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I did one pleading in my MIL "written objections to and then I listed each peice of evidence.  Then you can list each peice of evidence in your arguement, and state why you object to it, including case law, how other courts ruled, etc.

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I think it's fine. The point is to preserve and record all of your objections while creating a very clear record. By the way, will you order a court reporter for the trial? You should. Otherwise an appellate court has no way of knowing what happened, who objected to what evidence, and what to do about it. This is a common basis on which to reject appeals.

More thoughts on that live witness.

Remember: your objections to his affidavit are the outline for (at a minimum) the points you'll want to make on cross if he shows up. The affidavit is just a preview of what he's going to try and testify to. Here's a short excerpt of some of how I can envision his cross being:

Who is your employer?

How long have you been employed there? (You may not know ahead of time, but this question is innocuous which is why I'd still ask it.)

So, you're not an employee of Chase Bank (or whoever the creditor is)?

You've never been an employee of Chase, true?

You weren't an employee at Chase in charge of reviewing customer accounts like mine, true?

(Slightly risky question here) Do you know the name of the software program Chase Bank employees use to administer its customer accounts like mine?

So if I had a question about a specific transaction on that account, you don't know exactly how a Chase employee would view the account to answer it, true?

Do you have a COMPLETE history of the account, so you could tell the court exactly what charges were incurred and for what purpose on any given date in the history of the account?

(Let's say he tries to argue with you here and says yes, he does). Ok, well tell the court what the starting interest rate was on the date the account opened, then. (He probably can't but just nitpick another detail of the history if he somehow does.)

(You can then keep going on the same vein). What was the very first charge that was incurred on the account? What was the second charge? What was the interest amount charged in that period? Was it paid off? How much was paid off? What date was it paid off? What was the balance due after all those transactions cleared?

Imagine he's just sitting there saying "I dunno, I dunno, I dunno,I dunno" over and over again here. The point is being made that he has no personal knowledge about your account, which is why he's an unreliable witness to testify about how much you owe. And remember, maybe he's a feisty little bastard who will try to argue with you. Be flexible and prepared for that. The strategy here is to INSIST on your questions being answered. If he deviates, ok, but what about your question? Example:

What was the very first charge that was incurred on the account?

A: Well, I have personal knowledge from studying your account history that $3,487 were incurred as of May of 2013.

That wasn't my question. My question was what was the VERY FIRST charge, ever?

A: The very last charge was $38.76 and that's confirmed in the records.

The first charge. What was it? Do you know or not, yes or no?

A: (whimpering) No.

The larger point: if he can't access the entire history of your account, how can we be confident that the amount he says is owed now is reliable? Oh, because he has a declaration from Chase Bank saying that it's reliable? Great. Where's the Chase Bank witness to testify live about that? As to the Chase declaration itself: objection, hearsay.

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Alrighty, so Plaintiff is asking for another continuance because they have court in another county on the same day.  They gave the case number and I looked it up.  That case was filed 2 months after my case but the conflicting trial date was set in that case a month before it was set in my case.

 

Should I object?  They were already granted one continuance in both cases.  In my case, it was so that the MSJ they filed past the deadline would be within the deadline of the new trial date.  Lame.

 

Also, are there no other lawyers in this firm that can handle this case?  And Cavalry named two possible witnesses.  They can't send one witness to my trial and the other witness to the other trial?

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The court usually grants one continuance, but I would think if you object to it, you might win it, they should have known when they set the case after the 1st continuance--they were just hoping it wouldn't get that far, and wouldn't have to worry about it.  Glad to see someone else is fighting them also.  State how they already had one, and you are prepared and ready for trial, etc.  The worse the judge could do is say to bad for you, granted.

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Object away. What's the worst that can happen? The judge says no. Just make a good argument so the judge doesn't think that you're objecting for the sake of it.

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As I slept on this it occurred to me that the reason there is a conflict is because they have sued thousands of people at once.  Should I mention in my objection that it's not my or the courts concern that they have stretched themselves too thin to be able to adequately prosecute all of their pending lawsuits? Maybe word it differently, but that's the idea.

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Considering how many of those end up being default judgements, they're only actively dealing with a handful of cases at a time. Since they asked for a continuance already, they should have known their availability for this new date long before now.

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As I slept on this it occurred to me that the reason there is a conflict is because they have sued thousands of people at once.  Should I mention in my objection that it's not my or the courts concern that they have stretched themselves too thin to be able to adequately prosecute all of their pending lawsuits? Maybe word it differently, but that's the idea.

I doubt the court is troubled by how many thousands of "deadbeats" don't pay their alleged debts and might need a good lawsuit to tune them up.

 

I believe the main point is that plaintiff's counsel failed to properly manage their own calendar and now they wish to make it your problem. With two witnesses named I believe it is reasonable that at least one should be available for your trial. They should pick one and identify them per disclosure requirements. IMHO

 

Interestingly, it is highly unlikely that they would need this continuance if the court had not granted their prior continuance.

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Interestingly, it is highly unlikely that they would need this continuance if the court had not granted their prior continuance.

Trust me, this little nugget is rattling around in my brain (it's a very raw nerve, in fact), but I'm not sure how to make an issue of it without pissing off the judge.

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I brought up the fact they had already been granted one continuance and he denied theirs. I have to file an appeal tommorrow and I paralyzed my brain with all the reading at the library and I need some help.

Also I am e-mailing you the questions. I could not find your e-mail. I hope it starts NB. i have to have the library lady show me how to do it.

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@Harry Seaward

 

A request for a continuance has to be for good cause.  You cite the rule.

 

Also, check out 38.1(k) of the Superior Court rules.  It's about postponing trial because of scheduling conflicts.  Maybe the justice court has something similar.

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As I slept on this it occurred to me that the reason there is a conflict is because they have sued thousands of people at once.  Should I mention in my objection that it's not my or the courts concern that they have stretched themselves too thin to be able to adequately prosecute all of their pending lawsuits? Maybe word it differently, but that's the idea.

Generally, speaking unless there is a really good reason to not agree to the countinuance I would let it go. The judge will usually side with the attorney versus pro se. You always need to be percieved as the accomadating party when at all possible. The reason is you will want some accomadation yourself down the road. You aren't an attorney and will be defending yourself in a trial, where you will not know all the rules and procedures no matter how much you try to learn.

Also there case is not getting any better by waiting, and you get additional time to prepare and learn.

You might force them to tell you which court and which case, you already know the date. Attend the trial and you will get to see the witness and attorney in action. This should allow you to really prepare.....

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Hi, I just e-mailed you the jury questions.  Got my appeal all done, except for the part where it asks " In addition to the items noted above, I request the following documents also be included in the appeal record.

 

Not sure if I should put the motion for a new trial or the judgement that shows that he ruled more than 90 days after trial. I cannot find any appeals in Arizona that were not SOL issues.  And any help today at all. Trying not to get discouraged.

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How does this sound for a response to the MtC?

 

 

    On October x, 2013 Plaintiff petitioned this Court to postpone the trial in this case currently set for November x, 2013 on the grounds that the November x date conflicts with a trial Plaintiff has scheduled in another case with a court in XXXXXX County.  Plaintiff's pleading failed to mention that when it petitioned this Court for a continuance, it simultaneously petitioned the Court in the other case to postpone that trial.  As such, it is possible that both cases could be continued or that neither case is continued.

 

    In fairness to all parties in both cases, Defendant would ask this Court to consider the guidelines from Rule 38.1(k)(2), Arizona Rules of Civil Procedure, which sets forth a path of resolving scheduling conflicts.  This Rule suggests that the judges involved confer in an effort to resolve the conflict and recommends consideration of the following factors:
(A) the nature of the cases as civil or criminal, and the presence of any speedy trial problems;
(B ) the length, urgency, or relative importance of the matters;
(C ) a case which involves out-of-town witnesses, parties or counsel;
(D) the age of the cases;
(E) the matter which was set first;
(F) any priority granted by rule or statute;
(G) any other pertinent factor.

    Defendant neither supports nor opposes Plaintiff's Motion to Continue, but wishes to prevent a needless continuance in one case while a continuance is granted in the other when a simple phone call can resolve the conflict.  It is for these reasons Defendant submits this response to Plaintiff's Motion.

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I wouldn't say you neither support or oppose, that sounds like your giving your permission, why bother doing a phone call if you consent? Tell them you already took the day off work.

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@shellieh98

I wouldn't say you neither support or oppose, that sounds like your giving your permission, why bother doing a phone call if you consent? Tell them you already took the day off work.

Because It's not true that I already took the day off work and I honestly don't have any legitimate grounds to object.

 

The phone call is not with the parties.  It is between the two judges in the two cases (as stated in Rule 38.1(k)) is so that THEY can resolve the conflict between themselves and then let the parties know the resolution.  Otherwise, who's to say we're not back here in a month when both courts grant continuances and the newly set trial dates conflict again?

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Now come the Defendant's  xxxxin the above titled matter and respectfully request this honorable court to deny the Plaintiff's Motion And Order To Continue Trial for the reasons stated in the Memorandum of Points and Authorities, attached hereto and incorporated herein by this reference.

 

Dated:               

 

Memorandum of Points and Authorities

 

Presently the Trial is scheduled for Novxxxx. This is the second trial scheduled as the Plaintiff's have already filed one continuance on XXXXX, and are pushing the Defendant's.

 

Then add your stuff

Therefore the Defendant's respectfully pray for the court to deny the Plaintiff's Motion And Order To Continue Trial and ask for the trial date of Nov to be upheld.

 

 

You are pointing out by asking for denial you are ready for them, and to the judge They are being jerks by making him do extra work with these motions. He could care less that you would be accomadating, and it looks like you are trying to direct the court with the phone call stuff. But just my humble opinion.

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I understand that Harry, I guess it depends on if you want to get it over with, or you want more time.  I think it is best not to make it to easy for them, it would be just one more thing to make them prepare, sometimes they do this (schedule trials that conflict, cause they have that 1 day open, so they schedule more than one trial) thinking they will get a summary judgement anyway on at least one if not both, and when they don't they get a continuance.  It gives them more time to prepare for a case they didn't think they would have to prepare for. 

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so they schedule more than one trial) thinking they will get a summary judgement anyway on at least one if not both, 

 

Or a settlement, they're always hoping for that.

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Ok, here's my 3rd draft MIL.  I don't know how to explain ways in which I will be prejudiced by the admission of their evidence.  Any help in this area will be appreciated.

 

Thanks for reading!

 

[deleted: See post #203 for final draft]

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You need more. You want to preclude the billing statements.....while you cited reasons about hearsay, you did not list anything as to the accuracy, how they were computed, lack of any proof they were ever mailed to you, etc. also I would put it lacks trustworthiness as there is no accounting from a zero balance to what they are asking for ( unless there was, then leave that part out)

You want to preclude the bill of sale, but saw nothing in there at all as to why it should not be admitted. Reasons would be your name or account no. so not referen,ced on its face, only shows a bunch of accounts were sold, (did it ave an affidavit?) if so did the affidavit reference that sale? Was your name referenced on that affidavit!? Include the part where the bill of sale gives no warranties except for what is provided in the purchase agreement, you asked for, but plaintiff did not provide the purchase agreement. Also did the bill of sale reference the attached eletronic records?

You didn't state why they should not let in the card agreement. Read the card agreement, does it pertain to this account? Can they prove it was sent to you?

There is case law out there to support it, trick is finding it for az or your circuit court. If you search and search and cannot find any, you could try finding the same supportive case law from federal or other states, then put in there az does not have case law, but other courts have ruled xxxxxxx. They don't have to take it, but it gives it some weight as opposed to none at all.

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I laid out a 'witness will have no personal knowledge' for all of the records they want to admit. Are you saying I need to go through and repeat this over and over for each specific record they want to admit?

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No you objected to the witness, that is good, but what if judge overrules your objection to the witness?  Then all the stuff he wants in gets in.  You need to specify objects to the documents as to why they would be hearsay, why they would not be trustworthy, the fact they are trying to introduce records that are incomplete.  If you don't include it all, he may do a work around on you, and admit any witness testimony.  You would have to object to each item in court, and at that late stage in the game you are not going to have any case law to back up your objections, it won't be on the record should you want to appeal, and it wont hold the judge accountable for ruling in favor of the plaintiff if he should let the witness testimony in laying the foundation for the records.  You not only want to let no foundation testimony in, but you want it to show even if it is let in, they still have issues. 

 

I know it is alot of work, and it will make your brain hurt.  But if you can do that, the JDB may dismiss before it even gets to trial.  If your sole case rests on impeaching the witness, then they are more likely to go all the way.

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I gotcha now!

I was thinking that because I was discrediting the witnesses testimony about the records, I was impeaching the records, but now I understand how these are two different things.

 

Thanks for clarifying...

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