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Motion to Compel granted...this should be interesting


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From what I've learned in my time on the CIC, whenever the code is cited in an argument, it is bolstered by case law which shows precedent for the decision one is seeking from the judge. I wonder if there is case law you can cite to support A & B...

I've been looking through nexislexis and google scholar, but i'm having a hard time finding anything by searching ccp 96.

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I've been looking through nexislexis and google scholar, but i'm having a hard time finding anything by searching ccp 96.

I'll give it a try as well. Would be a benefit to all if we could find something.

 

*edit - Just found this http://www.creditinfocenter.com/community/topic/318900-plaintiff%E2%80%99s-ccp-96-response-was-late-case-law-and-strategy-help-please/ looks like case law to support precluding the amended CCP 96 response wouldn't be necessary. I'm still gonna keep looking though ;)

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You are exactly right, they cannot amend or supplement the ccp 96, and they are supposed to give you a positive ID on any and all witnesses they intend to call. Not to mention the fact the court has already precluded some evidence. Your opposition should work well even without case law (as I don't think you will find any) you have the statute and it is plainly written. 

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I added this under section A:

In addressing non-code compliant filings, the United States Supreme Court states that "If 1-day late filings are acceptable, 10-day filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline, yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it." (Carlisle v. United States, 517 U.S. 416 (1996).) A late, amended or additional response is not allowed under the code, and must not be admitted.

 

This under section B

Defendant objects to the admittance of this witness under CCP 97, and therefore witness Person Most Knowledgeable, or any other witness, must not be allowed to testify. If plaintiff were permitted to introduce one witness not positively identified on its CCP 96 statement, 10 witnesses might be equally acceptable ((see Carlisle v. United States, 517 U.S. 416 (1996).)

 

And this to the end:

Defendant respectfully requests this court grant Defendant's Motion in Limine, and the Defendant prays the Court grant the following:

 

1. Grant the defendant's Motion in Limine precluding the testimony of witness WITNESS NAME, or any other non identified witness be precluded from trial except as provided by law, for failure to comply with CCP 96, and being objected to by Defendant under CCP 97.

 

2. Grant the preclusion of the Affidavit of Dustin Smurdon, and the Final Statement as identified by plaintiff, by order of this court on 11/1/2013. These documents were not produced after courts order for compliance to produce all documents constituting the alleged assignment of the alleged account.

 

3. Grant the Preclusion of the Bill of Sale, as it is not authenticated and is hearsay. All of the pertinent information has been redacted, it fails to identify defendant's name or alleged account number, and is stated to be an exhibit to the Credit Purchase Agreement, which plaintiff failed to produce despite the order of this court to do so. It thus violates the best evidence rule, and lacks completeness. It does not fall under the business records exemption to hearsay.

 

4. Grant Preclusion of the Affidavit of Martin Lavergne, as declarations constitute are not admissible in court unless allowed by a specific statue (Elkins v. Superior Court (2007) 41 Cal 4th 1337.) The affidavit makes no attempt to comply with CCP 98, nor CCP 2015.5 (Affidavit must be sworn to with attestation "Under the laws of the State of California" Or the affidavit is inadmissible." Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004))

 

5. Grant Preclusion of the alleged Credit Card Statements, as they lack foundation and cannot be authenticated by a witness with personal firsthand knowledge as a CHASE BANK NA employee. They are inadmissible hearsay and do not fall under the business records exemption to hearsay.

 

6. Grant Preclusion of the alleged Credit Report of ME, as it lacks foundation and cannot be authenticated by a witness with personal firsthand knowledge as a TRANSUNION or EXPERIAN employee. They are inadmissible hearsay and do not fall under the business records exemption to hearsay.

 

 

 

 

 

I think it's ready to go. 

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Wonder if i should attach any exhibits? I already supplied plaintiff's first ccp 96 statement in the MIL, plaintiff supplied the non-compliant second response with their opposition. Maybe plaintiff's supp response after motion to compel compliance? I think court already has all docs produced with my last motion.

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One of the last things I did with my filings was run them thru a word search and add "alleged" "so-called" or "purported" before every "account" and "complaint" :-)

Yep, I checked that as well. A 6 page reply in support might be overkill, but it's time to swing for the fences and go for the kill shot. I think my arguments are sound, and plaintiff has even helped bolster them. The judge has already agreed twice with me on plaintiff's non code compliance. This third one will leave plaintiff with nothing but a few useless pieces of paper (which will be objected to)  and a red face.

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  • 2 weeks later...

In plaintiff's brief, they cited a case Norton v. Consolidated Fisheries, Inc.120 Cal. App. 2d 86, citing an assignee's testimony that it is the assignee is sufficient. I think this is the key part:

 

[3] Appellant has supplied no authority holding that an assignee is not a competent witness to prove an assignment, and we doubt if such authority can be found. Moreover, "The direct evidence of one witness who is entitled to full credit is sufficient ..." (Code Civ. Proc., § 1844.) [4] No corroboration is required in a case such as this. (Radich v. Gak, 61 Cal.App. 375-376 [214 P 1000].) The trial judge was not required to accept the plaintiff's testimony as true (Lohman v. Lohman, 29 Cal. 2d 144, 149 [173 P.2d 657]; Berg v. Journeymen's P. & G. F. Union, 5 Cal. App. 2d 582 [42 P.2d 1091]) but the fact remains that he did so.

 

 

I'm looking for ways to argue against this case. Mainly I see that this case was an oral assignment, not a written one, and also defendant entered affirmative defenses that shifted the burden to them, and finally that defendant did not supply an authority contesting the alleged assignment? Any help analyzing would be appreciated (Beyond that it's a totally preposterous notion. If that were true I could sue JDB lawyer as the "Assignee" of his mortgage and win with just my testimony.) Here's a link to the case.

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I fail to see how this helps the Plaintiff, in the cited case, The plaintiff is unchallenged by anyone, the Appellant produced no evidence to challenge her statements.  You are challenging all their statements with valid evidence.

 

I'm going to look up Lohman v Lohman just to see what it says and Radich v Gak.

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I found this in Lohman v Lohman, it's confusing, but it does say something about weak statements.

 

[4] Upon the issue of due diligence, the appellant relies upon certain conversations which she claims to have had with her former husband and other matters assertedly occurring before his death. Assuming that section 1880(3) of the Code of Civil Procedure, which limits the testimony of a party to an action or proceeding brought against an executor, does not make those statements in her affidavit inadmissible, they constitute the weakest and most unsatisfactory of all kinds of evidence. (Estate of Emerson, 175 Cal. 724 [167 P. 149]; Corison v. Williams, 58 Cal.App. 282 [208 P. 331].) As against that affidavit, the counter-showing of the executrix cast doubt upon practically every material fact asserted by the appellant, and her claims in regard to the installment due in 1932 are directly at variance with the letter written by Mr. Lohman upon which she relies. [5] Moreover, a trial judge is not required to accept as true the sworn testimony of a witness, even in the absence of evidence directly contradicting it, and this rule applies to an affidavit. (Berg v. Journeymen Plumbers etc. Union, 5 Cal.App.2d 582 [42 P.2d 1091].)

 

All you need is stronger evidence.

 

And this is from California, what's up with that?

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Took a look at Norton v. Consolidated Fisheries - I'll have to read it again for clarity, but the issues in that case (from 1953) were based on oral assignments/contracts and original parties who conducted business with each other. Here in the now we're talking written contracts and 3rd parties (Midland). They're reaching, IMO. It's the basis for another bluff on their part.

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Took a look at Norton v. Consolidated Fisheries - I'll have to read it again for clarity, but the issues in that case (from 1953) were based on oral assignments/contracts and original parties who conducted business with each other. Here in the now we're talking written contracts and 3rd parties (Midland). They're reaching, IMO. It's the basis for another bluff on their part.

Yeah, I thought it was an extreme reach. I actually laughed when I read it in their brief. I actually found the case cited in a few places in a way that would benefit me(us) :   "When an alleged assignment is denied, the burden of proving that there was a valid assignment is on the plaintiff."

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Remember:  NO affidavit is allowed at trial (unless it is pursuant to a statute such as CCP 98).  That means plaintiff must bring a witness who has personal knowledge of the assignment.  At a minimum, that witness should be able to say that he/she reviewed the full forward flow agreement, reviewed the entire list of accounts in the original list, and be able to confirm that your account is on the list.  And, even then, the testimony might be excluded for failure to produce that entire agreement and the whole list.

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If I may offer a thought, and I hope this doesnt distract...

 

I do not know CA law.  Is there a provision in the law that refers to the records themselves?  As in something like "testimony about the records does not establish the business records--only the records themselves do"? 

 

I had this thought about their witness showing up.  And again, if I am off base, please correct me.  We know that CAs will not produce the forward flow agreement.  But what if you ask this witness questions about if they are familiar with the entire purchase agreement, etc between this CA and the OC?  Isnt there something in the CCP about the document being fair game for you to request it if the other side refers to it in their own evidence or testimony? 

 

If so, then you could ask questions of this witness about the purchase agreement.  If they answer about it, then could you request it again?  And if they refuse to produce it, could you then ask for everything they have said relating to this purchase agreement stricken? 

 

Please forgive me, I'm trying to learn as I go too.  Thanks for the understanding.

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Remember:  NO affidavit is allowed at trial (unless it is pursuant to a statute such as CCP 98).  That means plaintiff must bring a witness who has personal knowledge of the assignment.  At a minimum, that witness should be able to say that he/she reviewed the full forward flow agreement, reviewed the entire list of accounts in the original list, and be able to confirm that your account is on the list.  And, even then, the testimony might be excluded for failure to produce that entire agreement and the whole list.

Yes, I've got the objection and Elkins cite ready to go, no CCP98 or no CCP 2015.5 = not admissable. I The affidavits should be the easiest things to just destroy at trial. I think my cross exam questioning will be able to demonstrate the witnesses utter lack of knowledge of chase business practices, midlands shoddy business practices, ect. I'm wondering how I could twist their arm about the forward flow agreement and why they haven't supplied it if they have it handy for random witnesses to view. Thinking the Bill of Sale has serious best evidence problems seeing as the actual agreement is missing and all identifying information has been redacted. Very untrust worthy, and clearly not an exact copy of the agreement. Same goes for most of the other "assignment" docs, ones that haven't already been precluded anyhow. 

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IF they bring a witness.  Most often they don't.

 

If they do, ask if the witness has ever read the forward flow.  Most often they haven't.  That means that the witness has not seen the entire list of accounts transferred.  So the witness doesn't know that your account was transferred.  He/She was just told that it was or assumes that it was.  Neither is competent testimony.

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