Aticnib

Sued by Midland Funding in California .. Trial coming up

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An MIL is a request of the court to exclude evidence.  It is my understanding that you can’t have something “stricken” from evidence that has not been entered into evidence.  You could have filed a Motion to Preclude but it is too late to do that now and an MIL is, for this purpose, basically the same thing, at least that is my understanding.

 

The two affidavits are NOT ADMISSIBLE if objected to.  Plaintiff is going to try and bring them in by way of their CCP 98 declaration which is DOA without a witness because you subpoenaed the witness.  You have an absolute right to question the witness and if they do not show, which is the case 95% of the time, their CCP 98 declaration gets tossed and ALL it attempts to support gets tossed with it IF YOU OBJECT.  The court is not going to toss this stuff for you, you need to know that law and object and agrue.

 

If you even get past all of this and the plaintiff is still standing, you can then argue about the signature differences and the address differences, etc.  But, it should never get that far because you will have already destroyed plaintiff’s case by getting their CCP 98 declaration tossed.

 

Check out ASTMedics thread here, there is a lot of good info there with links to samples.

 

Good Luck,

 

rt

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Thank you so so much!!!  I feel so much better now.

 

Do you think I still need the MIL or Motion to Strike and Trial Brief?  I feel like giving a trial brief is in a way letting them know ahead of time our arguments.

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In colorado I was power of attorney for my dad in all legal matters, I was able to act in his behalf, speak in his behalf, etc.  Check your power of attorney document and see if it has for legal matters also, if so, your husband doesn't even have to speak at all

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Thank you so so much!!!  I feel so much better now.

 

Do you think I still need the MIL or Motion to Strike and Trial Brief?  I feel like giving a trial brief is in a way letting them know ahead of time our arguments.

Motion in limine is what you want to prepare.  Your local rules might have a deadline but they are often submitted days before trial.

 

Can your husband say that the signature is not his?  Can he say that he did not make any of the purchases?  Since the statements were also sent to an address that is not yours, I think this is a no brainer.

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Ati,

You are getting real good direction on how to proceed in the court process, and may need to contine through trial.

The one thing I noticed in reading your thread is that you believe this is "Identity Theft". Generally, I would think with all the information you have recieved you should be sure whether this is or isn't your debt by now. Even so if you call Midland and tell them based on the all information you have now recieved and that this IS IDENTITY THEFT.

Tell them to fax you the from they use for ID theft, and you will complete and send back in 5 days. They will likely end the case.

If not and once you have notified them in writing and agreed to complete and file affidvait/declaration of ID theft and they choose to continue the case. It is very risky for them based on CCP 1788.18. You should read this, there are some things that you need to do and provide.

If you can get Midlant to react at a minimum they may postpone the trial date...

Something to consider, you seem to be heading for an outright win, but courts and judges can be fickle and do make errors.

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I can't express the gratitude I feel for all the advice, direction to threads that have helped me IMMENSELY and support!!!

 

So glad I found this forum.

 

Today something bad happened.  I went ahead and got the Motion to Strike notarized and the Sworn Denial.  Spent $40 bucks on notary fees.  I had been advised to go ahead and do the Motion to Strike by a paralegal.  BAM!  My husband is told by the clerk that we cannot do a MTS because the hearing date would be AFTER the trial date!!!!

 

Also, I sent him to file the POS for the subpoena but did not give him the stamped subpoena and BAM! again.  The clerk said she cannot file it if we don't bring the subpoena which she stamped and signed for us to serve.

 

We are amateurs.  And it shows.

 

And worse of all is I had ALREADY mailed the MTS and POS to plaintiff.  So now they are going to get it and it's not even filed at the court!!!

 

Anyone have any ideas on how to fix this mess so we don't look like idiots?  I'm afraid the judge is going to be so mad!

 

And the one piece of good news is that I do have legal POA so looks like I'll be able to speak for him.  :)

 

I don't want to do the form they make you sign if you suspect identity theft.  The reason is I do have suspicions of who did this.  And if it's the only person who I can imagine would have done it, the guy's wife left him recently and we heard he is a mess.  If it looks like we can beat this thing, I would rather not involve law enforcement. 

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I can't express the gratitude I feel for all the advice, direction to threads that have helped me IMMENSELY and support!!!

 

So glad I found this forum.

 

Today something bad happened.  I went ahead and got the Motion to Strike notarized and the Sworn Denial.  Spent $40 bucks on notary fees.  I had been advised to go ahead and do the Motion to Strike by a paralegal.  BAM!  My husband is told by the clerk that we cannot do a MTS because the hearing date would be AFTER the trial date!!!!

 

Also, I sent him to file the POS for the subpoena but did not give him the stamped subpoena and BAM! again.  The clerk said she cannot file it if we don't bring the subpoena which she stamped and signed for us to serve.

 

We are amateurs.  And it shows.

 

And worse of all is I had ALREADY mailed the MTS and POS to plaintiff.  So now they are going to get it and it's not even filed at the court!!!

 

Anyone have any ideas on how to fix this mess so we don't look like idiots?  I'm afraid the judge is going to be so mad!

 

And the one piece of good news is that I do have legal POA so looks like I'll be able to speak for him.  :-)

 

I don't want to do the form they make you sign if you suspect identity theft.  The reason is I do have suspicions of who did this.  And if it's the only person who I can imagine would have done it, the guy's wife left him recently and we heard he is a mess.  If it looks like we can beat this thing, I would rather not involve law enforcement. 

 

 

Forget about the motion to strike.

 

Prepare a MIL.  That should win the day.

 

Don't know what subpopena you are talking about.  If you mean the subpoena for the CCP 98 witness, I would not file that at all.  I would bring it to the trial so you can show the judge the original.  Maybe ask the clerk to file it as an exhibit at trial.  If the witness shows up, you will not need it at all.

 

You are not allowed to represent your husband.  But you might be able to "translate" for him if he is difficult to undestand.  You can also be a witness for him and tell the entire story.

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Thank you Calawyer.  Here is my MIL.  Can you tell me what you think?  Should I also include the two affidavits that are not CCP98?

 

Husband

In Pro Per

 

 

 

 

 

 

 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN BERNARDINO

 

 

 

Midland Funding LLC,

                         Plaintiff,

            vs.

 

                         Defendant

Case No.:

 

 

Defendants Motion in Limine

 

Date:

 

Time:

 

Department:

 

MOTION

Defendant hereby moves this Court in limine for an Order precluding Plaintiff from entering into evidence at Trial the document titled Affidavit in Lieu of Testestimony and exhibits attached thereto. The grounds for this motion is that Plaintiff has willfully failed to comply with the rules of civil procedure that govern Limited Civil Cases in the State of California specifically, Code of Civil Procedure § 98.

VIEMORANDUM OF POINTS AND AUTHORITIES INTROIDUCTION

Plaintiff properly filed this action as a Limited Civil case. As such, Plaintiff is bound by the rules of civil procedure for such cases which are found in the Code of Civil Procedure § 90, et seq. Plaintiff has failed to comply with the requirements of these rules of civil procedure. Said failure prejudices Defendant in this case and provides Plaintiff with an unfair litigation advantage.

ISSUE PRESENTED

1.         Whether Plaintiff’s Affidavit in Lieu of Testimony should be excluded from evidence at Trial

Plaintiff has served Defendant a document titled Affidavit in Lieu of Testimony which fails to comply with Code of Civil Procedure § 98. A copy of the Declaration in question, without exhibits, is attached to the Declaration of HUSBAND in Support of Defendant’s Motion in Limine filed herewith, and identified as Exhibit "A." Exhibit "A" fails to comply with Code of Civil Procedure § 98. The declarant was not “available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial." This lack of compliance was willful and in blatant disregard of the laws which govern this action.

For this reason, Plaintiff should be barred from introducing the proffered Affidavit in Lieu of Testimony at time of Trial instead of live testimony of their witness.

ARGUMENTS AND AUTHORITIES

1.         The Court Should Bar Plaintiff from Introducing the Affidavit in Lieu of Testimony

Code of Civil Procedure § 98 provides as follows:

A party may, in lieu of presenting direct testimony, offer the prepared testimony of relevant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

 

a) A copy has been served on the parry 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.

 

B) The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

 

The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.

 

 

This statute provides three distinct prerequisites which are required for affidavits or declarations presented in lieu of direct testimony, if the testimony being offered is not in the form of a deposition in the case. First, the declaration must be served on the party against whom it is offered at least 30 days prior to Trial. Second, the party who is offering the declaration must provide a “current address" of the declarant "that is within 150 miles of the place of trial." Third, the declarant must be available for service of process “at that place" during the 20 days immediately prior to Trial.

Current Address

Plaintiffs Declarant, AFFIANT, has provided five addresses where she stated she “agree to accept service at any of the following locations” and provides current addresses that are within 150 miles of the place of Trial. In her Affidavit in Lieu of Testimony, dated April 1, 2013, Declarant, AFFIANT, has stated under penalty of perjury that her declaration was executed in Stearns, Minnesota. Notably, no address in Stearns, 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. AFFIANT will be able to be served 20 days before any trial in California is 2730 Gateway Oaks Drive, Suite 100, Sacramento, CA. Four other locations in San Diego, Upland, Westlake Village and San Jose, California are also listed.  Defendant attempted to serve AFFIANT personally at one of the addresses she stated she would “agree to accept service” but she was not present.  AFFIANT states in her affidavit that her business address is 16 Meland Road, Suite 101, St. Cloud, MN 56303.

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.

Availability for Service of Process

Declarant, AFFIANT, was not available for service of process at the address provided in her Declaration. On April 17th, 2013, the Defendant issued a Civil Subpoena for Appearance at Trial or Hearing which ordered the Declarant, AFFIANT, to appear in person, at trial on May 10, 2013. On April 19, 2013, Process Server, X, made an attempt to personally serve this Civil Subpoena for Personal Appearance at Trial or Hearing on AFFIANT at: 3111 Camino Del Rio North, Suite 1300, San Diego, CA  92108. AFFIANT was not available for service at this address she provided in her Affidavit in Lieu of Testimony.  Due to the fact she was not present, she was not personally served a copy of the Civil Subpoena for Personal Appearance at Trial or Hearing. Instead, the Subpoena for Personal Appearance at Trial or Hearing was served to XXX, who stated she was an authorized representative of Midland Funding LLC. Because declarant, AFFIANT, was not available for service of process, at the address she provided under penalty of perjury within the 20 days immediately prior to trial, Plaintiff has failed to provide a declaration which complies with Code of Civil Procedure § 98. Therefore, the Affidavit in Lieu of Testimony must be excluded from evidence at trial in this matter.

Service in Care Of is not Service

It is bad faith for Plaintiff to attempt to skirt the rules designed for economic litigation by stating I that its out of state declarant would be available to personally "accept service" "c/o" or "in care of” by another entity in a limited jurisdiction case. With the five addresses listed as locations the declarant could be served it shows that the plaintiff intended to have service accepted in care of for the declarant. In a blatant attempt to avoid the obvious problems of using an out of state declarant with a CCP §98 declaration, Plaintiff has endeavored an end run around the rules of civil procedure which require the local presence of the declarant, CCP §98. Declarant, AFFIANT, signed her Affidavit in Lieu of Testimony in St. Cloud, Minnesota. This would naturally disqualify her from being a CCP §98 declarant, yet her declaration craftily states she will be available for service at the office "c/o" Hunt & Henriques, 2730 Gateway Oaks, Suite 100, Sacramento, California, 95833. However, the attempt was made to serve Ms. Haag at the address she stated she would be available at revealed that AFFIANT was not present. Attempting this arrangement for service in care of is false since subpoenas must be served personally:  "the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally." Cal. Code Civ. Proc. 1987(a). In the case of In re Abrams 1980), 108 Cal. App. 3D 685, 166 Cal. Rptr. 749, the court points out the difference between service of a subpoena and service of a summons:

In addition to the lack of express statutory authorization for serving witness subpoenas on agents, service of a subpoena differs from service of summons because the penalty for disobeying a subpoena may be much more serious than that for not responding to a summons, hence it is much more important to maximize the probability of notice to the contemptner than to the usual defendant. Not answering a summons normally will produce a default judgment for the payment of money, which may sometimes be later set aside under Code of Civil Procedure section 473 or an analogous procedure. Non response to a subpoena may result in money damages plus five days' imprisonment. The difference in possible consequences may help explain why the Legislature has provided many different modes of serving summons, but one, personal delivery for serving a subpoena." Id. At 690(Emphasis added)

 

Arranging to have one of their local debt collection colleagues agree to “accept service" for an out of state declarant is simply not permissible under the foregoing law governing personal service of subpoenas to appear at trial. Plaintiff’s invalid and specious arrangement balks at the laws which govern this court and those who practice before it. Those submitting evidence to California courts against California resident must be subject to the jurisdiction of California courts if justice is to be served. Surely, the California legislature did not intend CCP § 98 to create a means for out of state witness declarations to be used carte blanche and without being subject to cross-examination in California courts.

 

CONCLUSION

 

The Affidavit in Lieu of Testimony proffered by Plaintiff fails to meet two (2) out of the three (3) requirements for admissibility under Code of Civil Procedure § 98. By falsely asserting that its declarant, AFFIANT, would be available for personal service of process in California. Plaintiff, MIDLAND FUNDING LLC, deliberately sought to violate the intent of the rules designed for limited economic litigation and attempted to perpetrate a fraud on the court. If such behavior would be indulged, there would be no point in establishing such rules. Further, without an opportunity to subpoena and cross-examine this key witness, admission of the affidavit would violate Defendant’s due process rights. Finally, it would not be economic litigation if a defendant were forced to waste money and resources on false representation of witness location, or to go nearly 3000 miles to depose a witness.

The rules of Civil Procedure for economic litigation are meant to simplify limited cases and make the process affordable to the litigants, not to add unnecessary complexity and difficulty for a defendant who wishes to exercise his right to cross examine witnesses against him. As the foregoing demonstrates, Plaintiff’s willful misrepresentations caused defendant to waste time and money in trial planning, attempting to have a Trial Subpoena served on the Plaintiff’s declarant at the address indicated. Not only that, but it founds an illegal trap for the unwary litigant and constitutes a fraud on this court. If defendant had not attempted to serve the declarant at the designated location, then this court may have likely accepted the truth of the assertions contained in the affidavit as being proper and in compliance with CCP § 98. Therefore, because Plaintiff has failed to comply with Code of Civil Procedure § 98, this Court must exclude the Affidavit in Lieu of Testimony and all exhibits which it purports to support as it contains pure hearsay and receive only live testimony at the trial in this matter.

 

Respectfully Submitted on this the day of May 6,2013.

 

 

 

 

 

 

 

 

 

 

             HUSBAND

             In Pro Per

 

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Hello.  I was hoping someone could give me some advice.  Doing it myself has been a challenge.  My husband got sued by Midland.  They claim they sent him letters which we never got.  Anyway, we sent the DV and answered and now we're going to trial.

 

This is what they have:

 

1.  A signed application which has a signature that does not look like my husband's.

2.  Some statements that were all sent to an address we have never lived at or used.  It's some business address.

3.  Three affidavits and bill of sale, none of which have my husband's name on them.

 

We are submitting a Motion to Strike the affidavits because the affiants live more than 150 miles from where we live.

 

I don't understand the CCP98 rules vs. the Business Exceptions rule.  Can they say that they are not subject to CCP98 because they have business exception?

 

I need to know how to do a Trial Brief.  And lastly, I need to be able to prepare my husband to defend himself.  He was in a head on collision and has speaking problems.  I have Power of Attorney.  I wonder if a judge would let me help him.

 

Any advice or help would be greatly appreciated.  Thanks so much!!!

You are going to have trouble defending in court. I saw a case where the court denied the defense and entered default, however he is allowed someone to communicate for him but the court could say that you are practicing law. You may be able to use Interpleader to be allowed because it is gonna effect community property.  They said they have a business records exception to the hearsay rule.

 

I hope you use ASTmedics trial brief and MIL and perhaps you can file a motion to interplead based on power of attorney and the community property. I would also hope maybe you can find an attorney I know some and you can look your self.

 

a key thing will be that he is up to speed in case they do not allow you to speak for him. read ASTmedics post about midland http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/page-2?hl=%2Bastmedic+%2Bmidland#entry1216206

 

you have a lot of reading and prepping to do.

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Can he motion to strike the other affidavits from out of state at the trial?  If so, how would he do this?  In the beginning?  After they present their evidence?  By objecting????

By motion in limine before trial. the reasons can be that they do not comply with CCP98, and if they do not have the statement about perjury under the laws of the state of califonia they are inadmissible. There is a case that says they cannot it is:

[my argument in appellate division] These were then introduced with an affidavit that is noticeably missing the statement required by CCP §2015.5. That would make them inadmissible on that issue but the lack of personal knowledge of the source and trustworthiness of those records is the other issue about them. For the Violation of CCP§2015.5 appellant cites the holding in Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004).

 

The key thing the court said about that: we can only conclude that the affidavit missing the required jurat is inadmissible in the state of california.

You have alot to prep for trial, I wish you came here sooner than this but we will help you to the end.

Read that thread and then ask all the questions you want. and personally file a motion to continue the trial for 90 days due to the health issues that will give you time to get it together. make the motion tonight. and file it tomorrow and send it to plaintiff

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Sorry you really are up to speed excellent arguments in limine. But you have to address each exhibit also for the usual objections. If not then the judge will let them in.

 

And I have to say excellent job getting this far, we all know how tough it is, coupled with the extra stressors you mentioned shows an unwaivering strength that can only be forge in the hottest of crucibles. I salute you, So lets get you up to speed.

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Thank you everyone.  I was wondering if someone can tell me how to add the other two out of state affidavits into the Limine.  Is it a whole new section?

 

Do I need to attach plaintiff's exhibits?

 

When do I file the Limine?

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Also, just so everyone knows.  The reason I am late in the game is because I had a lawyer talk me into letting them handle the case for free if I let them sue afterward.

 

About three weeks ago that lawyer called us and said they didn't think there was enough in it for them and slapped it back to me.  I had been kicking back thinking I had it covered and found out NOTHING had been done in all the months the lawyer had the file.

 

So here we are!!!

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I revised the MIL.  I attempted to add the other affidavits.  Can someone please let me know if they would be willing to proof read it for me?  Let me know if I did it all correctly since I added the other affidavits?  If you can, please PM me.  Thank you all so much. 

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I have read it and I do have a couple of comments.  Just haven't had time to post them yet.  I did see a couple of typos in the first few paragraphs.  Also, you do want to have a separate section on the out of state "non-CCP 98" affidavits.  Those are ABSOLUTELY inadmissible under California law.  THe case you want is Elkins v. Superior Court.  It is a California Supreme Court case.  Here is a good quote:

 

The rule and order that were applied in the present case called for the admission of declarations in lieu of direct testimony at trial. It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection.

 

 

I think that in AST MEdic's MIL we prepared a section on this.  Check it out and let me know.

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OMG folks. I think I screwed up. I had the subpoena to the affiant served on 4/19. Trial is 5/10. That means the attempted service was not within 20 days before trial and this I can't argue that she was not available for process service.

Should I make a second attempt?

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I PM'd you.  Bottom line:  you can always serve a subpoena MORE than 20 days before trial.  The rules is designed solely to give the witness time to prepare.  You can always give more time to prepare.

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Helpme has HELPED ME!!!  Temendously!  As have all of you.

 

Need to know:

 

When should I file my MIL?  When is the best time without giving them a heads up about my strategy?  And do they get served this?

 

When should I file my Trial Brief?  Same basic questions.

 

thank you!!!

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The timing and place of the filing and service of the MIL are at the discretion of the trial judge, so you need to check your court's local rules to find out what the timeline is.  And yes, you need to serve them the MIL, too. 

 

I'm not sure about the trial brief... sorry

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