OLSkER

Trial in CA les than a month. Help!!

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That would be awesome but don't go through any special trouble.  I've located a couple of generic ones from the internets.  =)

 

As for the POS, I'm thinking I'll email the attorney of record my MIL and Brief and bring a copy of the email to court to show the judge.  Sound good ya think? I want to be able to show that I'm continuing to be reasonable despite all the nefarious JDB dealings...

I was thinking what is the courts local rules about trial briefs and MIL's some say day of trial, some say 5 days so you would necessarily have to check that.

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How can I help? Still have time to get it out today. send me what you got and I can help get it to the post office before 3 pm pickup.

Send me in coach...

You're awesome Seadragon!  I would send you my info but I really haven't even started writing yet.  I have family in town right now and am having difficulty getting away, even for a moment.  My plan is to knock this all out tomorrow in the afternoon after they leave.  Really friggin bad timing right...?

 

Local rules and judges order required MILs and Briefs be filed 5 days before the last CMC which was Tuesday.  Plaintiff, of course, filed theirs on Wednesday (well after the deadline).  From what some others have said on this forum, judges sometimes don't stick to their previous requirements and will hear all relevant arguments up to and including the day of trial.  I know the opposite can be true too but if he allows their Brief then I want my MIL and Brief in there too.  

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MIL done!  Declaration in Support of MIL done! Declaration RE Diligence signed by my lovely process server and done!

 

Now, it's just the Trial Brief, a short night sleep and a long drive back to the bay.  Trial in 32 hrs.  I'll keep updating and let y'all know how I fair on Judgement Day (literally!).

 

Send me good vibes ppls!!!   A win for someone as unprepared as me, at such a late date, is a win for this community...  A loss?  Well, I'll take full responsibility for that! ;)

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Show up at least an hour early. Dress in your best outfit and be polite to everyone. If the opposing attorney tries to get you upset remember to keep calm (at least on the outside :angry:). Address the judge as your honor and everyone else as Mr. or Mrs,Miss. Tell the judge you are new to this and request the courts patience.

 

Type out everything you wish to say in an outline form in bold large print. Keep anything you need to cite in different labeled folders. Once you are called up just remember to take it slow, because it will go much faster than you realize. You might even make large note cards for anything important to remember such as when to say "I object your honor".  Include on these what to say in any possible scenario. Don't be afraid to look down at your notes before you speak each time. The hardest thing to do it not to speak before you think it through.

 

Remember you are already ahead of 90%+ of the other defendants. 

 

Good Luck! 

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Give 'em hell OLSKER!

 

We're rooting for you!

 

Best advice I could give is based on my professional experience having not been in the same situation (yet).  This is what I am going to do during my trial to help myself stay calm and focused:

1. Role play.  It will help to anticipate obstacles, methods to overcome, and how to regain focus.

2. Memorize the first few lines of the opening.  It will help to relax during the most stressful portion.

3. Get a good night's sleep.  

 

In my profession, I present proposals for new business or conduct meetings regarding current business.  These few points keep me smooth(er) and reduce stress.  For me, the start of a meeting is the most difficult part.

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Good luck!

 

Didn't get to my office over the weekend, but saw you had taken care of the Dec/Diligence.

 

Good advice above. Get there a little early, dress professional & act it as well :). Opposing lawyer likely to be a contract lawyer hired out by the JDB to handle this. They may be professional & courteous, they may be snobby/act like a jerk - be patient and stay on your game. This is business.

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Thanks all!  Trial Brief, MIL and Dec in Support w/ Exhibits all filed today with the Court (including courtesy copies for the judge).

 

I'm super nervous about tomorrow but will do my best to project confidence and a winning attitude.

 

 

Give 'em hell OLSKER!

 

We're rooting for you!

 

Best advice I could give is based on my professional experience having not been in the same situation (yet).  This is what I am going to do during my trial to help myself stay calm and focused:

1. Role play.  It will help to anticipate obstacles, methods to overcome, and how to regain focus.

2. Memorize the first few lines of the opening.  It will help to relax during the most stressful portion.

3. Get a good night's sleep.  

 

In my profession, I present proposals for new business or conduct meetings regarding current business.  These few points keep me smooth(er) and reduce stress.  For me, the start of a meeting is the most difficult part.

The opening?  You mean I should prepare a statement?  I was just thinking I'd recap what I've written in the Brief--sound ok?  Really I was just hoping to object to everything Plaintiff plans to offer and hope that none of it gets in.  What would a worst case scenario look like?  How should I prepare for this?  (sh*t I'm rambling now b/c I'm nervous... better not do that tomorrow...)  AHHHHHHHHHH!!!!

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Thanks all!  Trial Brief, MIL and Dec in Support w/ Exhibits all filed today with the Court (including courtesy copies for the judge).

Very well done, I'm impressed.

 

I'm super nervous about tomorrow but will do my best to project confidence and a winning attitude.

Everybody is nervous in this situation, just try to keep yourself calm before they call your case. Once you get started you won't notice the nerves.

 

The opening?  You mean I should prepare a statement?  I was just thinking I'd recap what I've written in the Brief--sound ok?  Really I was just hoping to object to everything Plaintiff plans to offer and hope that none of it gets in.  What would a worst case scenario look like?  How should I prepare for this?  (sh*t I'm rambling now b/c I'm nervous... better not do that tomorrow...)  AHHHHHHHHHH!!!!

 

Don't worry about that. Opening statements are primarily for jury trials. The plaintiff may have  a short opening statement to the judge, the judge may even make  a statement. Then you will just be objecting to each piece of evidence as it is introduced, and stating your arguments. Even if you lost the MIL's you still object to the evidence (even on the same grounds as the MIL's) because sometimes judges want the objections at trial rather than ruling on any MIL's.

Object hard on hearsay and lack of foundation and authentication if they have no witness present.

 

Also, when you do that, the lawyer may put you on the stand and try to get you to authenticate  and lay a foundation to the evidence for them; by admitting to it.

 

Good luck tomorrow, we are all pulling for you and sending good vibes.  

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Thanks all!  Trial Brief, MIL and Dec in Support w/ Exhibits all filed today with the Court (including courtesy copies for the judge).

Very well done, I'm impressed.

 

I'm super nervous about tomorrow but will do my best to project confidence and a winning attitude.

Everybody is nervous in this situation, just try to keep yourself calm before they call your case. Once you get started you won't notice the nerves.

 

The opening?  You mean I should prepare a statement?  I was just thinking I'd recap what I've written in the Brief--sound ok?  Really I was just hoping to object to everything Plaintiff plans to offer and hope that none of it gets in.  What would a worst case scenario look like?  How should I prepare for this?  (sh*t I'm rambling now b/c I'm nervous... better not do that tomorrow...)  AHHHHHHHHHH!!!!

 

Don't worry about that. Opening statements are primarily for jury trials. The plaintiff may have  a short opening statement to the judge, the judge may even make  a statement. Then you will just be objecting to each piece of evidence as it is introduced, and stating your arguments. Even if you lost the MIL's you still object to the evidence (even on the same grounds as the MIL's) because sometimes judges want the objections at trial rather than ruling on any MIL's.

Object hard on hearsay and lack of foundation and authentication if they have no witness present.

 

Also, when you do that, the lawyer may put you on the stand and try to get you to authenticate  and lay a foundation to the evidence for them; by admitting to it.

 

Good luck tomorrow, we are all pulling for you and sending good vibes.  

 

Thanks for the positive ju-ju!  Hopefully I'll have a good news post for y'all tomorrow!

 

Just summarize the brief. Did you get a copy for the plaintiff also? If not I would fax them one now. They may dismiss before trial

Not only did I make them a copy of all of the documents (which I'll hand to them tomorrow), I also emailed their lead counsel @5 this morning when I finished putting them together. Then, later during the day, I called and left a message to make sure they were received.  Plaintiff emailed me back "documents were received". I've printed out the email for tomorrow as well.

 

Trial in 11 1/2hrs.  It's go time baby!!!

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Well... you'd be right to be concerned about no immediate update.  I lost.  

 

Right off the bat i'll say my loss is most likely (if not definitely) due to a SERIOUS strategic error i made when i was put on the spot by the judge.  

 

I arrived at court an hour early and went over my papers until the clerk opened up the courtroom and let everyone in (there were quite a few other matters that were heard before our case).  The first issue that was brought up by the rent-a-lawyer was the fact that she only received a copy of my MIL the day prior and as such was unable to have enough time to prepare appropriately.  Rent-a-lawyer then indicated that she was requesting a continuance so they could present their witness (she reported that after talking to the lawyer of record, two weeks would be enough time).  Judge appeared irritated with Plaintiff but thought about it for a minute and then turned to me and said "I'm going to give you a choice.  Because you only submitted your objection to their CCP98 on Monday (court was on Tuesday) you can take the continuance OR you can waive your objection to the CCP98 and proceed."  

 

I got the feeling from the judge that what she wanted was to get this matter over with and was feeling really put on the spot with this decision.  I waived my objection and decided to argue against each specific piece of evidence attached to the CCP98 based on their being hearsay that doesn't warrant a business record exemption.  Big friggin' mistake.  I started thinking about having to drive back up there again in two weeks and just wanted this whole ordeal over with.  Had I given it a little more thought and remembered that the reason I drove up there 4 days earlier, got a subpoena and attempted to serve it was SPECIFICALLY to exclude the CCP98, I might have just collected myself and taken the continuance, regrouped and gone back up in a couple of weeks ready to skewer their witness.

 

I objected to the Bills of Sale as hearsay with no one to testify to their mode of preparation.  I also pointed out discrepancies in the dates on various Bills of Sale (one of which preceded the date of the charge off by OC).  I pointed out that the cc statements were hearsay with no one to testify as to their mode of preparation etc.  This is when the judge starts asking me questions (I get sworn in--which maybe I should've objected to but it wasn't Plaintiff calling me to testify, which I was ready for, it was the judge). 

 

Judge asks "Is this your debt"

Me: "I don't know your honor".  

Judge: "How do you not know?  Did you live at this address?"

Me: Yes I lived there.

Judge: Did you go to Las Vegas and stay at the Bellagio?

Me: I've stayed there before

Judge: Well, how can you say this isn't your debt?  I'm seeing payments you made here.  Charges you made.  Statements sent to an address you indicated you lived at.

Me: Your honor, I don't know if I received those statements.  Furthermore, there is no competent witness to testify as to the accuracy of those statements or to their mode of preparation.

Judge: I've heard that argument and I'm going to find that these statements are business records prepared in the course of regular business.  

Me: Ok, well I don't think the records are accurate.  Plaintiff is suing for an amount that appears nowhere on the given statements. (Plaintiff filed suit for ~15k, last statement indicates charge off of ~12k)

Judge: Ok, well how much do you think you owe?

Me: Your honor, with all due respect, I can't answer that question.  I don't know.

Judge: Ok.

 

Some statement was made about the court having another trial in a few minutes (guess I was right to feel rushed).  Judge asked if I had any other arguments to make.  I reiterated that all of the offered evidence was hearsay lacking authentication and that was it.  Rent-a-lawyer made a statement about my performance being better than some lawyers she knows, judge agreed and said "You've given me some very important issues to consider.  I'm going to have to look very carefully at this information and then make my decision".  

 

Judgement in favor of Plaintiff was posted 2hrs later on court website.  Plaintiff to recover ~12k (exact amount charged off according to final statement from OC), no lawyer fees or interest.  

 

I guess it could've been worse because all told, with interest and lawyers fees, Plaintiff was looking for just under 25k.  

 

Huge f*cking blunder eh?  I've been kicking myself for the last 28 hours.  Why didn't I just take the bloody continuance and drive my a$$ back up there in two weeks?  F*CK!  I'm so depressed now it's unbelievable.  I came home, ate some food and slept until just now.

 

I think I'm going to appeal.  I'll probably lose that as well being that I waived my objection to CCP98 (thereby laying foundation for the evidence submitted) but I really think the judge erred by admitting evidence that was not within the personal knowledge of the declarant.  Oh well, for now I'll just lick my wounds.

 

Thanks to everyone for their support and help.  Admittedly, writing this post was not something I wanted to do but I figured I owe it to everyone who helped me this far.

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Sorry to hear. I agree, you probably should have taken the continuance in that scenario. Technically, plaintiff has to request continuance in writing with a motion and supporting declaration. But your judge pretty much made you choose. Having waived your objection to the ccp98, I'm not sure how good of a chance you have at an appeal. But if you are considering it, I've done a lot of california appeal research, and am about to file my notice of appeal very soon here. I'd gladly share the timelines/processes for appeal.

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Sorry to hear. I agree, you probably should have taken the continuance in that scenario. Technically, plaintiff has to request continuance in writing with a motion and supporting declaration. But your judge pretty much made you choose. Having waived your objection to the ccp98, I'm not sure how good of a chance you have at an appeal. But if you are considering it, I've done a lot of california appeal research, and am about to file my notice of appeal very soon here. I'd gladly share the timelines/processes for appeal.

Thanks easy.  I'd appreciate any/all information.  My thinking is that maybe I can get Plaintiff to agree to a smaller amount (they offered a 5k settlement prior to trial) if I appeal.  I'm thinking that I tell them that I'm planning to appeal but if I lost on appeal I'm going to be forced to file bankruptcy and they'll get nothing.  Just a thought anyway.

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I pm'd you some appeal info and some of my appeal strategy. Don't want to spill the beans! I plan on starting a california appeal thread very soon to help provide a resource of the necessary steps, filing dates and docs needed for the benefit of all.

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That's rough, very sorry to hear that. What's so very difficult is that there are so many variables of what can happen when you are in that courtroom it is probably not possible for someone in pro per to prepare for all them, certainaly not your first time out. I'd say most here would generally recommend fighting a continuance, but not at the cost of waiving an objection to a CCP 98. I wonder if the judge did you a disservice here regarding your options. Sure, your MIL was last minute, but even if the judge won't allow the MIL, you should still be able to object to the CCP98 in trial, just not under the umbrella of the MIL. MILs are due 5 courts days prior, but the CCP 98 statute says that witnesses need to be available for supeona right up to the trial > it would be objectionable even if you tried serving the subpoena the day before trial and had no MIL.

 

I think a judge can ask you questions, but I find it troubling she practically did the lawyers cross exam for them. Your answers probably could have been better, I imagine it's tough to have the judge asking you a specific and you sticking to "I don't recall" - but anything that gives them a crack of daylight is something they can expand on.

 

The objection to CCP 98 was raised, but I wonder if this is still appealable based on the documents being hearsay. Just because the CCP 98 objection was waived, doesn't mean all the docs were automatically admissable, only that the declarants words would be admitted, but those words are still heresay and docs like the bill of sale still don't conform to CCP 2015.5.

 

 

My thinking is that maybe I can get Plaintiff to agree to a smaller amount (they offered a settlement prior to trial) if I appeal.  I'm thinking that I tell them that I'm planning to appeal but if I lost on appeal I'm going to be forced to file bankruptcy and they'll get nothing.  Just a thought anyway.

Remember, prior to trial you had some leverage, that part is gone and they may not be willing to take that amount or any other deal. I'd hold off on any convo with them about appeals until you get some opinion. Know for sure whether you can, first - and if you can do it, filing it without any warning could be prefferable.

 

The nuclear option, the BK, is there. Same thing, I'd say hold off on communicating that before gathering opinion. I can say if I would have lost mine, with no chance at appeal, I'd have done a BK without much deliberation and my case was for far less $$$ than yours. I worked in mortgage loans recently (not anymore) and people seem to be recovering relatively quickly from BKs. Two years out of a BK and people can buy a home if they have been good with their credit since using that option. Your SOL may have past on a debt, but it's possible the OC and JDB tradelines can affect you further out than a BK would. Plus, if you have any other debt, a BK may take that off your plate as well.

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Sorry to hear your outcome. Unfortunately that is how some judges run things. They seem to be more about getting finished than letting each side argue its own case.

 

I was in a situation similar to yours a couple of years ago concerning a witness. The only difference is the judge let the plaintiff's attorney make the call and he punted. I was lucky because at the next trial the witness didn't show up. I'm sure the attorney knew this and was hoping that I would fold before the final trial.

 

Get some more rest and then get started on making your decision tomorrow. You gave this a lot of effort, but as you already know the late start cost you. You would have had a good chance at dismissal had you gotten everything in earlier. It sounds like that was the main argument the attorney used. I'm not saying this to rub it in, but just to remind you how important it is to get everything done early. 

 

Since you are staring at losing 12K I would speak with a couple of consumer attorneys this week. Find a couple that have FDCPA experience and offer free or low cost consultations. All you will be out is your time and you might even find one that is a "friend" of the court. Even if you decide to not hire an attorney you might learn something helpful. Keep us informed on how its going. 

 

Good Luck!

 

PS: Go back through and read your thread(s) and any others you used to gather information. I suggest doing this in case you left something out that might help you in the future. 

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I have been refreshing this browser window every few waking hours and am saddened to hear of the outcome.

 

I do not know enough to state this as fact, but when you filed and when they received the MIL should be secondary to their failure to comply with CCP98.

 

I am going to be in the same boat as you, and even thought of not serving them but presenting it the day of trial.  Ugh.

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Wait a minute.  You only waived your objection to the declaration based upon the witness not being available for service, correct?  In other words, it seems to me that you still objected to the witnesses' lack of foundation and specifically, to the bill of sale.

 

The problem is that, unless a court reporter was present, it will not be clear that you made the correct objections and that they were improperly overruled.

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Sorry to hear it. It didn't sound like any of the evidence was weighed.

 

They still have to collect from you however. This is the only time I am ever a fan of settlement. Even tough they have a ruling, you could still offer them less. For example; they have their choice of 50% or you can file BK and they can have nothing. If you put the thought of BK in their mind you will have some leverage.

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