Xenophon

How to Proceed in Defending against a JDB?

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Filed a Motion to Compel Discovery this evening. during the filing i realized that a trial date has been set for the month of November. I didnt see anything on the calendar regarding an CMC. when will be scheduled?

You never went thru a CMC, Zenophon? Some courts don't do them > a cost-cutting move.

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@RyanEX No, is that something I have to request?

 

No. I think the different counties either do them or they don't. You're already dealing with your discovery issues and the trial date is set, those are the things you may have dealt with at a CMC anyway.

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Sorry, my mistake, sent M&C letter, received objections based on trade secret and attorney client privilege. And one incomplete responce not CCp compliant. After that I sent an additional letter requesting code compliant answet. Spoke to lawyer over the phone and refuse to modify responses.

When you spoke to the lawyer did you inform him of your intent? As long as you informed the otherside of your intent then that was a final meet and confer. (See California Rules of Court 3.724 Duty to meet and confer.) Just make sure you write down time and date of your conversation.

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@helpme my last letter stated " the deadline to file a motion to compel is fast approaching. Please agree to supplement Plaintiffs responses on or before August 18, or defendant will be forced to prepare and file a motion to compel."

My conversation with rhe lawyer was not much of a conversaruon. He kept cuttingnme off and very rude ly hung up after refusing to supplement.

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@helpme my last letter stated " the deadline to file a motion to compel is fast approaching. Please agree to supplement Plaintiffs responses on or before August 18, or defendant will be forced to prepare and file a motion to compel."

My conversation with rhe lawyer was not much of a conversaruon. He kept cuttingnme off and very rude ly hung up after refusing to supplement.

Ok so your last letter doesn't say it. As a courtesy and so you can show the Courts that you have tried everything within your pro se power to work with the JDB send them a final letter stating that the lawyer wouldn't let you get a word in and this is notice that are asking relieve from the Courts and are filing a MTC but send one out. You don't want them to come back and say you didn't give them notice. Send it out asap as you have already filed or calendared your MTC.  Just cover all your bases.

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3.724 is the meet and confer requirement for CMC's.

 

Xenophon's letter is more than adequate.  It responds to the plaintiff's arguments, explains why they are wrong, and still gives plaintiff one last opportunity to avoid a motion to compel by agreeing to supplement its responses by a date certain (just agreeing to do it--not actually supplementing them).

 

Can't really ask for more than that. 

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yesterday was the 45th day from trial. i have my ccp96 request printed out and ready to mail it overnight. my question is: as of today, I've been using POS-030 for all my regular mail. is there another form that should be used if intend to serve overnight?

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@Anon Amos Thank you.

 

i read somewhere in these forums of a case where CCP96 was sent out overnight, which gives plaintiff 20+2 days to serve their response, JDB replied at the 20+5 days of them serving CCP96, and managed to have all the evidence thrown out due to late reply. i realize its a long shot but maybe worth it...

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I went to the court this morning to get a feeling of how the trials are executed. Only one case was heard, the others were either dismissed prior to trial, settled, or defendant didn't show. only one case was heard, a pro per defending against Portfolio Recovery Associates on common counts.

 

this is pretty much how the case went. please provide any thought?

 

 

 

defendant first started claiming that the plaintiff did not provide the alleged contract. the judge explained that the contract was not required under the common counts theory and that to prove their case "they simply have to establish a piece of paper such a bill statement mailed to you, without any objections by you and your receipt basically you charging on the credit card and they've done that they do not have to provide the original contract"

 

Defendant: these documents they are producing they are claiming.. these records belong to WF.

 

Judge: long ago the courts have concluded that a custodian or records for a collection company can lay a foundation sufficient for me to enter a judgment... they have sufficient foundation in their declaration. if you wanted to challenge their declaration of foundation you have the right to notice this employee, that notice requires notice within a certain amount of time. the Portfolio employee has laid sufficient foundation for the Wells Fargo Records.

 

Defendant: How is an employee of Portfolio have first hand knowledge of the account that was created by WF?

 

Judge: they don't have to have first hand knowledge, that's why it is called admissible hearsay. they don't have to have first hand knowledge.

 

Defendant: but it is hearsay evidence

 

Judge: the courts across all California, have permitted portfolio recovery to proceed this way. there are no cases out there that say they have to bring in a WF or visa employee to testify about this. I do not see on your answers anything that states that this is not your account. did you use this account? you are under oath. did you use this account?

 

Defendant: I do not have any recollection of ever using any account.

 

Judge: its ok, you don't have to have a recollection, not having recollection is not an affirmative defense, it just means that you have a bad recollection. is there anything else you'd like to tell me? no.

well Portfolio recovery, like midland funding and all these collections companies that are very big and purchase lots of credit card debts from various credit card companies, they are permitted, legislation, permits them to come into court and sue. and legislatures of the state haven't mandated them to bring an OC employee to authenticate. if you have difficulty with that concept you can go to the legislature and complaint.

that's not what the law requires, they can proceed on what is hearsay under the business record exception created for collection agencies so that they can continue with this type of business...

... I do not have any evidence before me or suspicion that portfolio recovery did not acquire this debt. sometimes people challenge the acquisition of their debts. they have given me documentation here that they purchased the debt from a banking institution. sometimes there is mistakes, sometimes attorneys come in, or even brokers and say "look it, this credit card, is something, maybe a transfer to another account" there are mistakes, they happen all the time. but you just can't come in and say, "judge, I don't remember this debt" because most people don't remember their credit cards.

they are not suing you on breach on contract, because they are smarter than that, they can sue on "common Counts" which is a piece of paper mailed to you at your mailing address, saying "look you used the account, we want to get paid for" its the way it works.

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Judge: long ago the courts have concluded that a custodian or records for a collection company can lay a foundation sufficient for me to enter a judgment... they have sufficient foundation in their declaration. if you wanted to challenge their declaration of foundation you have the right to notice this employee, that notice requires notice within a certain amount of time. the Portfolio employee has laid sufficient foundation for the Wells Fargo Records.

 

I.e., this is what happens when you don't subpoena the ccp98 declarant.

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I think that's what happened in this case. Docket for his case shows no, objections, only a general denial, case management conference, notice of trial filed by plaintiff, Declaration filed by plaintiff (48 pages long), and plaintiffs proof of service. I am assuming that defendants objection to ccp98 would be in there.

 

what is may be in the "declaration" does any one knows? trial briefs?

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It's a perfect example of not being prepared, not objecting, and not denying anything. He really did not object properly or motion to strike any evidence. He did not challenge their standing properly, and would have been in trouble even if he did subpoena the witness. He was obviously not coached by anyone here.

It's good that you are watching live cases however. You will be far more prepared.

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@string @RyanEX @Anon Amos just for the sake to help me understand better, what would you guys have done differently? I understand that not subpoenaing the affiant was perhaps what destroyed his case. sticking to the lack of contract on a common counts as well as an account stated to me seems irrelevant since on those theories a contract is not required.  

but when the judge said that a custodian of records from JDB can authenticate the statements from WF was a bit of a surprise because Cooley v the supreme court of LA came to mind, that a custodian of records cannot attest with personal knowledge to the facts and practices of an entirely different entity. or this happened because defendant did not file the proper objection to the affidavit in lue of live testimony?

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but when the judge said that a custodian of records from JDB can authenticate the statements from WF was a bit of a surprise because Cooley v the supreme court of LA came to mind, that a custodian of records cannot attest with personal knowledge to the facts and practices of an entirely different entity. or this happened because defendant did not file the proper objection to the affidavit in lue of live testimony?

 

CCP98 provides an exception that allows JDB custodian to authenticate unless the declarant is subpoenaed.  When you subpoena the declarant, he/she must show up to testify, and that's when they'll be unable to authenticate.  In practice, he/she won't show up (or even be available for service of subpoena), and that's where CCP98 (and Target, and Rodgers) say the evidence shouldn't be admitted, if you object.

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@string @RyanEX @Anon Amos just for the sake to help me understand better, what would you guys have done differently? I understand that not subpoenaing the affiant was perhaps what destroyed his case. sticking to the lack of contract on a common counts as well as an account stated to me seems irrelevant since on those theories a contract is not required.  

but when the judge said that a custodian of records from JDB can authenticate the statements from WF was a bit of a surprise because Cooley v the supreme court of LA came to mind, that a custodian of records cannot attest with personal knowledge to the facts and practices of an entirely different entity. or this happened because defendant did not file the proper objection to the affidavit in lue of live testimony?

This happened because the judge is bottom feeder friendly and knew the defendant doesn't know the law, will not properly object, and therefore will not preserve an appellate record. The judge was free to rule as he pleases without fear of reversal of his ruling. Also, the defendant did not do a good enough job for a ruling in his favor.

 

For one I would have already filed objections to all the evidence. And I would have done discovery. I would have argued the judges opinion that any bottom feeder can authenticate the records and provided case law as you did here (you are already ahead of the defendant). There's other case law as well. If the judge disagreed after I properly objected (and said the word objection many times) I would ask that the record reflect my objection. I would have had a court reporter there if at all possible and the judge would have gotten the message that I will appeal his ruling.

 

I would have attacked the authentication and foundation of all the evidence and objected to all hearsay. The judge said they don't need anyone from the OC, but it doesn't even sound like they had anyone there for the plaintiff, and lawyers cannot testify.

 

I would have done just about everything differently. The only thing the defendant did right was show up to court. The only way he would have won was if he had an anti debt collector judge. He doesn't even have anything to appeal because he didn't properly object or understand the objections that applied. The lawyer was aware of this as well and that's why they didn't dismiss last minute.

 

Of course, not even mentioning the subpoena etc.

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