HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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... The alleged Assignment and Bill of Sale is dated April 19, 2012.

... The alleged Affidavit of Sale of Individual Account is dated March 21, 2013.

... The alleged date of sale is "On or about April 16, 2012."

... The Complaint was filed on February 4, 2013 and served with the Summons on February 9, 2013.

 

if these documents weren't prepared for the purposes of litigation and not in the course of regular business, I don't know what is. Wow.

 

All those docs are hearsay without a specific witness to verify, but, you have to OBJECT!

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I could be wrong so please domeone correct if this is incorrect info, but, the extention of time is usually when responding to something and the statute that dictates the procedure will reference the time line shall adhere to CCP 1013.  So I think these MIL and brief deadlines your talking about do not require any additional time. 

 

Again, if you can get intouch with that specific judge's clerk, they will know what they want regarding MILs.

 

rt

 

 

Pretty much:

 

1013.  (a) In case of service by mail, the notice or other paper

shall be deposited in a post office, mailbox, subpost office,

substation, or mail chute, or other like facility regularly

maintained by the United States Postal Service, in a sealed envelope,

with postage paid, addressed to the person on whom it is to be

served, at the office address as last given by that person on any

document filed in the cause and served on the party making service by

mail; otherwise at that party's place of residence. Service is

complete at the time of the deposit, but any period of notice and any

right or duty to do any act or make any response within any period

or on a date certain after service of the document, which time period

or date is prescribed by statute or rule of court, shall be extended

five calendar days, upon service by mail, if the place of address

and the place of mailing is within the State of California, 10

calendar days if either the place of mailing or the place of address

is outside the State of California but within the United States, and

20 calendar days if either the place of mailing or the place of

address is outside the United States, but the extension shall not

apply to extend the time for filing notice of intention to move for

new trial, notice of intention to move to vacate judgment pursuant to

Section 663a, or notice of appeal. This extension applies in the

absence of a specific exception provided for by this section or other

statute or rule of court.

 

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By U.S. Mail, I served the CCP 96 (Request for Statement of Witnesses and Evidence) on May 8, 2013.  That would put their service by mail of a response to May 28, 2013. It seems to take about 5 days for mail to arrive here from Woodland Hills. That means I would look to see Plaintiff's response in my mailbox around June 2, 2013.

 

However, if the CCP 98 must be served 30 days before trial, then Plaintiff must get that out by 05/14/13 and I should see that by 05/19/13. If I understand what that is correctly, that should tell me who i need to subpoena and where to find them.

 

I roughed out a Motion in Limine today, but of course I will have to revise it on the basis of the CCP 98, whenever that arrives.  Also, although much of the motion in limine I used as a template has the same arguments, there are variations to circumstance as to what I expect Plaintiff to submit for trial based on their RFP responses. For instance, they claimed in their RFP to be producing a Card Member Agreement (unsigned but alleged to be commonly in use at the time of my alleged account), and "the Credit Application." To date, they have produced neither, and their RFP response did not clarify whether or not they claim to be presenting a "signed" credit card application or not. I don't have arguments prepared to insert into the motion in limine as yet for either instance.

 

I'd attach a copy of the rough draft, but I don't see how to do that here.

 

My head is swimming. They better pay me for this. :-P;)

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haha thats what i thought, those motions in limine can be a tough booger.  I still don't think mine was formatted the best, but I think it will work.  You are doing great, your going to bet this!

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In my case Midland sent a CCP § 98 affidavit in lieu of testimony from Kayla Haag.  My trial date was on the 30th & I received the affidavit on the 1st. I can tell the judge didn't like that I received it 29 days before trial. He repeated it several times. She will not be at any address they give you.

 

I had a process server attempt service 19 days before trial at the San Diego address she gave. They told process server she works out of Minnesota office. During my Motion in Limine they tried to say it could've been left it In Care Of. I responded with it is not a summons it is a subpoena and CCP § 1987 clearly states it must be served to witness personally not left in care of.

 

I filled out form SUBP-001 and took it to the court clerk & they stamped my subpoena with a date of issue, then I emailed it to process server in San Diego to serve it. I'm in LA County and cost was $60.00. He mailed back a report for court. I could not file the POS because she was not served but I used his report as an exhibit in my declaration in support of my Motion In Limine. Between her not being there for service & her not showing up at court it killed all of their evidence.

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Something else to keep in mind:

 

Plaintiff's response to my CCP 96 request was two (2) days late and I got a dismissal WITH prejudice out of the deal.  Plaintiff can not be late with their response, it says so right in the statute!

 

rt

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All good to hear.  Thanks so much. I very much appreciate the support.

 

I have finished a draft of the motion in limine based on the documents produced during discovery (and will tweak it obviously when the CCP 98 arrives).

 

I think the motion is killer.

 

Time to draft a declaration

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I now have a draft of:

 

Motion in Limine

Declaration of Defendant in Support of Motion in Limine

Defendant's Trial Brief

 

Tomorrow, I will work on tracking down the paperwork to create the anticipated subpoena, and I will began drafting the Declaration to accompany the Trial Brief.

 

Plaintiff is seeking attorney's fees and costs and damages if it wins.

 

Am I entitled to the same as Defendant if I win?  I've spent weeks and weeks and weeks on this thing.  Literally, it has been full-time (not even including the hours of worry and thinking about the case.) Can I request payment for my time as my own attorney?

 

I don't know what to put down for costs and fees and am looking for a figure.

 

I'm still waiting on the CCP 98 from Plaintiff so I can finalize my docs.  When I do, is there someone who can review them for the arguments presented?  I've had to come up with several things on my own.

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I now have a draft of:

 

Motion in Limine

Declaration of Defendant in Support of Motion in Limine

Defendant's Trial Brief

 

Tomorrow, I will work on tracking down the paperwork to create the anticipated subpoena, and I will began drafting the Declaration to accompany the Trial Brief.

 

Plaintiff is seeking attorney's fees and costs and damages if it wins.

 

Am I entitled to the same as Defendant if I win?  I've spent weeks and weeks and weeks on this thing.  Literally, it has been full-time (not even including the hours of worry and thinking about the case.) Can I request payment for my time as my own attorney?

 

I don't know what to put down for costs and fees and am looking for a figure.

 

I'm still waiting on the CCP 98 from Plaintiff so I can finalize my docs.  When I do, is there someone who can review them for the arguments presented?  I've had to come up with several things on my own.

No you can only claim fees.

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Wow that seriously sucks.

 

Okay, 5 minutes ago I got the "Declaration Under Penalty of Perjury Pursuant to CCP Section 98 in lieu of direct Testimony and Authenticating Documentary Evidence" of plaintiff's authorized agent, Magic West.

 

The paragraph regarding service reads:

 

"I am currently located in Denver, Colorado. Therefore, I authorize service to be accepted on my behalf within a reasonable period of time prior to trial in order to allow for necessary travel. Service will be accepted on my behalf at the office of Plaintiff's attorney located at Mandarich Law Group, LLP, 6301 Owensmouth Avenue, Suite 850, Woodland Hills, California 91367, which is within 150 miles of the place of travel."

 

Does that conform to CCP 98?  According to 2 sources on the web, the place of service and the court are 154 miles apart.

 

And by declarant's own words, declarant is NOT available for PERSONAL service within 150 miles of the court. (as Denver is about 1,024 miles away and no address is given there anyway.

 

What do I do?  Should I subpoena Magic West at the Plaintiff's offices?  If so, is there anyone near Woodland Hills who can do the service? If not, what do I do?

 

Also, in discovery, Plaintiff submitted an Affidavit of Sale of Individual Account dated a month AFTER service of their Summons and Complaint. Obviously, it was a work created for litigation, and I guess Magic caught on to that as he/she didn't submit with his/her declaration. I guess Plaintiff is not going to submit that Affidavit at trial, but I don't know whether that is true or not. However, should I enter it into evidence anyway to demonstrate Plaintiff's attempt to intimidate and proffer invalid evidence?

 

Also, attached to the declaration are several documents never produced before in discovery.

 

This includes an "Acceptance Certificate" signed by me it seems, but there is no information on it as to who I am purported to be accepting from or what, and someone has scribbled the account number of the credit card alleged on the side of the document.

 

Also, attached and never produced before is a "cardholder member agreement reflecting the terms and conditions binding the defendant," and an assertion that "use of the credit card constitutes acceptance of the cardholder agreement and assent to be bound by the stated conditions." However, there is no documentation purporting that such an agreement was ever sent to me or that I consented to use of the credit card as constituting agreement to the agreement.

 

The Declaration in Lieu includes Account Statements for a year, which do not begin with a $0.00 balance and show no transactions other than 2 payments with no verification of any kind from the alleged Original Creditor.

 

Also included is a "Charge Off" Statement which does not state it is a final statement or charge off statement or account stated and which shows a minimum monthly payment due. It does note that "Your account is currently closed" but there is nothing else to indicate "account stated" or defendant's agreement to such.

 

The Declaration in Lieu also includes not one but two (2) Assignment and Bill of Sale, neither verified or sworn to under penalty of perjury by the alleged assignor. One is for "Receivables described in the Agreement and in Exhibit A attached hereto" but no Agreement is attached; the other is for "each and every one of the Accounts described in the Agreement and in Exhibit A attached hereto" but no agreement is attached at all.

 

The first Bill of Sale lists Seller as HSBC Receivables Acquisition Company I, HSBC Receivables Acquisition Corporation (USA) III, and HSBC Receivables Acquisition Corporation (USA) IV. The second lists Seller as HSBC Bank Nevada, N.A. and HSBC Bank USA, N.A. However, the alleged "Original Creditor" is HSBC Bank Nevada, N.A. & Its Affiliates.

 

The two Bills of Sale are attached back to back as one exhibit to the Declaration in Lieu of Testimony and have one (1) Exhibit A attached behind them with no indication as to which Bill of Sale or both or neither that the Exhibit A is supposed to correspond. The Exhibit is referred to as a "Redacted Loan Schedule" by the declarant of the Declaration in Lieu but there is nothing on the Exhibit itself giving it any such title or any other title and it is split into 3 separate pages seeming with information that is to be read in a continuous line from one page to the next with an alleged balance on the third page but no information on that page to show it matches with the account number or name or address given on the other pages.

 

So, what is my next step?  :)

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THe declaration does not conform to CCP 98 because it does not give a current address of the affiant and the affiant is not available for service at that address.  4 miles doesn't get me too excited.

 

It would still be best to attempt to serve the witness and then leave it with whomever accepts it.  If you do not have any friends there, maybe someone on the board will help.  If not, you still have the above arguments.

 

Love the fact that the account statements show only payments.  What are you being asked to pay for?

 

Most interesting thisg is the following:  The first Bill of Sale lists Seller as HSBC Receivables Acquisition Company I, HSBC Receivables Acquisition Corporation (USA) III, and HSBC Receivables Acquisition Corporation (USA) IV. The second lists Seller as HSBC Bank Nevada, N.A. and HSBC Bank USA, N.A. However, the alleged "Original Creditor" is HSBC Bank Nevada, N.A. & Its Affiliates.

 

That would be nice cross examination for Magic West.  Show him the complaint where it identifies the original creditor.  THen ask him how the chain of title could possibly begin with someone else.  FInally, what is the exact name of the plaintiff as listed in the complaint.  Is it HSBC Bank USA, N.A?  If not, we do not have the correct plaintiff or are we are missing an assignment.

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Just discovered there is a bar code in the bottom right corner of the alleged Cardmember Agreement on 3 of the 5 pages (the other 2 pages are missing bar code) and there are numbers below the code of "5458009003004048."  That is a credit account number.  That number does not match the account number in the Complaint or on any other document produced (including Account Statements, Charge Off Statement, or "Redacted Loan Schedule" supposed to indicate the "Account" transferred to the Plaintiff.)

 

There is no language in the alleged Agreement to indicate use of the credit card constitutes acceptance of the terms and conditions of the agreement. There is no notice whatsoever thereto.

 

No entity (including me) is named in the alleged Cardmember Agreement by specific name other than HSBC Bank Nevada, N.A. (NOT HSBC Bank Nevada, N.A.& Its Affiliates or any of the parties named in the first Assignment and Bill of Sale or 1 of the 2 parties in the second Assignment and Bill of Sale.)

 

The Acceptance Certificate not only does not indicate who or what is being accepted, but it also does not even reference the alleged Agreement or contain any language referencing a credit card or loan.

 

Some unidentified third party has handwritten an account number matching the number on the account statements and charge off statement on the blank side of the photocopy of the alleged Acceptance Certificate. Those numbers are not signed off on or initialed by anyone, let alone by me.

 

I see no Contract to be breached.  I'm seeing no Chain of Title. I'm seeing no Account Stated. This case is crap.

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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.

If you have car insurance they will often notarize for free. State Farm does it if you have it with them!

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I am preparing Instructions to the Sheriff for service of the subpoena.

 

There is a character maximum to the instructions space, so I can't add more.  Does this sound right?

 

"Witness is  required to be at address and available for PERSONAL service for 20 days up to trial (on 06/13/13). However, per witness' own admission, witness is NOT at the address and is in Denver. Diligent efforts must be made for personal service, then please perform Substitute Service, mail copy of subpoena to witness, and obtain name of person accepting the Subpoena and note attempts made for personal service and name of individual accepting substitute service."

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Plaintiff produced certain documents in their Response to RFP that they have NOT produced in their CCP 98 response.

 

Should I argue against the admissibility of these documents as evidence at trial in my motion in limine?

 

I particularly ask because plaintiff submitted an "Affidavit of Individual Sale of Account," sworn to in Delaware (not in California where the case is to be heard), and dated and prepared a solid year after the purported sale and assignment of the account and a month AFTER filing the underlying lawsuit. It is a document clearly intended to intimidate the defense and is a clear violation of Evidence Code, as it is clearly specifically prepared for litigation and in the course of regular business.

 

I'd like to quash everything they have submitted.  I still have not received their response to the CCP 96. I think I'll keep these references in the motion until I get the CCP 96 response.

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I am preparing Instructions to the Sheriff for service of the subpoena.

 

There is a character maximum to the instructions space, so I can't add more.  Does this sound right?

 

"Witness is  required to be at address and available for PERSONAL service for 20 days prior to trial. However, per witness' own admission, witness is NOT at the address and is in Denver. Diligent efforts must be made for personal service. If personal service is not possible, please leave subpoena “in care of” at the law office of JDBAttorney LLC. and obtain name of person accepting the substitute service and note attempts made for personal service.

 

 

 

 

I would suggest the changes made above for instructions.  If I've missed anything, I'm sure someone will chime in.

 

Good Luck,

 

rt

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I just received a message from a woman not named as an attorney in the case and calling from an outside entity in Santa Ana (not Woodland Hills where Plaintiff's attorneys are) claiming to be working with Mandarich Law Group and calling on a conversation recorded line in an attempt to settle a case.

 

Is this legitimate?

 

Should I even call her back?  I have no intention of settling anyway, and even if I did I have nothing to offer.

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Don't be unreasonable. You ARE willing to settle. You will settle for a dismissal or (preferable) a dismissal with prejudice.

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I received a "Request for Statement of Witnesses and Evidence" dated 05/06/13 requesting a response within 20 days.

 

Do I need to reply to this?

 

I have subpoenaed Magic West, who is Plaintiff's witness and signee of the Declaration in Lieu of Testimony.

 

Do I need to name him?

 

The documents I would argue on are those which Plaintiff has produced in its Declaration in Lieu. Do I need to name those?

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I'd only settle for Dismissal WITH prejudice and removal of all trade lines from my credit report.  I really don't want to eat the costs.  When you have $0 in the bank and no income and are reliant on food stamps and loans from your family, there is no margin for additional expenditure.

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I received a "Request for Statement of Witnesses and Evidence" dated 05/06/13 requesting a response within 20 days.

 

Do I need to reply to this?

 

I have subpoenaed Magic West, who is Plaintiff's witness and signee of the Declaration in Lieu of Testimony.

 

Do I need to name him?

 

The documents I would argue on are those which Plaintiff has produced in its Declaration in Lieu. Do I need to name those?

With our Case, this is how we replied to Witness List "Defendant has No Witnesses at this time however Defendant reserves the right to call witnesses for impeachment purposes" and We had no Evidence either.

 

They are putting the burden of proof on you and you don't want to provide anything. You requested from them via CCP 96 what they have. As fa r as you're concern you have nothing to prove their case.

 

Btw- This Magic West is their witness not yours. 

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