Jump to content

MIDLAND - post trial report


Recommended Posts

All,

 

Posting this for both the assistance of others and to see what anyone might think about what's happening in our case.

 

Background:

 

We were served by Midland last year. Thanks to the help of this board, and, specifically, members like ASTMEDIC and Homelessincalifornia, we've been able to do most everything ourselves.

 

So, after receiving the initial summons/complaint, we filed our general denial, answered their request for admissions/interrogatories etc.

 

We did miss the deadline for the CCP 96. But Midland was gracious enough to send of their CCP98 declaration RIGHT at 30 days before trial. It was the usual scenario. Declarant was out of state (MN). We issued a subpoena and, of course, the declarant wasn't at the address indicated. In truth, none of the 4 addresses provided were within 150 miles of court, but they were very close. We picked the closest address to the court and tried to subpoena her there.

 

We are in Ventura county, by the way.

 

About ten days before trial we rec'd the plaintiff's trial brief. I'm sure these are pretty much boilerplate. I called the court clerk and asked if we were to file and serve our brief and motion in limine at some point before trial. She said "no." We just file the day of trial with the courtroom clerk. The local rules do mention this. But I think this is unusual.

 

Hoping to avoid an actual trial. I called and left a message for their rentalawyer the Friday before trial. In my message, I simply said that I wanted to see if I could possibly save us all some time.

 

She called me back and started offering settlements.

 

I politely informed her that I was not interested in a settlement, but that I was planning to file a MIL, that we had tried to subpoena their "witness." She got very pissy with me at that point. I apologized profusely and asked her to please forgive me any breach of etiquette. I am just a simple layman (think Phil Hatman, unfrozen caveman lawyer).

 

We concluded the call with a simple, "see you Monday." and that was that.

 

So, today, we show up at court, file our brief and MIL, declaration, etc.

 

Then something I expected happened: Rent-a-lawyer asked for a continuance so plaintif could get their witness to trial.

 

We objected based on the Rules of court, but the judge seemed okay with the continuance. But, stated something very strange. And it's this that I'm curious to get others' feedback on.

 

The judge said that, if we insisted on having the trial here and now, he would not grant our MIL (I have absolutely no idea why). He then told the plaintiff that their witness must be at the next hearing.

 

He then said to us, "are you SURE you want to have the trial today?" given everything.

 

Frankly we weren't sure what to think.

 

And thought that

 

A) the plaintiff is pretty unlikely to fly out their declarant from Minnesota over a $4000 dispute especially as their declarant could be pretty well ripped apart on the stand as not a true qualified witness, etc.

 

 B)the plaintiff will likely move for dismissal and the judge may have been no so subtly hinting that this would be better for us.

 

 

Curious what anyone's take on this is. I half expect a dismissal at this point. And even if they were to fly out their witness, the "legal specialist" from Midland isn't really qualified to authenticate the OC's records anyways. The rent-a-lawyer asked for a 60 day continuance, we objected and asked for 30 days. Judge set for 30 days.

 

 

What do you guys think is going to happen at this point? Why do you suppose the judge was not going to grant the MIL if we made a stink about having the hearing today? Was he just backing them into a corner, knowing fully well they'd likely just dismiss?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Link to comment
Share on other sites

All,

 

Posting this for both the assistance of others and to see what anyone might think about what's happening in our case.

 

Background:

 

We were served by Midland last year. Thanks to the help of this board, and, specifically, members like ASTMEDIC and Homelessincalifornia, we've been able to do most everything ourselves.

 

So, after receiving the initial summons/complaint, we filed our general denial, answered their request for admissions/interrogatories etc.

 

We did miss the deadline for the CCP 96. But Midland was gracious enough to send of their CCP98 declaration RIGHT at 30 days before trial. It was the usual scenario. Declarant was out of state (MN). We issued a subpoena and, of course, the declarant wasn't at the address indicated. In truth, none of the 4 addresses provided were within 150 miles of court, but they were very close. We picked the closest address to the court and tried to subpoena her there.

 

We are in Ventura county, by the way.

 

About ten days before trial we rec'd the plaintiff's trial brief. I'm sure these are pretty much boilerplate. I called the court clerk and asked if we were to file and serve our brief and motion in limine at some point before trial. She said "no." We just file the day of trial with the courtroom clerk. The local rules do mention this. But I think this is unusual.

 

Hoping to avoid an actual trial. I called and left a message for their rentalawyer the Friday before trial. In my message, I simply said that I wanted to see if I could possibly save us all some time.

 

She called me back and started offering settlements.

 

I politely informed her that I was not interested in a settlement, but that I was planning to file a MIL, that we had tried to subpoena their "witness." She got very pissy with me at that point. I apologized profusely and asked her to please forgive me any breach of etiquette. I am just a simple layman (think Phil Hatman, unfrozen caveman lawyer).

 

We concluded the call with a simple, "see you Monday." and that was that.

 

So, today, we show up at court, file our brief and MIL, declaration, etc.

 

Then something I expected happened: Rent-a-lawyer asked for a continuance so plaintif could get their witness to trial.

 

We objected based on the Rules of court, but the judge seemed okay with the continuance. But, stated something very strange. And it's this that I'm curious to get others' feedback on.

 

The judge said that, if we insisted on having the trial here and now, he would not grant our MIL (I have absolutely no idea why). He then told the plaintiff that their witness must be at the next hearing.

 

He then said to us, "are you SURE you want to have the trial today?" given everything.

 

Frankly we weren't sure what to think.

 

And thought that

 

A) the plaintiff is pretty unlikely to fly out their declarant from Minnesota over a $4000 dispute especially as their declarant could be pretty well ripped apart on the stand as not a true qualified witness, etc.

 

 B)the plaintiff will likely move for dismissal and the judge may have been no so subtly hinting that this would be better for us.

 

 

Curious what anyone's take on this is. I half expect a dismissal at this point. And even if they were to fly out their witness, the "legal specialist" from Midland isn't really qualified to authenticate the OC's records anyways. The rent-a-lawyer asked for a 60 day continuance, we objected and asked for 30 days. Judge set for 30 days.

 

 

What do you guys think is going to happen at this point? Why do you suppose the judge was not going to grant the MIL if we made a stink about having the hearing today? Was he just backing them into a corner, knowing fully well they'd likely just dismiss?

You should have objected to the continuance because they have to give prior notice and second they had to give a legitimate reason for the continuance. In any case, since the Judge asked the JDB to bring in their witness they will most likely dismiss w/o prejudice. It happens to us and we waited for the 60 day and they dismissed. If that happens file the Judgement for Dismissal and Notice of Entry Order and file your memorandum of Costs and get the judge to sign. They you can send a copy of the Judgement of Dismissal to the 3 CRA's to get any/all reference of Midland removed from your credit.

Good job, though

 

.Rules for Continuance: http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

  • Like 1
Link to comment
Share on other sites

Thanks Helpme,

 

We did object for the rules you cited. That's when the judge said 'if we insisted on having it today, he wouldn't grant the MIL. He then said, "now, are you SURE you want to do this?"

 

I've come to suspect that when a judge asks you such a thing, what they really mean is, "you don't want to do this."

 

Anyway, I think either way we win Their "witness" isn't competent due to my understanding of the evidence code, and I doubt they would fly her out anyway.

 

I think the rent-a-lawyer was just stalling for time to confer with her client. I hope I'm right

Link to comment
Share on other sites

Idk what the judge may have been thinking. Did you cite CRC 3.1332 when you initially opposed the continuance? I think it's pretty clear a motion for continuance must come in writing and prior to trial - so it irks me when I read of a judge taking the position that yours did and saying he would deny your MIL for insisting on trial today. One has nothing to do with the other, the validity of your MIL shouldn't depend on your willingness to let them slide on 3.1332. Anyhow, I think you made the right choice today by not surrendering your objection. Earlier in the year a poster made the opposite decision and got steamrolled in their case.

 

I doubt the JDB will be able to do any better 30 days from now. You can use the 30 days to prep for cross examination of the witness in the unlikely scenario they do show up.

 

My 2 cents: I wouldn't have the called the lawyer ahead of time to try to avert trial. From my experience and what I've read, the JDBs are almost always going to push these cases to the end. In some cases they do dismiss earlier when confronted with a MIL (in courts where MILs are required to be filed ahead of trial), but I don't think phone calls are going to do it - IMO that only gives them advanced warning of your intentions.

  • Like 2
Link to comment
Share on other sites

What was the subject of the MIL?  In my state they have to be filed a certain amount of time before court, however the judge can wait to rule on them right before the trial starts.  Check your states rule on the time before trial to file a MIL. Pretty sure thats why the judge would not allow it.

Also is the witness or affiant from Midland credit management or midland funding??? I basically won my case because it was ruled that an employee of MCM cannot testify to the business records of Midland Funding.

  • Like 1
Link to comment
Share on other sites

There was a poster here earlier this year that went to trial in Cali. Probably the same judge. He had tried to subpoena the witness, and the witness could not be served. So the JDB asks for a continuance. He objected, and the judge said fine no continuance, we will have trial today but I am letting the ccp98 affidavit in. The poster lost his case. Now he probably has grounds for an appeal, but not sure he went there. Probably a good thing you let it go, by denying your MIL, you would have had to raise all those issues at trial, and I think the judge would have denied you anyway.

I wonder if it is to late for you to file for a different judge? I can't remember what it is called, but there is a form in Cali to do that. You want to make your court record as such that if you appealed because the judge didn't follow the rules, you would win. He sounds very pro plaintiff. He should have dismissed based on the rules.

Link to comment
Share on other sites

Thanks all for the feedback.

 

I just can't really understand what the judge was thinking. They (Midland) have had 5 months to be ready for trial. They are (supposedly) professional attorneys who do this all day, every day.

 

We are regular people. Getting to court is a hardship and preparation and reasearch into an unfamiliar territory is difficult when you're doing it nights and weekends. The judge should have denied their continuance and granted the MIL. Oh well, I think it was either CALawyer or SeaDragon who said that they will almost always grant 1 continuance...

 

My thinking, as I've mentioned above, is that they aren't going to actually fly a witness out to appear at trial for this.

 

I hope I'm right as I'd like to just be done with it...

Link to comment
Share on other sites

As an extra bit of info, here's the text of the minutes from yesterday..

 

-----------------------------------------------------------------------------------------------------------------------------------------------------

 

In light of the defendant's declaration, plaintiff's counsel requests that the declarant be present and

therefore requests a continuance.

 

Defendant states objection to a continuance.

 

The court will grant a continuance, unless the defendant waives their objections then he will consider the

submitted 98 declaration.

 

The defendant opts to have the court continue the hearing to allow the declarant to appear.

 

The Court finds/orders:

Court Trial (SHC) (time estimate 2 hours) continued to...

 

The court orders that the declarant be present without further subpoena.

 

Parties waive notice.

Link to comment
Share on other sites

As an extra bit of info, here's the text of the minutes from yesterday..

 

-----------------------------------------------------------------------------------------------------------------------------------------------------

 

In light of the defendant's declaration, plaintiff's counsel requests that the declarant be present and

therefore requests a continuance.

 

Defendant states objection to a continuance.

 

The court will grant a continuance, unless the defendant waives their objections then he will consider the

submitted 98 declaration.

 

The defendant opts to have the court continue the hearing to allow the declarant to appear.

 

The Court finds/orders:

Court Trial (SHC) (time estimate 2 hours) continued to...

 

The court orders that the declarant be present without further subpoena.

 

Parties waive notice.

 

Interesting. My thought is that this line is a good thing. If Midland decides that it's not worth their while to bring the declarant out to testify, then maybe this will be motivation for them to dismiss this case rather than show up for trial without the witness the judge ordered them to produce...which to me it seems like the type of thing that would piss off a judge. Of course that would be a best case scenario.

Link to comment
Share on other sites

Seems like the same thing about everywhere, especially with Midland. Even if the attorney knows that the JDB is not going to spend the money to bring in a witness they think you might still give in. In my state the attorneys do not get a dime until money is collected, so they really have nothing to lose at this point. I could be wrong but all they are hoping for is that you get scared and settle before the next trial date. 

 

That being said you should continue to study up on questioning the witness. Hit them with everything you can think of. 

-How many affidavits does this person sign in a day, week, month?

-How do they know everything is accurate? 

-How much time to they spend on verification of each account?

-What are the security measures used from the time they "receive" an account until the day of the trial?

-What is this person's education and qualifications for this job?

-What kind of training do they receive from Midland and how often?

-Do they know how the OC keeps their records?

-Do they know the security measures the OC uses to maintain these records?

-Have them list all security issues that have occurred at Midland and OC while these records have existed.

-How did they calculate the interest and fees in determining the amount they claim you owe?

-How did the OC calculate the interest and fees from the time of the charge off and sale?

-What legally allowed Midland to charge interest on this alleged account? 

-If they say the contract tell them to show proof they have the legal right to do so.

-Did they charge post charge off interest and what gives them the legal right to do so?

 

I'm sure you can think of plenty more questions and others have posted questions here also. Make sure and hit home how they came up with the final amount and don't let up on how they have personal knowledge about the procedures and practices of the OC.

 

Here are some others starting on page 13.

http://www.pennlawyer.com/transcript.pdf

  • Like 3
Link to comment
Share on other sites

"The court orders that the declarant be present without further subpoena."

 

 

 

 

 

The Court did you a favor by ordering the declarant to appear without having to re-serve.  That is something people forget to request sometimes and it can become an issue since the subpoena that was actually served commends appearance on the day originally set for trial.

 

I do not understand why the Court wanted you to agree to the continuance.  The trial date has been set for some time.  You subpoena'd the witness.  A subpoena is not a request, it is a court order.  The Judge could have held the witness in contempt or at least issued an order to show cause why the witness should not be held in contempt.

 

Not sure if the witness will show next time or not.  But if the witness does not show, you should get on your soapbox and deliver a speech about the fact that this is plaintiff's case not yours.  You have shown up twice for trial.  Taken time off work?  Dressed up in your Sunday best?  The witness has been commanded to appear by two separate orders of the Court.  The Court should dismiss if plaintiff is not ready to proceed after being given a second chance.

  • Like 5
Link to comment
Share on other sites

Thanks all for the feedback.

 

I just can't really understand what the judge was thinking. They (Midland) have had 5 months to be ready for trial. They are (supposedly) professional attorneys who do this all day, every day.

 

My thinking, as I've mentioned above, is that they aren't going to actually fly a witness out to appear at trial for this.

 

I hope I'm right as I'd like to just be done with it...

Judge's may give the benefit of the doubt to their fellow members of the bar. If i were you, I would prepare to cross the witness. They would probably not fly out a witness. But they may send a different one from their own backyard. If your judge is willing to grant continuances when you object citing proper code, he may be willing to let other things fly as well. He may settle for any witness they bring,some judges just like to hear the plaintiff's case, rules be damned. Not trying to scare you, but you've fought this far, best be prepared to take it all the way to the mat. They do occasionally send witnesses, it's not a lock that they won't. They brought one to my trial, and the judge thought it was good enough, even though I made all of the proper objections, MIL, and I did a pretty good job of crossing the witness if i say so myself, she said pretty much everything i wanted her to say. 

 

Oh, and get a court reporter! It's worth the $,  I don't like the way your judge has handled things thus far. Many California courts no longer provide. Ask the clerk about recording the trial as well, might be allowed, maybe not. It sounds like you've done a good job so far, keep it up! Go to trial well prepped, ready to shred a witness if need be. I posted my cross exam summary in my appeal thread, there's some other cross exam questions floating around as well. If i could do it over, I would have went even more overboard with questions. 

 

EDIT

Here is the link to my cross exam transcript

I also just posted some of my trial binder stuff which includes all of my cross exam questions and others i didn't get to use.

  • Like 2
Link to comment
Share on other sites

Great info, thanks everyone...ArtVandalay (I always wanted to be an architect!). CALawyer and Easy, Ryan , etc.

 

Easy, I read about your story, that sucks. You are appealing, though, right? I know that, were we to lose, I will definitely appeal.

 

I have definitely thought about the court reporter, and I think if we do actually go to trial, I will get one.

 

Hopefully the fact that the judge ordered the declarant will help. I will definitely prepare to deal with a witness if it comes to that. Might even pay an attorney to appear at the trial if it really ever happens.

 

I will update this thread with any further info...

Link to comment
Share on other sites

  • 5 weeks later...

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.