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Hello all,

 

I'm in serious need of help.  My trial is set in 2 1/2 weeks for a credit card.  The JDB is Portfolio Recovery and I'm in the Los Angeles County, CA area.  I've read the posts here previously a couple of months back and filed a Bill of Particulars with a general Denial letter.  Other than sending a last credit card statement, I did not receive any other documentations that I requested in the BOP.  One of which was evidence that my account was bought by Portfolio.  I'm in a crunch because I actually thought my trial was in September.  I never received any discovery letter from their lawyers.  So my question, is it too late to request discovery from them asking them the documents that I recquested from the BOP but never received.  Does the other party usually request for discovery, otherwise what would be presented in trial?  Any advise would really be appreciated or should I seek an attorney at this late in the game?  Thank you.

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Also, I went through mediation based on court recommendation.  The mediation was a waste of time, bascially Portfolio requested I take one of the two payment plans.  I countered with a settlement and requested that part of the settlement they furnish that my account was purchased by them.  I countered for half of the balance and both the mediation and lawyer said they wont' go for that and my request to furnish proof is requested all the time and is easily obtainable.  So my question:  1.  Can I use the mediation saying that I requested for proof of account transfer in the BOP and Mediation and never received it.  2.  In the mediation, the payment plan balance was above what I was being sued for.  The lawyer and mediator stated that laywer and court fees are added to the balance.  Is that true, I read in some other postings they cannot go above what you're being sued for. 

 

Thanks.

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I would PM Calaywer for advice as he is in Ca. Without seeing your case from the start it's hard to help.  Did you do your own discovery withing the time allowed?? Send Rogs or RFP? If you did and they did not send you anything I think you would file a Motion to compel but again its hard to say without seeing you case.

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Thank you both for responding. I have not filed for discovery and only filed for a bop. What is the timeframe to file for discovery? I read astmedics post and the pretrial checklist and it looks like I missed some dates. Also, can they really add lawyer costs, etc to the amount I'm sued for?

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Hello,

 

Can anyone help provide the following answers:

 

1.  Can I still file for discovery with the trial starting within 10 days?

2.  Can the judgment include court and lawyer fees in top of what I was being sued for originally?

3.  Should I still write some note, request for proof of the account, transfer, statements as requested in BOP?

 

Thank you.

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You can't ask for discovery with 10 days left to trial.  Even if you could, you would not have time to move to compel if you get nothing other than objections.

 

Plaintiff can ask for attorneys' fees  IF IT PREVAILS  and IF it proves you entered into a contract containing an attorneys fee provisions.  Big IFs for a JDB.  Costs are awarded to any prevailing party.

 

Did plaintiff send you a "Declaration in lieu of live testimony" (CCP 98)?  If not, that means they really should bring a witness.  Even if you admitted to the debt, plaintiff has to have someone testify to the assignment.  You can't do so.

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All,

 

Thank you so much for your response.  Fortunately, I received a request for dismissal notification!!!  However, the dismissal reads:

 

To the Clerk:  Please dismiss this action as follows:  1) Without prejudice 2) Complaint 3) Entire action of all parties and all causes of action.

 

From what I read, the dismissal should be with prejudice not without.  Is there something I can do to change this?  From what I read, without prejudice gives them the authority to file suit again, so in essence they're just postponing the trial?  Any other items I need to do to put some closure on this case?  Thanks again.

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Good for you!!!! A dismissal is a win and if they or another JDB files you will be ready to go because believe me a trial is NO FUN.

 

 

Usually when you start to fight back and file everything they cave.  Have a drink on me and don't forget to file your memorandum of costs to get you fees back

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Thank you hot in az for all your responses!  I was reading another post from Linda7 with her recommendations to get a dismissal with prejudice, remove negative information in credit report, get the costs incurred back.  I would like to put some closure on this and request for a dismissal with prejudice as well as removing this from my credit report?  What do I have to file to do this?  If I'm not able to switch this with prejudice what are the changes of them refiling the suit and having more evidence the second time around?

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ok, so interestingly, i called the court to make sure the dismissal was filed and they stated they haven't received anything yet.  however, they said they're known to wait to the last minute to file in court.  the court clerk recommended to still show up at trial since there records indicate trial is still set.  if for whatever reason we do go to trial, all i have to do is bring the request for dismissal they sent me correct?  i should also bring my memo of costs so i can file? 

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You can't file for costs unless you win and that's a dismissal with prejudice. A dissmissal with out is just a "game over for now" kind of thing. If I were you I'd take it anyway you can get it. You are WAY behind the 8 ball and have little to work with at this point. You could argue if they didn't send a CCP 98 and don't bring a witness to trial and you should win but I'm worried you may not have the needed knowledge to do so. No insult intended. I don't think the study time has been applied yet.

If you can get out of this with out going to trial then you can be ready to fight if they file again later.

Yes go to court anyway just to be sure. You can take that letter with you just to be safe. Once trial has started a dissmissal WITH is appropriate.

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Keep checking to see if the dismissal has been filed.  If it has not been filed by the date of trial, show up with the dismissal in hand.

 

There is nothing you can do to force plaintiff to dismiss with prejudice.  They can dismiss without prejudice any time before trial.  However, they rarely refile and if they do, the case might then be barred by the SOL.

 

If the dismissal has been filed, you are the prevailing party and are entitled to your costs of suit.  Here is the form:  http://www.courts.ca.gov/documents/mc010.pdf

 

Congrats.  You got lucky.  My guess is that they could not get a witness to appear at trial and, for whatever reason, did not do a CCP 98.

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Thanks ASTMedic and calawyer!  Confirmed that the dismissal went through and the disposition of trial is now vacated. I'm a little confused, regarding the memo of costs.  Can I still file eventhough dismissal is without prejudice?  AST you mentioned I can only file with prejudice, while calawyer says I can.  Any issues if I do file?  I'm looking at getting my court filing costs and certified mails reimbursed.  Thank you all agin.

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You can't file for costs unless you win and that's a dismissal with prejudice. A dissmissal with out is just a "game over for now" kind of thing. If I were you I'd take it anyway you can get it. You are WAY behind the 8 ball and have little to work with at this point. You could argue if they didn't send a CCP 98 and don't bring a witness to trial and you should win but I'm worried you may not have the needed knowledge to do so. No insult intended. I don't think the study time has been applied yet.

If you can get out of this with out going to trial then you can be ready to fight if they file again later.

Yes go to court anyway just to be sure. You can take that letter with you just to be safe. Once trial has started a dissmissal WITH is appropriate.

No. Under CCP 1032 (a) (4), a "prevailing party" is a party in whose favor a dismissal is entered. Under 1032 (B), a "prevailing party is entitled as a matter of right to recover costs in

any action or proceeding."

You are a party in whose favor a dismissal has been entered. You are entitled to costs.

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No.  Under CCP 10332 (a) (4), a "prevailing party" is a party in whose favor a dismissal is entered.  Under 1032 ( B), a "prevailing party is entitled as a matter of right to recover costs in

any action or proceeding."

 

You are a party in whose favor a dismissal has been entered.  You are entitled to costs.

Typo I think.  CCP 10332 (a) (4) should read CCP 1032 (a) (4).  :)

 

And this forum interface always makes a smirk emoticon for ( b ) ... so the second reference is CCP 1032 ( b ).

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