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is there a effective way to pull case law ....I feel like finding a pin in the ocean...


browniebrownie141
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@shellieh98:

 

Can you please tell me what is CCP 96 & 98? Sorry, I am not as smart as you all are, still learn as I go, go as I fight....

 

@debtzapper:

 

Those are great piece, any california case law ? I am living in California.

 

I found that GA one, too. I was so happy then I realized it's GA, I also found 3 New Jersey 's ( MRS-L-001265-10 ) ( #A-1313-10T3) (#A2822-09T2); Missouri ( #358-S.W.3d58 Mo2012) and Colorado ( 308 Ga.App 469 Ga.Ct.App 2011 ).....

 

BUT I need California ones.....( taking a deep breathe) .....because

 

Million thanks,

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.

 

I would want to determine the required elements to prove an "open account" in California. Admission by the plaintiff of any missing element should be grounds for a grant of a defendant's MSJ.

 

 

Elements to prove open account in CA from "Interstate Groups Admrs v. Cravens, Dargans," Calif Crt of App. 1985

 

708 In recovering under its common count, respondent specifically established that appellant was indebted to it on "an open book account." (3) A "book account" is defined as a "`detailed statement, kept in a book,[[4]] in the nature of debit and credit, arising out of contract or some fiduciary relation.' It is, of course, necessary for the book to show against whom the charges are made.... . It must also be made to appear in whose favor the charges run." (Joslin v. Gertz (1957) 155 Cal. App.2d 62, 65 [317 P.2d 155], quoting Wright v. Loaiza (1918) 177 Cal. 605, 606-607 [171 P. 311].) (4a) A book account may furnish the basis for an action on a common count "`... when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.'" (Tillson v. Peters (1940) 41 Cal. App.2d 671, 678 [107 P.2d 434], quoted in Robin v. Smith (1955) 132 Cal. App.2d 288, 291 [282 P.2d 135].) (5) A book account is described as "open" when the debtor has made some payment on the account, leaving a balance due. (For more on book accounts see generally, 1 Cal.Jur.3d, Accounts and Accounting, § 3, pp. 214-217.)

(4b) For present purposes, the most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account. Accordingly, when a complaint alleges a common count to recover for a sum due on a book account, and, as occurred here, the complaint is answered by a general denial, this places in issue every entry in the book account. The defendant is therefore entitled to attack each of the entries "to show that the plaintiff has no right to recover or to recover to the extent that he claims." (Aetna Carpet Co. v. Penzner, supra, 102 Cal. App.2d at p. 860; see also, Bridges v. Paige, supra, 13 Cal. at p. 641.)

(1c

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Your ccp96 is what they send you that gives you everything they plan to use at trial.  You have to request it though.  A ccp98 is their "witness"  It is actually their affidavidt that they plan to use to try and lay foundation for the business records.  You subpoena that witness.  They have to be able to be served within 150 miles of your court house.  The attorneys will probably use their office as an address where they can be served, but since they have to be served personally 15 days before trial, they are never there. (most are out of state)  If they can't be served, then they won't show, and the jdb will not be able to use that affidavit to lay foundation.  No witness=no case.

 

Here are a couple of threads you should read to help you understand the whole process better, and has lots of sample motions and things you can use.  I don't know how far into the case you are, but ASTMedic won his case just by subpoenaing the witness (or rather that he tried).  He gives his accounting of his case.  Homeless actually wrote a ton of motions, briefs, and went all the way to trial where he used every card in the book and won his case on merit alone.

 

AstMedics thread  http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

 

Homelessinca;s thread  http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/?hl=%20target%20%20rocha

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@Shellieh98:

 

Focus on " there is no other trialable issue(s)",  is important. So, when I draft a new motion, it should be " motion to strike evidance" ? -- for the 1 page Bill of sale/ assignment + using the Subpoena. .......( before going for the MSJ, right?)

 

1 thing: looking at the http://www.courts.ca.gov/forms.htm?filter=SUB

Should I use SUBP-002 form or should I use SUBP-045 ?

SUBP-002 personal appearance + production of evidance ( but in state only)

SUBP-045 deposition ( not appearance ) + production of edivance ( out of state )

 

@debtzapper:

 

Do you have any case-law(s)-- California that states the JDB lack of evidance, e.g. no contract signed, no  OC's credit application, no OC's agreement, no further billing statements...etc  ? Look above, I found a few but all out of States,.....I want to CRY.....

 

Million thanks

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@ debtzapper:

 

--Post #25 JOSE N. VASQUEZ-Yes, I came across with that one, too. But they granted the L & J asset and burst Vasquez, kind of the oppsite what I am looking for....

 

http://scholar.google.com/scholar_case?case=2449868936170401351&q=midland+OR+asset+OR+cavalry+OR+portfolio+OR+unifund+%22valid+assignment%22&hl=en&as_sdt=4,5

 

--Post #27 is great, are those in blue color also other case law(s) ?

 

--Primary, I am trying to locate some California case law(s) that emphasis on, lack of evidance.

 

Million thanks

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@ BV80:

 

Long time ago, and I actually got a letter from plaintiff's attorney, rejecting VOD and ceased and desist letter, saying request was untimely.

 

When I replied the summon, I did not opt the cross complaint, but I used denial + affirmative defense: lack of privity.  

 

Then they shot me with their discovery, and I shot my to them, so making it complicate to add my cross complaint on the same case, therefore, I filed a separate complaint --FDCPA and FCRA violations Vs plaintiff.

 

Apart from this, and I try to stay focus on getting some california case law --lack of evidance/ lack of privity, can you help me to pull out may be just 1 or 2?

so that I can use, please !

 

Million thanks

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@ BV80:

 

I replied during the 30 days communication period. I know this becasue I did this before, ...I mean, Original Creditor sold this account to 2nd JDB, they contacted me, I responsed with DV and cease and desist letter, never hear from them again.

 

Then 2bd JDB sold the account to 3rd JDB = plaintiff, so I replied with DV & C/D letter, then they kept sending and calling, then, turned it attorney for lawsuit.

 

They have a Bill of Sale/ assignment, which is small paragraph from OC, which is a surprise! But the Bill of Sale does printed my name or account #. Just a very very brief reading.   

 

From their response to my Discovery ( all 35 questions of admission/ interrogatories and document request) , they revealed in writing response that they do not have any signed contract, no signed credit application, no agreement, no other monthly billing statement.  

 

This is why I am drafting MSJ, searching for California's  case law(s) that the plaintiff lacks of evidence/ lack of privity....but I found many are out of state. AND Shellieh pointed out first focus on " no other trial-able issue.

 

Do you have any California case-law(s) that I can use for quoting ??

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@ debtzapper:

 

--Post #25 JOSE N. VASQUEZ-Yes, I came across with that one, too. But they granted the L & J asset and burst Vasquez, kind of the oppsite what I am looking for....

 

http://scholar.google.com/scholar_case?case=2449868936170401351&q=midland+OR+asset+OR+cavalry+OR+portfolio+OR+unifund+%22valid+assignment%22&hl=en&as_sdt=4,5

 

--Post #27 is great, are those in blue color also other case law(s) ?

 

--Primary, I am trying to locate some California case law(s) that emphasis on, lack of evidance.

 

Million thanks

 

Yes, Those in blue are other cases.

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@browniebrownie141

 

Under federal law, injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) `actual or imminent, not "conjectural" or "hypothetical,"' [citation]." Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323 (2011)(citing Lujan v. Defenders of Wildlife, supra, 504 U.S. at p. 560, fn. omitted.)


"A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. [Citation.]" (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 [24 Cal.Rptr.3d 474].)


"The burden of proving an assignment falls upon the party asserting rights thereunder [citations]." (Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292.)

An assignment agreement "must describe the subject matter of the assignment with sufficient particularity to identify the rights assigned." (Mission Valley East, Inc. v. County of Kern (1981) 120 Cal.App.3d 89, 97.)

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@debtzapper:

 

That is a great website, in fact it has been helping me on many subjects, from the start to now. Still, thank you for bring this up.  

 

I know I am the person who needs "to do the work", not others, after all, I am the person who got sued.

 

During my search, I came across a lots of cases that were plaintiff 's MSJ, others mostly are defendant got defaulted judgment because they did'nt respone to summon, I got a few others which I posted, mostly were out of state, this is the reason why I started this posting at the very first place.

 

I posted what I came cross, the 3 new jersey cases, the missouri case, & the colorado case, others may be able to use as well, as there may be some viewers here from those states.  

 

Meanwhile, just simply open my mouth asking while searching, hopefully some other guys from california came across, throw me a case or 2, I hope you understand this online-searching-path, sometimes got lonely.

 

Million thanks

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It would help if I hadn't left this one out:

 

The standing doctrine derives from the statutory requirement that: "Every action must be prosecuted in the name of the real party in interest . . . ." (Code Civ. Proc., § 367.) To have standing to sue, a person, or those whom he properly represents, must "`have a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.' [Citation.]" (Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707 [93 Cal.Rptr.2d 580].)

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(3) The standing doctrine derives from the statutory requirement that: "Every action must be prosecuted in the name of the real party in interest . . . ." (Code Civ. Proc., § 367.) "A person who invokes the judicial process lacks standing if he, or those whom he properly represents, `does not have a real 634*634 interest in the ultimate adjudication because [he] has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.'" (Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707 [93 Cal.Rptr.2d 580].) The standing inquiry focuses on the plaintiff, not on the issues to be determined, and the reported decisions generally recognize standing where a plaintiff has a personal interest in the litigation's outcome. (Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1040, 1046 [17 Cal.Rptr.2d 400].)

 

From:

184 Cal.App.4th 629 (2010) 108 Cal.Rptr.3d 894 RIDGEWATER ASSOCIATES LLC, Plaintiff and Appellant,
v.
DUBLIN SAN RAMON SERVICES DISTRICT, Defendant and Respondent
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Today, there has been a development....and I could not believe it....

Today, I received a report from Equifax, indicating that, the alleged account - the very lawsuit I am fighting Vs. Portfolio Recovery Asso, was just sold to Capital One, from plaintiff Portfolio Recovery Associates, LLC DURING the lawsuit while we are still going on !!!


Sometime earlier, I noticed there were many firms who did soft pull on my credit reports, while I was concern that they "may be" hunting down my other accounts, ....Capital One sent me a letter, asking me some questions.

All this time, I did not have any business with Capital One, but I responsed their letter:

1. I asked them why did they conduct a soft pull on my credit report.
2. sent along validation of debt request and ceased and desist letter ( just in case if there were the one on my another account)
3. I further told Capital One that there are 2 lawsuits going on, first Portfolio Recovery Asso. Vs. ME on this alleged account, and my separated lawsuit Vs. Portfolio Recovery Asso on FDCPA violations.

Capital One never responsed.

Now, my question a
re:

-Any law(s) / rules that Portfolio Recovery Associates, LLC violated -- Can they really sell the alleged account during lawsuit ?

-What should I do to Portfolio Recovery Associates, LLC ?

-Do I need to notify the Court about this "event"?

-How should this "sale" affecting the lawsuit here ? If Portfolio Recovery Associates, LLC later file a dismiss on their own, is there a way I can make them pay for my expenses spent on this lawsuit ? Or do I need to file a lawsuit for this ?

 

 

Million thanks

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@BV80:

 

The original credit was HSBC, they then sold to 2nd JDB, then 2nd JDB sold to Portfolio Recovery Asso = 3rd JDB= plaintiff , now, just find out, they sold to 4th JDB- Capital One.

 

Today, I received a letter from Equifax, indicating that alleged account was "transfer/sold", and the name Capital One pop's up.

 

Thanks

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