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JDB's Declaration section 98 was not notarized. How should I object this Declaration


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According to legal dictionary, in order for the declaration/affidavit to be legally effective, it has to be under oath administered by a notary or authorized officer. The Declaration filed by JDB wasn't notarized and I am objecting it in my motion in limine, but I am not sure what case law/California Code/Federal code I should cite for my argument?  Please help

 

 

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I certainly wouldn't make that my only argument. Judges can rule however they please. I would find the exact CCP statute stating the requirements and quote it in MIL. But only let that be part of your argument. Subpoena the declarant. Shoot as many holes into as possible. There may be case law about this, but doubt it will be plentiful easy to find. try lexisnexis or google scholar search. I think declarant not being available for personal service, or possibly not having an address with 150 miles of court house coupled with target v rocha is a much stronger defense, Let the notarization be icing on the cake, don't hang your hat on it, lest the judge pull the hat rack off the wall.

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Does it swear under penalty of perjury under the laws of the State of California?

 

The Declaration itself swear under penalty of perjury under the law of the State of CA. It wasn't notarized and didn't disclose the location of execution.

 

As for  the Affidavit of Sale (an exhibit to the Declaration) , it was notarized in Florida, but there was no language sworn under penalty of perjury, at all.  not even in general penalty of perjury. 

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Shows:

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:

( a ) If executed within this state:

"I certify (or declare) under penalty of perjury that the

foregoing is true and correct":

_____________ _________

(Date and Place) (Signature)

( b ) If executed at any place, within or without this state:

"I certify (or declare) under penalty of perjury under the laws of

the State of California that the foregoing is true and correct":

_____________ _________

(Date) (Signature)

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Yes. It is my understanding it must also comply with the same statute.

I've had a lot of experience with the CCP98, and have used it against the plaintiffs each time successfully. You are wise to use everything you can to thwart it, not only focusing on one point. We never want to focus on only one point throughout the entire case, not just the final papers.

I don't know your plaintiff, but want to make sure you comb that baby with a fine toothed comb. Also, do not forget about the CCP96 and its many virtues. Alone it's not 'amazing', but coupled with the errors/noncompliance with the 98 it can make your MIL awesome.

How much time remains before your trial date?

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We don't have too much to go on here, unless you have another thread somewhere.

 

Did the declaration provide an address to subpoena the declarant within 150 miles of the court?

 

Did you subpoena the declarant?

 

And Hotwheel's question; when is the trial?

 

Does the bill of sale reference your name or alleged account number?

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We don't have too much to go on here, unless you have another thread somewhere.

 

Did the declaration provide an address to subpoena the declarant within 150 miles of the court?

 

Did you subpoena the declarant?

 

And Hotwheel's question; when is the trial?

 

Does the bill of sale reference your name or alleged account number?

 

Thank you so much for your response.  I started a thread last week  here  http://www.creditinfocenter.com/community/topic/322811-need-help-dealing-with-hunt-and-henriques/#entry1281529

 

 

The Declaration provided 2 addresses.  One was Plaintiff's address which is in VA.  The other one is  ABC Legal Services which is few miles from the court house.

 

I have learned a lot in this forum and I am doing exactly what the members here advised me.  Court date is 37 days away (mid March), so I can't subpoena the witness yet.  At this point I am trying to go through line by line of the Declaration ccp98 to poke as many holes on it as possible.  Of course all the evidence are hearsay, lack of foundation. I also want to argue that the Affidavit of Sale did not comply with CCP 2015.5.

 

JDB provided a Bill of Sale, which is very general.  My name and the credit card number weren't t listed.  it was not notarized.  There is also an Affidavit of Sale, which was notarized, with my name and the credit card account number listed.  But this Affidavit didn't have the sworn statement of penalty under perjury. 

 

 

I just received a letter from JDB attorney.  Since I had told them this credit card wasn't mine, they sent a fraud affidavit and questionaire and requested me to complete. Basically, they assumed that I claimed fraud when I denied that I had no knowledge that this account was in my name.  This letter and fraud affidavit aren't a part of Discovery, but the questions are very similar to the Admission Requests in Discovery . Should I ignore it? 

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With your court date 37 days away, it seems a bit late for them to be making discovery requests (I assume their "fraud affidavit and questionnaire" would be considered as such). Your discovery deadline should be coming up soon, I know mine was 15 days before trial. I'm still a CIC novice, but my thought is that they didn't leave themselves enough time to pursue this issue should you choose to ignore it?

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Sounds like Portfolio Recovery Associates is the JDB, and is their attorney Hunt & Henriques ?

 

I am fighting the same JDB and same attorney,..but  your court date come first.

 

You can check out my own posting,...

 

3 things perhaps you can ask around for confirmation:

 

- the CCP 96 form, it will need the file stamp and signature/ date by Court filing office clerk/officer in order to be  VALID ( but they say it does NOT need to be case filed with the Court ?!!?....Can anyone confirm ??

 

- After you receive their CCP 98, you subpeona their witness, right? If sherriff cannot hand the witness the subpoena at the location after several attempts, the sherriff has to drop off the subpeona, right? If it is the case,  can we can the sheriff to make a note of this --that witness is not available at location, is this called "Due Dilligence Declaration" ??

 

-the MIL motion, is it 1 motion covers all their hearsay evidence OR will it be each hearsay evidence requires each separated MIL motion ??

 

Best wishes to you,...

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Brownie, the CCP96 form you are referring to is the DISC-015, correct? It isn't filed, in fact at the top it says specifically "do not file with the court" - have a third party send to the plaintiff CMRRR with a proof of service. Remember the window in you are allowed to serve CCP96 begins on the 45th day before trial and ends on the 30th day before trial. Don't miss the window.

 

Per CCP98, their witness needs to be available service during the 20 days before trial, so you'd attempt to serve it within that window. Again, the sooner the better IMO because you need time to get a Declaration of Diligence back from your sheriff/process server. No, the sheriff/process server does not have to drop it off after several failed attempts. The subpoena is for personal service, so it goes to the witness and no one else. If the service attempts fail, then you get the Declaration of  Diligence back from the sheriff/process server which will detail the failed attempts, and you use this to show that the CCP98 declaration did not abide by the code and therefore it shouldn't be admitted.

 

MILs: some people recommend a separate MIL for each motion to preclude, others have drafted MILs which combine them. I personally don't know which is better.

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MILs: some people recommend a separate MIL for each motion to preclude, others have drafted MILs which combine them. I personally don't know which is better.

Check your local rules. Different jurisdictions and even different judges may want things a certain way. And as far as having the CCP 96 request stamped, I don't see why you would stamp it when it's not to be filed. Just send it CMRRR and keep the green card with a copy of the request, so you can prove when it was sent and received by plaintiff.

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Thank you for the clarification.  So, I can object the Affidavit of Sale right? It was notarized in FL but it didn't have the penalty under perjury statement

 

 

You can and should object to the affidavit of sale.  However, the correct objection is "Hearsay".  Affidavits (or declarations) are not admissible at trial unless permitted by a specific statute (such as CCP 98).  THe cite for that proposition is Elkins v. Superior court.

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 This letter and fraud affidavit aren't a part of Discovery, but the questions are very similar to the Admission Requests in Discovery . Should I ignore it?

I would ignore it. I think they do that to shift the burden of proof to you. If you file an affidavit of fraud with the court, you may have to prove the allegation.

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