anders75

Motion to strike declaration of plaintiff in lieu of personal testimony?

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Hello all,

 

My court date with FIA Card Services is coming up next month.  I recently received a "Declaration of Plaintiff in Lieu of Personal Testimony at Trial," which was signed by a person who works for a process server.  This person claims to have "personal knowledge of plaintiff's procedures for creating and maintaining these records."  Exhibit A in the document includes a few monthly statements from 2012 with Bank of America.

 

I just read through this:

 

http://www.creditinfocenter.com/legal/motion-to-strike-affidavit.shtml

 

So it sounds like I should make a motion to strike this evidence, and also subpoena the process server who signed the document.  Is there anything else I should be doing to respond to this?  If this evidence is thrown out, what can the OC use against me in court?  Also, how do I do a subpoena for the process server??

 

Thanks in advance for any help or advice.  This forum has been incredibly helpful as I have tried to learn about this whole process.

 

***

 

FYI here are my answers to standard questions:

 

1. Who is the named plaintiff in the suit? FIA Card Services.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rather not say.  It's a firm located in Northern California.

3. How much are you being sued for? Approx $15,000.00

4. Who is the original creditor? (if not the Plaintiff) Bank of America?

5. How do you know you are being sued? (You were served, right?) Yes, served.

6. How were you served? (Mail, In person, Notice on door) Mail.

7. Was the service legal as required by your state? Yes, I believe so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

9. What state and county do you live in? California.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2012.

11. What is the SOL on the debt? To find out: 4 years.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  I sent in Answer, req for production, and just received response to the req for production.  They did not send the original application or signed contract, only some account statements.  I also asked them to verify the debt, which they did.  They also sent a Request for Admissions--I responded DENY, saying that all the questions were too vague to make a determination.  They sent Specially Prepared Interrogatories as well--I objected to all of those, arguing that the Plaintiff has only provided vague, contradictory, and inconclusive evidence.  The Plaintiff did verify the debt, but the account number did not match the account numbers listed on the statements they sent.  There were five different numbers on the statements.  The most recent document, sent by the process server, attempts to argue that the numbers are different because accounts are changed when they are charged off. 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes.

15. How long do you have to respond to the suit? Already responded.  They claim I owe on an open book account, because of written agreement between plaintiff and defendent.  Sued via common counts instead of breach of contract.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence sent with the summons beyond a vague mention of "an account" and the dollar amount allegedly owed.  In my answer I said they failed to state their claim due to a lack of any evidence provided.  They did not provide an account number, a signed contract, etc.  After the Demand for Production, they did send a big stack of statements and some checks with payment amounts.  The statements have various differnet account numbers.  The most recent evidence, included as "Exhibit A" by the process server, only includes a few account statements with one of the FIVE account numbers that were included on the earlier statements.

17. Read this article: Done.

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"They did not send the original application or signed contract, only some account statements."

 

They don't have to in order to win the case.  The original application in the digital era may no longer exist.  When has anyone EVER signed a contract for a credit card?  This is a smoke screen defense and the court will know it.  All they need is a copy of the card agreement and statements showing you used the account and made payments.

 

"In my answer I said they failed to state their claim due to a lack of any evidence provided."

 

Failure to state a claim and lack of evidence are two different issues they are not the same.  They did state a claim:  open book account.  They do have evidence: the account statements.  This is NOT a junk debt buyer.  FIA is an original creditor for BoA.  You are going to have to work harder to defeat this than for a JDB.

 

"After the Demand for Production, they did send a big stack of statements and some checks with payment amounts."

 

Copies of checks showing you made payments is REALLY bad when combined with the statements.

 

"The statements have various differnet account numbers. "

 

I would attack this hard as evidence of sloppy record keeping and that they are not supporting their claim.

 

"The most recent document, sent by the process server, attempts to argue that the numbers are different because accounts are changed when they are charged off."

 

The person who sent this is the affiant not the process server.  The process server is merely the guy who delivers the summons.  

 

You have a LOT more learning and homework to do before court.  You need to start studying the threads on being sued in CA by an original creditor.  Those suits can be won but it won't be easy.  

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Thanks Clydesmom,

 

You're definitely right that I need to study more.  I'll admit, all the terms and procedures get confusing.

 

Do you have any advice about dealing with the affiant?  In this case, would you recommend trying to subpoena or CCP 98 to get this person to show up to court?  Also, in terms of filing a motion to strike evidence as hearsay, does this happen in the actual court proceeding or is this something I can send as a document as well?

 

I know I have a lot to learn.  The court date is in the middle of next month so I need to learn as much as possible.  Thanks again for your help.

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Thanks Clydesmom,

 

You're definitely right that I need to study more.  I'll admit, all the terms and procedures get confusing.

 

Do you have any advice about dealing with the affiant?  In this case, would you recommend trying to subpoena or CCP 98 to get this person to show up to court?  Also, in terms of filing a motion to strike evidence as hearsay, does this happen in the actual court proceeding or is this something I can send as a document as well?

 

I know I have a lot to learn.  The court date is in the middle of next month so I need to learn as much as possible.  Thanks again for your help.

 

There is a time frame to file the CCP98 and you may have missed it.  The time to start doing your research is not 3 weeks before trial.  You are going to have to cram now.  Look up SeaDragon's threads and some of the others with suits in CA in their title.  I am not well versed on CA procedures in court and there are very specific rules you have to follow.

 

I do know you want to file the CCP98 to have the affiant appear in person so that if you cannot get them served or they cannot appear because they are out of state then you get the affidavit's stricken.

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There is a time frame to file the CCP98 and you may have missed it.  The time to start doing your research is not 3 weeks before trial.  You are going to have to cram now.  Look up SeaDragon's threads and some of the others with suits in CA in their title.  I am not well versed on CA procedures in court and there are very specific rules you have to follow.

 

I do know you want to file the CCP98 to have the affiant appear in person so that if you cannot get them served or they cannot appear because they are out of state then you get the affidavit's stricken.

 

 

CM:

 

A CCP98 is a declaration that a party serves to use in place of testimony at trial.  There is a time limit to serve one, but the poster has not missed it.  The poster won't be using a CCP 98 declaration at all.  Also, you do not "file the CCP 98" to have the person appear.  You have a subpoena issued and served.

 

Anders:

 

Fill out a subpoena (http://www.courts.ca.gov/documents/subp001.pdf) and have the clerk of the court stamp it for you.  Do not ask for documents as this increases the time necessary for service.  You can have any process server attempt service.

 

Your description of the CCP 98 declarant is a bit vague.  You say that the person works for a process server.  If what you mean  is the declaration says that the person may be served in care of ABC legal service (or some similar name), then this is not the declarant's employer.  This is an improper (in my view) attempt to comply with CCP 98 by giving an address  150 miles from the Court where the witness most likely does not reside.

 

You still want to attempt service although the witness probably won't be there.  Tell your process server to make several attempts and then leave it with whoever will accept service on the last attempt.  Tell the process server up front that you want a declaration of diligence (i.e. that service was attempted several times but the witness was not present).

 

Finally, read Target v. Rocha.  It is your friend.

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@Clydesmom

 

Not an attack on you, and putting our differences aside; We REALLY do have it covered here in Cali without your "help". We have a very high win rate here as well as good communication skills. You said your self that you are "not very well versed in CA procedure" (an understatement). Nothing against the other 49 states; but if you were to limit yourself to those exclusively; the Californian's here would be far better served.

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Hi Calawyer,

 

Thanks so much for your response.  You're right--the declaration says that the person named "is available for service of process through an agent of his/her counsel at the following address: ABC Riverside."

 

I appreciate your help, and pointing me toward Target vs Rocha.  I have definitely learned a lot from this forum, and I already consider it a success because I learned how to avoid getting an automatic default judgement by properly responding to the initial suit when I was first served.  I'm really glad I found this site.

 

At this point, my wife and I are considering filing for Chapter 7.  Mostly because this isn't the only creditor that is going after us.  I learned enough to keep thing at bay while we looekd at our options--once again I really appreciate all the support and info on this site.  It's pretty amazing.  We're both grad students with lots of student loan debt.  The credit cards got out of control near the end of grad school, and we're sinking in debt right now.  I'm thinking Chapter 7 is the best option at this point.  We don't care about our credit scores--we just need to get out from as much debt as possible so we can start to rebuild our lives.  But I wanted to run it by some of you here to see what you all think.  I could keep fighting this case...but there are 6 others we'd have to deal with right behind it. 

 

I have learned a lot by reading through this site.  In fact, this experience has really sparked my interest in law.  I realize that I find it incredibly fascinating, and I'm seriously considering taking my grad school training (in social science) and going into law.  Thanks again to everyone who participates in this site.  It's so great that people are willing to create and maintain a site like this, especially when so many people are dealing with debt issues.

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Hi Calawyer,

 

Thanks so much for your response.  You're right--the declaration says that the person named "is available for service of process through an agent of his/her counsel at the following address: ABC Riverside."

The Cali people can show you how to use Target v. Rocha.  As I understand it, from reading previous post and referenced documents, the person HAS to be personally serviceable, not serviceable through counsel.

 

Many here have got the testimony in lieu tossed using that case after being unable to subpena the agent.

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@Clydesmom

 

Not an attack on you, and putting our differences aside; We REALLY do have it covered here in Cali without your "help". We have a very high win rate here as well as good communication skills. You said your self that you are "not very well versed in CA procedure" (an understatement). Nothing against the other 49 states; but if you were to limit yourself to those exclusively; the Californian's here would be far better served.

 

If I were you I would not use the term "we" so loosely in claiming victory.  I am certain the knowledgeable people from CA do not appreciate your riding their coat tails.  

 

PLEASE keep posting though because the absolute crap that you post is great fodder for my law classes on how to destroy a defendant who thinks they know the law and doesn't with their own inexperience.  My grades have gone up even higher since I started bringing your posts in for open discussion. You are doing an excellent job training future attorneys on how to handle people like you before, during, and after court.  Keep it up.

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PLEASE keep posting though because the absolute crap that you post is great fodder for my law classes on how to destroy a defendant who thinks they know the law and doesn't with their own inexperience.  My grades have gone up even higher since I started bringing your posts in for open discussion. You are doing an excellent job training future attorneys on how to handle people like you before, during, and after court.  Keep it up.

 

In what accredited law school do they teach prospective lawyers how to defeat unrepresented parties from other states?

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In what accredited law school do they teach prospective lawyers how to defeat unrepresented parties from other states?

 

We have an ongoing discussion debate group in our class that brings in relevant issues like his posts, interesting cases filed that make the news etc. for open discussion on the legal merits of the case, arguments etc.  They teach a lot of new things in school now.

 

Where in my post did I say I was specifically going against HIM or multiple states?  

 

There are many attorneys who practice in multiple states.  My father was one of them as part of being a corporate attorney he held licensure in 3 states.  Are you saying that lawyers who practice in more than one jurisdiction are not skilled?  

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Hi Calawyer,

 

Thanks so much for your response.  You're right--the declaration says that the person named "is available for service of process through an agent of his/her counsel at the following address: ABC Riverside."

 

I appreciate your help, and pointing me toward Target vs Rocha.  I have definitely learned a lot from this forum, and I already consider it a success because I learned how to avoid getting an automatic default judgement by properly responding to the initial suit when I was first served.  I'm really glad I found this site.

 

At this point, my wife and I are considering filing for Chapter 7.  Mostly because this isn't the only creditor that is going after us.  I learned enough to keep thing at bay while we looekd at our options--once again I really appreciate all the support and info on this site.  It's pretty amazing.  We're both grad students with lots of student loan debt.  The credit cards got out of control near the end of grad school, and we're sinking in debt right now.  I'm thinking Chapter 7 is the best option at this point.  We don't care about our credit scores--we just need to get out from as much debt as possible so we can start to rebuild our lives.  But I wanted to run it by some of you here to see what you all think.  I could keep fighting this case...but there are 6 others we'd have to deal with right behind it. 

 

I have learned a lot by reading through this site.  In fact, this experience has really sparked my interest in law.  I realize that I find it incredibly fascinating, and I'm seriously considering taking my grad school training (in social science) and going into law.  Thanks again to everyone who participates in this site.  It's so great that people are willing to create and maintain a site like this, especially when so many people are dealing with debt issues.

 

I know very little about bankruptcy.  However, if you are really considering this option, I suggest that you consult with a bankruptcy expert now.  Specifically, you should ask whether it makes any difference from a bankruptcy perspective whether a creditor has reduced its claim to judgment.  In other words, is the creditor in a better position having obtained a judgment prior to the filing of the bankruptcy petition as opposed to having an unsecured, unliquidated claim?

 

If the answer is “no”, you might want to take a flyer at these cases yourself.  The quality of debt collector representation is shockingly low (although they are apparently trying to rectify this at some law schools in other states).  You are educated and articulate and, with effort on your part, you may be able to eliminate the debt entirely.  It is sometimes more difficult with an original creditor.  However your plaintiff is showing all the signs of not wishing to bring a live witness to trial.

 

The other question you should ask is whether the bankruptcy forum would be better to litigate these claims.  Sometimes, California judges in Unlimited cases, are tired, hate their assignments, and really don’t want to grapple with evidentiary issues.  On the other hand, the bankruptcy courts are looking to orderly administer the estate and may be more willing to examine a claim, and the evidence proffered in support of the claim.

 

Good luck with whatever route you select.  If you decide to litigate these cases yourself, you will find a lot of people on this site that are willing to help.

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If I were you I would not use the term "we" so loosely in claiming victory.  I am certain the knowledgeable people from CA do not appreciate your riding their coat tails.  

 

PLEASE keep posting though because the absolute crap that you post is great fodder for my law classes on how to destroy a defendant who thinks they know the law and doesn't with their own inexperience.  My grades have gone up even higher since I started bringing your posts in for open discussion. You are doing an excellent job training future attorneys on how to handle people like you before, during, and after court.  Keep it up.

WE have helped many people here. WE also work together a lot thru PM's with members (sometimes it's because of YOU that they contact us). I doubt any knowledgeable people from CA (or any of our out of state members that post in CA) have a problem with me riding their coat tails (as you "are certain" of) but if they do I hope they let me know (you guys and gals can post or PM if this is the case (for YOU I may make adjustments).

 

You are not the only person on this board taking "law classes", you ARE the only one that mentions it in an attempt to gain credibility. I doubt anyone cares about your "30+ years in the medical field, law classes, or that your father is super lawyer in all states. You might make a mediocre jdb lawyer however.(EDIT: this sentence also pertains to  parts of your previous post which you removed with your editing to clean it up).

 

Further Calawyer has never "hurled insults" at anyone here (probably anywhere else for that matter) YOU are WAY out of line here.   (EDIT: this sentence pertained to post #11 which you have edited and removed your insults cleaning it up a bit)

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@Clydesmom

 

PLEASE keep posting though because the absolute crap that you post is great fodder for my law classes on how to destroy a defendant who thinks they know the law and doesn't with their own inexperience.  My grades have gone up even higher since I started bringing your posts in for open discussion. You are doing an excellent job training future attorneys on how to handle people like you before, during, and after court.  Keep it up.

 

 

The above was unnecessary.  Please refrain from personal attacks.

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@Anon Amos

 

 

@Clydesmom

 

Not an attack on you, and putting our differences aside; We REALLY do have it covered here in Cali without your "help". We have a very high win rate here as well as good communication skills. You said your self that you are "not very well versed in CA procedure" (an understatement). Nothing against the other 49 states; but if you were to limit yourself to those exclusively; the Californian's here would be far better served.

 

This is a public forum.  No one poster or group of posters has a monopoly on any thread.   Only the OP, under certain circumstances, would have a right to request that a poster refrain from posting. 

 

The vast majority of us, including you, make mistakes.  That's how we learn.

 

Please refrain from personal attacks.

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@anders: I agree with calawyer. If you choose to fight this creditor, it's entirely possible that at least some of the others will go away. Creditors talk to each other, you know, and consumers who win against their fellows are not the first choice for suing.

 

The one big consideration that I would want to include in a decision for or against BK7 is this: you can only do it once. If your school loans are Federally backed, you can't BK them, anyway.

 

And it may be better, given that medical bills are still the #1 cause of BK in this country, to hold off on the nuclear option.

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@calawyer: Thanks again for your reply.  I am talking with a bankruptcy attny early next week.  The main problem is this: I have the interest in studying up on law in order to fight this myself, but I don't have a ton of extra time right now since I am trying to finish up a dissertation (grad school, by the way, is what got me into this financial mess in the first place).  My wife is finishing hers as well--we are slammed right now.  I try to work on this on my extra time, and have done pretty well so far, but there's so much more to learn and that court date is rapidly approaching.  My wife and I have about 45k in combined credit card debt (all from trying to get through grad school), and that's on top of about 120k in student loans.  My inclination is to keep fighting this, but since it's an OC and I am short on time I'm a bit worried about taking the risk and getting a judgment against us.  But once I do finish grad school I am going to start studying law.  That's for sure. 

 

@Wins the Battle: Ya, you're right that I have to think carefully about BK7.  I do know that student loans can't be discharged--that's a reality.  On a side note, I think it's a reality that needs to be changed, because I know way too many people who are getting crushed by their student loans.  It's sort of like all those sub prime loans back in 2008-2009.  It's all going to come down at some point, but they keep handing out those loans and tuition keeps rising.  Not a good situation.  Hopefully Elizabeth Warren and some others start to push harder on that front--it's a truly unjust situation and too many people are making money off of student borrowers.  Ok, that's the end of my soapbox rant!!  So, getting back on topic, even though I can't get out of my student loans, BK7 looks like one of the best options right now.  I'd like to fight, but I'm worried about losing and getting stuck with a lein if I lose.  Plus, I'm having a hard time cramming in the study of law on top of everything else.  I'm just trying to get the bad financial decision that was grad school behind me as much as possible.

 

But I have to say once again that I really appreciate all the help and info I have found here so far.  If it wasn't for you all, I would have lost via a default judgment about 6 months ago, when the suit was first served on us.  You folks have really helped me a lot.

 

@BV80: thanks for stepping in before the thread went completely haywire.

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One more thing, but, of course, the attorney should discuss this with you. Every state has things that are protected from judgments.

 

Some people are judgment proof, and nothing that they own or have as income can be taken. Others have some things at risk, but not others.

 

For example, in my state a car up to a certain value, a home up to $390,000 (more if you are a farmer) income on a weekly basis that nets to 40X the minimum wage, etc are all exempt from bankruptcy, along with all other personal property.

 

I have no idea what is exempt in CA, and because you are just now graduating, your incomes could reasonably be expected to rise. Judgments stick around for a long time.

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(Kind of off topic)

 

Back when I graduated from Nursing school (1987) Student loans were still subjected to being discharged in BK7, no matter who backed them.  What they found was to many people would take out student loans, go to school full time, and live off the loan money.  Then after graduation, they would not go to work in their area of expertiese, or they couldn't get a job in that field, and were working min. wage jobs.  Time to pay back the loans, and they could not afford to do so on their min. wage paying job, so they took out BK7 and made them go away.

So the laws of the federally back student loans are more recent, I don't see them moving away from curent laws, and I think it is a possibility they may make all non federal student loans subject to the same rules in the future.  Maybe this is in an effort to make parents more responsible in saving for their childs education? IDK but in this day and age it is tough for any parents to live week to week much less save for their childs future. 

Maybe a system geared more toward what some other countries have where 4 years of college is virtually free for their citizens, and they pay for advanced degrees themselves.  But that would mean higher taxes for everyone.  No good answer.  I'm not one that is for more socialization, to many queen bee's, and not enough worker bees.

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