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1. Who is the named plaintiff in the suit?
PORTFOLIO 
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
HUNT & HENRIQUES
3. How much are you being sued for?
$10k+
4. Who is the original creditor? (if not the Plaintiff)
CHASE
5. How do you know you are being sued? (You were served, right?)
SUMMONS SERVED
6. How were you served? (Mail, In person, Notice on door)
IN PERSON
7. Was the service legal as required by your state? 
YES
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
NONE
9. What state and county do you live in?
CALIFORNIA
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
I NEVER USED OR PAID FOR THIS ACCOUNT.  THE DEBT WAS MY BROTHER'S
11. What is the SOL on the debt? To find out: 
4 YEARS
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online 
CURRENTLY IN DISCOVERY.  NEED LOTS OF HELP HERE.  TRIAL DATE IS MID MARCH 2014.  MOTION TO CONTINUE IS PENDING
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
NO
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
NO, BUT I DID WHEN I LEARNED OF THE SUIT
15. How long do you have to respond to the suit? 
GENERAL DENIAL FILED
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
NONE
 
Hi everyone,
 
I cosigned my brother to open a credit card back in the day when we both were in college.  I never used or paid for this account and had forgotten about its existence.  in 2009, my brother lost his job and defaulted this credit card.  Chase sold the account to PRA, and in 2012 PRA, represented by H&H, sued me, just me and not my brother. I filed a general denial.  Case is set for mid March but i have been able to get very little evidence so far.
 
I started Discovery late so I had to file a motion to continue.  H&H opposed so the hearing for motion is next week.  If my motion is not granted, i will have to go to court with what ever H&H gave me. Here are what they gave:
 
12 months of credit card statements (fax copies from Chase) with both my name and my brother's name. 
1 spreadsheet summarizing the account, both of our names, SSNs, date account open, last payment, default date, balance
Bill of sale from Chase to PRA, (a bulk sale)
Affidavit of sale, someone from Chase making an affidavit of the transfer of the debt, acknowledging the me as a debtor & the balance
Declaration in lieu of live testimony.
 
H&H gave the same things above over and over for every discovery i requested, including the BOP.  those evidence are also the same things included in the Declaration of live testimony
 
HERE ARE MY QUESTIONS:
 
1/If my motion to continue is not granted, I will not have time to file motion to preclude or compel additional evidence.  so, in trial, CAN I OBJECT ANY ADDITIONAL EVIDENCE introduced by H&H?  if yes, on what grounds?  any code or case law will help a lot.
 
2/On PRA Declaration,  the affiant said, "i can be served at address XXXXX within 20 days prior to trial".  she didn't state whether she worked there or lived there.  the Declaration was not notorized so i cant argue it was not executed in CA.  the address given was of  a legal vendor, just down the street from court house.  How can i object this Declaration, other than arguing she doesn't have personal knowledge?
 
3/if my motion to continue is granted, i will demand for additional/amendment of BOP.  What items can be covered in BOP, besides the credit card statements?  by the way, the cc statements were marked as fax copies.  Can i object them since they aren't original?
 
4/H&H never in any of the discovery asked me to disclose any witness i may introduce. So i never disclosed.  Will i be able to bring my brother to trial as a witness?
 
5/ Should i bring my brother to testify that this account was his ONLY and i had nothing to do with it?  SOL has run out so PRA can't sue my brother after this suit.
 
I greatly appreciate any input.
 

 

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If your motion to continue is denied, you'll still have time to execute the steps that people here in California typically execute. However, if you haven't been reading thru this board very long, then you do have a lot of catching up to do in terms of understanding that strategy.

 

If you haven't come across this thread yet, it's time to read it: http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/#post1202922. Midland is a JDB just like Portfolio, so you can pretty much take ASTMedic's thread as a guide for fighting PRA. It boils down to making them prove the entirety of their claims against you, but you make this a difficult thing for them by 1) not helping them prove their case in any way, and 2) using California law to render the "evidence" they plan to use as inadmissible. If you take the right steps and have a judge who follows the law, you have an excellent chance. But you are within 60 days, so you need to get to work. There is a 60-day planner somewhere in that thread, it's a good guide.

 

A very important window is coming up, which is your window to send them the CCP 96 request for their evidence and witnesses > you'll read up on this in the thread. The window to serve this request (it's a simple form) begins on the 45th calender day before trial. They cannot introduce anything at trial other than items/witnesses they name in that response.

 

Your questions:

1) Actually you do have time to file a motion to preclude evidence. Usually you do this in the week(s) leading up to trial. You need to check you court's local rules so you know the deadline for filing a Trial Brief & Motion In Limine (MIL). Could be a little as 5 court days before trial, could be more. As far as compelling more documents from them, I don't think you're going to get more "evidence" from them than you already have. Frankly, I don't think you want them producing anything else anyway > why tell them they need better evidence to win their case? Let them bring the little that they have

 

2) You'll read up on this in the linked thread. Subpoenaing this witness is key.

 

3) See the answer above. Not sure if you want to try and compel anything else. If they want to trot out a years worth of statements, some spreadsheet, a bulk bill of sale without your name on it, and non-conforming affidavits...let them > then attack these documents in your MIL.

 

4) Once again, make them prove their own case, don't hep them. I don't think your brother as a witness could help you. Don't look at this as your burden > that you have to prove that you don't owe them money...no, it's their lawsuit, their burden.

 

5) If you cosigned for the card, then I think you bear the responsibility for it regardless of whether or not you used it. So having your brother acknowledge the account existed, and anything else he could say, only hurts you, IMO.

 

 

A few sections of the CA Civil Code of Procedure you need to review: 96, 97, 98, & 2015.5

 

Now, have they made discovery requests of you (requests for documents, admissions, interrogatories)? And have you responded?

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Hi Ryan,
 
Thank you so much for your answers.  they are very helpful.  I just want to clarify few other things as i am preparing for trial.  I am very nervous so it doesn't hurt to be over prepared, right?

 

1) Actually you do have time to file a motion to preclude evidence. Usually you do this in the week(s) leading up to trial. You need to check you court's local rules so you know the deadline for filing a Trial Brief & Motion In Limine (MIL). Could be a little as 5 court days before trial, could be more. 

 

Local court rule said that MIL must be filed no less than 20 days before trial.  And i am preparing for that.  However, CCP98 said subpoena is within 20 days before trial.  this means, I can't argue that the affiant isn't available at the address she provided because the time i must file MIL is before I am allowed to subpoena her. 

 

2) You'll read up on this in the linked thread. Subpoenaing this witness is key.

i am preparing to subpoena her.  My question is,  my server must meet her when serving the papers, right? I have seen a JDB's attorney argued that the affiant can authorize someone else to receive the subpoena on his/her behalf.  I am not sure if it was a valid argument? 

 

3) See the answer above. Not sure if you want to try and compel anything else.

I wasn't really trying to compel.  I just want to move the court to prelude anything else not given.  However, before doing that, i must meet and confer, so i just want to know what I am allowed to ask for in my meet and confer letter.  (of course they wont give me what i ask for and thus, I can move the court to preclude then).  Even if they can come up with additional stuff, they will not have anything against me since none of the transactions show my name cuz my brother was the only one used or paid for the account.

 

i will listen to your advice and leave my brother out of this.  I just thought it will be my last defense if my other defense fail in court.  

 

Again, thank you so much for helping. 

 

 

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"5/ Should i bring my brother to testify that this account was his ONLY and i had nothing to do with it?  SOL has run out so PRA can't sue my brother after this suit."

 

You definitely want your brother there but as a co-signor you are as legally liable as he is even if you never used the card.  The good news is that date of default that makes the case out of SOL for him also applies to YOU.  You need to file a motion to dismiss based on the SOL expiring.  That is  your best defense.

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Hi Clydesmom,

 

I should have clarified that PRA filed this suit against me within SOL, which was in 2012.  Today is a bit more than 4 yrs, so PRA can't come back at to sue my brother if they don't get a judgment against me.

 

of course, if my brother is to testify, he wouldn't say that i was a cosigner.  he would say he is the ONLY account holder and it must be a mistake that my name is included in the account.  PRA has acknowledged that it doesn't have the original cc application or cc agreement, so there is no way that they can prove i am a joint account holder.  They have nothing to prove that i have agreed to the terms of the CC.  I never used it, never paid for it, never signed anything on this account. 

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Okay, the 20 day deadline for the MIL means you won't be able to include the attempted service of subpoena in it, but still plenty of things to attack with a MIL such as the documents provided by PRA are hearsay, lack of personal knowledge, etc. Have you checked the CCP98 declaration they gave you to make sure it conforms to CCP 2015.5? that it has the specific language required? It probably does, but make sure; I'm sure the Chase affidavit of sale does not. Double check your court rule on the MIL deadline, is it calender days or court days? ...significant difference.

 

The subpoena:Yes, JDB attorneys will argue that service can be accepted "in care of" by the attorney or whomever is at the addresses (I'm sure they gave you more than one) that they supplied. But the subpoena is for personal delivery to the witness, not "in care of" someone else. Target v. Rocha is a recent case that makes it pretty clear that service "in care of" is not proper service. You reviewed CCP98? The witness must be available for personal service of the subpoena within 150 miles of the court and for the 20 days before trial. JDBs try to cheat these requirements by stating the subpoena can be accepted "in care of". Have yet to see a CA case where the declarant was actually available for service.

 

Target v. Rocha

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Hi Clydesmom,

 

I should have clarified that PRA filed this suit against me within SOL, which was in 2012.  Today is a bit more than 4 yrs, so PRA can't come back at to sue my brother if they don't get a judgment against me.

 

of course, if my brother is to testify, he wouldn't say that i was a cosigner.  he would say he is the ONLY account holder and it must be a mistake that my name is included in the account.  PRA has acknowledged that it doesn't have the original cc application or cc agreement, so there is no way that they can prove i am a joint account holder.  They have nothing to prove that i have agreed to the terms of the CC.  I never used it, never paid for it, never signed anything on this account. 

 

Is your name anywhere on the statements they supplied? Or any documents?

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@RyanEX,

 

since you mentioned CCP2015.5, so I checked.    May I ask if the Declaration must be notarized? 

In my case, the language was conformed to CCP 2015.5 but the Declaration wasn't notarized

 

I am a bit confused when the CCP 2012 and 2015.5 say MAY instead of MUST (as shown below)

 

 2012. An affidavit to be used before any court, judge, or officer

of this state may be taken before any officer authorized to
administer oaths.

 

2015.5. Whenever, under any law of this state or under any rule,
regulation, order or requirement made pursuant to the law of this
state, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn statement,
declaration, verification, certificate, oath, or affidavit, in
writing of the person making the same (other than a deposition, or an
oath of office, or an oath required to be taken before a specified
official other than a notary public), such matter may with like force
and effect be supported, evidenced, established or proved by the
unsworn statement, declaration, verification, or certificate, in
writing of such person which recites that it is certified or declared
by him or her to be true under penalty of perjury, is subscribed by
him or her, and (1), if executed within this state, states the date
and place of execution, or (2), if executed at any place, within or
without this state, states the date of execution and that it is so
certified or declared under the laws of the State of California. The
certification or declaration may be in substantially the following
form:

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I think most CCP98's I have read about (and mine itself) were notarized, but I don't know of any code that actually requires it.

 

 

BTW, I am not due to respond their discovery for another 2 weeks.  they propounded their discovery even later than me.

Okay. Make sure you respond to that in time. If you don't, they can ask that the court deem the admissions admitted, and that can screw you up right there. Plenty of examples of how people have responded to RFDs, Interrogs, and admissions in the threads...just have to dig around. Post ones that you need help with. I spent quite a few days working on mine until I felt comfortable with them - give yourself time.

 

CCP sections that deal with discovery requests/answers are in chapters 13-17 (sections 2030 thru 2033) http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20

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I know of no case where Hunt & Henriques actually went to trial here in Cali. 

 

That being said, I got them to back off because they are totally disorganized and I hit them hard and fast with discovery and BOP requests right out of the gate.  Their responses were late, in one case not "served" (merely sent), and they responded to 11 ROGS when I only sent 10. 

 

I hit them with a Motion to Compel Further BOP which I strategically scheduled the day before our trial setting conference rather than the day of just to ring up rent-a-lawyer charges. 

 

I also sent several meet and confer letters advising them that they had no right to object to any of my discovery requests because they were late (lost that right) and you did not make a good faith effort in your responses (11 ROGS-really!  Cut & Paste job in some instances was so sloppy the responses didn't even make sense or relate to the requests.  Judge might not like that.) and advised them I'd be filing more Motions if they didn't send me what I requested.  

 

They folded a week before my Motion to Compel a BOP and the trail setting conference were scheduled to occur.  They also never sent me discovery requests. 

 

These people are based out of a neighborhood strip mall in NoCal-Google their address and pull up the street view.   Don't be intimidated.

 

As for a MIL-they don't really work.  The only case I found here in Cali the guy lost and had to submit an answer.  Just fight them head on.

 

SkippieB

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^ Why do you think MILs don't work? They have worked for quite a few people in California who post here. In some cases the judge agreed with the MILs and did not allow the plaintiff's documents as evidence, in other cases plaintiff dismissed just before trial. This is what happened in mine - I made a small discovery request early on then stayed quite until the time came for CCP96, the subpoena, and the filing of the MIL. Midland dismissed at trial call.

 

MILs don't work all the time, they're dependent on 1) Timely filing and proper execution, and 2) a judge who follows the law/code.

 

Laying low/ a minimal approach works for some; hammering the JDB has worked for others. OP is within 50 days of trial (more or less), and if the continuance is not granted will have a modest amount of time left to prep for the possibility that H&H might push this to trial.

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@SkippieB and RyanEx:

 

I am from Southern California, Los Angeles, there are 2 courts ONLY now doing debt collections, Norwalk and Chatsworth. But I do not know how tough or friendly these 2 courts are? May be someone who had experience, please share....

 

And I heard, in San Francisco/ San Jose area and or Northern part of California, it's tough. 

 

HomelessinCa, I believe, he is from Riverside county, about 1 -2 hours east of Los Angeles, Southern California. 

 

May someone also share, how tough and friendly the court/judges San Diego.

 

But 1 thing is for sure, so many things need to be done within 45 days prior to trial date. ...So many...

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@browniebrownie141

 

I have heard it can be tougher in some counties compared to others, but also I think it comes down to who your judge is and how they tend to rule on the issues we typically raise in our defense.

 

I'm in San Diego and I had a judge who let me know at my CMC that when it came to evidence they were going to follow the civil code of procedure.  I had done some research on the judge and found they had a reputation for fairness and carrying out their duties as we would expect them to. I followed the playbook and on the last day allowed, Ifiled a MIL to preclude the CCP98. The result was a dismissal just prior to trial.

 

This led me to think judges in San Diego were consumer friendly. However, someone else on the board also from San Diego recently had the opposite experience with their judge. This judge pretty much ignored the code and allowed the plaintiff to do as they wanted and allowed the CCP98, the hearsay docs, and a previously unnamed witness to testify. The poster faced off against the same law group as I and, IMO, had prepared better than I had for mine, but received a judgment against them and is now in the process of appealing.

 

I'm sure the JDB knew what to expect from the judges as they chose to push to trial with a friendly judge, whereas in my case they threw in the towel before trial. One of the best pieces of advice I can give is regardless of county, to use what ever resources you have to learn about your specific judge and how they rule.

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@Rookie - it was the Downtown court.

 

I didn't mean to suggest SD wasn't consumer friendly. Truth is I haven't read enough experiences to really know one way or another, but I had the impression it was. The other member's experience made me realize you can't take it for granted that you are in what people consider a consumer friendly county. Or vice versa.

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My two cases never went to trial so can't say one way or the other about San Bernardino courts.   I can say that in one case the Judge fined Unifund's lawyers for failing to appear for a hearing which could be taken as a sign he plays by the rules-not consumer or JDB friendly.  But you never know.

SkippieB

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^ Why do you think MILs don't work? They have worked for quite a few people in California who post here. In some cases the judge agreed with the MILs and did not allow the plaintiff's documents as evidence, in other cases plaintiff dismissed just before trial. This is what happened in mine - I made a small discovery request early on then stayed quite until the time came for CCP96, the subpoena, and the filing of the MIL. Midland dismissed at trial call.

 

MILs don't work all the time, they're dependent on 1) Timely filing and proper execution, and 2) a judge who follows the law/code.

 

Laying low/ a minimal approach works for some; hammering the JDB has worked for others. OP is within 50 days of trial (more or less), and if the continuance is not granted will have a modest amount of time left to prep for the possibility that H&H might push this to trial.

 

Anythings worth a try.  Don't get me wrong.  But the case I pulled in San Mateo the judge didn't buy it.

 

H&H are going to fold if you fight them whether you do a MIL or not-been my experience with them. 

 

SkippieB

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My two cases never went to trial so can't say one way or the other about San Bernardino courts.   I can say that in one case the Judge fined Unifund's lawyers for failing to appear for a hearing which could be taken as a sign he plays by the rules-not consumer or JDB friendly.  But you never know.

SkippieB

I hail from the IE! The people that work at the 303 know me well...by sight even. In fact my neighbor works there...small world. The judges are pretty fair and don't automatically side with these plaintiffs. I've had a few motions heard but just like SkippieB experienced trials have never occurred because they don't let it get that far.

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