crazy88

How do I answer Notice in Lieu of Subpoena to compel

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I received a Disc 015 and a Notice in Lieu of subpoena to compel attendance before the court and to produce books, documents or other things.  it specifies;

 

1. Original Contract

2. Account application

3. Disclosure statement

4. All statements of account

5. All correspondence by and between Defendants and Plaintiff or Plaintiff's attorney;

6 Any and all evidence of any credit or payment made on this account;

 

In discovery I answered that a reasonable search was made for documents and no documents were found.

I have no documentation on this account other then the summons and discovery they sent and I answered.  They have not sent me anything to prove this account belongs to me, so I believe this is a fishing expedition, but I have no idea how to answer it or what to file with the court.

 

I am in California and my court date is in September.

 

I have sent them a disc 015 and I have not received an answer to it yet, they have another 7 days left in the time period.

 

Is this regular procedure? or something else?  I am very nervous about going to court, I have never been before a judge not even with a parking ticket. I cant afford an attorney and I have been reading and trying to learn as much as I can about how to handle this. Any advice is welcome.

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If you conducted a reasonable search and could not find those items during discovery, then certainly you won't have them for trial either :)

 

I haven't seen a thread where a plaintiff made these specific requests, I don't know if it is unusual or not, or if there is anything tricky about it.

 

One way I think you can address your nervousness over appearing in court is to sit in on a few cases yourself. Check your judges docket and try to find some debt collection trials to watch. You can get a feel for the procedure as well as how your judge handles the room.

 

The plaintiff will most assuredly attempt to us a CCP 98 Declaration (or Affidavit) in Lieu of Testimony, have you received that yet? If they intend to use one, they are required to serve it (mail it) no less than 30 days before trial. You'll want to subpoena that person, be on the lookout for it.

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Thank you, I plan to attend trial for a couple of days just so I can see how it works and make myself more comfortable with the environment.

 

I have not received a CCP 98 Declaration or Affidavit in Lieu of Testimony.   Besides the actual Summons, I have received,

 

1. Request for Production of Documents, A Request for Admission, and a Form Interrogatories - Limited Civil Cases which I answered.

 

2. In May I received a Notice of Date, Time and Place of Court Trial on pleading paper that I didn't think to answer, they gave me the trial date when I filed my Summons answer at the Superior Court, maybe I should of answered that? Anyways too late now.

 

3. In August I received this Disc-015 or CCP 96 Notice in Lieu of Subpoena to Compel Evidence Before the Court and to Produce Books Documents and Other Things which I need to answer by the 21st.

 

I haven't received an answer yet to my Disc-015 Request for Statement of Witnesses and Evidence yet, they have another 7 days. 

 

It was my belief that they only had to list the witness on the answer to that form.

 

My trial date is now less then 20 days away.

 

They also call me once or twice a week and don't leave a message, I am guessing they want me to settle before trial. I haven't answered because I am afraid I might say something that will hurt me in trial.

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Stand strong. Bring in what ever the JDB sent you. If they ask why you didn't bring in anything else, you say I have no records of this alleged account, I do not recall this account. I show no payments to this alleged account.

How long to your bank statements go back if you look them up online? Would they show any payments? If not you can say I only have access to any banking information that goes back to xx/xx/xxxx and they show no payments. The records requested if they exist should be available from plaintiff from plaintiffs own records.

They are trying to get you to prove their case for them.

Is the disc 015 California's request for a ccp96? They can only use what they send you in that request. Don't forget to subpoena the witness listed in that ccp98.

Their ccp96 needs to include not only the witness name and where they can be served 20 days prior to trial, but any evidence they plan to use.

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Oh and don't let them ask for a continuance, there is a statue for that, not allowed if objected to. If the judge tells you ok, no continuance but I will let the ccp 98 affidavit in, you object to that also, some of the Cali judges have been pulling that one. Look up the statues for those 2 things so you can use them in your objections. You must tie the courts hands so that if the judge does let it in you can make an appeal able record.

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The Disc-015 is the CCP 96. @crazy88, most people here refer to it as CCP 96.

 

Witnesses they list on a CCP96 response are a different story than the witness they'd name in a CCP 98 Declaration/Affidavit. Witnesses they list in a CCP 96 response are the people they indicate they may bring to trial, you don't have to subpoena those people - the only testimony they can submit is live testimony by showing up - in that case you would just need to be prepare to cross-examine them.

 

CCP 98 means they have a witness who is attempting to submit written testimony instead of showing up. So if they are submitting a CCP 98, you would need to subpoena that person because it's your right to cross examine them. If you don't subpoena them, the court can admit their testimony which can be very damaging to you, if not a case-killer for you. BUT - it sounds like they have not supplied a CCP 98 to you. It's rare that they don't use the CCP 98, so double check your mail and anything they have sent you and ensure you haven't missed it.

 

By the way, we have no real details of your case: who the plaintiff is, OC or JDB, amount. etc. Those details can be important to the advice you might receive. Consider answering these questions in posting here: http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/. For now on, anything related to this case, questions, etc, should go in this thread - will be easier for the CIC to keep up.

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1. Who is the named plaintiff in the suit?

Me

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

Nelson and Kennard

3. How much are you being sued for?

<3000

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

 Razor Capital/GE Bank

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

summons

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

in person

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

yes

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?

Calironia

10. When is the last time you paid on this account?

unknown but not outside of SOL

11. What is the SOL on the debt? 4yrs

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).

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 contact from Razor Corp before suit so unable to send DV letter

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

none but Account Stated

 

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You are the defendant, not the plaintiff. Who is suing you? Not the attorneys but the plaintiff?

Also they usually include the ccp98 in your ccp96, the ccp98 is the affidavit they want admitted. That is who you want to subpoena.

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Sorry, I am afraid of over-sharing, when I first got the summons, in my naivete I posted exact information on another forum, and have now become concerned that they will use it against me. I didn't admit to owning the credit account but I did reference it as I remember it being a xxxxx dept store. So now that they have subpoenaed me to be a witness I am freaking out a little.

 

Thanks for all your answers and advice I really do appreciated it.

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Here is the Rule of Court regarding continuances.  It is very favorable to you and very strict on any party who wants one.  It requires a written motion supported by a declaration showing good cause.  Waltzing into court and asking for one on the day of trial doesn't cut it:  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

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I received a Disc 015 and a Notice in Lieu of subpoena to compel attendance before the court and to produce books, documents or other things.  it specifies;

 

1. Original Contract

2. Account application

3. Disclosure statement

4. All statements of account

5. All correspondence by and between Defendants and Plaintiff or Plaintiff's attorney;

6 Any and all evidence of any credit or payment made on this account;

 

In discovery I answered that a reasonable search was made for documents and no documents were found.

I have no documentation on this account other then the summons and discovery they sent and I answered.  They have not sent me anything to prove this account belongs to me, so I believe this is a fishing expedition, but I have no idea how to answer it or what to file with the court.

 

I am in California and my court date is in September.

 

I have sent them a disc 015 and I have not received an answer to it yet, they have another 7 days left in the time period.

 

Is this regular procedure? or something else?  I am very nervous about going to court, I have never been before a judge not even with a parking ticket. I cant afford an attorney and I have been reading and trying to learn as much as I can about how to handle this. Any advice is welcome.

 

 

(Like the DISC-015 you sent,) the DISC-015 that you received requires that you inform plaintiff of any documents or witnesses you intend to introduce at trial.  There probably are none, in which case you don't even have to respond.  (Any docs/witnesses you'll use will likely be for impeachment, and those don't have to be included in any response.)

 

The DISC-015 you sent, however, they'd better be responding to (on time).  When they do, you'll want to prepare your objections to all of it.  Study up on hearsay, biz records exception, etc.

 

Nothing especially unusual about the notice to produce at trial; if you don't have the requested docs, just say so at trial if asked. If the request(s) aren't specific enough to determine whether you have the docs, you should serve an objection, then they can motion to compel if they want to.

 

As RyanEX suggested, you should sit in on a few trials.  If you really don't want to go to trial, go ahead and return a call from the lawyer - they probably want to know what you want to settle things.  Answer: dismissal with prejudice.

 

Good luck!

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I received a Disc 015 and a Notice in Lieu of subpoena to compel attendance before the court and to produce books, documents or other things.  it specifies;

 

1. Original Contract

2. Account application

3. Disclosure statement

4. All statements of account

5. All correspondence by and between Defendants and Plaintiff or Plaintiff's attorney;

6 Any and all evidence of any credit or payment made on this account;

 

In discovery I answered that a reasonable search was made for documents and no documents were found.

I have no documentation on this account other then the summons and discovery they sent and I answered.  They have not sent me anything to prove this account belongs to me, so I believe this is a fishing expedition, but I have no idea how to answer it or what to file with the court.

 

I am in California and my court date is in September.

 

I have sent them a disc 015 and I have not received an answer to it yet, they have another 7 days left in the time period.

 

Is this regular procedure? or something else?  I am very nervous about going to court, I have never been before a judge not even with a parking ticket. I cant afford an attorney and I have been reading and trying to learn as much as I can about how to handle this. Any advice is welcome.

This is normal. This is their last try to get something out of you since you were able to not provide anything during discovery. The JDB I had asked for income tax return's, ss#, cdl, etc...and I was able to avert this as well.

 

They want you to prove their case. Doing a good job.......keep it up...

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Okay so I sat in on court this morning. When the Clerks office opened I looked at the board where the courts schedule is posted as per the helpful employees at the information center instructed me, Of the 15 or so cases on the docket only 5 were collections limited civil cases, out of the 5 civil cases, 3 were dismissed in the last week or so. 

 

Of the 2 left the Plaintiffs were Capital One Bank and Midland Funding.  The Capital One was dismissed without prejudice right before court started. 

 

The Midland Funding defendant had an attorney present but did not appear in court, Before court started the two attorneys stepped out in the hall to discuss something, I assume settlement, because about 5 minutes later in the court room before the court begin, they had a short conversation about the defendant saying no and how the case was going to go for the Plaintiff.

 

So they call this case, the plaintiff's attorney submits a CCP98 into evidence.  The Judge asks the Defendants Attorney if he has any objection, the Defendants Attorney says no objection. The Judge asks If the Defendants Attorney has "an affirmative defense", the attorney says no. Judge rules in favor of the Plaintiff for $9000 + 300 court costs.

 

The docket was small, the room almost empty, court was over by 9:45 (started at 9). The same attorney handled all the cases that I saw today including the Civil Law and Motion and the Claims of Exceptions. I thought that this was a little strange being all the Plaintiffs were different, All the defendants were in pro per except the one for the Midland case.

 

I'm not as nervous, I'd like to observe a better case with the Defendant in pro per.  The court schedule only has one or two each day listed, and there's no way of knowing until I get there. Now I just need to prepare and practice. I'm visualizing the word Dismissed penned in next to my case number when I show up :)

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Sad. I can think of countless members on this board who could have handled business better than that lawyer. It's a shame the defendant put their trust in someone who didn't even know to attack a CCP 98. crazy88, you'll do better when your time comes. I bet the Capitol one case dismissed before trial was due to a MIL/Objection to CCP 98 (or other evidence) that was filed prior to trial. You should look up the online case file (if you can acess it) and see what was filed in that one.

 

Was this the courtroom of the judge that is assigned to your trial?

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So they call this case, the plaintiff's attorney submits a CCP98 into evidence.  The Judge asks the Defendants Attorney if he has any objection, the Defendants Attorney says no objection. The Judge asks If the Defendants Attorney has "an affirmative defense", the attorney says no. Judge rules in favor of the Plaintiff for $9000 + 300 court costs.

 

 

this is so sad. Before finding this forum and attorney i called for cousultation advised me to file a general denial to the complaint and just settle the matter. I am very glad i found this place.

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"So they call this case, the plaintiff's attorney submits a CCP98 into evidence. The Judge asks the Defendants Attorney if he has any objection, the Defendants Attorney says no objection. The Judge asks If the Defendants Attorney has "an affirmative defense", the attorney says no. Judge rules in favor of the Plaintiff for $9000 + 300 court costs."

Wow. The conduct of Attorneys representing the JDBs often seems like an embarrassment to the legal community. As a pro se, I've often wondered... what makes the JDBs feel so emboldened as to believe they can get away with anything in front of a Judge?

Cases such as this must feed the belief of JDB attorneys that the majority of Defendants are basically helpless and easily bluffed inside a courtroom. Sometimes even with representation.

It's interesting to observe how quickly JDB attorneys become uncomfortable and defensive once you begin citing the Codes, Rules of the Court, and Case Law, identifying obvious deficiencies in a JDB attorney's casework for a Judge. They certainly appear in over their head at that point.

It would be fun to be in a Courtroom sometime and just sit back and watch Calawyer take it to them. :-)

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 I bet the Capitol one case dismissed before trial was due to a MIL/Objection to CCP 98 (or other evidence) that was filed prior to trial. You should look up the online case file (if you can acess it) and see what was filed in that one.

 

Was this the courtroom of the judge that is assigned to your trial?

First, yes this was the court room assigned to me. I don't know if it will be the same judge.

 

Here is the info from the case that was dismissed right before court; I don't see anything that would cause them to dismissed, but I am not an attorney :-)

 

Histories (Dates listed in descending order)

08/20/2014 CAUSE CALLED AT 08:30A M, IN DEPT. SEY , HON. DANIEL

P. RAMIREZ, JUDGE PRESIDING FOR COURT TRIAL. ON

PLAINTIFF'S MOTION, COURT ORDERS CASE DISMISSED WITHOUT

PREJUDICE. -PLAINTIFF TO GIVE NOTICE.

08/20/2014 CASE FILE RETURNED TO CIVIL DEPARTMENT FROM COURTROOM.

12/26/2013 NOTICE OF ENTRY OF JUDGMENT OR ORDER FILED.

11/22/2013 CAUSE CALLED AT 08:30A M, IN DEPT. SEY , HON. OLIVIA

ROSALES, JUDGE PRESIDING FOR HEARING RE: MOTION TO DEEM

MATTERS ADMITTED AND REQUEST FOR SANCTIONS; . MOTION IS

GRANTED. THE COURT DEEMS ADMITTED THE TRUTH OF FACTS

SPECIFIED IN THE REQUEST FOR ADMISSION, FURTHER, THE

COURT ORDERS DEFENDANT, TO PAY MONETARY

SANCTIONS IN THE SUM OF $120.00 TO PLAINTIFF WITHIN 60

DAYS. CLERK GIVES NOTICE.

11/22/2013 MINUTE ORDER AND CLERK'S NOTICE OF RULING MAILED TO ALL

PARTIES. CLERK'S CERTIFICATE OF SERVICE FILED.

11/22/2013 CASE FILE RETURNED TO CIVIL DEPARTMENT FROM COURTROOM.

09/30/2013 NOTICE OF MOTION TO DEEM MATTERS ADMITTED AND REQUEST FOR

SANCTIONS , DECLARATION, AND POINTS AND AUTHORITIES IN

SUPPORT THEREOF FILED.

09/03/2013 MINUTE ORDER AND CLERK'S NOTICE OF RULING MAILED TO ALL

PARTIES. CLERK'S CERTIFICATE OF SERVICE FILED.

09/03/2013 CASE FILE RETURNED TO CIVIL DEPARTMENT FROM COURTROOM.

08/29/2013 CAUSE CALLED AT 01:30P M, IN DEPT. SEY , HON. HOWARD

L. HALM, JUDGE PRESIDING FOR HEARING RE: MOTION TO

COMPEL DEFENDANT'S RESPONSES TO PLAINTIFF'S SPECIAL

INTERROGATORIES . MOTION IS GRANTED. DEFT.TO ANS. W/N 20

DAYS. SANCTIONS GRANTED, DEFT TO PAY $285.00 W/N 30 DAYS.

MOT FOR ORDER DEEMING ADM ADMITTED AND FOR SANCS IS OFF

CAL, NO FILING FEES PAID. TRIAL IS SET FOR 08-20-2014 AT

8:30 A.M. IN DEPARTMENT SEY.

08/29/2013 MATTER SET FOR COURT TRIAL ON 08/20/14 AT 08:30A M, IN

DEPT. SEY .

08/29/2013 ORDER RE: GRANTING PLAINTIFF'S MOTION TO COMPEL DEFENDANT

TO ANSWER SPECIAL INTERROGATORIES AND FOR SANCTIONS.

SIGNED BY HOWARD L. HALM, JUDGE AND FILED.

07/26/2013 NOTICE OF MOTION TO COMPEL DISCOVERY RESPONSES AND

REQUEST FOR SANCTIONS , DECLARATION, AND POINTS AND

AUTHORITIES IN SUPPORT THEREOF FILED.  MATTER SET FOR HEARING ON 08/29/13 AT

08:30A M, IN DEPT. SEY .

03/30/2013 * EFFECTIVE 04/29/2013

01/23/2013 ANSWER RECEIVED .

01/23/2013 GENERAL DENIAL FILED 

01/23/2013 ORDER TO SHOW CAUSE HEARING IS VACATED, RESPONSIVE

PLEADING HAVING BEEN FILED, CASE REMAINS ON CALENDAR FOR

A NON-APPEARANCE CASE MANAGEMENT REVIEW ON 06/27/13 AT

08:30A M, IN DEPT. CLK

01/11/2013 DECLARATION OF MAILING FILED.

01/11/2013 DECLARATION RE: DUE DILIGENCE FILED.

01/11/2013 PROOF OF SERVICE OF SUMMONS & COMPLAINT; OSC/CASE

MANAGEMENT REVIEW NOTICE, NOTICE OF CASE ASSIGNMENT, ADR

PACKAGE SERVED ON 01/03/13 BY SUB-SERVING TRISHA DOE

FILED. COSTS OF $62.50 .

12/24/2012 COLLECTIONS CASE COMPLAINT FILED PURSUANT TO CRC 3.740. RN

COM193127007.

12/24/2012 SUMMONS ISSUED.

12/24/2012 SUMMONS FILED.

12/24/2012 ORDER TO SHOW CAUSE HEARING/CASE MANAGEMENT REVIEW SIGNED

AND FILED BY ROBERT ARONOFF, JUDGE PRO TEMPORE TO SHOW

WHY SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO FILE

PROOF OF SERVICE PURSUANT TO CRC 3.740(E). MATTER SET FOR

HEARING ON 06/27/13 AT 08:30A M., IN DEPT. 00N .

CERTIFICATE OF MAILING FILED.

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So I received the answer to my CCP96 today. They list the witnesses that they intend to call as;

 

1 Custodian of Records for Razor Capital LLC, c/o Nelson & Kennard

2. Custodian of Records for GE Capital Bank, c/o Nelson and Kennard

3, Me

 

The evidence they list is

 

1. Bill of Sale and Chain of tittle for the account from GE Capital Retail Bank to Plaintiff

2. Application for Credit (At the time of serving this document Plaintiffs Counsel is not in possession of this document)

3. Terms and Conditions governing the use of the credit card

4. Statements of account (At the time of serving this document Plaintiffs Counsel is not in possession of this document)

5. Copies of payments made on this account (At the time of serving this document Plaintiffs Counsel is not in possession of this document)

6. Correspondence between Plaintiff and Defendant (At the time of serving this document Plaintiffs Counsel is not in possession of this document)

7. All discovery adduced between the parties.

 

Plaintiff reserves the right to introduce any additional documents that become available after the service of this document.

 

The Credit terms sent are the generic JC Penney terms from 2010

 

The Bill of sale is a badly photocopied 7 page document that says the same thing with different signatures, Like a form letter almost, no account numbers anywhere on it.  It only identifies the "receivables set forth in the notification file (as defined in the agreement) delivered by seller to buyer prior to the purchase date and as further described in the agreement"

 

First question is how can that prove that the alleged account was in this group of receivables that was passed through 6 CA before it hit Razor?

 

Second, how can they prove the alleged account is mine without any other documentation? Or even that the amount of the account is correct?

 

Third, how can they reserve the right to add to evidence if it becomes available when the CCP96 says they cannot?

 

I have many more questions, but I'll leave it at that for now and get back to studying my objections.

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^^ Actually it looks like things didn't go so well for the good guys during the discovery phase. Plaintiff filed a motion to compel discovery at some point, later the judge granted their motion to have admissions deemed admitted and sanctioned the defendant. JDB probably had them up against the wall, maybe settled with them before trial.

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Couple of problems with their response, and I think this is good for you.

 

First, CCP 96:

CCP 96

(a) Any party may serve on any other party a request in substantially the following form:

 

TO: ____________________________________________ ,

attorney for ____________________________________:

You are requested to serve on the undersigned, within 20 days, a statement of: the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer or, if the documents are not available to you, a description of them. Witnesses and evidence that will be used only for impeachment need not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW.

( B) The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial, unless otherwise ordered.
© A statement responding to the request shall be served within 20 days from the service of the request.
(d) No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion.
(e) No request or statement served under this section shall be filed, unless otherwise ordered.
(f) The clerk shall furnish forms for requests under this rule.
(g) The time for performing acts required under this section shall be computed as provided by law, including Section 1013.

 

If "Custodian of Records" is all they wrote in the witness list, that's not good enough. The code is pretty clear they needed to provide you names and address. You have a right to prepare for your trial, that includes the identity of witnesses so you can research/prep for cross-examination.

 

Evidence list #'s 2,4,5,6 I don't think are good enough either. The code allows them to send you a description of documents if they do not yet have the item, but all they did was list what they are. Someone will chime in here I'm sure, but my understanding is you need an actual description (details, dates, content etc.) of what is in those documents, not just what they call those items. Again, you have a right to prepare and how can you possibly do that when they are just going to surprise you with everything the day of trial?

 

Basically, they sent you a response but they didn't comply with the code. Did they even serve it to you on time? > It needed to be placed in the mail by 20 days from the day you placed your request in the mail. Check their proof of service.

 

And as of yet you have not received a CCP 98 Declaration/Affidavit from them? Approximately how many days out from trial are you?

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