agree Judge, these are irrelevant and should not be admitted at trial”, this will not resonate with any Judge that knows the rules of evidence. Of course account statements are relevant. It is obvious that you are trying to hoist the plaintiff on its own petard. However appropriate that might be, most Judges will follow the rules of civil procedure and evidence.

I never want to be in a position where I only win if the Judge takes pity on me.

Here is my basic premise.....it goes more toward fairness and procedure. If I propound requests for production on ABC Bank and they absolutely fail (or object, or refuse) to produce ANY of it, why am I obligated to continue to ask? Why am I even obligated to object to the fact that they produced nothing? Now they walk into court at the last minute, presumably, and throw a big box of stuff on the table and say "here's the evidence, your honor." Well that's nice, but why should it be admitted when I never got to see any of it? I may have based my defense on the fact that they failed to produce admissible evidence to prove their claim, now all of a sudden they spring it on me? I understand that parties have a continuing obligation to provide answers, documents, etc requested in discovery, but when they do so, it should be sent to the requesting party. I really have a problem with a scenario like this. What is the proper procedure to avoid this?

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Here is my basic premise.....it goes more toward fairness and procedure. If I propound requests for production on ABC Bank and they absolutely fail (or object, or refuse) to produce ANY of it, why am I obligated to continue to ask?

I agree that fairness should govern and the rule isn’t fair.

Why am I even obligated to object to the fact that they produced nothing?

You are not. In California, however, you are shooting for a response that has a bunch of objections and then says “Notwithstanding the foregoing objections, plaintiff will produce all responsive documents in its possession, custody or control.” If plaintiff says that, and produces nothing, you are fine at trial. The Judge will typically not let them produce documents they have promised, but failed, to give you. If they object and do not say the magic words, you should move to compel a further response.

Now they walk into court at the last minute, presumably, and throw a big box of stuff on the table and say "here's the evidence, your honor." Well that's nice, but why should it be admitted when I never got to see any of it? I may have based my defense on the fact that they failed to produce admissible evidence to prove their claim, now all of a sudden they spring it on me? I understand that parties have a continuing obligation to provide answers, documents, etc requested in discovery, but when they do so, it should be sent to the requesting party. I really have a problem with a scenario like this. What is the proper procedure to avoid this?

In California, parties do NOT have a continuing obligation to provide answers. See, e.g., CCP section 2030.060 (g) “An interrogatory may not be made a continuing one so as to impose on the party responding to it a duty to supplement an answer to it that was initially correct and complete with later acquired information.” Instead, California allows a party to propound a “supplemental” interrogatory or document demand accomplishing the same purpose. CCP 2031.050.

In my view, to avoid surprise at trial, a party in California should consider doing the following:

1. Make sure, after any objections, that the responding party promises to produce all responsive documents or responds to an interrogatory fully. If a party objects, it should list any documents withheld based upon the objection as the Code requires.

2. If the responding party does not affirm that all responsive documents have been produced in a verified response, meet and confer.

3. If your request is refused, move to compel.

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In California, parties do NOT have a continuing obligation to provide answers.

Okay, I'll have to admit that would throw a curve ball. I always use the interrogatory, please state and confirm you will treat these (whatever) as ongoing and continuing and you will properly supplement your answer(s)per the Arkansas Rules of Civil Procedure XXXX rule here.

I'd still be inclined to let it roll but it does put a twist in the plan. I'd think about it more and come up with some rebuttal or plan, but I don't ever see me needing to.

However, the one thing that jumps out at me is this statement/example you gave.

Second, assume plaintiff only asserted a relevance objection. If you say, “I agree Judge, these are irrelevant and should not be admitted at trial”, this will not resonate with any Judge that knows the rules of evidence. Of course account statements are relevant. It is obvious that you are trying to hoist the plaintiff on its own petard. However appropriate that might be, most Judges will follow the rules of civil procedure and evidence.

The bold would be my exact argument. I'd flip that and argue what you just wrote and then point out it is not me playing games, but the other side. They are objecting to obviously relevant requests and then want to come into court and then all the sudden produce them.

Yeah, I'm rolling the dice any day of the week with that argument. I might just have too much faith in the system or I have just been on a roll in the win/loss dept. But I don't see a judge letting an objection for relevance for card statements, and then springing them in court, fly.

I get what your saying about too much trouble to get the documents and then arguing the Defendant should already have. Fair enough but that plays both ways when they ask for a ton of stuff one should have prior to filing a lawsuit.

Opps, wait, I'm arguing my position. Dang, can't resist the temptation. :lol:

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Second, assume plaintiff only asserted a relevance objection. If you say, “I agree Judge, these are irrelevant and should not be admitted at trial”, this will not resonate with any Judge that knows the rules of evidence. Of course account statements are relevant. It is obvious that you are trying to hoist the plaintiff on its own petard. However appropriate that might be, most Judges will follow the rules of civil procedure and evidence.

The bold would be my exact argument. I'd flip that and argue what you just wrote and then point out it is not me playing games, but the other side. They are objecting to obviously relevant requests and then want to come into court and then all the sudden produce them.

:lol:

You must understand that I agree with you that the law is an a$$ in this instance. Your method would require parties to respond in good faith and to their peril if they did not. It would also drastically cut down the number of motions to compel, which most courts hate.

But I have seen parties burned too many times in California courts with this precise argument. The Court will ask if you filed a motion to compel (which, remember, they hate). If not, the Court will say, "That is unfortunate. You have a remedy in the CCP and that is to move to compel a further response. If you did not do so, the Court is powerless to exclude the evidence."

To be honest, some courts will take pity on your status as a pro per or become indignant at the gamesmanship and find a way to grant you some relief. Many more will agree that it is unfair to spring these documents on you at the last minute and offer to postpone the trial to grant you an opportunity to review them. But, as I said, I never want to be in a position where I win only if the Court takes pity on me.

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  • 1 month later...

This has been a great discussion. I appreciate everyone's insight and help on this matter. I took a break from stressing about this case but now realize that my court hearing is just over a month away. I have not filed a MTC yet bc I am still conflicted about whether it is the next best step. The jdb attorney promised they would send me an account statement history within 45 days and still have not produced anything. What is the likelihood that they will show up with more to court than what they have provided me. Calawyer you mentioned you've seen parties in CA courts burned by not filing a MTC. I'm just afraid I'm going to force them to come up with all this additional documentation to court that they were never planning on bringing anyway.

You must understand that I agree with you that the law is an a$$ in this instance. Your method would require parties to respond in good faith and to their peril if they did not. It would also drastically cut down the number of motions to compel, which most courts hate.

But I have seen parties burned too many times in California courts with this precise argument. The Court will ask if you filed a motion to compel (which, remember, they hate). If not, the Court will say, "That is unfortunate. You have a remedy in the CCP and that is to move to compel a further response. If you did not do so, the Court is powerless to exclude the evidence."

To be honest, some courts will take pity on your status as a pro per or become indignant at the gamesmanship and find a way to grant you some relief. Many more will agree that it is unfair to spring these documents on you at the last minute and offer to postpone the trial to grant you an opportunity to review them. But, as I said, I never want to be in a position where I win only if the Court takes pity on me.

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I filed a MTC further evidence & it was denied. While the MTC was going on they did cough up more evidence which I think I could have gotten w/ a CCP 96. I think that is why the MTC was denied. What you can do is send the CCP 96 that will get you the evidence they plan on using at trial.

I'm by no means a lawyer so anyone else can chime in on my idea.

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I have not filed a MTC yet bc I am still conflicted about whether it is the next best step.

It's been just short under two months since you posted in this thread. I can't speak for others but I'm sure their opinions and advice, just like mine, has not changed. There is the side that says file the motion to compel and has good arguments and then the side that says don't file the MTC, with good arguments, in my opinion.

I've yet to see CALAWYER give conflicting advice in any thread where he always advises to file a motion to compel. Myself and a few others, LegalEagle in this thread, usually come chimming in for the opposite side arguing not to file a MTC. I usually concede, which is not easy for me, that CA law is a lot different than my state's and then usually agree he makes good points, but that I would still not MTC.

You've probably had, or getting close to having, the decision made for you. You get to a certain point, thirty days prior to trial in my state, where you run out of time and the decision not to file, not only a MTC but anything else, is made for you by the rules of procedure that say your out of time.

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Hi Bandito,

Based on you initial post of Cause of action:

Cause of Action

CC-1 Plaintiff Name: Portfolio Recovery Assoc

Alleges the the defendant name: ME –

became indebted to [ ] plaintiff [X ] other (name): PLAINTIFF'S PREDECESSOR, CAPITAL ONE BANK,

N.A., who sold the account to Plaintiff.

a. [X ] within the last four years

(1) [X ] on an open book account for money due.

(2) [X ] because an account was stated in writing by and between plaintiff and defendant in which

it was agreed that defendant was indebted to plaintiff.

b. [ X ] within the last [ ] two years [ X ] four years

(3) [X ] for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff

[X ] the sum of$ $5,052.27

(4) [X] for money lent by plaintiff to defendant at defendant's request.

CC-2. $ 5,052.27, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgment interest [ ] according to proof [X ] at the rate of o . o o o o percent per year from (date): July 12, 2009

The letter that H&H sent you is bogus. Based on the California Procedure Before Trial 4th Ed. Vol 2 It states the following:

For Open Book: 1. Right to Itemization of Total Sum Alleged (H&H mentions Dobbins v Hardister well it's used here) If they don't provide any statements how can they prove the alleged Damage amount in their claim. Don't allow them to just throw an amount at you and say you owe it. Have them PROVE IT.

For Plaintiff to not provide anything it states: 2. Limits Evidence and Recovery What this means is When the BOP shows that the claim is an amount less than demanded in the pleading, recovery is limited to the lesser amt. So in Abbott v Limited Mut. Compensation Ins. Co (1938) 30 CA2d 157, 85 P2d 961, the complaint demanded $5000 for service rendered, but the items in the bill came only to $3055, and recovery was limited to $3055. So if JDB doesn't provide any statements totaling to alleged damage then their limited in what they can recover.

I would do a meet and confer and now be more specific.

1. Based on on Open Book requires itemization showing all charges and credits to justify the alleged damages. site Long Beach case

2. Provide the Contract of Assignment or Bill of Sale to show Plaintiff is the Real Party in interest

3. Provide written contract between Plaintiff and Defendant

then state CCP 454 provides serious consequences if Plaintiff doesn't comply with this request and if not provided to Defendant in 10 days, Defendant will seek relief from the courts.

Then if they don't comply, you can use your meet and confer letters and their objection letters to show your reason for MTC BOP. If you haven't file your cmc statement you might also want to state Plaintiff objected to your BOP request.

Hope this helps...:)++

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I've yet to see CALAWYER give conflicting advice in any thread where he always advises to file a motion to compel. Myself and a few others, LegalEagle in this thread, usually come chiming in for the opposite side arguing not to file a MTC. I usually concede, which is not easy for me, that CA law is a lot different than my state's and then usually agree he makes good points, but that I would still not MTC.

Coltfan and I are talking strategy. CAlawyer is addressing points of law. If there is a state statute or rule of procedure that REQUIRES an MTC then by all means comply. In states where it is not required but is optional, we feel that it is better strategy to just let the JDB lawyer walk into court and try to explain why he didn't produce documents when requested to do so. In the long run, I don't think they have the documents, so it is moot. These dudes NEVER have the documents, it doesn't fit their business model. It's like Demi Moore....."I strenuously object." Oh you do? That makes all the difference in the world. Let them get on the other side of that argument and complain to the judge that you didn't pursue them when it was THEIR obligation to comply with discovery. It is not your job to prove the other side's case, it's their job. Don't want to or can't do it? Good for me, bad for you.

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