string

Sued by Cach LLC in CA (Update: I win! It's over.)

Recommended Posts

Thanks AA. 

 

The more I think about it, this latest move fits very nicely into the theory of my initial cross complaint. And though it may be a bit of a stretch, I think I'll try to add another Rosenthal Act violation to the cross and seek an additional $1k.

 

I really like the idea of pressing the doctrine of clean hands.  Is that best done via an affirmative defense?  (If so, I think I'd need to ask the court for permission to amend my answer?)  Or, is there a way to "simply" file a motion for sanctions?

 

Any thoughts greatly appreciated!

 

String

Share this post


Link to post
Share on other sites

Thanks AA. 

 

The more I think about it, this latest move fits very nicely into the theory of my initial cross complaint. And though it may be a bit of a stretch, I think I'll try to add another Rosenthal Act violation to the cross and seek an additional $1k.

 

I really like the idea of pressing the doctrine of clean hands.  Is that best done via an affirmative defense?  (If so, I think I'd need to ask the court for permission to amend my answer?)  Or, is there a way to "simply" file a motion for sanctions?

Unclean hands is an affirmative defense, however you can bring it up at any stage even if you did not assert in your answer, since it is a doctrine, and both parties are always supposed to litigate in good faith and with clean hands; which is not something the bottom feeders are known for. You would not have to amend the answer to use it (but it does look good on an answer). I did not review your post (but I think you had trouble getting a cross complaint in) if you were thinking of the cross complaint then maybe you would amend your answer to add the affirmative defense and the cross complaint.

Any thoughts greatly appreciated!

I like the idea of the cross complaint, I tried really hard to get mine in but the court just would not allow it. I know first hand what a fight the lawyer put up to keep it out, and how happy he was that it was not allowed. Later he made a comment about it and I told him he would have been better off not to object to it; because now I still had 30 days to file a new lawsuit on them instead of the cross complaint and that he could now travel to two different cases. Soon after when we spoke on the phone part of the conversation was if they dropped the case would I not file the lawsuit. He knew I really would file it, and so it was not viewed as an empty threat. The point is; I had leverage form just 1 FDCPA claim and that was before it was even filed.

String

Share this post


Link to post
Share on other sites

Scum law firm has filed a Request for Entry of Default, claiming I did not respond to the lawsuit.  Clearly wrong, and they know it.  Two questions:

 

1) Is there a procedure I need to follow to make sure it doesn't go thru?  Maybe by filing an Opposition to Request ....  Or is it something the clerk/judge will see as obviously incorrect b/c I did file a General Denial (and cross-complaint), and therefore I don't need to do anything?

 

Make sure your answer is on file with the Court.  Check the docket on line and see if it shows the filing of your answer.  If an answer is on file, the clerk should reject a request for entry of default.  The clerk will usually make a notation to that effect on the docket itself( i.e. Request for entry of default-rejected.  answer on file).

Share this post


Link to post
Share on other sites

Thanks again, AA!

 

Fyi, I filed the cross complaint at the same time I filed my answer, so it's in.  I didn't use any affirmative defenses, so I think I'll go ahead and try to amend the answer to include unclean hands, and maybe lack of standing too.

Share this post


Link to post
Share on other sites

Hello calawyer!

 

The online docket hasn't been updated since my case and a slew of others were transferred to a different court due to multiple court closures.  (I think they haven't bothered b/c they're probably overwhelmed by all the new cases they got.)  So, nothing I've filed shows up online, but I definitely have a file-stamped copy of my answer.  I'll put in a call tomorrow just to make sure everything is in order.

 

Thanks!

String

Share this post


Link to post
Share on other sites

Thanks again, AA!

 

Fyi, I filed the cross complaint at the same time I filed my answer, so it's in.  I didn't use any affirmative defenses, so I think I'll go ahead and try to amend the answer to include unclean hands, and maybe lack of standing too.

Actually lack of standing is covered by your denial / answer, you can challenge it at anytime, you don't have to assert it as an affirmative defense, same goes for the clean hands. My mention of amending the answer was just to encourage the cross complaint. So if you already filed a cross complaint (good job btw) you really won't need to amend the answer.

I would check the court docket however and make sure the cross complaint found it's way in. Good Luck

Share this post


Link to post
Share on other sites

Actually lack of standing is covered by your denial / answer, you can challenge it at anytime, you don't have to assert it as an affirmative defense, same goes for the clean hands. My mention of amending the answer was just to encourage the cross complaint. So if you already filed a cross complaint (good job btw) you really won't need to amend the answer.

I would check the court docket however and make sure the cross complaint found it's way in. Good Luck

 

 

Got it.  I guess I'm just looking for a way to let these @#$%s know that unclean hands is now an issue.  But perhaps it's best saved for opposition to MSJ, or whatever it is they try next?

 

Thanks!

String

Share this post


Link to post
Share on other sites

Got it.  I guess I'm just looking for a way to let these @#$%s know that unclean hands is now an issue.  But perhaps it's best saved for opposition to MSJ, or whatever it is they try next?

 

Thanks!

String

I would check and make sure the cross complaint made it in. If it didn't then I would probably amend the answer, although you probably could add the cross complaint without amending. It would be nice to have unclean hands in the answer; but if you got an answer down with a cross complaint, I would leave it at that. The cross complaint trumps the unclean hands anyway.

Share this post


Link to post
Share on other sites

It's been awhile, but wanted everyone to know that trial was today: Judgment for Defendant!

 

THANK YOU ALL!!  More details after a very short celebration.  Also, I have some material that might be useful to others - especially if you're going against CACH and/or Mandarich in California. 

 

 

 

String

  • Like 2

Share this post


Link to post
Share on other sites

You Rock! Congrats!  You have not posted in a long time, so I guess you learned what you had to do.  Be sure and fill us in on the details. :)

  • Like 1

Share this post


Link to post
Share on other sites

@ shellieh98 - Thanks!  To be honest, there was no reason to post b/c all the answers (and doc examples) were already here. 

 

First, the part probably of most interest to others. JDB used a new (at least to me) argument to try and get their CCP98 dec and exhs admitted: they've gone to the legislative history in an attempt to divine the "legislative intent" behind CCP98.  Apparently, the language to the proposed statute at one time included: "and the affiant is subject to subpoena for trial."  This language was removed from the final/current version of CCP98, so JDB argued that therefore there must be no subpoena, i.e., personal service, requirement under CCP98. 

 

This argument (which I think is completely bogus) was made in opposition to my mil to exclude the 98 dec and exhibits.  Plaintiff also requested judicial notice of the legislative history of CCP98.  I'll post the opposition and request for judicial notice so others can see them.  I was pretty confident that I had a very good counter-argument to that bs, and happy to share my $0.02 if anyone is interested, but it never got to that as I'll explain shortly. 

 

I have to thank everyone who's posted to this thread, and a bunch of people who didn't but who shared great information on other threads.  You guys/gals make it almost TOO easy.  But I also have to thank JDB, for truly making the trial a fun experience.  My only nervousness came as a result of an exchange I had with JDB law firm earlier this week; 2 days ago I get a call from them asking if I'm interested in negotiating a settlement:

 

Me: Sure

JDB: What's your offer?

Me: Dismissal with prejudice; remove all trade lines; check for $1,000 made out to String.

JDB: I'll get back to you.

 

Yesterday they called back with a "counter":

 

JDB: client agrees to dismiss with prejudice, and to remove all JDB (but not OC) trade lines.

Me: What about the $1k?

JDB: No, we think we have a strong case

Me: See you tomorrow.

 

My Wife: "You're an idiot"

 

That's when I got a little nervous.  She would have killed me if I'd proceeded to lose.

 

Quick background, aka Gifts From JDB:

JDB filed suit with massively bogus proof of summons.  I answered with General Denial and Cross-Complaint for Rosenthal violation (with some excellent strategy advice from CAlawyer).  JDB didn't file or serve a response to the cross, tsk, tsk. 

 

Kinda half-@$$ed my way thru discovery: BOP led to threat of MTC, but never filed.  Some last-minute discovery to give 'em something to do, but too late to follow thru with any MTC on that.  Basically, I was waiting for the CCP98 strategy.  I also filed for default judgment on the cross, but it was denied - essentially by mistake (can't elaborate just yet).  JDB served no discovery (yawn).

 

Fast-forward to last month: JDB sends ccp98 dec on the same day that I sent my ccp96 request.  Deadline passes for ccp96 response from JDB.  It's never served (or filed).  Meanwhile, I have the sheriff subpoena the declarant at JDB atty office.  Surprise: not there, declarant works in Colorado.  Sheriff refused to do substitute service (I knew they'd refuse, but put an instruction to do so anyway - to show I tried).

 

I filed and served a mil to preclude ccp98 dec and exhibits, and a mil to preclude ALL evidence and witnesses under ccp96 and 97, along with a trial brief.  JDB filed and served briefs already mentioned and trial brief, but NO opposition to my mil re ccp96 and 97. 

 

We get to court (I arrived early - suggest it to get comfortable in the courtroom.  I was the first and only one there for awhile and exchanged some friendly banter with court staff.  Feeling very comfortable and confident, and loaded for bear, but expecting things to be fairly simple given JDB's gifts).  JDB (lawyer) looked fresh out of law school - almost felt sorry for her.  (Not)

 

Judge called us up and began by asking JDB why no opposition to my ccp96/97 MIL.  JDB feigned surprise then pulled out a ccp96 response that she says was "mailed."  Judge asked me if I had received a copy.  No.  Judge couldn't find one attached to anything and asked JDB for the proof of service.  JDB flopped around - like a fish out of water - and offered up some lame nonsense.  Judge asked her if she was done, and said: Motion In Limine to preclude witnesses and evidence is granted.

 

JDB had only one option: call me as a witness (not gonna go well).  JDB wants to use alleged statements to impeach me:

 

Me: Objection your Honor, lacks foundation.  I don't know what she's going to impeach me on, I haven't testified to anything.

Judge: Sustained.

 

It went like that for a short time, but the judge seemed to take a little pity on her and ultimately allowed her to show me the statements and ask some questions.  I honestly had never seen those statements prior to discovery, so it went nowhere and JDB atty got frustrated and quit.  Judge asked her if she was done, then looked at me:

 

Me: Defense requests judgment in favor of defendant.

Judge: Granted.

 

Then he went to the cross-complaint and asked JDB why no answer.  JDB went fish-on-the dock and offered up more nonsense.

 

Judge: Court-entered default.  Cross-complainant to submit 585 packet "prove-up" in 30 days. 

 

I'm not sure the judge understood that I'm after statutory damages, not actual, and I'm not sure what else to say in a prove-up(?).  Any advice greatly appreciated.

 

I can post my docs if anyone wants to see them, but they're really just my twist on docs posted by homelessinca, astmedic, and others.  I will post JDB docs soon.  Also, please let me know if anyone has other questions - more than happy to help out.

 

Best trial advice has already been given in this forum:

 

1) be prepared, know the key statutes and cases (there aren't that many that you need to know well)

 

2) every time JDB attorney opens her pie hole, you say "Objection" ... in my case almost always followed by "Foundation." JDB too lazy, or lacking in skill, to lay a proper foundation for anything.

 

 

String

  • Like 7

Share this post


Link to post
Share on other sites

Excellent work, string. A pleasure to read! Looks like the JDB goofed quite a few times and you made them pay for it.

 

I took a minimal defensive approach in my case a year ago (probably the same "wait for the CCP98 strategy" you mentioned above) and I got a dismissal. I plan to be more aggressive the next time around and I'll be checking out your thread(s) - thanks for the recap & info!

Share this post


Link to post
Share on other sites

Yahoo!! 

 

Congrats! Great job defending yourself. Thanks for posting the new info and details. (Ha ha, this particular JDB/Law Firm combo does make you want to say "WTH....?" when they provide these type of arguments and answers in front of a Judge.)

 

Anyway, enjoy your well deserved victory celebration!

Share this post


Link to post
Share on other sites

Congratulations. What was your cross complaint?

 

Thanks Anon - you were a great help! 

 

Crossed on Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788.15

 

Happy to discuss in detail via PM, but expecting a motion to set the default aside from JDB, so don't want to give too much info just yet on the board.

Share this post


Link to post
Share on other sites

Excellent outcome. The key was turning the objection machine into full auto and not letting them impeach improperly. Did you do a declaration? I think if you did that the judge might have had to use his discretion.

 

I feel the judge was forced to not give them a break because you" tied his hands" which I always advocate. It is readily apparent that you did not go about with your life until 35 days out but did real research to win. I salute you. Good Job. Now get that CCP585 asap. And freeze their bank accounts:) or have the sheriffs walk out with their server.

  • Like 2

Share this post


Link to post
Share on other sites

Excellent outcome. The key was turning the objection machine into full auto and not letting them impeach improperly. Did you do a declaration? I think if you did that the judge might have had to use his discretion.

 

I feel the judge was forced to not give them a break because you" tied his hands" which I always advocate. It is readily apparent that you did not go about with your life until 35 days out but did real research to win. I salute you. Good Job. Now get that CCP585 asap. And freeze their bank accounts:) or have the sheriffs walk out with their server.

 

Seadragon - thanks!  you were also a great help and confidence-booster. 

 

Impeachment was pretty fun; I think I established control pretty early, and ended up having "academic" exchanges with the judge re foundational issues.  Example:

 

JDB: did you ever dispute any charges on the card with OC ending in blah, blah, blah?

Me: Objection - Foundation

Judge (after looking over rules): Overruled

Me: Your Honor, counsel hasn't established that there is/was/or will be "a" card with OC blah, blah - so a question regarding "the" card lacks foundation.

Judge nods his head

Me: But to move things along ...

Judge still nodding his head:  .. to move things along ...

Me: ... I'll answer the question that perhaps should have been asked: I have no recollection of ever disputing "any" charges on "any" card with blah, blah, blah.  So the answer is no.

Judge looks at JDB: the answer is no.

 

I pretty much did that the whole time I was on "the stand," answering when I felt like it and giving unhelpful, but truthful, answers when I, or the judge, felt like moving things along.

 

I absolutely filed a declaration with each MIL.  Haven't actually seen one re ccp96/97, so I'll post mine soon, but it was pretty simple and straightforward.

 

(Edit: Pretty sure a declaration is required for MIL)

 

And yes - I did more research than necessary (given the circumstances of my case) and was prepared to fight every piece of evidence, every potential witness, and everything that came out of JDB Attorney's mouth.  I was even prepared to make arguments about cases cited in JDB's brief, which I only received yesterday.  More about that soon.

Edited by string
  • Like 2

Share this post


Link to post
Share on other sites

A few more things while I'm thinking about them (I'm afraid this is primarily useful for those in CA) :

 

If you're in California, there's no excuse for not doing at least the following: read ASTMedic's entire thread.  Then read HomelessInCalifornia's thread - the whole thing.  Then read HomelessInCA's thread again.  Periodically repeat.  Be sure to post and ask questions re anything you think is unique to your case.  Thank your lucky stars if CAlawyer and/or Anon Amos take interest in your case. 

 

The court I was in accepts MILs and Trial Briefs up to and including the date of the trial.  I filed mine 2 days ago to make sure the judge had sufficient time to review.  This was a tip from the courtroom clerk.  Make sure you know when your judge wants trial related briefs filed, and make sure you don't screw that up.  File MILs and Trial Briefs - there's no court reporter (in LA County anyway), and you don't want to pay for one, so be conscious of creating a "record" in case of the need for appeal.

 

If you need to file your ccp98 MIL, but don't yet have the declaration of non-service, go ahead and file with something like "declaration of non-service will be available at trial" - assuming service has been attempted and you're just waiting for the proof.  I copied language to that effect from astmedic, I think.  I also used the Sheriff's office for service of process and was able to print a "case summary" from their website and include it in my declaration to show that service had been attempted and that substitute service was "refused" by the sheriff.  I had the proof/declaration from the sheriff's office by the time of trial and it was never an issue.

  • Like 1

Share this post


Link to post
Share on other sites

Well ... can't figure out how to upload docs, so that's on hold until I solve it.  Anyone going to trial soon - let me know and I'll make sure you get what I have.
 
Enjoyed a Westvleteren XII today to celebrate.  If you've had one yourself, ....!
 
 
string

  • Like 1

Share this post


Link to post
Share on other sites

OK, figured it out.

 

 

Here's JDB's Opp to my MIL re ccp98:

 

Redacted_Opposition to Motion in Limine.pdf

 

 

 

Here's the Request for Judicial Notice (legislative history that the MIL Opp is based on):

 

Redacted_Request for Judicial Notice.pdf

 

 

 

Here's JDB's Trial Brief

 

Redacted_Plaintiff's Trial Brief.pdf

 

 

Never assume that JDB is correct just because they put something in a brief; I was prepared to argue that JDB's opposition to my ccp98 MIL actually supported the MIL - I think that's true.  (Hint: make sure you understand ccp 1987.) 

 

Also, didn't have time to look up all cases cited in JDB trial brief, but the few that I did look up seemed helpful to my cause. Find a way to use everything against them.

 

I'll post some of my docs next.

  • Like 2

Share this post


Link to post
Share on other sites

You are doing a very good job here. This thread is going to enter the ranks of ASTMedic's, Homelessincalifornia's, and Seadrgaon's 60 day checkpoint list.

 

The bottom feeder's opposition to your MIL gives us some case law that we may be able to use against them for other situations. And you are right on the money with "make sure you understand CCP 1987" particularly the parts that say subpoenas must be personally served (CCP 1987 goes against their opposition). Since they argue Target is not binding; CCP 1989 states how judges do not have jurisdiction over out of state citizens (it seems some of them fail to recognize that (or rely on the fact that many defendants won't know this).

 

Your thread is also an important example for one of the many ridiculous arguments here recently where it was stated: "many threads just end and you never hear from the OP again, these people have lost their cases and are embarrassed to talk about it"  (or something to that effect).

 

Keep up the good work.

  • Like 1

Share this post


Link to post
Share on other sites

Here's some of my stuff:

 

 

This one was the winner.  It was the first thing addressed by the Court:

 

String MIL to preclude everything.docx

 

String dec in support of MIL re everything.docx

 

 

Credit for the heavy-lifting on the rest of these goes to HomelessInCalifornia (many thanks!):

 

String MIL re ccp98.docx

 

String dec in support of MIL re ccp98.docx

 

 

String_trial_brief.docx

 

String trial brief tables.docx

 

quick note on the Trial Brief: ccp 2015.5 wasn't at issue in my case, so I removed the argument, but I did leave two references to it in the brief.  They should have been removed.  (oops)

 

 

  • Like 2

Share this post


Link to post
Share on other sites

These are some miscellaneous notes I had with me - just in case things didn't go well on the MILs.  It's a combination of work from homelessinca, astmedic, various posts in other threads, and myself.  For more material that might be useful in making arguments/objections at trial, be sure to check homelessinca's thread.

 

 

CCP98_argument.txt

 

CRIB NOTES.txt

 

KEY CASES CHEAT SHEET.docx

 

Notes on JDB cases.txt

 

objection_notes.txt

  • Like 2

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.