best defence attact affidavit??

[hellsbengales]

My question involves collection proceedings in the State of: California

answers in bold

1. Who is the named plaintiff in the suit?fortis capital llc

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

3. How much are you being sued for? 3314

4. Who is the original creditor? (if not the Plaintiff)best buy, hsbc

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

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

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

Process Service Requirements by State - Summons Complaint

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?sacramento

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)not sure, they have me going into default on 8/20/06 wich sounds right

11. What is the SOL on the debt? To find out: 4 years they beat it by a few days

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).I have a court date friday the 30th of november 2012

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)Unfortunately 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.Unfortunately no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?I received the questioner and filled it out without admitting I owe anyone

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.They sent a affidavit I will post, a BLANK contract, and a bill of sale from hsbc to the collection agency, which states that hsbc did indeed sell to fortis capital, and there is my info included on a separate page included in the exhibit.....suspicious...

this is the affidavit

do hereby declare as follows:

1.1 am an authorized agent and duly qualified custodian of records ofPlaintiff in the

above-entitled action. Inthe normal course ofbusiness Plaintiff maintains computerized

account records for all its customers. These records are kept by employees who are responsible

for accurately recording any business transaction, condition or event on the computer.

2. I have personally reviewed the records as they relate to the Best Buy Internet credit

card inthe name of _________ME______________(hereinafter "Defendant(s)") issued by HSBC.

Theretbre, I make this declaration based on my personal knowledge and review of said books,

records and transactions reflectedtherein and if called upon to testify as a witness, I could and

would competently testify thereto

i plan on attacking this persons affidavit and asking the judge to take into consideration the many cases where Debt buyers have submitted affidavits which purport to be made on personal knowledge but in fact are based on reading a computer screen.

ALSO if I lose ( good chance lol) How can I beg the judge not to grant the plaintiff all the erroneous fees and interest they are trying to collect, they bought the debt at 1500 yet there suing for over 3000!!

Edited November 26, 2012 by hellsbengales

[rte]

Here's the link.

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read

This way, it's easier for the folks here to figure out what you need to do.

[1stStep]

I will bet you got a CCP 98 Declaration in Lieu of Testimony... these are very beatable. Get the declaration precluded, and their case pretty much falls apart.

Who is the person that signed the Declaration?

[hellsbengales]

I will bet you got a CCP 98 Declaration in Lieu of Testimony... these are very beatable. Get the declaration precluded, and their case pretty much falls apart.

Who is the person that signed the Declaration?

It is a ccp 98 lol, please reread my post Ive answered the questions the forum requests....

Now Im kinda worried about there exhibit B which is the bill of sale, although it does look like a blanket bill of sale and doesn't mention me on the pages a hsbc rep signed they still copied and pasted my account info and included it in the exhibit

[1stStep]

OK - you will need to subpoena the affiant. Per CCP98, they must provide an address within 150 mile of the courthouse where the affiant can be personally served. You will need to prep the affiant and have the sheriff serve it. 95% sure that the affiant will not be at the address - the deputy will then fill out a declaration of non-service.

Also, if the bill of sale is generic and does not specifically identify the account, then it's hearsay.

Last thing - send them a bill of particulars.

[hellsbengales]

ehh from reading this thread

creditinfocenter.com/forums/there-lawyer-house/295820-ccp-98-declaration%3B-can-we-object.html

it looks like I should have tried to make the person who did the affidavit ccp 98 show at the trial, there main office is in Anaheim but they included a Sacramento address as well

am i out of luck or what

[hellsbengales]

OK - you will need to subpoena the affiant. Per CCP98, they must provide an address within 150 mile of the courthouse where the affiant can be personally served. You will need to prep the affiant and have the sheriff serve it. 95% sure that the affiant will not be at the address - the deputy will then fill out a declaration of non-service.

Also, if the bill of sale is generic and does not specifically identify the account, then it's hearsay.

Last thing - send them a bill of particulars.

can I subpoena this soon to trail????

Bill of sale looks generic as the two pages where the particulars of the sale of the accounts dont mention me at all, then there is a third page with just my account info nothing else, no letter head, nothing. does not look official.....

thanks for the help so far

[1stStep]

You have to serve it at least 20 days before trial.

[hellsbengales]

You have to serve it at least 20 days before trial.

yea to late unfortunately my trial is this friday

[Softwear8]

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)not sure, they have me going into default on 8/20/06 wich sounds right

11. What is the SOL on the debt? To find out: 4 years they beat it by a few days

Maybe I'm missing something, but 4 years after 2006 would be 2010, and since we are now in 2012, it is past the SOL, no?

IT SOUNDS LIKE THIS DEBT IS TIME-BARRED.

Edited November 26, 2012 by Softwear8

[racecar]

Time-Barred Debts

What should I do if I'm sued for a time-barred debt?

Defend yourself in court. If you're sued to collect on a time-barred debt, pay attention, and respond. Consider talking to an attorney. You or your attorney should tell the judge that the debt is time-barred and, as proof, provide a copy of the verification from the collector or any information you have that shows the date of your last payment. The lawsuit will be dismissed if the judge decides the debt is time-barred. In any case, don't ignore the lawsuit. If you do, the collector likely will get a court judgment against you, and possibly take money from your paycheck, bank account, or tax refund.

Assert your FDCPA rights. It's against the law for a collector to sue you or threaten to sue you on a time-barred debt. If you think a collector has broken the law, file a complaint with the FTC and your state Attorney General, and consider talking to an attorney about bringing your own private action against the collector for violating the FDCPA.

[hellsbengales]

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)not sure, they have me going into default on 8/20/06 wich sounds right

11. What is the SOL on the debt? To find out: 4 years they beat it by a few days

Maybe I'm missing something, but 4 years after 2006 would be 2010, and since we are now in 2012, it is past the SOL, no?

IT SOUNDS LIKE THIS DEBT IS TIME-BARRED.

Yes its over Four years now but they started this in the Court 8/18/2010, a friend of mine had been helping me out before ( helped me with a few validation letters stopping those debt collectors dead in their tracks, too late on this one though) its been in the system going back and forth between me and the collectors for two years.

Im on my phone now so i can5 go check the case file at saccountys web Site to see what thete first move with the court was on 8/18/2010 but im sure you guys know what there normal course of action is.

[Rivertime]

You have to serve it at least 20 days before trial.

I think this is wrong, no disrespect 1stStep? Here's the statute:

CCP 98

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.

The way I read this is that you can only serve the affiant or declarante within the 20 days preceding the trial.

Yes, No, opinions?

Get a subpoena today and get it to a process server today and pay for expedited service and get that puppy served... today!

You do this, the affiant is not there or not "available for service," and they are SOL and I don't mean statute of limitations. Their witness will not be at the trial and they will have no one to authenticate any records and hence they are all hearsay and should be tossed out, you must object when they try to enter them of course. Additionally, by not having their witness available for service at the address, they did not comply with CCP 98 and it should be tossed out for that reason as well, but again, you must object.

Good luck.

rt

Edited November 26, 2012 by Rivertime

[1stStep]

You are right... the only problem is that it's 4 days before trial. The OP needs to get the subpoena signed and out today - with 3 attemps at service made no later than Wed. and also needs a motion to preclude drafted to drop on them on Friday.

[rte]

I think you're on to something about being 20 days before trial. IMO, it's worth a try for the OP to serve that affiant.

[rte]

I've actually come across a case or two in which the defendant's attorney either went to the affiant's purported office, or simply called up the office, only to find out the affiant wasn't there. So he filed his MIL to strike the affidavit. The two cases were dismissed right before trial.

Who knows why, of course?

[hellsbengales]

O great!!

If someone wouldn't mind laying out the process i cant research it now im at work until 315 i can probably make court house before it closes, is it. As simple as going in asking clerk to subpoena the person on this date at this time for this trial??

And how do i expedite the service....... i hope i can do it tonight, i am off work tomorrow if its enough time

Thanks for help so far everyone

[rte]

You can click on the link, then enter the case numbers one at a time: 516322 and 515041.

Case Information - Enter Case Number

Look close to the end of the timeline for defendant's MIL.

[1stStep]

But that has to be signed today!

[hellsbengales]

But that has to be signed today!

Ok isa subpoena that easy just run up in the court house and ask the clerk?

[1stStep]

Fill out the form SUPB-002. Go and get the clerk to sign it. Then find a process server who has expedited service. Make sure they know that they have to personally serve the affiant. IF the affiant is not there, then they are not to leave it with anyone.

[hellsbengales]

Ok thanks, whats this about making 3 attempts?? Ill let you guys know how i make out

[hellsbengales]

Ok thanks, whats this about making 3 attempts?? Ill let you guys know how i make out

[1stStep]

Generally, the process server needs to make a minimum of 3 attempts before he can fill out a declaration of non-service.

[hellsbengales]

i didnt make it, I got the document but couldnt fill it out before they closed. ill go up there first thing in morning get the signature from the clerk then find a process server who will go tomorrow Wednesday and Thursday