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Can't believe I lost my MIL for a CCP 98 who wasn't served!


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So here's the thing. I attempted to have their declarant served and failed. She wasn't there.

 

The judge looks up the code and says personal service is not required and that she doesn't have to live there. Even though in her declaration she listed her "CURRENT ADDRESS" as in another state, he still accepted the CCP 98. I am supposed to serve her again and the judge will allow subservice.

 

They have continued it 60 days out. I'm crushed, but I want to go down with the biggest fight they can imagine.

 

What now?!

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So here's the thing. I attempted to have their declarant served and failed. She wasn't there.

 

The judge looks up the code and says personal service is not required and that she doesn't have to live there. Even though in her declaration she listed her "CURRENT ADDRESS" as in another state, he still accepted the CCP 98. I am supposed to serve her again and the judge will allow subservice.

 

They have continued it 60 days out. I'm crushed, but I want to go down with the biggest fight they can imagine.

 

 and then only for disobedience to the order.
Did you serve Notice to Appear CCP 1987? CCP 1987: the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there.
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So here's the thing. I attempted to have their declarant served and failed. She wasn't there.

 

The judge looks up the code and says personal service is not required and that she doesn't have to live there. Even though in her declaration she listed her "CURRENT ADDRESS" as in another state, he still accepted the CCP 98. I am supposed to serve her again and the judge will allow subservice.

 

They have continued it 60 days out. I'm crushed, but I want to go down with the biggest fight they can imagine.

 

 and then only for disobedience to the order.
 

 

Hey Hotwheel,

not sure what happened but Did you serve Notice to Appear CCP 1987? CCP 1987: the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there.

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It wasn't the 1987 it was a SUB-001. Was that a mistake? The affiant isn't in my state, rather, she is more than 2500 miles away.

 

I'm afraid to have a sheriff attempt to serve because I heard they are more likely to not leave it with just anybody and it might put me in a bad position with the judge.

 

Do I mail the 1987?

 

Either way, the judge noted my objection. I will absolutely appeal.

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helpme:

 

Oh I was fully prepared with the argument for CCP 98, but it didn't matter. He said she did give an address within the required mileage and that she didn't have to give her home address. I missed my chance to file the CCP 96 however. By his continuing it, I have been given a chance to do so.

 

I also just found out that this OC placed a hard inquiry on my credit report, six months into this lawsuit. I'm miffed to say the least.

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Hey Hotwheels

Did you send ccp96? The witness is suppose to be available 150 miles not 2500 miles fr courthouse. Look into the rules of ccp96/98.

That's true, they are supposed to be 150 miles from court. I think sometimes the judge will allow it. You should file a motion to reconsider. It's probably not too big of a deal anyway, you can subpoena the declarant again(sometimes CACH will dismiss the case right about this time), they are unlikely to show, and if they ask for expenses you Will have to argue that you can not afford to pay for their witness and that they filed the lawsuit and should pay.

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There are judges out there who ignore the law.  You're not the first defendant faced with a situation in which the judge insists on giving the plaintiff all the leeway in the world.  Our only recourse is to be ready to appeal the case.  Getting a court reporter will preserve the record of the trial for the appeals court to look at, otherwise it's a case of he-said-she-said.  It's possible that your local court has electronic recording available, which recording can be transcribed in case an appeal is necessary.  You might also get permission to make your own recording for personal use, although this may not be considered official.

 

I think it's fortunate you get 60 days out.  It gives you time to meet deadlines and prepare yourself.  It's also very stressful, unfortunately.  :(

 

Click the link and enter 508927. 

 

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

 

In this case, the judge insisted on giving CACH extra time to produce a witness, and when CACH couldn't produce a witness, the judge still insisted on a dismissal without prejudice, despite defendant's argument for a dismissal WITH prejudice.  The defendant was going to appeal and then abandoned the appeal.  The case did get dismissed, of course.

 

So we do what we can, but there are snakes presiding over cases. 

 

Keep in there pitchin'!

 

 

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There are judges out there who ignore the law.  You're not the first defendant faced with a situation in which the judge insists on giving the plaintiff all the leeway in the world.  Our only recourse is to be ready to appeal the case.  Getting a court reporter will preserve the record of the trial for the appeals court to look at, otherwise it's a case of he-said-she-said.  It's possible that your local court has electronic recording available, which recording can be transcribed in case an appeal is necessary.  You might also get permission to make your own recording for personal use, although this may not be considered official.

 

Amen to that!! There are some very plaintiff friendly judges in CA.

 

 

 

 

 

 

Click the link and enter 508927. 

 

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

 

In this case, the judge insisted on giving CACH extra time to produce a witness, and when CACH couldn't produce a witness, the judge still insisted on a dismissal without prejudice, despite defendant's argument for a dismissal WITH prejudice.  The defendant was going to appeal and then abandoned the appeal.  The case did get dismissed, of course.

 

So we do what we can, but there are snakes presiding over cases. 

 

Keep in there pitchin'!

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He said she did give an address within the required mileage and that she didn't have to give her home address.

 

It says nothing about her home address. It says a current address where the witness is avaiable. Remind them of that if it comes up again.

 

CCP 98:

 

"(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."

 

CCP 1987:

 

"(a) Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance...."

 

What's my next move as far as type of subpoena to use? It's been listed as a person is authorized to accept service for the declarant.

 

You used the right one. Subp-002 is a subpoena duces tecum (or subpoena for production of evidence). Meaning if you wanted them to bring docs with them you would use that one. If you want just a person to show for court you use Subp-001.

 

Your judge is incorrect and not following the laws as they are written. Now it's your job to counter that.

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I can tell you what I did and the judge wasn't real excited about it but I got my point accross as gentle as possible, at least I thought so. 

 

In my trial binder I had pocket folders where I put copies of ALL relevent statutes and case law.  I had 3 copies of each one.  When I began my debate with the judge about what CCP 98 actually said, I said, with respect your honor the statutes says blah, blah, blah and I have a copy of the statute right here if you honor would like to see it.  I pulled out 3 copies of CCP 98, slid one over to plaintiff's side of the table and held one out for the bailiff to give to the judge and the judge sort of barked "I know what the statute says."

 

Not saying you should get into a pushing match with your judge, but I can only tell what I did.  You can certainly get a feel for what the judge would be willing to listen to.  After all, they call them arguments not discussions.  I'm assuming they call them arguments for a reason.  I figured the judge was already against me so nothing lost if I ticked him off a little, he still needed to follow the law and the law was on my side.  That might be a bit naive on my part but I thought if I lost this, I wasn't getting another shot so I should swing for the fences.

 

I guess you need to subpoena the witness as the judge said.  If she's out of state, it's really doubtfull she'll show and you will still be in pretty good shape.

 

Good luck.  

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What's my next move as far as type of subpoena to use?It's been listed as a person is authorized to accept service for the declarant.

If I were in your position here are the following steps I would take, these are based on the fact the court has issued a new date for trial-

1. I would get out my calendar and make sure I meet the CCP 96 deadline, this round. Afterall your current declarant/affiant may change and you are entitled to know this prior to trial. You can then see what they provide, primarily if the provide the same Declaration in Lieu for the same affiant and similar statments and the like.

2. This being a case being brought an OC, and assuming the declarant/affiant is in some capacity part of the OC organization you should be able to use CCP 1987b, to have them appear. This only needs to be served 20 days prior to trial, and can be served on the CA/Attorney handling the case. This takes the difficulty of the subpeona out of the picture.

You need to be mindful in dealing with an OC, if they supply a witness who is actually employed by the OC, your case could be very tough sleding. So you really don't want this witness to show and testify.

3. If you recieve the same or new Declaration in Lieu, you need to prepare. Take the exesiting document you have and begin break it down. Assume the witness will show and is going to testify to what is in that document. What holes can you punch in that testimony? How will you attack this witness?

You have been given a 60 day reprieve and prepare use your time wisely, post parts of the Declaration so others may help with idea's on how to attack.

Finally, I searched to review all of your postings and there isn't alot of information about which OC this is, which CA is handling the case. The reason this is important for us to help, versus your privacy, is there maybe an angle we could tell you about that we have experience. In a case I had with Chase, affiant was from Chase, affiant gave history of the account which began as Bank One. Well Chase employee can't testify about Bank One because she never worked there, judgement for defendant(me).

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I can tell you what I did and the judge wasn't real excited about it but I got my point accross as gentle as possible, at least I thought so. 

 

In my trial binder I had pocket folders where I put copies of ALL relevent statutes and case law.  I had 3 copies of each one.  When I began my debate with the judge about what CCP 98 actually said, I said, with respect your honor the statutes says blah, blah, blah and I have a copy of the statute right here if you honor would like to see it.  I pulled out 3 copies of CCP 98, slid one over to plaintiff's side of the table and held one out for the bailiff to give to the judge and the judge sort of barked "I know what the statute says."

 

Not saying you should get into a pushing match with your judge, but I can only tell what I did.  You can certainly get a feel for what the judge would be willing to listen to.  After all, they call them arguments not discussions.  I'm assuming they call them arguments for a reason.  I figured the judge was already against me so nothing lost if I ticked him off a little, he still needed to follow the law and the law was on my side.  That might be a bit naive on my part but I thought if I lost this, I wasn't getting another shot so I should swing for the fences.

I think sometimes, maybe even often, you do have to get into a pushing match with the judge, maybe more so in CA then other states. In my case I had to fight the judge as much as the jdb attorney, I just tried to do it as softly as possible. And make sure there is a court reporter if it goes to trial, you will probably have to provide and pay for your own. Pay now or pay later...The reporter will help keep the judge in line.

I guess you need to subpoena the witness as the judge said.  If she's out of state, it's really doubtfull she'll show and you will still be in pretty good shape.

 

Good luck.  

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Why do judges get away with this:

1, Other attorneys won't even go to the board of judicial review because they are afraid of the Trial bench gang(TBG)

2. Pro pers wouldn't know how to go against the judge, in these cases. they won't know who to file with

3. The collection attorneys will definetly misconstrue what is said so they won't be a good witness

4. Absolute power corrupts absolutely.

 

It is funny that the judges now have to argue the jdb's cases for them because without the judges "help" the jdb's lose all the time.

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2. This being a case being brought an OC, and assuming the declarant/affiant is in some capacity part of the OC organization you should be able to use CCP 1987b, to have them appear. This only needs to be served 20 days prior to trial, and can be served on the CA/Attorney handling the case. This takes the difficulty of the subpeona out of the picture.

 

If they are going to try and argue that the CCP 98 address is good enough then why not make them stick to the CCP 98 guidelines???? Why give them the ability to sidestep the statute they are trying to shoehorn the affadivt in with and allow the lawyer to accept service? Just trying to understand

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If they are going to try and argue that the CCP 98 address is good enough then why not make them stick to the CCP 98 guidelines???? Why give them the ability to sidestep the statute they are trying to shoehorn the affadivt in with and allow the lawyer to accept service? Just trying to understand

Medic,

The reason being is the court has already ruled, albeit questionably, but ruled. So doing the same thing, expecting different results seems to be an odd strategy. OC cases are much different in that if the witness shows, the defendant will likely struggle to win. So whether you use a CCP 98 or CCP 1987b, you are still demanding the witness to show. If they don't then you have a chance.

Again I agree procedurally CCP 98 has the 150 mile rule, that could cause the Declaration to be knock out, but given stance of court I wouldn't attempt a second time. Or if I were going to use it a second time I would file a CCP 632 Request for Statement of Decsion which requires the court to put in writing the facts and law used to make the decision.

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Why do judges get away with this:

1, Other attorneys won't even go to the board of judicial review because they are afraid of the Trial bench gang(TBG)

2. Pro pers wouldn't know how to go against the judge, in these cases. they won't know who to file with

3. The collection attorneys will definetly misconstrue what is said so they won't be a good witness

4. Absolute power corrupts absolutely.

 

It is funny that the judges now have to argue the jdb's cases for them because without the judges "help" the jdb's lose all the time.

Exactly..It is sickening. In my court it practically takes an act of Congress just to get a reporter in the court room.

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I suppose its helpful, at least when it comes to the appeal that seems likely, that a reporter is there for every hearing. I will subpoena her again, allow them to do so against the written procedure, and see if she shows. If she does, I'll question her. She's listed as an authorized agent of the plaintiff, as she is an employee of the plaintiff's (who in this case is C1) servicer. Her listed job title is litigation spec ialist.

I'd like to do the SUB-002 this time, allowing me to request documents. Is that possible, and if so, what shall I request?

The plaintiff also placed a hard inquiry on my credit six months into the case. What, if anything, can I do about this?

One more thing, in their trial brief they attached a paper asking to allow copies instead of the original, as they cannot find either the original contract/agreement nor can they find COPIES of the contract/agreement! How can they use copies if they admit they can't even find a copy?! Would it be possible to have part of their complaint stricken, striked, struck, or whichever, based on their own admission?

Thanks for all your help so far.

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I suppose its helpful, at least when it comes to the appeal that seems likely, that a reporter is there for every hearing. I will subpoena her again, allow them to do so against the written procedure, and see if she shows. If she does, I'll question her. She's listed as an authorized agent of the plaintiff, as she is an employee of the plaintiff's (who in this case is C1) servicer. Her listed job title is litigation spec ialist.

I'd like to do the SUB-002 this time, allowing me to request documents. Is that possible, and if so, what shall I request?

The plaintiff also placed a hard inquiry on my credit six months into the case. What, if anything, can I do about this?

One more thing, in their trial brief they attached a paper asking to allow copies instead of the original, as they cannot find either the original contract/agreement nor can they find COPIES of the contract/agreement! How can they use copies if they admit they can't even find a copy?! Would it be possible to have part of their complaint stricken, striked, struck, or whichever, based on their own admission?

Thanks for all your help so far.

I think the reporter is critical when it comes to an appeal, but it is very helpful when you have a corrupt judge or just  a pro plaintiff or pro jdb judge, because it will help keep him or her in line, forcing them to rule more "by the book" then how they feel like ruling, for fear of reversal at the appellate level.

 

as far as copies go see Federal Rule of Evidence 1002 "Requirement of Original" and Federal Rule of Evidence 1003 "Admissibility of Duplicates" (google search) I know you are not in federal court but you can look up the CA rule of evidence that coincides with these rules. You can also look up the "best evidence rule" which is no longer as effective due to the now wide range of discovery, but it can't hurt to read it. 

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  • 2 weeks later...

So here's the thing. I attempted to have their declarant served and failed. She wasn't there.

 

The judge looks up the code and says personal service is not required and that she doesn't have to live there. Even though in her declaration she listed her "CURRENT ADDRESS" as in another state, he still accepted the CCP 98. I am supposed to serve her again and the judge will allow subservice.

 

They have continued it 60 days out. I'm crushed, but I want to go down with the biggest fight they can imagine.

 

What now?!

It's probably academic at this point, since the judge said he will allow substituted service, but substituted service of a subpoena is expressly disallowed by statute and appellate case law. Perhaps briefing him on the matter could be helpful, although it sounds like you've drawn a thick-headed idiot who doesn't care to follow the (clear and unambiguous) law.

 

As for how to proceed, do not get discouraged. If you do not wish to push back on the substituted service angle, then I advise doing as the judge says and leaving a copy of the subpoena at the address provided in the CCP 98 declaration. Depending on the amount sought in the lawsuit, there is a good possibility that the declarant will not appear.

 

Since you do not want to leave anything to chance, though, I suggest brushing up on the questions you're going to ask the witness; focus on exposing her ignorance of how the original creditor's records are created and kept, research the hearsay rules (they're going to come up again, and again, and again) then pounce on the many errors in the few papers they did provide. For example, without looking at it I can confidently say that the Bill of Sale they gave you disclaims all warranties and representations about the accuracy of any of the information contained therein. If the original creditor was Chase or Bank of America, the recent articles pointing out the flaws in their record keeping may be influential (although admissibility of same might be an issue...).

 

Your main goal will obviously be to get the evidence (documentary and oral) excluded for lack of admissibility, under authentication or hearsay grounds in particular, but if the judge persists in being a dunderhead you'll also be creating a good record for the appeal. It's a lot of work, but the law is definitely on your side. Good luck!

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