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Declaration of Plaintiff

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I'm new to this forum and need help. I just received a Declaration of Plaintiff in Lieu of Personal Testimony at Trial (C.C.P. 98). It's from a collector Hunt & Henriques for Citibank (South Dakota) N.A. I don't see a trial date listed, just copies of statements, Order That Copies Be Accepted In Lieu Of Originals & Proof of Service.

I submitted a General Denial, interrogatories, requests for admissions back in 2008 and haven't heard anything until now.

Any advice would be greatly appreciated.

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583.310 says:

An action shall be brought to trial within five years

after the action is commenced against the defendant.

But you can move for dismissal based on (2)(A)

583.420. (a) The court may not dismiss an action pursuant to this

article for delay in prosecution except after one of the following

conditions has occurred:

(1) Service is not made within two years after the action is

commenced against the defendant.

(2) The action is not brought to trial within the following times:

(A) Three years after the action is commenced against the

defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant

if the Judicial Council by rule adopted pursuant to Section 583.410

so prescribes for the court because of the condition of the court

calendar or for other reasons affecting the conduct of litigation or

the administration of justice.

(3) A new trial is granted and the action is not again brought to

trial within the following times:

(A) If a trial is commenced but no judgment is entered because of

a mistrial or because a jury is unable to reach a decision, within

two years after the order of the court declaring the mistrial or the

disagreement of the jury is entered.

(B) If after judgment a new trial is granted and no appeal is

taken, within two years after the order granting the new trial is

entered.

© If on appeal an order granting a new trial is affirmed or a

judgment is reversed and the action remanded for a new trial, within

two years after the remittitur is filed by the clerk of the trial

court.

(B) The times provided in subdivision (a) shall be computed in the

manner provided for computation of the comparable times under

Articles 2 (commencing with Section 583.210) and 3 (commencing with

Section 583.310).

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How do I move for dismissal based on (2)(A)? I checked online and nothing has been submitted since 2008. I received in the mail today an At-Issue Memorandum For Trial Setting. Please advise.

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I don't think so. After I submitted the interrogatories and requests for admissions I didn't hear or receive anything until this year. I'm assuming that I would've received documents if they answered.

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How do I move for dismissal based on (2)(A)? I checked online and nothing has been submitted since 2008.

Was the document you got recently ever filed with the court? If it was, it's probably too late now. If it wasn't, then simply submit a motion to the court referring the rules and ask to have it dismissed.

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Was the document you got recently ever filed with the court? If it was, it's probably too late now. If it wasn't, then simply submit a motion to the court referring the rules and ask to have it dismissed.

How do I submit a motion?

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How do I submit a motion?

Simply type it up in conformance with the rules of civil procedure (if they have any requirements) then take it the court and tell the clerk to file it. Note that in some courts (like mine) you have to file a different request to actually get the court to hear your motion. So ask the clerk about that. This is typically called a "request for setting" but not all courts require one.

However, because the other side has filed first they are likely to claim that your negligence makes your request time-barred and the three years reset when they filed the paperwork recently. No clue as to how a judge will respond to that one.

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Simply type it up in conformance with the rules of civil procedure (if they have any requirements) then take it the court and tell the clerk to file it. Note that in some courts (like mine) you have to file a different request to actually get the court to hear your motion. So ask the clerk about that. This is typically called a "request for setting" but not all courts require one.

However, because the other side has filed first they are likely to claim that your negligence makes your request time-barred and the three years reset when they filed the paperwork recently. No clue as to how a judge will respond to that one.

Is there a specific form I need to download from the court and where can I find examples on filling out the form properly? I'm assuming the clerk will collect another fee for filing it.

When they file with the courts, shouldn't it show online and the copies I received have a stamp from the clerk?

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The Declaration of Plaintiff isn't showing online. The At-Issue Memorandum For Trial Setting was dated yesterday.

What they are doing with the At-Issue is asking for a trial date. You need to file a Counter At-Issue Memorandum opposing on the grounds that discovery is not complete.

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California Code of Civil Procedure section 583, subdivision (B), provides an action shall be dismissed unless brought to trial within five years after the action was filed.

Specifically, Section 583(B) of the Code of Civil Procedure provides: "Any action heretofore or hereafter commenced shall be dismissed ... on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended. ..."

However, subdivision (f) of the same section provides: "The time during which the defendant was not amenable to the process of the court and the time during which the jurisdiction of the court to try the action is suspended shall not be included in computing the time period [five years] specified in any subdivision of this section."

Unless there are facts which allow the defendant to toll (extend) the five years, a defendant ought to be able to win a motion to dismiss for failure to prosecute under Code of Civil Procedure section 583.

Note, however, that the California Supreme Court has repeatedly held that although the language of section 583(B) is mandatory, its application is discretionary.

--------------------------------------------------------------------------------

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In Pari Delicto: is both an affirmative defense and an equitable defense. Broadly speaking, the defense prohibits plaintiffs from recovering damages resulting from their own wrongdoing.

Derive from the Latin phrase in pari delicto potior est conditio possidentis, which admonishes that in a case of equal or mutual fault, the condition of the defending party is the better one.

The doctrine is grounded on twin premises. The first is that courts should not lend their good offices to mediating disputes among wrongdoers. The second is that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality.

The phrase is most commonly used by courts when relief is being denied to both parties in a civil action because of wrongdoing by both parties. The phrase means, in essence, that since both parties are equally at fault, the court will not involve itself in resolving one side's claim over the other, and whoever possesses whatever is in dispute may continue to do so in the absence of a superior claim.

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What they are doing with the At-Issue is asking for a trial date. You need to file a Counter At-Issue Memorandum opposing on the grounds that discovery is not complete.

They're asking for a trial date. Forgive me, I'm confused ... I submitted answers to their interrogatories, request for admissions which I believe is part of discovery. What comes after that?

I can't move for dismissal instead and what happens when I file a Counter At-Issue Memorandum?

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They're asking for a trial date. Forgive me, I'm confused ... I submitted answers to their interrogatories, request for admissions which I believe is part of discovery. What comes after that?

I can't move for dismissal instead and what happens when I file a Counter At-Issue Memorandum?

Did they check a box that said:

I represent to the court that: 1) this case is at issue; an answer or other legal response was filed on: xx/xx/xxxx

2) all discovery has been completed.

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Did they check a box that said:

I represent to the court that: 1) this case is at issue; an answer or other legal response was filed on: xx/xx/xxxx

2) all discovery has been completed.

Yes.

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What they're saying is they are ready for trial. If they never answered your discovery, you need to file one back. You check the box that says Counter Memorandum, then below you check This is a counter memorandum blah blah blah, and you check Discovery is not completed. The one thing I see than can hang you up is that you never filed a motion to compel when they didn't answer discovery. You need input from calawyer or seadragon. They know California.

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There is a form for this, I beliieve it is CCP96, they have to disclose all their evidence that they intend to use. If it isn't on the list, it doesn't get admitted.

Edited by legaleagle
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I'm new to this forum and need help. I just received a Declaration of Plaintiff in Lieu of Personal Testimony at Trial (C.C.P. 98). It's from a collector Hunt & Henriques for Citibank (South Dakota) N.A. I don't see a trial date listed, just copies of statements, Order That Copies Be Accepted In Lieu Of Originals & Proof of Service.

I submitted a General Denial, interrogatories, requests for admissions back in 2008 and haven't heard anything until now.

Any advice would be greatly appreciated.

Here's how you handle a Declaration In Lieu

http://www.creditinfocenter.com/forums/there-lawyer-house/305834-ccp-98-violation-case-law.html

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As soon as the Court sets a trial date, you will want to fill out a subpoena and have the clerk stamp it. Then you have a sheriff or process server serve it on the witness at the address set forth in the declaration. You can't get the subpoena issued until you have a trial date because the subpoena commands the witness to appear on that day.

How long has it been since you served your discovery? Did you do a proof of service?

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