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Being sued by Razor Capital in California


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I'm self-employed and I spent alot of what should have been 'working-time' getting ready for trial. Some don't that option.

Good point. So am I. The lawyer tried using that against me (no FDCPA, said I had a lot to lose, etc.) even asked for my contractor lic # in discovery and subpoenaed my licenses. I told him that "even if they do win and manage to beat my appeal; all you are going to get is a court order to speak to my payroll dept. about wage garnishment". I gave him a personal guarantee that they would never see one penny from me, and that it was just a matter of how much money they were going to throw at it. "On the plus side however, you people must have plenty of frequent flyer mileage"...

 

Off track a bit, but at times it is beneficial to speak to them; but only to the lawyer.

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My CMC is this afternoon.  The paperwork I received says the plaintiff's lawyer will not be present, but will appear via telephone.  They are requesting a Non-Jury Trial date of March 2014 or later.  That seems reasonable to me.  Thus I will not object.  Sounds like this may be very procedural today.  Is there anything else I should know?  Any other advice?

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  • 3 weeks later...

Just to maintain my continuity in case some are still following along.  My CMC was nothing more than setting an April court date, which I had no objection to.  That was it.  No questions or comments by the judge or representitive of the plaintiff.  I will say that the lawyer for the plaintiff did not show.  Instead they had some local attorney who was in court on other business to represent them.  The attorney waited for me outside the court and informed me that he had dealt with Razor before and that all I needed to do is call them and they will settle.  Obviously, this man has no idea that I do not have the means to settle as I have no income or savings to pay anything.  Anyway, I intend to take the holiday to clear my mind of this and get started again the first of the year.  If anybody has any suggestions on what I should be doing immediately, please let me know.

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 he had dealt with Razor before and that all I needed to do is call them and they will settle.  Obviously, this man has no idea that I do not have the means to settle as I have no income or savings to pay anything. 

 

Well of coarse he has and of coarse they will, they don't want to go to court, they just want your money!

 

Before you take a little break, just check your timeline on things for your case.  Do you have a calendar that is marked for important things like last day to file discovery, motions, et all?  If not do that. seadragon has a good timeline template to follow, I believe it is in ASTMedics thread.

 

Have you recieved any discovery you requested? Is it complete?  You need to make sure it is, and if not leave yourself plenty of time to file any motions to compel etc.

Have you been studying your rules of civil procedure, and reviewing what a motion in limine consists of? Trial briefs?  If you have recieved any discovery from plaintiff, I would start outlining my objections that I will want to in clude in a MIL.  Most important thing is the calendar, mark it with things like last day to request ccp96, and when its time to subpoena any witness they list in their ccp98, etc. things like that.

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  • 1 month later...

Has Razor been sent a BOP? If not, get this out the door tomorrow - it takes 5 minutes to prep... but will ruin someone's holiday. 

 

Sent them a BOP a long time ago and the response was insufficient.  Sent them a MTC letter and they were unable to send me every thing I requested.  Went to court to set a date and that's pretty much where I am at.  I started school and it's taking up so much of my time that I'm wondering if I should consider a public defender.  I have no time for this anymore.  It sucks.

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  I started school and it's taking up so much of my time that I'm wondering if I should consider a public defender.  I have no time for this anymore.  It sucks.

It's not a criminal case, so you cannot get a public defender. You might be able to find a lawyer cheap that is trying to help, by checking the state bar website under legal help. Or hire one.

 

Other than that, you would have to find a way to make time. It does suck, but it is temporary. Beating them is worth the investment.

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Go read ASTMedic's thread again, then yet again.  He did very little on his case yet came out a winner because in the end they did not have the witness.  Just study up on your objections, make sure you send them a ccp96, and make sure you subpoena the ccp98 witness that they will send you.  Do that, and you at least have a chance if they think they will walk in and win.

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Go read ASTMedic's thread again, then yet again.  He did very little on his case yet came out a winner because in the end they did not have the witness.  Just study up on your objections, make sure you send them a ccp96, and make sure you subpoena the ccp98 witness that they will send you.  Do that, and you at least have a chance if they think they will walk in and win.

This is a very good opinion. All of the info is at the beginning of ASTMedic's thread including all necessary forms. You could skip the "intensive" study and do just as ASTMedic did and have a good chance, without spending too much time on it.

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  • 2 weeks later...

Thanks.  I will do my best. to emulate the process via ASTMedic's thread so that I have a fighting chance.  I just don't have time to write out various heavily-worded motions.  I don't want to lose, but even if for some reason I did.  I have no way to pay and would have to file for bankruptcy.

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Just received documents from the plaintiffs.  Included was a document called "Declaration in Lieu of Testimony."  In this document a representative who claims to be an expert on the methods, records and writings  pertaining to the account in question.  He mentions that he is prepared to testify on behalf of the plaintiff if called as a witness.  I won't go into detail, but he states in writing that even though the original documents are not available, the copies are accurate and valid.  And they are asking the court to accept them as valid.  He also included 4 exhibits including...

 

Exhibit 1: The Bill of Sale (of the debt signed by 2 people who work or have worked for the original creditor).  The 2nd page includes a copy of the Bill of Sale and Assignment (signed by a managing partner of an equity firm in Irvine, Ca.)

 

Exhibit 2: Terms and Conditions of the original cardmember agreement.  I noticed they did not include my signature or anything.  It's just the terms.

 

Exhibit 3: Copies of statements from 2009 to 2010, but nothing prior to that.  According to them, the account was opened in 2003  It also says that the card is presumed to be in my possession.  Not sure why that matters.  I have no credit cards (new or old in my possession).   Also note that I requested in my M&C letter to have all statements from the beginning of the account sent to me and they failed to fulfill this request.

 

Exhibit 4: Copies of 2 letters sent to me requesting me to pay this debt.

 

That's all from this perspective witness.  I suspect he is one of the individuals that I will need to subpoena.  As well as anyone who signed anything in the exhibits he presented.  Is that correct?

 

The next thing included was a request for statement of witnesses and evidence where they ask me to provide them with names of witnesses, documents and any photographs.  I plan to use.  I have no witnesses on my behalf, but do I plan on subpoenaing the people mentioned in exhibits.  As far as documents, I have only my correspondence and the fact they did not fulfill my request within the time frame I requested (and still have not).  That is all I have.  Should there be anything else?

 

Also included is a notice from them about settlement, but I have no money at all to give them, so that is irrelevant.  The only thing I can tell them is that I will be forced to file bankruptcy if ordered to pay any amount.

 

The next thing was simply a notice for trial date and time.  The date is set for 4/2/14. At this point I may need more time and may need to file for continuance.  I need time to find these witnesses.

 

The last thing was a Notice In Lieu of Subpoena to Compel Attendance Before the Court...  This is where I am very confused.  They are requesting me to bring the following to court... Original Contract (don't have it), Account Application (Nope), Disclosure Statement (wouldn't know one if I saw one), All Statements of Account (even if I had anything like this, I sure do not keep them), Correspondence (no problem) and evidence of any payments made (yea right, nope).  Why would they expect me to bring any of this?

 

That's all for now.

 

 

 

.

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The Declaration in Lieu of Testimony is a CCP 98 declaration.  What does the witness say about being available for service of process?

 

Why do you want to subpoena the witnesses whose names appear in the documents?  Remember, it is plaintiff's burden of proof. 

 

Honestly, I don't understand your question?  Are you asking me if he says he is available to testify?  He writes that he were called he would testify to his statements in document, but at the end he also writes that here is appointing Nationwide Legal File & Serve, Inc c/o Miehdi Ektefaie to accept service on his behalf.  Then he gives an address where he is available for service of process.  Being that this declaration was written by a gentleman in Bloomington, Minnesota, I assume he has no intention of coming all the way out here if called.  I'm assuming that he is handing this off to someone local.  How does that work?  Is that legal?

 

Also, I was under impression I was supposed to subpoena all these people because they won't come.

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The declarant in the CCP 98 was supposed to give you an address within 150 miles of the court and say that he will be there 20 days before trial. This is the person you are supposed to subpoena.

 

You also  file a MIL to preclude the CCP 98 from evidence.

 

I would file an objection to their request that the records be treated as originals. You raise issues of trustworthiness, and under the Best Evidence Rule want to see originals, especially since they are asking you to provide the evidence for them. Which brings up the next point; you probably do not have and challenge whether or not the documents they asked for ever existed in the first place. 

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Honestly, I don't understand your question?  Are you asking me if he says he is available to testify?  He writes that he were called he would testify to his statements in document, but at the end he also writes that here is appointing Nationwide Legal File & Serve, Inc c/o Miehdi Ektefaie to accept service on his behalf.  Then he gives an address where he is available for service of process.  Being that this declaration was written by a gentleman in Bloomington, Minnesota, I assume he has no intention of coming all the way out here if called.  I'm assuming that he is handing this off to someone local.  How does that work?  Is that legal?

 

Also, I was under impression I was supposed to subpoena all these people because they won't come.

 

Not at all - if you read CCP 98, the declarant has to be personally served within 150 miles of the court house - if memory serves, MN is a lot farther than 150 miles. Also, the cannot accept anyone to accept service on his behalf. I believe Target v Rocha touched on this... 

 

And if the alleged debt is big enough - they will get someone to be available to testify...

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The declarant in the CCP 98 was supposed to give you an address within 150 miles of the court and say that he will be there 20 days before trial. This is the person you are supposed to subpoena.

 

You also  file a MIL to preclude the CCP 98 from evidence.

 

I would file an objection to their request that the records be treated as originals. You raise issues of trustworthiness, and under the Best Evidence Rule want to see originals, especially since they are asking you to provide the evidence for them. Which brings up the next point; you probably do not have and challenge whether or not the documents they asked for ever existed in the first place. 

 

Look at the case In re Vinhee - it raised all kinds of issues regarding the computerized records that the JDB is using as "evidence."

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Honestly, I don't understand your question?  Are you asking me if he says he is available to testify?  He writes that he were called he would testify to his statements in document, but at the end he also writes that here is appointing Nationwide Legal File & Serve, Inc c/o Miehdi Ektefaie to accept service on his behalf.  Then he gives an address where he is available for service of process.  Being that this declaration was written by a gentleman in Bloomington, Minnesota, I assume he has no intention of coming all the way out here if called.  I'm assuming that he is handing this off to someone local.  How does that work?  Is that legal?

 

Also, I was under impression I was supposed to subpoena all these people because they won't come.

 

 

CCP 98 specifically says that the declarant must give an address, within 150 miles of the court, where he or she is available for service of process.  The recent case of Target Bank v. Rocha says that giving an address where someone else will accept service on behalf of the witness is insufficient.

 

So, you will want to fill out a subpoena for the witness,  have the clerk stamp it, and have a process server try to serve the witness personally.  You want the process server to give you a declaration saying that the witness was not there.  Then, the CCP 98 declaration should be excluded under Target Bank.  And plaintiff will be left without a witness unless the declarant travels from Minn to testify.

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CCP 98 specifically says that the declarant must give an address, within 150 miles of the court, where he or she is available for service of process.  The recent case of Target Bank v. Rocha says that giving an address where someone else will accept service on behalf of the witness is insufficient.

 

So, you will want to fill out a subpoena for the witness,  have the clerk stamp it, and have a process server try to serve the witness personally.  You want the process server to give you a declaration saying that the witness was not there.  Then, the CCP 98 declaration should be excluded under Target Bank.  And plaintiff will be left without a witness unless the declarant travels from Minn to testify.

 

Do I get the subpoena from the court?  Is a process server something I get via the courts or do I hire my own?

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Just talking this over with a friend who just started law school and she was telling me that I ought to go ahead and file a motion to dismiss (summary judgement) based on the fact they do not have original paper work, no contract with any type of signature from me, failure to provide all the account documents requested.  That seems like wishful thinking and she is just in her first year of law school, so I really haven't considered it.  Does anybody agree with her?

 

@Anon Amos.  What's the process of filing an objection?

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No contract would be great if plaintiff alleged a claim for breach of written contract, but they usually don't for this very reason.

 

Summary judgments are difficult to prepare and judges will grant them only if there is NO dispute of fact.  To win a summary judgment motion, plaintiff must just identify one material fact that is in dispute.

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Exhibit 2: Terms and Conditions of the original cardmember agreement.  I noticed they did not include my signature or anything.  It's just the terms.

 

They don't have to have your signature on the application.  The internet era of online apps and electronic signatures has made it possible for the courts to deem this as no longer necessary.  The card member agreement IS your contract with them.

 

Exhibit 3: Copies of statements from 2009 to 2010, but nothing prior to that.  According to them, the account was opened in 2003  It also says that the card is presumed to be in my possession.  Not sure why that matters.  I have no credit cards (new or old in my possession).   Also note that I requested in my M&C letter to have all statements from the beginning of the account sent to me and they failed to fulfill this request.

 

As far as documents, I have only my correspondence and the fact they did not fulfill my request within the time frame I requested (and still have not).  That is all I have.  Should there be anything else?

 

They do not have to produce every statement back to the point that you opened the account.  It isn't relevant.  Any charges you would have disputed you would have settled long ago.  Generally statements going back 3 years prior to the default maximum is all the courts look to for them to establish that you used the card and benefited from it and stopped paying.  If they can prove that it was you who used the card back to 2009 then presumably for the previous 6 years before that it was also you or an authorized account user.  If it were ID theft you would have been suspicious LONG before the default.

 

They are requesting me to bring the following to court... Original Contract (don't have it), Account Application (Nope), Disclosure Statement (wouldn't know one if I saw one), All Statements of Account (even if I had anything like this, I sure do not keep them), Correspondence (no problem) and evidence of any payments made (yea right, nope).  Why would they expect me to bring any of this?

 

They want you to bring this because they CAN'T. If they can get you to make their case for them they collect easy money.  If you make them do the work and they can't prove it to the satisfaction of the court they lose money.  My answer would be to deny any of it exists because even saying you don't have it could be deemed an admission the debt is yours by the court.

 

The only thing I can tell them is that I will be forced to file bankruptcy if ordered to pay any amount.

 

Waste of time to threaten that as they hear that thousands of times per day and most never follow through on it.  It means NOTHING until you actually file the BK and get the formal stay.  Then you are in limbo until your BK is discharged and their debt along with it.  If you lose, you file if that is what is in your best interest.  Keep that salvo as your trump card.  Let them spend the money and then collect nothing due to your BK.  If you win:  you haven't wasted a BK.

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