silverjacket

Dorothy Ruiz - Citi

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Ok, thanks for the tips again. Yes, I'm aware this is business, and am treating it like one. Pardon all my newbie questions ! :)

 

I never been to any court, so this will be the first time, and I can use some insights as to what kind of wording or procedures I should use when I start questioning Ms. Ruiz.

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Here is a series of questions given to me by Calawyer. I don't think they are the ones that were referenced above but they apply when questioning a witness. Since they are for a JDB you will need to remove a few however they're a start.

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Here's what Calawyer said about Dorothy Ruiz:

 

If the witness shows up in Court, the declaration won't be used (except you can use it to impeach the witness if she says anything different). Your goal will be to show that the witness does not have first hand knowledge of anything that happened at the OC, does not know how the OCs records were created or maintained, and does not know that they are accurate. Assuming the witness does not testify that she ussd to work at the OC, you will want to object to any questions about the OC and OC's records on hearsay grounds and also on the ground that the witness lacks personal knowledge. When it is you time to question the witness, these questions might help:

Cross examination of Dorothy Ruiz

1. Have you ever lived at[list first address in her affidavit where she says she can be served]?

2. You have never been to that address ever in your life, correct?

3. Have you ever lived at[list second address in her affidavit where she says she can be served]?

4. You have never been to that address ever in your life, correct?

5. Have you ever lived at[list third address in her affidavit where she says she can be served]?

6. You have never been to that address ever in your life, correct?

7. You are a [legal spe******t], correct?

8. What does it mean to be served with a subpoena?

 

SAY, your honor, I would like to show the witness a copy of the affidavit of Dorothy Ruiz in this matter. Give the Judge a copy and give plaintiff’s attorney a copy.

9. Is that your signature at the bottom?

10. And you signed this affidavit on or about [whenever she signed it]?

11. And you signed it under penalty of perjury, correct?

12. Where have you been for the last 20 days?

13. It was not a true statement that you could be served at[list first address in her affidavit where she says she can be served], was it?

14. It was not a true statement that you could be served at[list second address in her affidavit where she says she can be served], was it?

15. It was not a true statement that you could be served at[list third address in her affidavit where she says she can be served], was it?

You honor, I move to excude this witness and all of her testimony as her affidavit was purposely false and intended to mislead the defendant and the court.

When the judge says no, say, in that case, your honor, I move to have the affidavit admitted into evidence for the limited purpose of this cross examination.

16. You have never been employed by [OC], true?

17. What kind of computer system does [OC] have.

 

18. Has that computer system ever crashed?

19. Have hackers ever broken into [OC's]computer system?

20. What is the job title of the [OC] employees that enter information into the bank’s computer system relating to payments made on [credit card accounts?? ]

21. What is the job title of the [OC] employees that enter information into the bank’s computer system relating to payments made on credit cards.

22. How is interest calculated on those accounts?

23. Who reviews the data for accuracy?

24. How are mistakes handled?

Your honor, I move to strike the witness’s testimony. She has absolutely no personal knowledge of the creation, maintenance or production of the records at issue here. Her testimony is speculation and involves multiple levels of hearsay. It is like testifying about a car accident after reading an account of the accident in the newspaper. She has no first-hand knowledge of any facts at issue and her testimony should not be permitted.

 

One strategy is to get the witness to say that a computer print out was prepared for the purpose of the litigation. If so, object on hearsay grounds. When the plaintiff's lawyer says "business record", you argue it is not a business record because it was not prepared in the regular course of business (but rather for the litigation). There may be other ways to get it into evidence, but plaintiff's lawyer might not be quick enough on her feet to think of them.

Another strategy would be to get the witness to admit that she was not employed at the OC at some point in time when the loan was active. Then you could argue that the witness did not have personal knowledge that the records were created at or near the time of the event....

 

Hope this helps....

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Printed from electronic storage is not the same as generated. Read about originals or duplicates in rule 901 (I believe).

Thanks Flyerfan.

 

I've been learning about this exact topic all day in various threads.

 

Eye opening... 

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One strategy is to get the witness to say that a computer print out was prepared for the purpose of the litigation. If so, object on hearsay grounds. When the plaintiff's lawyer says "business record", you argue it is not a business record because it was not prepared in the regular course of business (but rather for the litigation). There may be other ways to get it into evidence, but plaintiff's lawyer might not be quick enough on her feet to think of them.

 

This is exactly what I wanted to know and why....  many thanks!

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One strategy is to get the witness to say that a computer print out was prepared for the purpose of the litigation. If so, object on hearsay grounds. When the plaintiff's lawyer says "business record", you argue it is not a business record because it was not prepared in the regular course of business (but rather for the litigation). There may be other ways to get it into evidence, but plaintiff's lawyer might not be quick enough on her feet to think of them.

 

helpme or others :

 

Can someone entertain me on what is the difference in the eye of the law between : prepared for the purpose of the litigation vs business record. And what does exactly means by "it is not a business record because it was not prepared in the regular course of business (but rather for the litigation)" ?

Thank you for any input on these 2 items!! Really learned a lot !!

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helpme or others :

 

Can someone entertain me on what is the difference in the eye of the law between : prepared for the purpose of the litigation vs business record. And what does exactly means by "it is not a business record because it was not prepared in the regular course of business (but rather for the litigation)" ?

Thank you for any input on these 2 items!! Really learned a lot !!

 

The documents they are giving you ARE hearsay. Ask Coltfan1972. Hearsay is only allowed as evidence under certain exceptions. One of those exceptions most used in debt cases is the "business records exception".  There are certain criteria that a business record must maintain to satisfy that exception. Read rule 803(6) and it will tell you. One of these is that the record must be generated during the normal course of business. You can't sue somebody for owing you money and then when they say I want proof, go to your computer and type up an invoice for that amount and call it a business record. Now, if you go to your computer and print out an invoice from 2010 and say, here is an invoice we generated 3 years ago that the defendant never paid... it's a business record (there's more to it than that but that is the idea).

 

There is also a rule (I believe 901) that says it must be an original or duplicate. Note it does not say copy. It must be generated in the same way that the original was generated. That way they know it will appear the same as the original, not with lines from a shitty copier going down it or with a sticky note covering the part of the invoice that has "PAID" stamped on it, etc. It is easy to modify a copy, add a signature, remove a line... you name it.

 

You could find a statement in someone's trash, copy it and say "Here is an account that I bought and this guy owes me money. My brother signed this affidavit and my mom redacted a bill of sale that SHOWS it's mine. Pay me".

 

Yours is from the OC, I know, but I want to show you how flimsy their evidence is in a court of law. Of course, it is perfectly legal and acceptable if it is not challenged. Challenge it and watch them scramble.

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The documents they are giving you ARE hearsay. Ask Coltfan1972. Hearsay is only allowed as evidence under certain exceptions. One of those exceptions most used in debt cases is the "business records exception".  There are certain criteria that a business record must maintain to satisfy that exception. Read rule 803(6) and it will tell you. One of these is that the record must be generated during the normal course of business. You can't sue somebody for owing you money and then when they say I want proof, go to your computer and type up an invoice for that amount and call it a business record. Now, if you go to your computer and print out an invoice from 2010 and say, here is an invoice we generated 3 years ago that the defendant never paid... it's a business record (there's more to it than that but that is the idea).

 

There is also a rule (I believe 901) that says it must be an original or duplicate. Note it does not say copy. It must be generated in the same way that the original was generated. That way they know it will appear the same as the original, not with lines from a shitty copier going down it or with a sticky note covering the part of the invoice that has "PAID" stamped on it, etc. It is easy to modify a copy, add a signature, remove a line... you name it.

 

You could find a statement in someone's trash, copy it and say "Here is an account that I bought and this guy owes me money. My brother signed this affidavit and my mom redacted a bill of sale that SHOWS it's mine. Pay me".

 

Yours is from the OC, I know, but I want to show you how flimsy their evidence is in a court of law. Of course, it is perfectly legal and acceptable if it is not challenged. Challenge it and watch them scramble.

 

flyerfan:

 

Thank you for the detailed explanation and examples !! Really appreciate it !

For my case, the plaintiff sent copies of statements along with their ccp 98. And yes, these are duplicate copies from original statements. Do you think I could have any arguments about this ? And yes, in their ccp 98, these statements were said to be generated in the course of business.

 

Does anyone in this board know any attorney that could help on this one ?

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Are they authenticated? They can authenticate them if the send an affidavit that SPECIFICALLY references those documents and satisfies the requirements of 803(6) business exception. Notice I said satisfies and not states. Listing all of the requirements of the business exception does not satisfy them. You can't just say in an affidavit "the records were generated during the normal course of business transmitted by a person with knowledge at or near the time blah blah blah." and then say here is one of those records, it's evidence.

 

OK, how do I know THIS document is part of "the records"? Who is this person "with knowledge"? How do you know they have knowledge? Was it checked for errors? Did you find it in the computer or did someone print it out and hand it to you? How secure is your computer? Has it ever been hacked? 

 

If none of these facts are in the affidavit (don't bother looking for it, it's not there) then the requirements of 803(6) have not been SATISFIED. 

 

Their evidence is paper thin and worthless without a witness.

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flyerfan:

 

Thank you for the detailed explanation and examples !! Really appreciate it !

For my case, the plaintiff sent copies of statements along with their ccp 98. And yes, these are duplicate copies from original statements. Do you think I could have any arguments about this ? And yes, in their ccp 98, these statements were said to be generated in the course of business.

 

Does anyone in this board know any attorney that could help on this one ?

Hey silverjacket,

 

think of this way....with the way technology has improved...you can argue that anyone can take a statement....scan it...change the information...and claim it as their own....same way with those statements the affiant is stating made in the regular course of business.

 

I would ask  questions like....Can you explain in detail how the documents were prepared from the time it gets inputed into the system to the time a statement is generated...How are the statements QC's (quality controlled) for accuracy....What are the OC's step to ensure the data inputted is accuate and what is outputted is accurate as well?? How many account do you oversee in a day....100....1000....10000 and what is it about this account (alleged account) that you are so familiar with it??..What sticks out....can you go into more detail?  If you line of your questions that way...you can see that affiant doesn't have first hand whether they claim it or not in a CCP 98. You need to rip apart their CCP 98 and if you have to...write those questions nest to the statement of the affiant in their CCP 98.

 

Hope this helps...

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Are they authenticated? They can authenticate them if the send an affidavit that SPECIFICALLY references those documents and satisfies the requirements of 803(6) business exception. Notice I said satisfies and not states. Listing all of the requirements of the business exception does not satisfy them. You can't just say in an affidavit "the records were generated during the normal course of business transmitted by a person with knowledge at or near the time blah blah blah." and then say here is one of those records, it's evidence.

 

OK, how do I know THIS document is part of "the records"? Who is this person "with knowledge"? How do you know they have knowledge? Was it checked for errors? Did you find it in the computer or did someone print it out and hand it to you? How secure is your computer? Has it ever been hacked? 

 

If none of these facts are in the affidavit (don't bother looking for it, it's not there) then the requirements of 803(6) have not been SATISFIED. 

 

Their evidence is paper thin and worthless without a witness.

 

 

Ok, interesting... how are these statements authenticated ?

 

And all these questions below that I quoted, have someone actually asked these in courts and when the other attorney object, the judge favor us and tell the witness to answer accordingly ?

" OK, how do I know THIS document is part of "the records"? Who is this person "with knowledge"? How do you know they have knowledge? Was it checked for errors? Did you find it in the computer or did someone print it out and hand it to you? How secure is your computer? Has it ever been hacked? "

 

This board is getting more exciting minute by minute ! Beats any law school I guess....

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Ok, interesting... how are these statements authenticated ?

 

And all these questions below that I quoted, have someone actually asked these in courts and when the other attorney object, the judge favor us and tell the witness to answer accordingly ?

" OK, how do I know THIS document is part of "the records"? Who is this person "with knowledge"? How do you know they have knowledge? Was it checked for errors? Did you find it in the computer or did someone print it out and hand it to you? How secure is your computer? Has it ever been hacked? "

 

This board is getting more exciting minute by minute ! Beats any law school I guess....

The only way a business record can be authenticated is getting the original creditor to state under the penalty of perjury in the State of California that the information is correct....now does any of those documents been authenticated as such...NO...so unless your JDB plans to bring in an employee who in the regular course of business whose job is to input and ensure accuracy of the output ccan attest to that EVERYTHING is HEARSAY...

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The only way a business record can be authenticated is getting the original creditor to state under the penalty of perjury in the State of California that the information is correct....now does any of those documents been authenticated as such...NO...so unless your JDB plans to bring in an employee who in the regular course of business whose job is to input and ensure accuracy of the output ccan attest to that EVERYTHING is HEARSAY...

 

 

Will it be different if the one suing is OC, and not JDB ? And this witness Ms. Ruiz is an employee of this same OC.

 

Also, can you list any other questions and law reference that you can think of ? Sorry to make you work , but I can use ALL the help I can to fight this off. I really really appreciate it !!!

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The only way a business record can be authenticated is getting the original creditor to state under the penalty of perjury in the State of California that the information is correct....now does any of those documents been authenticated as such...NO...so unless your JDB plans to bring in an employee who in the regular course of business whose job is to input and ensure accuracy of the output ccan attest to that EVERYTHING is HEARSAY...

 

Slight correction. Everything is already hearsay. The question is "is there an exception to hearsay they can use to get it admitted?" Other than that, helpme is dead on.

 

Asking those questions of a witness for the OC is totally acceptable on cross-examination. They must have knowledge of at least how the records are kept and maintained and those questions are relevant. Knowledge of the security of the system those records are kept in are relevant. Checking for errors is incredibly relevant.

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The only way a business record can be authenticated is getting the original creditor to state under the penalty of perjury in the State of California that the information is correct....now does any of those documents been authenticated as such...NO...so unless your JDB plans to bring in an employee who in the regular course of business whose job is to input and ensure accuracy of the output ccan attest to that EVERYTHING is HEARSAY...

 

 

Do you have any section code for this argument ? I might have to use this "authenticated" business record for argument.

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Will it be different if the one suing is OC, and not JDB ? And this witness Ms. Ruiz is an employee of this same OC.

 

Also, can you list any other questions and law reference that you can think of ? Sorry to make you work , but I can use ALL the help I can to fight this off. I really really appreciate it !!!

 

No the line of questioning should be the same....if she does the grunt of the work...you will know immediately...let me give you an example...when I was putting myself thru college I worked as a bank teller...after maybe a year I became familiar with several customers to the point that I know before they came to my window what they were going to do...if the OC can explain for example....if they are SO familiar....ask: exactly what day of the month payments were made...and how they were made (by check, epay..online bill pay...etc) and ask something like since the Headquarters is in Delaware, and you're in Arizona, where is the data stored, in Delaware or Arizona. And since you are claiming that the last payment or activity on this account was made in ??? is the data stored on a production server or is it stored on a backup server?? If stored on a production server, who has access to the data on defaulted accounts..and how does the OC ensure the integrity if it is on a production server...so is it right to say that the database table that holds for example an account number will hold not only an account number in good standing but also hold the account number in default...if Dorothy says she doesn't know or if she says yes...then she needs to explaint the integrity of the data as here in this example the data between a good account instanding versus a default account is being accessed since it is in the production database.

 

I can go on and on with regards to the integrity of the data but do you see where I'm headed....unless Dorothy Ruiz is really involved in ensuring that each statement for each individual that is processed each day than you can say she knows each individual account...so you need to right off the bat ask her how many accounts she's in charge of, .is she only in charge of default accounts...does she personally oversee each of the defaulted accounts or does she have a team of people under her...if she has a team,..how can she say she personally is knowledgable with the alleged account in question.

 

Just another way t strategize....I would also pm chiquita55..she won against an OC with the help of Seadragon. PM seadragon too...he would have additional strategy against an OC.

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Here's the code: California Evidence Code Sections 1270 - 1272

 

1270.  As used in this article, "a business" includes every kind of
business, governmental activity, profession, occupation, calling, or
operation of institutions, whether carried on for profit or not.



1271.  Evidence of a writing made as a record of an act, condition,
or event is not made inadmissible by the hearsay rule when offered to
prove the act, condition, or event if:
   (a) The writing was made in the regular course of a business;
   (B) The writing was made at or near the time of the act,
condition, or event;
   © The custodian or other qualified witness testifies to its
identity and the mode of its preparation; and
   (d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.

1272.  Evidence of the absence from the records of a business of a
record of an asserted act, condition, or event is not made
inadmissible by the hearsay rule when offered to prove the
nonoccurrence of the act or event, or the nonexistence of the
condition, if:
   (a) It was the regular course of that business to make records of
all such acts, conditions, or events at or near the time of the act,
condition, or event and to preserve them; and
   (B) The sources of information and method and time of preparation
of the records of that business were such that the absence of a
record of an act, condition, or event is a trustworthy indication
that the act or event did not occur or the condition did not exist.

 

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- I was able to speak to 1 attorney over the phone. I explained him my situation, however, he told me that I don't have a strong case... even AFTER I quoted him all the questions that we all discussed here on the board. He even told me straight out that even though we proved & showed to the court that she is not one reliable witness, etc, etc, etc after all the questioning, the judge might still rule on their side. However, this is not the case that I've read all over this forum. Any input ?

 

- Since I've never been into a court, can you share with me the sequence of events on how the proceeding is from the minute you walk in. I might help me visualize and prepare myself mentally.

 

- What kind of wording should I use if I don't think the witness is telling the truth ?

 

- What kind of wording should I use after I am done questioning the witness ?

 

- What kind of wording should I use if I don't agree with witness' answer ?

 

Thank you for any responses !!!!

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Hey Silverjacket,

 

I responded to your last post in another thread you started...so go read that...

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