CakeLVR

Case Dismissed

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Much like everyone here I have never been to court, had no knowledge of any legal jargon aside from what I saw on TV, mostly The People’s Court, and never thought I would ever be in a situation where I would have to be in front of a judge – much less be a defendant of any type of lawsuit. Sadly it seems like many people nowadays I found myself having to fight a JDB. If it hadn’t  been for this board and the many people who have posted their stories and celebrated their victories for all of us to read, I honestly don’t know if I would have been able to win my case. I am beyond grateful because of all the advice and help everyone here openly and generously gives. These boards were a great help – especially on days when I didn’t know what to do next and more importantly on the days where I questioned myself about being able to win – reading about how others fought and won their own case gave me the confidence to keep fighting. It is with great sincerity and all my heart that I say THANK YOU! THANK YOU! THANK YOU! Thank you a million – trillion times over to everyone here.

 

My story starts about a year after I had been laid off, there was knock on my door one Saturday afternoon. I opened my door to find a process server, envelop held close to his chest, asking for me by name. My question of yes was answered by him saying aloud my name and announcing what seemed like to the whole world – when in reality he was just loud enough to echo in my apartment courtyard – that I was being sued by Capital One. I numbly accepted the summons/complaint and stared after the stranger as he walked away smiling.

 

I felt as if I had just been punched in the gut. My mind was racing, my heart was pounding, and I had no clue about what to do. After the initial shock wore off, I read the summons/complaint forward and backward, and then re-read it again and again just to be sure that I didn’t miss anything. Reading it was enough to let me know what I had to do first – file an answer and I had 30 days from the date I got the summons in my hand. I ran to my calendar and counted exactly 30 days from the day – and I recounted and recounted. Although I never considered myself being OCD after having just been handed the summons/complaint, it wasn’t farfetched to think I was fast becoming one.  

 

Ok so now what? I knew I had to file an answer, where and when to file my answer the only question left was how do I file an answer. And then what, what happens after I file my answer? I did what everyone does I Googled. I searched and I searched and I searched. I found a great wealth of information. I found one or two other boards like this one where other defendants were searching for answers and asking for help. I found articles about this epidemic of JDBs buying defaulted debts and suing everyone and anyone. I found a ton of blogs from lawyers/firms, some good and very helpful and some just blah, basically saying “yes fight the lawsuit and you can win … but you need to hire our firm to do it because you won’t be able to understand all the legalese that comes with lawsuits.” Which in a way is true, the legalese of it all is almost incomprehensible because of all the convoluted language, not to mention the time frame/line of all paperwork you must file needs to be followed to the T, it’s all very intimidating to say the least. It’s almost like learning a second language, difficult to pronounce, understand, etc at first but once you put it into practice you become so fluent you can easily tell someone FU, which is what you’ll be saying to the JDB only in there own language.

 

So back to my search, I also found a very interesting site call The Robing Room. A site where “judges are judged” Yup-Yup. It’s exactly what it says it is. A site where people, lawyers, plaintiffs, defendants, anyone really can rate and review judges. Which in my case was very helpful. I looked up the first judge assigned to my case and wow. He did not get, at least from a defendant’s stand point a very good rating or very good reviews. From the reviews he always sided with the plaintiff, evidence or better yet even with the lack of evidence, he always ruled in favor of the plaintiff. I definitely did not want him to preside over my case. So I filed a peremptory challenge (170.6) basically telling the courts that I did not believe I would get a fair trail with this judge. But I’m jumping ahead of myself.

 

So how did I know to file a peremptory challenge, well that very first night I couldn’t sleep. I stayed up all night searching, researching, and eventually I ended up on Amazon and found 2 books that were great in helping me to understand exactly what type of sh”” I was in. Honestly that first night I felt as if I was drowning in it. Although I was watching every dollar and pinching every penny, I decided to just bite the bullet and spend the money and buy the books. The first book Stick It To Sue Happy Debt Collectors helped to explain things in such a way that I felt I could actually do this, I could fight them and win. The second book Turning the Table in Credit Card Lawsuits  although no longer available on Amazon was about how one man won his own case, the significant thing about it was that he had done it in my state CA. And it was this book that I learned about being able to dismiss a judge (peremptory challenge).

 

Here’s a quick rundown of my case:

 

 - I received the summons in 2012

 - Filed my answer on the 29th day of the 30 days I was given. For 3 weeks straight I wrote and re-wrote my answer with my affirmative defenses and sworn denial. I had tried to get assistance from the local Legal Aid office, that ended up being a bad idea. The guy at the counter told me I should just settle, the plaintiffs in this type of lawsuit always won their case, and all this after I just handed him the complaint/summons even before I could utter a single word. I ignored him as if he had not spoken and politely said thank you for your time and walked away.

- I filed my discovery (request for admissions, request for docs, bill of particulars)

- I also filed a 170.6 to dismiss the judge in the case. The clerk smiled and said “Good for you. That judge is an a$$****”

 - After filing my all my paperwork, I received a CMC letter not a week later. 

 - The court accepted my 170.6 and reassigned my case to a different courthouse with a new CMC date. 

 - I received the answers to my discovery, they objected, denied and gave me nothing. 

 - Attended the CMC in 2013. Thankfully the judge seemed fair and reasonable. It was a quick meet and greet. The judge looked over the paperwork, and gave a trail date for the following year. She advised that both parties should try to settle the matter out of court and that was it. 

 - So 8 months came and went, heard nothing from the plaintiff all year except for 1 settlement offer letter. I didn't bite. 

 - Unfortunately, I missed my opportunity to send them my second set of discovery after they sent me their answers. And after reading this thread (http://www.creditinf...-in-california/) I don't feel as bad. I had hoped like ASTMedic that my silent treatment will work in my favor. 

 - 4 months before my trail I just received their discovery, Request for Admissions, Genuineness of Docs, and form interrogatories. With help from calawyer, I answered their discovery and sent it back to them.

- Now 1 ½ months before our trail I go and check the court docket online and to my surprise I find that the plaintiff had requested to have the case dismissed but the court rejected their request. Why? Apparently the plaintiff failed to tell the court that they had switched attorneys/law firms – epic fail on their part. Major win for me! It took them about 2 weeks to get everything straight with the court, they finally informed the court about the new attorney/firm and filed to have the case dismissed without prejudice and it was. While I would have preferred to have had it dismissed with prejudice in the end all that mattered was that it was dismissed and I won.

 

In my search, although it may sound cliché and it may sound horrible, but it felt good to know that other people were going through the same thing, that I wasn’t the only one.  And suddenly I wasn’t so afraid any more. I had those days were I felt confident and was able to put the lawsuit to the back of my mind, knowing I did all I could and just had to wait for their next move. And I also had those days were I questioned everything I did, did I do enough, was there something else I could do, etc. etc. Thankfully those days were far and few in between, on nerve wrecked days I would read the threads where people shared their own victories, and I knew and believed it could be done. I could win. And here I am, the nightmare of a lawsuit gone.

 

I definitely cannot say it enough Thank You! You guys are amazing!  :yahoo: 

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Great story, and congratulations! CreditInfoCenter and the great people here saw me through some very challenging battles, all successfully, too! I like the robingroom.com website, I was unaware of it. Your experience is very inspiring, thanks for sharing it.

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Congrats!

 

Great thread too, i had never heard of the 170.6 peremptory challege. What a great tool to have in the arsenal xtookewlx. Calawyer, in a thread I don't recall, once wrote about a manuever to use in trial (in case of emergency) to try and get a new judge. Don't recall if what calawyer was talking about was 170.6, but either way I didn't know something like that could be used that early in the process.

 

Kudos, CakeLVR! nice piece of info :-)

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Congrats!!  Enjoy the victory. And be proud of the job well done.

 

And thanks for posting the helpful resources. Defendants definitely need to know what's up with their Judge ahead of time. 

 

Recently, a few well-prepared California members went to Court expecting a fair trial... and instead found themselves being steamrolled by very biased pro-Plaintiff Judges. 

 

The more resources Defendants have at their disposal, the better.

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Thanks for taking the time to read my story! I was so happy when I finally saw my case status as dismissed, I fell out off my chair, no future hearings scheduled, no need to go to court, it was finally done.

 

Now I can only hope to give whoever is going through the same gut wrenching event as much help, info, or just support that I found on these boards. Here are a few links that I found very helpful:

 

The Bresso Law Blog – they have a 6 series blog post that gives an explanation about practically everything, starting from the summons/complaint to filing an answer and affirmative defenses to discovery to the case management all the way to defending yourself against a default judgment.

 

Peremptory Challenge (170.6) – info straight from the Sacramento law library about how to remove a judge from your case. Great info about how, when, etc about filing a peremptory challenge.

170.6 form – needs to be filed along with a simple statement like I made:

 

COMES NOW, the Defendant, ________, and states the following:

 

The judge assigned to the above case, ______________, cannot be fair and equitable to the Defendant. Therefore, the Defendant considers him/her bias and is disqualifying him/her, using the peremptory challenge pursuant to CCP 170.6.

 

AVVO – another site if you just want to ask a question for free and get it answered by a lawyer. The lawyers are...I would say a hit or miss, some are great about giving information and others are … well not so great. Not as great as these boards but still useful. 

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Congrats!!!!  I was pretty sure that they would dismiss again after the substitution of attorneys got straightened out but you can never be positive till it happens.

 

So happy for you.  And the dismissal without prejudice may not matter since this case has been going on for almost 2 years.  When does plaintiff say you made your last payment?

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I can't say it enough, Thank You calawyer! You were a great help too ease my mind, I'm so grateful you took the time to explain things when it was all a jumbled up in my head. 

 

As for  the last payment, they never really said. In the complaint they said allegedly became indebted to them in the last four years and the billing statements they gave as evidence was for only 1 year and it was just the added interest. 

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AVVO – another site if you just want to ask a question for free and get it answered by a lawyer. The lawyers are...I would say a hit or miss, some are great about giving information and others are … well not so great. Not as great as these boards but still useful. 

 

Lawyers hate AVVO, but see it as a necessary evil. They get rated kind of by "thumbs up" from other lawyers, so they give a half answer that ultimately involves saying "you'd better see a lawyer," and then their lawyer friends approve of the post.

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