Being sued by portfolio in california

[RyanEX]

I think I am confused here. Am I reading into this wrong. According to Astmedic; I am suppose to send all discovery and evidence to plaintiff 35 days prior to court date. The plaintiff attorney has not asked for anything from me yet. How can I send my trial brief and declaration to plaintiff if I have not yet served the subpoena on their custodian of records.

Sounds like you are referring to Seadragon's 60-day timeline, specifically the items under the 35-day heading. I think you are alright. You don't have any evidence to send them - it's up to them to try to produce the evidence in this case. You will work to preclude their submissions. I think by 'discovery' Seadragon meant any discovery responses to requests made by the plaintiff. If they have not made any requests that are now due, then you have no response to send back.

How are things with your CCP96 request? They had 20 days, beginning the day you served them the request (had it placed in the mail) to serve their response (place their answer in the mail). How much time to they have left? Once they place it in the mail it may take a few more days to arrive. Once you get the response, you'll know what you will be objecting to.

Deadline for filing your Trial Brief and your Objection to their CCP 98: Each county has their own local rules on deadlines for filing these items with the court. Do you know yours? The deadline in some counties is 5 Court Days before trial, in others it may be 20 Court Days. Court days are different from calender days - know the difference. Look up your deadline on your website, PM me if you need any help with that.

If you don't get the time to complete the subpoena attempts and include the declaration in your Trial Brief before it is due, you'll just file the brief without those elements and you'll take the subpoena and declaration of diligence with you to court.

You are getting close to being 20 calendar days before your trial, this is when your window begins to subpoena the CCP 98 declarant. Have that ready to go, along with the sheriff or process server that you'll use to serve it.

[pedro1967]

I seems the closer I get to my court date the more I am messing up.

I was typing up my subpoena and found out that when I typed the proof of service by mail

POS 030 after typing the superior court of californ. I left out the name of the county.

I did send them a copy. Should I just write the name of the county on the original or

do I get the person who sent it off to sign a new one.

[Anon Amos]

I wouldn't worry about and consider it a non issue (just leave it as it is).

[calawyer]

Your plaintiff is going to have such a difficult time in this case explaining the relationship between GE and Synchrony. And it matters. If Synchrony was actually assigned the account, plaintiff appears to be missing some documentation. If Synchrony was the servicer of the account, then the declaration of Mr. Eyre, discussing GE's records is irrelevant. Synchrony had the records. And Eyre didn't read the file closely enough to figure that out.

This is one very good reason why hearsay is not allowed at trial.

[pedro1967]

Synchrony bank is GE Capital. They recently changed their name. I am now 20 days out. The process server made their first attempt today and will make a second tomorrow. They will mail me the proof the same day and will email me a copy in the mean time. Can I use that when I file my motion in limine? Do I have to send copy of plaintiff before I take it to the court house? What about the declaration in support or limine; do I have to send that to them too? Lastly, what about the objection to declaration of colby eyre? Do I have to send them a copy of that too? When the plaintiff attorney brings ups the affidavit, Should I object and bring up Synchrony, and if plaintiff states that it is the same bank, Should I object and state that I want proof they are the same or that how do I know GE/Capital did not split into different ventures and how do I know who is suing me?

Thank you all for your valuable time.

[pedro1967]

As I was waiting to have my subpoena served at ABC legal I received another package from Hunt and Henriques. It was the same Declaratio of palaintif in lieu of personal testimony at trial. same statements attached. nothing new.

[pedro1967]

I just received Plaintiff's statement of witnesses and evidence.

It has my name and address.

Plaintiff intends to procedd by its CCP 98 Declaration of Colby Eyre, In the alternative, Plaintiff intends to call one of its custodians of record or other qualified witnessess(Myrell johns, Maria Marin, Mark Lozano, Evita Rodriguez, Colby Eyre, or Johnny Tabor). Plaintiff's witnesses have an address at Portfolio Recovery associates, LLC, 4330 La Jolla Village Drive #310. San Diego, CA 95119 or adress listed in the CCP98 Declaration, C/o ABC San Diego, 2900 4th avenue, suite 206. San diego CA 92103.

2 copies of statements and balance of ##### Plaintiff intends to copy of the bill of sale.

3 Plainhtiff does not intend to produce any photographs or other physical evidence at trial though reserves its rights to do so.

date and signed.

Should I subpoena all six people on this list.

Do I send 1 subpoena with everyones names or 6 different subpoenas.

Do I use the ABC address or do I use the La jolla address.

[Anon Amos]

No; do not subpoena anyone else. You were only obligated to subpoena the ccp98 declarant, and have done so.

They are not allowed to call someone instead of the declarant as that person is under court order to appear at trial.

[pedro1967]

I was told by the process server that CCP 98 declarant did not live or work at the address given in the CCP98. So he could not leave the subpoena there at ABC legal.

[calawyer]

 

I was told by the process server that CCP 98 declarant did not live or work at the address given in the CCP98. So he could not leave the subpoena there at ABC legal.

 

I would ask the process server to leave it thee anyway. THen give you a declaration of diligence saying that he/she attempted service at that location, was told that the witness did not live or work there but nonetheless left it with someone who accepted the subpoena on the witness's behalf.

[calawyer]

 

Synchrony bank is GE Capital. They recently changed their name. .

 

Did GE really "change its name"? Or did it sell to Synchrony? If it was a sale, did it sell assets or stock? If assets, did it sell non-performing assets such as delinquent accounts or just performing assets?

I don't know. You don't know. More important, Plaintiff doesn't know and will not likely submit any admissible evidence on this point at trial.

And it matters to you. If Synchrony did not own your account, you could lose this case only to have another debt collector come knocking on your door in a year's time. That is why we require a plaintiff to prove standing before it can recover in Court.

[pedro1967]

Trial brief is due in 3 days. Do I have to serve a copy on the plaintiff? If I do. I can overnight it today.

[Anon Amos]

Yes; serve the plaintiff anything you are going to file with the court.

[pedro1967]

I thought I was too late to file a motion in limine pertaining to H&H affidavit.  I read my local court guide and it says I have until 5 days to trial.  I will be overnight  every thing to plaintiff attorney tomorrow morning and and then filing with the court the next afternoon.  Getting very antsy. Thanks everyone for everything.

[RyanEX]

FYI those deadlines are often in Court Days, not Calender Days - just so you make sure you're on schedule.

[pedro1967]

Thanks for the reminder Ryan.  I thought I had more time.  I sent everything off.  Just about all of it pertaining to Affidavit in lieu of testemony.  I think I should have sent an objection to what they call "Affidavit of Sale" since it does not have an account #. I guess I can send one out tomorrow.

[calawyer]

Thanks for the reminder Ryan.  I thought I had more time.  I sent everything off.  Just about all of it pertaining to Affidavit in lieu of testemony.  I think I should have sent an objection to what they call "Affidavit of Sale" since it does not have an account #. I guess I can send one out tomorrow.

 

 

Unless the "affidavit of sale" also has an address where the witness may be served, your primary objection should be that it is hearsay.  Affidavits are not admissible at trial, unless they comply with a specific statute such as CCP 98.  Elkins v. Superior Court.  The reason is that you can't cross examine an affidavit.  And here you would want to since it doesn't even have your account number on it.

[pedro1967]

So do I object prior to court date or at trial date.

[calawyer]

If the affidavit of sale is attached to the CCP 98 declaration, then the entire declaration and all exhibits should be excluded from evidence. 

 

You could do a 1 page brief citing Elkins and keep it in your back pocket for trial.  Call it Defendant's Objection to Affidavit of ____re Bill of Sale.

[pedro1967]

At what point do I bring it up?

I am working on my opening statement right now.

[calawyer]

At what point do I bring it up?

I am working on my opening statement right now.

 

The first time plaintiff tries to use it.  And, if the Court overrules the objection, you should probably reiterate it any other time plaintiff tries to use it.  For subsequent times, just say "Objection hearsay".

[bmc100]

 

 

Did GE really "change its name"? Or did it sell to Synchrony? If it was a sale, did it sell assets or stock? If assets, did it sell non-performing assets such as delinquent accounts or just performing assets?

I don't know. You don't know. More important, Plaintiff doesn't know and will not likely submit any admissible evidence on this point at trial.

And it matters to you. If Synchrony did not own your account, you could lose this case only to have another debt collector come knocking on your door in a year's time. That is why we require a plaintiff to prove standing before it can recover in Court.

GE changed its name to Synchrony Bank. 

[pedro1967]

Great news: They cancelled the lawsuit.  I started to think about the MC-010 too late.  Its been 16 days since they mailed me their decision to cancel. 

[Xenophon]

Congrats!!!!

[calawyer]

Great news: They cancelled the lawsuit.  I started to think about the MC-010 too late.  Its been 16 days since they mailed me their decision to cancel. 

 

 

When you say "cancelled", do you mean that Plaintiff filed a request for dismissal?  Has it been entered by the clerk?