Trial July 1 in CA

[dylar]

Got sued for 5K by Asset Acceptance in CA, alleged OC was BofA, service of complaint was valid, I responded with a general denial including affirmative defenses (SOL, etc). After that AA's lawyer called me to inquire about settling and to meet and confer, to which I, perhaps foolishly, didn't respond. AA filed a CMS, and CMC was cancelled before I filed a CMS and trial was set for July 1. There has been no discovery by me or AA. I served my CCP 96 demand on time just a few days ago and have obviously heard nothing back yet. Haven't received a CCP 98 disclosure yet either but I'm guessing I will in the next few days.

A few questions about my options:

Would it be plausible or cost effective to hire an attorney at this stage?

Based on the great stuff I've researched on these boards it seems like there are 2 plausible ways to defend this, Statute of Limitations, and getting their CCP 98 evidence excluded.

On the SOL, the complaint was filed between 3 and 4 years after the alleged default. Based on research i did here, BofA's contract has a Delaware choice of law provision (ie 3 year SOL), and based on Resurgence Financial v. Chambers the court will likely apply the 3 year SOL to this case, which will win it for me if I can prove it. How do I get the contract into evidence at this point? Will it likely be in AA's CCP 98 disclosures? Can I subpoena BofA for the contract?

Similarly how do I prove the date of default? I'm guessing my credit reports will be hearsay? AA will have to include some statements from BofA in their CCP 98 disclosures, correct? Can I use those, assuming they show the last payment or account closure date? Any other ideas? I'm guessing I may have screwed myself by not asking for these statements in discovery.

On the CCP 98 issues, following Target National Bank v. Rocha, I would subpoena whoever is the affiant on their CCP 98 disclosure, and after personal service on them proves impossible, make a motion in limine on the trial date to exclude all the documentary evidence that they are seeking to have admitted by the offered testimony. Is that correct?

Thanks so much for any help.

[shellieh98]

Do an online search for the cardmember agreement for the year you opened the account, there are many posted online.  That will tell you if they claim a certain state governs the contract.  I don't know where bofa is .  Post what they send you in their ccp96, and the cali guys will help you tear it apart.  Also you will serve their ccp98 witness with a subpoena at the approipriate time.  (when they send you who that is)  If they haven't sent anything yet, you might want to ask them for a Bill of Particulars why you are waiting, if they are suing on open book account, or breach of contract.  gives them more to do, and can only work in your favor if they do not comply.

[homeschool mom]

For further reading to help with your case - read up on Sandra Pacheco - San Mateo county (free online access).

 

All the best to you ...(I wish I had found this site when I was sued by Asset Acceptance thru Fulton Friedman and Gullace).

[dylar]

Do an online search for the cardmember agreement for the year you opened the account, there are many posted online.  That will tell you if they claim a certain state governs the contract.  I don't know where bofa.

Will do, but what I mean is, I'm thinking the judge won't allow me to admit the contract I found on google. How do I get ahold of the real thing?

[Anon Amos]

Got sued for 5K by Asset Acceptance in CA, alleged OC was BofA, service of complaint was valid, I responded with a general denial including affirmative defenses (SOL, etc). After that AA's lawyer called me to inquire about settling and to meet and confer, to which I, perhaps foolishly, didn't respond. AA filed a CMS, and CMC was cancelled before I filed a CMS and trial was set for July 1. There has been no discovery by me or AA. I served my CCP 96 demand on time just a few days ago and have obviously heard nothing back yet. Haven't received a CCP 98 disclosure yet either but I'm guessing I will in the next few days.

A few questions about my options:

Would it be plausible or cost effective to hire an attorney at this stage?

It's possible, I would do that before I settled. but it is possible fight them on your own without a lawyer.

Based on the great stuff I've researched on these boards it seems like there are 2 plausible ways to defend this, Statute of Limitations, and getting their CCP 98 evidence excluded.

 

yes those are both very good and critical to your case, but there are other areas to fight and defend as well.  For one example; you can also attack their standing (legal right to sue you), force them to prove their case.

On the SOL, the complaint was filed between 3 and 4 years after the alleged default. Based on research i did here, BofA's contract has a Delaware choice of law provision (ie 3 year SOL), and based on Resurgence Financial v. Chambers the court will likely apply the 3 year SOL to this case, which will win it for me if I can prove it.

How do I get the contract into evidence at this point?

Ask for it in discovery request for production of documents

Will it likely be in AA's CCP 98 disclosures?

It may not be since it damages them, but why risk it. If it's something you want; then I would go after it and make them produce it. I would always want to make sure that I was the  one controlling the case, and that they were always answering to me. Just my opinion

Can I subpoena BofA for the contract?

You won't have to. Ask for it in discovery. I would do this ASAP because it is very unlikely that they will not motion for summary judgment if you are in discovery, and if they did (and you filed an opposition to it) they would lose.

Similarly how do I prove the date of default?

Ask for a complete accounting for the alleged debt in discovery. From a zero balance to the amount they claim due. You could ask (in a special interrogatory) for the date the alleged account was listed as defaulted.

I'm guessing my credit reports will be hearsay?

That does not always make it inadmissible. Hearsay is inadmissible when it is being used to show the truth of the matter asserted. I would argue that the credit report is being used to show that one of the plaintiff's allegations (that they are suing you within the limits of the SOL) is false; so you are not using the report to attempt to show the truth of a matter, but rather that; the matter is not true. It may be a bit of a stretch, but ultimately it comes down to what the judge will allow.

AA will have to include some statements from BofA in their CCP 98 disclosures, correct?

They don't have to do anything, and it could be that they cannot or will not get them anyway (albeit  unlikely).

Can I use those, assuming they show the last payment or account closure date? Any other ideas?

It's possible, and: discovery RFPOD's

'm guessing I may have screwed myself by not asking for these statements in discovery.

Not yet, and I really hope you don't, it's not to late but I would get on it now if it were mine.

On the CCP 98 issues, following Target National Bank v. Rocha, I would subpoena whoever is the affiant on their CCP 98 disclosure, and after personal service on them proves impossible, make a motion in limine on the trial date to exclude all the documentary evidence that they are seeking to have admitted by the offered testimony. Is that correct?

Correct, although I would think that some people won't subpoena now due to Target, but many will just to be safe. I refused to subpoena them because CA does not have jurisdiction over a citizen of Delaware, and we have a Constitutional right to cross examine an accuser (but I would have never encouraged someone to do that)

Thanks so much for any help.

No problem, there's plenty of it here. Good Luck...

[Anon Amos]

Will do, but what I mean is, I'm thinking the judge won't allow me to admit the contract I found on google. How do I get ahold of the real thing?

 

 

Discovery. Request for production of documents.

[skippy1960]

Will do, but what I mean is, I'm thinking the judge won't allow me to admit the contract I found on google. How do I get ahold of the real thing?

 

Assuming the dates on the Card Agreement on the internet are aligned with the dates of you default, why would you be concerned with getting it from the internet.  I would simply tell the court I was searching my old files in the bedroom and found it.  To the best of my knowledge it is the one I was sent.

 

It isn't as if AA is practicing legitmate request of documents from BOA.  They are taking what ever they have in there files and cobbling together enough information to convince a court you owe money.  They certainly don't have a file from BOA that says here is the cardagreement we sent Dylar in 2008....

[dylar]

Because I waited so long to deal with this I don't think any discovery is possible. The discovery cutoff is 30 days before trial, CCP 2024, which has already passed, so I can't do any discovery without getting permission from AA. That's why I was wondering about subpoenaing BofA for it.

[Seadragon]

Did they file a declaration in lieu of CCP98? If not request the name of any witnesses. If they send a declaration in lieu of then subpoena the witness. and for the record a Bill of Particulars is not subject to the discovery Cutoff. It is a pleading and if they don't respond preclusion.

[skippy1960]

Not trying to say you hit the nail on the head, but you are so correct.  I point this out in the event other new folks are lurking and reading.  Then believe at 30 days prior to trial they can institute a years worth of litigation in 30 days..

 

Enough said on that subject. Based on your post you seemed to have an idea and strategy to be able to Win.  You also have an opponent that is usually fairly light on evidence if you actually make it to trial.

 

You have served your CCP 96 and will see what they send, if you get a cardagreement then you will use theirs, if not you will use the one you found in the bedroom or internet...

 

Here is what you should start working on while waiting for CCP 96 response.

 

1. Trail Brief

2. Motion in Limmine

 

There are a couple of good examples of both floating around in threads, get these and begin to alter them to fit your facts.

 

Your defense strategy or trial brief should go-

 

A.  Motion in Limminee using the Target National Bank v. Rocha case on CCP98 not meeting statute.

B.  Attack Standing to Sue via Bill of Sale from BOA to AA.

C. SOL via the Resurgent Case

 

The reason you want to go in this order is when you use the SOL, you are saying this is my debt, they just waited to long to sue.  Better to knock them out prior to getting to this defense...

 

By the way introduce the Credit Reports as evidence on your side, let them object and show they know when the last payment is...

[Seadragon]

Because I waited so long to deal with this I don't think any discovery is possible. The discovery cutoff is 30 days before trial, CCP 2024, which has already passed, so I can't do any discovery without getting permission from AA. That's why I was wondering about subpoenaing BofA for it.

no time to do out of state subpoena. Don't do that at all. best to get the cardmember agreement for the OTS or FTC and then submit it as a government record which is self authenticating. You are allowed to do that. Read ASTmedics thread about midland and do that stuff.

 

PM Me latest and greatest trial brief ready and MIL.

[Anon Amos]

I didn't realize you were that short of time, so I guess discovery is out.

[dylar]

Thanks so much for all the advice. So I'm thinking go ahead and serve a BOP, since they have to respond to that in 10 days, won't have to respond to the CCP 96 demand for another 20 days. I will read up on how to get the contract in via government records. And start working on a trial brief and Motion in Limine.