Sharleemar

Yet, another LVNV suit. Need help at where I am now with case...

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They have a difficult time proving assignment is a normal case where the original creditor assign directly to the JDB.  How will they prove the assignment from Chase to Sherman to LVNV?

 

Oppsy - They did...I think. 

I just received my CCP 98 package back from opposing attny. They have, again, sent the statements, the application, the bill of sale and NOW... (big drum roll) a signed and notarized, on OC letterhead, transfer between Sherman, and OC with my name specifically, the account #  (ONLY the last four tho) and the amount transferred. Although, just created this past January. 

 

Really??? So, the big wigs at the OC have the time to put together a one paragraph transfer letter from the millions of transfers they do, OR even the thousands of transfers placed into the court system for the folks that fight?? Really??

 

What doesn't make sense is; if the OC transferred the account specific - why would they not have the entire account number on the transfer that was notarized? . 

I do not believe it's real? 

 

I will have to call the big wig for a depo - but he's in FL

 

Also, they say there will be someone (not yet identified) from "L V NV custodian of records" to testify. Okay, I thought that was what I asked for in the CCP 98?? 

 

I have my cross - complaint and I think it's pretty strong...

I will need to place the deposit on the jury by the beginning next month. 

 

Little worried... but not scared. 

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Oh... I know!! I just had to do this for my MASSIVE civil battle...

I will write the notary and get the copy from her journal entry to see if this guy really signed the doc.  writing letter now. 

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I am preparing my response to submit my CCP 98 to opposing counsel. I hope I still have time... I need to send what I plan on using at trial from my cross complaint (FDCA violations). I have the CR (I assume I can redact items that are not relevant to the case) and the telephone logs, etc. My focus has been more in the way of defending myself than the cross-complaint against them. It was recommended to take them to small claims (by a consultation w/an attorney).  

 

Tomorrow: I need to pay for jury fee deposit. I read the fees online and am not sure if it's $150 deposit or $150 per day for 3 days. If someone knows - please chime in.  I can cancel the jury right?  How? Just not make the deposit....  

 

I just re-read the homelessinca thread regarding MIL, decs, and trial briefs as these can be filed the day of the trial (as I understand) and I have been watching josewales thread as well (all similar to mine).  More than likely I will file at the trial readiness conference, which is the day before trial.  The thread is so awesome and helpful. Thank you to everyone in the thread! 

 

See my post previously; I was going to send the letter asking the notary for a copy of the journal entry from the OC signing the transfer agreement this past January (not near or at the time of the act of the original time of transfer).

I didn't get an "Amen" from the panel so I wasn't sure if that was a good idea. More than likely I would not get a response on time from her anyway. As I understand it: the transfer agreement  is not a record made in the regular course of business and was made in preparation for litigation and it does not qualify for the business records exception to the hearsay rule (CEC 1271(B)).

 

Also, the OC person that signed the transfer agreement is in Florida - appears I cannot subpoena him for trial. There is no declaration attached to the transfer letter either and no there was nothing to show the source of information or how the documents were prepared.

 

In the attorneys CCP 98 it states that there is yet to be known the Custodian of Records - How can I call a witness that is unknown 20 days before trial - odd.     

And in CEC 1271(d) the source and info and method and time of prep of the records must be trustworthy as a business record - not!

 

It's getting close for me. I don't wanna do it (like most in pro per herein)! But I have taken it this far ~ I have to.

If I am on the wrong track - let me know. You can PM me. I hate the feeling that "they" are watching - as they said they are/were. I just know that it will be used at trail that I go help on this forum - since he kept using it in the depo...strange. 

 

In the end... I think I have the defense part - maybe. But the cross-complaint is not as strong as I wanted. Another attorney suggested to file a MSJ - thoughts? 

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I am preparing my response to submit my CCP 98 to opposing counsel. I hope I still have time... I need to send what I plan on using at trial from my cross complaint (FDCA violations). I have the CR (I assume I can redact items that are not relevant to the case) and the telephone logs, etc. My focus has been more in the way of defending myself than the cross-complaint against them. It was recommended to take them to small claims (by a consultation w/an attorney).  

It's your CCP 96 response, and send it even If t is late (hopefully it's not) this is priority

 

Tomorrow: I need to pay for jury fee deposit. I read the fees online and am not sure if it's $150 deposit or $150 per day for 3 days. If someone knows - please chime in.  I can cancel the jury right?  How? Just not make the deposit....  

I personally would want  a jury, although most probably would not. There is also a "jury packet" full of paperwork that has to be filed. It is $150 deposit which covers the first day, then $150 per day payable at then end of the previous day. You can waive your right to a jury. Not paying the fees does it as well.

 

I just re-read the homelessinca thread regarding MIL, decs, and trial briefs as these can be filed the day of the trial (as I understand) and I have been watching josewales thread as well (all similar to mine).  More than likely I will file at the trial readiness conference, which is the day before trial.  The thread is so awesome and helpful. Thank you to everyone in the thread! 

 

See my post previously; I was going to send the letter asking the notary for a copy of the journal entry from the OC signing the transfer agreement this past January (not near or at the time of the act of the original time of transfer).

I didn't get an "Amen" from the panel so I wasn't sure if that was a good idea. More than likely I would not get a response on time from her anyway. As I understand it: the transfer agreement  is not a record made in the regular course of business and was made in preparation for litigation and it does not qualify for the business records exception to the hearsay rule (CEC 1271( B)).

I doubt the notary approach is going to do any good (although I haven't read much about it)

Also, the OC person that signed the transfer agreement is in Florida - appears I cannot subpoena him for trial. There is no declaration attached to the transfer letter either and no there was nothing to show the source of information or how the documents were prepared.

I think you are OK without subpoenaing him

In the attorneys CCP 98 it states that there is yet to be known the Custodian of Records - How can I call a witness that is unknown 20 days before trial - odd.  

Not "odd" but rather "against code" or "not permitted" applies. You cannot subpoena if they have not provided a name and address 150 miles from the trial. Read the CCP 98. File the MIL for the CCP 98 declaration with all your objections.   

And in CEC 1271(d) the source and info and method and time of prep of the records must be trustworthy as a business record - not!

This is true for alleged records, but the CCP 98 declaration is not  a business record (although it may contain exhibits that are trying to be). It is untrustworthy though.

It's getting close for me. I don't wanna do it (like most in pro per herein)! But I have taken it this far ~ I have to.

If I am on the wrong track - let me know. You can PM me. I hate the feeling that "they" are watching - as they said they are/were. I just know that it will be used at trail that I go help on this forum - since he kept using it in the depo...strange. 

I haven't been following this and have missed a lot of your post. But it seems you are on track. I especially liked the jury trial demand and cross complaint, nice work, even if you don't go with the jury. Also you can PM anyone or up to 5 on one conversation if you have bottom feeders snooping here.

In the end... I think I have the defense part - maybe.

I know there is a good defense, if you don't have it down 100% then we can  help get you tuned up.

But the cross-complaint is not as strong as I wanted.

It may not have to be. It's still going to make them work.

Another attorney suggested to file a MSJ - thoughts? 

It sounds like you have a good cross complaint then. I don't think you have time to file an MSJ on it however.

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@Sharleemar

 

Did you send the C&D to the attorney before or after litigation began?  After receiving your C&D, did they call you after litigation had begun?

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@Sharleemar

 

 After receiving your C&D, did they call you after litigation had begun?

There are times when they have to call you during litigation (meet and confer prior to CMC), which would be legal regardless of the C&D.

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Oppsy - They did...I think. 

I just received my CCP 98 package back from opposing attny. They have, again, sent the statements, the application, the bill of sale and NOW... (big drum roll) a signed and notarized, on OC letterhead, transfer between Sherman, and OC with my name specifically, the account #  (ONLY the last four tho) and the amount transferred. Although, just created this past January. 

 

Really??? So, the big wigs at the OC have the time to put together a one paragraph transfer letter from the millions of transfers they do, OR even the thousands of transfers placed into the court system for the folks that fight?? Really??

 

 

You must have something here. Mode and time of preparation not trustworthy. Created solely for the sake of litigation and to be viewed as less than trustworthy.

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@Anon Amos

 

That was my thinking and the reason I asked because she referenced calls after the C&D as an FDCPA violation.  I was wondering if any calls after the C&D were made before litigation began.  If so, she might have something there.

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Thanks Anon Amos and BV80. 

 

Yes, the numerous calls were made after the C&D letter before litigation.

After litigation, I do understand the need for, as pro per, allowing calls pertaining to the litigation (M&C or the deposition coordination) but not calls to collect the alleged debt.

 

RE: the January notarized Transfer - what is curious to me is - I just do not believe that a large bank would go out of the way to put together simple a paragraph related to sale of the alleged CC debt from 2010. Why wouldn't they have the entire account number? and why didn't they do that at the time of sale? I can only imagine the hours spent on reviewing, signing, notarizing, etc. the tons of JDB's list of accounts. This is totally not trustworthy. I want to say its totally fraudulent. I would love to pull in the notary and the person that allegedly signed the doc as a witness to find out.

 

And thank you again Anon Amos for the response to my lengthy paragraph. Very very helpful (as always!).  

 

I will be doing up the CCP 96 Response.

 

Preparing my brief and MIL next.  

 

Thanks for the tip on the PMing and for the support and cheer~leading! All of nervous Nelly's need a little hand holding... I do anyway.  :) 

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@Sharleemar

 

For your calls that were received before litigation:

 

"Other than as permitted by § 1692c©, a debt collector who has received a cease communications order from a debtor must not contact the debtor unless it has received a clear waiver of that order." Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1171 (9th Cir.2006).

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Thanks Anon Amos and BV80. 

 

Yes, the numerous calls were made after the C&D letter before litigation.

That's good for you then.

After litigation, I do understand the need for, as pro per, allowing calls pertaining to the litigation (M&C or the deposition coordination) but not calls to collect the alleged debt.

True, but most lawyers contact you first and ask that the C&D be waived for litigation purposes. Good job with the cross complaint, it adds leverage.  

RE: the January notarized Transfer - what is curious to me is - I just do not believe that a large bank would go out of the way to put together simple a paragraph related to sale of the alleged CC debt from 2010.

That's a good point.

Why wouldn't they have the entire account number? and why didn't they do that at the time of sale?

That's common. They will say it's partially redacted for privacy protection. It's not proof that they don't have the whole number, it may just be redacted. You can still argue these points however, and see what they produce, it's just not your strongest argument.

I can only imagine the hours spent on reviewing, signing, notarizing, etc. the tons of JDB's list of accounts. This is totally not trustworthy. I want to say its totally fraudulent.

Also, a lot of this is done for the sake of litigation only, and the mode and time of preparation is untrustworthy. (I am sure you have but just in case) learn the rules of evidence and authentication. Hearsay, business records exception to it, and rules of authentication.

I would love to pull in the notary and the person that allegedly signed the doc as a witness to find out.

You may have been able to get at this information and possibly subpoena thru discovery, but don't have time now. However, the notary is supposed to keep a log book of everything they do. You can request to see the entry for the day and see what they come up with. You could at least then go on record as having investigated due to it being untrustworthy.

And thank you again Anon Amos for the response to my lengthy paragraph. Very very helpful (as always!).  

 

I will be doing up the CCP 96 Response.

 

Preparing my brief and MIL next.  

Good^^^^this is very important. There is an example a MIL example ASTMedics thread.

Thanks for the tip on the PMing and for the support and cheer~leading! All of nervous Nelly's need a little hand holding... I do anyway.   :-)

You are very welcome. You are going thru an overwhelming task, but you are not making it easy on them at all either. I think you may want to do more  about the CCP 98 declaration. Maybe a meet and confer letter to the lawyer telling them you need an address for the declarant to be served (and that sub service is not allowed). I would also file a "legal notice" to the court pointing out that the declarant needs to provide THEIR address within 150 miles of the court, and also include the statute as well (CCP 98).

And I would get  a court reporter for the trial as well. You would probably have to provide your own and pay for it, but if at all possible, it's money well spent. The court reporter reminds the judge to apply the law. You can file for your expenses after you win the case.

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One of the big things is the OC is Chase.  Chase had alot of problems with collecting on paid accounts, selling off debt that had been settled (I was one of those) and whistle blower linda almonte exposed them. Case quit selling accounts for the time being because of this, they could not prove the accuracy of their accounts.  I would really dig into some of that case law, check out the case filed by almonte in texas- not binding in california, but could be useful in proving they cannot attest to how the bussiness records were kept and maintained with accuracy. 

I have a mil posted here somewhere that speaks to some of that, also in there is how there is no bill of sale from sherman to LVNV.  That assignemt proved nothing as far as I was concerned, the average person wouldn't know the 2 companies are related, and I doubt they provided any proof to that effect. I also disputed their witness as they were required under the rules of evidence to provide me a name and address, not "an associate".  They dismissed my case with prejudice the day of trial.

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@shellieh98

 

Thanks tons. I will research the cases. 

 

Yes, I do know that Sherman is the parent company of LVNV or sold to LVNV. I have a untrustworthy BOS between the two. As well as a very untrustworthy Transfer from Chase to Sherman.

I so have a MIL I found here from - I think from  @homelessinca or one of his threads.  I have found some good info here and the inspiration to keep going is phenomenal.

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