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Down to the wire- I hope someone's awake!


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Okay, trial is tomorrow, working frantically to get this stuff done.Fighting CCP98 Declaration. Stating the declarant does not and cannot have first hand knowledge of preparation of bill of sale, etc- using Homelessiscalifornia's MIL as a template. 

 

Problem is, attached is Exhibit A, which is everything thrown together- Bill of sale from Citibank to PRA, redacted account printout, stack of statements- and, unfortunately, an Affidavit from a Lana Handy at Citibank, affirming the accuracy and legitimacy of everything as being from Citibank, made in the process of business, etc. Is there any way to fight this? Am I barking up the wrong tree, or do I continue on, basically ignore it and try to get the CCP98 thrown out, which would throw all of exhibit A, including the Affidavit, with it? All I can think of is that the BOS and everything was printed out and made up back on 8/30/11, and the Affidavit is dated April 30th, 2013. Lana Handy does NOT state anywhere therein how long she has been employed- how does she know, first hand, that these documents were made as she states? Everything is based off of the business records of Citibank, not first hand personal knowledge. 

 

Am I screwed? Any ideas? 

 

Thanks,

Phoenix02

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Okay, trial is tomorrow, working frantically to get this stuff done.Fighting CCP98 Declaration. Stating the declarant does not and cannot have first hand knowledge of preparation of bill of sale, etc- using Homelessiscalifornia's MIL as a template. 

 

Problem is, attached is Exhibit A, which is everything thrown together- Bill of sale from Citibank to PRA, redacted account printout, stack of statements- and, unfortunately, an Affidavit from a Lana Handy at Citibank, affirming the accuracy and legitimacy of everything as being from Citibank, made in the process of business, etc. Is there any way to fight this? Am I barking up the wrong tree, or do I continue on, basically ignore it and try to get the CCP98 thrown out, which would throw all of exhibit A, including the Affidavit, with it? All I can think of is that the BOS and everything was printed out and made up back on 8/30/11, and the Affidavit is dated April 30th, 2013. Lana Handy does NOT state anywhere therein how long she has been employed- how does she know, first hand, that these documents were made as she states? Everything is based off of the business records of Citibank, not first hand personal knowledge. 

 

Am I screwed? Any ideas? 

 

Thanks,

Phoenix02

This affidavit from lana handy does it have the CCP2015.5 jurat? every affidavit must be sworn under penalty of perjury under the laws of the state of California.

Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004)

 

also bring up that the plaintiff cannot bring hearsay into this matter wrapped in a "blanket hearsay" it is not within the courts discretion to do that under any theory.

 

Good Luck tomorrow. Do not get argumentative but pretend that your are telling this to an LAPD officer who already has his hand on the taser. Calm wins the race. and if it is a temporary judge refuse to sign the waiver form and make a real judge hear the case. politely tell the clerk you were under the impression a judge would be hearing the case, and you want this to be decided by an elected judge.

 

Some points I let slip that caused me to lose:

The CCP2015.5 thing

The proof of service for my trial brief and declaration(they said they didn't get it)

not catching the out of state affidavit from the bank without the ccp 2015.5

letting a temp judge hear the case.

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From what I've been reading as to the standard procedure of court it seems this case isn't being handled properly at all. We had the CMC, at which time the judge made the trial date. There was no pretrial conference, there was no mandatory settlement conference, nothing. I've not written any trial brief or declaration yet. The opposing counsel has not written anything either. Very little has gone back and forth- no discovery on either side. I sent a BOP, they sent account statements. They sent me the CCP98. That's it. Oh and the CMC statements. Nothing else.

 

So, I'm now writing my MIL, and I need to write up a trial brief and declaration. Since my wife attempted service on the CCP98, I want her there in case she needs to testify to the fact the individual was not at the address given and employees at the address given disavowed all knowledge of said individual. So, I get to be up at 6 to get the family (4 yr old and 2 yr old) ready to drive to my sister's house to drop them off. That's an hour away, then from there to the courthouse is about 30-45 minutes depending on traffic. I WILL NOT risk not being there at 9:30 and losing this thing to default. 

 

Second stupid question- being right at the devil's door, how do I handle this as far as service? Here's my thinking-

1- Get to court, have wife serve plaintiff's counsel asap with MIL.

2- Have wife go down to clerk and file MIL.

3- Speak to judge.

-OR-

In person, at trial, do I have to have an individual not party to the case serve the plaintiff? Do I have to file with the clerk, or do I just sit tight until the case is heard, give the MIL to the judge and have the bailiff give a copy of the MIL to the plaintiff?

 

Thanks,

Phoenix02

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One more stupid question- the CCP98 Declaration is BIG. about 3/4" thick. It was filed with the court, it is in my custody and of course the custody of the plaintiff. Do I need to make copies of that to include with the MIL? It's a lot of paper.

 

Thanks,
Phoenix02

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Ok, so, here's my plan of action. Maybe stupid, but with everything I've been going through medically and financially over the last year, it's better than nothing. I am not going to file the MIL before the trial, but present it orally,

 

My defenses:

1- BOP was not sufficiently replied to. 454 states a full bill of particulars is necessary to be furnished if requested. a hand full of Account statements not starting with a $0.00 balance is insufficient. No contract was furnished.

2- CCP98 statement has a false address for service. Attempted service day before trial and the server was told by an employee of the process serving company who's office it was that nobody by that name was there, was employed there, or had been there at any time in the past 20 days.

3- Exhibit A attached to CCP 98 include Bill of sale from CITIBANK to PRA, redacted account listing, Affidavit of CITIBANK employee (affidavit signed April 30th this year, Bill of Sale from August 30, 2011) and stack of account statements not starting with a $0.00 balance. Affidavit is not admissible- declarations constitute heresay. I moved July 2009, address was not changed on account statements until May 2010, which calls them into question. Also, without an agent of CITIBANK to testify to the accuracy and validity of all 3 documents, and stating that they were made in the normal course of business, I contend they were made exclusively for the purpose of this lawsuit and as such are inadmissible as heresay. 

 

This is all thanks to this forum, specifically the MIL by HomelessinCalifornia. Amazing stuff, Was concise, gave me everything I needed to defend this. I had alot of research and a vague idea of what to do, but his MIL tied it all together and made it tangible for me. I used his MIL as a springboard to do further research into his citations so I know a little more about what I'm talking about, but I am still in a great debt of gratitude to him and this board in general. I've been going through some really hard issues medically and financially, but you guys never let me give up. I've not handled this case as well as I had hoped to going into it- it's been on the back burner most of the time, but I feel I have a chance; I'm going to give it a shot. God willing, it'll work. If not... there's always BK, right? 

 

Thanks all and Goodnight,

Phoenix02

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You didn't file a trial brief, so since the mil is similar, I would file it, call it your trial brief. Looks better for you if you have one. You can hand a copy to the plaintiff in person, your wife doesn't have to do it. Better yet if you can fax a copy to then this morning as well, you can also say I faxed you a copy, but here is another.

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From what I've been reading as to the standard procedure of court it seems this case isn't being handled properly at all. We had the CMC, at which time the judge made the trial date. There was no pretrial conference, there was no mandatory settlement conference, nothing. I've not written any trial brief or declaration yet. The opposing counsel has not written anything either. Very little has gone back and forth- no discovery on either side. I sent a BOP, they sent account statements. They sent me the CCP98. That's it. Oh and the CMC statements. Nothing else.

 

So, I'm now writing my MIL, and I need to write up a trial brief and declaration. Since my wife attempted service on the CCP98, I want her there in case she needs to testify to the fact the individual was not at the address given and employees at the address given disavowed all knowledge of said individual. So, I get to be up at 6 to get the family (4 yr old and 2 yr old) ready to drive to my sister's house to drop them off. That's an hour away, then from there to the courthouse is about 30-45 minutes depending on traffic. I WILL NOT risk not being there at 9:30 and losing this thing to default. 

 

Second stupid question- being right at the devil's door, how do I handle this as far as service? Here's my thinking-

1- Get to court, have wife serve plaintiff's counsel asap with MIL.

2- Have wife go down to clerk and file MIL. <<<not sure what your local rules of Court says but you're at the threshold of trial you give a copy to Judge's clerk who will give a copy to the Judge and the Judge's clerk in our case stamped the copy.  Upon giving mil to the Judge most likely Judge will request 10 min recess to read your mil

3- Speak to judge. <<<Once trial begins only speak when spoken to

-OR-

In person, at trial, do I have to have an individual not party to the case serve the plaintiff? Do I have to file with the clerk, or do I just sit tight until the case is heard, give the MIL to the judge and have the bailiff give a copy of the MIL to the plaintiff?

 

Thanks,

Phoenix02

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Okay, finished with court an hour ago. I gave the MIL to the judge and opposing counsel. Opposing counsel said Target v Rocha is inapplicable, so he wasn't worried. He stepped out into the hall to read the MIL. I heard a loud discussion to include "but what do I do about the Affidavit dismissal? How do I blah blah..." betwen opposing counsel and another lawyer. He came in about 15 minutes later and asked for a continuance so the plaintiff can call a witness in person. I accepted and a new trial date of Jan 10 was set.

I have a confer with an attorney in a couple hours to see if she can take the case on and how much it would cost. I barely scraped by on the skin of my teeth with this, thanks to you all, especially HomelessinCa. My physical shape is not getting any better, my business is failing... life is really, really hard this year it seems. Being 28 sucks. :-) right now the only options I'm thinking is retaining counsel or filing bk. I'll know more after I speak to the attorney today.

Thanks again,

Phoenix02

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I've seen this in other threads, I believe. He bought time by asking for additional time to bring a witness, but he's just stalling, he (and their case) will have the same issues later down the line > they need a witness from Citibank with personal knowledge and that will be a difficult thing to do. Citibank no longer has any interest in this account.

 

I wouldn't have agreed to a continuance, who knows if the judge would have given it anyway, but I would have fought it. They had plenty of time to deliver a witness, they gave you a BS name to satisfy the CCP98 and you called them on it, they shouldn't get a second chance.

 

Still, 24 hours ago you were probably feeling pretty desperate about the situation. You won the battle today.

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I know... I realized my mistake afterwards... lack of sleep. Temporary insanity. :-)

All I thought about was the fact that I was springing this on them at the last minute; it seemed fair to me to give them fair chance to respond. But... being nice has no part of civil procedure. I pray I didn't screw the pooch because of it.

On the plus side, I didn't have a trial brief, didn't have a declaration to go with the MIL... now maybe I can get that stuff in.

Thanks!

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I know... I realized my mistake afterwards... lack of sleep. Temporary insanity. :-)

All I thought about was the fact that I was springing this on them at the last minute; it seemed fair to me to give them fair chance to respond. But... being nice has no part of civil procedure. I pray I didn't screw the pooch because of it.

On the plus side, I didn't have a trial brief, didn't have a declaration to go with the MIL... now maybe I can get that stuff in.

Thanks!

That's because you were in a everyday mindset where you try to be courteous to people because, why not? Whereas these JDBs are scumbags and deserve no such courtesy ;-)

 

I doubt you screwed the pooch, their evidence problem today will be an evidence problem come January 10. All that has happened is they now know that you're for real.

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I would not worry too much about being nice. The judge probably would have granted the continuance anyways.

 

Odd are come the new year, whether you get an attorney or not, you will get a notice of dismissal w/o prejudice. It will cost them more money then it is worth to pay for a witness from Citibank to fly into CA and testify. They would rather spend their time on the 98% of the cases that went into default and are easy money for them.

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Okay, finished with court an hour ago. I gave the MIL to the judge and opposing counsel. Opposing counsel said Target v Rocha is inapplicable, so he wasn't worried. He stepped out into the hall to read the MIL. I heard a loud discussion to include "but what do I do about the Affidavit dismissal? How do I blah blah..." betwen opposing counsel and another lawyer. He came in about 15 minutes later and asked for a continuance so the plaintiff can call a witness in person. I accepted and a new trial date of Jan 10 was set.

I have a confer with an attorney in a couple hours to see if she can take the case on and how much it would cost. I barely scraped by on the skin of my teeth with this, thanks to you all, especially HomelessinCa. My physical shape is not getting any better, my business is failing... life is really, really hard this year it seems. Being 28 sucks. :-) right now the only options I'm thinking is retaining counsel or filing bk. I'll know more after I speak to the attorney today.

Thanks again,

Phoenix02

I bet if you look the case is already dismissed, he was punting trying to scare you. when an attorney talks loud enough for you to overhear it is a bluff.They invented sotto voice.

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I know... I realized my mistake afterwards... lack of sleep. Temporary insanity. :-)

All I thought about was the fact that I was springing this on them at the last minute; it seemed fair to me to give them fair chance to respond. But... being nice has no part of civil procedure. I pray I didn't screw the pooch because of it.

On the plus side, I didn't have a trial brief, didn't have a declaration to go with the MIL... now maybe I can get that stuff in.

Thanks!

 

I would give yourself a win for this battle. From my experience the defendant can usually get a continuance and the plaintiffs almost always get one in my state. Now is the time to make sure you win the war.

 

The best advice I can give you now is to not wait until the last minute again. Procrastination probably loses more of these cases than anything. Most of us that are successful win because we invest the time and effort needed, not because we are smarter than the other side. We lose hours and hours of sleep over these things while the other side invest 30 minutes at the most in each case.

 

Its all a numbers game for them. From my experience they win 90% of these on defaults and the other 5% because the defendants are not prepared. Make it hard on them and let them go for the easy wins on the other 95%!

 

Good Job so far!  ::USA::

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Yeah- you kinda goofed by accepting the continuance....I would have objected to the continuance and demanded a dismissal on the spot... 

 

 

 

So now you need to prep HARDCORE because they are going to tighten things up - depending on the $$$ of the suit, they may fly in witnesses...so you will have to prep for that possibility. Tighten up all your motions. 

 

 

 

Of course, they could just dismiss the case

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If they were to win, could they add to their requested judgement? I mean, it's just over $4K now, is that what they can get, or after trial could they add the cost of flying in the witness and lawyer's fees, etc, to the judgement amount? Right now, they're asking for their stated balance and $299, the filing fee for the case.

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