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Trial in a month any help would be appreciated!


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Hello I was in this forum last year but unsure how to find that post. Anyhow trial is in a month and I can use any help!

Midland served me court papers through a Sheriff Officer to my moms house(old address) Jan 2013. I am being used for 4k for an account they purchase through Chase. I responded with a general denial after researching this site. I am in CA and the last payment I made was in Jan. 2010. I was then scheduled for a Case Management Hearing in March 2013. Being so confused to the case I did not file a CMC statement nor did I receive anything from Midland. A few days before the hearing they sent me a letter to "meet and confer" and requested I gave them a call. I did not respond. A fellow member on here suggested I have a CMC statement in hand and bring it to the hearing. I typed one up and brought it with me. I went to the hearing and noticed a representative there jumping from court room to court rooms and when it was my turn, the judge called us up as the rep. Just stated we will schedule trial for Feb 2014. The judge looks over at me and asked what I would like to do and stated it may be in my best interest so I agreed. Here we are fast forward to 2014. Neither parties has had any contact and so I figured getting close to trial I'd research more. So I was informed to send them a CCP96, that I did. In return I received a letter from the lawyer assigned to the case in form disc-015 stating "Witnesses and evidence that will be used only for impeachment need not be included" then today I received a CCP98 and the person is out of Minnesota but in the end it states "for the 20 days immediately prior to trial in this matter, I agree to accept service at any of the following locations" which 2 of them are within 150 miles. I'm not sure what my next steps should be. Any recommendations would be great! Thanks in advance!

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subpoena the witness.  Have the sherrif do the service.  Go read the thread by homeless in ca, he has alot of usuful stuff in there, but you need to subpoena the witness, then you can write a Motion in Limine on how their witness could not be served, and therefore their ccp98 goes out the window.  No witness, no ccp98, no case.

Did they not do any discovery?  Did they not send you anything in the form of a bill of sale, statements, etc?  Your mil can be based upon those, and if they didn't send it, it is to late for them to do so now, and your mil would be based on that.  homelessinca has a good mil you could glean some info off.

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Check the timing on the CCP 98. You are supposed to receive it at least 30 days before trial. So if it's late that's another reason to strike it. Also see if the declaration is made under penalty of perjury to California law.

 

If they try to introduce any other evidence besides the CCP 98, object to it on the grounds that it was not listed on their CCP 96 response.

 

Read the Target v. Rocha case.

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My trial is on Feb 28 so the CCP98 was within the 30 days. The declaration is also under California law.

Not a problem, still plenty of ways to attack it.

I do not think they did a discovery what would it have been sent with?

You would know If they sent it and it was ignored, because it would have most likely already cost you the case. In your case their response to the CP 96 is basically the discovery. Although their response was insufficient, it is to your favor. 

The CCP 98 was attached to a bill of sale as well as a few statements. Thank you guys so much for the tips

That's going to be their "case in chief" and what you have to defeat. As Shelieh said; most of this is covered in the HomelessInCalifornia thread and the Target v Rocha case. There may also be MIL samples there as well. If not there are good MIL samples in ASTMedics "how I beat midlands" thread.

 

You can download a  subpoena for the court clerk to stamp at www.courtinfo.ca.gov  I think the address has changed but it should redirect you to the new one.

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   a bill of sale as well as a few statements.

If you are able top learn fast enough; I would file an MIL for these as well. You want to attack their standing and proof of assignment. You can attack the bill of sale, if they can't prove they own it, or that your alleged debt is part of the sale; they will lack standing, so the court will lack jurisdiction to hear the case.

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My trial is on Feb 28 so the CCP98 was within the 30 days. The declaration is also under California law.

Not a problem, still plenty of ways to attack it.

I do not think they did a discovery what would it have been sent with?

You would know If they sent it and it was ignored, because it would have most likely already c

ost you the case. In your case their response to the CP 96 is basically the discovery. Although their response was insufficient, it is to your favor. 

The CCP 98 was attached to a bill of sale as well as a few statements. Thank you guys so much for the tips

That's going to be their "case in chief" and what you have to defeat. As Shelieh said; most of this is covered in the HomelessInCalifornia thread and the Target v Rocha case. There may also be MIL samples there as well. If not there are good MIL samples in ASTMedics "how I beat midlands" thread.

 

You can download a  subpoena for the court clerk to stamp at www.courtinfo.ca.gov  I think the address has changed but it should redirect you to the new one.

Can I subpoena the witness now or will I have to wait until within the 20 day period? I will definitely look up MIL samples. thanks

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So I should wait until the 20 day period to subpoena right? Is there something else I should be filing as well as the subpoena? MIL?

Yes. I would send it at the first available date of the 20 days because the process server or sheriff (if you choose one of these to serve) will be busy and will need time. They usually try to serve 3 times. On the 3rd attempt, if it were mine, I would allow them to just leave the subpoena with someone at the address (regardless of what the statute says) and then write you a "due diligence declaration" explaining what happened.

 

I would draft 1 MIL for each piece of evidence they provided you (bill of sale, etc,) and a MIL for the CP 98 declaration as well. Se ASTMedics "how I beat midlands" and probably HomelessInCalifornia's thread for examples of MIL. You will have make them fit your case. It's not a simple process, depending on how much you know about the rule of evidence as well as procedure. Reading a few MIL's will help, but you are going to be pressed for time.

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No, you can't serve it yourself, needs to be a 3rd party that is unrelated to the case. The more official the person attempting service, the better, IMO, as that person will write up a declaration of diligence describing the (likely failed) service attempts. If the sheriff still does civil subpoenas in your county, I suggest that - if not go with a process server.

 

I think most people go with 2 or 3 attempts.

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I sent my CCP96 Jan 14 2014. They responded within the time period (dated Jan 24). Trial is Feb 28 so I'm assuming the first date I should attempt to subpoena is Feb 8. I live in Contra Costa County, Trial is in Alameda County and the nearest office listed is Santa Clara county. Which county sheriff should I be contacting to use as delivery service and how do I approach it? Fill out the form and hand deliver it to sheriff? Any info would be greatly appreciated! Thanks!

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I sent my CCP96 Jan 14 2014. They responded within the time period (dated Jan 24). Trial is Feb 28 so I'm assuming the first date I should attempt to subpoena is Feb 8. I live in Contra Costa County, Trial is in Alameda County and the nearest office listed is Santa Clara county. Which county sheriff should I be contacting to use as delivery service and how do I approach it? Fill out the form and hand deliver it to sheriff? Any info would be greatly appreciated! Thanks!

Did they list the affiant from the CCP98 in the CCP96?

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I've dealt with a CCP98 several times. Each time my subpoenaing the "witness" has resulted in the plaintiff dismissing their case. This has Ben the result with both original creditors and JDBs. I will not sit here and say that it's for sure thing that your case will have the same end because we never TRULY know. Do I suspect that should you follow the steps you're more likely than not to have a better result? Of course.

Let me reiterate the previously given and fantastic information you've received from fellow members; Both Shellieh98 and Anon Amos are right on target that you need to subpoena the witness at the proper time as was the advice about giving the sheriff plenty of time as I actually made the mistake of waiting too long to have the sheriff handle it in my first case. In my county and the neighboring counties I know the sheriff will subpoena the affiant/declarant at no cost if you have a previously granted fee waiver for the case.

You need to contact the sheriff that's located in the county where they told you the witness can be subpoenaed at, so for example I'm in San Bernardino county but the witness for the last case was in San Diego county; so San Diego county sheriff would serve the witness.

As for the MIL, I don't know why but I have always felt extreme discomfort mentioning any particular piece of evidence in an MIL. Mostly for fear that naming them specifically would 'open the door' thereby allowing the courts to look at them. Whether correct or not, I always strictly mention the declaration and its attached documents. This is merely because I'm paranoid, nothing more, and perhaps another member can allay my fears by explaining their are baseless. I'd love that...please...anybody??

I'm shocked that Midland didn't participate in discovery! Let's talk about the specifics of the 98! Who is the witness? (PM me the name if you're comfortable doing so) Does the 98 comply with the statute? For example, is the address farther than the allowable distance? Does it comply with CCP 2015.5? Is this alleged witness an employee of the OC or is it a Midland employee?

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Oh one more thing! You are not allowed to take a subpoena form already filled out to the court clerk. I've also heard that some courts bully people into purchasing the form from the court themselves. I absolutely refuse to do so, but that's me. To be on the safe side, take some change to your court where the forms are and request the form, SUBP-001. I also do two in case I totally mess one up...I can be over cautious at times! ;) Ask to have to have the subpoena issued and they will stamp it and sign it.

When I fill them out, I list:

CCP98 Declarant - And then the name

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I think it's very important to file MIL's. I would file one MIL for each piece of evidence regardless if there are easier ways.

 

For one reason it helps preserve your objections for the record.

 

Also many people had their case dismissed after the plaintiff received the MIL

 

Another reason; if the ccp 98 declaration gets tossed, but the affiant shows up anyway (regardless of how unlikely) he can attempt to lay a foundation for the evidence. It's possible some of that evidence could already have been stricken if the MIL had been filed (or will be)

 

It makes the judges job easier,

 

MIL's are heard before trial, and may eliminate the need for a trial, or at least narrow the issues of the trial.

 

You will have all your information at hand to argue the evidence as it is introduced at trial (for judges who prefer to handle it that way) right there in the MIL.

 

And; they make nice examples and public record for anyone following in your steps and pulling case files.

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Since you seem a little unsure of yourself, I have to say in some regards  in good shape to date. Read ASTmedics excellent midland post and Homeless in californias very entertaining and informative posts then do what they did. Say this 25 times in the mirror "I am not going to let these scumbags beat me." and then get that subpoena and mil and trial brief ready.

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I would see if you can get a court reporter, I doubt the court provides one. You would have to call one and provide it yourself, but it may be well worth the money (probably $150 but check and see).

It helps control the judge, sends the message that you will appeal his ruling if he doesn't get It right, and discourages him from bending the rules to help a fellow bar member out.

 

If you can't get one; any time you object and again at the end of the trial (if you should happen to lose (hate to even say that) ask that the record or "minutes record" reflects your objection.

 

Good luck, They usually dismiss right before the trial with no witness.

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I can't believe they have done that to you!

 

I've heard of another member who had the plaintiff list five (5) different addresses for the affiant. Since two of them are within the 150 miles, those are the only two I would attempt service at. You're not obligated to attempt service at addresses that do not comply with the statute. This is something you want to include in your MIL as well. You're supposed to be able to personally serve this person because they're supposed to be there. How can they be at two places at once? They can't.

 

You do not have to fill the subpoena out at the court, you can take it home and do it. I would call the sheriff and see how you go about getting the physical subpoena to them for serving purposes. You might be able to fax it but that's something you need to verify.

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Hello all!

So today was the first business day within the "20 days" of the witness being available to receive mail at the 5 listed location so I drove to the court house got a subpoena and sent it off to a mail processor to serve it to one of the locations. Unfortunately the Sheriffs office in that county no longer serves subpoenas. In the mean time Midland sent me a huge packet with a memorandum if cost sheet, trial brief, a notice to appear, response to request of witness and evidence attached to a crap load of old bank statements and copies everything that has been communicated between both parties. Any suggestions on what I need to be doing?? Trial is Feb. 28th yikes!

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