HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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I think a notary is $10.  If I'm not mistaken you can sign in front of the clerk.  Can someone answer this for him?  I would do it right away.  I did it a month before trial.

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Just cought up on the thread.  Looks like you got great advice.  Please DO NOT FORGET the Sworn Denial!!!  That along with the CCP96 will help you win.In my case they never responded to the CCP96 and asked for dismissal with prejudice after the sworn denial and I subpoenaed their only witness.  You will win this thing!!!

 

 

A sworn denial is not something that is typically done in California.  You might file a verified answer to the complaint but only if you are required to under the code.  You also might say some of these things in a declaration to oppose summary judgment but obviously only if the statements were true.

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Ah, I see. It looks like Aticnib did a Sworn Denial in Orange County, California, which is just the next county over from me.

 

Although it is not typically done in California, Is it inadmissible? Is there a reason NOT to do it?

 

I just got confirmation that there is a notary near me who can do it for $10, and I borrowed the cash for it. I am prepared to run out tomorrow and get it signed off and mailed, if it would be useful.

 

Thanks.

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Is there a link anywhere of CALIFORNIA case law applicable to debt collection/junk debt buyer cases with a breakdown as to what objection or line of argument specific to each case and an applicable quote from the case?

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Please DO the Sworn Denial.  According to a paralegal, this, along with subpoeana'ing the hag, is what won my case for me.  The Sworn Denial makes them HAVE to present a live witness.  The subpoena is your way of letting them know that. 

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Ah, thank you.  I will do it tomorrow.

 

The only potential witnesses plaintiff has named are witnesses to testify about plaintiff's business practices (but not the business practices of the "original creditor"). They claim any of the plaintiff's attorneys can also testify about plaintiff's business practices. I don't see subpoenaing any of them as relevant, so what "witness" would I subpoena?

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the one named in the ccp98, the one they plan on calling.  They have to name a witness, not just "an associate" like the attorney in my case lol.  Your ccp96 will give you all evidence they can use, any other witness will be listed in that. You would't have to subpoena them if they do not have an affidavdt, but you can and should state an objection if they do that.    The ccp98 is the affidavdt in lieu of testmony--that is the one you subpoena.

 

Just wait and see what they send, and then you will know how to respond.

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Please DO the Sworn Denial.  According to a paralegal, this, along with subpoeana'ing the hag, is what won my case for me.  The Sworn Denial makes them HAVE to present a live witness.  The subpoena is your way of letting them know that. 

 

 

Serving a subpoena on the witness is what won your case.  It is the subpoena that forces plaintiff to bring a live witness.  The subpoena is an order of the Court punishable by contempt for non-compliance.

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Ah, Plaintiff has not supplied their CCP 98 as yet. Thank you, Shellieh98. I'll wait for that.

 

I read the Local Rules today for the Riverside County Superior Court of California.  Zzzzz.  it wasn't very helpful, but it did mention "Tentative Rulings" and a need to give a "Notice of Intent to Appear" (by phone or note) by 4:00 of the day before "the scheduled hearing."  They also give a link (which doesn't go directly to the correct page) where the court posts tentative rulings. If both parties do not give notice in time, the tentative ruling becomes the permanent ruling. However, I have 2 concerns:  1) There are 3 departments for the court listed on the tentative rulings page and NONE of them are the department where my case is being heard; and 2) does the rule apply only to "hearings" or does it also apply to trial?  Just in case it's necessary, I have scheduled on my calendar to call Plaintiff's Attorneys' office on the day before the trial before 4:00 just in case, and I guess I would have to call the Clerk's office?  Or do I need to call and speak to someone in the actual department where the trial is to be held? Or do I have to call at all?

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Ah, Plaintiff has not supplied their CCP 98 as yet. Thank you, Shellieh98. I'll wait for that.

 

I read the Local Rules today for the Riverside County Superior Court of California.  Zzzzz.  it wasn't very helpful, but it did mention "Tentative Rulings" and a need to give a "Notice of Intent to Appear" (by phone or note) by 4:00 of the day before "the scheduled hearing."  They also give a link (which doesn't go directly to the correct page) where the court posts tentative rulings. If both parties do not give notice in time, the tentative ruling becomes the permanent ruling. However, I have 2 concerns:  1) There are 3 departments for the court listed on the tentative rulings page and NONE of them are the department where my case is being heard; and 2) does the rule apply only to "hearings" or does it also apply to trial?  Just in case it's necessary, I have scheduled on my calendar to call Plaintiff's Attorneys' office on the day before the trial before 4:00 just in case, and I guess I would have to call the Clerk's office?  Or do I need to call and speak to someone in the actual department where the trial is to be held? Or do I have to call at all?

 

 

Tentative rulings are for motions not for trial.  It should say that in the rule itself.

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At the court houe that handled my trials, they did not do tentative rulings for limited civil.  That could be the reason your dept is not listed.  But as Calawyer said, it really doen't matter because you are going to trial.

 

I would highly recommend listening to Calawyer as he is a practicing consumer attorney and does this stuff all the time.  As I recall, Anticnib, following that paralegals advice almost got you in a pickle, at least that is what I remember from reading your thread.  Although I could be mistaken about that.

 

As always, good luck,

 

rt

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Ick. 5 days more eh? Thanks for the heads up, Calawyer. That means their response to the CCP 96 isn't due till 06/02, and so I'm not likely to see it before 06/07.  Trial is 06/13.  Not a big window there in which to respond and prepare. 

 

Thanks, Aticnib, I'll look for your thread. I would be very grateful for proofreading assistance. Right now, I think I'm in a research period. Until Plaintiff responds to the Demand for BOP and the CCP 96 and produces a CCP 98 doc, I am in a holding pattern for document preparation I think.

 

Although, I know at some point I'll probably have to prepare a Trial Brief, a Motion for Dismissal, a Proposed Order for Dismissal, and a Motion for Costs prior to trial. I just don't know what to do about any of that as yet.

 

Thanks, Seadragon. I am digging through your links now. I don't know the significance of the case cites in reference to my lawsuit or how to look them up.

 

So far, the most pertinent/intriguing bits of case law I have seen (other than violations of CCP Section 98) are:

 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT (Appeal from the Circuit Court of Lake County)

VELOCITY INVESTMENTS, LLC,  v. GREGORY ALSTON, Case No. 07--AR—951

Opinion:

JUSTICE JORGENSEN delivered the opinion of the court:

 

(I don't know how to cite this, so please excuse me. It was referenced in a post in one of the forums here and is full of gems)

 

and

 

CACH, LLC v. Lisa Jones, Case No. LCl16247, Superior Court of California, County of San Luis Obispo, 3/12/12 (JUDGMENT FOR DEFENDANT AFTER TRIAL)

In which the judge notes the need for live testimony, and the failure of exclusion under Section 98 if an address for an affiant is not within 150 miles of the place of trial. (I liked this particularly because this is the same Plaintiff pulling the same nonsense.)

 

As far as I can tell, Plaintiff's case is based entirely on hearsay. There is no signed agreement. A copy of a standard, unsigned agreement does not constitute proof that the agreement was entered into. (Need case law supporting here.) There is no application so far, though they have claimed they are producing one. Even if there is an application and they produce it in response to the CCP 96, that does not constitute documentation of agreement or terms and conditions of said agreement. (Need case law supporting here.) An agreement to agree does not constitute agreement; a letter to agree does not constitute agreement. (Need case law supporting here.) Lacking an agreement, there can be no breach of contract. (Need case law supporting here.)

 

The statements they provide are for one year, show no transactions, and they show no statements prior to that one year. it's as if there is an amount claimed coming out of the blue, with no documentation of consideration in exchange for the claimed debt. What's more, there is no evidence submitted at all proving the statements were even mailed. Nor is there any evidence submitted that defendant ever received said statements. Furthermore, even if statements were mailed and received, a monthly billing statement does not provide evidence of terms and conditions agreed to (including as regards interest rates, charges, and fees) and does not provide any evidence of acceptance and/or ratification of any agreement. (Need case law supporting here, but I know I saw something somewhere on this.)

 

I have to look, but I don't think they even have provided a date when the alleged "account" was opened.

 

The only thing they have which provided which is verified or sworn to in front of a notary is an Affidavit of Sales of Individual Account, but they have not provided an address within 150 miles of the place of trial (or any address for that matter) of the individual who signed the affidavit -- and their affidavit was notarized in Vermont so I'm doubting they are anywhere nearby. Under CCP Section 98(a), I believe that affidavit is inadmissible, so Plaintiff has no means of demonstrating it even was transferred ownership of the alleged 'account."

 

The only witnesses they have identified to date at all are witnesses who can testify as to the business practices of the Plaintiff (not the claimed Original Creditor).

 

If I am looking at this correctly, Plaintiff's case is deplorable, and basically at trial I just have to object on the grounds of hearsay/lack of personal knowledge/irrelevance on everything the plaintiff attempts to enter as evidence, then move for Dismissal with Prejudice and request costs and fees. I presume in those costs I can charge for my time acting as my own attorney -- if so it'll be the first money I've made since 2009. Maybe there is a bright lining to all this. What constitutes reasonable costs & fees?

You also cannot cite the California case as it is unpublished. The arguments in the courts order can be used cite what they cite and argue. The out of state case can be cited if no California precedent is available. You have to make a copy of the out of state opinion and lay foundation for it in a declaration Ie: This is a true and complete copy of the opinion fo the ___________________ court reported at <citation> obtained from <place where you got it> and is attached as Exhibit 1 etc. etc.

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Is there a link anywhere of CALIFORNIA case law applicable to debt collection/junk debt buyer cases with a breakdown as to what objection or line of argument specific to each case and an applicable quote from the case?

You can read opinions here: http://lexisnexis.com/clients/CAcourts/ there are a few cases for debt collection but sadly none that have touched on debt collection very much. Read the trial briefs ATICNIB and ASTMedic have posted for all the arguments currently relevant. You best defense is to subpoena the witness PROPERLY and not with a Notice in lieu of yada yada. Those two briefs will get you into the zone for common weaknesses of the debt collection industry.

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Ah, thank you.  I will do it tomorrow.

 

They claim any of the plaintiff's attorneys can also testify about plaintiff's business practices.

They often try this, but the lawyer CANNOT testify, unless you do not object at trial. "OBJECTECTION Council is testifying"...

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Did they send you a package with a Bill of Sale by Original Creditor and an Affidavit of Sale of Account?

 

If they did, it would come with an "Affidavit in Lieu of Testimony"

 

The person who signed this affidavit is the person who works for them who is trying to get away with putting 5 different addresses within 150 miles of place of trial but she lives in Minnesota and the notary will be in Minnesota.  In my case it was Kayla Haag.

 

THIS IS THE PERSON you want to subpoena!!!  This is we mean by CCP98.

 

Calawyer said because I subpoena'd her and there was NO WAY they were going to fly this hag all the way from Minnesota for a few thousand bucks and no evidence, they knew their bluff was called and they filed for dismissal with prejudice.  I highly recommend you subpoena the person who signed the affidavit.  One of the addresses is up here in Upland.  If you get the subpoena and email it to me I will serve it for you on my way home from work next week.  Please do it!!!

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Yes!!!  Following paralegal's advice got me in a pickle!!!  She made me spend time and money filing a Motion to Strike which was idiotic and the clerk wouldn't accept it.

 

Calawyer, helpme and Seadragon got me out of the pickle.  Then when I asked for my money back, the paralegal said I won my case because of the Sworn Denial and the Subpoena.  So basically I paid $572 for a paralegal to give me bad advice and do one subpoena and a 7 line Sworn Denial.

 

BUT.... It's all good now.  As Calawyer said, I won because of the subpoena.  So please do the subpoena.  And I don't know really about the Sworn Denial.  I filed it.  Maybe their lawyer didn't know it meant nothing... Maybe it brought me good luck???  For $10 bucks notary it was worth it.  :D

 

But definitely, DO THE SUBPOENA.  I will serve it to the address in Upland.  That's only 20 minutes from my work. 

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PS:  I'm thinking about what the paralegal told me.  Here is her quote...

 

"You won because we filed notarized Statement of Denial + Subpoena CCP 98 all in proper order.   Statement of Denial is my “Secret Weapon” which should always be filed at the very end.  Sort of like the cherry on top!  Thanks for helping me keep my winning track record."

 

So is this BS or what?

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PS:  I'm thinking about what the paralegal told me.  Here is her quote...

 

"You won because we filed notarized Statement of Denial + Subpoena CCP 98 all in proper order.   Statement of Denial is my “Secret Weapon” which should always be filed at the very end.  Sort of like the cherry on top!  Thanks for helping me keep my winning track record."

 

So is this BS or what?

 

I think it is BS.  From what I've read and been told, is that sworn denial affidavits are not used in California for collection cases.  I filed a notarized sworn affidavit myself on one of my first lawsuits I dealt with and it did not do anything for my case, especially in dismissing it.  Like Calawyer said, it was the CCP 98 and it worked like a charm for me too.

 

I think this paralegal of yours has read the same book I read where I got the idea of the sworn denial affidavit.

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So far, they have not produced any "Affidavit in Lieu of Testimony." So far, I have not seen a "CCP 98" and they have not responded as yet to the Request for BOP or CCP 96.

 

In response to a RFP, they produced an "Affidavit of Sales of Individual Account" (notarized in Delaware) and an unverified/not-notarized "Bill of Sale."

 

If they do produce an Affidavit in Lieu of Testimony, I will definitely take up any offers to perform service of subpoena and be most grateful. If I understand it right, service costs around $100. There is no way I could do afford that or borrow the money for that.

 

I will start looking at the Trial Briefs mentioned. I would like to put together something as robust as Seadragon's Colorado Trial Brief, but tailored obviously to California. I think my bumbling efforts to find supportive case law are going to be the major hurdle.

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Use my trial brief.  It is tailored for California and Midland Funding.  And I WILL SERVE SUBPOENA FOR YOU IN UPLAND if the witness uses the address in Upland as one of the five addresses.  I thought you said you got something that gave five addresses???  Look through your papers.  

 

Seadragon helped me with my brief and I never got to use it.

Trial Brief Sample.doc

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OMG, you all are so amazing. Thank you so much!

 

I just found ACTNIB's thread posting his trial documents for the State of California.  I'll be studying these today.

 

When I can find them, I will study ASTMedic's trial brief/documents.

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