BrokeBaker

Being sued in California for old debt: served tonight

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and I might add at @BrokeBaker you should have been on this long before now. Your last post was almost a year ago.   hoping it goes away doesn't work.  you may have a saving grace.

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not necessarily Anon Amos. He raised the defense yes, but they continued this charade. He needed documents to verify, and since he asked for them, it has not been a year, so he could file based on the date he requested the documents, not when the case was filed. He didn't know for sure, but when he found out for sure, a year had not passed. However May would be his 1 year, so if he is going to do it, he should do it now.

People have argued this before; SOL starts the day you are aware of the violation. It's good enough to provide leverage.

However, if I was going this route I would count from the day I received their discovery response. That was the day it was apparent they didn't provide proof of payment within 4 years so under CA Evidence Code 1272 absent of the record it doesn't exist.

We do need to know when the case was actually filed as well.

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and I might add at @BrokeBaker you should have been on this long before now. Your last post was almost a year ago.   hoping it goes away doesn't work.  you may have a saving grace.

 I've actually been diligently working on getting discovery for the last 7 months, and it took a long time.  Because I got the support I needed by reading other people's threads (I didnt want to ask questions if the answer was already in the forum), so I haven't needed to post in my own thread for support in a long time.

 

I can see why it might have looked like I wasn't on top of my own case, but believe me, this girl was on top of things. Getting credit reports, getting statements, getting evidence from JDB, several meet and confer letters, etc.

 

I'm in the process of making sure that I'm on top of things now that I'm about 8 weeks away from the trial.

If I've missed something specifically @shellieh98, please let me know. I'm always happy for the support.   (I see Calawyer's recommendation of CCP 96).

 

Ms. Broke Baker :)

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What matters is when the case was filed not when it was served.  See CCP 350:  http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=350-363

 

Was your case filed within 4 years of the last payment?

 

Between 45 days and 30 days before trial, you should serve a CCP 96 request.  This requires plaintiff to give you all of the evidence and witnesses it intends to use at trial.  Plaintiff's response will tell you whether it  intends to use a live witness or a declaration.

@calawyer After confirming, the case was filed at the Chatsworth Superior Courthouse on 3/18/2014.  This is 6 months after SOL expired.

 

@Anon Amos and @shellieh98, I'm not interested in a countersuit or Rosenthal act violation.  I just want this case dismissed and put behind me.  Part of me wants to stick it to them, but I just have too much going on and not that much more "fight" in me.  Are there other things you think I need to file? (I know ShellieH98 says I should have been on top of this, but wondering if I dropped the ball on anything critical to the main case)

 

So, @calawyer, basically my next step is to file a CCP 96 45 days before the court date. right?

 

-Ms. Broke Baker

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Send ccp 96 45 days prior to trial.

Be prepared to receive a ccp98 declaration in lieu of live testimony about 30 days prior to trial. (Know how to deal with this and how to subpoena).

I would file a trial brief and written objection to evidence about 7 - 10 days prior to trial (see what the rules say).

Know how to argue SOL and standing (make sure it's in the beginning of the trial brief).

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I'm sorry, I didn't mean to insult you. And yes AA and ca lawyer gives sound advice. I understand you just want it to be over, it is emotionally draining. I suggested the meet and confer just to add leverage. You will go to trial and win, my thought was to get them to dismiss before hand, and maybe they would pay you for your troubles for the last year.

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So, @calawyer, basically my next step is to file a CCP 96 45 days before the court date. right?

 

-Ms. Broke Baker

 

make sure that when you send the ccp96 request is within the 45-30 day window (for you that window starts next Thursday, if im counting right), send it too early or too late and the JDB will not be obliged to respond.

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@calawyer After confirming, the case was filed at the Chatsworth Superior Courthouse on 3/18/2014.  This is 6 months after SOL expired.

 

Excellent!

 

So, @calawyer, basically my next step is to file a CCP 96 45 days before the court date. right?

 

Yes.  You also might want to work on a brief about the SOL.  Might just be a short trial brief.  There is not time for a summary judgment motion.  When you get the response to your CCP 96, it should have every document plaintiff intends to use at trial.  If those documents show that the last payment was made more than 4 years before plaintiff filed its complaint, you are in good shape.  You can tell the court that plaintiff's own documents (and the only documents it may use at trial), demonstrate that the case is time-barred.

 

-Ms. Broke Baker

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Calawyer beat me to the punch.  Personally, whether or not I actually want to pursue a Rosenthal Act and/or FDCPA claim, I'd raise the specter of that possibility, definitely in the trial brief (particularly to anticipate an appeal if that became necessary), and possibly in a Motion for Summary Judgment (for which apparently you've run out of time).  I'd consider firing off the "threat" in a M&C letter as a "Dismiss Now or I'll cross-complain or counter sue for the violations."  They know already what that would cost them (up to $1,000 under Rosenthal and up to $1,000 under FDCPA, plus filing fees and attorney fees, if any).  But, at the very least, I'd definitely want that SOL argument in my trial brief. If the case was filed in March of 2014, the SOL on your ability to sue for violations under Rosenthal and FDCPA would NOT expire until 2018 (as far as I understand; someone correct me if I'm wrong).  The violation didn't take place until you were aware of it (whether by service of summons or in the course of discovery), and either way that would have to have occurred after the case was filed.

 

My only hesitance in NOT trying to get the case dismissed before trial would be the question of a Motion for Costs.  I've seen some activity here of JDB's claiming that the defendant is NOT a prevailing party in a suit if the case is dismissed (as opposed to being ruled under Judgment).  I haven't heard how successful they have or have not been with that argument.  But, if you are pro per, then the only costs you're likely to get are the costs of service of process and your filing fee (if you paid one) anyway.  So, costs may not be a consideration in light of just getting this monkey off your back.

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Hi HomelessInCalifornia!  :)++

 

Regarding prevailing parties, CCP 1032

(4) "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.

 

Even in a dismissal, the defendant is a prevailing party under these definitions. JDBs may sometimes try to argue that isn't so because, well, why not - maybe the (former) defendant will back off. A little over a year after my dismissal I decided to go after costs. After a little trial & error I wrote up A Judgment of Dismissal and, per calawyer's suggestion, I referenced CCP 1032 & an uncontested Memorandum of Costs in that pleading.  :-)= The judge approved my proposed judgment and Midland is now on the hook for my fees. I recently received the check :-)

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Hi HomelessInCalifornia!  :)++

 

Regarding prevailing parties, CCP 1032

 

Even in a dismissal, the defendant is a prevailing party under these definitions. I imagine sometimes JDBs will try to argue that isn't so because, well, why not - maybe the (former) defendant will back off. A little over a year after my dismissal I decided to go after costs. After a little trial & error I wrote up A Judgment of Dismissal and, per calawyer's suggestion, I referenced CCP 1032 & an uncontested Memorandum of Costs in that pleading.  :-)= The judge approved my proposed judgment and Midland is now on the hook for my fees. I recently received the check :-)

Hi Ryan!  :)

 

That is all excellent news ... and a relief.  Congratulations!  And thank you for the clarification. 

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 I'd consider firing off the "threat" in a M&C letter as a "Dismiss Now or I'll cross-complain or counter sue for the violations."  They know already what that would cost them (up to $1,000 under Rosenthal and up to $1,000 under FDCPA, plus filing fees and attorney fees, if any).  But, at the very least, I'd definitely want that SOL argument in my trial brief.

 

 

 

HIC!  Nice to see you again.  Hope all goes well with you.

 

Excellent idea about firing off a letter.  However, I think it is best to get the response to the CCP 96 first.  That way, we know the universe of documents that can be submitted at trial.  Wouldn't want to alert them to the specifics of the defense in time for them to find other docs to use at trial.

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HIC!  Nice to see you again.  Hope all goes well with you.

 

Excellent idea about firing off a letter.  However, I think it is best to get the response to the CCP 96 first.  That way, we know the universe of documents that can be submitted at trial.  Wouldn't want to alert them to the specifics of the defense in time for them to find other docs to use at trial.

 

Hi Sensei!  :)

 

Makes sense.  Solid advice and the counsel to follow, as always. 

 

I'm still ticking.  ;)

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@BrokeBaker It is a testament to good planning that you are in a good position, smash them with the time barred debt thing BUT wait until after getting the CCP96 statement.

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