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Trial Date Set; CCP 98 Received in Response to Further BOP Request


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Plaintiff: ASSET ACCEPTANCE LLC

Attorney: Law Office of XXXXXXXXX

Amount involved: $4,xxx ($7,xxx with interest). Attorney fees and other costs not included

Original creditor: CITIBANK AT&T UNIVERSAL CARD

DOFD: 03/2008; SOL: 4 years - 03/2012

Trial set for: 06/2x/2012

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Timeline:

07/xx/2011 - Summons served

07/xx/2011 - Response filed

09/xx/2011 - Settlement letter sent by attorney; $3,500 to settle; latter reduced to $2,500

12/xx/2011 - Case Management Conference; Result - CMC scheduled for 03/xx/2012

11/xx/2011 - Form Interrogatories served to plaintiff

11/xx/2011 - Request for Statement of Witness and Evidence served to plaintiff

12/xx/2011 - Letter sent to plaintiff demanding a response to Interrogatories and RFSOW&E

12/xx/2011 - Received response to Interrogatories and RFSOW&E

Documents attached:

1. Claim summary - with final principle, interest, total balance and call log

2. Bill of Sale

3. Affidavit by Jane Doe #1, Asset Acceptance employee – Notary in Michigan

02/xx/2012 - Sent Demand for Bill of Particulars

02/xx/2012 - Received response to Bill of Particulars

Documents attached:

1. Bill of Sale

2. Three billing statements – not in consecutive order

3. Affidavit by Jane Doe #2, another Asset Acceptance employee – Notary in Michigan

4. 1 page account summary w/ final interest and balance

03/xx/2012 - Case Management Conference; Result - Trial scheduled for 06/2x/2012

04/xx/2012 - Sent a meet and confer letter requesting a further response to deficient BOP

04/xx/2012 - Received “Prepared Testimony in Lieu of Direct Testimony CCP 98”

Documents attached:

1. Photocopy of affidavit sent in response to BOP

2. 1 page account summary – same one sent in response to BOP

3. Bill of Sale

4. Three billing statements – Same ones from response to BOP

5. Photocopy of “Citibank Card Agreement” stamped “JUL 18 2002” with no signature

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I’ve found it difficult to find the time to do all the research that’s needed for this case, I am a still learning and I need a little help. FYI: I started a thread months ago about an incomplete response to an item on the Form Interrogatories I sent them. I completely dropped the ball on that….I waited too long and the window for the motion to compel passed. Their attorney was completely uncooperative and refused to agree to an extension in writing.

Questions:

1. I go to trial in less than two months. I have not received a response to my letter for Asset Acceptance to send me a further response to my BOP request. Instead, they have sent me a CCP 98 declaration. Should I file a Motion to Compel?

2. I expect to file a Motion in Limine because the CCP 98 declaration was executed 150+ miles from the courthouse. When is the best time to file a Motion in Limine?

3. The CCP 98 declaration includes an attached affidavit (w/ no address) by a person that is different than the declarant….is that ok? When I write up the Motion in Limine, I know I need to put the name of the CCP 98 declarant, but what about this other person? Do I need to send a subpoena? Also, both witnesses are employees of the JDB...no OC witnesses, should I protest?

4. The CCP 98 declaration states that “XYZ is indebted to my employer in the sum of $4,xxx” while the affidavit attached says “our claim against the defendant is in the amount of $7,xxx”……should I take issue with this?

5. Do I need to draft a trial brief? Is there anything else I should be doing right now?

Any help is greatly appreciated

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http://www.creditinfocenter.com/forums/1162231-post18.html

as for the motion in limine that is best just before trial.

Here is good information:

http://www.creditinfocenter.com/forums/1147211-post110.html

you are worried that you you are behind the game it seems as if you have enough time to accomplish your goals.

so you need to get organized and make preps for trial.

organize a trial binder, and make a calendar with the deadlines clearly marked and research for your position in the case.

Most of the cases have "standing" as the overiding issue. Other issues are inadmissible evidence, records admissibilty, and personal knowledge of affiants.

you have 60 days till trial use the time wisely.

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Thanks Seadragon. That post you linked to is very informative.

When the time comes (35 days from trial), can I send another CCP 96? It may have been bad strategy on my part, but I sent one several months ago.

My big concern right now is what to do about receiving a CCP 98 declaration in response to my request for a further BOP response. The opening paragraphs of the BOP response they sent said that they are not finished with discovery/research, and that more documents may come before/during trial. I sent a letter objecting and requesting a full itemization of transactions, and the card agreement. I gave them 10 days, they sent the CCP 98 on the 8th day w/ a card agreement attached (not-signed). I know they don’t have a complete statement history; I just want to force them to lay all their cards on the table.

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bump.

@Sadragon: I followed the link to the documents you posted and I found that they all work except "redacted trial brief.zip". The .zip contains a .doc that is corrupt and will not open. Can you please send/post a working copy? Thanks again!

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bump.

@Sadragon: I followed the link to the documents you posted and I found that they all work except "redacted trial brief.zip". The .zip contains a .doc that is corrupt and will not open. Can you please send/post a working copy? Thanks again!

That one is an open office .doc

download open office(it is free) and it will format fine. I don't like MSO.

MSO reports it as corrupt but it opens fine for me.

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Defendant requests the court take Judicial Notice of the filings and Declarations of the courts file,and all other papers and exhibits that may be presented at the trial of the above captioned matter. Defendant requests oral arguments at the trial in the matter.

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i. TABLE OF CONTENTS

Caption page....................................................................................................................................Pg. 1

i. TABLE OF CONTENTS........................................................................................................... Pg. 2

ii. TABLE OF AUTHORITIES.................................................................................................... Pg. 3

I. Procedural History......................................................................................................................Pg. 4

II. Introduction............................................................................................................................... Pg. 4

III. Plaintiff lacks standing to proceed in this matter................................................................ Pg. 5

A.The defendant requests the court find that Plaintiffs have failed to prove standing....................Pg. 5

B. Plaintiffs have engaged in acts that violate arbitration statutes, codes, acts and laws by failing to arbitrate and seeking judgment in court proceedings when the publicly available terms in place to govern the plaintiff's activities state that parties are only to arbitrate. …........................................Pg. 6

IV. Capital Ones assertions of an account stated and Unjust enrichment are without merit.Pg. 6

V. Defendants in Limine matters and evidence exclusion

a. Plaintiffs Delaration in lieu of live testimony...............................................................Pg. 7

b. Preservation of Objections to denials of jury fee waiver, and Motion to Compel arbitration...........................................................................................................................Pg. 8

VI. Conclusions...............................................................................................................................Pg. 9

ii. TABLE OF AUTHORITIES

Cases

Elkins v. Superior Court,

41 Cal. 4th 1337 (Cal. 2007)

American Express Travel Related Servs. Co., Inc. v. Vinhnee (In re Vinhnee),

336 B.R. 437 Bankr. 9th Cir. 2005)

Gleason v. Klamer (1980)

103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483]

H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp.,

99 Cal. App. 3d 711 (Cal. App. 5th Dist. 1979)

Statutes

Ca. Business and Professions Code§17200

Ca. Code Civil Procedure(CCP)§436

Ca. Code Civil Procedure(CCP)§98

Ca. Civil Code(CCC)§1788.12(a)

Ca. Civil Code(CCC)§1788.17

Ca. Evidence Code(Evid. Code)§1200.........................................................................................various

Ca. Evidence Code(Evid. Code)§702 et. seq................................................................................various

Ca Evidence Code(Evid. Code)§1402 et. seq...............................................................................various

Legal Journals

Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A StricterStandard for the Future?, 4 Shidler J. L. Com. & Tech. 6 (Oct. 17, 2007), at <

http://www.lctjournal.washington.edu/Vol4/a06Offenbecher.html> …........................................Pg. 6

Edward J. Imwinkelried, Evidentiary Foundations, 63 (1980)........................................................Pg. 6

I. Procedural History

On 12/29/10 Plaintiff Evil Ones Bank filed a lawsuit against Defendant Pro Per. On 1/19/2011 Defendant timely answered the lawsuit. On March 25, 2011 Defendant Pro Per served a request for a Bill of Particulars on Plaintiff. Plaintiff’s response was entirely deficient and Plaintiff objected to the Bill of Particulars. On the 21st day of April, 2011 Defendant served a 2nd Bill of Particulars on Plaintiff and was answered in another deficient manner lacking any accounting of the alleged debt.

On May 11, 2011 a Motion to Compel Arbitration and stay the proceedings was filed and a hearing was held on May 27, 2011. A tentative ruling of denial was given on May 25, 2011 but I attended the hearing and argued my points on why he court must stop the proceedings and allow for arbitration.

On June 6, 2011, Defendant file a motion to reconsider the Motion to Compel Arbitration as the Plaintiff still refused her request inspite of initiating the claim with JAMS an arbitration group and getting a waiver of fees. On June 30, 2011 the court still denied arbitration. On July 1, 2011 Defendant Pro Per argued orally the motion to reconsider arbitration pointing out the new Supreme Court ruling that if there is an arbitration provision in a contract it must be honored. The judge denied the motion.

On November 16, the Plaintiff filed a court brief with a CCP 98 declaration for a Wandi Chamberlain who resides in Virginia, which is invalid because she does not live or work within 150 miles of the Vista, CA court.

On November 16, 2011 Defendant went to the court to file a fee waiver for additional fees but court clerk refused to file it which took Defendant several days to straighten out by contacting a supervisor. On November 19th the judge refused to allow the fee waiver for the jury trial that Defendant had requestion back in March 25, 2011 at the Case Management hearing. The 2 day untimely filing was due to court personnel and not the Defendant. On December 14, 2011 Defendant filed her Trial Brief.

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II. Introduction

Thecase at issue is governed by state and federal statutes in the area of fair debt collection practices, unfair business practices, B&P code 17200, The NAA, The CAA, the laws of the State of California for Statute of Limitations on agreements not in writing, and fair credit reporting. Plaintiff's have violated a number of these statutes in the course of these proceedings.

  1. Plaintiffs have engaged in acts that violate arbitration statutes, codes, acts and laws by failing to arbitrate and seeking judgment in court proceedings when the publicly available terms in place to govern the plaintiff's activities state that parties are only to arbitrate.


  2. The Statutes of Limitations have run out. Statute of Limitations for unwritten agreements is limited to 2 years from accrual of a cause of action.


  3. The complaint at issue is filled with unsupported claims, hearsay, and inaccuracies.


  4. The answer has several valid affirmative defenses.<list all of them>


  5. Plaintiff has not proven Defendant entered into any alleged agreement with the plaintiffs.


  6. The plaintiffs have not recited fully the terms of the alleged agreement nor have they proven the nature of any alleged contracts or agreements whether written, oral, or if it is an adhesion contract.


  7. Plaintiffs have used hearsay statements in the pleadings of the case.


  8. Plaintiff's witness was not located for service of process within 150 miles of the court as required by CCP§98©, and thus the CCP 98 declaration of Wandi Chamberlain is not valid or admissible in Court and should be excluded and struck. The witness further is not an employee of Evil Ones Bank and cannot authenticate the records of another entity.


  9. Plaintiffs have not completed the Bill of Particulars CCP§ 454 defendant propounded on them.


  10. Plaintiffs failure to state a claim for which relief can be granted have left them with a lack of standing. Without standing, the case cannot be ruled in plaintiffs favor.


III. Plaintiff lacks standing to proceed in the present suit.

A.The defendant requests the court find that Plaintiffs have failed to prove standing.

1. Without a valid agreement the Statute of limitations has expired. The plaintiff has no valid written agreement. The statute of limitations on an instrument not in writing is 2 years in the State of California.

2.Plaintiffs aver that an alleged agreement is in effect between the parties, but fail to identify the nature, terms, or proper venue for the alleged controversy. Defendant has requested a Bill of Particulars, a pleading, in an effort to find out what controversy exists, what are the rights of the parties, what venue is proper, what choice of law is in effect for the alleged causes of action, what rights plaintiff has waived in the alleged action, and what course of action is proper repeatedly from the plaintiff to no avail.

B. Plaintiffs have engaged in acts that violate arbitration statutes, codes, acts and laws by failing to arbitrate and seeking judgment in court proceedings when the publicly available terms in place to govern the plaintiff's activities state that parties are only to arbitrate.

1. This creates unfair competition in that California banks are bound by the terms of arbitration agreements, now comes the plaintiff violating it's own alleged terms prejudicing defendant and committing a knowing breach of their own alleged agreement. Defendant moved diligently to compel arbitration which the court denied, which defendant on information and belief is inapposite to established caselaw concerning arbitration election. Reviewing courts have overturned denial of motions to compel numerous times.

IV. Capital Ones assertions of an account stated and Unjust enrichment are without merit

Plaintiff's have never met with or contacted Defendant concerning the alleged account at issue prior to the instant suit. There has been no meeting of the minds, no reconciliation of accounts, no other communication about the alleged account. Plaintiffs have failed to show how defendant was enriched unjustly rendering the causes of action of the complaint a nullity, void, and unproven. The attempt to first, Deny an arbitration agreement exists and then attempt to violate an alleged agreement by trying to collect on an account stated when no meeting of the minds have occurred and no relevant or admissible proof of account has been shown to exist. Defendant cites:

H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp., 99 Cal. App. 3d 711 (Cal. App. 5th Dist. 1979) and:

"An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ' "it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. . . ." Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.' " (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations omitted.)

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The plaintiff's causes of action are all time barred by the statute of limitations. The have heretofore not only tried to circumvent an alleged agreements mandatory arbitration but have committed violations of CC1788, the FDCPA, and other statutes. The affirmative defenses had to be plead by statute so the court should consider them when making it's determination.

V. Defendants in Limine matters and evidence exclusion

a.Plaintiffs Delaration in lieu of live testimony

1. Plaintiffs have submitted a Declaration of Clueless Employee in lieu of live testimony dated 13/13/13. The affiant makes unsupported statements in that are based on hearsay(Evid. Code 1200), lack of personal knowledge(Evid. Code 702(a)),Improper Authentication(Evid. Code 1402). Defendant objects to The Declaration on these grounds. Defendant requests the court that it be stricken from the record. Plaintiff's witness was not located for service of process within 150 miles of the court as required by CCP§98© and thus the CCP 98 declaration of Wandi Chamberlain is not valid or admissible in Court and should be excluded and struck. The witness further is not an employee of Evil Ones Bank and cannot authenticate the records of another entity.

2. According to the holding in Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007), defendant requests the court to strike the declaration. CCP§436states:1

“the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (B) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”.

3. The declaration attempts to include hearsay evidence in the proceedings without the ability of the trier of fact to evaluate the credibility of the witness. The declaration also does not authenticate documents properly in that the statements of the witness are too generalized to provide the defendant and the court information of the alleged documents status as to their physical attributes and source. Ca Evidence Code§14022 states that:

“ The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration or appearance thereof”.

4. The United States Bankruptcy Panel 9th circuit weighs in on computer records evidentiary foundation standards in it's decision in In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) The court found the complexity of

“ever-developing computer technology” requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005)Id at 445. Other legal scholars have written about this need for the 11 step process cited by the court. In Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A StricterStandard for the Future? He stated “The Vinhnee court’s emphasis on reliability, accuracy, and system knowledge is consistent with urgings by the Manual and some scholars. Though it employs an eleven-step foundation process that has not previously been cited by courts, the key inquiries are into accuracy and reliability. These issues are not new and are the crux of traditional authentication inquiries in all areas of evidence.

Imwinkelried’s foundation process has been in circulation since 1980 and his Evidentiary Foundations book is a widely employed trial tool.”3

5. Defendant has served a subpoena to compel attendance before the court and to produce books, documents and other things. The sheriff's office attempted service at the designated address and was told that the alleged witness was not employed or available there. The declaration is now non admissible.

6. Plaintiffs have tried to introduce the alleged documents into this proceeding with improper foundation as to their admissibility. Defendant objects to them on the grounds of hearsay, lack of personal knowledge, improper authentication, lack of standing, and assumes facts not in evidence.

b. Preservation of Objections to denials of jury fee waiver, and Motion to Compel arbitration.

1. The Court denied defendants timely Motion to Compel Arbitration and reconsideration of same ruling. Defendant hereby incorporates the Motion to compel arbitration, Opposition and reply to motion, Motion for reconsideration the opposition and reply, by reference to the Courts file in this matter. Defendant hereby objects to the ruling on the Motion denying same.

2. The court personnel caused the submission of request for jury fee waiver and other fee waivers to be untimely. The court denied the jury fee waiver in a collateral denial of defendants right to trial by a jury. Defendant objects for the record of the denial of the jury fee waiver.

VI. Conclusion

Defendant believes the plaintiff has failed to meet their burden of proof. Evil Ones Bank has failed to show an account stated exists or existed at any time. They have not shown the requisite The rejection of defendants proper initiation of arbitration by the plaintiff has left no choice for the court to rule in the defendants favor. The case should be decided in defendant Pro Per's favor. Defendant requests the court render judgment in favor of Pro Per and allow recovery of costs of suit, and any relief the court deems proper.

I declare under penalty of perjury that the foregoing is true and correct, except for those matters stated on information and belief, and as to those statements, I believe them to be true. I further declare that this declaration was executed at Nunya, California, on this 12th day of December, 2011.

Nice debtor

In PropriaPersona

1 “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (B) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”.

2 1402. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration or appearance thereof. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise.

3Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?, 4 Shidler J. L. Com. & Tech. 6 (Oct. 17, 2007), at <http://www.lctjournal.washington.edu/Vol4/a06Offenbecher.html>

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Any ideas on Q#1 and Q#3 from my first post...

1. I go to trial in less than two months. I have not received a response to my letter for Asset Acceptance to send me a further response to my BOP request. Instead, they have sent me a CCP 98 declaration. Should I file a Motion to Compel?
3. The CCP 98 declaration includes an attached affidavit (w/ no address) by a person that is different than the declarant….is that ok? When I write up the Motion in Limine, I know I need to put the name of the CCP 98 declarant, but what about this other person? Do I need to send a subpoena? Also, both witnesses are employees of the JDB...
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Any ideas on Q#1 and Q#3 from my first post...

#1 - yes file a motion to compel - file it and get it on calendar for a hearing - FAST!

#3- to deal with the CCP 98, you need to subpoena that person to appear - they need to have an address within 150 miles of the courthouse. Serve (using a process server or peace officer) them at the address given (which I doubt will be there)...if they are not there, then you can file a motion to have the CCP98 declaration precluded.

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SEADRAGON,

Thanks loads for posting this. It's great guidance for those of us who are still fumbling our way through. It shows that unrepresented folks can band together and use the litigation process to advantage. We don't need to roll over and get exterminated!

Even if we're not at the trial stage yet, we can use all the examples we can get. It will make our defense a little bit easier.

Best to you and your family.

rte

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