joseywales

April 1 court date, California

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Well, yes. But you HAVE to establish that yourself. The witness certainly won't point out that s/he has no knowledge of the record keeping of the OC. The witness won't point out that the block of alleged accounts was specifically sold with no warranties as to the accuracy of the records.

 

So, you attempted to do so, yourself, and the judge was a jerk? It's good that you did the cross examination; you now have ample grounds for appeal.

Yeah, the witness pretty much responded as I had hoped, but to no avail. I showed up with 150 questions and flat out grilled the witness, demonstrating lack of knowledge of any OC record keeping. Don't want to thread jack, my appeal and original trial thread have in depth info. I'm currently seeking justice in appeals.

 

I just want to stress to other board members currently engaged in litigation to prepare thoroughly for trial. Print out some cross exam stuff, even if 99% of us won't use it. Be ready to go the extra mile if need be.

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Excellent points...thank you all.  Getting ready for MIL & trial brief.  

 

Should I flat out deny knowing about the account if they ask or state that I did have it but the charges/amount owed is grossly inaccurate.  They have statements with my address, payments made, etc...Although they did not send an entire accounting of this account (only two years of statements),  they were the last two before charge off.  They will ask if I have ever or still live at that address - and cant lie.  

 

thoughts on how to answer their cross examination?

 

JW

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I dont recall?  I agree but it does give me pause as I have heard where a judges will look down on that especially where the amount is fairly high.  You dont recall $xx,xxx of charges!  Or you dont recall ANY of these charges that show where and how much was spent?   Rather, I do remember having the card but I also remeber paying this card off or transferring the balance.  I totally disagree with the amount owed and need someone from the OC to validate ALL of the charges, credits etc...  OC have been known to charge off accounts that were in BK or have been paid down or paid off entirely. 

 

thoughts on where I could  get in trouble with either statement:  I do not recall having this alleged account with my name, address, phone number etc.. VS. I did have it but it has been paid off - I completely disagree with the amount owed...like it being ZERO owed, paid off already.

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Just "I don't recall". One of the biggest rules in dealing with the legal system is NEVER to answer more than you are asked.

 

Ms Wales, are you familiar with this blah, blah paragraph long sentence ending with a question mark."

 

Joseywales: "No."

 

Do you recall using a charge account number 1234567890123456 between x dates and y dates? 
 

"No, I do not."

 

I have had various accounts with different banks over the years. I rarely, if ever, memorized the account numbers. So it's very true for me that I literally do not recall using any particular card. I would guess that the same is true for you, yes?

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Also, for what it’s worth, during my cases I NEVER looked up any account numbers that may or may not have been associated with my account.  I didn’t even pull a credit report so I could honestly answer “I don’t recall,” or “I do not know.”

 

Again, FYI

 

rt

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Excellent points...thank you all.  Getting ready for MIL & trial brief.  

 

Should I flat out deny knowing about the account if they ask or state that I did have it but the charges/amount owed is grossly inaccurate.  They have statements with my address, payments made, etc...Although they did not send an entire accounting of this account (only two years of statements),  they were the last two before charge off.  They will ask if I have ever or still live at that address - and cant lie.  

 

thoughts on how to answer their cross examination?

 

JW

I did a lot of "I don't recall." I was slightly worried about answering questions this way, but i think judges don't really expect you to implicate yourself and agree with everything. Plaintiff asked me to state former addresses, 3 of which where listed on statements, judge thought that was good enough to authenticate the statements. 

 

I think most would advise answering "i don't recall" or "i don't remember" to questions about applying for the account, using the account, making payments, receiving statements. Other facts such as addresses, social security numbers, things like that, it would be hard to try and fudge out on answering those.

 

Honestly, I think plaintiff's questioning of you can't accomplish much (as long as you don't scream out that you applied for the card, used it, received statement,s stopped paying, ect.) if plaintiff can't get the bill of sale admitted. They first have to prove that they own the account,  then they will try to prove that the account is actually yours. If you can beat the assignment docs (bill of sale, affidavits, database entries), then it really doesn't matter much if you received statements or not. I would still deny knowledge of apply for and using the account in question. Don't make things easy for the other side.

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Why wouldn't their Bill of Sales be permitted under the Exception to Hearsay Rule. 

 

" evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when the writing was (1) made in the regular course of business; (2)  at or near the time of the act, condition or event; and (3) a custodian or other qualified witness testifies to its identiy and mode of its preperation; and (4) the sources of information and method and time of preperation were such to indicate its trustworthiness.

 

Nowhere does it state "Personal Knowledge" in the statute.  What constitues "other qualified witness"?  Does this mean it has to be from the OC but not necessarily the custodian?

 

Ty

JW

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Official citation:  Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1

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Does anyone have a document that I can have ready for the Judge to sign - like a Judgement order (in case I win!).  Should I include this with my Trail Brief or MIL or is it a seperate piece altogether?

 

Thanks,

JW

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Why wouldn't their Bill of Sales be permitted under the Exception to Hearsay Rule. 

 

 and (3) a custodian or other qualified witness testifies to its identiy and mode of its preperation; and

 

You have to discredit the affiant and their testimony, and anything you can about the document and how it was prepared, and how this person would actually know this information as well as how they know it's accurate.

(4) the sources of information and method and time of preperation were such to indicate its trustworthiness.

If you have accomplished my  comment above then this shows how the sources of information indicate that it may not be trustworthy. Also check the date closely and see if anything looks suspicious. (you might post a redacted version if you haven't already)

Nowhere does it state "Personal Knowledge" in the statute.

They really don't have to personally remember your account, but to have access and knowledge of the records, how they are kept, maintained, who else has access, etc.

  What constitues "other qualified witness"?  Does this mean it has to be from the OC but not necessarily the custodian?

There could be other titles besides custodian of records, but it needs to be from the OC to authenticate it (if properly challenged). What title do they list? Most BOS only have a signature from the OC and not the jdb, so I argued that as well. It does not show an assignment has been made by one signature. 

 

Ty

JW

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Thanks Anon.

 

The BOS does have the OC and JDB signatures but the Affidavit to BOS was signed/witness in Florida almost three years after the BOS date.  BOS sined in 2010 and Affidavit signed in FL late in 2013 with my name,address and account #.  Seems odd that they would put just one persons name on an Affidavit to BOS...and notarize it in FL (not CA) three years after BOS date.

 

Also, do I need to mail the JDB my Trail Breif, MIL and dec in support of MIL or can I just send them the Trial Brief.  And can this be given to them the date of trial or is there a sepcific notice for these? 

 

Thanks again,

JW

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Thanks Anon.

 

The BOS does have the OC and JDB signatures but the Affidavit to BOS was signed/witness in Florida almost three years after the BOS date.  BOS sined in 2010 and Affidavit signed in FL late in 2013 with my name,address and account #.  Seems odd that they would put just one persons name on an Affidavit to BOS...and notarize it in FL (not CA) three years after BOS date.

The dates are things that fall under the "to indicate trustworthiness" part of the statute, in which case; they do not. Only one affiant and not being notarized in CA is common.

Also, do I need to mail the JDB my Trail Breif, MIL and dec in support of MIL or can I just send them the Trial Brief.  And can this be given to them the date of trial or is there a sepcific notice for these? 

Anything you file with the court you need to send them a copy as well. Sometimes you can get around it with MIL's (if they are filed last minute). A lot of people got their case dismissed when the plaintiff got their MIL a week before trial however. Check your local rules here, as this is different in each court.

Thanks again,

JW

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I just called the clerk and she said all (trial brief, MIL etc..) gets filed at check in the day OF the trial.  Doesnt give the judge much time to read it.  Does this mean I dont have to give it to them until then as well?  Do you think it is wise to notify them about the subpoena not be able to be served ( or my entire strategy for that matter) by sending it prior to court?

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I just called the clerk and she said all (trial brief, MIL etc..) gets filed at check in the day OF the trial.  Doesnt give the judge much time to read it.  Does this mean I dont have to give it to them until then as well?  Do you think it is wise to notify them about the subpoena not be able to be served ( or my entire strategy for that matter) by sending it prior to court?

 

 

THat is s judgment call on your part.  On balance, I think it makes it more likely that plaintiff will dismiss before trial if it knows that you are aware of Target and are asserting it in Court.

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Heads-up, be prepared that JDB will bring a witness.  They know defendants will object their CCP98 so they counter-fight now.  And it happens a lot lately, according to a consumer debt attorney. 

 

my case was in Orange county and the judge overruled all objections, and admitted everything including the non-complying CCP 98, a live witness testimony (not the same person on the CCP98), incomplete Bill of Sale, non-complying Affidavit.  The judge also admitted my proof of address which showed I didn't live at the address on the credit card statements. Despite my proof of address, he still ruled against me and grant JDB judgement in their favor.

 

The judge said he didn't agree with Target v. Rocha so he said the server could have left the subpoena there (even though the people at that office said they didn't know any one by the name of the witness).  The judge also  agreed that the CCP 98declarant  and the live witness didn't have personal knowledge, but he said personal knowledge wasn't required.  JDB's records should be good enough to prove the debt, and so all hearsay objections were overruled. 

 

I felt like I was knocked down to the ground when the judge said what he said.  It was unbelievable.  the judge was the assigned judge too, not a sub.  At the end of trial, we mentioned how his rullings were conflicting and inconsistent with other courts, he just said very calmly that how he rules.  

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Heads-up, be prepared that JDB will bring a witness.  They know defendants will object their CCP98 so they counter-fight now.  And it happens a lot lately, according to a consumer debt attorney. 

 

my case was in Orange county and the judge overruled all objections, and admitted everything including the non-complying CCP 98, a live witness testimony (not the same person on the CCP98), incomplete Bill of Sale, non-complying Affidavit.  The judge also admitted my proof of address which showed I didn't live at the address on the credit card statements. Despite my proof of address, he still ruled against me and grant JDB judgement in their favor.

 

The judge said he didn't agree with Target v. Rocha so he said the server could have left the subpoena there (even though the people at that office said they didn't know any one by the name of the witness).  The judge also  agreed that the CCP 98declarant  and the live witness didn't have personal knowledge, but he said personal knowledge wasn't required.  JDB's records should be good enough to prove the debt, and so all hearsay objections were overruled. 

 

I felt like I was knocked down to the ground when the judge said what he said.  It was unbelievable.  the judge was the assigned judge too, not a sub.  At the end of trial, we mentioned how his rullings were conflicting and inconsistent with other courts, he just said very calmly that how he rules.  

This is a prime example of why most people say to leave the subpoena even though the code doesn't say to, and also of why we have appellate courts.

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THat is s judgment call on your part.  On balance, I think it makes it more likely that plaintiff will dismiss before trial if it knows that you are aware of Target and are asserting it in Court.

Agreed. I think it's a good idea for them to see a winning strategy and argument 5 days before trial so they have time to dismiss, rather than concealing it and "surprising" them with it at trial. 

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wow! collectionfighter - I hope you appealed it! You have too many errors of law in your trial. I've also dealt with a judge that is "above" the law. 

 

I've been in the court rooms now for over a year watching. I've come to realize that no matter what the judge (sub or assigned) they get to know the JDB attorneys too well. It's almost like a "working" relationship and I judges "know" them and rules in favor of them. Oh, brother... don't get me started on the injustice I've been seeing! 

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Trial is 4/1.  i would need to overnight it today to get to Virgina.

 

 

I don't understand.  What would you send to Virginia?

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Trial is 4/1.  i would need to overnight it today to get to Virgina.

You send it to the lawyer. You could also fax or email it. Forget POS (in my opinion).

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The Trial Brief, MIL ...to the JDB's attorney. That is where PRA is headquartered and where all coorespondence are to be mailed.

They must be represented by an attorney licenced in California however. I though the law firm was in Sacramento.

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