JR42

Being sued by Razor Capital in California

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Calawer, you are my savior for the PM.  And thank you RyanEX.  I've cleared my schedule for the day and I'm determined to make some progress.  I need to find me some examples of trial briefs next.

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There's an example of a trial brief in ASTMedic's thread. You can probably use a lot of it in your case and tune up the rest to fit your arguments.

 

Also, you can look up the cause of action (in the complaint against you) in the California jury instructions (CACI), it may be helpful and have some case law.

 

Clearing your schedule was a smart move.

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You guys are the best.  Thank Ryan Ex.  I'm working on my trial brief now.  It's amazing how similar all these cases are.  I barely have to change anything.  This is helping put me at ease as thanks to you guys I may be able to file the MIL and trial brief today.  I do file the trial brief with the MIL (and proof of services), correct?

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Correct. You may not have to file them together, but most people do. Your local rule should say the time they should both be filed by (usually 2 days before trial or day of trial). Probably the sooner the better in your case, but check your rules when you get a chance (just in case).

 

Be sure to send copies to the lawyer (with POS) sometimes they will dismiss when they see a good trial brief and MIL.

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Here's my brief - which was a combo of ASTMedic's, HomelessinCalifornia's, and blueskittles' trial briefs. Took a little of each of them.

 

@Ryan Ex.  I'm looking at section III of the trial brief and if possible I was wondering if you could explain in general what this argument on cause of action states in laymen terms.  I'm just trying to understand it and whether or not it pertains to my case.  It seems as if it does.

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@Ryan Ex.  I'm looking at section III of the trial brief and if possible I was wondering if you could explain in general what this argument on cause of action states in laymen terms.  I'm just trying to understand it and whether or not it pertains to my case.  It seems as if it does.

Basically I wrote that the JDB couldn't even show it owned/had any right to the alleged debt that the JDB claimed was mine. The only paper it provided that attempted to establish the sale of the purported account was the "Bill of Sale" between Chase and them. It was redacted, and referred to a bulk sale - no specific info related to me.

 

Problems I pointed out:

1) The JDB can't show that the person from Chase who signed the Bill of Sale had any authority to execute such a transaction.

2) It lacks authentication and foundation ( < objections you'd use during trial)

3) It's hearsay ( < another objection) - the JDB cannot authenticate documents that were (alledgedly) produced by a totally different entity (Chase).

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Correct. You may not have to file them together, but most people do. Your local rule should say the time they should both be filed by (usually 2 days before trial or day of trial). Probably the sooner the better in your case, but check your rules when you get a chance (just in case).

 

Be sure to send copies to the lawyer (with POS) sometimes they will dismiss when they see a good trial brief and MIL.

 

 

Basically I wrote that the JDB couldn't even show it owned/had any right to the alleged debt that the JDB claimed was mine. The only paper it provided that attempted to establish the sale of the purported account was the "Bill of Sale" between Chase and them. It was redacted, and referred to a bulk sale - no specific info related to me.

 

Problems I pointed out:

1) The JDB can't show that the person from Chase who signed the Bill of Sale had any authority to execute such a transaction.

2) It lacks authentication and foundation ( < objections you'd use during trial)

3) It's hearsay ( < another objection) - the JDB cannot authenticate documents that were (alledgedly) produced by a totally different entity (Chase).

 

Thank you both very much for the info.  I feel like I owe all of you so much for helping me with this.   RyanEx, your trial brief is perfect and thank you so much for helping me understand the legal jargon.  Anon, I think you are right.  I will send everything overnight.  Got to try.

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Win your case or get them to dismiss (I see them as the same) and we will consider you paid in full (not that you owe anything).

 

Also, your thread here may help others, so you are paying it forward.

 

Good luck, we are all pulling for you. Don't forget to post in the "victories" thread when it's done.

 

Check your PM box.

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Well I was able to send off copies of the Trial Brief, MIL, Proof of Service of witness from 1st attempt to the Plaintiff's lawyers, but low and behold I was told that even with priority over night morning delivery, the paperwork would not arrive there until Wedenesday.  Being that court is Wed, I wasn't sure if I should send it because they may not even see it before court.  Regardless, I sent it anyway.  When I returned home I noticed that the Process Server had sent me an email with a copy of 2nd failed attempt to serve witness.  With court closed today because of the holiday, I will have to submit all of this on Tuesday morning.  I will include the 2nd report from the process server.

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Just returned from court to submit paperwork for court tomorrow.  I was told by clerk to hang on to my MIL and present that in court tomorrow.  I also received a call yesterday from a representative of their lawyers, but I let them leave a message.  The guy didn't say what he wanted, but I'm guessing he was gonna try and settle the matter, which makes no difference because I couldn't if I wanted to.  I didn't call them back.  I'm guessing they will call again today.

 

I will bring copies of the paperwork for plaintiff's lawyers.

 

My next question is to those of you who have gone through arguing their case already.  Do you have any advice on procedure to argue the case, submitting the MIL or anything else that is relevant?  Will their lawyer ask me questions or will it be all moderated by the judge?  Do I have to agree to answer questions for fear of accidentally harming my defense? 

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You may not need luck, but I will wish it to you anyway. Good luck my friend, we are all pulling for you.

 

Post #214 has some tough questions and you single people out by asking for the response to be from someone who has already argued a case. Most people get them dismissed right at the threshold of trial.

 

You will probably be asked by the judge just before trial if there are any issues before trial. If you have not already filed the MIL you will submit it then.

They will most likely have no witness. and hopefully dismiss for that reason. If not you go to trial. The judge may rule out their evidence due to your arguments in the MIL. If not (and they have no witness) the judge may ask you some questions, and the lawyer will probably put you on the stand and ask questions and try to get you to admit to the allegations and authenticate their evidence for them.

If they have a witness the lawyer will call that witness and probably not you. Take short hand notes of his questions to witness and when he's done you can cross examine the witness and try to discredit them and how they answered etc. It will probably be the witness you subpoenaed, and if that's the case then you  can  also examine them and ask questions. When you are done verbally  motion the court to strike their testimony from the record. There is a list of question from Calawyer here somewhere.

 

There are a list of objections here somewhere (or google) to questions that you may not have to answer. You do have a right not to incriminate your self, but if you plead the 5th amendment it's not going to look good. Probably better if you "don't recall" or "not to my knowledge" or "I don't know"

 

I doubt it will get that far, it will probably be more like Josey Whales was today where they just dismiss. They will try to scare you into settling before they dismiss (if they do) Never know, till tomorrow. I just wanted wish you the best. take deep breaths or do whatever you do to keep yourself calm, it will be a bit rough with anxiety, but you can get through it (others have) and it will all be over soon, you can get back to concentrating on school.

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Just returned from court to submit paperwork for court tomorrow.  I was told by clerk to hang on to my MIL and present that in court tomorrow.  I also received a call yesterday from a representative of their lawyers, but I let them leave a message.  The guy didn't say what he wanted, but I'm guessing he was gonna try and settle the matter, which makes no difference because I couldn't if I wanted to.  I didn't call them back.  I'm guessing they will call again today.

 

I will bring copies of the paperwork for plaintiff's lawyers.

 

My next question is to those of you who have gone through arguing their case already.  Do you have any advice on procedure to argue the case, submitting the MIL or anything else that is relevant?  Will their lawyer ask me questions or will it be all moderated by the judge?  Do I have to agree to answer questions for fear of accidentally harming my defense? 

I didn't go to trial, but i remember the prep.

 

If plaintiff proceeds with trial, be ready to object to them trying to introduce any documents. Hopefully your MIL will have taken care of that, but you never know - the judge may require that it be argued out in trial. Object, object, object. If judge overrules one objection (ex. hearsay) then object on other grounds (ex. lacks authentication/foundation) til you get it right. I don't know if you can refuse to answer a question because it will hurt your defense (this isn't a criminal trial)??

 

"I don't recall" seems like a simpler route and is what I would have done. If your MIL/ or objections are successful in precluding the plaintiffs docs, then their only hope is that you will authenticate their statements, or whatever else they have, for them. Don't help them. If you give them a little daylight, they might be able to run with it. The only thing I remember about the alleged debt in my case was that I once had a credit card of that type. But I couldn't recall if the one in the complaint was actually mine, so my answer would have been "I don't recall." Looking at the statements the plaintiff tried to supply me, I din't recall any of the purchases listed, or payments made, or ever seeing the statements themselves > "I don't recall." Maybe your judge will give you that "look" and maybe even have some comments about your memory, but so be it, IMO. If you don't recall, then you don't recall. Oh well, such is life.

 

Be ready for them to try and settle with you before trial. I smiled when they asked me. Here we are, at most maybe two hours left in a 6 month process - if they had any confidence in their case they wouldn't be offering a deal in the hallway - they'd put in the last two hours and try to get paid. I knew they were beat at that moment. I respectfully declined. Be ready for them to possibly offer you some kind of "mutual release" before trial. I was offered one but didn't entertain it. it was 5 pages long and there was no way I was going to try and review it 20 mins before trial to see if it was legit. It coming from them, I'm sure it was meant to cover their a$$ much more than mine. The alleged debt was past SOL, there wasn't anything they could really offer anyway. You'll have to decide what's best for you.

 

Dress nice. Be on time. Be organized. Be respectful/professional.

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I've already received calls from the lawyers office this morning and I did not return their call.  I checked online and my trial brief and my two due diligence reports from my process server are listed.  My trial brief includes information pertaining to me filing the MIL, which I will do in court this afternoon.  The brief, 1st Due Diligence Report and copy of MIL will arrive in their office this morning (I didn't get 2nd report until after I sent them this info).  So in my opinion, they now know that I'm going through with this.  So I assume that's why they want to settle.

 

No paperwork has been filed on their behalf with the court for at least month.  I checked this morning and they have not submitted a trial brief or anything else.

 

As far as I am aware, the witness will not be there.  Our subpoena attempts failed and the guy is in Minnesota.  Why are they all from Minnesota? 

 

Any settlement attempt is a waste of time as I can't even afford to do that.  If for some reason the judge rules in their favor, I will be forced to BK.  Should this be brought up at all in any circumstance?

 

The advice you have given me about answering questions is very helpful.  Will I need to argue my case or do I simply allow the judge to moderate the entire process?  The less I say the better.  I'm worried that I will stumble if I have to say too much. 

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I read ASTMedic's thread about his court experience.  Very good info.  The judge seemed angry at the lawyer who made him take he stand.  The lawyers questions seemed pointless being the judge had already ruled in ASTMedic's favor regarding the MIL.  Seems like the case was already lost and that the lawyer was just wasting the courts time.

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You are going to do fine. Try to prevent from having to argue anything. Every time they introduce evidence object to it, hearsay, lack of foundation, lack of authentication (assuming there Is no witness) Object and dispute everything and make a huge issue that there is no witness to authenticate anything.

Also a lawyer can't testify, he can only read from the pleadings and evidence (which you will object to) if he tries to authenticate anything or elaborate on it, object on the grounds that council is testifying.

 

The judge may ask you questions and control the case, or the attorney may conduct it, they may  or most likely may not have a witness. You are just going to have to go with the flow. There's no way to be fully prepared and an experienced litigator, you just have to apply what you've learned and do the best you can. It has worked for many before you.

 

Also, after they present their evidence and witnesses etc., and you've maid your objections etc., just before it's your turn to cross examine the witness; say "your Honor, I motion this court for a direct verdict in my favor"... If you don't get it (and win the case right there) then you cross examine their witness and or argue your case (what you have in your MIL / Brief and the fact they have no witness / lack of foundation and authentication etc).

 

Good Luck

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I've got all my files loaded in separate folders.  I have my business attire on and I'm just about ready to head to court.  Thanks again to everyone who helped me out with this.  I will be posting, win or lose when I return home.  Keep your fingers crossed.   Thanks again!!

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