JR42

Being sued by Razor Capital in California

Recommended Posts

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?

I wouldn't bother with the MSJ, you won't win it and you'll need to spend time on all the stuff you have to do in this last month before trial.

 

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

 

I would file an MIL (motion in limine) for each piece of evidence they produced (or will produce in the CCP 96 response) to try and strike as much of it as possible. It is  a process and you need to understand the rules of evidence and authentication that apply to do this (not sure if you had time to learn this). You need to check your local rules and see when the judge likes these to be filed (usually about 5 days before trial) there is an example of a MIL on ASTMedic's thread.

You should also file a trial brief before trial (probably the same time you file the MIL's)

Link to post
Share on other sites

The first document I created is the response to the "NOTICE IN LIEU OF SUBPOENA TO COMPEL ATTENDANCE BEFORE THE COURT AND TO PRODUCE BOOKS, DOCUMENTS OR OTHER THINGS"

 

Did I do this correctly?  The 5th question referred to me bringing all correspondence between me and Plaintiff.  And do I write that I will be in attendance as requested in document?

 

 

Response to Doc requestPOST.docx

Link to post
Share on other sites

I'm reading through ASTMedics thread and I noticed that he touches on the fact the Plaintiff will try to side step the process by saying the witness is appointing a representative in care of.  In other words, he's not going to be there, but it's okay for others at this law firm to accept it on his behalf.  I'm told that I should be serving the witness only.  The subpoena should not be given to anybody else.  If the witness is not available at the designated time and place then I should file a MTL to have his affidavit thrown out. 

 

I'm going to include a copy of the actual wording in the affidavit in order for this support group to take a look at.  It doesn't list a date that he will be there to receive the subpoena.  It just says 20 days prior to trial.  20 days from trial would be March 13.  Is that the day I should have the subpoena served?

post-121129-0-73194100-1394164828_thumb.

Link to post
Share on other sites

Yes, starting 20 days before trial you can serve the declarant/affient. Best to do it the soonest you can so that you can get a report of that service and include it in your Brief, MIL, etc.

 

Know your local rules, deadlines for submitting Briefs and MILs can vary from county to county.

Link to post
Share on other sites

Then there is this request (see attached).  Is there a format to respond to this?  Basically I assume the only thing I need to supply is the witness as I do not have anything else that I intend to use.  This is their case to prove right?  Please let me know if I'm missing anything here.

 

Is there an example of how to respond to this or do I use the same format as I did with the document requests?

 

One more thing?  Would there be any benefit to ask for a continuance because of the fact I did not receive their documents until just now which only allows me a short time to plan my defense and serve the witness?  Is it a waste of time to even try>

 

 

post-121129-0-15570100-1394167270_thumb.

Link to post
Share on other sites

The first document I created is the response to the "NOTICE IN LIEU OF SUBPOENA TO COMPEL ATTENDANCE BEFORE THE COURT AND TO PRODUCE BOOKS, DOCUMENTS OR OTHER THINGS"

That looks like the answers to their RFP's

Did I do this correctly? 

If you are answering RFP's it looks right, although I did not see their RFP request to you that shouldn't matter.

The 5th question referred to me bringing all correspondence between me and Plaintiff. 

I didn't see it, but you can object to that. "OBJECTION: equally available to plaintiff.

And do I write that I will be in attendance as requested in document?

Not sure what document but I don't think it's necessary.

 

BTW: Your name is on your answer to the RFP's 

  • Like 1
Link to post
Share on other sites

Then there is this request (see attached).  Is there a format to respond to this?  Basically I assume the only thing I need to supply is the witness as I do not have anything else that I intend to use.  This is their case to prove right?  Please let me know if I'm missing anything here.

You are not bringing a witness that you would need to list to this request unless you plan on using a witness other than the one you subpoenaed.

 

Is there an example of how to respond to this or do I use the same format as I did with the document requests?

Just answer it on pleading paper with the response "witnesses and exhibits will be used for impeachment purposes only", unless you have some type of evidence you plan to enter (unlikely).

One more thing?  Would there be any benefit to ask for a continuance because of the fact I did not receive their documents until just now which only allows me a short time to plan my defense and serve the witness?  Is it a waste of time to even try>

My guess Is that it would be a waste of time.

Link to post
Share on other sites

Going to court this morning to get my subpoena taken care of.  And I'm planning on meeting with a lawyer for a consultation.  I have anxiety issues and will have trouble in court on my own.

Link to post
Share on other sites

Interesting advice by the attorney I spoke to this morning.  He asked me if I had any other debts and I mentioned that I had 2 IRS debts (1 state & 1 Fed from 2009).  He said that if my credit was already bad and if I no longer wanted to deal with this matter that I should just file for bankruptcy now.  That is an interesting option.

 

Also he agreed with everyone on here and that I needed to send the subpoena to the witness only and file the MTL immediately objecting to the plaintiff asking for the declaration in Lieu of testimony not be submitted.  He says that I have a right to face this witness in court (thus the subpoena).

 

Does all that sound right?

Link to post
Share on other sites

Interesting advice by the attorney I spoke to this morning.  He asked me if I had any other debts and I mentioned that I had 2 IRS debts (1 state & 1 Fed from 2009).  He said that if my credit was already bad and if I no longer wanted to deal with this matter that I should just file for bankruptcy now.  That is an interesting option.

 

Also he agreed with everyone on here and that I needed to send the subpoena to the witness only and file the MTL immediately objecting to the plaintiff asking for the declaration in Lieu of testimony not be submitted.  He says that I have a right to face this witness in court (thus the subpoena).

 

Does all that sound right?

I think you have  a right to face the witness even without the subpoena (but  that is not an argument you would want to make) so I will say I agree with the lawyer.

 

I don't think I would file for BK unless I lost the case and was doing It to dispose of the ruling. But he did say "if you no longer wanted to deal with this matter". Of course then you would have to deal with and pay for the BK matter anyway, and you do have a chance to win this case. I would agree that this is a possible option, if it were mine however it would be more of  a last resort to prevent payment to a bottom feeder. Was it  a BK lawyer you spoke with or a consumer lawyer?

 

It doesn't sound wrong, but you are the only one that will know if BK is right (it also depends on whether or not you have assets to protect).

Link to post
Share on other sites

Got a compliment from the attorney I spoke with this morning about how well I've done on my own and I explained to him that I am fortunate enough to have a great support group and that I owe it all to them.  I did explain to him that I do feel unprepared now because school is taking up all my time.  He was a Bankruptcy lawyer and thus is not able to represent me.  I'll keep looking.

Link to post
Share on other sites

He was a Bankruptcy lawyer

I knew it! I thought he was fast on the draw for BK. I agree with what he was saying but think that the BK is the last resort IF they won.

 

You just have to find the time somewhere. You are well covered here, and as long as you let people know what's happening you will learn what to do, but It does take time .

  • Like 1
Link to post
Share on other sites

I'm not gonna file BK until it's my last resort.  I'm moving forward with the case and just sent off my subpoena to serve their witness.  Quick question.  I had subpoena stamped by court and sent off to have it served.  Do I send a copy of the subpoena to Plaintiff's attorney now or do I wait until service is completed?

 

@ Anon Amos - If few posts back you mentioned that you don't know what they sent me, referring to my answering their request for production of documents in court.  Here is what they sent me...

post-121129-0-54569700-1394557545_thumb.

post-121129-0-85985800-1394557550_thumb.

Link to post
Share on other sites

Keep the subpeona just to your process server for now. No need to alert the other side as to what your game plan might be. If service fails, then the other side won't see your subpeona until you attach it as an exhibit when you file your Brief, MIL and Dec in Support of MiL.

  • Like 1
Link to post
Share on other sites

I just received notice from Process Server stating the place of business the witness gave was a messenger service.  A manager at that address told the server that he would accept the subpoena, but when the server told him it was for personal service only, the manager stated that he had no idea who the witness was.  The server then asked the manager for a business card and the manager claimed that he did not have any.  So bottom line is the witness wasn't at address that he provided and the personnel at address claimed not to know who he was.

Link to post
Share on other sites

I take it this was the first attempt?

 

What I have read in most threads, and from my own experience, is that the address they usually give for a CCP98 is above the usual messenger service address/P.O. Box > they typically give an actual office address, at least of someone they have some affiliation with (another JDB law firm). That they gave you a messenger's address will only make your objection to the CCP98 stronger, IMO. I'd call a lot of attention to them giving an address that was never intended for a witness to be present at, was clearly intended for circumventing CCP98/fraud.

  • Like 3
Link to post
Share on other sites

That was indeed the first attempt.  How many attempts are there supposed to be?  Now you got me worried again as I barely had enough money to pay for this.  How many attempts is the process server supposed to make.  It sounds like it was just one time.

Link to post
Share on other sites

The code doesn't say it has to be more than 1 attempt. I think most people try 2 times then leave it, but I don't think they pay for both times (I hope they didn't have to anyway). I would not spend anymore money on it.

  • Like 1
Link to post
Share on other sites

I just asked the company that is serving for me and they told me the fee I paid includes 5 attempts, but they have not attempted a 2nd time because the manager at the address gave them several stories.  Here's what my process server is saying...

 

"With the fee you provided it includes us to make 5 attempts and according my servers notes he attempted the address and was stated subject worked for another company under this same address then stated someone will take it for him and then stated they didn’t know who subject was basically gave my server different stories and since this needed to be personally served only."

 

So at this point is there any point at trying a 2nd time?

Link to post
Share on other sites

 

 

So at this point is there any point at trying a 2nd time?

I would. It shows that you tried harder, and it's covered in your fee anyway. BTW how much did It cost (we have another member here from your area in the same boat).

  • Like 2
Link to post
Share on other sites

Well the week has finally arrived and I'm so behind the 8-ball that I'm not very confident.  My anxiety levels are already making me sick as I have an anxiety disorder.  I didn't get the Declaration of Due Diligence back from my process server for the 2nd attempt they made.  I was supposed to have it last Friday.  The Process Server did say that they gave him the run around at the address the witness provided and they claimed not to know who the witness was., so I do know that it was not served.  They just haven't sent me the declaration yet.

 

I'm told I need to write a trial brief and I have no idea what that is.  I also need to file my MTL as soon as I get the Declaration back, but it feels like I'm going to be submitting this to late because the trial is Wednesday.  I have no idea how I'm supposed to argue my case.  I'm nervous as hell and just want this to be over.

Link to post
Share on other sites

I think that you can write up the MIL without having the Declaration of Diligence back. You already know what the deal is with the failed service, write about that. You should have the Dec back before trial, take a few copies of the subpeona and declaration with you to court to present as evidence, you can give copies to the JDB attorney then.

  • Like 1
Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.