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received CCP98 and response to CCP96 (CA, 30 days to trial)


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Hey there, I apologize for the amount of text. Initial CreditInfoCenter questionnaire for my case here http://sweatinginca.neocities.org

 

summary: Sued for 5k in CA by JDB. Causes of action are 'Open Book Account', 'Money Lent', 'Account Stated'

 

I received the plaintiffs CCP98 and response to my CCP96 today. Trial is 8/29. I hope to get a copy of everything uploaded for review by tomorrow evening, but wanted to start getting any available input now. My general idea to move forward is to have someone serve my request for CCP98 witness to show up at trial for cross examination, and then begin researching ways to prevent the plaintiff from succesfully submitting evidence. I also have some additional questions down below, but immediately following is a summary of the CCP98 and evidence they plan on using. Thanks in advance for any help.

 

 

<!-START CCP98-->

 

Witness declares:

 

He is employed by plaintiff as CFO, and has personal knowledge of the collection of the obligation of defendant. His responsibilities include knowledge of plaintiffs bookkeeping procedure. Has address available for service with 150 miles of the courthouse.  Certifies that the entries upon the account of the defendant were made int he regular course of all business. Is personally familiar with the Defendants account and could testify according to his personal knowledge.Recognizes each exhibit as records he removed from the file.

 

Plaintiff is the "assingnee of , the successor in interest to Wells Fargo".  When Plaintiff is assigned debt account, it organizes by profile, and profile number for the account at issue is XXXXXX. A true and correct copy of the assignment documents are attached hereto as EXHIBIT 1.

 

The account at issue was assigned to "Plaintiff by , who purchased the account at issue from Wells Fargo." The principle balance on the account at the time of assignment was $3,674.43. Attached hereto as EXHIBIT 2 is a true and correct copy of any and all account records received from Plaintiffs assignor.

 

After the collection department has attempted to resolve this matter, a spreadsheet of accounts is sent to his office and the second demand is made. If no response is received a suit may be filed.

 

EXHIBIT 3 is a printout of the plaintiffs computer system. He printed this document. The data on the screen was inputted either by him, or another  [JDB] employee whos responsibility it is to record transactions which affect Defendants account.

 

Computer systems are serviced normally, etc.

 

He is informed and believes that defendant executed and delivered to [OC] a written agreement.

 

On [date, three years ten months and 26 days ] plantiff filed its complaint against defendant.

 

Plaintiff requested all documents from its predecessor-in-interest at the time of Platiffs purchase. Attached as EXHIBIT 2 are true and correct documents received from Plaintiffs predecessor-in-interest.

 

EXHIBIT 5 is their documents to show court costs.

 

Plaintiff requests principal and interest from the charge off date (8/31/2009).

 

<!--END CCP 98--> 

 

 

EXHIBIT 1 : 

Bill of Sale, OC sells to "Absolute Resolutions Corp." charged off accounts dated 4/13/2010.

Signed by 'Wells Fargo Bank N.A as Seller', cannot read signature, dated 4/27/2010.

Also signed by notary, 4/27/2010.

 

Bill of Sale, "Absolute Resolutions Corporation" sells to "Kling Portfolio Acquisitions", dated 7/3/2012.

Signed by COO or Absolute Resolutions Corporation

 

Assignment for purposes of collection, from Kling to Persolve, dated 7/13/2012, signed by CCP98 Witness

 

 

 

EXHIBIT 2

What looks like one or two OC billing statements, with my name, address, and showing a previous balance. Second one shows account charged off 8/31/09.

 

EXHIBIT 3

Screenshot of Plantiffs computer system showing my name and balance.

 

 

 

ADDITIONAL THOUGHTS/QUESTIONS:

 

1) The CCP98 is missing words. In two different areas it says "Plaintiff is the assignee of , " and later "The account at issue was assigned to Plaintiff by ,  who purchased the account from Wells Fargo". There is no name there, just the comma as though someone forgot to fill in the blank. In addition to that, even if they did fill int he blank, the previous successor-in-interest purchased the account from another JDB (supported by the Plaintiffs own evidence). So even if they claim typo there is no word that could fill in the blank and make either of those statements true.

 

2) The CCP98 mentions a screenshot, printed by the witness, and inputted by an employee of Plaintiff. The username shown on this screenshot (in first intial last name format) is the same as the person who signed the proof of service for the CCP98. It is not the CCP98 witness. So maybe he printed it, but it doesn't appear it was his account accessing the application.

 

3) Am I entitled to request that each party to the various bills of sale show up at the trial, to cross-examine them as well?

 

4) CCP98 says witness is informed and believes there was a written agreement between OC and defendant, though none is provided in the CCP96.

 

5) In the complaint filed, the succesor-in-interest to OC is KLING Protfolio. In the evidence, it was sold from OC to Absolute Resolutions Corp, who then sold it to KLING. I am not sure if succesor-interest means 'purchased from', but if so then they failed to mention Absolute Resolutions Corp in their original complain.

 

 

That's it for now. Going to run to the store to grab some office supplies and then start researching in more detail this evening. Thanks again for your time if you made it down here.

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Might it be to my disadvantage to call the witness? If the CCP98 is missing the name of who assigned the debt to plaintiff due to typo/error, and that is the only evidence that they have to prove standing, I would assume they then have no standing in the eyes of the court. Can the bill of sale be used as evidence if it is not accompanied by a testimony?

 

If I call the witness to trial, the plaintiff could have him testify otherwise. The bills of sale are still in the evidence section, but maybe it doesn't mean much if the testimony says "," assigned the debt to the plaintiff as there is no bill of sale from any party to ",". I wonder what a judge would say.

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3) Am I entitled to request that each party to the various bills of sale show up at the trial, to cross-examine them as well?

 

Do the bills of sale have the original creditor's name at the top? Reason I ask is:

 

When I was pulled aside by the rent-a-lawyer right before my trial (she wanted to discuss settlement... HA), we were arguing over the valid ownership of the account and she suggested that the bills of sale "proved" ownership. I argued with her (and had already argued in my trial brief) that the JDB's name was NOT at the top of these bills and that they were documents of the alleged original creditor. So it was a matter of hearsay. Unless you have the funds to do so, I don't think you need to subpoena anyone but the CCP 98 declarant. But that's just my opinion. Other things to consider:

 

CCP98 declarant is NOT an employee of the OC and cannot provide first-hand knowledge of the OC's business practices:

 

"The chief foundation of the special reliability of business records is the requirement that they must be based upon the first-hand observation of someone whose job it is to know the facts recorded. But if the evidence in the particular case discloses that the record was not based upon the report of an informant having the business duty to observe and report, then the record is not admissible under this exception, to show the truth of the matter reported to the recorder. MacLean v. City and County of San Francisco, 311 P.2d 158, 164 (Cal. App. 1st Dist. 1957) (citing McCormick on Evidence, p. 602, § 286) (emphasis added). This language was also cited by the Law Revision Commission's comment to Evidence Code § 1271.

 

Likewise, the declarant does not have first-hand observation of the creation of those documents (the statements, the bills of sale):

 

"These exhibits also do not fall under the business records exception of Evidence Code section 1271 (section 1271). [Footnote omitted.] In order to establish the proper foundation for the admission of a business record, an appropriate witness must be called to lay that foundation. The underlying purpose of section 1271 is to eliminate the necessity of calling all witnesses who were involved in a transaction or event. Generally, the witness who attempts to lay the foundation is a custodian, but any witness with the requisite firsthand knowledge of the business’s recordkeeping procedures may qualify. The proponent of the admission of the documents has the burden of establishing the requirements for admission and the trustworthiness of the information. And the document cannot be prepared in contemplation of litigation." (Citations omitted; emphasis added.)

 

As for the print-out from the JDB from their computer system - I think you could argue "trustworthiness" regarding the information provided. This is a redacted portion from my trial brief regarding a similar document (a printout from the company with account information on it):

 

     Similarly, in Remington Investments, Inc. v. Moussa Nikbakht Hamedani, 55 Cal. App. 4th 1033 (Cal. App. 2d Dist. 1997) the court held that a note ledger was not admissible over a hearsay objection to prove the factual accuracy of the events it recorded because it did not meet the foundation requirements of Evidence Code §1271 for trustworthiness.

     Although the declarant stated in that case that he was familiar with the records, was the designated agent, declared that the records were made in the ordinary course of business at or near the time of the events they were recorded, and declared that they were made by persons who have a business duty to record such information, it was not enough. The declarant failed to present evidence of recordkeeping practices, evidence of the manner in which the note ledger was prepared, and failed to provide evidence as to the origin of the information it contained. Therefore, the court excluded the documents.

     Within the Declaration in Lieu from XXXXXXXXXXXXXXXX, she suggests that she has "reviewed the records," that they were kept in the "ordinary course of business by XXXX and by the original creditor," and that the records were "made and maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event they record." XXXXXXXXXXXXXXXX provides no explicit particulars regarding records preparation, details, keeping, or original sources for her documents.

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Do the bills of sale have the original creditor's name at the top? 

 

No they do not. Both of your arguments would apply to the BOS. Thanks for the input.

 

 

Is the CCP 98 declaration conforming to 2015.5?

As for the various BOS they have to conform to both CCP 98 and CCP 2015.5. If they don't then you can object based on those grounds too.

 

The CCP98 does conform to 2015.5. The first BOS has an notary signature supporting that it was signed, but no CCP2015.5 type signature to be found. Same for the second bill of sale. Thanks for your input.

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I'd like to ask a question about MIL. From my research it looks like the rules for motion in limine are up to the local court. I searched through my local court rules and found these sections that pertain to the motion in limine, does this process sound correct? I have read about both waiting until the day of trail, and submitting motions early. I don't want to violate any rules, but I also don't want to inform plaintiff of my strategy earlier than I have to.

 

http://66.175.216.64...php/court/rules

 

 

From reviewing that my understanding is that:

 

1) I need to send plaintifff a copy of my motions in limine 14 days before trial

 

2) plaintiff is supposed to organize a issues conference 7 days before trial, during which we are supposed to discuss each proposed motion in limine

 

3) plantiff counsel is to prepare a joint pretrial statement containing any motions in limine we resolved

 

4) If plaintiff and I disagree as to the subject of the motion, I bring the motions in limine with me to court the day of trial.

 

5) any motion in limine seeking to preclude the introduction of any evidence in the presnce of the jury (does this apply to non-jury trial?) a declaration stating that the subject of the motion has been discussed with oppsing counsel

 

6) I need to submit a single propsed order encompassing all motions

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Sorry CAL, moved here in an attempt to organize everything better: http://66.175.216.64/test/CIC/index.php/court/rules

 

I am trying to do reading this morning on MIL vs Objections at Trial. So far it sounds like MIL are referenced more for preventing the jury from being exposed to inadmissible evidence. I am going to try to look at each line of the CCP98 testimony, as well as each piece of evidence, and come up with as many arguments against each as I can. Then I will take my list or arguments and decide which would be best for the MIL(which is sent to plaintiff 14 days before), and which I might want to save for trial.

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Hey there. I've been reading through the CA Evidence code and have a question about presumptions. 

 

600.  (a) A presumption is an assumption of fact that the law
requires to be made from another fact or group of facts found or
otherwise established in the action. A presumption is not evidence.
 
603.  A presumption affecting the burden of producing evidence is a
presumption established to implement no public policy other than to
facilitate the determination of the particular action in which the
presumption is applied.

 

630. The presumptions established by this article, and all other
rebuttable presumptions established by law that fall within the
criteria of Section 603, are presumptions affecting the burden of
producing evidence.

 

635. An obligation possessed by the creditor is presumed not to
have been paid.

 

+++++++++++++++++++++++++++++++++++++

 

My understanding is that the above means that there are certain assumptions of fact that are considered true unless evidence is offered proving them to be untrue. Assuming the plaintiff was an OC, and had a copy of the contract signed by defendant, it would then be accepted as true that the defendant owes the plaintiff the obligation outlined in the contract? Is that what I should be taking from this?

 

However if the plaintiff lacked possession(evidence?) of the 'obligation', then it would not not be assumed that the defendant owes plaintiff?

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