Jump to content

Help! Need sample motion in limine and direction in midland trial


Recommended Posts

My brain is spinning. I have read much about the new target v rocha case which pertains to my case. I have a bad case of too much information. This website is so wonderful but my head just can't seem to streamline what I need to produce and file. I need a what, who, when.

I tried to serve the affiant in response to the ccp 98 in lieu of personal service. She wasn't there of course.

What are my exact next steps? Does anyone have a sample that isn't over 15 pages?

I need to write a motion in limine and declaration next?

Then file with court with trial brief and serve to midland?

Thanks for clarity and examples. I am a teacher and brazenly consider myself smarter than the average bear but I am frozen with info overload and would hate to lose on a technicality so close to trial (aug 2) after all this work.

Thanks as always.

Link to comment
Share on other sites

I have a lot of material in my thread, including a redacted MIL re 98 that includes the Target v. Rocha case, declarations, and trial brief.

 

My case was in California.  Authorities cited are for California.

 

For what it's worth, I won on my MIL and I won my trial.

 

http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/?p=1249829

  • Like 1
Link to comment
Share on other sites

  • 2 weeks later...

Just got back from court. Not a bad outcome but not what I'd hoped which was of course win or dismissal. The rent a lawyer, Stuart Rine shows up and wants to put me on the stand because of my admissions (I admitted my address and that I had the card) Then he blathered on about the witness not being served. The judge said its right here, she did, better get your docs from your boss in order. Haha

The judge was pretty mean, told me this wasn't a game (no idea what he meant by that). I explained that I had tried to work things out with OC, they agreed to reducing interest from 28% (they slammed me right before anti-slamming law came into effect), i made a good faith payment of $330 before new interest rate was in effect and then never heard from them again until lawsuit. He said their evidence looked fine to him and I started to freak out but took the advice of not speaking unless absolutely necessary. He asked me if I could prove what I just told him. I said I would have to pay my bank hundreds of dollars to get records of electronic payments.

Then he stopped, looked through docs and said "the witness needs to be here. I will continue this and the plaintiff has to bring a witness. And a good one, not just someone who has seen the papers. The plaintiff will have a hard time doing this. He looked at rent a lawyer and told him to tell his employers that he was going to stop allowing ccp 98 and that he was aware of target vs. rocha.

He said he was new at these "lowly" cases and this was the first time he'd seen someone like me use it.

He told me to come back in November with a statement.

Lets see if they dismiss or actually bring a credible witness. I won't start collecting bank statements - burden of proof is on them.

Guess it'll be my word against theirs.

I thought this would be over today but I think I still have a good chance?

Link to comment
Share on other sites

THey don't have a "good witness".  THey only have someone who has "seen the papers".

 

Not a bad outcome because I don't see how they can comply with the COurt's order.  However, if the Court had really read Target v. Rocha, it should have dismissed the case.  Plaintiff didn't bring the witness to trial.  Shouldn't get a second chance.

Link to comment
Share on other sites

I agree. I was surprised he didn't dismiss. Again, a lesson about judges and being prepared. If I'd had a lawyer, I'm sure he would have argued for dismissal. Oh well. Am going to not think about it til week before continuation and prepare a short statement about witness and evidence. In other words will prepare as if they will provide witness. Can never be too careful.

Link to comment
Share on other sites

Just got back from court. Not a bad outcome but not what I'd hoped which was of course win or dismissal. The rent a lawyer, Stuart Rine shows up and wants to put me on the stand because of my admissions (I admitted my address and that I had the card) Then he blathered on about the witness not being served. The judge said its right here, she did, better get your docs from your boss in order. Haha

The judge was pretty mean, told me this wasn't a game (no idea what he meant by that). I explained that I had tried to work things out with OC, they agreed to reducing interest from 28% (they slammed me right before anti-slamming law came into effect), i made a good faith payment of $330 before new interest rate was in effect and then never heard from them again until lawsuit. He said their evidence looked fine to him and I started to freak out but took the advice of not speaking unless absolutely necessary. He asked me if I could prove what I just told him. I said I would have to pay my bank hundreds of dollars to get records of electronic payments.

Then he stopped, looked through docs and said "the witness needs to be here. I will continue this and the plaintiff has to bring a witness. And a good one, not just someone who has seen the papers. The plaintiff will have a hard time doing this. He looked at rent a lawyer and told him to tell his employers that he was going to stop allowing ccp 98 and that he was aware of target vs. rocha.

He said he was new at these "lowly" cases and this was the first time he'd seen someone like me use it.

He told me to come back in November with a statement.

Lets see if they dismiss or actually bring a credible witness. I won't start collecting bank statements - burden of proof is on them.

Guess it'll be my word against theirs.

I thought this would be over today but I think I still have a good chance?

I like how the judge says he is not allowing ccp98 anymore. Nice outcome.

  • Like 1
Link to comment
Share on other sites

I agree. I was surprised he didn't dismiss. Again, a lesson about judges and being prepared. If I'd had a lawyer, I'm sure he would have argued for dismissal. Oh well. Am going to not think about it til week before continuation and prepare a short statement about witness and evidence. In other words will prepare as if they will provide witness. Can never be too careful.

do you have to subpoena the witness or not?

Link to comment
Share on other sites

THey don't have a "good witness".  THey only have someone who has "seen the papers".

 

Not a bad outcome because I don't see how they can comply with the COurt's order.  However, if the Court had really read Target v. Rocha, it should have dismissed the case.  Plaintiff didn't bring the witness to trial.  Shouldn't get a second chance.

Agreed and agreed.  I don't see how the case wasn't tossed. Seems to me that even if this goes forward and plaintiff were to produce a qualified witness and were to win judgment that it would all be overturned on appeal because of the initial failure of compliance to CCP 98.

 

I'd expect to hear again from plaintiff's attorney in the interim with a new settlement offer.  If they didn't produce a qualified witness for their first at bat, they aren't likely to produce one for their second at bat.

  • Like 1
Link to comment
Share on other sites

  • 2 months later...

Alright, my second court date is approaching. As stated before, was surprised judge didn't toss it out because of no witness. Last thing judge said as he set next date was "they'll have to being witness."

Just received papers from midland, Trial Brief, with a bunch of gobbledygook stating lots of cases, that records can be admitted as exception to heresay, (cal evidence code 1271 and federal rule of evidence 803(6), that i never made objections to chase (they then state california bean growers vs. wlliams 1927 -- wtf?) Then they go on to say i bear burden of proof for affirmative defenses and finish with a conclusion that this a simple case of non payment.

This document seems crazy to me. Not sure what to do on my second day in court/trial.

Thanks in advance for comments/suggestions.

Link to comment
Share on other sites

Alright, my second court date is approaching. As stated before, was surprised judge didn't toss it out because of no witness. Last thing judge said as he set next date was "they'll have to being witness."

Just received papers from midland, Trial Brief, with a bunch of gobbledygook stating lots of cases, that records can be admitted as exception to heresay, (cal evidence code 1271 and federal rule of evidence 803(6), that i never made objections to chase (they then state california bean growers vs. wlliams 1927 -- wtf?) Then they go on to say i bear burden of proof for affirmative defenses and finish with a conclusion that this a simple case of non payment.

This document seems crazy to me. Not sure what to do on my second day in court/trial.

Thanks in advance for comments/suggestions.

You need to learn the rules of evidence if you are going to fight it. You could be filing MIL's to strike evidence they gave you. You need to file a trial brief as well. That is a bunch of case law they gave you. You should read those cases and show how yours is different or how those don't apply to your case (if possible). I don't know anything about your case or how much learning and preparation you  have done, so it's hard to say.

 

If you are within 45 - 30 days before trial I would send them a witness and exhibit request (CCP 96), you can get the form here www.courtinfo.ca.gov

Link to comment
Share on other sites

I already did all that and the judge continued!

As you can see above, calawyer and there's we're surprised it wasn't dismissed.

After reading it several times, I think it's just more of their scare tactics, hoping I will settle or not show up.

I'm standing by my right to call witness and cross examine.

I pray the "long in the tooth" judge will see that and dismiss.

  • Like 1
Link to comment
Share on other sites

Beware of another request for continuance on the morning of trial.  If so, it is absolutely against the rules.  A request MUST be in writing and MUST be supported by declaration.  The declaration MUST show good cause (like death of a witness).  Here is the rule.  Print a copy and bring it to trial with you.   Most judges don't know the rule because no self-respecting lawyer would just show up on the day of trial and ask for one:

 

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

 

  • Like 2
Link to comment
Share on other sites

Thanks for the heads up calawyer. I will print. I am also going to bring an attorney with me just for the morning so that he can argue if judge doesn't follow law again.

I am finishing up trial brief but am a bit miffed as I'm just repeating myself from first court date: plaintiff needs to bring witness.

Frankly, it makes me feel sad for our justice system. If my "silly little case" is being dragged out unnecessarily, what is happening to other people?

Yesterday, they reported to my credit report that I owe them $38,000. From $3000, (original amount) to $9000 (amount they sued me for, to $38,000? Jesus when will this end?

Link to comment
Share on other sites

  • 2 weeks later...

I won! Not just dismissal without prejudice but I won!

Lawyer for midland (itinerant lawyer who trolls courthouse representing big business) asked for continuance because "the witness didn't work for midland anymore" and the judge said sucks for you. Well, he said it differently but im feeling a bit cocky right now. Anyway, moot point, the witness had to be from OC.

I rolled the dice, said I objected to dismissal without prejudice and I was put on the stand.

My right hand was shaking as I was sworn in. But I answered truthfully, said I was objecting to the amount (you can only deny so much without pissing off this judge) and that it was midlands burden to prove correct amount and I had no contract with them.

After some lecturing to me about a "free ride" and a lecture to midland about being prepared, he ruled for the defendant!

Suck it junk debt buyers.

Thanks to everyone on these forums who helped. Happy Thanksgiving.

  • Like 3
Link to comment
Share on other sites

When judge offered me dismissal without prejudice, I almost said yes (i was freaking out!) but I felt not only could I get a better result but these jdbs need to lose! They make their living off people's misfortune and misery and lack of knowledge. Now I have better peace of mind knowing I told my story, they had their chance, and the fairer side prevailed. They use the weak side of justice to win. It's just not right.

  • Like 1
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.