Jump to content

Bench Trial In 3 Days..Any Chance


Recommended Posts

Here is where we are...I was been sued on breech of contract and agreement by OC. Responded to the attorney denieing knowledge of same immediately(Zwicker and Associate). I then got discoveries from OC which I responded to with the help I got from researching this forum. I sent my answers along with my own discoveries. They were late responding to my discoveries and later request for an extension which the Judge granted. Later got answers back from them with little to no information for me to work with and missing 2 important exhibit A and B- Cardmember agreement and Statements. Called the attorney and later wrote a letter regarding the missing documents. After about a month I got about 2 years copies of illegible statements ( Exhibit B) with an attached verification signed by a Global Media Reprsentative with an illegible name. I responded with a motion to compel and MTS verification and statement. At this time, I did not get any response till we met at bench trial 4 months ago. The attorney, who was recently assigned the case try to talk to me about settlement at a certain percentage which i rejected. She then told me she was just made aware of my MTC and MTS and would need more time to get the infromation for me. I told her to ask the judge if he allows it. The Judge granted them 60 days after asking for my consent. After 90 days gone by without any response from the attorney, I submitted a MTD and copy the attorney. Withing a week, I got a response from the court denying my MTD and MTS Account statement. Now I get another Bench Trial in 3 days and wasn't sure what to pursue at the trial---the verification of statement, the mising agreement, directed verdict or simply ask for abitration if its an option in the missing card member agreement. Any advice will be appreciated.

Link to comment
Share on other sites

you might consider an affidavit of your own basically trumping them.

the judge denied the MTD and the MTS for the reason that there are triable issues.

You really needed to have subpoenaed the affidavit signer to appear at trial.

no bill of sale no standing no case.

object to the evidence hearsay, improper authentication, lacks foundation.

and file a motion in limine if you are allowed by RCP's

Link to comment
Share on other sites

Oh this sounds like too much fun. It sounds like you really did a great job of setting this all important stomping of them into the ground. I'll bet you 100 bucks to your one dollar they either won't go forward with the bench trial or will ask for another continuance.

If they do go forward, you have answered your own questions. If they move to introduce anything not provided you object. They don't have a live witness that is listed on their witness there to authenticate any evidence, you object. A good rule of thumb is a document can't testify, you can't cross examine a document. You can't have a document raise their right hand and swear the document is telling the truth. You MUST have a witness there. And the beauty is you did discovery, filed motions to compel, they already had a continuance.

Oh this sounds like somebody is getting ready to have a good story for us in a few days. Tell them to shove any offer that does not include a dismissal with prejudice, you paying nothing to them, and them doing nothing with this debt other than shoving up there you know what. If they don't agree to that and they move forward with some b.s. excuse to continue then file a suit for FDCPA violations against the atty, not the creditor, for taking an action against you they did not plan to follow through with and wasting your valuable time in an effort to harrass you. You can throw in a lot of good stuff. A very weak claim, but who cares, they can only get atty fees on an FDCPA case if you file a frivilous claim. It would be far from frivilous. Your there to defend and all they have done is put you through b.s. and skirted proper discovery and orders from the court.

I'm jealous !!! Give em hell !!! Good times are coming your way :twisted:

Link to comment
Share on other sites

[if they do go forward, you have answered your own questions. If they move to introduce anything not provided you object. They don't have a live witness that is listed on their witness there to authenticate any evidence, you object.]

Thank you. They did provided 2 names they intend to use as witness during my interrogatories. Nothing more but the right to supplement their answers. I don't know what to make of those 2 since they did not sign or verify the account statement . I'm at a loss of what should be my priority as they do not provide any information during discovery other than Statements, verification of Answers and the two witness named. I also observe during our last bench trial, the attorney had represented 3 other plaintiffs and came with one witness before my case was called. All 3 defendant were absent and they got SJ.

In my MTD.,I raised alot of issue with the case i.e witholding evidence ( Alledged contract, Card member agreement), Cannot recover fees and interest in the damages, incomplete accounting and accounting method used, Hearsay on the verification by the Global Media Rep. signed on it on the interrogatories, no affidafit attached to Account statements..etc...

hence I need helpon how to priotize my points

Link to comment
Share on other sites

you might consider an affidavit of your own basically trumping them.

the judge denied the MTD and the MTS for the reason that there are triable issues.

You really needed to have subpoenaed the affidavit signer to appear at trial.

no bill of sale no standing no case.

object to the evidence hearsay, improper authentication, lacks foundation.

and file a motion in limine if you are allowed by RCP's

I don't what Motion in Limine will do now with 3 days to trial?

Link to comment
Share on other sites

you might consider an affidavit of your own basically trumping them.

the judge denied the MTD and the MTS for the reason that there are triable issues.

You really needed to have subpoenaed the affidavit signer to appear at trial.

no bill of sale no standing no case.

object to the evidence hearsay, improper authentication, lacks foundation.

and file a motion in limine if you are allowed by RCP's

How do I do my own Affidavit to trump their verification of interrogatories. They did not authenticate the copy of statement provided..

Link to comment
Share on other sites

You needed to subpoena those 2 witnesses they say they are calling. Are they near your court? I don't know the rules of your court at all but all those things you are bringing up you could ask those witnesses. If you can show they can't authenticate them and there are only partial statements and no proof of weather legal interest and fees were added on, maybe you could win your case. Its probably too late to subpoena them now but I hope they are there. Also, question them about what they do at the bank. Try to prove they don't have any personal knowledge of your case. Did you do a trial brief? you could put the motion in limine in that. Thats what I have to work on now. Otherwise I would take it to the court but I have no idea what grounds you can use to in liminie that info as I don't know the rules of your court.

Link to comment
Share on other sites

Its probably too late to subpoena them now but I hope they are there.

I hope there not. Also, not a good idea, in my opinion, to subpoena witnesses to court, that will hurt your case and help their case. Not sure I understand the logic of that. You don't subpoena the officer, that wrote you a speeding, to your trial. Why? Because the officer being there is critical to the other sides case. Without that witness they can't win. The other side must have a witness. An affidavit can't testify, so why would you subpoena the one that gave the affidavit. So they can authenticate the evidence? :shock:

Your making your case in your posts. The number one thing you want to do is make sure they can't prove their case, not proving your right and don't owe the debt. You attack their evidence a procedural and rules of evidence arguments.

To answer your question, you want to make understanding what hearsay is and what are the exceptions to the hearsay rule. Then you want to object to any evidence or witness they produce if not provided to you.

They list two witnesses. Okay do they have personal first hand knowledge about your account. If this is a junk debt buyer that is impossible. If not a junk debt buyer, then you attack their personal knowledge.

Link to comment
Share on other sites

I don't what Motion in Limine will do now with 3 days to trial?

They haven't given you a witness list, or any additional evidence to continue trial, so a motion in limine for the witness affidavit based records and affidavit should be excluded as prejudicial to you.

you can also exclude anything not disclosed at trial(pre continuence) as prejudicial.

I would also exclude any undisclosed credit reports, or credit related documents not propounded in discovery.

and excluded any other thing you want.

They will probably self destruct and the motion in limine is something they are not prepared for. file it the day before trial and fax a copy to them.

at trial if they say not soon enough, say the trial started 30 days ago, MIL can be filed at anytime before, and during the trial.

Lawyers in other cases use them to prevent the other side from asking questions that you could object to but would taint the trier of fact.(in your case the judge)

Link to comment
Share on other sites

They haven't given you a witness list, or any additional evidence to continue trial, so a motion in limine for the witness affidavit based records and affidavit should be excluded as prejudicial to you.

Basically the same thing I saying. The bottom line is a lack of disclosure to you. I would not motion in limine, but would use the same arguments as Seadragon.

I would also exclude any undisclosed credit reports, or credit related documents not propounded in discovery.

There hearsay regardless if they were disclosed to you or not.

They will probably self destruct and the motion in limine

They might, but more fun to watch them self destruct at trial and on the record. Also while not a criminal case where jeopardy attaches with the first called witness or when the jury is sworn in. You still have somewhat of protections if they figure your game plan when the case is already started. They can't really ask for a continuance half way through the trial, with the reason being, we now want to comply with the rules.

MIL can be filed at anytime before, and during the trial.

Check your local rules. In my state it's 10 days prior to trial for the cutoff.

Lawyers in other cases use them to prevent the other side from asking questions that you could object to but would taint the trier of fact.(in your case the judge)

That is exactly what they are used for. It's called letting a skunk loose in the courtroom. However, a MIL is not necessary to preventing tainting the judge in a bench trial. The judge simply won't consider matters not in evidence. In addition, you would have to argue your motion in limine to the Judge. That would require you laying out everything to the judge so the judge could rule on the motion in limine. So the judge would know about everything anyway, even if they granted the motion in limine.

We are both saying pretty much the same thing. The only difference is, I would not go with a motion in limine, but I would have basically the same arguments as Seadragon.

Link to comment
Share on other sites

you might consider an affidavit of your own basically trumping them.

the judge denied the MTD and the MTS for the reason that there are triable issues.

You really needed to have subpoenaed the affidavit signer to appear at trial.

no bill of sale no standing no case.

object to the evidence hearsay, improper authentication, lacks foundation.

and file a motion in limine if you are allowed by RCP's

Thank you all for this good stuff. Its in Ga state court.I called the clerk and she said I can file at any time and the judge will have to decide wether to rule on it or not. Do you have have a sample Motion in Limine I can use? Or should I just then wait till trial and attack whatever evidence they bring to court as hearsay or their witness personal knowledge. And if everything fails, should I request for abitration if its an option in the missing card member agreement(i.e if they bring one to trial).

Thank you all

Link to comment
Share on other sites

.[/We are both saying pretty much the same thing. The only difference is, I would not go with a motion in limine, but I would have basically the same arguments as Seadragon]

So in essence,wait for them to submit their evidence and witness at trial and attack any evidence not provided in discovery as hearsay and question the witness on personal knowledge?

Even the only evidence( Statement) is incomplete, not authenticated and illegible.

I just want to have a game plan before trail.Thank you for all your help

Link to comment
Share on other sites

.[/We are both saying pretty much the same thing. The only difference is, I would not go with a motion in limine, but I would have basically the same arguments as Seadragon]

So in essence,wait for them to submit their evidence and witness at trial and attack any evidence not provided in discovery as hearsay and question the witness on personal knowledge?

Even the only evidence( Statement) is incomplete, not authenticated and illegible.

I just want to have a game plan before trail.Thank you for all your help

Exactly what I would do. However, you won't be having a trial if you don't back down. It's hard sometimes for a non atty pro se, but you just watch. I've actually had to goad and pretty much force a creditor to go to trial.

The trial is just a formality. Barring a horrible, reversable error by the Judge, the outcome should be no surprise and the trial is just going through the motions, or just having fun with the other side.

That morning or right before the trial, if you stick to your guns, there will be no trial.

Link to comment
Share on other sites

Exactly what I would do. However, you won't be having a trial if you don't back down. It's hard sometimes for a non atty pro se, but you just watch. I've actually had to goad and pretty much force a creditor to go to trial.

The trial is just a formality. Barring a horrible, reversable error by the Judge, the outcome should be no surprise and the trial is just going through the motions, or just having fun with the other side.

That morning or right before the trial, if you stick to your guns, there will be no trial.

Thanks Coltfan1972. However what do you mean stick to my gun. Do you mean force ruling on my MTC and MTS verification or just sit and wait what the attorney does?

Can I seek Directed verdict since they have done nothing since their continuance 4 months ago or just Dismiss with prejudice?

Edited by HelpCarla
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.