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Dealing with a "Declaration of Plaintiff"


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Im am trying to help my wife deal with a lawsuit from a collection law firm. It is for Citibank (South Dakota) N.A., and the attorney is "Hunt & Henriques, Attorneys at law" based in San Jose, CA.

Initially she received a Summons and Complaint. I had my wife do a General Denial. After much time passed she received a "Notice of Trial/Hearing" from Long Beach court.

The trial date is set for 3/16/2012. I'm surprised that we were never asked to go to any case management conference.

Either way, my wife just received a "Declaration of Plaintiff in lieu of personal testimony at trial". I have been reading over this blog and see that most people advise subpoenaing the person who wrote this declaration. They have provided an address in downtown Los Angeles where the person can be served for the 20 days leading up to the trial. The name of the law firm they gave is "ABC Legal". I was able to google the company, and do see it is official, but unaffiliated with Citibank. So I have to assume this would technically be an expert witness. One thing I did notice was according to C.C.P. 98, there was certain requirements. The requirements said it needed a Date, place, and signature of the affiant, but no place was written. Is it possible to have this thrown out on a technicality?

I know time is of the essence. What is the best method to proceed? Can I file any motions considering there was not Case Management Conference? Do I subpoena this witness, and prepare for trial? I know I saw a few people offering a list of questions to ask this witness if they do show up to court; can anyone send me a solid list of questions to grill this person?

I also saw someone mention that you need to file for a waiver of fees from the court. We did pay the initial fee to respond. I see on the letter the court sent it stated we would have to deposit money for a jury prior to the court date.

Anybody that can offer me any advice on how to proceed would be greatly appreciated.

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Im am trying to help my wife deal with a lawsuit from a collection law firm. It is for Citibank (South Dakota) N.A., and the attorney is "Hunt & Henriques, Attorneys at law" based in San Jose, CA.

Initially she received a Summons and Complaint. I had my wife do a General Denial. After much time passed she received a "Notice of Trial/Hearing" from Long Beach court.

The trial date is set for 3/16/2012. I'm surprised that we were never asked to go to any case management conference.

Either way, my wife just received a "Declaration of Plaintiff in lieu of personal testimony at trial". I have been reading over this blog and see that most people advise subpoenaing the person who wrote this declaration. They have provided an address in downtown Los Angeles where the person can be served for the 20 days leading up to the trial. The name of the law firm they gave is "ABC Legal". I was able to google the company, and do see it is official, but unaffiliated with Citibank. So I have to assume this would technically be an expert witness. One thing I did notice was according to C.C.P. 98, there was certain requirements. The requirements said it needed a Date, place, and signature of the affiant, but no place was written. Is it possible to have this thrown out on a technicality?

I know time is of the essence. What is the best method to proceed? Can I file any motions considering there was not Case Management Conference? Do I subpoena this witness, and prepare for trial? I know I saw a few people offering a list of questions to ask this witness if they do show up to court; can anyone send me a solid list of questions to grill this person?

I also saw someone mention that you need to file for a waiver of fees from the court. We did pay the initial fee to respond. I see on the letter the court sent it stated we would have to deposit money for a jury prior to the court date.

Anybody that can offer me any advice on how to proceed would be greatly appreciated.

THere are lots of posts here on this issue. Search for the operative code section, CCP 98.

Is the address given 150 miles or less from the courthouse? If so, I would recommend preparing a subpoena, having it signed by the clerk, then having a process server attempt to "serve" it on the witness. The witness will probably not be there. In fact, the declaration is usually signed by an out of state witness.

Also, if possible, you should hand serve them tomorrow with a CCP 96 demand. You must serve the demand 30 days before trial. THe text of the demand is set forth in the statute itself. A form can be found here: http://www.courts.ca.gov/documents/disc015.pdf

Good luck.

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I won my case or got it dismissed because the plaintiff used a ccp98. So did several others here. You have to serve the declarant a subpoena to show up in court that day and ask them for all sorts of personal knowledge that they claim to have. Ask them for native copies of all the bills, tell them to bring all the native copies of statements, the original agreement you signed, their job description, and anything you can think of re: their so called personal knowledge.

Usually they live out of town or in another state and they are required to live or work within 150 miles of the courthouse. If they don't (mine lived in another state and I knew they weren't going to pay to bring her there) anyway, if the subpoena is unabled to be delivered the person serving it needs to sign a declaration on it stating they don't live or work there. I used the sheriff to deliver mine. You might have to pay for that or you could hire a process server to deliver it. Tell them what you need.

When you get the subpoena back with the declaration they couldn't be served then you write up a motion in limine that they were not within a 150 miles of the court and ask that their declaration be dismissed or striken and all the statements and documents the other side is offering as proof that you owe this. Also later look into the Vee Vinhees case regarding computerized documents and statements as a defense if you end up at trial.. Do a search for my name and also vdlca. We both got our cases dismissed due to this. Find more info.

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You need to send it to the address that is 150 miles away but to the person that is the declarant who has personal knowledge. You send it to her at the address they claim they are going to be at 10 days before trial and then have it served by someone. Sheriff or process server. It usually cost 40 or 50 bucks to have it served. You get the subpoena off the court site and fill it in. I found it a little confusing so be careful and check to be sure it is filled out correctly..

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Unless an actual person with intimate knowledge of how the Original creitor handles their accounts it can not fly in court.

Any affidavit, any statement in lieu, any written instrument that claims they know something that is presented and can not be defended in court by the person whom signed it it is HEARSAY evidence.

You should object to it in open court when they present it. stand up and say objection your honor, hearsay, motion to preclude, when the judge asks on what grounds you say the person who wrote the document is not here to testify to the documents authenticity and accurateness. Therefore is does not pass the hearsay rule.

HEARSAY RULE: the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine (ask questions of) him or her

Edited by BTO429
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Do I need to have the CCP96 served to the same person named as living within 150 miles, or to the original plaintiff in San Jose?

I don't see anyone answering this question for you, I am much to new to be offering advice; however, my guess would be to serve it upon the Plaintiff in San Jose.

FIY, here is CCP 96

(a)Any party may serve on any other party a request in substantially the following form:

TO: ,

attorney for :

You are requested to serve on the undersigned, within 20 days, a statement of: the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer or, if the documents are not available to you, a description of them. Witnesses and evidence that will be used only for impeachment need not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW.

(b)The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial, unless otherwise ordered.

©A statement responding to the request shall be served within 20 days from the service of the request.

(d)No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion.

(e)No request or statement served under this section shall be filed, unless otherwise ordered.

(f)The clerk shall furnish forms for requests under this rule.

(g)The time for performing acts required under this section shall be computed as provided by law, including Section 1013.

Hope this helps, good luck,

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Do I need to have the CCP96 served to the same person named as living within 150 miles, or to the original plaintiff in San Jose?

A CCP 96 is different than a CCP 98. The CCP 96 is to be sent to the Plaintiffs atty w/ a proof of service (POS) attached & not filed w/ the court.

California Code of Civil Procedure Section 96 - California Attorney Resources - California Laws

If you don't hand serve this tomorrow at the atty address you will waive your right to use it. This is optional, yet it will lock them in on their witness & evidence they plan on using at trial if you can get it to them in time.

Mine was late on my first case (they objected) & I did not send one on my second case.

I won both cases at trial. :wink:

The CCP 98 witness in the Declaration is the one you will subpoena no less than 10 days prior to trial & they claim they will be of service 20 days prior so you have a 10 day window to do this.

HTH's! :mrgreen:

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If you want to put in the time to get the CCP 96 served tomorrow, I'm pretty sure there are services in San Jose you could contact and have the Plaintiff served. You'd probably need to type it up, fax or e-mail it to them, and have them drive it over to their office tomorrow. I know there are services like this around Sacramento to file corporate papers for you and I would imagine there are some that do this in the San Jose area as well. Most law offices are located by a court house and those service companies should be located in the same general area. Now, cost, that's another thing, if you could find a company to do this, I'm sure it wouldn't be cheap.

I would google search legal service companies in the San Jose area.

I don't know if this would work or not, but it's just an idea.

Again good luck

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Thank you for your response. You said it has to be hand served 30 days prior. The plaintiff is in San Jose. It wouldnt be possible to show up at their office tomorrow. I will instruct my wife to subpoena the witness. What are some other options we can pursue?

If they supplied a fax number on the pleadings it is prima facie evidence of allowance of service via fax use the following proof of service:

http://www.courts.ca.gov/documents/pos040.pdf

Most printers have fax and fedex kinkos have fax services you can also use your computer's modem to fax.

then also next day mail it that also counts as service.

Subpoena the declarant 20 days before trial(you are going to have to take the subpoena to the court for the judge to sign)

reviewing;

prepare your CCP 98 declaration this one is the last in the list the other stuff you may need as a GUIDE(use this one as a GUIDE don't just mail this one):http://www.creditinfocenter.com/forums/there-lawyer-house/307888-response-bill-particulars-2.html#post1138246

and send this (make sure you fill it out):http://www.courts.ca.gov/documents/disc015.pdf

Fill out the proof of service check the By fax box fill it out have some one other than the plaintiff who is over the age of 18, list the two documents, and actually fax it to them, get a transmission report for the fax and save it just in case they say they didn't recieve it(yes they will do that)

Then express mail or priority mail it to them make sure you get a signature or CMRRR for it.

Go to the court and file they Declaration inlieu of live testimony.

Study hard for your case. and prepare the trial brief using your declaration as a guide.

Sorry couldn't help sooner it is Valentines Day and I was busy:)

Do all this tomorrow then start looking up the following issues standing, improper declaration, business record exception to the hearsay rule, improper authentication, and the requirements for the causes of action(you didn't mention what they were).

Check out this post:http://www.creditinfocenter.com/forums/1147211-post110.html

read the trial briefs and understand how they apply to your case.

read this post:http://www.creditinfocenter.com/forums/1131122-post60.html

use the lexis nexis link to research the cases and understand them.

For the record, H&H will send and attorney who likes to question defendants and get them to admit to the debt by asking questions about the billing statements, did you buy stuff here, what did you by from here, that kind of thing. one admittion and they win, I don't recall is a way of answering.

So and this is imperative, Your wife must come on here and learn or she will be a sitting duck in court. I will help in that instance but if you are going to tell her what to say you may not get the same results as if she participates here on the board. She can do it with the research and support from you and everyone else.

you have thirty days till trial and you were asking about the pre-trial paperwork, that means you have alot more studying. The judges in long beach are a little harsh because most are former prosecutors so tighten your arguements.

So push to get that stuff out tomorrow, and study, study, study, both of you.

Edited by Seadragon
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Thank you all very very much. It sounds like Hunt and Henrique are a tough cookie. I am going to fax off the DISC-015 today, and then mail off a certified copy as well. Ill make sure that she also subpoena's the witness.

I'm going to send my wife a link to this forum and have her study as much as possible.

I noticed in some other peoples forums they had a list of questions to use when examining their witness. Does anyone have a list of these?

I'd say it's preferable to still try to settle this out of court. My wife owes around $5600.00. Does anyone think I can get it settled for say around $1000?

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Maybe you can get it settled for that or a little more if you have cash but I wouldn't ask them now. Wait til the eve of trial and see what happens with the ccp96 stuff. I really doubt they are bringing that person here and they may dismiss the case if you stick to your guns. They may not have anything to prove their side of the case either.

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What does this "declaration" say? Is this an affidavit with the usual stuff that says the affiant is familiar with Citi's record keeping, blah blah blah, and the statements are legit, etc. The part that is puzzling is the in lieu of personal testimony. I don't buy that one. You cannot cross examine an affidavit. This sounds like a trick......here's my affidavit, everything in here is correct, and by the way, take my word for it because I'm not coming to court. Not so fast, pal, you ARE coming to court. You also need to conduct discovery against Citibank. Here is what you should ask:

1. State with specificity the choice of law provision in the alleged cardholder agreement.

2. State whether or not Citibank is bound by the statutes of the choice of law provision Citibank chooses in their cardholder agreement.

3. State whether or not the alleged cardholder agreement fully explains the statutes by which the cardholder is allegedly bound

4. If the response to 3 was in the negative, explain why Citibank refuses to divulge to the consumer the statutes under which they are allegedly bound

5. If the response to 3 was in the affirmative, state the specific statutes that apply.

6. If the response to 2 was in the negative, state why Citibank is not bound by the choice of law their customers are supposedly bound by.

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

These are critical to several potential defenses. The responses you get will determine what defense to pursue.

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I had started another thread cause I was on my lunch break and didnt have time to find this original thread. I had my wife sign the form, but I need to know what to put in the Responding Party field on the DICS-015 form. Do I put the attorneys name, or Citibank, or both?

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Sorry so late work was busy today.

Hope you are reading the caselaw.

Elkins v. Superior Court for the declaration in lieu of they will file.

Herrera v. for the declaration also

In re: Vinhee for computer records authentification, and lack of personal knowledge.

Doppes v. Bently Motors for discovery denial by plaintiff's

and the statutes CC 1788, CCP 1987, CCP 98, CCP454.

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