Another Midland case in California

[alohagirl]

Here's whats been going on up till now...Sued by midland, answered with a general denial, went to meet and confer, trial set 6 months away, (now it will be beginning of jan). I sent them BOP'S twice, the first they didn't answer, within the time guidelines, (received about 2 weeks later), where they stated if anything else showed up they would send that also, but in the meantime I had already sent out a 2nd BOP with a shorter deadline, which they were also late with. In the BOP's i received a statement photocopied twice, a bill of sale no account numbers, and a statement from midland. In the second BOP they found the signed contract. Now yesterday I received a packet with a declaration of plaintiff in lieu of personal testimony at trial (ccp 98) with affidavit from midland, an affidavit of sale of account by original creditor, (which by the way her commision expired in april of this year), a certificate of conformity, same old bill of sale with no pertinate info. Then they have all statement from 0 balance, but the acct #'s except last 4 are whited out on some and some have X's. Also they have an order that copies be accepted in lieu of originals. So my question is where do I go from here? Start subpeonas? Motions to strike? Help! Ive been reading up to this point, but now things are getting over whelming for me, on my next steps.

[1stStep]

You will need to serve a subpoena to the affiant to force them to appear to testify... chances are, the affiant will not appear.

Also, if the notary's seal is expired, file a motion to preclude it - since the person, at the time was not allowed to perform notarial acts.

[helpme]

Follow this guy's queue beginning with ccp 96 as mentioned by 1ststep

http://www.creditinfocenter.com/forums/there-lawyer-house/317277-how-i-beat-midland-california.html

More info on Documents sent to you by JDB:

http://www.creditinfocenter.com/forums/there-lawyer-house/317413-newbs-understand-something-about-docs-they-sent-you.html

[alohagirl]

Thank you helpme for the link...that was just the info i needed.

[calawyer]

Here's whats been going on up till now...Sued by midland, answered with a general denial, went to meet and confer, trial set 6 months away, (now it will be beginning of jan). I sent them BOP'S twice, the first they didn't answer, within the time guidelines, (received about 2 weeks later), where they stated if anything else showed up they would send that also, but in the meantime I had already sent out a 2nd BOP with a shorter deadline, which they were also late with. In the BOP's i received a statement photocopied twice, a bill of sale no account numbers, and a statement from midland. In the second BOP they found the signed contract. Now yesterday I received a packet with a declaration of plaintiff in lieu of personal testimony at trial (ccp 98) with affidavit from midland, an affidavit of sale of account by original creditor, (which by the way her commision expired in april of this year), a certificate of conformity, same old bill of sale with no pertinate info. Then they have all statement from 0 balance, but the acct #'s except last 4 are whited out on some and some have X's. Also they have an order that copies be accepted in lieu of originals. So my question is where do I go from here? Start subpeonas? Motions to strike? Help! Ive been reading up to this point, but now things are getting over whelming for me, on my next steps.

Since you are close to trial, it probably doesn't make sense to file a motion to compel the BOP. You may just want to make a demand under CCP 96 to lock them into the documents they can use at trial. The form is right in the statute itself: CA Codes (ccp:90-100) The request should be served no more than 45 days or less than 30 days prior to the date first set for trial.

As far as the CCP 98 is concerned, what address(es) do they give for service? Are there more than one? Are any within 150 miles of the Court? After you send the CCP 96, they will reserve you with the same declaration in lieu and you should then get and attempt to serve a subpoena on the witness at the closest address given. The witness won't be there. You will then get a declaration of non-service and prepare a motion in limine to exclude the declaration.

The affidavit of sale is not admissible at trial unless it complies with CCP 98. I am quite sure it does not.

Good luck.

[alohagirl]

The declaration that they have provided me with so far (ccp 98) the closest address is 190 miles away all the other address are over 200 miles. So what can I do about the subpeona then?

[Seadragon]

They have not supplied the oiginals nor have they submitted authenticated copies of any electonic files or data. The use of copies is inapposite to the claims of common counts because the "book" upon what the alleged account is based on has to be shown in a permanent form at trial to be used as evidence. Copies do not take the place originals and can be altered. If the plaintiff does not have the original a negative inference of plaintiffs hiding relevant evidence can occur.

So objecting to the copies a soriginals goes a long way. The plaintiff's have stated they based their prima facii case on the alleged originals so they have to show that.

They have not propounded any discovery explaining that the originals for any documents were missing and or lost, therefore they cannot now say that all the documents are in fact copies and not original documents. If the originals were destroyed after the alleged causes of action occured then the plaintiff's are have engaged in spoilation and should not be allowed to submit copies which are of dubious evidentiary value as original documents are permanent, copiues can be altered versions of original documents.

I will help look up caselaw for that copies as evidence in common counts and breach cases. but I feel as there is a reason they ask for permission and it must be because copies are not allowed at trial.

also object because there is no authentication of the copies.

[ASTMedic]

The declaration that they have provided me with so far (ccp 98) the closest address is 190 miles away all the other address are over 200 miles. So what can I do about the subpoena then?

This seems to be a debatable topic here. They technically are not conforming to CCP 98. Thus the affidavit is junk. If it doesn't give an address in 150 miles then it doesn't meet the code. You could MIL since it doesn't meet code. They'll argue that you should have still attempted service but that's a standard response. Really it's up to you since they have no case either way. I'd bet the person isn't at the address anyway.

If it was me (and you can afford it) I'd attempt service with a deputy or other process server like that. It will carry more weight that you still attempted service even though it didn't meet code and that the witness wasn't available for personal service. Then you will have a 1-2 punch. Judges will like that you went above and beyond rather than bitched and moaned. Next best would be a MIL due to it not conforming to the code and then judicial notice about the mileage. I'd file judicial notice about the addresses either way just to point out the excessive mileage.

Follow the steps I took in the links that were posted above. They are very to the point but effective.

Edited November 3, 2012 by ASTMedic

[Seadragon]

This seems to be a debatable topic here. They technically are not conforming to CCP 98. Thus the affidavit is junk. If it doesn't give an address in 150 miles then it doesn't meet the code. You could MIL since it doesn't meet code. They'll argue that you should have still attempted service but that's a standard response. Really it's up to you since they have no case either way. I'd bet the person isn't at the address anyway.

If it was me (and you can afford it) I'd attempt service with a deputy or other process server like that. It will carry more weight that you still attempted service even though it didn't meet code and that the witness wasn't available for personal service. Then you will have a 1-2 punch. Judges will like that you went above and beyond rather than bitched and moaned. Next best would be a MIL due to it not conforming to the code and then judicial notice about the mileage. I'd file judicial notice about the addresses either way just to point out the excessive mileage.

Follow the steps I took in the links that were posted above. They are very to the point but effective.

What he said. you bring up the 150 mile rule.

[calawyer]

Under the Code, you can serve a CCP 98 Declaration in lieu at any time. But you are still more than 45 days before trial, correct? If so, I would want to serve a CCP 96 statement on the plaintiff before deciding whether to object or attempt service. Reason: plaintiff might supplement its declaration and give another address if you make your objection known now. If you wait, serve a CCP 96 demand within the time provided in that section, and plaintiff responds with the same dedclaration--you have them where you want them.

[alohagirl]

Thank you everyone, Ill wait a couple weeks to send out the ccp 96, within the time frame to do so, and wait for their response. If it is the same I will still go ahead and subpeona her. I would rather be safe than sorry at this point in time. I will need help with the MIL and how to do the objection to the copies of originals. I am so grateful there is a place for people to go for this kind of help. Thank you again

[calawyer]

Thank you everyone, Ill wait a couple weeks to send out the ccp 96, within the time frame to do so, and wait for their response. If it is the same I will still go ahead and subpeona her. I would rather be safe than sorry at this point in time. I will need help with the MIL and how to do the objection to the copies of originals. I am so grateful there is a place for people to go for this kind of help. Thank you again

Post again after you have received a response to the CCP 96. I don't disagree with serving the subpoena but the code is very clear that it should be 150 miles. I guess you will have yet another argument why the declaration is inadmissible.

[almou1966]

Hi every one;

iam new to the website.

being sued by Asset acceptance;

looking for a lawyer, I can see that calawyer is very active here.

iam in the los angeles area, my case is in pasadena court house.

if possible if you are in the los angeles area and interests you to handle the case to give me a price range to follow up with the lawsuit.

than you every one

[ASTMedic]

I will need help with the MIL and how to do the objection to the copies of originals. I am so grateful there is a place for people to go for this kind of help.

In my thread that was linked in here you will see a MIL, brief and request for judicial notice that you can "sample". My whole attack was focused around the CCP 98 affidavit.

[alohagirl]

In my thread that was linked in here you will see a MIL, brief and request for judicial notice that you can "sample". My whole attack was focused around the CCP 98 affidavit.

Yes I have been reading the info in your links, and it looks like my case will be around that ccp 98 also...

[calawyer]

Hi every one;

iam new to the website.

being sued by Asset acceptance;

looking for a lawyer, I can see that calawyer is very active here.

iam in the los angeles area, my case is in pasadena court house.

if possible if you are in the los angeles area and interests you to handle the case to give me a price range to follow up with the lawsuit.

than you every one

I will PM you with a suggestion.

[ASTMedic]

Yes I have been reading the info in your links, and it looks like my case will be around that ccp 98 also...

Really this is the easiest point to attack in a case in Cali from the JDB. They have to bring a witness (costs money and they don't want to spend it) or a CCP 98 affidavit. Since 90% of all affidavits are robo signed the witness won't be available for service and all that is needed is a MIL addressing this.

The real risk is in shooting yourself in the foot. Mistakes in discovery responses, allowing for service in care of for the witness, not attacking the correct docs. Their case is so full of holes it's really up to us if we're going to win or loose.

[notlawyer]

But you are still more than 45 days before trial, correct? If so, I would want to serve a CCP 96 statement on the plaintiff before deciding whether to object or attempt service.

Can the CCP 96 actually be filed 50 days prior to trial, if it is served by mail? Is the 45-day count adjusted based on the method of service?

[calawyer]

Can the CCP 96 actually be filed 50 days prior to trial, if it is served by mail? Is the 45-day count adjusted based on the method of service?

No. And you don't want to. Serve it 35-40 days before trial. Less time to gather witnesses and documents.

[alohagirl]

Here is a brief update....Sent off the ccp 96, havent received the ccp 98 back as yet. (remember they had already sent me one without me sending the ccp 96)  And today I received a ccp 96 myself....and a Plantiff's settlement conference statement...If I was going to subpeona their witness.. the 20 days before trial will be on the 26th of December...If I dont receive another statement from them and the witness is outside of the jurisdictional 150 miles of the court (closest address 190 miles) should I still subpeona her?  What shoud I include in my own CCP 98?  And What should I put in my settlement confterence statement?

[ASTMedic]

Here is a brief update....Sent off the ccp 96, havent received the ccp 98 back as yet. (remember they had already sent me one without me sending the ccp 96)  And today I received a ccp 96 myself....and a Plaintiff's settlement conference statement...If I was going to subpeona their witness.. the 20 days before trial will be on the 26th of December...If I dont receive another statement from them and the witness is outside of the jurisdictional 150 miles of the court (closest address 190 miles) should I still subpoena her?  What should I include in my own CCP 98?  And What should I put in my settlement conference statement?

 

I've never seen a pro per file a CCP 98. There is no need to since you will be in court in person. The whole point of the CCP 98 affidavit is to get testimony of a witness admitted into evidence and not have to bring that person to court. That is why the JDB use it. Costs nothing to use and it's the only way to get the docs admitted into evidence. This is why you MUST counter it by subpoena the witness to make the affidavit useless.

 

Question:

 

Is the affidavit you spoke about them sending you before really a CCP 98 compliant affadivt? Or is it just an affadivt? Does it meet the CCP 98 requirements?

[alohagirl]

I am assuming it its compliant...she states she lives in Minnesota, but can be reached in CA blah blah.....But they admit they dont have originals also.   Just copies, and they sent me copies of copies....they want those admitted into evidence.   I thought the ccp 98 was also they want to see what evidence I have also?  Which I would  guess be none...they are the ones proving the case.  

[ASTMedic]

CCP 96 is the "give it to us or you can't use it" doc. That's why you send it to them to lock them in and then they can't throw in a doc at the last second.
 
CCP 98 is the "we want to use this affidavit rather than bring a witness to court". That is why the JDB use it. They don't have to pay to have a witness show up. Their MO is all about spending as little money on the case as possible. So paying a witness to show costs them money. Spending money to have a witness from the OC to show costs them A LOT of money. If they spent say $100 (or less) for your account and paying a witness to show is going to cost $200 (just say) then they won't be paying for that witness to show.
 
Have you gone over my post here about why the witness is needed?
 
You also need to go over that CCP 98 affidavit and see if it conforms to the code. Does it list an address that is 150 miles or less from the court for the witness to be served at? Does it state "I swear under penalty of perjury in the State of California"? (that might not be the exact words but very close)

[alohagirl]

All 5 addresses given are outside of the 150 mile limit.  Yes it states the I declare under penalty.....But it also states that the original instrument creating the acct is unavailable as it was not provided to MCM??

[calawyer]

All 5 addresses given are outside of the 150 mile limit.  Yes it states the I declare under penalty.....But it also states that the original instrument creating the acct is unavailable as it was not provided to MCM??

 

 

How far away is the closest address?  Use google maps or similar to calculate.