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Appeal against CACH.

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Needing help how to best compose a trial brief against cach. I have the transcript uploaded. Also, I want to share anything that can help others going through the appeals process! All i have right now is http://www.courts.ca.gov/documents/SampleFormK.pdf so I can pattern my brief. No idea where to start at this time. Thanks in advance to all the people here!

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Would you please, first tell us the following, so that people on this forum would be able to point you to the right direction.


1. How your case was LOST? In detail please.


2. Tell us some detail of the case itself: $ amount / SOL/ Discovery info- both side especially how you responded/ What documents ( or evidence) that they presented...etc.


This forum has many great people here, but without any info, how could they offer and share with you their valuable insight !??

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Needing help how to best compose a trial brief against cach. I have the transcript uploaded. Also, I want to share anything that can help others going through the appeals process! All i have right now is http://www.courts.ca.gov/documents/SampleFormK.pdf so I can pattern my brief. No idea where to start at this time. Thanks in advance to all the people here!




I'm also appealing my time-barred case in AZ.


This CA sample looks pretty good for me, while AZ has different standards for Appellant's Memo formatting.

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It's hard to do appeal because there is not enough info in this forum at this time. Hopefully most dont have to go through it. I just dont know how and where to begin my brief.


The first sentence of your brief must grab the Judge (of Appealing Court) attention:

what is this appeal and the case was about ?


Tell who the parties are, when where and how the dispute arose, what the claims were,

how the Trial Judge decided against you, and why you are right and he/she is not.


List three-four points you would make to a Judge who gave only 60 seconds

to explain why your appeal should win.


Why the Judge should care about you and your appeal ? Give a reason why the decision for you

must be good public policy.


Draw a line between yours and your adversary competing views.


I quoted "quick and dirty" the ebook  of Ross Guberman

"Point Made" (which is not specialluy about appeal)

that I bought in Amazon.


Amazon does not allow to copy and paste from its books.


My Appeal is only about AZ SOL4 (my point) vs SOL6 (the Judge and Plaintiff's point).

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According to the transcript you lost because you allowed the affidavit in. Yes you subpoenaed the witness, and the judge didn't allow her. But he did allow the affidavit, which he shouldn't have being it was the same person, but you needed to give valid reasons he shouldn't have let it in, it appeared as though you were at a loss for words on your objection. The reasons for the objection would have been the same as the reasons for the live witness, but they needed to be stated separately. They snuck that by you, you thought you did object correctly. Appeal may side with you, but it's hard to say what they may do.....common sense vs. strict procedure.

Right here was your demise.

MR. BALUYOT: I don't know how to object with that, but ——

I don't know.

THE COURT: Well, is there any basis to object to receiving

into evidence the Code of Civil Procedure Section 98 declaration?

MR. BALUYOT: Is there any objection to —— so they‘re just

going to do that instead of the live testimony?

THE COURT: No. There's a live witness here, but they

don't have a live witness for Exhibit 4.

MR. BALUYOT: So there should be a —— yes, I would object

to that.

THE COURT: Okay. Tell me the basis for your objection.

MR. BALUYOT: Because it's just going to be a hearsay, Your

Honor, because —— I mean ——

THE COURT: But doesn't Section 98 say that, yes, you can

have these hearsay documents come in if the declaration is served

under that code section?

MR. BALUYOT: But it didn't even say that that has ——

there's no declaration certification saying that the person that

signed that certified that, under penalty of perjury, that

foregoing is true and correct ——

THE COURT: Yes, it does. It says, "subscribed and sworn

to before me, October 17th, 2012, " before a notary public. That

means that the notary administered the oath, and the person

signed it under penalty of perjury.

MR. BALUYOT: So what are they trying to do, Your Honor,

the motion that they did?

MR. OLIVEIRA: Your Honor ——

THE COURT: Well, you objected on the basis that these


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My $0.02:


This is nuts; the judge agreed that the witness wasn't qualified to testify, then the judge coached plaintiff's atty to introduce the declaration and allowed the witness to "testify" via the declaration?


In the posted transcript excerpt, the judge made reference to OP having stated reasons why the ccp98 shouldn't come in - the declarant wasn't available for service within 150 miles.  The judge also stated (something to the effect) that substitute service was OK.  I think that's wrong. 


I would look closely at the transcript of your objection that the judge referenced. (That part of the transcript wasn't posted).  Was it in the context of precluding the ccp98? 


This is what I'm referring to:


I know you objected previously that, well, the address

service on Ms. Martinez was not proper ——

MR. BALUYOT: Right .

THE COURT: —— and they listed an address for service

within 150 miles of this courthouse, which is what's required.

I recognize she doesn't live in Oakland. Is that right,

Ms. Martinez?

THE WITNESS: That is correct.

THE COURT: Where do you live?

THE WITNESS: Denver, Colorado.

THE COURT: Okay. So you flew out here from Denver,

Colorado ——


THE COURT: —— for this trial?

THE WITNESS: That's correct.


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I went to the website of the LA Law State Library.  It says they are one of FOUR state libraries that contain appellate briefs going back to the establishment of Calif.  Call them at 213-785-2529 and ask them which other state law libraries have those briefs.  There should be one in North. Calif.  Your local county courthouse may also have briefs. Also, go to a law school library and tell the law librarian you are a paralegal student and your assignment is to write an appellate brief.  Ask what reference guides they would suggest.  Ask if you can access appellate briefs in the law library.  They may have them on file or you may be able to gain  online access through Westlaw or Lexis.


Here are some sample books.  Look under civil cases.



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I am overwhelmed by the help that is in here!!! Yes. I got sucker punched and didnt know what they were talking about. I lost my rythm! It is appealable right? It has a good chance in the appeal if i point out that the affidavit did not comply with ccp 98? That was my main focus. I started a draft but lacking legal terminologies to explain it clearly and better.

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You should be able to search CA opinions here and get the docket number, but I would really go to a law library, if at all possible





Pro se litigants do sometimes write winning briefs and win on appeal, but you have got to do a lot of research, planning and preparation. Be prepared to spend a lot of time in a law library.

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another $0.02:



I got sucker punched and didnt know what they were talking about. I lost my rythm!


I think you did a commendable job getting the witness tossed!!  (funny - I always thought THAT would be the hard part)


It is appealable right?


This, of course, isn't legal advice, but as far as I'm concerned it's ALWAYS appealable


It has a good chance in the appeal if i point out that the affidavit did not comply with ccp 98? That was my main focus.


I think it may have a chance IF you properly objected.  (Did you file an MIL against the ccp98?)



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These are the four state law libraries I referenced.  




Find California Appellate Briefs

Four law libraries in California serve as depositories for appellate briefs. Their collection holdings vary. Please contact the libraries for information about their briefs, including years covered and format. Each library's website provides information about location, hours of service, and telephone numbers.

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I did file MIL but in the beginning of the trial, judge said that it is moot since the witness was already present. But i didnt know that they can use that as evidence. Sucker punch!!!


the way I'm reading this: the judge said it was moot, then made it relevant but forgot to consider it.  what I really don't like is the way the judge prodded the plaintiff's atty to bring the declaration back up, but didn't prod you to re-invoke the MIL.  That's not fodder for appeal, but the fact that you did have an MIL on record, AND apparently did make the objection verbally (before it was called "moot") ....

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You need to, I believe, point out that the affidavit should properly have been excluded because the affiant was NOT available for service of the subpoena, as required by your state law.

The affiant did show up.  judge disallowed her live testimony, but let in her affidavidt.  same affiant.

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This is the thing.  They sent you a ccp98 saying it was the declration of Ms. Martinez.  Normally you would subpoena her, she wouldn't be there to accept service, and she would not show up in court.  The fact that you tried to subpoena her and couldn't is a moot point because she showed up in court.  So no, appealing on the fact that the ccp98 you were not able to serve her is a moot point, because she showed up.


The problem I have is the judge disallwoed her testimony, but yet let in the affidavidt.  If she cannot authinticate the records personaly, then how can her declration do it?  What was exhibit 4?  Because that seems to be what this is about.  He let the affidavidt authinticate exhibit 4.

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It was the affidavit of sale between FIA card services employee, subsidiary of BofA And cach llc. It was notarized in north carolina. Didnt have words saying under the penalty of perjury in the state of california..... No way to subpoena the affiant because there was no address. I didnt have the chance to cross examine her. Who knows if she was real or not. But i dont know how to put those in the best way possible in my trial brief. My deadline is on june 9.

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Did you request the purchase agreement in your doc request?  It is the agreement that governs the bill of sale from BofA to Cach.?

The bill of sale does not list your account specifically.  The data sheet should be hearsay, as it isn't authinticated either.  The governing agreement provides guarentees (or lack of) for the accounts they sold.If you lost because they let in the bill of sale, and you requested the purchase agreement, this could go toward your appeal also.  How do you know it was authinticate?  They didn't provide the complete bill of sale.

Also, I couldm't tell, by your posts, but did you object to that affidavidt in your MIL? Or just the one by the affiant ms. martinez?  If you objected to that one with sound reasons, and the judge didn't even look at it, you may have a good chance of appeal.  You would hone in your appeal brief on the fact you did object to it, and it was not ruled on.  I didn't see the objection verbally in your transcript.

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I'm unaware of California Law because well, I don't live there, but generally you don't have to file your brief right away.  Typically you just have a set time (usually 30 days) to file a Notice of Appeal which is just one page, and rather easy to put together.  Filing the Notice generally makes the court aware you are Appealing and starts the proceedings, then it gets docketed, the record eventually gets sent, and you get a briefing schedule of when your Initial Brief is due.  Sometimes it starts counting from the date the Notice of Appeal is filed so you dont vet a schedule, the date its docketed when you file the Notice is the start of your briefing schedule.  For example in Florida you have 30 days to file the Notice of Appeal, and your initial brief is due 15 days after you file the Notice.  You'll get all this information from the Rules of Procedure.  You definitely should read the entire Appellate Rules of Procedure twice over before starting.  You should also learn what your costs/fees are going to be so you can learn what it will cost you out of pocket. 


It's generally laid out something like this (this is just an example, you would have to do it exactly as California Appellate Courts instruct it to be laid out)


Title Page

Table of Contents

Statement of Case and Facts

Argument 1

Argument 2....


Certificate of Service

Certificate of Font Compliance

Case Law Citations

Laws/Statutes Referenced


Then you have an Appendix.

Title Page of Appendix
Table of Contents

Certificate of Service

Exhibit A: Docket Sheet

Exhibit B: What it is

Exhibit C: What it is


As you write the Brief, you add in citations to the Appendix/Docket throughout.  So a section might look like this: 


Argument 1:
Trial Court erred by allowing Evidence into the record that did not contain the address of Affiant


The Trial Court allowed Evidence into the record that did not contain the address of Affiant.  The Standard of Review to determine whether Evidence was properly introduced is de Novo.  The evidence submitted by Appellee Debt Collection Lawyer (Exhibit B, Docket Sheet Entry 1/1/2014) , which the Trial Court accepted, did not contain any address for the Affiant and thus I was not able to subpoena, nor cross-examine this Affiant before the evidence was allowed into the record.  This was error.  In  Dumbo v Bugs Bunny 9 So. 2d 346 (1st DCA California 2009) it was said that: 

"If an Affidavit does not contain the address of the Affiant, it can not be accepted into evidence"


Thus, the Trial Court erred when it accepted the Affidavit into evidence as the record shows that the Affidavit contained no address of the Affiant (Exhibit B, Docket Sheet Entry 1/1/2014).  The Trial Court had already determined that the witness who tried to verify this information was not credible and did not have personal knowledge of Bank of America's records on page 16 of the Transcript (Exhibit C, Docket Sheet Entry 1/1/2014).   As the witness had been found not credible, this evidence should have been excluded.  Instead, the Trial Court admitted this evidence and relied upon this evidence to issue its ruling.  We seek reversal of this decision on the basis that this evidence should have been excluded.

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