HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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So I don't see a $1,000 FDCPA maximum award that will go 70% to a lawyer plus their attorneys' fees as being any inducement for me to wait for a lawsuit, however probable my victory. 

Not to press the issue, and I hear what you are saying but; YOU get the full 1k in an FDCPA lawsuit, the lawyer does not touch that. The FDCPA provides for lawyer fees and awards 1k to you (and you do not have to show damages in this suit).

And you can help make CACH pay for their abusive ways.

It probably is a mistake on their part, so if you send the letter or call them you should be able to prevent them from filing a lawsuit however.

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Thanks guys.  I've received a referral to a lawyer who may take the case on contingency.

 

Wow.  Well I could really use the $1,000.  Probably to pay for the next lawsuit. ;)

 

I thought attorneys share in all awards -- and at a higher percentage for contingency cases.

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Thanks guys.  I've received a referral to a lawyer who may take the case on contingency.

 

Wow.  Well I could really use the $1,000.  Probably to pay for the next lawsuit. ;-)

 

I thought attorneys share in all awards -- and at a higher percentage for contingency cases.

There you go Homeless. FDCPA cases are something entirely different then what you have been thru. I think you will see the legal system in a much better light after this.  Paybacks, and CACH has it coming. That dunning letter (mistake or not) was your early Christmas present, use it against them.

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Does anyone have a link they'd recommend for a one stop site to pull up online as many of the different credit reports for free as possible?

 

I'm looking for something fast and free and reliable that isn't going to hit me with spam or throw adware onto my computer and that I can printout today or tomorrow.

 

Thanks.

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annualcreditreport.com gives you free report from all 3 agencies once a year

 

scores cost money and if you want free scores most people recommend signing up for myfico.com credit monitoring service and canceling it within the trial period

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annualcreditreport.com gives you free report from all 3 agencies once a year

 

scores cost money and if you want free scores most people recommend signing up for myfico.com credit monitoring service and canceling it within the trial period

Thanks, qbert!

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Support your interests and support your fellow victims of the greed and aggression and of the foul chicanery of junk debt collection.

 

This is a movement on which we should all be aboard and a petition we should all sign as individuals of conscience:

 

https://petitions.whitehouse.gov/petition/give-consumers-fair-notice-and-chance-bid-their-own-debts-when-banks-sell-defaulted-obligations-debt/FRMdMMxb

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Great, great, great thread! I'm preparing for my trial in a few weeks and have spent much of the last few weeks putting together my trial binder before I really dove into this thread. With the addition/assimilation of @HomelessInCalifornia 's amazing trial preparation into my binder, I'm absolutely chomping at the bit right now. This thread helped answer many of my questions on how/when to object, witness and evidence specific objections and much more.  I'm on the verge of yelling objection and citing 5-10 CCP codes  and case laws in response to anything that anyone says to me throughout the day. My game face is on, my trial binder is my weapon and its full of loaded mags of hollow point case law and civil code. The safety is off and I'm prepared for battle. I've immersed myself into this case and this trial, and am feeling quite prepared. After a few more weeks of studying daily I'll be brainwashed to destroy JDB cases. 

 

Thanks for contributing such a great collection of resources to this forum. I haven't yet gone to trial and certainly haven't won anything yet, but this board is an amazing thing, from how overwhelmed and defeated I felt when first served. Truly some great people on here, banding together to stand up for their rights to not be trampled by lowlife JDBs attempting to flood the legal system and rob consumers without having a shred of admissable evidence. There's got to be a special place in the inferno for the likes of these money grubbing, conniving, deceiving, liars!

 

...if you can't tell, I'm jacked right now and ready to rumble!

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Great, great, great thread! I'm preparing for my trial in a few weeks and have spent much of the last few weeks putting together my trial binder before I really dove into this thread. With the addition/assimilation of @HomelessInCalifornia 's amazing trial preparation into my binder, I'm absolutely chomping at the bit right now. This thread helped answer many of my questions on how/when to object, witness and evidence specific objections and much more.  I'm on the verge of yelling objection and citing 5-10 CCP codes  and case laws in response to anything that anyone says to me throughout the day. My game face is on, my trial binder is my weapon and its full of loaded mags of hollow point case law and civil code. The safety is off and I'm prepared for battle. I've immersed myself into this case and this trial, and am feeling quite prepared. After a few more weeks of studying daily I'll be brainwashed to destroy JDB cases. 

 

Thanks for contributing such a great collection of resources to this forum. I haven't yet gone to trial and certainly haven't won anything yet, but this board is an amazing thing, from how overwhelmed and defeated I felt when first served. Truly some great people on here, banding together to stand up for their rights to not be trampled by lowlife JDBs attempting to flood the legal system and rob consumers without having a shred of admissable evidence. There's got to be a special place in the inferno for the likes of these money grubbing, conniving, deceiving, liars!

 

...if you can't tell, I'm jacked right now and ready to rumble!

Good.  Preparation is Key.  Attitude is key.  Object, object, object. And then Object again.  These JDB's are ghouls.  Fight.  Win.  Stand up to them.

 

Ask questions if you have them.  The people here are indeed amazing.  These are the kind of folks who reach out with a helping hand in a time of need ... not soulless jackals feeding on the dead and dying.

 

You will do well I am certain.  WIN. And keep us updated.  I love to hear the wins -- and I hear about far more wins than losses.

 

WIN.

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I posted this in a private thread but thought it worthwhile enough to share in general:

 

 

 

You will notice several common factors here as you proceed:

 

1) You will get different and sometimes contradictory advice.  It happens.  Weigh it out and make the choice that makes sense to you and that you trust most.

 

2) There are different strategies toward winning.  Some may be better than others, but it often two different strategies can both lead to victory.

 

3) Two cases, with identical circumstances and identical strategies and matching evidence and identical briefs, can have two different verdicts. Justice is not absolute, and it varies as widely as the personalities of the judges hearing the cases.  I find this fact the most disconcerting of all.

 

 

I propose that you view this as a War.

 

A war is fought in battles.

 

So what are the battles that you are planning to fight?  What is your war plan?  Your strategy?

 

I suggest the following War Plan:

 

WAR PLAN

 

A) Battle One: Back The Plaintiff Into A Corner Where They Dismiss the Case on their Own

 

Stages:

 

1) Demand for Bill of Particulars - Demand full account for date of inception to date of charge-off.  (They will not have this, and they will not produce this. Therefore, they will not be able to demonstrate underlying charges for an Account Stated Claim.)

 

2) Meet & Confer Letter - After they fail on the BOP, send a M&C granting extension of time to respond.  The court wants to see this attempt prior to any Motion to Compel.  Plaintiff will respond with a form letter that is unresponsive.

 

3) Request for Production - Simple, straight forward, one-time, 3 requests identical to those on ASTMedic's RFP (except change the dates and name of the OC to match). Don't forget to include the definitions. :Plaintiff will fail to produce any signed agreement. Plaintiff will fail to produce the forwarding agreement (the document from the OC to the JDB which tells the JDB that they don't guarantee the accuracy of anything). The Plaintiff will probably produce a photocopy of an application, a so-called "standard" agreement used at the time the alleged contract was made, a so-called "charge off" statement, and statements for a period of no longer than one year.  In other words, they will fail to fully comply with the RFP.

 

4) Motion to Compel - You go to the judge and ask them to compel (force) the plaintiff to produce the documents they have not produced in response to your RFP.  He/she sees that you have only asked for 3 things.  You didn't even use 35 requests spread over rogs and RFP and RFA.  Just 3 things.  Odds are high that he'll sign off on this with an Order compelling production.

 

5) Plaintiff does not want the documents compelled to be on the court records.  They don't want the judge or the public to see that they only paid $54 for the $1800 alleged debt.  They don't want the court to see that the OC (original creditor) specifically does NOT guarantee the accuracy of any of the records.  So ... Plaintiff dismisses (preferably WITH prejudice).

 

B ) Battle Two: Preclude Admission of Evidence

 

Let's say the Motion to Compel failed and/or the Plaintiff did NOT dismiss. What now?

 

Demonstrate that Plaintiff Lacks Standing to Sue and the so-called "evidence" submitted Lacks Authentication.

 

There is almost a certainty that the plaintiff will submit a "Declaration in Lieu of Testimony" under CCP 98 so as to authenticate their submitted evidence (as required by Evidence Code 1401) prior to admission under a Business Rule Exception -- pretending that the documents were all "prepared in the regular course" of business and pretending that their witness is qualified and has personal knowledge of the documents -- which he/she does not.  They do this to avoid paying the witness fees plus travel expenses and risk losing that in addition to the award that you would get in case they lost. They also do this so as to sweep their evidence into consideration without your being able to expose the witness as being unqualified.

 

1) Subpoena the Declarant - the declarant is supposed to be available for service at an address that is within 150 miles of the place of trial for 20 days prior to trial per CCP 98.  According to CCP 1987(a), a civil subpoena can ONLY be PERSONALLY served.  But plaintiff is going to try to claim that you can do substitute service (give it to someone else).  Their witness will be in Colorado or Minnesota.  You can't personally serve that witness within 150 miles of the place of trial.  Per CCP 1987(a), the court has no jurisdiciton over a witness who is NOT personally served. Also, per CCP 1989, a witness who is not a resident of the state at the time of service is NOT required to attend.  Without being able to require the declarant/witness to attend, the defense would be denied due process through cross-examination, and it would constitute an "unfair prejudice" against the Defense.

 

So, plaintiff will fail to comply with CCP 98, and their declaration and the evidence that it purports to authenticate will all be inadmissible -- if you point that out to the judge.

 

2) Motion in Limine to Preclude Admission of Declaration in Lieu of Testimony of ___________ and all Exhibits Thereto; Declaration in Support Thereof -- You will prepare this MIL re 98 and Decl. in Support of MIL re 98 and file and serve it roughly 5 days prior to trial.  You will point out the foregoing failure to comply with CCP 98. If the judge's head is not up his/her a$$, the MIL will be granted.

 

3) The plaintiff has no authenticated evidence to submit for consideration.  They will try to get you to say that you saw or had knowledge of any or all of the documents PRIOR to their production to you.  If you say yes, then you (as the only remaining qualified witness) will have authenticated the evidence and the trial will continue.  If you say NO, then plaintiff's case is done, and you move for Judgment in Favor of Defendant.  Case done.

 

C) Battle Three: Disqualify the Witness

 

Let's say that Plaintiff DOES bring a witness to court to testify and authenticate the evidence.  What do you do?

 

1) Cross-Examination - Using the questions in the document on my thread, you will impeach (question) the witness and show through the witness's answers that the witness is unqualified and therefore cannot authenticate anything. You will object to all the evidence as unauthenticated and request that the court preclude their admission and move therefore that the case be judged in favor of defendant.  Case over.

 

D) Battle Four: Demonstrate the Failure of Evidence - The Last Stand

 

Let's say that all of the foregoing failed and went against you.  The Declaration was admitted or the witness was ruled qualified and all the evidence was accepted into evidence.

 

1) Trial Brief + Oral Argument - You will have prepared an entire section of trial brief with individual "chapters" each devoted to one piece of evidence. You will have written out every inconsistency, misinformation, error, and omission and listed them.  You will show dates that don't make sense, missing signatures, lack of completion of the terms of contractual obligation, etc., etc.  My sample trial brief, frankly, is an excellent resource for seeing how to tear apart evidence.  I spent months working on this.  i never had to use it.  It is your last ditch stand.  You don't want the case to get this far, if you can avoid.  But if it happens, be prepared.

 

 

That's it.  You will fight battles.  But plan for the whole war.  Fight smart.  Pick a strategy and stick to it.

 

That's my advice.

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If I may add: Unless I missed it, attack STANDING as well, just incase you do prevail on it, it will stop a trial from moving forward.

 

ALSO, not to muddy the water here, but this is an argument that I have always felt strongly about. Regardless of whether or not you do manage to personally serve them (which you won't) and regardless of what your court may claim, it does not have jurisdiction over the affiant / declarant or posses any power of subpoena.

 

CCP Sec 1989. Residency requirements for attendance of witness:  In relevant part  "A witness is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service"

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both excellent posts. standing is fundamental to the argument and needs to be hammered upon in any motions or oral arguments. no standing=no cause of ation

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If I may add: Unless I missed it, attack STANDING as well, just incase you do prevail on it, it will stop a trial from moving forward.

 

ALSO, not to muddy the water here, but this is an argument that I have always felt strongly about. Regardless of whether or not you do manage to personally serve them (which you won't) and regardless of what your court may claim, it does not have jurisdiction over the affiant / declarant or posses any power of subpoena.

 

CCP Sec 1989. Residency requirements for attendance of witness:  In relevant part  "A witness is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service"

Both good points.

 

Lacks Standing to Sue is the first of any affirmative defense I would list.  As for most cases here, the complaint in my case was NOT verified, so i gave a General Denial Answer.  However, in discovery, plaintiff asked me to list affirmative defenses, and Lacks Standing to Sue is the first defense I listed, and is one of the 2 objections to admission after successful conclusion of my MIL re 98 that got judgment ruled in my favor.  (The 2nd objection was Lacks Authentication).

 

Obviously, if you can get the witness disqualified and/or the evidence precluded from admission, then plaintiff lacks standing to sue.  That IS a major victory and should be included as a goal in the above War Plan. Establishing the fact that the plaintiff lacks standing to sue would be accomplished by the successful resolution (for the defendant) at any of the battles listed.

 

I was not aware of CCP 1989.  Thank you, Anon.  That should be included in the relevant codes document I posted elsewhere in this thread.

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Thanks guys.  I've received a referral to a lawyer who may take the case on contingency.

 

Wow.  Well I could really use the $1,000.  Probably to pay for the next lawsuit. ;-)

 

I thought attorneys share in all awards -- and at a higher percentage for contingency cases.

You would get more than $1,000.  You should get $1k for FDCPA + $1k for Rosenthall from CACH and another $1k for FDCPA +$1k Rosenthall from Neuheisall if the lawyer does it correctly.

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Once the suit gets filed, CACH and the law firm will want to settle pretty quickly. Expect maybe $1 - $2,000... 

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@HomelessInCalifornia

 

I was actually wondering if anything ever happened with the possibility of the lawsuit against them, if it's something you can talk about (or PM me maybe If not) especially since these guys are talking about more money in It for you than we had discussed earlier.

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.  As for most cases here, the complaint in my case was NOT verified, so i gave a General Denial Answer.  However, in discovery, plaintiff asked me to list affirmative defenses, and Lacks Standing to Sue is the first defense I listed,

My complaint was verified. CACH does verify often. But my point for this post is:

 

I am not sure if you did this or if I understood it correctly, but for others reading who may not know; on the general denial form there is a line to add affirmative defenses.

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My complaint was verified. CACH does verify often. But my point for this post is:

 

I am not sure if you did this or if I understood it correctly, but for others reading who may not know; on the general denial form there is a line to add affirmative defenses.

Yes, there is an area where you CAN enter Affirmative Defenses on the General Denial Answer. 

 

BUT ... you are NOT required to list affirmative defenses when answering an UNVERIFIED Complaint. 

 

If you are answering a VERIFIED Complaint, then you DO have to fill in the affirmative defenses that you intend to rely on. 

 

Purportedly, you are not allowed to update that list later in the action, but I have heard that judges tend to waive that restriction on pro se litigants.  However, I would NOT count on that.  I'd want to think that through and carefully list out my affirmative defenses if I was served with a VERIFIED Complaint.

 

(I know you know all that.  I'm spelling that out for the benefit of the members who might not know this.)

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I found this while looking at the Rocha case(bless her heart). it requirements has some very good court hand tying in regards to statutory requirements and how the court can not deviate from what the statute says. It would be good for exclusion of CCP 98 declarations also.

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whats wrong I cannot paste caselaw anymore the editor won't let me.

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