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Need Help in filing a Motion to Preclude!


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Well, I've sent off the BOP and now I need help/guidance in writing a "Motion to Preclude." GCFS, Inc. is the JDB suing me and they sent me this seemingly lame "Affidavit of Correctness" from the company they bought the debt from (another JDB, not the original creditor) who is located in Texas. It has been recommended by some on this site to first go after their standing in the matter and if I can get this Affidavit tossed, they can't show standing unless the come up with something else.

Also, please correct me if I'm not understanding this correctly, but as I read it, CCP 98 says they needed to furnish an address of the Affiant and it needs to be within 150 miles of where the trial will be held. Is that right? On more point to bring up in the motion.

So I guess I'm asking if anyone can point me to where there might be a sample motion to preclude to get me started. And I certainly am asking for help from anyone who might have ideas as to the best arguments to put forward.

Thank you all for the help and I've included the Affidavit, word for word with the obvious exclusions, so all those willing to help know exactly what I'm dealing with.

By the way, I'm in California. here's the Affidavit:

AFFIDAVIT OF CORRECTNESS

STATE OF TEXAS COUNTY OF TARRANT

Before ME, on the day and date set forth below, the undersigned Notary, being qualified and commissioned in and for the county and state aforesaid, personally came and appeared Knuckleheadis Maximus, who being duly sworn, did depose and say:

Affiant is the President/CEO at Buyers of Junk Debt, LP and in that capacity, Affiant has knowledge of the account data that was transferred to Buyers of Junk Debt, LP from BigBank USA (the “Seller”) representing the debt (the “Account”) made by Betty Spaghetti (the “Debtor”) made payable to BigBank USA (the “Original Creditor”).

The Affiant was responsible for the books and records of Buyers of Junk Debt, LP; and, that Affiant knows which payments have and have not been received by Buyers of Junk Debt, LP on the Accounts; that a complete and accurate list of the Accounts, sold to JDB That’s Suing Me, Inc. is attached hereto as Exhibit A, and, that the balances of said Accounts indicated thereon are accurate to the best of Affiant’s knowledge and belief, based on the balances presented to Buyers of Junk Debt, LP at the time of its acquisition of the Accounts from the Seller and adjusted for any payments received by Buyers of Junk Debt, LP;

That on information and belief based upon the account data provided Buyers of Junk Debt, LP from the Seller the account has fully matured and the balance due remains unpaid; and, that based upon the account data furnished by Seller the correct balance currently owed by the Debtor on Account Number XXXXXXXXXXXXXXXX as reported by Seller, which was purchased by JDB That’s Suing Me, Inc. and as reflected in all business records of the account of which Buyers of Junk Debt, LP has knowledge, is $ X,XXX.XX.

To the best of Affiant’s knowledge, information and belief, the debtor does not qualify for the exemption pursuant to the Servicemember’s Civil Relief Act.

I declare under Penalty of Perjury, pursuant to the laws of the state of Texas, that I have knowledge of the facts contained herein to the extent and upon the basis set forth above and if called upon and sworn as a witness, I could testify competently thereto.

Executed Month XX, 2011 at Tarrant County, Texas.

Signed: Knuckleheadis Maximus

By: Knuckleheadis Maximus

Title: President/CEO

Sworn to and Subscribed before me

On Month XX, 2011

Signed by Notary

Thanks again,

rt

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This is not a CCP 98 & that's why its not admissible evidence. You did not receive a BOS from the OC to the first JDB? And now they are trying to use this. It doesn't comply w/ a CCP 98 which is the only way a judge will allow an affidavit in. This is really junk & means nothing in CA. She signs under P&P for TX this is CA. WTH? They're trying to get you to settle. TG you found this site!

I hope someone can help you squash this. I know Seadragon can help that poster is from CA. Many others on here can too who've helped me as well get my cases dismissed w/ prejudice.

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  • 6 months later...
  • 5 months later...

I have the same problem and already sent the BOP/ Discovery. I have 329 days case, a Case Managment Conference schedule for Feb, Discovery Hearing for March, and GSFS sumitted Motion to Deem Facts on Dec.

 

The BOP was answer the same way, The Discovery was not properly answer by them, the 35 questions they answer like 15 and the rest did not. they said something like i was asking 3 sentences in one question so by law that was not correct. I send them them the First Discovery. I answer their Discovery were they were asking for proof of documets but that was after I send the FIrst Discovery, now they are saying that i did not response that a lie.

 

They even file "DEFAULT COURT JUDGMENT RECEIVED " before time  AND the Summons was just Drop on my Mailbox with no Properly Service, and they lie saying that they give it to me personaly on a Sunday wich i was at church and have witness.

 

My question is what should i do know. i do not have experience trying my best. 

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Boy I understand your position.  These guys are particularly persistent.  They use every legal angle available to them and you will have to do A LOT of studying and really learn what is going on.  There is a bunch of help on this board but you will still need to do a bunch of work.  These guys are not your typical roll-over JDB, little Brighton Hushing-Kline, GCFS’s in house attorney, thinks he’s cleaver but he just got a smack down and you can do it to.  It sounds like you are pretty far along so you need to get busy.

 

To begin with, start your own thread(s) with the specific’s of your case and answer the questions listed here http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/   Also, remove all personal info and round the amount you are being sued for.  You’ll get a lot of help here, the California army is growing every month.

 

Good Luck,

 

rt   

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  • 1 month later...

I WENT TO CASE MANAGMENT CONFERENCE AND THE JUDGE SAID THAT MY CASE WAS ONE YEAR OLD AND THAT HE DID NOT HAVE TIME FOR THIS, THE Attorney of Representative from GSFC was telling telling the Judge that we have  Discovery Hearing scheduled for 03/29 (they will try to argue and to win JUDMENT by DEFAULT saying that i did not answered they discovery request on time, these was a lie i have proof of a letter they send me giving me 10 more days to answer and the certified card form postal service i put all of these together and file an original to court and one to GCFS inc,  i still have to show up on 03/29 did not now what will happen there) after that the judge told him that ok our TRIAL date will be 4/19 and dismissed us.

 

I did send the BOP and they respond the same way as they responded to all of us. do i send them a second request, i find out that  Motion in Limine to Preclude requires 2 request of BOP and some comments.

 

Do I file CCP 98? because there business is  more miles than required by law and they have a PO Box in CA but still far from my address?

Do I request witness from my side and their side, which forms SUBPOENA FOR WITNESS should i used.? 

Should i request a subpoena for the 2 collections affidavits?

 

Should i request a subpoena for the person that said they give me the summons on by hand at my home on a Sunday, a day that i was at church on the time they said i received the summons and i have witness that i was at church and that the summons was left on my mailbox with no envelope or stamp?

 

I also summit  my Case Management Statement twice, because we change of  Judge and GCFS inc did the same. I make a change on the Trial i ask for Jury Trial  i still did not know if the judge will take a look at these but i still have the TRIAL for 4/19.

 

IS THESE PRE-TRAIL of is it the last day, the real TRIAL?

 

WHAT do I need to be prepared? I need some help thanks. lol

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Hi Pata,

 

You will get the most help if you start your own thread where people can comment and help you.  That way, all your case info will be in one place.  Start a thread and first answer the questions listed in this link.  Then give a detailed explaination of where your case stands.  The help will come.

 

A real good place for you to start is to read ASTMedics thread located here.  It's a different JDB but it will give you a good idea of the process.

 

Good Luck,

 

rt

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::jacked::   Haha

 

I have done a motion to preclude before and the next letter I received was a dismissal with prejudice. I can definitely send it to you but California is SOOOO different from any other state. I don't want to steer you in a wrong direction. Have you contacted Calawyer?

 

Good luck rt! Let me know if you want mine to take a look at.

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Thank you all so very much, I really appreciate the current responses.

 

This thread is over a year old and my issues with it have long since been resolved, in my favor I might ad.  I was just suggesting to Pata that they start their own thread so the help thye get could be more specific to their case.

 

Evon v Mickell... There goes Seadragon again with the case law, you're an animal Seadragon with your case law library!  Gotta love it!

 

rt

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Thank you all so very much, I really appreciate the current responses.

 

This thread is over a year old and my issues with it have long since been resolved, in my favor I might ad.  I was just suggesting to Pata that they start their own thread so the help thye get could be more specific to their case.

 

Evon v Mickell... There goes Seadragon again with the case law, you're an animal Seadragon with your case law library!  Gotta love it!

 

rt

Don't thank me thank: http://lexisnexis.com/clients/CAcourts/ and pluging in words such as preclusion in the terms section and then it shows cases then you look to the headnotes or summaries.

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  • 4 weeks later...

Boy I understand your position.  These guys are particularly persistent.  They use every legal angle available to them and you will have to do A LOT of studying and really learn what is going on.  There is a bunch of help on this board but you will still need to do a bunch of work.  These guys are not your typical roll-over JDB, little Brighton Hushing-Kline, GCFS’s in house attorney, thinks he’s cleaver but he just got a smack down and you can do it to.  It sounds like you are pretty far along so you need to get busy.

 

To begin with, start your own thread(s) with the specific’s of your case and answer the questions listed here http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/   Also, remove all personal info and round the amount you are being sued for.  You’ll get a lot of help here, the California army is growing every month.

108

Good Luck,

 

rt   

the witness are Carol Mcnellis she is  more than 500 miles and Anthony Piazza (the one that says he served me the summons personal) he is 545 miles.

how can i defend my self and send them a subpoena if they are to far? Carol give another 2nd option of address in Cypress CA 108 miles. where do you sugested i send the subpoena to Carol? or should i just make and statement of Objection on cc98. on their declaration of custodian of records pcc98.?

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  • 3 weeks later...

for purposes of Distefano trashing how does this argument sound?

 

Distefano is a real estate construction case, the counterclaim of Hall was precluded because the court allowed plaintiff Distefano to epreclude the giving of evidence the court found that the real cause of action was contractual negligence and not a breach of contract. This is far away from the causes of action plead in this matter. Credit Card cases are based on accounts and have to be expounded. the account stated is inapplicable to credit card litigation as no new balance is struck between the parties and is available to assignees when they are not specifically made parties to an agreement.

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