easy619

My California Appeal (Edit: I Won!)

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I guess I get to be the first one to post CONGRATULATIONS AND WELL DONE!!!!!!.  So  you are going to become case law.

 

I missed this thread earlier so I guess I don't need to wish you luck.

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BAM!!!  Way to hammer 'em, Easy!  >> Case law ::travolta::

 

 

 

 

Wasn't able to get out of the office, wish I could have caught it.

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I walked in, read the tentative, went to the clerk and waived oral arguments. As I understand i didn't have anything to gain by arguing solo with the tentative in my favor. They would have been able to question me, and maybe even hurt my argument. I decided why take the chance, they already ruled in my favor. I thought my brief was well written and the record supported my stance. Appellate panel agreed.

 

So with oral arguments waived by both sides (respondent by force), the file is closed and the matter is submitted. I will be notified in writing within 90 days when the tentative judgement is entered as final.

 

a huge thank you to everyone who helped along the way, i couldn't have done it (nor would i probably have tried) alone. This is a huge weight off my shoulders and it feels good to know that the laws and statutes mean what they say and that they are there to be applied to ALL of us, not just to help the big guys. 

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Congrats, Easy!  Masterful work!  

 

Maybe now a certain trial judge will stop wearing her "Midland Funding" cap, t-shirt, and other free Midland swag inside the courtroom, ha ha ha!!

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In Midlands frontyard no less. Good call on no oral argument, why piss them off and they change the tentative. Keep us posted also watch for midland to motion to depublish, also prepare a cost memorandum and judgment return for everything they took.

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In Midlands frontyard no less. Good call on no oral argument, why piss them off and they change the tentative. Keep us posted also watch for midland to motion to depublish, also prepare a cost memorandum and judgment return for everything they took.

 

Motion to Depublish would be to not have this ruling be citable correct? Being that this is a superior court appellate division decision, and not court of appeals, I thought i would have to request it be published or something to that effect. It could certainly be useful to have this decision published, especially since there is currently no citable cases interpreting ccp 96/97. That could be a major help to many.

 

As for cost memorandum, I was on fee waiver, I don't know if i would be entitled to recover anything. Never looked that far ahead. And for the judgement return, they never took anything nor attempted to garnish wages or anything. I think they knew they were going to lose..

 

Once i read the tentative i couldn't get out of there fast enough, knowing that with no oral arguments the tentative would become final. A couple of attorneys outside of the courtroom were snickering while i snapped a cellphone picture of the tentative ruling..until i pointed out that i was pro se and had just won my appeal. they were impressed and mentioned how rare it is to overturn, especially being self represented. 

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Must have felt pretty darn good, Easy. During your regular trial, I think they sent out one of their actual lawyers to handle it, instead of a rent-a-lawyer, am I correct? Did they send one of their actual lawyers again for this one? I'm sure they knew they'd lose yesterday so maybe not, just wondering what the look on their face was knowing you had come back to not only beat them, but to (hopefully) make case file out of them.

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I agree if this could get published that would be great.

 

in trial court they assigned a real lawyer after i got them on the MTC and filed another one for sanctions, he did the trial too and seemed to do a much better job than alot of these rent a lawyers i hear about. I never heard a word from them in appeal. They didn't file anything, absolute zero participation. They didn't contest my statement of the record or anything. By not filing a reply brief, they forfeited any right to oral argument. I think they just gave up. They didn't send anyone yesterday. Or if they did, they were too embarrassed to say anything to me. They are a business though, I assume they decided to cut their loses.

 

I'm quite interested to receive the full ruling in the mail, I wonder if it was 2/3 or unannimous reversal, and which of my arguments convinced them and which didn't fly. I thought my ccp96 and section 473 arguments were just crushing, especially given no opposition from opponent. 

 

Moral of the story is, when at trial, even if you're getting just railroaded by judge try to keep your cool, keep objecting, and begin building your case for appeal.

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I'm quite interested to receive the full ruling in the mail, I wonder if it was 2/3 or unannimous reversal

 

I would think it's unanimous, especially since there was no opposition to it and they didn't  send it back to the lower court  for retrial.

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Checking the ROA on my courts website today, it's official; i won. judgement enter for me and against midland funding. I'll post what the ruling says when it shows up in the mail.

 

Also, found this Rule 8.1105. Publication of appellate opinions (B) Courts of Appeal and appellate divisions:

Except as provided in (e), an opinion of a Court of Appeal or a superior court appellate division is published in the Official Reports if a majority of the rendering court certifies the opinion for publication before the decision is final in that court.

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The decision is in:

This appeal was considered by judges xx, xx, xx.

Reversed.

Preliminarily, the Appellate division notes that Respondent Midland Funding LLC failed to file a respondents brief, and on xxx an order was issued stating that the court will decide the appeal on the record, opening brief, and any oral argument by appellant. Immediately prior to argument, appellant ME advised courtroom clerk the he would waive oral argument. The matter was taken under submission.

 

The judgement entered by trial court against ME was not supported by sufficient evidence and is unanimously reversed.

The evidence presented by MIDLAND failed to support its account stated cause of action against ME. In order ti obtain a judgement on an account stated cause of action, MIDLAND must present sufficient evidence to establish defendant's acknowledgement of the debt, and it failed to do so (See Maggio, INC v Neal (1987)196 Cal. App3d 745). There was insufficient evidence to show that there was any express or implied agreement between MIDLAND and ME. "When a statement is rendered to a debtor and no reply is made in reasonable time, the law implies the agreement is correct as rendered. However, the two letters presented by MIDLAND advising it had purchased the account by from CHASE BANK were mailed to an address not in any way linked to ME. Both were sent to xxx xxxx road, and there is no evidence in the record the ME ever resided at that address.

   Although MIDLAND's failure to present sufficient evidence to support its cause of action alone warrants a reversal, the Appellate Division also finds that Corinne Durazzo, Plaintiff's sole witness at trial, could not properly authenticate the Chase Bank statements as she was not the custodian of records, nor did she testify that she was familiar with the preparation of the records. Rather, she testified that she was an employee of Encore Capital. Ms. Durazzo did not testify that Encore Capital was in any way involved in the preparation of the records, and there is nothing in the record to reflect any connection between Encore Capital and Midland Funding. Under these circumstances, the trial court erroneously applied the evidence code 1721 business records exemption to hearsay and improperly admitted the records. The trial court also erroneously admitted the "Affidavit" of Chase Bank "officer" Martin Lavergne as it was not submitted pursuant to CCP 98, nor was it signed under penalty of perjury.

 The 1/3/14 judgement of the trial court is therefore reversed and this matter is remanded to the trial court to vacate the judgement and enter judgement in favor of defendant. Appellant is awarded costs on appeal.

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