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Help! PreTrial Conference Fri/Trial Mon

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Blessings ~

~*~

short of the long ... LOL

~*~

Being sued by Citibank through Hunt & Henriques ~ CA

sent notice for validation of debt to H&H

received a CCP98 (in lieu of Personal Testimony)

with all Citibank Statements attached

~*~

Pretrial Conference on Friday 8/24/12

Trial set for Monday 8/27/12

~*~

what are my options at this point?

THANK YOU IN ADVANCE for your assistance to this situation!

~~~~~~~~~~~~~~~~~~~~~~~

can I still file and send a BOP

and

send OVERNIGHT Certified RR to ALL Parties ~ CCP1987 (B)

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also I want those that read this ~ I have come here often and many of you have HELPED ME SO MUCH ... I share your website with All of my Friends and Family ~ it is such a BLESSING!!! Again ~ THANK YOU!! xangelx

Edited by sunlight

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Wow, that's really cutting it close! You might answer the basic questions about your case so the knowledgeable folks can give you some pointers.

If you have a CCP 98 afffidavit, and you didn't subpoena the robosigner, then you'll have to oppose the affidavit and point out what's wrong with it. You could also tell the court that since the affiant isn't present (mostly they don't show up, even if they're subpoenaed), the affidavit cannot stand on its merits.

But to do all these, you'll have to spend the rest of the week reading and researching. I suggest you provide more information about your case, and type up that CCP 98 (without revealing personal info) so others can help you critique it. Also let us know what papers were attached to the declaration.

Best of luck!

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the docs they sent ...

EXHIBIT A

every statement from citibank 2008 - 2011

even tho account closed in 2010 continued to send statement

~*~

the Declaration of Testimony in lieu of Personal Testimoney

and

Order that copies be accepted in lieu of Originals

~*~

I have the CCP1987(B) ready to send (I was going to send Overnight Express Mail with Signature) to the person they declare on their ccp98 ... to the H&H Address **IN CARE OF** as they do not provide a address for this "witness"

~*~

H & H Attorney "Donald Sherril" faxed yesterday JOINT TRIAL READINESS CONFERENCE REPORT

claiming CCP 98 Declaration in Lieu of Dorothy Ruiz Testimony

Copies of Billing Statements (which show payments made)

it state "COPY OF THE CONTROLLING CREDIT AGREEMENT" ... there is nothing that I see that shows a "signed agreement" just states: Plaintiff issued credit to Defendant ... BY USE OF THE CREDIT ACCOUNT the DEFENDANT AGREED TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THE ACCOUNT AGREEMENT. That's all it states about an "agreement"

and

Our Document of evidence of Financial Hardship ... it was not a PERSONAL account it was a BUSINESS ACCOUNT. We show Tax losses of over million dollars.

An offer has been submitted to pay 10% of the debt ($23,000. / $2300)

This is where we are at this point. Hope this helps!:roll:

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https://docs.google.com/viewer?a=v&q=cache:bUoKnGbTHGcJ:www.nclc.org/images/pdf/unreported/citibank-v-austin.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESiyHgBdgSq-uiQJckGyvKbKCMtmznAWlJBbAVuTebnYnYW19bt6Fl1inv9jwDZdEDuM2nKX21Wp_VbDSA_8M84oGfrW49dNE_swcWl-1boRFtjI1HMBTxAt-jibKzbOClAeRgDE&sig=AHIEtbReDyssg7ZjPWZSqjIZzJKdwrfxNQ

The issue raised at trial was the foundation for the testimony of Dorothy Ruiz, the litigation analyst for

Citibank who was attempting to introduce defendants account records through the business records

exception to the hearsay rule. The court finds that Ms. Ruiz did not offer a sufficient foundation for her to

testify as to the preparation and maintenance of the records in question. The court has an intuitive sense

that the defendant did incur the charges in question, and has not paid them. That, however, is not good enough. A custodian of records must have some personal knowledge of how the records are kept and prepared. Ms. Ruiz could not do that.

Edited by racecar

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Shes not a good live witness and wont be any better on paper

A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b)The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.

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at the pre trial state that you are having a family emergency and request a continuance of 45 days. That you haven't requested a continuance in this matter before and need to deal with the emergency(make it good).

as soon as they give you a continuance get your subpoena CCP1985 vs. 1987 to them. you are way behind the power curve. try for the continuance if not you must fight the declaration and the business records.

for the business records say they are not in compliance with the evidence code 1270 et seq. nor with the holding in Taggart v. Super Seer Corporation.

get the continuance then come here and get up to speed.

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Seadragon is one of the best on this site. I would take his advise he knows his stuff. GoodLuck! Seadragon if you would not mind giving me your opinion on my case summary for my pretrial conference I would really appreciate it. Its hard with a one page limitation.

Edited by alexander323bc

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Update ~ I have gathered all the info ... PreTrial tomorrow ~ will let everyone Know what happens .... THANK YOU Seadragon * RTE * racecar ~ Prayers and Thoughts ~ Please ~ :wink:

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also look at the following cases on this site:

LexisNexis® Custom Solution: California Courts Research Tool

Federal Cases

American Express Travel Related Servs. Co., Inc. v. Vinhnee,

336 B.R. 437 Bankr. 9th Cir. (2005)(for records foundation requirements)(not on Lexis site)

California Cases

Associated Builders & Contractors, Inc. v. San Francisco Airports Com. 21 Cal.4th 352, 361 [87 Cal. Rptr. 2d 654, 981 P.2d 499](1999)

Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007)(for allowing a declaration in trial without cross-examination of the witness)

Hernandez v. Atlantic Finance Co. 105 Cal. App. 3d 65, 71 [164 Cal. Rptr. 279](1980)(definition of standing to sue)

Herrera v. Deutsche Bank National Trust Co., 196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011)(witness not knowledgeable of assignment chain of title)

Interstate Group Adm'rs v. Cravens, 174 Cal. App. 3d 700 (Cal. App. 1st Dist. 1985)(open book accounts precedent)

Jacobson v. Gourley, 83 Cal. App. 4th 1331 (Cal. App. 4th Dist. 2000)

Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004)(ccp2015.5 missing california perjury blurb "under penalty of perjury of the laws of california and such")

Taggart v. Super Seer Corp.,33 Cal. App. 4th 1697 (Cal. App. 4th Dist. 1995)(defines evidence code for business records exception to the hearsay rule)

Out of State Cases

CACH LLC. v. Askew, 358 S.W.3d 58(2012)(basically a typical debt collection case this is important to see how to fight)(bring a copy of this case to trial)(not on lexis site it is here

http://www.courts.mo.gov/file.jsp?id=51954)

those will help you to see what the issues and how they relate read cach v. askew first then go through the others.

I think you have this weekend to make your trial brief.

I think you may have to gin up a motion in limine this weekend. If they haven't given you anything in CCP 96 bring up that fact. also know that there are post trial motions you can file to delay the judgment and maybe even overturn a judgment if it happens. I am gonna be working on my case all weekend so pm me if you want.

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1. Who is the named plaintiff in the suit?

Crap1

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

LLRO

3. How much are you being sued for?

less than 5500

4. Who is the original creditor? (if not the Plaintiff)

crap1

5. How do you know you are being sued? (You were served, right?)

Papers served at work

6. How were you served? (Mail, In person, Notice on door)

Papers place on desk

7. Was the service legal as required by your state?

Dont know

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

none

9. What state and county do you live in?

CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

I'm still inside of the SOL

11. What is the SOL on the debt? To find out:

Four years

12. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

Complaint for Breach of Contract and Accounts Stated

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence or exhibits

Did a 1st BOP nothing recieve

Did 2 nd BOP nothing recieve

Motion to compel BOP

Tenttative rulings

"Defendant's unopposed Motion to Compel Further Response to Demand for BOP is Granted based on the grounds set forth in the moving papers. (CCP454). Plaintiff is ordered to provide a further account/bill of particulars which includes the information requeste by Defendant as set forth in the moving papers 20 days of hearing in this matter. Failure to comply may result in preclusion of evidence pursuant to CCP 454.

Parties wishing to argue befor the court must appear on the date and at the time noticed for the hearing."

Received

Notice of conditional settlement, conditional settlement, stipulation for entry of judgment upon default CCP 664.43: CRC 3.1385

Declaration of Plaintiff in lieu of personal testimony at trail CCP 98

Wandi Chamberlain

Exhibit 1 Costomer Agreement, Written Periodic statements

Sent CCP 96

Sent Trail Brief

Supeona Wandi Chamberlain

Received

Trail Brief

Order granting use of copies in lieu of orginals

"The Original appliction/contract in the aftermentioned matter appears to be lost.

Upon the courts review of Plaintiff's declaration in support of judgment and copy of the original application/contract submitted, it appears to the satisfaction of the court that copies in lieu of originals may be used. A complete and diligent search of plaintiff's files fails to disclosed said orinal application /contract or a copy of said appiication/cotract.

It is hereby ordered: After Plaintiff's diligent search of plaintiff's files and records the cour finds that copies may be used in lieu of orginals."

Propesed Judgment Order

Declartatoin CCP 1033 (B)(2) Notice

Memorandum of costs (Summary)

Im still waiting on subpoena

Ive updated some info in the trial brief and file with the courts?

Should I send the plaintff the updated trail brief?

What else do I need to file with the courts?

I need help building my Court tabbed and indexed joint trial notebook.

Thanks in advance for any help!

Edited by h20darg0n

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list all the reasons to not accept it into evidence. also you need to be pressing them this wandi chamberlain is in virginia. So I would object based on the witness was never at the address so the declaration should be excluded as a sanction for misrepresentation to the court. The court can exclude it on an issue sanction for non compliance with a subpoena.

They are going to try to switch the witness at the last minute. They could also dismiss but youhave to prep to take it all the way.

So remember when you are questioned as a witnes " I do not recall" goes a long way.

also the Motion in limine posted by me is already for the exclusion of a ccp98 for wandi chamberlain.

check my sig line for the links.

Edited by Seadragon
adding

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Seadragon

I can see links because I haven't posted over 10.

Do you have an eg of written objection to the submission of ccp98 declaration

Thanks

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BY USE OF THE CREDIT ACCOUNT the DEFENDANT AGREED TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THE ACCOUNT AGREEMENT.

Interesteing. It violates South Dakota law, they cannot export their use and acceptance statute. Countersue for illegal interest.

In Jack Tully, Appellant, v. Citibank (South Dakota), N.A., Appellee.No. 06-05-00027-CV.Court of Appeals of Texas, Texarkana, the court stated: “Even if no other maximum rate is established elsewhere in the laws of South Dakota, Citibank has failed to show that the interest rate is authorized. When no interest rate is provided in the agreement, South Dakota law limits the maximum interest rate to considerably less than the rates charged by Citibank. See S.D. CODIFIED LAWS §§ 51A-12-13, 54-3-4, 54-3-5 (2005). We note that a credit card issuer may change the terms of the card agreement on sufficient written notice to the cardholder. S.D. CODIFIED LAWS § 54-11-10 (2005). The summary judgment evidence, though, contains no written notices specifying the interest rates other than the copies of the statements. There are genuine issues of material fact concerning whether the interest rates Citibank charged Tully are authorized by South Dakota law.”

the South Dakota Supreme Court made note of this in Mattson v. Rachetto, 591 NW 2d 814 - SD: Supreme Court 1999591 N.W.2d 814 (1999), in which they noted: “Interest on moneys after they become due — Express contracts excepted. Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the Category F rate of interest as established in § 54-3-16 after they become due on any instrument of writing, and on moneys lent, or due on any settlement of accounts, from the day on which the balance is ascertained, and on money received to the use of another and detained from that other. Under SDCL 54-3-16, the statutory interest rate under Category F is 15% per year.” (emphasis added)

In Owens v. Moyes, 530 NW 2d 663 - SD: Supreme Court 1995 the Court stated: “Here, we are asked to review the trial court's ruling on Owens' claim that there existed a contract with Moyes for the lending and repayment of money. The case of Werner v. Norwest Bank, 499 N.W.2d 138 (S.D. 1993), controls this issue. The existence of a valid express contract is a question of law to be determined by the court, not a jury; an express contract exists only when the parties mutually express an intent to be bound by specific terms and conditions. Id. Where there is no showing that the terms of an alleged oral agreement were ever settled or agreed upon, it is proper for the trial court to make a summary finding against the existence of a contract. Id. Thus, in Werner, "[w]here there was no understanding as to the exact amount of money, interest rate, time and method of repayment, and no exchange of documents, no enforceable contract can be said to exist." Id. at 142 (emphasis added by the Court).”

Finally, this case:

In Citibank (South Dakota), NA v. Wilson, 160 SW 3d 810 – MO. Court of Appeals, the Court stated: “Citibank argues that the United States Supreme Court has held that South Dakota law applies to contracts entered into by a credit card issuer, citing Marquette National Bank v. First of Omaha Service Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), and Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), in support of this proposition. However, Citibank misconstrues these two cases. First, Marquette dealt with whether a national bank could charge an out-of-state credit card holder an interest rate that was valid in the bank's home state when such rate was not permitted by the laws of the cardholder's state. 439 U.S. at 301, 99 S.Ct. 540. Smiley dealt with whether late fees were properly considered interest. 517 U.S. at 737, 116 S.Ct. 1730. Further, the National Bank Act, 12 U.S.C. § 85, which was at issue in both Marquette and Smiley, only addresses the interest rate that a bank may charge. Nowhere in the cases cited by Citibank, nor in the statute interpreted by those cases, is there any language that mentions the application of the laws of the credit card issuer's home state in relation to the enforcement of contracts, let alone mandating the application of such laws.”

Note the court's comments. Wilson lost only because MO has a use and acceptance statute on the books and Wilson's attorney didn't know how to argue against it.

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