yellowmate

Trial on Feb 11th Need Help

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1. Who is the named plaintiff in the suit?
Portfolio R.A.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Hunt & Henriquez

3. How much are you being sued for?
$1800

4. Who is the original creditor? (if not the Plaintiff)
HSBC

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

6. How were you served? (Mail, In person, Notice on door)
Left with roommate


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

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?
Santa Clara County CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
March 2010

11. What is the SOL on the debt? To find out: 
4 years 

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


General Denial, sent Disc-015 before trial date was set, sent Disc-015 again 1/5/2012

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
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.
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? 


30 days

No interrogatory 

 

CC-1:

Within the last four years, on an open book account for money due

Because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plainitff

for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff

for money lent by plaintiff to defendant at defendant's request

 

CC-2

$$ which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgment interest from date Sept 2010

 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Other than the fact that the case is assigned to imaging department,

 

Nothing.

 

 

I'm running out of time and this makes me incredibly nervous, I've been following threads but I'm at a lost. What can I possibly do now? 

 

I went to my local court office for help and they told me to send form Disc-15 for discovery and BOP was not required. Is this true? Is it too late for me now? 

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Time is certainly getting short but there are a few things left you can do.  First, did you send the Disc-015 first class mail?  And if you did, did you include a proof of service with it?  If you did, you are okay for now, if not, you need to send another one with proof of service and send it Certified Mail Return Receipt Requested (CMRRR) ASAP.  Whatever witnesses and evidence is included in their response is what they will be able to bring to trial.

 

Now, if they include a declaration submitted under Code of Civil Procedure Section 98 (CCP 98), this is a declaration in leiu of live testimony, you'll need to go through the legal gymnastics to beat it and get it precluded from being used at trial.  

 

All is not lost and you still have a shot at beating this thing, BUT, you will really have to take a crash course on how to deal with the rest of this.  It seems you've survived this far so you must be doing things right.  I HIGHLY RECOMMEND you read ASTMedics post here and pay extra close attention to the post from the CCP 96 part forward (CCP 96 = Disc-015).  This can really help you and fortunatly it is not too late.

 

Good luck 

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Created by Seadragon: Very useful given your timeline....

 

35 days from trial:
1. All discovery completed on your part
2. Send other parties CCP 96 statement:http://www.courts.ca.gov/documents/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.

5 days out:

1. try to relax(I know it is tough with so much on the line) On this day no case, no CIC, watch a movie, read a book, you are taking the day off(all day make a vacation day at work and take this day for yourself). By order of Seadragon I will not respond to posts and PM's if you are 5 days from trial(unless you just found out about CIC and are playing SERIOUS catch-up) I invite everyone to ignore posts and requests from the 5 days before trial posters so they can relax(and yes I mean calendar days, shees you are starting to sound like a lawyer dang.)

2. I mean it no other things case related posts. wine discussion is the exception in the wine forum and off topic.

4 days out:

Go over your evidentiary objections again. and try to figure out what objections they are going to raise.

2 days out.;

Have everything organized for trial. read the court opinions for any financial institution case on this link:

California Courts - Opinions

pay attention to the slip opinions for the appellate divisions and the supreme court.

Night before trial:
sleep, sleep, sleep. If you don't know it now you'll just have to wing it. ke sure you look nice for court. but get alot of sleep. Your taking the whole day off so you can relax and feel good before court.

If you have a spouse hug them and thank them for being patient while working on this.

Trial Day:
Think battle and everything you wear as your armor and every piece of paper as your weapon. Listen to public enemy on the way to court. when you are waiting in the hall do the crossword from the paper. Take someone to take notes for you and so they can be a witness to what happens. take a recorder and ask the court if you can record for note taking purposes and for historical reasons.

Do not get to the court earlier than necessary to get through security and 5 minutes before the doors open. Do not sit on the bench. stand next to an attorney, don't fumble through your stuff. Check the court calendar and see what number you are on the calendar. Check in with the clerk walk through the doors like the attorneys do and stand in line for the clerk.

When or if the plaintiff's attorney approaches you give them the serious warface, ok just look serious not scared. listen to what they have to say and DO NOT ACCEPT PIECES OF PAPER FROM THEM. If they try to give you anything, say the discovery cutoff was 30 days ago I cannot accept it. That is all. and with assurance say to them Good luck. do not settle with them but if they do talk settlement offer a counter proposal of 40.00 dollars.

when waiting for your case to be called observe the courts demeanor and try to guage the response your case will elict from the court.

Standard trial procedure is this:
Motion in limine(this is going to be contentious and the plaintiff's are going to bluster)

Plaintiff's opening statement(don't object during this)

Your opening statement(request to defer your opening statement untill the plaintiff rests their case, this is so they don't tailor their case to trash your opening statement)

plaintiff introduces the witness or the declaration in lieu of live testimony(objection on hearsay,lack of personal knowledge, improper foundation) and argue strongly for the objection and bring that standing issue right out there in the open.

direct examination of the witness
cross examination use the trial questions on here
redirect
recross
and so on till the court says stop.

when the plaintiff rests move for a directed verdict
note the courts ruling on this.

If they deny the directed verdict object politely and state for the record you are objecting for reasons in defendants case in chief.

make your opening statement if the plaintiff interrupts object to that right away stating I was professional and didn't interrupt go over the points you are making an any evidence you will be introducing.

call the witness to the stand(your witness or their witness for some questioning abuse)

make your closing argument if allowed and then request a Statement of Decision.

then quietly wait for the court to speak write down anything they rule on. when the court allows leave with them and in the hallway say "Have a nice day"(military speak for Go f yourself)

go to your car and have your freak out(it's ok happens all the time) and then go home and hug your spouse and your kids and all of you go out to dinner.

That is the best way I know feel free to add to it.

 

Fr Seadragon:

 

Check list for trial in california

1. all affidavits supplied in discovery from out of state comply with CCP 2015.5 if not then cite Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004)(precedent for CCP2015.5 out of state affidavit without the california statute statement of perjury)

2. all affiants are employees or have Personal knowledge if not cite Herrera v. Deutsche Bank National Trust Co.,
196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011 n.5)(this is about hearsay declarations it is a partially published opinion) and
Cooley v. Superior Court,
140 Cal.App.4th 1039 [45 Cal. Rptr. 3D 183](2006)

3. all evidence complies with the evidence code for foundation and exceptions rules if not then cite: CCP 436 and strike it

4. No showing of standing then cite these;
A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. (Hernandez v. Atlantic Finance Co. (1980) 105 Cal. App. 3d 65, 71 [164 Cal. Rptr. 279].)

Standing‘goes to the existence of a cause of action.’ [Citation.]” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 862, p. 320.)

 

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Thanks for the responses, it definitely clarified things and made me feel a lot better. 

 

It's past the 20 days for the Disc-015 and I haven't received anything from law offices of Hunt & Henriques. I have about 18 days before trial. Should I still send a reminder letter? I'm not sure of my next move on this since I didn't get anything at all. 

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Thanks for the responses, it definitely clarified things and made me feel a lot better. 

 

It's past the 20 days for the Disc-015 and I haven't received anything from law offices of Hunt & Henriques. I have about 18 days before trial. Should I still send a reminder letter? I'm not sure of my next move on this since I didn't get anything at all. 

Are you sure that it is a trial date you have and not a cmc hearing? It is a bit late in the game to do much now, but you have to do something fast. You can send a  BOP (do it now, overnight mail) and you do not have time to entertain any one's argument that the BOP does not apply to your case. I would send the DISC-015 form anyway, so what if its too late (let them object to it).

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I think you may also have a few things going for you:

1) There are some courts in Santa Clara County that are pro defendant and anti debt collector ( hopefully you are in one of them)

2) the plaintiff was a little careless with the filing of the complaint. They stated "because an account was stated in writing between plaintiff and defendant", plaintiff is not the oc, so this is very unlikely, hold them to it, by their own allegation they should have a document in writing saying you are indebted to PLAINTIFF.

AND "for money lent by plaintiff to defendant at defendants request". There is no way they can prove that, force them to stick to the allegations in the complaint.

 

Also, the amount of the suit is fairly low, so if you start putting up a fight you can get them to dismiss.

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Are you sure that it is a trial date you have and not a cmc hearing? It is a bit late in the game to do much now, but you have to do something fast. You can send a  BOP (do it now, overnight mail) and you do not have time to entertain any one's argument that the BOP does not apply to your case. I would send the DISC-015 form anyway, so what if its too late (let them object to it).

 

Agree. That seemed odd to me right away. Seems WAY to fast

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Thanks for the responses, it definitely clarified things and made me feel a lot better. 

 

It's past the 20 days for the Disc-015 and I haven't received anything from law offices of Hunt & Henriques. I have about 18 days before trial. Should I still send a reminder letter? I'm not sure of my next move on this since I didn't get anything at all. 

 

Yellowmate,

 

Was their any discovery done..Doc Demand...etc..if so who from JDB verified the answers....Though some may disagree look into CCP 1987(B) and © see if you can send a notice to appear and produce documents. request the writing they claim and a signed contract.etc to bring to trial.

 

Read up on VLDCA. She didn't do anything except subpoena the witness 10 days before her trial and since the Attorney for the JDB was unaware of the subpoena, the case was dismissed becuase the witness didn't show up. So this may be in your favor...the JDB may think you're not knowledgeable enough to know procedure...so go fill out your subpoena then on Monday, go and get it signed and stamped by a Court Clerk then have it served. Then when you get it back....send the courtesy copy the same time you have to have a trial brief io them. Have a MIL ready and probably a motion to strike ready, check your Court's local rules to make sure when you have to give to the other side and what other things you have to give  to the Courts.

 

Let me dig up readytowininca's mtc docs, she won her motion and case was dismissed becuase her complaint was also in writing and I helped her word her motion and I have a trial brief tha talks about 'money lent' as well. But I suggest when you have your draft have someone like seadragon or astmedic read it for tone and structure and effectiveness.

 

My Trial is Feb 8 so I too am very busy but will be thinking of you so let me dig up those docs and I will pm you when I find it.

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CASE DISMISSED!!! Woooooooooooooo I got the letter in the mail today. Looks like they didn't even want to respond to my discovery request at all.

 

What really gave me hope was checking the status of similar previous cases under the same attorney. Hunt & Henriques is a joke law firm. More than 90% of the time cases were dismissed a week before trial date. If anyone is reading this thread, please do the same. Go to your county website and search for civil cases under the attorney name and look at the results. 

 

Thank you everyone for suggestions, feedback, positive energy, and even reading my post. Thank you all!

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