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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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  • 4 weeks later...

Gentlemen/ Ladies,

 

I come before you all once again asking for help....

 

For someone who has 'nt read the entire posting here, first allow me to give you a brief background of the case:

 

1. I am from Los Angeles California.

 

2. $4K, OC was HSBC, sold to 2nd JDB then sold to 3rd JDB-plaintiff 

 

3. Exchanged Discovery. From their discovery response, they revealed in their own writing, they did not contract/ agreement from OC, no contract between plaintiff and defendant...they only had half page of bill of sale/ assignment without my name / account# on it.

 

4. So, I jumped the gun and filed the MSJ Vs. plaintiff.

 

5. Trying to close the loose end, I sent demand for Bill of Particular, asking for a few things, then they responsed with non-sense and gave me the go-around, I filed a motion to exclude the evidance.

 

6. Though it was good, but made a BIG mistakes, sent motion thru fax, and too early. Even the judge said it was pre-mature, so my motion ws denied in less than 5 minutes at hearing...

 

Now:

 

-The plaintiff is trying to kill my MSJ with bringing in a new evidance- mastercard acceptance ( also half page but with my name on it, no account#), trying to present the case now still has trialable issues.

 

-They further sent a supplemental discovery response now all 35 answer with the same cookies cutter, saying that they now has new evidance, ( trying to kill my statement of undisputed material of facts. 

 

-They also, send a request: Below: (using pleading paper but does not have a dealine)

 

Request for copies of non California authorities

 

Pursuant to CRC 301113(i), plaintiff requests that defendant provide copies of each authority other than California cases, statues, constitutional provision, or state / local rules defendant cite in his motion MSJ, memorandum of points and authorities and supporting papers. This includes, without limitation, citations to treaties books, federal cases and statues and/ or rules other than state cases, statues and /or rules. Defendant must promptly provide copies of each authority cited.

 

Suggestions and comments anyone, please...especially the last part-CRC 301113(i).....

 

Million thanks

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...

Request for copies of non California authorities

 

Pursuant to CRC 301113(i), plaintiff requests that defendant provide copies of each authority other than California cases, statues, constitutional provision, or state / local rules defendant cite in his motion MSJ, memorandum of points and authorities and supporting papers. This includes, without limitation, citations to treaties books, federal cases and statues and/ or rules other than state cases, statues and /or rules. Defendant must promptly provide copies of each authority cited.

 

Suggestions and comments anyone, please...especially the last part-CRC 301113(i).....

 

Million thanks

Perhaps CRC 301113(i) is actully CRC 3.1113(i)

Here is a link to an article discussing, "No more appendices of non-California authorities!" http://www.uclpractitioner.com/2011/08/no-more-appendices-of-non-california-authorities.html

It appears a judge would have to order such a requirement.

 

In litigation, I find the faster I hurry the messier it gets. YMMV, but it is unlikely.

I will happily trade a win for quickness every time.

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Hi Credator,

 

Below are the link you refer to me.....I see point#1 --that's what you are saying , right? But how about #3??

 

If I need to do it ? How do I do it ? Anyone knows ??

 

Million thanks

No more appendices of non-California authorities!

Effective July 1, 2011, Rule of Court 3.1113(i) has been amended. This Rule previously required filing copies of any non-California authorities cited in your briefs. No more. Appendices of non-California authorities are now required only if the judge specifically orders it:

(i) Copies of authorities

(1)
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A judge may require that if any authority other than California cases, statutes, constitutional provisions, or state or local rules is cited, a copy of the authority must be lodged with the papers that cite the authority and tabbed as required by rule 3.1110(f).

(2)
1pixel.gif
If a California case is cited before the time it is published in the advance sheets of the Official Reports, the party must include the title, case number, date of decision, and, if from the Court of Appeal, district of the Court of Appeal in which the case was decided. A judge may require that a copy of that case must be lodged and tabbed as required by rule 3.1110(f).

(3)
1pixel.gif
Upon the request of a party to the action, any party citing any authority other than California cases, statutes, constitutional provisions, or state or local rules must promptly provide a copy of such authority to the requesting party.

(Subd (i) amended effective July 1, 2011 ....)

Previously, the Rule read as follows:

(i) Copies of non-California authorities

If any authority other than California cases, statutes, constitutional provisions, or state or local rules is cited, a copy of the authority must be lodged with the papers that cite the authority and tabbed as required by rule 3.1110(f). If a California case is cited before the time it is published in the advance sheets of the Official Reports, a copy of that case must also be lodged and tabbed as required by rule 3.1110(f).

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Below are the actual ones I put in for my MSJ, some of those are out of state (non california's state).

 

The JDB's attorney requests for copies of non calif authorities ( each) ....

 

With the new piece of evidance, it creates a "trial-able issue", thus, my MSJ would be killed easily.

 

What I do not understand, is how to provide "each authority cited" with what he is requesting ?

 

My feeling , is that he is trying to play me here, after I encountered me thru motion of prelude of evidance- resulting from Demand of Bill of Particular, the judge denied the motion, saying i should not notified them thru fax, and notification was sent prematurely.

 

 

 

 

 

 

Case-law(s) for reference:

 

1. Beauchamp v. Martin, Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2007

"Martin's testimony that she never entered into an agreement with Beauchamp concerning the ownership of the property, and that she always regarded it as an investment belonging to herself alone, supports the reasonable inference that there was no meeting of the minds and thus no partnership or other agreement. We therefore affirm the trial court's rejection of all claims that were based on the alleged agreement."

 

2. Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 [24 Cal.Rptr.3d 474].
 

"A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. [Citation.]"

3. Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292

 

"The burden of proving an assignment falls upon the party asserting rights there under [citations]."

4. Mission Valley East, Inc. v.
County of Kern (1981) 120 Cal.App.3d 89, 97

 

“An assignment agreement "must describe the subject matter of the assignment with sufficient particularity to identify the rights assigned."

 

 

5. Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707 [93 Cal.Rptr.2d 580].

 

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.]"

 

 

Out of States Case-law(s) :

 

6. New Jersey (#MRS-L-001265-10 ) New Century Financial Services Vs. David Shaler (2010)

 

Debt buyer has no proof of the debt, the bill of sale is incomplete, without reference to defendant’s name and account number.

7. New Jersey (#A-1313-10T3 ) LVNV funding LLC Vs. Mary Colvell (July, 2011)

 

New Jersey Appellate division reversed motion for summary judgment that was entered in favor of debt buyer. The Court concluded that evidence submitted would not even satisfy the requirement for judgment by default where a creditor must prove more than the merely the total amount remaining unpaid. Instead, the creditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of billing cycle, and the new balance.

8. New Jersey (#DC-004044-11 ) Midland Funding Vs. Cheryl E. Williams (April, 2011)

 

Defendant filed motion for summary judgment, and in opposition, plaintiff submitted it’s own affidavit, but the Court ruled that, even if plaintiff’s affidavit were accepted, there was no proof as to plaintiff’s standing.

 

9. Geogoria ( 300 Ga. APP. 488, 489, 685 S.E. 2nd 433 ) Wirth Vs. CACH, LLC ( 2009 )

 

The ruling of the lower court in favor of CACH was reversed by the Georgia Courts of Appeals. The reason for that reversal was due to the fact that CACH had not proven tht is was entitled to file suit. Among the deficiencies in CACH’s claim of assignment was the debt buyer’s Bill of Sale which referenced an Appendix A,. The Bill of Sale provided.

 

“Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (“Purchaser”), dated as of August 25, 2006 ( the “Agreement” ), does hereby sell, assign, and transfer to Purchaser, it’s successors and assigns, all right, title, and interest in and to the Accounts listed in the Account Schedule attached ( as may be amended in accordance with the Agreement ) at Appendix A to the Agreement [.]”

 

The Court noted that “ Moreover, there is no contract of Appendix A appended to the Bill of Sale which identifies Wirth’s account number as one of the accounts Washington Mutual assigned to CACH, LLC.”

 

OCGA § 9-11-56©.´ (Citation and punctuation omitted.)Rabun v. McCoy, 273 Ga.App. 311, 615 S.E.2d 131 (2005). ³We review the grant or denial of summary judgment de novo, construing the evidence in favor of the non movant.´ Id.So viewed, the evidence shows that Cach, alleging it was the assignee of Providian, brought this suit to collect the principal amount of $2,310.72 owed on a credit card account agreement allegedly entered into by Wirth and Providian. Attached to the complaint was a standard cardmember agreement entitled ³PROVIDIAN NATIONAL BANK VISA AND MASTERCARD ACCOUNT AGREEMENT.´ Wirth filed an answer to the complaint, in which he asserted that Cach was not the real party in interest

(OCGA §9-11-17(a)) and also filed a counterclaim under the Fair Debt Collection Practices Act. 15 USCS §1692e.

Thereafter, Cach filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on its complaint. Attached to its motion was an affidavit from Tiffany Corrales, who identified herself as an authorized agent of Cach and business records custodian of its credit card accounts, including that belonging to Wirth. Corrales stated that Providian ³assigned all rights and interests of [Wirth's account] to [Cach].´ Cach also moved for partial summary judgment on Wirth's counterclaim, arguing that Wirth failed to prove any genuine issue of fact to support such claim. Finding ³no genuine issues of material fact and [that] Cach is entitled to judgment as a matter of law,´ the trial court granted Cach's motion for summary judgment and entered judgment in its favor and against Wirth in the principal sum of $2,310.72, plus interest,attorney fees and court costs. The trial court also granted Cach's motion for partial summary judgment and dismissed Wirth's counterclaim with prejudice.Wirth argues that the trial court's order was not supported by any evidence of a written assignment to prove that Cach was the real party in interest. We agree.

³THE DOCTRINE OF PRIVITY OF CONTRACT requires that only parties to a contract may bring suit to enforce it. [Cit.]´ Scott v. Cushman & Wakefield of Ga., Inc., 249 Ga.App. 264, 265, 547 S.E.2d 794 (2001);


OCGA §

9-2-20(a). ³A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.´ (Punctuation and footnote omitted.) Nyankojov. North Star Capital Acquisition, 298 Ga.App. 6, 8, 679 S.E.2d 57 (2009). Further, the writing ³must identify the assignor and assignee.´ (Footnote omitted.) Id. To prevail on its motion for summary judgment, Cach, as movant, has the burden of ³establishing the non-existence of any genuine issue of fact,´ including Wirth's assertion that Cach is not the real party in interest, and ³all doubts are to be resolved against [Cach].´ (Citation and punctuation omitted.) Sawgrass Builders v. Key, 212 Ga.App.138(1), 441 S.E.2d 99 (1994).Here, Cach relies on the Corrales affidavit to show that Providian assigned to it ³all rights andi nterests [to Wirth's account].´ The affidavit, however, fails to refer to or attach any written agreements which could complete the chain of assignment from Providian to Cach. Further, the account invoices upon which Corrales relies reflect that Wirth's account was with Washington Mutual.

 

 

 

 

10. Colorado (308 GA App. 469, 707 S.E. 2nd  872 875 ) Hutto Vs. CACV (June 2011-12)

 

The Court of Appeals made the same observation in Hutto v. CACV of Colorado and reversed the lower court’s granting of summary judgment to CACV. The Bill of Sale in that case provided.

 

“FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA National Association (“Seller”) and CACV of Colorado, LLC (“ Purchaser”), dated July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchase, it’s successors[,] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit” A” attached hereto and made a part hereof for all purchases.”

 

Furthermore, the Bill of Sale stated that it was assignment of “certain accounts” listed in “Exhibit A”, there is no document attached there to labeled” Exhibit A”, and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts. 

 

11. Colorado   (#693 S.E. 2nd 629, 635 Ga APP) Yates Vs. CACV, LLC (2010)

 

The plaintiff appealed an arbitration award in favor of CACV. The Court of Appeals reversed the trial court’s decision. Among the reasons for the reversal, the Appeals Court again noted that assignment of the account had not been proven.

 

Here, CACV attached to its petition a photocopy of a document titled “Bill of Sale and Assignment of Loans” as evidence that it was the assignee of MBNA’s rights under the bank credit agreement with the defendant, Yates.

 

CACV, however, did not file a supporting affidavit authenticating that document. Furthermore, the alleged assignment stated that it was assignment of MBNA’s right to each of the Loans identified in the loan schedule (“Loan Schedule”) attached hereto…” The photocopied document submitted by CACV, however, did not have an attached Loan Scheduke and therefore did not demonstrate that Yate’s loan had been assigned to CACV.

 

 

 

 

Below are the actual ones I put in for my MSJ, some of those are out of state (non california's state).

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Gentlemen/ Ladies,

 

I come before you all once again asking for help....

 

For someone who has 'nt read the entire posting here, first allow me to give you a brief background of the case:

1. I am from Los Angeles California.

 

2. $4K, OC was HSBC, sold to 2nd JDB then sold to 3rd JDB-plaintiff

 

3. Exchanged Discovery. From their discovery response, they revealed in their own writing, they did not contract/ agreement from OC, no contract between plaintiff and defendant...they only had half page of bill of sale/ assignment without my name / account# on it.

 

4. So, I jumped the gun and filed the MSJ Vs. plaintiff.

 

5. Trying to close the loose end, I sent demand for Bill of Particular, asking for a few things, then they responsed with non-sense and gave me the go-around, I filed a motion to exclude the evidance.

 

6. Though it was good, but made a BIG mistakes, sent motion thru fax, and too early. Even the judge said it was pre-mature, so my motion ws denied in less than 5 minutes at hearing...

 

Now:

-The plaintiff is trying to kill my MSJ stating a new evidance- a copy of credit application ( BUT they did not send it to me !!!), they are trying to present the case now still has trialable issues.

 

-They further sent a supplemental discovery response now all 35 answer with the same cookies cutter, saying that they now has new evidance, ( trying to kill my statement of undisputed material of facts.

 

I am trying to keep my MSJ alive (but I know, with new evidence = still have trial-able issue(s), the MSJ will easily down to toilet.

 

So far, all evidences provided by JDB:

-half page bill of sale/assignment without my name & account#

-half page of mastercard acceptance with my name on it but no account#

-old account statement ( for 11 months only)

 

How do I getting the above evidence(s) excluded?

If the above evidence(s) are/ is excluded? Can I then update my statement of undisputed material fact(s) with MSJ, thus, making the MSJ alive?

 

Also, the calendar dept for scheduling the motion is very busy, I called and they told me the next available date if after the MSJ hearing date, which is no good. Any suggestion as to how could I getting the evidence excluded before MSJ date ( it’s beginning of January 2014.

 

Separately, I think I have a little “saving grace” here, I kept a old letter, from OC, that I has another credit card with them but was closed by them due to inactivity, no $ was owe on this one. I think I will use it to counter the half page of bill of sale/ assignment  AND half page of mastercard acceptance, as mentioned above.

 

So again, how do I get the above evidence(s) excluded and keep my MSJ alive??

 

Million thanks

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