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April 1 court date, California


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Court is scheduled for April 1 against PRA.  I sent BOP - denied.  Both did the M&C.  I sent Demand for Production of Docs - they sent me one year of statements (last year), Bill of sale, and card agreement.  They never sent me any RPOD, RFA etc...no discovery request at all.

 

They sent a letter of a notice to appear in court after the CMC and an offer to pay a reduced amount. 

 

My main question is since court is about 40 days, is there anything I should send them regarding CCP 96 / CCP 98?  I havent heard from them in months since our Case Management hearing.  They are using their in-house lawyers from Virgina and a rent-a-lawyer for the local appearances.

 

Thoughts on my action items.

 

regards,

 

JW

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Court is scheduled for April 1 against PRA.  I sent BOP - denied.  Both did the M&C.  I sent Demand for Production of Docs - they sent me one year of statements (last year), Bill of sale, and card agreement.  They never sent me any RPOD, RFA etc...no discovery request at all.

 

They sent a letter of a notice to appear in court after the CMC and an offer to pay a reduced amount. 

 

My main question is since court is about 40 days, is there anything I should send them regarding CCP 96 / CCP 98?  I havent heard from them in months since our Case Management hearing.  They are using their in-house lawyers from Virgina and a rent-a-lawyer for the local appearances.

 

Thoughts on my action items.

 

regards,

 

JW

Send them a CCP 96 request.  http://www.courts.ca.gov/documents/disc015.pdf

Send that soon you don't have much time.

 

edit:  HAHA ok I'm now confused.  Are you in Virginia?  Cause CCP stands for California Civil Procedure?

edit2:  Hmmm your location says California so I guess so.  I don't see how a Virginia lawyer would be able to even sue you.  Pretty sure you have to be a member of the California Bar or whatever is required to be a lawyer in this state.

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So I do not need to send anything first?

Just the CCP 96 as Stanislavbr said. Then you wait for them to send their response to the ccp 96 and file MIL's to that evidence. They send the CCP 98 and then you need an MIL for that as well as the subpoena. And you write a trial brief as well.

 

You need the CCP in the mail ASAP (check the timing make sure it's correct).

 

There is a lot to do.

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Question about CCP 96:   I believe I have 30-45 days to send it but ...

1.  is that court days or calendar days?

2.  If April 1 is the trial, and it is court days, then I believe I missed my 30 days.

      What are my options if I didnt give them the 30 day time frame?

It's calender days. Get it out asap so you have time to work on what they send back.

 

It's considered served when you place it in the mail (CMRRR with proof of service),  they get 20 days from that point + 5 more days because you mailed it.  They just have to serve it (by placing it in the mail) by the 25th day.

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Question about CCP 96:   I believe I have 30-45 days to send it but ...

1.  is that court days or calendar days?

I believe it's calander days and you are at about day 40

2.  If April 1 is the trial, and it is court days, then I believe I missed my 30 days.

      What are my options if I didnt give them the 30 day time frame?

If something like this ever happens just send it late anyway, just in case they don't object, or whatever it is you are trying to do may actually go thru anyway. I believe you are OK however.

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PRA and I have L-O-T-S of history. The CCP96 will most likely result in them either sending that amazing packet which we in Cali all know and love...the CCP98, or a dismissal.

Im so glad I read to the bottom of this thread and saw you sent it to them. Good job! I don't know your case history but I hope you have prepared to get their "witness" subpoenaed and a MIL in order. It's not incredibly difficult with the amazing California members on this board and as I already said, may not even be necessary once they get your last correspondence. Keep pushing ahead!

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I received my BIG packet from PRA yesterday in response to my CCP 96 request.  It is a lot so I will be posting, looking for advice as I am a litle overwhlemed with it all.  I know I have 20 days to subpoena the witness so with a 04/01 court date, I will be ready to send it soon.

 

This was the info that came in the packet: 

Declation in lieu of live testimony (CCP98).

Request for statement of witness and evidence (their CCP 96 to me?)

Notice requesting and requiring parties to attend trial

Plaintiffs trial brief

Plaintiffs trial witness list

Plaintiffs trial exhibit list: BOS, statements (1 year), card member agreement, Affidavit of sale, notification of intent to incur costs by filing suit

Memorandum of cost

Proposed order for judgment

 

where do I begin?

 

TY,

JW

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YAY!!! The CCP98 is definitely what you want. Question, is the declarant for the CCP98 listed as a possible witness on the CCP96?Now, to the nitty gritty. You're in the homestretch so now's the time to really step up your game. You said your trial is April 1, and it's your job to subpoena their witness. So let's take a very close look at their 98. First, does it comply with CCP 2015.5?

California allows the use of a declaration instead of, or in lieu of, an affidavit. The relevant code section is Code of Civil Procedure § 2015.5 which states that,

“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)”

Note that an affidavit or declaration that is signed inside California must state the date and place where it is signed.

"However, the key thing to remember is the fact that a declaration signed outside of California that does not state that, “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” does not conform with California law, namely Section 2015.5 of the Code of Civil Procedure , and should be objected to on that basis. The California Supreme Court has also ruled that a declaration that does not comply with the provisions of Section 2015.5is not admissible, see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606. (Internal citations omitted.)"

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The witness must be an employee of the original creditor, as an employee of PRA is not a qualified custodian of records and anything they say is hearsay. Some questions for you:

1. Where was your 98 signed?

2. Where does it say their witness will be located in the 20 days immediately before trial?

3. Is this address within the prescribed mileage requirements to comply with a 98?

4. Is that address the attorney's office?

5. Does the witness say they are giving so and so the right to accept service in their place?

Now for the 96:

1. Is what they offered (in writing and physically) the same things listed in the 98?

2. I already asked but again, is the 98 witness named in the 96?

3. Did they name each possible witness or did they include something like, "and anybody we might bring as an alternate witness with knowledge."?

4. Did they give the street addresses for each witness listed? (In a case I fought they didn't and I ended up sending a letter telling them their response was insufficient and didn't comply with code...but I can be a little aggressive and others might disagree with doing so...YMMV)

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Their Dec in Lieu of Personal Testimony Pursuant to CCP 98:

 

They list the Custodian of Record for PRA, hereby declares:

1. I am an authorized employee of PRA which is doing business at (address) in Norfolk, VA. and I am authorized to make statements, reresentations and averments herein.

2. I serve as a Custodian of Records and perform the following job functions: blah blah blah.  All of the account records I manage and control are either prepared in the normal course of Plaintiffs business or become a part of and have been integrated into Plaintiffs business records, in the normalcourse of its business.

3. part of my job responsibilities is the custody of the books and records pertaining to the account of (my name), defendant.

 

It goes on and on to 4-16 of how this person knows everything about my alleged account.  They ask that since they know everthing, they request that all copies of documents produced under Exhibit A-D be accepted in lieu of the originals.

 

15. My current address is c/o Lori Williams, esq, ABC Legal Services, 201 S. Figueroa Street, suite 100, Los Angeles, CA. 90012.  I am available at this address for service of process twenty (20) days prior to the trial date herein.  If service of process cannot be effectuated at the aforementioned address, I authorize the defendant to contact attorney Lori Williams for purposes of effectuating proper service of my behalf.

 

I declare under penalty of perjury under the laws of California that the foregoing is true and correct.   Exected on this 6th day of February at SAN DIEGO, CA.

Evita Rodriguez - custodian of records

 

On the Plaintiffs trial witness list they state that Evita Rodriguez, Custodain of records for PRA:  this witness will testify via written declaration pursuant to CCP 98 as to the terms and authenticity of the credit card agreement, assignment of the account, the status of the account and payment history, and the damages caused by breach of contract.  The testimony via written declaration is expected to last about 10 minutes to all of their exhibits.

 

Questions: 

1.  I didnt send my CCP 96 until about the 17th of Feb...how did she sign prior to receiving it?  Is this even a big deal?

2.  signed in San Diego which may or may not be 150 from ventura court , but it appears she wants it service in Los Angeles c/o the attorney.  What are your thoughts for the subpoena?

3.  If I subpoena her and she does show up, how do I get her discredited due to being employed by PRA?  List of questions for witness?

4.  Business records exception per comment #2. above - are these exhibits fromthe normal course of business for PRA?

5.  The affidavit of sale (state of FL) does specifically list my name, account # and amount.  It is notorized by a CHASE attorney-in-fact, Michael Rusin. and uses the language of these records are kept in the ordinary course of Chase's business...so how does this not get admitted by the judge as evidence?

 

Any help would be much appreciated.

 

JW

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Their Dec in Lieu of Personal Testimony Pursuant to CCP 98:

 

They list the Custodian of Record for PRA, hereby declares:

1. I am an authorized employee of PRA which is doing business at (address) in Norfolk, VA. and I am authorized to make statements, reresentations and averments herein.

2. I serve as a Custodian of Records and perform the following job functions: blah blah blah.  All of the account records I manage and control are either prepared in the normal course of Plaintiffs business or become a part of and have been integrated into Plaintiffs business records, in the normalcourse of its business.

3. part of my job responsibilities is the custody of the books and records pertaining to the account of (my name), defendant.

 

It goes on and on to 4-16 of how this person knows everything about my alleged account.  They ask that since they know everthing, they request that all copies of documents produced under Exhibit A-D be accepted in lieu of the originals.

 

15. My current address is c/o Lori Williams, esq, ABC Legal Services, 201 S. Figueroa Street, suite 100, Los Angeles, CA. 90012.  I am available at this address for service of process twenty (20) days prior to the trial date herein.  If service of process cannot be effectuated at the aforementioned address, I authorize the defendant to contact attorney Lori Williams for purposes of effectuating proper service of my behalf.

 

I declare under penalty of perjury under the laws of California that the foregoing is true and correct.   Exected on this 6th day of February at SAN DIEGO, CA.

Evita Rodriguez - custodian of records

 

On the Plaintiffs trial witness list they state that Evita Rodriguez, Custodain of records for PRA:  this witness will testify via written declaration pursuant to CCP 98 as to the terms and authenticity of the credit card agreement, assignment of the account, the status of the account and payment history, and the damages caused by breach of contract.  The testimony via written declaration is expected to last about 10 minutes to all of their exhibits.

 

Questions: 

1.  I didnt send my CCP 96 until about the 17th of Feb...how did she sign prior to receiving it?  Is this even a big deal?

2.  signed in San Diego which may or may not be 150 from ventura court , but it appears she wants it service in Los Angeles c/o the attorney.  What are your thoughts for the subpoena?

3.  If I subpoena her and she does show up, how do I get her discredited due to being employed by PRA?  List of questions for witness?

4.  Business records exception per comment #2. above - are these exhibits fromthe normal course of business for PRA?

5.  The affidavit of sale (state of FL) does specifically list my name, account # and amount.  It is notorized by a CHASE attorney-in-fact, Michael Rusin. and uses the language of these records are kept in the ordinary course of Chase's business...so how does this not get admitted by the judge as evidence?

 

Any help would be much appreciated.

 

JW

Hey JW,

 

For question #3 you can discredit her becuase she is not an employee of CHASE and she would not be able to explain their policies and procedures in validating the account. Secondly, you can ask if she was one of the authorizing representatives at the time of the sale between CHASE and PRA and if she wasn't how can she ensure the validity of the sale of your account.

 

For question #5 look at the dates carefully. We got one of those attorney-in-fact by CHASE but we didn't need to use it because we blew their declaration out of the water by our MIL.

 

With regards to the declaration the declarant, the declarant states an employee of PRA doing buisness in Norfolk, VA. Was the declaration signed in Norfolk, VA or San Diego Ca? I know it was notororized in San Diego but before anything can be notorized the person signing has to be present or did I miss something?

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Forgot somethings:

 

They also sent a Notice requesting and requiring parties to Attend Trial (CCP 1987 (B)-©) and in this they list DOCUMENTS REQUESTED in exhibit A:

 It looks like this is the Request for Productions of Documents but they never asked for this before.  They never sent or asked for anything...ADMISSIONS, ROGS, bnothing until now.  Is there a timeline they cant ask for this any longer as I though I was suppose to send my ROGS way before a month before trial. 

 

They also enclosed their own CCP 96 in the BIG packet of stuff.   I received it Feb 26 but they signed it Feb 12.  How do I respond to this?  Do I need to?

 

Thanks again,

JW

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Forgot somethings:

 

They also sent a Notice requesting and requiring parties to Attend Trial (CCP 1987 ( B)-©) and in this they list DOCUMENTS REQUESTED in exhibit A:

 It looks like this is the Request for Productions of Documents but they never asked for this before.  They never sent or asked for anything...ADMISSIONS, ROGS, bnothing until now.  Is there a timeline they cant ask for this any longer as I though I was suppose to send my ROGS way before a month before trial. 

 

They also enclosed their own CCP 96 in the BIG packet of stuff.   I received it Feb 26 but they signed it Feb 12.  How do I respond to this?  Do I need to?

 

Thanks again,

JW

 

 

Yes we got one of these to. It's their final attempt to try to get something out of you. Let me look at how we handled it but I know we didn't bring anything to trial except the what was provided thru bop, rog's, rfp's etc..

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Hey JW,

 

For question #3 you can discredit her becuase she is not an employee of CHASE and she would not be able to explain their policies and procedures in validating the account. Secondly, you can ask if she was one of the authorizing representatives at the time of the sale between CHASE and PRA and if she wasn't how can she ensure the validity of the sale of your account.

 

For question #5 look at the dates carefully. We got one of those attorney-in-fact by CHASE but we didn't need to use it because we blew their declaration out of the water by our MIL.

 

With regards to the declaration the declarant, the declarant states an employee of PRA doing buisness in Norfolk, VA. Was the declaration signed in Norfolk, VA or San Diego Ca? I know it was notororized in San Diego but before anything can be notorized the person signing has to be present or did I miss something?

 

 

-Evita Rodrigues signed the Dec in Lieu of live testimony in San Diego on Feb 6., . This declaration was not notorized (the Affidavit of Sale was notorized in Florida). Though evita signed it in San Diego, CA. it indicates for process of service, she can be reached c/0 Lori Williams in Los Angeles, CA. 20 days before trial.

- How did you get your MIL to blow their declaration of of water?

- FYI, the dates on question 5. Affidavit of sale for the attorney-in-fact where on October 30, 2013 with the Noatary's signture as well in the State of Florida.

I am concerned that the judge will permit some or all of their exhibits by simply asking me if I am the person on those statements, is that my address, did I have the card etc... I have heard too many stories where the judge denies our rebuttal documents. For example, the judge might dismiss everything but the bill of sale and aaffidavit of sale and therefore rule against me...see it is right here that they bought your account for this amount and you have brought no eveidence/documents proving otherwise

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