Rev_Rock

Being sued by Persolve

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So, what can expect when I go to court in two weeks?  Regrettably, I didn't get the BOP done (long story, but I know it's not the end of the world), but from what I understand, I can request things during discovery, right?  The court date is the very first hearing for the plaintiff to "show cause".  Basically sounds like a preliminary hearing to me.  If it happens that no one shows, can I request dismissal?  Anyway, I WILL show up, regardless.  Just need to know what to expect.  Thanks again, everyone!!

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It sounds like it's an order to show cause hearing? That's the court asking the plaintiff to show why it shouldn't be dismissed, or if it plans to go to trial. It probably will be like a preliminary hearing with nothing much to expect, and if no one shows I would motion for dismissal. You may be able to see a few cases why you are there to get a feel for things and learn a lot as well.

You can send discovery request for production of documents (an example is on ASTMedic's thread), you could also still send the BOP. Nothing has happened to make the BOP obsolete.

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Thanks for your response again, Anon.  Lo, and behold, I just happened to receive something in the mail today from Persolve.  Looks like maybe they want a continuance?  It states all the actions so far, then it says the following:

 

"5.  Plaintif notes it will be available for trial afer December, 2014.  Plaintiff will also be unavailable September 15 to October 20, 2014 (for nuptials).

 

6.  This declarant respectfully requests the court vacate the OSC why sanctions, including dismissal should not be imposed for failure to file a Default/Default Judgment and either set this matter out for trial based upon the parties' and Court's availability, or alternatively, set the matter for a Case Management Conference."

 

From my limited understanding, this looks like they don't want to show, and would rather do case management to try and get me to settle than for them to travel 100 miles each way for a trial.  Am I reading this right?  Can I still show up at the court on that day and request a dismissal?  The court date is July 24, and this motion doesn't seem to address why they can't show up.  If I didn't show, they'd be looking for that default judgment again, I'm sure!

 

Any thoughts/suggestions on what to do at this point?

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I doubt this is something they will show up for (or need too). Find out if your court uses the "tentative ruling" method for motion hearings.

They have basically given the court what it asked for, and have stated when they are available for trial, or that the matter should be assigned a CMC.

There's really nothing to fight here. I would move on to discovery (RFP's) or send the BOP. Do something to keep pressure on them.

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A lot of it depends on whether or not your court uses the tentative ruling method. Usually you don't just show up. You file an opposition and get on calendar to support your argument. And this is after you see the tentative ruling, so you know whether or not you agree with the judges ruling.

 

Find out if you have tentative rulings and keep an eye on the website as you said. This is something between the plaintiff and the court, and out of your hands, unless you were filing a motion to dismiss or arguing on this motion that it should be dismissed, which would probably never happen.

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Since they list some tentative rulings on their website (Kern Co., California), I think it's safe to assume that they use that method.  I'll keep watching the website, and maybe even call the court to see if I need to be there.  I doubt it. 

 

Since they've filed this, is sounds like they likely either don't have the evidence they need, or would rather try to settle through arbitration.  Does that seem right to you?  I would be willing to settle with them for about 25 - 50% of the principle amount, just to get this thing over with, but will play hardball all the way.  If they won't settle for a 'fair' amount (for me!), I'll just continue on through the entire court battle.

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You won't need to go then, and you are on the tentative method.

 

They probably don't have the evidence they need, and I'm sure they would rather go into arbitration. They usually do come up with the evidence they would need (if you don't know how to fight it). They can (and do) come up with a full case of "evidence" eventually, but that doesn't mean that it is admissible (if the case is fought properly).

 

They filed that because if they didn't the court would just dismiss the case and possibly sanction them as well, and they are not ready to dismiss the case YET. You have to keep pressure on them and give them a reason to want to dismiss (that's why you are doing the BOP, discovery etc.).

 

I wouldn't even be thinking about settling now (or ever for that matter), you can't trust them. We just had another member who got burned in a settlement post earlier, it happens all the time. Even if you did settle, you have to fight them first;  and if you're going to fight it; you may as well fight to win.

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Since they list some tentative rulings on their website (Kern Co., California), I think it's safe to assume that they use that method.  I'll keep watching the website, and maybe even call the court to see if I need to be there.  I doubt it. 

 

Since they've filed this, is sounds like they likely either don't have the evidence they need, or would rather try to settle through arbitration.  Does that seem right to you?  I would be willing to settle with them for about 25 - 50% of the principle amount, just to get this thing over with, but will play hardball all the way.  If they won't settle for a 'fair' amount (for me!), I'll just continue on through the entire court battle.

 

You don't need to go to this hearing California Rules of Court require a hearing date be set when a plaintiff files a civil action for roughly a year from date of filing.  The plaintiff in theory needs to have served the defendant, and if no answer is recieved from the defendant.  Then the plaintiff is requireed to file for a default judgement or dismiss the case.  If they don't then there are sacations imposed by the court on the plaintiff. 

 

Basicly becasue many JDB file hundreds of cases each year, the courts use this as a hammer to make sure they clean up the courts dockets.  By forcing them to pay for each case they let sit dormant for roughly a year....

 

This hearing has nothing to do with you assuming you have filed an answer to the complaint.  Based on the information by the plaintiff copied to you and sent to the court, they are saying we will be ready for trial and then give a court dates to choose.

 

The court will likely pick a final date for trial based on this timing.....which is good because it will set some time limits for both sides as to when things need to be completed...

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Well, the court date was the other day.  Here's what the court website shows"

 

"7/24/2014

ORDER TO SHOW CAUSE IN RE DISMISSAL

 

THE ABOVE ENTITLED CAUSE CAME ON REGULARLY AT THIS TIME TODAY FOR HEARING WITH PARTIES AND COUNSEL PRESENT AS FOLLOWS:

 

ATTORNEY A. EDWARD BRISENO MAKES A SPECIAL APPEARANCE FOR EDIT ALEXANDRYAN ON BEHALF OF PERSOLVE, LLC (PL-1).

 

NO APPEARANCE BY DEFENDANT: Rev_Rock.

 

COUNSEL FOR PLAINTIFF STATES MATTER IS READY TO BE SET FOR TRIAL.

 

THE COURT ADVISES COUNSEL THAT MATTER NEEDS TO BE SET FOR MANDATORY SETTLEMENT CONFERENCE BEFORE IT IS SET FOR TRIAL.

 

UPON MOTION OF COUNSEL FOR PERSOLVE, LLC (PL-1) CAUSE IS CONTINUED TO 09/04/14 AT 1:30 PM IN DIVISION BM OF THE MOJAVE BRANCH FOR MANDATORY SETTLEMENT CONFERENCE.

 

COUNSEL FOR PERSOLVE, LLC (PL-1) TO GIVE NOTICE.

 

HEARING BEFORE TRIAL.

 

THE COURT ORDERS ADJOURNMENT."

 

 

 

What should I do?  I'm still going to send the BOP.  I'm guessing that it may give me so leverage. 

 

What should I expect at the settlement conference?

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Send the BOP and go to the conference. There is a rule that you have to participate with the settlement conference and see if you can reach a resolution. You can tell them that you will settle for them dismissing and both sides pay their own fees. Other than that you plan to go to trial.

You will talk with the judge and the lawyer and then the judge may speak to both of you separately. It may be in the judges chambers. From there it will be set for trial.

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That's something you would have to get at with discovery. The amount they actually paid doesn't do much for you. They really have no damages anyway as they weren't the original creditor and that money wasn't owed to them in the first place. They would have caused their own damage by purchasing a defaulted debt and failed to mitigate damages.

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Okay.  Received paperwork from Persolve today that looks to have "all their ducks in a row" on the debt.  It shows the transfer from the original creditor to one debt buyer, then to Persolve's debt buyer, then to Persolve.  My mandatory settlement conference is next Thursday.  Any suggestions on what I should say/do?  Do I have any leverage to try and settle for a lesser, lump sum amount?  Just need to have all my bases covered and not get caught off guard.

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Okay.  Received paperwork from Persolve today that looks to have "all their ducks in a row" on the debt. 

 

Upon first review and if you don't know how to look at it; it may very well appear this way. The bottom feeders business model depends on this.

It shows the transfer from the original creditor to one debt buyer, then to Persolve's debt buyer, then to Persolve.

Has it been authenticated and have they done anything to lay a proper foundation for it? (This is a very long chain of assignment and multiple layers of hearsay or hearsay within hearsay).  Does it show an assignment to YOUR alleged account, does it reference your name?

  My mandatory settlement conference is next Thursday.  Any suggestions on what I should say/do?

Say as little as possible / Do not settle (in my opinion). Make sure that you appear willing to hear any settlement attempts they may have, and do not be unwilling to work with them. Do not accept any settlement offers (at least not at this time) and if you are pressed to make a counter offer; you offer that they dismiss their case now and both sides cover their own cost (assuming you aren't on fee waiver).

It's not that you are unwilling to participate in the settlement possibility; but discovery is ongoing (or soon will be) and settlement (other than by dismissal) is premature at this point.

  Do I have any leverage to try and settle for a lesser, lump sum amount? 

You don't need any leverage for that. They are debt collectors. They will drop large amounts right off the bat if you can settle with them in a lump some and one payment (which is the only way you can settle with less chance of getting burned). You can gain leverage by continuing to fight them. I would send them discovery (request for production of documents) before the settlement hearing (that way discovery is still on going) see ASTMedics thread for discovery.

Just need to have all my bases covered and not get caught off guard.

Look up settlement hearing in the California rules of court, and the CCP. In the rules of court it says what they can do in the hearing and what you might expect. Anything you say in the hearing cannot be used against you at trial (although I wouldn't say much). I would want to be able to state that discovery is still ongoing, I challenge their standing, that any information on the alleged debt is accurate and can be authenticated, and I would want to be able to cross examine any accusers. Any of the above would not make settlement possible at this time, and you have a right to trial.

 

The judge may speak to you and the attorney separately and then together, it may even be in the judges chambers. They will just try their best to get you to settle. They may explain that you have no chance to win and you can get It all over with by settling now, but the reality is the opposite of that (in my opinion). 

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Thanks again, Anon.  I'm not real clear on what you mean by whether the chain of title is "authenticated".  They have copies of my account, an affidavit from a person at Citibank, showing that the account was sold to Security Credit Services.  Then they have a bill of sale and "affidavit of sale of account by original creditor" from Citi to Security Credit Services.  Then a "certificate of conformity".  Then an "assignment and bill of sale" from Security to Kling Portfolio Acquisitions, then on to Persolve.  Seems like there's a clear chain of title here, so I'm not sure what I could challenge.  Of course, I want this mess over with (as does my wife), so it leads me to lean towards settlement in exchange for dismissal.  But if there's something I'm missing here, I'm willing to listen and learn.

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Thanks again, Anon.  I'm not real clear on what you mean by whether the chain of title is "authenticated".  They have copies of my account, an affidavit from a person at Citibank, showing that the account was sold to Security Credit Services.  Then they have a bill of sale and "affidavit of sale of account by original creditor" from Citi to Security Credit Services.  Then a "certificate of conformity".  Then an "assignment and bill of sale" from Security to Kling Portfolio Acquisitions, then on to Persolve.  Seems like there's a clear chain of title here, so I'm not sure what I could challenge.  Of course, I want this mess over with (as does my wife), so it leads me to lean towards settlement in exchange for dismissal.  But if there's something I'm missing here, I'm willing to listen and learn.

Well there are bills of sale, and there are affidavits. On which ones does your name appear? How about account number?

 

Typically we see 'bills of sale' refer simply to "a group of accounts", then some 'affidavit of sale' that says "oh yeah, this specific defendant was included in this group of accounts we refer to over here" --- I don't think documents like this are clear at all.

 

They don't get to just drop bills of sale & affidavits on you, wipe their hands together and say "there it all is, clear as day" - those are just papers. They aren't self authenticating - you have a right to make them produce witnesses from each link in the chain to authenticate those respective items. And not just any witness, but witnesses who can show they are qualified and have the personal knowledge to be authenticating them.

 

Do all of the affidavits/certificates of conformity conform to CCP 2015.5?

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Thanks again, Anon.  I'm not real clear on what you mean by whether the chain of title is "authenticated". 

It's not what they say it is simply because they say so (unless you don't object to it). In general to satisfy the requirement of authenticating evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Live witness testimony is one way to authenticate evidence. The location and availability of the original is also something I would inquire about in discovery. It's also hearsay evidence and would have to meet the requirements of the business records exception to the hearsay rule. Check to make sure all of the docs have the correct amount of signatures as well. There's plenty of ways to attack this, they are just hoping and expecting you to submit to it. 

They have copies of my account,

It's sounds like a lot of people do. Do they claim them to be "true copies" or "exact duplicates"? Do they show all charges and payments, and are they complete enough to ascertain the amount they claim due is correct? 

an affidavit from a person at Citibank, showing that the account was sold to Security Credit Services.  Then they have a bill of sale and "affidavit of sale of account by original creditor" from Citi to Security Credit Services. 

 

Affidavits are not admissible at trial in California (unless not objected to), and they are trying to lay a foundation and authenticate the evidence via affidavit. It also looks like they may be short an affidavit as well. 

CA evicence code 1200 and Elkins v Superior Court (there's more as well)

Then a "certificate of conformity". 

It would have to qualify as a business record to be admissible (unless not objected to)

Then an "assignment and bill of sale" from Security to Kling Portfolio Acquisitions, then on to Persolve

It looks like no affidavit for this one for foundation / authentication

.  Seems like there's a clear chain of title here, so I'm not sure what I could challenge. 

I think there's plenty to challenge, but you would have to spend time learning how to attack it.

Of course, I want this mess over with (as does my wife), so it leads me to lean towards settlement in exchange for dismissal. 

It's a temporary problem regardless, but it may take some time if you fight it.

But if there's something I'm missing here, I'm willing to listen and learn.

There's a lot you are missing and can learn if you want to fight and invest the time. If so, you are in the right place. We have a HUGE win record here in Cali....

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So, if I'm understanding you correctly, unless they can show my name on that "spool" of debts that they bought, they don't have the evidence they need?

 

If it goes to trial, I need to object to the affidavits also?  Upon what basis?

 

Sorry, but I'm not a genius when it comes to legal stuff.  I prefer plain-speaking.  I guess that's what I hate at work, when trying to decipher union contracts!  :<img src=:'>

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So, if I'm understanding you correctly, unless they can show my name on that "spool" of debts that they bought, they don't have the evidence they need?

Even if they do produce your name and ac# (which in time they most likely will) you  can still beat them, people do all the time. Even if they did have all the evidence they need; they would still have to fly out witnesses to authenticate it, this is what they don't want to do. If they produce you name etc. there are ways of attacking this as well (not a business record, prepared for the sake of litigation, not trustworthy, etc. )

 

If it goes to trial, I need to object to the affidavits also?  Upon what basis?

Indeed. Affidavits are not admissible at trial except by statute or act of Congress. CA Evidence Code 1200 Hearsay. The main case you cite is Elkins  V Superior Court. Also: Laccabere v Wise,   Parajo Valley Water Management v Superior Court,     Reifler v Superior Court.

"Upon the bases" that they are hearsay and it is not excepted in our courts at trial.   "A person's right to cross examination has been termed the "greatest legal engine ever invented for the discovery of truth."  People v Ramirez

 

Sorry, but I'm not a genius when it comes to legal stuff.  I prefer plain-speaking.  I guess that's what I hate at work, when trying to decipher union contracts!  : :censored:

Not a problem. You don't have to be a genius. You just have to learn how to fight this and know your rights (assuming that's what you want to do). It will mostly be plain speaking and anything that doesn't make sense is easily explained by someone here. If you are deciphering union contracts that's going to help you. This is basic contract law and it's all about economics for them.

Basically their whole case will be hearsay evidence supported by affidavits, BOTH inadmissible at trail. They will try to get testimony in by declaration rather than a live witness. You object to that and subpoena the witness if that happens.

It's a lot to take in now, but if you get past the settlement hearing you will have close to a year to learn before trial. 

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So, if I'm understanding you correctly, unless they can show my name on that "spool" of debts that they bought, they don't have the evidence they need?

 

If it goes to trial, I need to object to the affidavits also?  Upon what basis?

 

Sorry, but I'm not a genius when it comes to legal stuff.  I prefer plain-speaking.  I guess that's what I hate at work, when trying to decipher union contracts!  : :censored::

Welcome,

 

Everyone on this board has been in your position: Confused, scared and no understanding of legal language but we all have understood enough to win our cases. So to put you at ease and give you some understanding read this article hopefully you will get a better understanding of what type of people you're up against. The article is " Defending Against Junk Debt Buyers" https://drive.google.com/file/d/0B0lfU9YL5kEVOFllcFg2RUk1OWc/edit?usp=sharing which is who you are up against.

 

BTW-After you read that here is the 2014 California Jury Instructions. Look up what you are being sued for, the Common Counts or Cause of Action, this will explain what the plaintiff has to prove to win NOT YOU. Here's the link: http://www.courts.ca.gov/partners/documents/caci_2014_edition.pdf

 

Hope this helps...

 

Helpme

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So, if I'm understanding you correctly, unless they can show my name on that "spool" of debts that they bought, they don't have the evidence they need?

 

If it goes to trial, I need to object to the affidavits also?  Upon what basis?

 

Sorry, but I'm not a genius when it comes to legal stuff.  I prefer plain-speaking.  I guess that's what I hate at work, when trying to decipher union contracts!  : :censored::

 

you object to the affidavits on the grounds of "hearsay" this link may help you study what 'hearsay' is and when to object to it during trial if it goes that far. http://www2.courtinfo.ca.gov/protem/courses/hearsay_1/01_01.htm

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Well, I really want to thank everyone who has commented and lent their support. I went ahead and made a lump sum settlement deal with them. If I were a single guy, I might've fought them all the way, but my wife has health issues and the stress of this whole thing hasn't been good for her. The settlement wasn't ideal, but it's tolerable and doable, so I went with it.

Thank you all so much for everything! I really appreciate the support and advice you gave. At least, they didn't get a default judgement against me! My settlement was much, MUCH better than that!!

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Well, I really want to thank everyone who has commented and lent their support. I went ahead and made a lump sum settlement deal with them. If I were a single guy, I might've fought them all the way, but my wife has health issues and the stress of this whole thing hasn't been good for her. The settlement wasn't ideal, but it's tolerable and doable, so I went with it.Thank you all so much for everything! I really appreciate the support and advice you gave. At least, they didn't get a default judgement against me! My settlement was much, MUCH better than that!!

There's value to being relieved of the stress, you've been dealing with this case for half a year and ultimately did what you felt was best. I'm sure it irks you to have settled, but your wife is more important. If anything I'd say make sure the language in your settlement fully extinguishes this debt and, if possible, erases any trade lines.

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