I've Been Served CCP 96, Another Chapter In The Battle Begins!

[Rivertime]

Well, after beating these guys at an MSJ hearing and clearly pointing out most of the flaws in their case (thanks again for all the help), I thought I could relax and enjoy the victory for a while thinking they will just go away because THEY HAVE A REALLY BAD CASE! But Nooooooo, I just had my CCP 96 sent out and I go to my mail box and low and behold, I’ve been CCP 96’d.

A quick backgreoud: OC to JDB#1 to JDB#2. JDB#2 filed the action.

I tell you, these guys must really like writing notices and declarations because along with a bunch of documents they’ve already sent me, I get a whole bunch of notices and declarations.

If I’m not mistaken, don’t ALL declarations and affidavits need to be supported by the live testimony of a witness? And if not, don’t the declarations and affidavits need to fall under the specific requirements of CCP 98?

Any input would be very much appreciated.

By the way, here are the basics of the 8 notices and declarations the sent with their CCP 96.

1. Notice of Intent to Call As Witness – they are calling Rivertime

2. Notice To compel Attendance Before Court And Bringing Of Books, Documents Or Other Things – Wants Rivertime to bring all monthly statements during the life of the alleged account, all checks or other method of payment during the life of alleged account, monthly statements from my checking account from the bank that issued the checks used for payment during the life of the alleged account and Rivertime’s driver license. The request is made pursuant to ccp § 1987 (©

3. Notice Of Intent To Present Declaration Of Subpoenaing Attorney, Declaration Of Custodian Of Records (JDB#2 employee), Declaration Of Accrued Interest, and Declaration Of Attorney Fees As Evidence.

4. Declaration Of JDB’s Bozo Councel, Subpoenaing Attorney – Council subpoenaed records from OC. This contains affidavit from OC’s document review spe******t claiming the records are correct, affidavit from an “attorney in fact” claiming to “be authorized” by OC to make the affidavit claiming that the account was sold to JDB#1, and about 12 months of statement copies.

5. Declaration of Custodian Of Records (JDB#2 employee) Pursuant To CCP § 98 – attached are about 12 months of statements, printout showing my personal information (no signature), an un-readable alleged cardmember agreement, and an “Affidavit of Correctness” from JDB#1 to JDB#2.

6. Declaration Of Accrued Interest Pursuant To CC §3287(a) – alleged interest charges totaling more than 70% of the original amount.

7. Declaration In Support Of Attorney Fees

8. Declaration Of JDB’s Bozo Councel: Attorney Unavailability – talks about how he is too busy to attend and has arranged to cover all court appearances through special appearance attorneys and if the court deems it necessary, plaintiff will execute and file “Association of Attorney” form designating the special appearance attorney as associate attorney of record.

I also have questions about my response to their CCP 96, do I need to list any evidence I intend to use that I received from Plaintiff during discovery? I also plan on attacking their breach of contract claim because they did not respond to my BOP properly and I told them in a letter that I would take this up at trial, do I need to send them copies of all my letters and return receipts from our back and forth?

I realize I need to attack their declarations, affidavits, and standing, but I just want my defense to be a deep as it can be.

Thanks again,

rt.

[ASTMedic]

Wow my head is spinning after all that.

So let me try and boil it down to see if I understand. They are telling you to bring evidence to prove their case? They are issuing a bunch of declarations from people. Do those declarations conform to CCP 2015.5? Did the CCP 98 affidavit list an address to serve the affiant personally 20 days before trial?

You'll have to ask calawyer but do all these declarations then have to meet CCP 98 or is the one CCP 98 declaration the try to cover all the declarations? I don't understand how thy can submit a bunch of declarations and then not make those declarants available to be subpoenaed.

Is there a chain from JDB to JDB? They should have a CCP 98 for each JDB or be trying to put all other "declarations" of ownership under the CCP 98 of the most recent owner.

Edited October 30, 2012 by ASTMedic

[Scientific]

Well, after beating these guys at an MSJ hearing and clearly pointing out most of the flaws in their case (thanks again for all the help), I thought I could relax and enjoy the victory for a while thinking they will just go away because THEY HAVE A REALLY BAD CASE! But Nooooooo, I just had my CCP 96 sent out and I go to my mail box and low and behold, I’ve been CCP 96’d.

A quick backgreoud: OC to JDB#1 to JDB#2. JDB#2 filed the action.

I tell you, these guys must really like writing notices and declarations because along with a bunch of documents they’ve already sent me, I get a whole bunch of notices and declarations.

If I’m not mistaken, don’t ALL declarations and affidavits need to be supported by the live testimony of a witness? And if not, don’t the declarations and affidavits need to fall under the specific requirements of CCP 98?

Any input would be very much appreciated.

By the way, here are the basics of the 8 notices and declarations the sent with their CCP 96.

1. Notice of Intent to Call As Witness – they are calling Rivertime

2. Notice To compel Attendance Before Court And Bringing Of Books, Documents Or Other Things – Wants Rivertime to bring all monthly statements during the life of the alleged account, all checks or other method of payment during the life of alleged account, monthly statements from my checking account from the bank that issued the checks used for payment during the life of the alleged account and Rivertime’s driver license. The request is made pursuant to ccp § 1987 (©

3. Notice Of Intent To Present Declaration Of Subpoenaing Attorney, Declaration Of Custodian Of Records (JDB#2 employee), Declaration Of Accrued Interest, and Declaration Of Attorney Fees As Evidence.

4. Declaration Of JDB’s Bozo Councel, Subpoenaing Attorney – Council subpoenaed records from OC. This contains affidavit from OC’s document review spe******t claiming the records are correct, affidavit from an “attorney in fact” claiming to “be authorized” by OC to make the affidavit claiming that the account was sold to JDB#1, and about 12 months of statement copies.

5. Declaration of Custodian Of Records (JDB#2 employee) Pursuant To CCP § 98 – attached are about 12 months of statements, printout showing my personal information (no signature), an un-readable alleged cardmember agreement, and an “Affidavit of Correctness” from JDB#1 to JDB#2.

6. Declaration Of Accrued Interest Pursuant To CC §3287(a) – alleged interest charges totaling more than 70% of the original amount.

7. Declaration In Support Of Attorney Fees

8. Declaration Of JDB’s Bozo Councel: Attorney Unavailability – talks about how he is too busy to attend and has arranged to cover all court appearances through special appearance attorneys and if the court deems it necessary, plaintiff will execute and file “Association of Attorney” form designating the special appearance attorney as associate attorney of record.

I also have questions about my response to their CCP 96, do I need to list any evidence I intend to use that I received from Plaintiff during discovery? I also plan on attacking their breach of contract claim because they did not respond to my BOP properly and I told them in a letter that I would take this up at trial, do I need to send them copies of all my letters and return receipts from our back and forth?

I realize I need to attack their declarations, affidavits, and standing, but I just want my defense to be a deep as it can be.

Thanks again,

rt.

Here's a few threads to start:

http://www.creditinfocenter.com/forums/there-lawyer-house/305835-ccp-96-judge-asked-me-read-before-trial.html

http://www.creditinfocenter.com/forums/there-lawyer-house/315256-how-do-i-answer-ccp-96-jdb.html

http://www.creditinfocenter.com/forums/there-lawyer-house/313636-ccp96-trump-all-other-discovery.html

Did they give specific names and addresses of persons they plan to call as a witness to testify?

I'm guessing they haven't sent a CCP98? affidavit in lieu of presenting direct testimony?

[ASTMedic]

I'm guessing they haven't sent a CCP98? affidavit in lieu of presenting direct testimony?

Sounded like JDB #2 sent one but that was the only one I saw. I'd think that all those declarations would have to be covered by one CCP 98 from the current JDB. I would think all these declarations would be covered by the one CCP 98 and they intend to use that as the "witness" to get around the business hearsay rule. If that's the case then all you would need to do is destroy that affidavit or the witness if they show. That should make all the docs hearsay.

2. Notice To compel Attendance Before Court And Bringing Of Books, Documents Or Other Things – Wants Rivertime to bring all monthly statements during the life of the alleged account, all checks or other method of payment during the life of alleged account, monthly statements from my checking account from the bank that issued the checks used for payment during the life of the alleged account and Rivertime’s driver license. The request is made pursuant to ccp § 1987 (©

CCP 1987 is covering subpoenas, are they telling you they're going to serve a subpoena (DUCES TECUM) on you for the docs?

Edited October 30, 2012 by ASTMedic

[Rivertime]

Thanks for the response ASTMedic and Scientific!

I know, isn't all this stuff just priceless???

I'm sure Calawyer, among others, are going to get a kick out of this.

The only declaration that makes reference to CCP 98 is the one from their employee and it does NOT say “Declaration in lieu of Live Testimony,” it just say “Declaration of Custodian of Records Pursuant to CCP 98” I don’t know if that makes a difference or not. None of the other declarations make any mention of CCP 98.

And, yes, you’re correct, they are trying to introduce the affidavits they received from the OC by way of the subpoena they served on the OC. They are offering these two affidavits (one for the records and one for the selling of the accounts to JDB#1) by way of the Declaration of Subpoenaing Attorney, again no reference to CCP 98.

They have the “Affidavit of Correctness” from JDB#1 stating they accounts were sold to JDB#2 and they are trying to get this in through their custodian of records (the JDB#2 employee) declaration pursuant to CCP 98.

The only Affiant or Declarant that is in California is the JDB#2’s employee, all the others are out of state. They do not comply with CCP 2015.5 but they are notarized.

They provided two address for service, their office about 600 miles away and one that is within the 150 mile requirement.

I would think they would need to bring a witness for each of the 4 affidavits and/or declarations.

I’m with y’all this in nuts, these guys are relentless. Like I said before, they just lost their MSJ.

They will probably respond with more CCP 98 documents when they respond to my CCP 96, I don't know, we'll see.

Thanks,

rt

[Rivertime]

CCP 1987 is covering subpoenas, are they telling you they're going to serve a subpoena (DUCES TECUM) on you for the docs?

Good question, no, they are saying that their "Notice to Compel" carries the same weight as a Subpoena Duces Tecum.

rt

[Rivertime]

I just looked up my case on line and the plaintiff filed ALL those notices with the court???

Is this some kind of back handed way of trying to get around the CCP 98 requirement of needing witnesses to back up the declarations and affidavits??

I know the CCP 96 says right on it not to file with the court and yet even though they are not responding to my CCP 96, all these notices, affidavits and declarations are now filed with the court.

I can't help but think I'm missing something, please help because I do not want to get blindsided by something procedural.

Thanks,

rt

[skippy1960]

Remember when you beat the MSJ, at the hearing. Judge stated you have one Material Fact in Dispute and you only need one. Start with that one, has the filing of all these Notices, Affidavits and Declarations cured the triable issue of fact? If not then you already have a good start at winning the case.

You will need more than one though. Below is an excerpt from your post after beating MSJ.

Will do, thanks.

They will actually need to bring up to four witnesses I think?

1. Witness from OC to testify to the correctness of the OC's business records that were sold and transferred to JDB#1.

2. Witness from the OC to testify that the alleged account was sold to JDB#1 (could possibly be the same witness from the OC).

3. Witness from JDB#1 to testify to the accuracy and correctness of the records sold and transferred to JDB#2.

4. JDB#2's custodian of records to testify to the accuracy and correctness of their own records.

Did I miss anything?

Let's break this down, #1 and #2 are correct, they do need to authenticate the business records of the OC and address the Chain of Title. I assure you there will be no witness from the OC attending. How are they trying to do this via the "Declarations from the Subpeonaing" attorney. Their theory is attorneys are Officers of Court and generally don't make a declaration unless it is factual.

So first step is make sure you can knock these out of the trial.

#3 you already know how to deal with this Declaration as it likely will not meet CCP 2015, so easy Objection and ask for it to be rejected, plenty of case law to support this.

If you don't beat them before you get to #4, I fear the war maybe lost. You can do this.

One last thing it seems the attorney is to busy to show up for trial, takes alot of time making sure the Default Judgements are being attended too, so he will be sending another. If he is the attorney filing all the declarations you may consider inviting him to the party via subpeona, since you already know he cant make it......

I will be interested to see what Calawyer has to say or others...

[Rivertime]

Thank you Skippy1960, I too will be interested to see what Calawyer has to say about this.

Regarding #3 and 2015.5, as I understand if the affidavits are notarized, they don't need to say "under the laws of the state of California." It is notarized but has plenty of other issues to exploit. One of which is that it is still hearsay without a witness. This affidavit is included in their declaration of custodian of records which is the only CCP 98 witness they listed. Their are attempting to get this one in via that declaration.

Thank you for the explanation of the reason for the Declaration of subpoenaing Attorney. It seem to me I read something somewhere that cited case law about submitting declarations from plaintiff attorney and how they are not proper, I'll need to research that. I'll post for others when I find it.

This is truly going to be interesting, these guys are pretty persistent, I guess I just need to be more so, with help of course.

Thanks,

rt

[ASTMedic]

I was under the impression that any declaration had to have the 2015.5 statement on it.

(a) If executed within this state:

"I certify (or declare) under penalty of perjury that the

foregoing is true and correct":

_____________ _________

(Date and Place) (Signature)

I thought that had to be from the affiant. I could be wrong. In my case they submitted a declaration from the OC about the sale. Then they tried to cover that with the CCP 98 basically saying all the docs are good to go. I think that's how I works. They have to either have a witness or the CCP 98 but then any docs that they wouldn't have first hand knowledge can be attacked.

I don't think they can submit the docs before trial. How are you supposed to object to them? That was the strange part of my trial there was zero evidence submitted due to the judge killing the trial before they could submit any.

The CCP 96 is still just discovery so submitting it makes no sense.

Edited October 30, 2012 by ASTMedic

[Seadragon]

Well, after beating these guys at an MSJ hearing and clearly pointing out most of the flaws in their case (thanks again for all the help), I thought I could relax and enjoy the victory for a while thinking they will just go away because THEY HAVE A REALLY BAD CASE! But Nooooooo, I just had my CCP 96 sent out and I go to my mail box and low and behold, I’ve been CCP 96’d.

A quick backgreoud: OC to JDB#1 to JDB#2. JDB#2 filed the action.

I tell you, these guys must really like writing notices and declarations because along with a bunch of documents they’ve already sent me, I get a whole bunch of notices and declarations.

If I’m not mistaken, don’t ALL declarations and affidavits need to be supported by the live testimony of a witness? And if not, don’t the declarations and affidavits need to fall under the specific requirements of CCP 98?

Any input would be very much appreciated.

By the way, here are the basics of the 8 notices and declarations the sent with their CCP 96.

1. Notice of Intent to Call As Witness – they are calling Rivertime

2. Notice To compel Attendance Before Court And Bringing Of Books, Documents Or Other Things – Wants Rivertime to bring all monthly statements during the life of the alleged account, all checks or other method of payment during the life of alleged account, monthly statements from my checking account from the bank that issued the checks used for payment during the life of the alleged account and Rivertime’s driver license. The request is made pursuant to ccp § 1987 (©

3. Notice Of Intent To Present Declaration Of Subpoenaing Attorney, Declaration Of Custodian Of Records (JDB#2 employee), Declaration Of Accrued Interest, and Declaration Of Attorney Fees As Evidence.

4. Declaration Of JDB’s Bozo Councel, Subpoenaing Attorney – Council subpoenaed records from OC. This contains affidavit from OC’s document review spe******t claiming the records are correct, affidavit from an “attorney in fact” claiming to “be authorized” by OC to make the affidavit claiming that the account was sold to JDB#1, and about 12 months of statement copies.

5. Declaration of Custodian Of Records (JDB#2 employee) Pursuant To CCP § 98 – attached are about 12 months of statements, printout showing my personal information (no signature), an un-readable alleged cardmember agreement, and an “Affidavit of Correctness” from JDB#1 to JDB#2.

6. Declaration Of Accrued Interest Pursuant To CC §3287(a) – alleged interest charges totaling more than 70% of the original amount.

7. Declaration In Support Of Attorney Fees

8. Declaration Of JDB’s Bozo Councel: Attorney Unavailability – talks about how he is too busy to attend and has arranged to cover all court appearances through special appearance attorneys and if the court deems it necessary, plaintiff will execute and file “Association of Attorney” form designating the special appearance attorney as associate attorney of record.

I also have questions about my response to their CCP 96, do I need to list any evidence I intend to use that I received from Plaintiff during discovery? I also plan on attacking their breach of contract claim because they did not respond to my BOP properly and I told them in a letter that I would take this up at trial, do I need to send them copies of all my letters and return receipts from our back and forth?

I realize I need to attack their declarations, affidavits, and standing, but I just want my defense to be a deep as it can be.

Thanks again,

rt.

I have one you have 10 days to get that to them. I have one on here:

http://www.creditinfocenter.com/forums/there-lawyer-house/314139-just-got-declaration-i-lieu-testimony-ccp-98-30-days-before-trial.html#post1169439

That will chill them out on that.

look at ast medic for the trial brief and in limine hotness. And did they notify you they were subpoenaing your records? and does it comply with ccp 2015.5 and the decision in Krulreshtha v. ....?

Just some things

[Seadragon]

Thank you Skippy1960, I too will be interested to see what Calawyer has to say about this.

Regarding #3 and 2015.5, as I understand if the affidavits are notarized, they don't need to say "under the laws of the state of California." It is notarized but has plenty of other issues to exploit. One of which is that it is still hearsay without a witness. This affidavit is included in their declaration of custodian of records which is the only CCP 98 witness they listed. Their are attempting to get this one in via that declaration.

Thank you for the explanation of the reason for the Declaration of subpoenaing Attorney. It seem to me I read something somewhere that cited case law about submitting declarations from plaintiff attorney and how they are not proper, I'll need to research that. I'll post for others when I find it.

This is truly going to be interesting, these guys are pretty persistent, I guess I just need to be more so, with help of course.

Thanks,

rt

WRONG, thank you for playing. The Krulreshtha decision was how the long arm perjury statutes apply across state lines so an out of state affidavit MUST have it or it CANNOT be used as evidence sayeth the Cal Supreme Court

[ASTMedic]

WRONG, thank you for playing. The Krulreshtha decision was how the long arm perjury statutes apply across state lines so an out of state affidavit MUST have it or it CANNOT be used as evidence sayeth the Cal Supreme Court

Are these affidavits out of state? I thought in state did too from my understanding of the code.

What about them submitting these docs to the court already? That seems bogus. I don't remember them sending the CCP 98 but I think they sent the CCP 96 list to the court in my case. That would prejudice the defendant wouldn't it? Seems to me they're trying to sway the court before trial and that's BS.

[rte]

AFAIK the notarization of documents does not excuse it from following CCP 2015.5. Seadragon has provided case law about this. I think these declarations or affidavits are inadmissible as a result.

[ASTMedic]

River when is trial? Be sure to get that subpeona out on day 20 before trial. Remember try and use the most official process server you can since they almost always challange the fact that service is required in person not sub. Did the CCP 98 witness sign local or out of state?

Edited October 31, 2012 by ASTMedic

[Rivertime]

River when is trial? Be sure to get that subpoena out on day 20 before trial. Remember try and use the most official process server you can since they almost always challange the fact that service is required in person not sub. Did the CCP 98 witness sign local or out of state?

I've got a little time, we're about six weeks out. I'm planning on sending the subpoena out at day 20 or 19 before trial and am going to have a Deputy Sheriff serve it. The witness works at JDB's office which is in state and is way more that 150 miles from the court house. Her declaration was signed with the State of California Perjury statement.

Thanks,

rt

[calawyer]

Is this just a complete recycle of the MSJ? Same declarants and everything?

Anyway, affidavits are not permitted at trial unless they are offered pursuant to CCP 98. Period. It is not the same as the MSJ. An affidavit submitted at trial is hearsay unless it complies with CCP 98. You should prepare and file an objection to the affidavits on that ground (motion in limine).

As for the CCP 98 witness, you need to have the clerk issue a subpoena and serve the person.

[ASTMedic]

Calawyer:

Should the affiant still be served if they are well outside of the 150 miles? Couldn't the MIL just be pointed at the fact the CCP 98 doesn't comply with the code as well as the other deficient affidavits and then file judical notice on the distance of the address listed?

Also what about them submitting all this "evidence" to the court already? (I'm interested about this one)

River, in my case they tried to make the argument that I should have served the lawyer since the CCP 98 address was vacant (the lawyer is in SoCal 800miles from me). That clearly didn't fly with the judge but I've heard this is a common response to the witness not being present for personal service. I guess that may not apply in your case since the affiant works in the office.

At this point with all the BS I wouldn't be suprised if they bring the witness.

Edited October 31, 2012 by ASTMedic

[Rivertime]

Hi Calawyer and thank you for responding to this thread. I have a few questions if you don’t mind:

1. Do I need to do a separate Motion In Limine for each affidavit and declaration or should I do one and address all them in the same motion.

2. Is there a formal CCP 98 submission format or is it acceptable to just say “Declaration of … Pursuant to CCP § 98”

ASTMedic, I apologize, I wasn’t clear, they gave me two address for the Declarant, one that is a law office that is well within 150 miles of the court house and plaintiff’s office which is way farther than 150 miles.

Thanks again for the help,

rt

[ASTMedic]

Hi Calawyer and thank you for responding to this thread. I have a few questions if you don’t mind:

1. Do I need to do a separate Motion In Limine for each affidavit and declaration or should I do one and address all them in the same motion.

2. Is there a formal CCP 98 submission format or is it acceptable to just say “Declaration of … Pursuant to CCP § 98”

ASTMedic, I apologize, I wasn’t clear, they gave me two address for the Declarant, one that is a law office that is well within 150 miles of the court house and plaintiff’s office which is way farther than 150 miles.

Thanks again for the help,

rt

So some lawyer that agreed to accept service? Be ready for the "but we listed an address where service could be accepted in care of" argument. It's a standard JDB tactic.

Sounds like this is totally beatable. You just have a bunch more crap to hack away at than I did. I think one MIL covering all the poor declarations and (hopefully) a failed service of the subpeona is ok. I asked the same question of calawyer and he had said it was ok.

[Seadragon]

The Kulshreshtha decision made the circuit of ARM discussion and more than one collector got wacked on the fanny with it. So they know it is crap they just don't know you know.

I would in limine them. as for the records at court they lodged them so the rent a lawyer that they are feeding to you will have some paper to staunch the bleeding from a pro per slice and dice.

I feel sorry for the appearance attorneys they take the fall for these guys all the time.

So stick to the timelines and get ready for trial. Have you checked the courts demeanor at trial for a collections case? Now would be a good time to observe like tomorrow or thursday. Just saying go down and watch and help some pro per whose knees are knocking down there.

[calawyer]

1. Do I need to do a separate Motion In Limine for each affidavit and declaration or should I do one and address all them in the same motion.

One motion for all affidavits is fine. THe first part should be the non-ccp 98 affidavits. Very quick. THey just can't be used at trial. Cite Elkins which I have given you. THe next is the CCP 98. No good because they gave two addresses. THat is non-compliant. Witness can't be at 2 places at once. Moreover, you attempted service at the only place within 150 miles and guess what. THe witness was not there. If plaintiff had a good case, it wouldn't have to resort to tricks.

2. Is there a formal CCP 98 submission format or is it acceptable to just say “Declaration of … Pursuant to CCP § 98”

My view is that you can call it whatever you want as long as it complies with CCP 98.

rt