Aticnib

Sued by Midland Funding in California .. Trial coming up

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I found this advice on the interwebs.  Opinions???

 

 

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Answered about a year ago. While I agree with each of the above-posted answers, I also think that sometimes motions in limine can be useful even though the case is a bench trial. For example, sometimes such a motion can be used alert the opposition that you intend to argue to exclude their evidence, and if you have a strong argument, it might help to settle the case before trial, or help with prospective negotiations. However, be aware that these motions can cut the other way as well - and give your opponent fuel for their fire - so be careful and use them wisely.

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Uh Oh!!!  Found this in my local courts Rules:

 

RULE 415 MOTIONS IN LIMINE
(a) Motions made for the purpose of precluding the mention or display of inadmissible and prejudicial matter in the presence of the jury shall be accompanied by a declaration that includes the following:
(1) A clear identification of the specific matter alleged to be inadmissible and prejudicial;
(2) A representation to the court that the subject of the motion has been discussed with opposing counsel, and that opposing counsel has either indicated that such matter will be mentioned or displayed in the presence of the jury before it is admitted in evidence or that counsel has refused to stipulate that such matter will not be mentioned or displayed in the presence of the jury unless and until it is admitted in evidence;
(3) A statement of the specific prejudice that will be suffered by the moving party if the motion is not granted; and
(4) If the motion seeks to make binding an answer given in response to discovery, the declaration must set forth the question and the answer and state why the use of the answer for impeachment will not adequately protect the moving party against prejudice in the event that evidence inconsistent with the answer is offered.
(B) A motion in limine shall not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues. Such motions may only be made in compliance with Code of Civil Procedure section 437c and court rules pertaining thereto.
© A motion in limine shall not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues. Such motions may only be made in compliance with Code of Civil Procedure section 598.
(d) The court may defer ruling upon a motion in limine, and may order that no mention or display of the matter that is the subject of the motion is to be made in the presence of the jury unless and until the court orders otherwise. If the court so orders, or if the motion is granted, it is the duty of counsel to instruct associates, clients, witnesses, and other persons under their control, that no mention or display be made in presence of the jury of the matter that is the subject of the motion. (Eff. July 1, 2006.)

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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. 

Sure PM me.  will go over it. You have an army now.

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Uh Oh!!!  Found this in my local courts Rules:

 

RULE 415 MOTIONS IN LIMINE

(a) Motions made for the purpose of precluding the mention or display of inadmissible and prejudicial matter in the presence of the jury shall be accompanied by a declaration that includes the following:

(1) A clear identification of the specific matter alleged to be inadmissible and prejudicial;

(2) A representation to the court that the subject of the motion has been discussed with opposing counsel, and that opposing counsel has either indicated that such matter will be mentioned or displayed in the presence of the jury before it is admitted in evidence or that counsel has refused to stipulate that such matter will not be mentioned or displayed in the presence of the jury unless and until it is admitted in evidence;

(3) A statement of the specific prejudice that will be suffered by the moving party if the motion is not granted; and

(4) If the motion seeks to make binding an answer given in response to discovery, the declaration must set forth the question and the answer and state why the use of the answer for impeachment will not adequately protect the moving party against prejudice in the event that evidence inconsistent with the answer is offered.

( B) A motion in limine shall not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues. Such motions may only be made in compliance with Code of Civil Procedure section 437c and court rules pertaining thereto.

© A motion in limine shall not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues. Such motions may only be made in compliance with Code of Civil Procedure section 598.

(d) The court may defer ruling upon a motion in limine, and may order that no mention or display of the matter that is the subject of the motion is to be made in the presence of the jury unless and until the court orders otherwise. If the court so orders, or if the motion is granted, it is the duty of counsel to instruct associates, clients, witnesses, and other persons under their control, that no mention or display be made in presence of the jury of the matter that is the subject of the motion. (Eff. July 1, 2006.)

Yep MIL has to have a declaration in your county. also compliance will be checked in LA county since they cannot stand pro pers.

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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?

Yes you have to seperate them and deal with themin seperate sections.

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Does anyone know and have a link to all the AGs who filed suit against Midland? How many states sued them?

 

 

At least Minnesota and West Virginia. But I am not sure how that will help you.  The Court's findings in Brent v. Midland may help you, however, because the Court there made findings about Midland's practices.

 

The fact that AGs filed a lawsuit means very little.

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I was just thinking of adding a sentence about how Midland's business practices should be impeached and scrutinized in light of the fact several state AG's have sued them for using robo-signed affidavits in lawsuits without even attempting to verify accuracy.  I guess maybe it's moot.  But just wanted the judge to see it.  Yes I'm vindictive.  :D

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If anyone is available.  I am trying to come up with an easy way for my husband to understand.  He is a construction worker and has an 8th grade education.  He got his GED but if this is hard for me with a college education, imagine him!!!  What's an easy way to explain:

 

1.  Plaintiff's Account Stated Summons&Complaint doesn't fly because...

1.  Midland Funding lacks standing because...

2.  The Affidavits and Bill of Sale of Accounts are hearsay because...

3.  The business exception rule which Plaintiff is going to use in order to admit those documents doesn't fly because...

 

In layman's terms, how can I explain these to him?  Any help is greatly appreciated.

 

I'm going to have to drill these arguments into him so he can know them backwards and forwards.  He's going to have to know when they are being brought up, object, explain...

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Another question:

 

Are affidavits signed in another state "To the best of my knowledge" qualified under CCP2015.5 if they DO NOT have the statement "under penalty of purjury in the State of California"?

 

The Affidavit and Bill of Sale and Assignment says "to the best of my knowledge" and is notarized.  But it is not sworn.

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There is law both ways.  The lynchpin will be whether the affidavit otherwise contains facts showing that the witness has personal knowledge.  Here is your best case:

 

The phrase ‘To the best of my knowledge’ indicates something less than the ‘personal knowledge’ required under Code of Civil Procedure section 437c, and implies that the declarant's statement is based on  something similar to information and belief. (See Code Civ.Proc., s 431.30.) Furthermore, none of the facts contained in the declaration show that the declarant was ‘competent to testify’ as to whether the Comptons were ever elected officers of G COMP, INC.

Bowden v. Robinson (1977) 67 Cal.App.3d 705, 719-20.
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Hi Aticnib,

 

If you think that this is the identity theft where someone opened that account and used it w/o your husband or your knowledge, you should file police report, FTC affidavit, dispute with credit bureaus and collect what ever evidence you may have like CALaywer and other members suggest and then talk to Midland.  Not sure how it goes when the case is already filed; but Midland may drop the suit if you have strong evidence that your husband was a ID theft victim.  It happend to me once too, someone stole my ID in 2010 and opened 10 family phone lines with TMobile. I did not know util Midland showed up at the door in 2012 and asked me to pay up almost $5000 or get sue very next month.  This Midland was very aggressive, called me almost 10 time per days with different places/phone #.

 

I stopped Midland by doing all the steps above and then sent all paper works to Midland (police report, FTC affidavid, credit bureaus dispute, statements,...) with a letter to tell them that if they don't stop, I would get an attorney looking into.  They stopped ever since.

 

You can also bring all those papers to the Court and show to the Judge to let him/her know that your husband is a ID theft victim.  And you entitle to a free credit report right away from the three bureaus to see what may have in your files. If you'd like, you could send letters to them to ask the credit freeze like I did.

 

In fact, I fight with other bottom feeders right now (CACH/PRC) partly the ID theft also; but I could not fight like with Midland since I knew who did it and it was partly my fault too.

 

Good Luck,

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Hello.  Can someone answer the following:

 

1. What are the "grounds" legally for striking an unauthenticated photocopy of a credit card application and a data printout by JDB?

 

2.  What is a possible counter-argument by JDB at trial?

 

3.  What does it mean under the "business exception" where it says "near place/time of event".  What event?  The opening of the credit card?  The processing by OC? ...

 

Thank you.  :D

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If anyone is available.  I am trying to come up with an easy way for my husband to understand.  He is a construction worker and has an 8th grade education.  He got his GED but if this is hard for me with a college education, imagine him!!!  What's an easy way to explain:

 

1.  Plaintiff's Account Stated Summons&Complaint doesn't fly because...

1.  Midland Funding lacks standing because...

2.  The Affidavits and Bill of Sale of Accounts are hearsay because...

3.  The business exception rule which Plaintiff is going to use in order to admit those documents doesn't fly because...

 

In layman's terms, how can I explain these to him?  Any help is greatly appreciated.

 

I'm going to have to drill these arguments into him so he can know them backwards and forwards.  He's going to have to know when they are being brought up, object, explain...

 

I know how you feel.  I'm in the same situation of having to explain all this to someone who is going to have to represent himself in court, so I'll do my best here :-D

 

 

1.  Plaintiff's Account Stated doesn't fly because:   Account Stated requires proof of (1) prior transactions that establish a debtor-creditor relationship between the parties, (2) an express or implied agreement between the parties as to the amount due, and (3) an express or implied promise from the debtor to pay the amount due.  How is Midland going to prove there has been a past relationship, an agreement as to the amount due, or an agreement to pay the amount due? 

 

 

2.  Midland Funding lacks standing because:  Midland cannot prove that they own your husband's account.  The Bill of Sale proves that Midland bought some random accounts from the OC, but it doesn't prove that your husband's account was one of them.  Unless, of course, his particular account is identified on the Bill of Sale or attached ledger of accounts.

 

3.  The Affidavits and Bill of Sale of Accounts are hearsay because: They are out-of-court statements offered for the truth of the matter asserted.    The principal justification for exclusion of hearsay is that the statement is not made on the stand by a witness subject to cross-examination.  They are inadmissible unless an exception applies.

 

4.  The business exception to the hearsay rule doesn't fly because:  The hearsay documents lack the proper evidentiary foundation required for a business record. An employee for the debt collector is generally not competent to offer testimony concerning the records of an assignor, because the employee will often lack the personal knowledge to testify as to those records. In other words, an employee of one business (Midland) can't authenticate the business records of another business (OC).  They never worked for the OC so they don't have personal knowledge as to how the OC's business records are created and maintained.  Midland would need a witness from the OC to authenticate the documents for the documents to qualify for the business records exception to the hearsay rule.

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Hello.  Can someone answer the following:

 

1. What are the "grounds" legally for striking an unauthenticated photocopy of a credit card application and a data printout by JDB?

 

2.  What is a possible counter-argument by JDB at trial?

 

3.  What does it mean under the "business exception" where it says "near place/time of event".  What event?  The opening of the credit card?  The processing by OC? ...

 

Thank you.  :-D

 

Anon Amos mentioned about the "Best Evidence Rule".  In California, I think we use the "Second Evidence Rule".  You can check here to understand more:

 

http://www.dailyjournal.com/cle.cfm?show=CLEDisplayArticle&qVersionID=376&eid=922107&evid=1

http://blog.ceb.com/2011/08/12/question-4/

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Thank you for all your help.  :D

 

1.  I don't want to file a police report and go that route.  It's something that happened years ago.  We have a detective friend who said the chances of finding out and prosecuting are NIL.

2.  I did file a dispute with all the credit bureaus.

 

 

Another question:  A paralegal had told us to do a Motion to Strike.  After spending hours and hours getting it ready, we took it to the courthouse and the clerk would not accept it.  She said the hearing would be after the trial.  I cannot find in the rules of my local court in Rancho Cucamonga what the rules are for filing a Trial Brief and a Motion in Limine.  We want to file said on Friday because we don't want them to have our arguments too far in advance.  But what if we get to the clerk and she doesn't let us file those either????

 

Has anyone ever heard of people not beling allowed to file MIL and TB?

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Thank you for all your help.  :-D

 

1.  I don't want to file a police report and go that route.  It's something that happened years ago.  We have a detective friend who said the chances of finding out and prosecuting are NIL.

2.  I did file a dispute with all the credit bureaus.

 

 

Another question:  A paralegal had told us to do a Motion to Strike.  After spending hours and hours getting it ready, we took it to the courthouse and the clerk would not accept it.  She said the hearing would be after the trial.  I cannot find in the rules of my local court in Rancho Cucamonga what the rules are for filing a Trial Brief and a Motion in Limine.  We want to file said on Friday because we don't want them to have our arguments too far in advance.  But what if we get to the clerk and she doesn't let us file those either????

 

Has anyone ever heard of people not beling allowed to file MIL and TB?

You have to be persuasive their refusal will result in an error and on appeal or writ they will be in trouble. Also make them sign a statement of why they won't take it. Also file them wednesday they will get them friday afternoon then you can be sure that you got them in on time 10 days is adequate notice and they will not really have time to counter that. They already know they are screwed but you don't want them to say it was unfair. If the get the affiants to change something they awill not be able to submit it because it was not disclosed.

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Thank you for all your help.  :-D

 

1.  I don't want to file a police report and go that route.  It's something that happened years ago.  We have a detective friend who said the chances of finding out and prosecuting are NIL.

2.  I did file a dispute with all the credit bureaus.

 

 

Another question:  A paralegal had told us to do a Motion to Strike.  After spending hours and hours getting it ready, we took it to the courthouse and the clerk would not accept it.  She said the hearing would be after the trial.  I cannot find in the rules of my local court in Rancho Cucamonga what the rules are for filing a Trial Brief and a Motion in Limine.  We want to file said on Friday because we don't want them to have our arguments too far in advance.  But what if we get to the clerk and she doesn't let us file those either????

 

Has anyone ever heard of people not beling allowed to file MIL and TB?

 

THe paralegal was wrong.  A motion to strike is typically a motion directed at the complaint.  It must be set on regular notice which would indeed be after the trial.  You would not file a motion to strike a declaration or affidavit.

 

Motions in limine are filed in most every trial.  THe clerk should accept it for filing. 

 

 

 

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Thank you Calawyer and Seadragon.

 

The problem with filing it all Wed is that I have to have the subpoena re-served a third time because same idiot paralegal printed the one without my husband's signature and had it served.  Wouldn't that just be a kicker if I got to court and JDB's argument for why their witness is not there is my subpoena was not properly executed!!!!

 

So tomorrow I need to have it served again and I have to update my TB, Declaration, MIL and MIL-declaration.  Since I'm not a party in the lawsuit, I'm thinking of doing it myself.  What do you think?

 

I also have to find some time to get away from work to file it all because if they don't accept them, my husband will not get pushy enough like I would.

 

Soooo, do you think Thursday is OK to send it all?

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