bohey

Trial Mid January with CACH - BOP has been deficient. What do I do now? Subpoena the witnesses? I have a month to get this in order will someone help!

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Hi,

I was sued in CA in May 2011 by CACH. I have several other posts and details on this site but due to this new set up I cannot find the thread!

History: I have conversed with and batted around forms and filings with P. All my corresponded appears in order. P has violated my cease and desist. They have constantly lost my documents and they cannot provide all documents requested.

In the midst of all this, I came down with a serious disease and ended up in the hospital. I am recuperating now.

My dilemma now, with a month before trial, what are the steps I need to take? Subpoena their witnesses? What is my timing? Please help.

Please, this is not my strong suit, my health is still somewhat copromised and I am at a loss at this point!

Any suggestions in arguing the case would be helpful as well.

TIA,

Bohey

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I found a link for the thread you started:

 

http://www.creditinfocenter.com/community/topic/314502-mandarichcach-delays-delays/

 

This is off the top of my non-lawyer head.  I believe your trial is set for Monday January 14, 2013.  Today is exactly 35 days before trial, so if you haven't sent off a CCP 96, it's important to get it out by mail today, CMRRR if possible.  (And hurry, please!).  BTW, it's a simple form.  It must go with a POS but doesn't get filed with the court.  (Someone correct me if I'm wrong.)

 

If they've sent you a CCP 98, the next step is to subpoena the witness at the earliest on December 24, 2012.  When you find out that the witness is not available for service, the next step is to prepare a motion in limine to strike the CCP 98 affidavit and attached documents.  Anyway, I've never done this, but please look at these cases in San Francisco Superior Court for examples of MILs in collections cases.  The case numbers are 516322, 515041, and 508927.  Here's the link:

 

http://webaccess.sftc.org/scripts/magic94/Mgrqispi94.dll?APPNAME=IJS&PRGNAME=casenumberprompt22

 

Good luck!

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I found a link for the thread you started:

 

http://www.creditinfocenter.com/community/topic/314502-mandarichcach-delays-delays/

 

This is off the top of my non-lawyer head.  I believe your trial is set for Monday January 14, 2013.  Today is exactly 35 days before trial, so if you haven't sent off a CCP 96, it's important to get it out by mail today, CMRRR if possible.  (And hurry, please!).  BTW, it's a simple form.  It must go with a POS but doesn't get filed with the court.  (Someone correct me if I'm wrong.)

 

If they've sent you a CCP 98, the next step is to subpoena the witness at the earliest on December 24, 2012.  When you find out that the witness is not available for service, the next step is to prepare a motion in limine to strike the CCP 98 affidavit and attached documents.  Anyway, I've never done this, but please look at these cases in San Francisco Superior Court for examples of MILs in collections cases.  The case numbers are 516322, 515041, and 508927.  Here's the link:

 

http://webaccess.sftc.org/scripts/magic94/Mgrqispi94.dll?APPNAME=IJS&PRGNAME=casenumberprompt22

 

Good luck!

Thank you!

No CCp 98 yet, should I still send my 96? I have it prepared but don't want to show my hand.

thanks

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Hi Bohey,

 

I had posted this for you on another thread:

 

Here's a checklist fr Seadragon:

 

35 days from trial:
1. All discovery completed on your part
2. Send other parties CCP 96 statement:http://www.courts.ca...nts/disc015.pdf
3. check discovery sent to you for the declaration in lieu of live testimony. Check to see if it has these words or something like it:

"I certify (or declare) under penalty of perjury under the laws of
the State of California that the foregoing is true and correct":
_____________ _________
(Date) (Signature)

If not prepare to excluded it before trial in limine(look it up).

4. Get all discovery and or evidence(except evidence for impeachment) to the plaintiff no later than day 35 before trial(if you are not using a calendar to keep track of the court dates you could lose, Judges are not like bosses and let things slide)

5. send your trial brief and declaration in lieu of live testimony to the plaintiff's by this date. This should be a red circled date on your calendar.

6. Check your courts local rules for motions in limine if they have to be sent by the discovery deadline do so. If not mark 5 days sooner on the calendar to make sure you get it out.

20 days before trial:

1. Subpoena the witness identified in the CCP96, CCP98 declarant at the address stated in the declaration(recommend using the sherriff's office they are cheaper and thorough and debt collectors don't lie to them)

2. Make your trial issue outline and prepare for oral arguement. Ignore calls from the lawyer. but listen to the voicemail to see if it is a meet and confer.

3. Make sure you understand(not just read) all the cases you cite and the reason you are citing them.

4. Make up your trial binder

10 Days out:

1. if you haven't done so file the motion in limine and send it to plaintiffs with proof of service. The courts all have different rules for MIL so you have to check 60 days out.

2. Stop reasearching everyday make it every other day so your brain can analyze your research.

3. Start practicing your Oral arguements. Best if you have someone listen to you (like the built in conversational hostage known as a spouse ) to help Identify the tone and presentation errors that make the court not want to listen. Eliminate the whinney or, loudly stated or, rightously indignate tone. Think Mr. Spock style where you argue the points in a calm manner using non pointing hand gestures(in the military the people use the whole hand to point). Make your points quickly and practice with your oral arguements partner for various objections(attorneys use these to preserve for appeal an issue and to disrupt your informational flow. Learn all the objections available and use them at appropriate times to disrupt the plaintiff and to preserve issues on appeal) Objection, hearsay will do in a pinch.

 

....hope this helps...


 

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The CCP 96 locks in their evidence so they bring in something at trial that you have not been presented with.  That's why it's important to send it out.

 

However, CCP 1013 requires that 5 days be added to the deadline for service by mail, so if you serve CCP 96 by mail, today is already 34 days, not 35 days, before trial.  If you send it by express mail, then you only have to add 2 days.  Anyway, here's what the Code has to say:

 

1013.  (a) In case of service by mail, the notice or other papershall be deposited in a post office, mailbox, subpost office,substation, or mail chute, or other like facility regularlymaintained by the United States Postal Service, in a sealed envelope,with postage paid, addressed to the person on whom it is to beserved, at the office address as last given by that person on anydocument filed in the cause and served on the party making service bymail; otherwise at that party's place of residence. Service iscomplete at the time of the deposit, but any period of notice and anyright or duty to do any act or make any response within any periodor on a date certain after service of the document, which time periodor date is prescribed by statute or rule of court, shall be extendedfive calendar days, upon service by mail, if the place of addressand the place of mailing is within the State of California, 10calendar days if either the place of mailing or the place of addressis outside the State of California but within the United States, and20 calendar days if either the place of mailing or the place ofaddress is outside the United States, but the extension shall notapply to extend the time for filing notice of intention to move fornew trial, notice of intention to move to vacate judgment pursuant toSection 663a, or notice of appeal. This extension applies in theabsence of a specific exception provided for by this section or otherstatute or rule of court.   ( The copy of the notice or other paper served by mail pursuantto this chapter shall bear a notation of the date and place ofmailing or be accompanied by an unsigned copy of the affidavit orcertificate of mailing.   (c) In case of service by Express Mail, the notice or other papermust be deposited in a post office, mailbox, subpost office,substation, or mail chute, or other like facility regularlymaintained by the United States Postal Service for receipt of ExpressMail, in a sealed envelope, with Express Mail postage paid,addressed to the person on whom it is to be served, at the officeaddress as last given by that person on any document filed in thecause and served on the party making service by Express Mail;otherwise at that party's place of residence. In case of service byanother method of delivery providing for overnight delivery, thenotice or other paper must be deposited in a box or other facilityregularly maintained by the express service carrier, or delivered toan authorized courier or driver authorized by the express servicecarrier to receive documents, in an envelope or package designated bythe express service carrier with delivery fees paid or provided for,addressed to the person on whom it is to be served, at the officeaddress as last given by that person on any document filed in thecause and served on the party making service; otherwise at that party's place of residence. Service is complete at the time of the deposit,but any period of notice and any right or duty to do any act or makeany response within any period or on a date certain after service ofthe document served by Express Mail or other method of deliveryproviding for overnight delivery shall be extended by two court days.The extension shall not apply to extend the time for filing noticeof intention to move for new trial, notice of intention to move tovacate judgment pursuant to Section 663a, or notice of appeal. Thisextension applies in the absence of a specific exception provided forby this section or other statute or rule of court.   (d) The copy of the notice or other paper served by Express Mailor another means of delivery providing for overnight deliverypursuant to this chapter shall bear a notation of the date and placeof deposit or be accompanied by an unsigned copy of the affidavit orcertificate of deposit.

 

I don't know if the other side will raise a fuss if you serve a CCP 96 a day short.  If they do, they might gain an advantage.  Hopefully, a more experienced poster will weight in on this.

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The CCP 96 locks in their evidence so they bring in something at trial that you have not been presented with.  That's why it's important to send it out.

 

However, CCP 1013 requires that 5 days be added to the deadline for service by mail, so if you serve CCP 96 by mail, today is already 34 days, not 35 days, before trial.  If you send it by express mail, then you only have to add 2 days.  Anyway, here's what the Code has to say:

 

1013. (a) In case of service by mail, the notice or other paper

shall be deposited in a post office, mailbox, subpost office,

substation, or mail chute, or other like facility regularly

maintained by the United States Postal Service, in a sealed envelope,

with postage paid, addressed to the person on whom it is to be

served, at the office address as last given by that person on any

document filed in the cause and served on the party making service by

mail; otherwise at that party's place of residence. Service is

complete at the time of the deposit, but any period of notice and any

right or duty to do any act or make any response within any period

or on a date certain after service of the document, which time period

or date is prescribed by statute or rule of court, shall be extended

five calendar days, upon service by mail, if the place of address

and the place of mailing is within the State of California, 10

calendar days if either the place of mailing or the place of address

is outside the State of California but within the United States, and

20 calendar days if either the place of mailing or the place of

address is outside the United States, but the extension shall not

apply to extend the time for filing notice of intention to move for

new trial, notice of intention to move to vacate judgment pursuant to

Section 663a, or notice of appeal. This extension applies in the

absence of a specific exception provided for by this section or other

statute or rule of court.

( B) The copy of the notice or other paper served by mail pursuant

to this chapter shall bear a notation of the date and place of

mailing or be accompanied by an unsigned copy of the affidavit or

certificate of mailing.

© In case of service by Express Mail, the notice or other paper

must be deposited in a post office, mailbox, subpost office,

substation, or mail chute, or other like facility regularly

maintained by the United States Postal Service for receipt of Express

Mail, in a sealed envelope, with Express Mail postage paid,

addressed to the person on whom it is to be served, at the office

address as last given by that person on any document filed in the

cause and served on the party making service by Express Mail;

otherwise at that party's place of residence. In case of service by

another method of delivery providing for overnight delivery, the

notice or other paper must be deposited in a box or other facility

regularly maintained by the express service carrier, or delivered to

an authorized courier or driver authorized by the express service

carrier to receive documents, in an envelope or package designated by

the express service carrier with delivery fees paid or provided for,

addressed to the person on whom it is to be served, at the office

address as last given by that person on any document filed in the

cause and served on the party making service; otherwise at that party'

s place of residence. Service is complete at the time of the deposit,

but any period of notice and any right or duty to do any act or make

any response within any period or on a date certain after service of

the document served by Express Mail or other method of delivery

providing for overnight delivery shall be extended by two court days.

The extension shall not apply to extend the time for filing notice

of intention to move for new trial, notice of intention to move to

vacate judgment pursuant to Section 663a, or notice of appeal. This

extension applies in the absence of a specific exception provided for

by this section or other statute or rule of court.

(d) The copy of the notice or other paper served by Express Mail

or another means of delivery providing for overnight delivery

pursuant to this chapter shall bear a notation of the date and place

of deposit or be accompanied by an unsigned copy of the affidavit or

certificate of deposit.

 

I don't know if the other side will raise a fuss if you serve a CCP 96 a day short.  If they do, they might gain an advantage.  Hopefully, a more experienced poster will weight in on this.

Thank you!

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The CCP 96 locks in their evidence so they CANNOT bring in something at trial that you have not been presented with.  That's why it's important to send it out.

 

I should really learn how to type, huh?

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Send out that CCP96, 98, trial brief today or tomorrow or the court will have an excuse to railroad you. Deadlines are most important. This one is non flexible if you are late you are screwed and vice versa. Gut it out and get more in the timeline. I have to say this strongly due to the seriousness of the matter. If you need help ASTMedic has a very good brief for the usual issues. However the CCP 98 for you needs to refute everything they say in theirs.

 

So put on a pot of coffee because this deadline is not going to be extended by mailing.

 

and for the future red circle 45 days before trial because the 35 days is not getting it done for people. I would hate for a CIC member to lose for that reason.

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Seadragon, Thank you. I have the CCP 96 ready to go. Now, am I to do a CCP98 also? I thought the P did that; although I have seen nothing along that line from them. I will check with ASTIMedic for the trial brief(although I started working on it some time ago, now I will just need to find it :(

bohey

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I believe the deadline for a CCP 98 is 30 days before trial, then add 5 days for mail and that means it needs to have been mail-served 35 days previous.  If it is sent by express mail, it needs to get there 30 plus 2 days before trial.  That means you would need to express-mail-serve it today so they get it tomorrow.  OTOH, they have to do the same thing, too.

 

That's my take on the rules.  I don't know if you still have time to do a CCP 98, though. 

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If the other side doesn't get a CCP 98 to you on time, you can say this in your motion in limine to strike the affidavit:

 

1.         The Affidavit Was Not Timely Served

An affidavit served under Code of Civil Procedure § 98 must be served on the opposing party at least thirty days before trial.  Service by Express Mail or other method that provides for overnight delivery extends the period of notice by two court days.  Code of Civil Procedure § 1013©. 

PLAINTIFF served its Declaration in Lieu of Testimony Pursuant to CCP § 98 on DEFENDANT on December __ 2012.  Service was made by overnight delivery.  A true and correct copy of the proof of service is attached as Exhibit __.  Code of Civil Procedure § 1013© thus requires the addition of two court days prior to trial.

In addressing late filings, the United States Supreme Court states that

 

If 1-day late filings are acceptable, 10-day filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline, yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it.

 

Carlisle v. United States, 517 U.S. 416 (1996).

PLAINTIFF has failed to serve the affidavit in a timely manner and has violated Code of Civil Procedure§ 98.  Since PLAINTIFF has not followed the prerequisites for admitting its affidavit, the Court must exclude the affidavit from admission into evidence at trial.

 

 

This presumes they send a CCP 98 by overnight mail.  If it's by ordinary mail, then as of this moment they are too tardy.

 

I believe the MIL is due 10 days before trial, so if I read this correctly, it should be mailed out 15 days before trial.  If a CCP 98 is served and its affiant is not actually available for service within the 20 days before trial, and at a location 150 miles from the courthouse, then that's more ammo for you in your MIL.

 

It's not too early to warn you that you must have a court reporter, or at least an electronic recording that can be transcribed should you want to appeal.  Some judges do not follow the law and if their actions are not on record, then they get away with everything.

 

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The reason for the CCP 98 from you is because they WILL file one with the court, You want yours right there for the judge to read along with the MIL and everything. The CA's send everything because they know once the judge sees statements he makes up his mind. If you have your declaration before them he will most likely read yours first.

 

The JDB's win because they get the "evidence" read by the judge first you are basically fighting a losing battle then because we all know how stubborn the judges can become when they think your argument will hurt the plaintiff's.

 

So getting that stuff to the court is most important because the other side is already spreading their lies and tainting the judge. also I believe strongly that it is not just the judge but the judges assistant who is saying to the judge that the case is this and that. Is it possible that the assistant could be influenced by the JDB's. I always worry about it 

 

So get into the declaration show that the plaintiff is dirty. Show the decisions from other states AG against them show any out of state supreme court decisions against them. All that will shed some light into their practices.

 

Also the court is going to allow you to be called as a witness, You are going to be there so you must prep for the questioning. They are going to try to show you lived at the address on the statements, that you used the card, and that you had contact with the account. You need to shred their case.

 

and don't let the court bully you. Try to get a court reporter at trial when you win you get the costs back. and definetly subpoena the witness.

 

They will file the declaration 33-32 days before trial get to the court first

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Seadragon,

Sorry I am so dense.

What is form 98? I can't find it...I looked it up under the CCP but it does not look like a form. Do these need to go to the court also. I know the 96 does not, how about the 98? Does the trial brief need to go as well along with the POS?

Thanks for all your help

The reason for the CCP 98 from you is because they WILL file one with the court, You want yours right there for the judge to read along with the MIL and everything. The CA's send everything because they know once the judge sees statements he makes up his mind. If you have your declaration before them he will most likely read yours first.

 

The JDB's win because they get the "evidence" read by the judge first you are basically fighting a losing battle then because we all know how stubborn the judges can become when they think your argument will hurt the plaintiff's.

 

So getting that stuff to the court is most important because the other side is already spreading their lies and tainting the judge. also I believe strongly that it is not just the judge but the judges assistant who is saying to the judge that the case is this and that. Is it possible that the assistant could be influenced by the JDB's. I always worry about it 

 

So get into the declaration show that the plaintiff is dirty. Show the decisions from other states AG against them show any out of state supreme court decisions against them. All that will shed some light into their practices.

 

Also the court is going to allow you to be called as a witness, You are going to be there so you must prep for the questioning. They are going to try to show you lived at the address on the statements, that you used the card, and that you had contact with the account. You need to shred their case.

 

and don't let the court bully you. Try to get a court reporter at trial when you win you get the costs back. and definetly subpoena the witness.

 

They will file the declaration 33-32 days before trial get to the court first

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"What is form 98? I can't find it...I looked it up under the CCP but it does not look like a form. Do these need to go to the court also. I know the 96 does not, how about the 98? Does the trial brief need to go as well along with the POS?
Thanks for all your help"

 

It's not a form.  It's a declaration, also called an affidavit, in pleading form.  Usually the plaintiff has its witness sign such a declaration stating that you owe the debt and all that junk.  Seadragon is suggesting that you make your own CCP 98 to counter what the other side will present.

 

You can look at this link to examine samples of CCP 98:  

http://webaccess.sftc.org/scripts/magic94/Mgrqispi94.dll?APPNAME=IJS&PRGNAME=casenumberprompt22

You can enter 518594, then look for declaration in lieu of live testimony.  Also try 512658.  These are only two examples.

 

I don't know where to find a CCP 98 by a defendant, though.

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If Plaintiff’s response to BOP was inadequate.
NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS
NAME
Address
San Bernardino, CA 91755
Defendant, In Pro Per
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN BERNARDINO
111 North Hill Street, San Bernardino, CA 91755
Branch – Civil Limited
XXXXXXXXX,
Plaintiff,
vs.
XXXXXXXXX,
Defendant,
Case No.:
NOTICE OF MOTION AND MOTION
TO COMPEL BILL OF PARTICULARS;
MEMORANDUM OF POINTS &
AUTHORITIES; DECLARATION
of XXXXXXXX IN SUPPORT OF
MOTION TO COMPEL FURTHER
RESPONSE TO BILL OF PARTICULARS
DATE: July X, 2012
TIME: 8:30 am
DEPT: 77
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on XXXX, 2012 at 8:30 a.m. in Department 77 of the above-entitled Court located at 111 North Hill Street, Los Angeles, California, Defendant will move, and hereby does move, for an Order compelling Plaintiff to respond fully to Defendant’s Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure section 454 on the ground that Plaintiff has refused to respond to Defendant’s demand for a Bill of Particulars and good cause exists for the relief requested in this motion.
This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of XXXXXXXXX filed herewith, all of the papers and pleadings on file in this action and such other evidence and argument as shall be adduced at or before the hearing hereof.
DATED: April 23, 2012 ___Signature_____________
Name, In Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
On October 12, 2011, plaintiff filed a complaint in this matter. The complaint alleges that defendant owes plaintiff the sum of $XXX.XX pursuant to an agreement between defendant and Capital One Bank (USA) NA. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owing.

For this reason, on March 13, 2012, defendant served Via Certified Mail RRR, a request for Bill of Particulars on plaintiff. Plaintiff’s response was wholly inadequate. No contract has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint. Defendant therefore asks that this Court order plaintiff to supplement its Bill of Particulars producing a complete accounting, a copy of the contract referred to in the complaint and a copy of any agreement assigning this claim to plaintiff. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter.
II. ARGUMENT
Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a plaintiff need not detail all items of an account in the complaint. However, upon request, plaintiff must provide all such information within 10 days or be precluded from giving evidence thereof at trial:
"It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular."
Here, defendant served a request for a Bill of Particulars on March 13, 2012 pursuant to CCP 454. Declaration of XXXXX in Support of Motion for Further Bill Of Particulars paragraph 1. Defendant asked for a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based, including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered, the price or charge made for each such item or transaction; and all payments or credits that have been made to the account. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."
Plaintiff’s response was wholly deficient. Plaintiff responded to Defendants demand for Bill of Particulars by contending that a Bill of particulars is innapplicable to plaintiffs cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B.” It did not provide contract, itemized details of the account on which the cause of action for goods sold and delivered including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction. Defendants good faith effort to meet and confer to avoid the necessity of bringing this motion were futile.
On March 29, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second request for Bill of Particulars, Via Certified Mail RRR. A true copy of my March 29, 2012 letter is attached as Exhibit "C."
On April 2, 2012, Plaintiff responded to Defendants demand for Bill of Particulars by claiming Plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at the trial. A true copy of plaintiff’s response is hereto attached as Exhibit “D”.
On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “E”.
On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter, Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “F”.
The information requested in Defendant’s Bill of Particulars is the bare minimum that plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars. The Court should require plaintiff to do so immediately.
III CONCLUSION
Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce the contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial.
DATED: April 23, 2012XXXXXXXXX
In Pro Per
DECLARATION OF XXXXXXXXX IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSE TO BILL OF PARTICULARS
I, XXXXXXXXXX declare as follows:
I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.
1. Defendant served his Demand for Bill of Particulars Via Certified Mail RRR to Plaintiff’s attorney, Mark D. Walsh, on March 13, 2012. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."
2. On March 20, 2012, defendant received Plaintiff’s objection to Demand for Bill of Particulars, claiming that a Bill of Particulars may be served on the plaintiff only in an action on an account. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof…”A bill of Particulars is not appropriates in an action on account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. Plaintiffs complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff’s position Bill of particulars is inapplicable to plaintiff’s cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B.”
3. On March 29, 2012, Defendant sent a letter, Via Certified Mail RRR, to Plaintiff’s attorney Mark D. Walsh, observing that plaintiff’s response was incomplete and insufficient and requesting that Plaintiff provide a supplemental response. A true copy of my March 29, 2012 letter is attached as Exhibit "C."
4. On April 2, 2012, defendant received Plaintiff’s response to Bill of Particulars and One (1) Capital One Bank (USA) NA Statement for April 2012. No further documents were produced. Plaintiff responded by letter claiming that plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial. A true copy of plaintiff’s response is hereto attached as Exhibit “D”.
On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “E”.
On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “F”.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 23rd day of April, 2012 at San Bernardino, California.         

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Seadragon,

Can I ease the timeframe you recommended a bit? Is it necessary to send the trial brief now? I am seeing various opinions on the board as to the dates .

Do I prepare a trial packet for Mandarich/CACH,the judge as well as myself?

What do I include in the packet?

I have been in the hospital with what they thought was bacterial pneumonia and it turned out to be Vslley Faver and fungal pneumonia. I wrote to the judge and asked for a continuance. With the holidays and all I don't know how lenient he will be. Thx as always.

Bohey

Send out that CCP96, 98, trial brief today or tomorrow or the court will have an excuse to railroad you. Deadlines are most important. This one is non flexible if you are late you are screwed and vice versa. Gut it out and get more in the timeline. I have to say this strongly due to the seriousness of the matter. If you need help ASTMedic has a very good brief for the usual issues. However the CCP 98 for you needs to refute everything they say in theirs.

 

So put on a pot of coffee because this deadline is not going to be extended by mailing.

 

and for the future red circle 45 days before trial because the 35 days is not getting it done for people. I would hate for a CIC member to lose for that reason.

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Here are links on preparing a motion to continue a trial date.  You can do a motion, or do an ex parte application. 

 

http://www.avvo.com/legal-guides/ugc/how-to-continue-a-trial-date-in-california

http://paralegallosangeles.com/how-to-write-an-ex-parte-motion-to-continue-trial-date-in-california.html

 

Also look at case 516334 on the link I sent above.  It's just an FYI about a case wherein the defendant is quite ill and sent his daughter to court on the day of trial to get a 90-day extension.  It was granted, too.

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If you do ask for a continuance, you need to do so in a motion.  You will have to file a quick declaration supporting the motion saying you have been very ill.  That is one of the grounds recognized in the rule for obtaining a continuance.  Here is the rule:  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

 

As far as the CCP 98 declaration is concerned, I don't think you want to do one yourself.  You will have to be at trial to object to plaintiff's evidence.  Since you have to be there, you can take the stand and say anything you want.  Declarations are submitted by parties that do not want to bring the witness to trial.  If they attend, the declaration is not used.

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If you do ask for a continuance, you need to do so in a motion.  You will have to file a quick declaration supporting the motion saying you have been very ill.  That is one of the grounds recognized in the rule for obtaining a continuance.  Here is the rule:  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

 

As far as the CCP 98 declaration is concerned, I don't think you want to do one yourself.  You will have to be at trial to object to plaintiff's evidence.  Since you have to be there, you can take the stand and say anything you want.  Declarations are submitted by parties that do not want to bring the witness to trial.  If they attend, the declaration is not used.

Thanks Calawyer.

 

Evidently, our county (Fresno) allows that a request for a delay in trial due to a valid issue  be asked for in a letter to the judge (or clerk). I thought it weird, too. I hope I did not misunderstan.d

 

What do you think about filing a motion in limine? I prepared one because the custodian of records cited a substitute address outside the 150 mile mandate and she lives/works in Colorado. Since both addresses are outside the prescribed area documents should be excluded at trial. Do I have to attempt to file a subpoena on the custodian who "could be (won't be) available" at the substitute office greater than 150 miles away or can I say that both addresses are outside the rule?

 

I also pointed out the affidavits are inadmissible because they include documents from 3 banks without an explaination as to the chain of custody/title. In addition, the affidavits were signed by officers of Bof A, FIA and MBNA ... account numbers were wrong, the preparation looks improper (cut and paste), plaintiff included a Bof A 2008 Privacy Statement (with the second BOP request) and a MBNA 2001 Privacy Statement (with the first request for BOP).

 

 I hope the motion in limine is correct. I was also told by the clerk it does not need to be filed with the court; is that true? Trial is January 16th - I have sent the 96 - I have prepared my trial brief and motion in limine. Do I need to file a subpoena or Notice To Attend Trial to the to the substitute address or attorney's office? Thank you for your time and advice. I greatly appreciate it! 

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Thanks Calawyer.

 

Evidently, our county (Fresno) allows that a request for a delay in trial due to a valid issue  be asked for in a letter to the judge (or clerk). I thought it weird, too. I hope I did not misunderstan.d

 

What do you think about filing a motion in limine? I prepared one because the custodian of records cited a substitute address outside the 150 mile mandate and she lives/works in Colorado. Since both addresses are outside the prescribed area documents should be excluded at trial. Do I have to attempt to file a subpoena on the custodian who "could be (won't be) available" at the substitute office greater than 150 miles away or can I say that both addresses are outside the rule?

 

I also pointed out the affidavits are inadmissible because they include documents from 3 banks without an explaination as to the chain of custody/title. In addition, the affidavits were signed by officers of Bof A, FIA and MBNA ... account numbers were wrong, the preparation looks improper (cut and paste), plaintiff included a Bof A 2008 Privacy Statement (with the second BOP request) and a MBNA 2001 Privacy Statement (with the first request for BOP).

 

 I hope the motion in limine is correct. I was also told by the clerk it does not need to be filed with the court; is that true? Trial is January 16th - I have sent the 96 - I have prepared my trial brief and motion in limine. Do I need to file a subpoena or Notice To Attend Trial to the to the substitute address or attorney's office? Thank you for your time and advice. I greatly appreciate it! 

How far away is the California address?  If it is 158 miles, I think you should subpoena the witness.  If it is 250 miles away, that is a different story.  In either event, you will file a motion in limine to preclude the affidavit (and all exhibits) from being admitted at trial.

 

 Are the affidavits from  officers of Bof A, FIA and MBNA submitted pursuant to CCP 98?  Do they provide an address in California where service of a subpoena can be accomplished?  If not, then you should have a brief section for each in your Motion in Limine expalaining that affidavits are not admissible at trial unless specifically allowed by statute (such as CCP 98).  These do not.  Therefore they should be excluded.  The case you want to cite is the Cal. Supreme Court's case in Elkins v. Superior Court. Here is a link:  http://www.lawlink.com/research/CaseLevel3/11243

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How far away is the California address?  If it is 158 miles, I think you should subpoena the witness.  If it is 250 miles away, that is a different story.  In either event, you will file a motion in limine to preclude the affidavit (and all exhibits) from being admitted at trial.

 

 Are the affidavits from  officers of Bof A, FIA and MBNA submitted pursuant to CCP 98?  Do they provide an address in California where service of a subpoena can be accomplished?  If not, then you should have a brief section for each in your Motion in Limine expalaining that affidavits are not admissible at trial unless specifically allowed by statute (such as CCP 98).  These do not.  Therefore they should be excluded.  The case you want to cite is the Cal. Supreme Court's case in Elkins v. Superior Court. Here is a link:  http://www.lawlink.com/research/CaseLevel3/11243

Calawyer,

 

I must be really dense ... I don't see the relevance of Elkins to my case. Would you clarify? (Obviously, law is not my strong suit).

 

To answer question #1: 190 miles. I think that is too far.

I called the office in CO today and the person who was to testify as custodian of records is an employee there.

 

 The answer to question number 2 is:

 The FIA Affidavit of Sale and Certification of Debt sold to CACH... was signed in North Carolina by a FIA Bank Manager.

 The FIA Bill of Sale and assignment of loans was signed July 20 2010 by a VP for FIA in Delaware (It is o BofA letterhead).

These dates seem really out of whack.

The C/O date was 6-20-2010.

The answer to 3.There is no applicable address in CA (except the attorney's in Woodland Hills) and the address in Oakland is not the attorney's office and there was no phone number included.

Am I ok with not serving a subpoena due to the circumstances? I have been debating the issue.  It would be $65.00 to go on a wild goose chase.

 

 

Another question: What is the proper form for a motion of limine? I have seen 3 separate documents ; order, P&A and Argument

and I have seen a MIL incorporated into one document. I wrote up separate ones, then I combined them and now I don't know what is right. 

Please advise and TIA! You are the best!

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Ok so I'm going to rehash this since we seem to be going in circles over CCP 98 affidavits.

 

An affidavit is used in these types of cases to try and get the documents that the JDB wants to admit into evidence. They can't do so unless they bring a witness to court to testify with first hand knowledge (means they had to make or maintain the file) as to the validity of the docs. They next best thing to bringing the witness is supplying an affidavit. The way using an affidavit works in Cali is that they must conform to CCP 98 statute. That statute says that to be able to admit an affidavit into evidence that it must have the following:

 

  1. It must list an address within 150 miles of the court where the affiant can be served 20 days prior to trial. Some CCP 98 affidavits list 5-6 addresses in an attempt to have at least one of them be in 150 miles of the court. It's a scam since they can't really do that. The reason this is required is that it allows you the opportunity to subpoena the party so that you may ask them questions. If you choose to not subpoena that person then you are essentially saying you are ok with what the affidavit says.
  2. It must be signed stating that "under penalty on perjury in the State of California". If not then it's garbage.

The affidavits they gave you sound to be the ones that are made during the sale of the account. Saying things like "I have first had knowledge of the account" and "made during the process of normal business". By the dates you stated I think these are those kinds of affidavits. Those are crap in court since they rarely give addresses for service. It's a way to make you think they got you my the short and curly hairs.

 

So now how do you address a non compliant CCP 98 affidavit? You do so in a MIL. You attack the affidavit and how it is deficient under CCP 98. If there is more than one then you can cover them all in one MIL.This is from my MIL:

 

Plaintiffs Declarant, Ashley Lashinski, has not provided a current address that is within 150 miles of the place of Trial. In her Affidavit in Lieu of Testimony, dated September 11th, 2012, Declarant, Ashley Lashinski, has stated under penalty of perjury that her declaration was executed in St. Cloud, Minnesota. Notably, no address in St. Cloud, Minnesota is within 150 miles of the place of Trial. Additionally, the Affidavit in Lieu of Testimony states that "For 20 days immediately prior to any trial in this matter, I agree to accept service at any of the following locations:” Among the five different locations Ms. Lashinski will be able to be served 20 days before any trial in California is 2730 Gateway Oaks, Suite 100, Sacramento, California, 95833. Four other locations in San Diego, Westlake Village, San Jose and Upland, California are also listed and all are over 150 miles from the court and do not conform to Code of Civil Procedure § 98.

 

Plaintiff’s declarant cannot just simply provide any “address for service of process," and doing so utterly fails to comply with the statute. The addresses provided must be “a current address" of the declarant and the address must be within 150 miles of the place of trial. The plain meaning of the statute is clear: declarant whose current address is greater than 150 miles from the place of trial cannot submit declarations in lieu of direct testimony at trial. Instead, such witnesses must appear at trial in person. Plaintiff has attempted to circumvent this statutory provision. Because Plaintiff has failed to meet this basic requirement of Code of Civil Procedure § 98, the Affidavit in Lieu of Testimony must be excluded from evidence at trial in this matter.

 

 

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Ok so I'm going to rehash this since we seem to be going in circles over CCP 98 affidavits.

 

An affidavit is used in these types of cases to try and get the documents that the JDB wants to admit into evidence. They can't do so unless they bring a witness to court to testify with first hand knowledge (means they had to make or maintain the file) as to the validity of the docs. They next best thing to bringing the witness is supplying an affidavit. The way using an affidavit works in Cali is that they must conform to CCP 98 statute. That statute says that to be able to admit an affidavit into evidence that it must have the following:

 

  1. It must list an address within 150 miles of the court where the affiant can be served 20 days prior to trial. Some CCP 98 affidavits list 5-6 addresses in an attempt to have at least one of them be in 150 miles of the court. It's a scam since they can't really do that. The reason this is required is that it allows you the opportunity to subpoena the party so that you may ask them questions. If you choose to not subpoena that person then you are essentially saying you are ok with what the affidavit says.
  2. It must be signed stating that "under penalty on perjury in the State of California". If not then it's garbage.

The affidavits they gave you sound to be the ones that are made during the sale of the account. Saying things like "I have first had knowledge of the account" and "made during the process of normal business". By the dates you stated I think these are those kinds of affidavits. Those are crap in court since they rarely give addresses for service. It's a way to make you think they got you my the short and curly hairs.

 

So now how do you address a non compliant CCP 98 affidavit? You do so in a MIL. You attack the affidavit and how it is deficient under CCP 98. If there is more than one then you can cover them all in one MIL.This is from my MIL:

 

Plaintiffs Declarant, Ashley Lashinski, has not provided a current address that is within 150 miles of the place of Trial. In her Affidavit in Lieu of Testimony, dated September 11th, 2012, Declarant, Ashley Lashinski, has stated under penalty of perjury that her declaration was executed in St. Cloud, Minnesota. Notably, no address in St. Cloud, Minnesota is within 150 miles of the place of Trial. Additionally, the Affidavit in Lieu of Testimony states that "For 20 days immediately prior to any trial in this matter, I agree to accept service at any of the following locations:” Among the five different locations Ms. Lashinski will be able to be served 20 days before any trial in California is 2730 Gateway Oaks, Suite 100, Sacramento, California, 95833. Four other locations in San Diego, Westlake Village, San Jose and Upland, California are also listed and all are over 150 miles from the court and do not conform to Code of Civil Procedure § 98.

 

Plaintiff’s declarant cannot just simply provide any “address for service of process," and doing so utterly fails to comply with the statute. The addresses provided must be “a current address" of the declarant and the address must be within 150 miles of the place of trial. The plain meaning of the statute is clear: declarant whose current address is greater than 150 miles from the place of trial cannot submit declarations in lieu of direct testimony at trial. Instead, such witnesses must appear at trial in person. Plaintiff has attempted to circumvent this statutory provision. Because Plaintiff has failed to meet this basic requirement of Code of Civil Procedure § 98, the Affidavit in Lieu of Testimony must be excluded from evidence at trial in this matter.

Thank you. 98 is done.

Do I have to have to include P&A? I reference them in the MIL. Also send a Certificate of Service?

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Bohey,

 

Regarding the Elkins case here's how I understood that case and calawyer correct me on my understanding:

 

Elkins v Supreme Court, 41 Cal 4th 1337, 1355 (2007)

 

In that case the Court affirmed that declarations are hearsay unless there is some statutory exception.
So If you are given a BOS affidavit or any affidavit that is NOT a CCP 98 its NO good here in CA. The law in CA says if an affidavit is presented it has to comply w/ the CCP 98 law which allows declarations in limited cases BUT only if an address is provided where the witness can be served w/ a subpoena to testify at trial.

 

This is how you will get their BOS affidavit or any evidence kept out of evidence if didn't comply w/ the CCP 98 law.

 

Just my 2 cents....

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