desertdweller

Need advice, encouragement, for Aug. court date in CA

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Hi everyone,  I have been here almost daily since receiving a summons from mandarich law group late last year.  I filed my answer, sent a request for BOP (and 2nd and 3rd requests), sent discovery, answered discovery, answered ccp 98, and sent ccp 96.  I read many, many posts here, and used templates from here, changing them to fit my situation.   Thanks to all the brilliant, giving people here, every time I sent them something, they answered exactly as I thought they would, and I knew exactly what to do next.

 

So now, my trial date is less than 3 weeks away, and I am lost and find myself thinking why bother?  My only income is a military pension, and I don't own anything, I'm essentially judgement-proof.  I am usually a very happy, optimistic person, but this last month has been horrible.  My beloved dog was killed, and I am heartbroken.  I know I have time limits to get ready for trial, so I'm hoping that you guys will help me by reminding me of anything I may have forgotten to do, and not letting me give up and let the bad guys win.  

 

So, the basics:

 

 

      1. Who is the named plaintiff in the suit?

 

             Cach

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

     Mandarich law group

3. How much are you being sued for?

 

        1500

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

 

   Wells Fargo

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

 

     Yes

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

 

     In person

7. Was the service legal as required by your state?

 

     Yes

 


Process Service Requirements by State - Summons Complaint

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, San Bernardino

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

 

     I think it was October, 2010, they say October, 2011.  (I haven't been able to get my bank records from 2011.)

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

Statute of Limitations on Debts

 

     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).

 

     Trial in mid august.  Answer filed, discovery done, requested BOP, they refused, and l just received their Plaintiff's CCP 96 Response.

 

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.

 

     No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

Already responded with a general denial.  The complaint is for 1.  BREACH OF CONTRACT    2.  COMMON COUNTS

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 

 

     None with the summons, they cited Distifano and Hall in response to my BOP request, claimed "Trade Secrets" in response to my discovery, and sent copies of a statement dated "10/25/2011 to 11/23/2011" with a past due balance, and another statement  dated "11/24/2011 to 11/30/2011 with a balance of 0.00, addressed to a house I owned at the time but did not live at.

 

In response to my CCP 96 they sent copies of the same two statements, and a short form purchase agreement between Wells Fargo and Cach.   For witnesses, they say they plan to use a declaration pursuant to CCP 98.  They list eight names that they say are custodians of records that they may call.  they say they can't know the identity of the individual who will be available to testify until approx. 10 days before trial.  They gave a contact address for the lawyers office.  They also plan to call Defendant.   

For evidence, they listed the CCP 96, the billing statements, and the Wells Fargo Bill of Sale and accompanying redacted Loan Schedule (I see no loan schedule attached.)

 

So, what is my next step?  I know I'm supposed to send a subpoena, but aren't the witnesses supposed to be available for personal service 20 days before trial?  Are they allowed to just cut that time in half?  Or have they already given me a reason to exclude the CCP 96 Declaration in Lieu?  For the subpoena, can I have someone I know attempt to serve it?  Also, they had already sent me a Declaration Pursuant to CCP 98 in Lieu of direct testimony, which I received on the same day I mailed my request for it.  That one is dated June 16, 2014, and signed by one of the people listed to testify.  So doesn't that person have to be their witness?  Is that who I subpoena?  And when?  20 days out, or 10 days out?  

 

Thank you in advance for answering my questions, and thank you for giving your time and knowledge to people like me.

 

By the way, the lawyers referred to the list of people who might show up in court as "traveling witnesses" whose schedules are made weekly, not as the custodians of records.  they say they will testify about the plaintiff's business records, and how they aquired the account.  Are they not missing the main part of their lawsuit?  How can they skip over the whole "contract" part of a Breach of Contract case?  

 

      

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I read somewhere they were not allowed to do that, but I don't know the ccp, another Cali member mat.

Yes you could have a friend serve it, but if the plaintiff objects he could say he wants testimony from the server, the affidavit won't due. If you have a process server do it, there is a code that says they can't do that, and your due diligence is done.

If they are allowed to list all those witnesses (which I am almost sure that is their attempt to have just anyone show up, or make it difficult for you to serve) I may be inclined to subpoena all if them, have the friend serve them all, but not leave any subpoenas there, using the ccp they must be personally served. Have him make 2 attempts, then file the due diligence cert. that they were unavailable at the address provided. Then bring him to court with you so if they try to pull that crap, he will just happen to be there.

They are playing games.

I'm sure @Anon Amos, or @calawyer knows the code though.

They don't have much, be sure and read homelessinca's thread, and motion to preclude, or motion in limine. You will want to file one close to your court date, and it's a great template.

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Sounds like you did receive a CCP 98 declaration with a named declarant & address. You would focus your subpoena on that person. You can subpoena that person beginning 20 days out from trial, you should prepare for that and do it as soon as you are able to. Use a sheriff if your county allows, if not hire a process server.

 

The other 8 "custodians of record" you mentioned were in response to your CCP 96 request, correct? And they are not tied to the CCP 98? If that's the case then you do not have to subpoena those people as Cach is not offering a declaration for them in lieu of testimony but it saying they may bring them to trial.

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Do it for your dog. A best friend would want you to fight regardless if you are collection proof. Collection proof is just more reason to fight. More people need to fight. You may also fight for those that can't or won't. It's kind of like watching a school yard bully when you know you could do something about it. Just my opinion.

It's the declarant of the ccp98 declaration in lieu of testimony that you subpoena.

When I fought my suit I lost a pet of 13 years, so I know how that feels. I used it against them for fuel for the fire because I realized that this is how they make people feel all the time. My problem is that I just never stopped fighting them.

I would continue on and finish this. They will most likely dismiss if you subpoena the right person.

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Object to any witness that shows up because they were not listed on the CCP 96. They have to be listed by name and address. CCP 96 Is the code you would use. Read it.

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Hello

I'm so sorry for what happen with your dog but cheer up we're all here to help. Here's some info on Breach of Contract that you may use as an oral argument and to be used in your trial brief. Here's the info:

 

Party Bringing Action on Contract Must Plead and Prove Existence of Contract.

Except as otherwise provided by law, a plaintiff has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief [Evid Code § 500].

 

In an action based on contract, the plaintiff must plead and prove the existence of the contract [Walsh v. West Valley Mission Cmty. ColI. Dist. (1998) 66 CA4th 1532, 1545, 78 CR2d 725].

 

Example: Plaintiffs failed to meet their burden of proving an alleged oral contract when there was a gerious conflict of evidence concerning the making of a contract. Plaintiffs' evidence consisted of conversations allegedly had with defendants, in which plaintiffs expressed their desire to have a contract, and defendants denied having had such conversations [sully v. Kern Drilling Corp. (1954) 126 CA2d 651, 653­654,272 P2d 549].

 

Since you were not able to oppose their declaration in lieu you still have time to do a Motion in LImine (MIL), a Subpoena and your trial brief.

 

Take a look at post #28 of this link (this will energize you) http://www.creditinfocenter.com/community/topic/324060-sued-by-hunt-henriques-getting-close-to-trial/page-2

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Here are some questions I prepared for trial against Midland Funding on ACCOUNT STATED and MONEY LOANED. They are base on a winning appellate court decision in Missouri.

CREDIT CARD DEFENSE QUESTIONS FOR TRIAL

(For Account Stated and Money Loaned)

Question # 1. Were documents pertaining to defendant created by Midland Funding LLC in the ordinary course of business at or near the time of the events they purported to record?

They will probably say yes.

Question # 2. Who prepared the documents received by Plaintiff Midland Funding LLC pertaining to the defendant?

Of course they won't know.

Question # 3. Were the documents pertaining to defendant prepared elsewhere and merely received and held in a file by Midland Funding, LLC ?

They will have to answer yes.

Question # 4. Do you have knowledge about what goods were purchased by defendant for which charges were made to the account plaintiff sought to collect?

They will have to answer NO.

Question # 5. Do you have knowledge that goods allegedly purchased by defendant were fair and reasonable for which charges were made to the account plaintiff sought to collect?

Again, a NO answer.

Question # 6. Do you have knowledge of each transaction Plaintiff alleges were made by defendant?

Of course NOT.

Question # 7.  Did Midland Funding LLC, provide any merchandise to the defendant?

Another NO answer.

Question # 8.  Did Midland Funding LLC provide any goods to the defendant?

NO

Question # 9.  Did Midland Funding LLC come out and perform any services for the defendant and charge her for that?

NO

Question # 10. Do you have knowledge of any money loaned to defendant by Midland Funding LLC?

If your answer is yes, how did you obtain that knowledge, from whom did you obtain that knowledge, and when did you first obtain that knowledge?

They will answer "NO"

Question # 11. Do you have proof that money was loaned to defendant by Midland Funding LLC?

NO!

Say this to the judge. "Your honor,Because Plaintiff can not prove that money was loaned to defendant, the Action of MONEY LOANED cannot be sustained."

Say this to the judge:

 Your honor,  “A suit on open account means a suit in contract for each purchase transaction.”  Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 713 (Mo.App.1994).   To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges.  Welsch Furnace Co., Inc. v. Vescovo, 805 S.W.2d 727, 728 (Mo.App.1991).

Because Plaintiff cannot prove the correctness of the account and the reasonableness of of the charges, the Action of Suit On Account cannot be sustained.

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Here are some questions I prepared for trial against Midland Funding on ACCOUNT STATED and MONEY LOANED. They are base on a winning appellate court decision in Missouri.

CREDIT CARD DEFENSE QUESTIONS FOR TRIAL

(For Account Stated and Money Loaned)

Question # 1. Were documents pertaining to defendant created by Midland Funding LLC in the ordinary course of business at or near the time of the events they purported to record?

They will probably say yes.

Question # 2. Who prepared the documents received by Plaintiff Midland Funding LLC pertaining to the defendant?

Of course they won't know.

Question # 3. Were the documents pertaining to defendant prepared elsewhere and merely received and held in a file by Midland Funding, LLC ?

They will have to answer yes.

Question # 4. Do you have knowledge about what goods were purchased by defendant for which charges were made to the account plaintiff sought to collect?

They will have to answer NO.

Question # 5. Do you have knowledge that goods allegedly purchased by defendant were fair and reasonable for which charges were made to the account plaintiff sought to collect?

Again, a NO answer.

Question # 6. Do you have knowledge of each transaction Plaintiff alleges were made by defendant?

Of course NOT.

Question # 7.  Did Midland Funding LLC, provide any merchandise to the defendant?

Another NO answer.

Question # 8.  Did Midland Funding LLC provide any goods to the defendant?

NO

Question # 9.  Did Midland Funding LLC come out and perform any services for the defendant and charge her for that?

NO

Question # 10. Do you have knowledge of any money loaned to defendant by Midland Funding LLC?

If your answer is yes, how did you obtain that knowledge, from whom did you obtain that knowledge, and when did you first obtain that knowledge?

They will answer "NO"

Question # 11. Do you have proof that money was loaned to defendant by Midland Funding LLC?

NO!

Say this to the judge. "Your honor,Because Plaintiff can not prove that money was loaned to defendant, the Action of MONEY LOANED cannot be sustained."

Say this to the judge:

 Your honor,  “A suit on open account means a suit in contract for each purchase transaction.”  Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 713 (Mo.App.1994).   To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges.  Welsch Furnace Co., Inc. v. Vescovo, 805 S.W.2d 727, 728 (Mo.App.1991).

Because Plaintiff cannot prove the correctness of the account and the reasonableness of of the charges, the Action of Suit On Account cannot be sustained.

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Here are some questions I prepared for trial against Midland Funding on ACCOUNT STATED and MONEY LOANED. They are base on a winning appellate court decision in Missouri.CREDIT CARD DEFENSE QUESTIONS FOR TRIAL(For Account Stated and Money Loaned)Question # 1. Were documents pertaining to defendant created by Midland Funding LLC in the ordinary course of business at or near the time of the events they purported to record? They will probably say yes.Question # 2. Who prepared the documents received by Plaintiff Midland Funding LLC pertaining to the defendant? Of course they won't know.Question # 3. Were the documents pertaining to defendant prepared elsewhere and merely received and held in a file by Midland Funding, LLC ? They will have to answer yes.Question # 4. Do you have knowledge about what goods were purchased by defendant for which charges were made to the account plaintiff sought to collect? They will have to answer NO.Question # 5. Do you have knowledge that goods allegedly purchased by defendant were fair and reasonable for which charges were made to the account plaintiff sought to collect? Again, a NO answer.Question # 6. Do you have knowledge of each transaction Plaintiff alleges were made by defendant? Of course NOT.Question # 7.  Did Midland Funding LLC, provide any merchandise to the defendant? Another NO answer.Question # 8.  Did Midland Funding LLC provide any goods to the defendant? NOQuestion # 9.  Did Midland Funding LLC come out and perform any services for the defendant and charge her for that? NOQuestion # 10. Do you have knowledge of any money loaned to defendant by Midland Funding LLC?If your answer is yes, how did you obtain that knowledge, from whom did you obtain that knowledge, and when did you first obtain that knowledge? They will answer "NO"Question # 11. Do you have proof that money was loaned to defendant by Midland Funding LLC? NO! Say this to the judge. "Your honor,Because Plaintiff can not prove that money was loaned to defendant, the Action of MONEY LOANED cannot be sustained."Say this to the judge: Your honor,  “A suit on open account means a suit in contract for each purchase transaction.”  Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 713 (Mo.App.1994).   To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges.  Welsch Furnace Co., Inc. v. Vescovo, 805 S.W.2d 727, 728 (Mo.App.1991).Because Plaintiff cannot prove the correctness of the account and the reasonableness of of the charges, the Action of Suit On Account cannot be sustained.

Hello,

To be better served, you should start your own thread. You will get better results than hijacking this thread.

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This just struck me as I read your thread. So the most current statement you have received from them shows a current balance of $0.00? Hmmmmm. If so, I guess I know what you will say if they call you to the stand. And what you say about the state of the documentary record.

You don't want to serve the witnesses identified in the CCP 96 response. You want to subpoena the witness in the CCP 98 declaration at whatever address is given in the declaration. The person won't be there in all likelihood. Tell the process server that and ask them to make a couple of attempts, leave it with whoever will accept, then give you a declaration of diligence. You will then file an objection to the declaration. An exemplar is found in Homelessincalifornia's thread at post 428.

If they try to bring one of the 10 witnesses identified in the CCP 96 response, you have 2 objections:

1. You don't want any ole witness they find convenient to testify. You want the witness you served at a place the witness promised to accept service in a sworn declaration to this court. A subpoena is not a request. It is a Court order. You want to cross examine THAT witness with the declaration he/she signed. The Court should be inquiring about contempt for failure to comply with the subpoena. It should definitely not permit plaintiff to circumvent the rules and use some other witness that you can't cross examine with the declaration.

2. Plaintiff did not comply with CCP 96. That section requires plaintiff to list the witness it INTENDS to call at trial. Plaintiff never intended to call 10 witnesses. Again, it found it convenient to respond in this matter instead of following the rules. CACH is a "frequent filer" in this court and is charged with knowing the rules. It should not be able to re-write the rules as it sees fit.

Good luck.

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This just struck me as I read your thread. So the most current statement you have received from them shows a current balance of $0.00?

Good luck.

I just figured the OP didn't want to put the amount, but maybe they have a stipulation instead.

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I was thinking that these skilled practitioners gave, as a last statement, one that had actually been paid off.

You are probably right but one can always hope.

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If they try to bring one of the 10 witnesses identified in the CCP 96 response, you have 2 objections:

1. You don't want any ole witness they find convenient to testify. You want the witness you served at a place the witness promised to accept service in a sworn declaration to this court. A subpoena is not a request. It is a Court order. You want to cross examine THAT witness with the declaration he/she signed. The Court should be inquiring about contempt for failure to comply with the subpoena. It should definitely not permit plaintiff to circumvent the rules and use some other witness that you can't cross examine with the declaration.

2. Plaintiff did not comply with CCP 96. That section requires plaintiff to list the witness it INTENDS to call at trial. Plaintiff never intended to call 10 witnesses. Again, it found it convenient to respond in this matter instead of following the rules. CACH is a "frequent filer" in this court and is charged with knowing the rules. It should not be able to re-write the rules as it sees fit.

.

When objecting as above, does the objection need a grounds stated prior to the explanation?

Also, if they don't comply with CCP98 (the person listed was not able to be personally served), but then that named person does finally show up at trial? Has that happened to anyone (yet)?

(edited: wow, board posting is wacky lately!)

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@tastycake they brought a witness to my trial. Not a ccp98 delcarant though. I fumbled my code #s and mentioned ccp98 at case management conference, i think plaintiff knew i would hammer their 98.  Long story. 

 

There is no need or reason to subpoena witnesses listed by name on the statement, they are allowed to testify if the show up. If you subpoena the ccp98 dec and they aren't available, that's out (hopefully, if properly argued with target v rocha)..but they are totally allowed to call the witnesses allowed by name. Just to be clear, in case you serve  the 98 dec and they aren't there, they can still call the other listed witnesses.

 

This part here:

They list eight names that they say are custodians of records that they may call.  they say they can't know the identity of the individual who will be available to testify until approx. 10 days before trial.    

Getting smarter...JDB listed a "person most knowledgeable" instead of listing of 10 possible names for my case...and i'm about to hammer them on appeal for it. 

 

I would go the serve the 98 declarant/ then MIL route for that part. As for the 10 witnesses listed, there is barely  shred of case law supporting the idea of witness statements being timely/compliant, nothing to do with the # of witnesses, trust me, i beat the pavement on ccp96/96.  I would do some quick research on all 10 witnesses listed, see where they live (might they show?) linked in accounts (professional experience? worked for OC?) and prepare to cross any/all of them. there's lots of good qualified witness caselaw (if you judge will hear it) regarding 3rd party records.  Unlikely they will send anyone, but it is possible and does happen.    And come trial time, preserve that record! Look into how much a court reporter costs, if limited civil trials are recorded, if you're allowed to record the trial. Object to everything they offer. In writing, with motions, MILs, trial brief, orally at trial of course. If no reporter, ask the clerk to make note of your objections in the trial minutes as they happen during trial. JDBs rarely have a solid case; don't let them get away with a goddamn inch.

 

 

 

 

@Anon Amos fkn A do it for the dog. JDB's are lower than the fleas pestering my pup right now, and deserve to be exterminated likewise. 

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My dog is sitting here telling me to fight and same to you.  Life is a game and this is just one match.  Joseph Campbell equated life to a tennis match and court is definately that.  I have my own thing coming soon and being I don't know Cali law or much law I may not be much help.  But just coming here and learning is better than taking the spoon feed guilt that most have had all our lives.  Play the game and win or lose hold your head high.

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