NewportSweetPea

moved out of state with case pending in CA - notice of hearing

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Here is a link to my original post regarding the case:  

 

http://www.creditinfocenter.com/community/topic/321967-replying-to-summons-from-pra-in-ca/

 

I filed my reply and fee waiver.  I had a fee waiver granted and it was waived as I was just laid off and had my letter with me.  I since had still not found a job, unemployment ended and had to move out of state or be homeless.  I am still unemployed.  

 

I never did notify the CA court system that I had moved but received a letter forwarded from my old address to me from the courts for a notice of hearing for case management conference next month.  I am unable to attend this as it is a financial hardship to fly in to CA for this.  

 

 

 

I tried calling the court for advisment and all they said was to go online.  I searched but did not see anything regarding this.  

 

Any suggestions?

 

 

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I just went into court access and saw that the lawyers H&H filed a case management statement.  I found a blank one online (attached)Case Management Statement.pdf but not sure if this is what I am to use.  I cannot and do not want to settle which is what they are requesting.  

 

It looks like I can also request arbitration, mediation, or ???? 

 

First off, I am not able to attend this court hearing.  It looks like I have an option via phone.  Is that a good idea?  I have no legal representation and cannot afford any.  I do not want to get racked under the coals.  

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Newport,

 

Shellieh is correct you should be able to attend the Case Management Conference via phone.  But you need to be thinking longer term, meaning how you will handle the trial date.  In many instances they will list you as a witness or request you be present for the trial.  Point is while you maybe able to get by on this Case Management conference, your goal of winning is going to decrease if you are unable to make court dates in the future.

 

Obviously, if you had an attorney, then they could appear on your behalf, but the amount of the case being sued upon makes getting an attorney unrealistic.  The attorney will cost more that the amount they are suing for...

 

Question# 1-  Do you still have family or friends that could or would file papers for your case in California????

 

Here is why I ask, HSBC which is the OC, from your original post, did have an arbitration clause.  I also believe JAMS was part of the clause.  The reason I mention this is that if you could file a Motion to Compel Arbitration with the court in California and you win the motion.  Then the Plaintiff would have to continue to pursue you in JAMS (arbitration).  This is useful to you based on the cost for them to pursue, but also because JAMS rules state that any hearing has to be in your home town. (words to this affect, actully has to do with the the Federal District which you reside) 

 

In any event, this would mean no more appearances in California courts if the otherside wants to continue.  They may bow out based on cost also.

 

Long story short IMO you need to learn about using Private Contractual Arbitration, based on the alleged Cardmember Agreement from HSBC.

 

Question #2-  Have you or the otherside participated in any discovery?

 

The reason I ask this question is that there is a certain point in the overall litigation of a case that a MTC Arbtration will not work.  Meaning both sides have used the courts jursidiction for to long, and it makes the argument for a change of venue to Private Arbitration extremely difficult.  I can assure you H&H will fight like hell to not let this case get moved, becasue they know the game is over if they loose such a motion.  Discovery is a key component of the litigation and if it has already transpired, then winning the motion will be difficult.

 

So you may have a few moves you can make, but need to have the answer to the quesitons above.  Really need to know and you will need to decide prior to Case Management conference, because you may want to drop the bomb in your CMC statement.....

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Skippy1960 -

 

 

To answer questions:

 

 

 

Question# 1-  Do you still have family or friends that could or would file papers for your case in California????

 

I do not have anybody in OC that I could ask to file papers for me.  I have friends but not that I could ask...  However, I do not think they would want to go to trial or arbitration - both are too costly for $1400 (amount of suit).

 

It looks like I can complete the CM statement and mail (certified of course).  I do not know exactly what to say on this.  H&H completed one that is on file with the court.  It said that it was sent to me, but I have not received it.  I do not think this matters.  Once determined how I complete the form, I will send to the court and to H&H.  H&H checked the box for settlement conference.  The options are as follows, do I check on of these? Based on what you stated, I would want "Binding Private Arbitration.  Do I state this in my statement now? or on phone?:

 

1) mediation

2) settlement conference

3) neutral evaluation

4) nonbinding judicial arbitration

5) binding  private arbitration

6)  other - ADR

 

 

 

 

Question #2-  Have you or the otherside participated in any discovery?

 

Neither party has participated in discovery.  I filed my reply in October and it has been silent ever since.  

 

 

What are my next steps.  My CM hearing is on 9/9 so I have to get this completed ASAP to get sent out.  

 

Grateful for your assistance!

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I am just starting to get my CM Statement started while using H&H's as a template. Below are sections that I need assistance in answering. 

 

This is what is stated in H&H CMS:

 

Page 2/5

 

4b. Provide a brief statement of the case, including any damages. 

      H&H Reply: This is a collection case based on the use of credit issued by Plaintiff.

      Principal amount owed is $1,4XX.XX

      Case was filed on XXX.  Plaintiff is ready for trial.  Please set case for trial at leasst 60-90 out due to heavy case calendar. 

 

Question?  they state that the credit was issued by Plaintiff.  The plaintiff is PRA not HSBC.  HSBC has written this debt off years ago. Can I use that somehow?

 

What do I reply in this portion?  The first two lines, leaving out request for trial?

 

Futher on page 2/5 is more boxes regarding trial.  Then:

 

9.  Preference 

    ____    This case is entitled to preference (specify code section):

    a)  ____  Alternative Dispute Resolution (ADR)

           1) parties represented by counsel:

           2) for self-represented parties 

   b ) Referral to Judicial arbitration or civil action mediation (if available):

         1) ____  This matter is subject to mandatory judicial arbitration ,,,,,

         2) ____  Plaintiff elect to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code...

         3) ____  This case is exempt from judicial arbitration under rule....

 

Page 3/5:  As I stated in my answer above, I am to check the box to indicate the ADR process that the party is willing to participate in, have agreed to participate in, or have already participated in.

 

1) mediation

2) settlement conference (this is what H&H elected)

3) Neutral evaluation

4) nonbinding judicial arbitration

5) binding private arbitration (is this what I elect??)

6) other 

  ADR

 

page 4/5:

 

12) Jurisdiction

       Indicate any matters that may affect the court's jurisdiction or processing of this case, and describe the status

        ____ bankruptcy

        ____ other (specify):   

     Status:

 

Can the Other jurisdiction be other since I have moved and it can now be in my current state?

 

Page 5/5:

18.  Other issues

       ____ The party or parties request that the following additional matters be considered or determined at the case management conference (specify):

 

      Do I mention anything here???  

 

Grateful for your assistance!!!

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I would think you have something on #12 Jurisdiction. You don't live there. I would challenge the jurisdiction

 

I don't know of or have heard of being able to challenge the jursidiction once the defendant has filed an answer to the complaint.  OP did live in the correct venue and answered the complaint in that venue/court.  It would prejudice the Plaintiff to say, sorry I answered the complait, but I have moved across the country, you will have to dismiss and refile in a state you don't know anything about.

 

I think the decision to move is at your own risk, in this situtaion....Hope I am wrong...

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I am just starting to get my CM Statement started while using H&H's as a template. Below are sections that I need assistance in answering. 

 

This is what is stated in H&H CMS:

 

Page 2/5

 

4b. Provide a brief statement of the case, including any damages. 

      H&H Reply: This is a collection case based on the use of credit issued by Plaintiff.

      Principal amount owed is $1,4XX.XX

      Case was filed on XXX.  Plaintiff is ready for trial.  Please set case for trial at leasst 60-90 out due to heavy case calendar. 

 

Question?  they state that the credit was issued by Plaintiff.  The plaintiff is PRA not HSBC.  HSBC has written this debt off years ago. Can I use that somehow?

 

What do I reply in this portion?  The first two lines, leaving out request for trial?

 

Futher on page 2/5 is more boxes regarding trial.  Then:

 

9.  Preference 

    ____    This case is entitled to preference (specify code section):

    a)  ____  Alternative Dispute Resolution (ADR)

           1) parties represented by counsel:

           2) for self-represented parties 

   b ) Referral to Judicial arbitration or civil action mediation (if available):

         1) ____  This matter is subject to mandatory judicial arbitration ,,,,,

         2) ____  Plaintiff elect to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code...

         3) ____  This case is exempt from judicial arbitration under rule....

 

Page 3/5:  As I stated in my answer above, I am to check the box to indicate the ADR process that the party is willing to participate in, have agreed to participate in, or have already participated in.

 

1) mediation

2) settlement conference (this is what H&H elected)

3) Neutral evaluation

4) nonbinding judicial arbitration

5) binding private arbitration (is this what I elect??)

6) other 

  ADR

 

page 4/5:

 

12) Jurisdiction

       Indicate any matters that may affect the court's jurisdiction or processing of this case, and describe the status

        ____ bankruptcy

        ____ other (specify):   

     Status:

 

Can the Other jurisdiction be other since I have moved and it can now be in my current state?

 

Page 5/5:

18.  Other issues

       ____ The party or parties request that the following additional matters be considered or determined at the case management conference (specify):

 

      Do I mention anything here???  

 

Grateful for your assistance!!!

 

Newport,

 

I am posting this for others that may read your thread, hoping they may learn from your experience.  First, we all know that controling when we need to move for important reasons, generally would not be changed for a civil lawsuit in the amount of $1400 bucks.  But in doing this the move has good consequences and possible negative ones as well.

 

You did a great job of answering the suit to make sure the otherside didn't recieve a default judgement.  After that, not proceeding and being proactive via sending a BOP, or Discovery Requests, may have been a mistake.  You have to realize the otherside files these suits all day long, everyday, for years, so they know exactly what they plan to do to win.  Obviously there plan to win, didn't include sending you any discovery. They have filed their CMC and are ready for trial in 60-90 days.

 

Aside from you not living where you can realistically defend the suit, by you not doing some of the standard steps, you have very few options.  Not being near the court makes many of these "hail mary type" actions unrealistic.  I mean we could tell you to file a MTC Arbiration, but if it goes to live hearing, you can't attend and you will likely loose the motion. 

 

You might be able to attempt to force the CCP98 affiant that you will recieve between 30-45 days prior to trial.  But this means trying to navigated the clerk to issue a subpoena and getting services attempted, but them when it is time to go to court you won't be there.

 

Basicly, what I am trying to say is, start saving your money and build yourself a lump sum of money to offer as a settlement.  I would say if you could put together 900 to 1000 dollars you might get them to settle.  Keep saving because if they don't want to settle prior to trial, they may want to post judgement.  Keep building that settlement fund.

 

Afterall, with a judgement in hand they will still need to track you down, then get the judgement perfected in the state you are in, then track down your job or bank accounts.  Point is that is alot of work, they might be more willing to take a sum of money to be done with it.

 

Sorry I don't have any other idea's for your circumstance.  Maybe others will have a better approach....

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Hmmm, thanks.

 

How should I respond and complete the CM Statement?  Should I do a BOP now?  Request private arbitration?

 

Currently, I have no means of even building a settlement fund.  I have absolutely nothing and if it wasn't for someone taking me in, I would literally be on the streets with a cardboard sign on the side of the freeway exit.  I have higher priority bills (IRS and student loans) once I am able to find employment.  Even if they get judgement for them, they won't get much with all the others garnishments.  I can't even get a $10 hour job.  I have two master degrees - most know I will be out there as soon as I find a position in my field.  

 

If this does go to trial, I can find a way there. But I would much rather go to arbitration - it is more expensive and for $1,400 is not worth it for them...I hope.  

 

Basically:

1) how do I respond to my CS Statement?  

2) do I send a BOP now?

3) since they are ready for trial, do I request discovery? or what information they have? 

 

Should I include my General Denial for you assistance?

 

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Here are the answer to your questions:

 

Basically:

1) how do I respond to my CS Statement? Why file anything?  I don't see a way to victory for you.  The best you can do is create leverage post judgment, in having a lump sum of money to offer that is less than the judgement amount.  As you have stated once they get a judgement and you have another job, they are 3rd in line to collect.  That could be years from now depending on the amounts to IRS and Student Loans, and the type of employment you find.

 

 

2) do I send a BOP now?  Same answer Why?  Even if you did send BOP and they answer what do you gain.  You will not be attending the trial from everything you have posted. No purpose other than you will have to give them a current address to respond to.(If they don't have this I wouldn't give it to them)  You give up your location that they may or may not have right now, and get nothing in return....

 

 

3) since they are ready for trial, do I request discovery? or what information they have?  Same answer as #2, Why?

 

Look when my wife and I defaulted on $72K dollars in credit card debt, I thought our financial lives had ended.  I am happy to report that is not the case.  You are fretting over $1400 dollars.  You are living with friends and have no employment.  Take all the efforts you would use on this and place it in another location.

 

Find that job and start somewhere, you can do it!  Focus on finding an income and let these rascals have their judgment.  In reality is worthless until until you have some assets.  Anytime you spend on this suit is time you aren't focusing on the thing that can change your entire life. JOB, JOB JOB.  I know it isn't easy, but the last time I was out of work, I was told your job is spending 40 hours a week, finding a job.  I did and so can you...

 

Let if go and concentrate your energy and efforts in another area, when you solve that area, you will be ready to tackle this in a year or two....

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Here are the answer to your questions:

 

You will not be attending the trial from everything you have posted. 

 

The OP just stated in the last post:  "If this goes to trial I can find a way there".

 

@NewportSweettPea   I personally at a minimum would answer the CMC statement and send a BOP.  CMC statement is not that hard to answer and you can use theirs as a template. A lot of the fighting is in paperwork and many cases are dismissed before they get to trial. I wouldn't want arbitration. Just my opinion. Good luck

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Can't advise whether to arbitrate, litigate, or walk away.  But if you decide to litigate, you'll need to find out whether your court handles telephonic appearance by direct call, or via a private service (http://www.courtcall.com/ccallp/main?c=CCHOME).
 
Also, OC courts allow efiling.  There are links to the Electronic Filing Service Providers at the bottom of this page:  http://www.occourts.org/online-services/efiling/efiling-civil.html

 

Both services (telephonic appearance and efiling) should honor your fee waiver.

 

Again, IF you decide to fight via court, I'd suggest consideration of one of the following  summary strategies:

 

Best chance of avoiding trial: BOP right away, RFP ("forward flow," from bill of sale), MTC (forward flow).  At CMC, let the court know that you're waiting for BOP response, and that some discovery may be necessary after that.

 

Least time and effort, but more likely to lead to trial: skip discovery, serve timely ccp96 request, subpoena ccp98 declarant. I would think that trial sooner than later is better here.

 

 

Afraid I don't know enough about arbitration to be helpful at all.

 

Good luck!

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Skippy,  WOW!  Thanks for your vote of confidence!  I never said I could not attend a trial court date, but I would like to avoid that!  If arbitration is in my rights, why not request that?  Why wouldn't I respond to the CM Statement?  I can at least attend by phone.  

 

String, thank you for your help!

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Another question that hasn't been answered.

 

They are claiming that the plaintiff issued me credit.  The plaintiff is PRA.  They never issued me credit.  HSBC may or may have not - I do not recall.  However, if they had, it has been written off by HSBC.  Isn't that a point of issue as well???  

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Another question that hasn't been answered.

 

They are claiming that the plaintiff issued me credit.  The plaintiff is PRA.  They never issued me credit.  HSBC may or may have not - I do not recall.  However, if they had, it has been written off by HSBC.  Isn't that a point of issue as well???

Yes. You need to challenge their standing and assignment of the alleged debt, or lack of.

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Skippy,  WOW!  Thanks for your vote of confidence!  I never said I could not attend a trial court date, but I would like to avoid that!  If arbitration is in my rights, why not request that?  Why wouldn't I respond to the CM Statement?  I can at least attend by phone.  

 

String, thank you for your help!

You have missed the point entirely to what I am trying to say to you. You have 2 Masters Degree's which says you are competent to learn and likely execute. So it isn't about whether I have a vote of confidence in you or your abilities.

It really is more about common sense. I have a list of problems to solve, and there are only so many hours is the day to impliment solutions. Why spend a minute on the item on the list that really makes no change to the overall life circumstances?

Even if you win there is no great change to your life cirmcustance. If you lose again no great change to your life circumstances. In esscense fighting this case is something to do with your time, you maybe bored, for all I know.

The reason I say this is your case is almost a year old in October. Now you show up and want to know what to do, when you could have been doing what you needed to do for months....

Given that I have clearly defined what I was trying to tell you, here are the steps you need to take to get your case into Private Arbtration and create the leverage.

1. I assume you are using CM form 110. Aside for completing the customary information related to the case at the top you need complete the following boxes or area of the form-

4B- You need to outline for the court the case, it is a debt collection case and the plaintiff lacks standing to sue. That even if they have standing you don't owe them any money.

6C-Defendant will not be ready for trial for at least 90 days, to allow defendant time to bring Motion to Compel Private Binding Arbitration pursuant to the alleged Credit Card Agreement the suit is based upon.

Page 3 of the CMC form, you need to check box 5 and check the box in secion 5 that says "Private Arbitration not yet scheduled"

Section 12- Check the box listed as "Other", then insert the following langauge. The alleged contract the action is based upon has a Binding Arbitration Claus, which the Defendant will Motion the Court to honor based on CCP 1281.2.

Section 17a Check the box (a)

Any other boxes you have complete are likely fine.

In a seperate post I will attached an example Motion to Compel that you will need to change to fit your case circumstances. You will need to get this updated and ready to file with 15 days. The court nor the Plaintiff are going to like this Motion, but they will at least have to rule on it one way or the other.

CCP 1281.2 is the governing statute of law that allows you to bring the motion, and forces the court to rule on it. There is a caveat in this statute that requires the otherside to has to have refused to arbitrate. This means you need to get them to tell you via phone or email or snail mail, we will not arbitrate.

It isn't a deal breaker, because they will file an oppostion to your motion which in esscense is a refusal. But it is always better to submit evidence in support of your motion that calls this particular point out.

So you said you want to continue, lets get started, or take my better advice and spend the time on something that will really make a difference!

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Again these are not turn key and will need to be changed to reflect your circustances. But they generally have the correct law associated with the Motion.

If you need some assistance I will lend a hand with the changes needed.

Here are the document for the MTC.

Redacted Notice of Motion and Motion to Compel Arbitration Cap .docx

Redacted Motion to Compel Arbitration Cap v 2.doc

Redacted Memorandum of Facts MTC.doc

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Thank you!  I will work on this tonight and tomorrow. However, I ask one last question about the direction:  do I request arbitration or try to fight based on HSBC closed and charged of the account.  Based on my credit report, an account with HSBC was opened in 2001 and charged off (no year given).  In June 2010, I was laid off and unemployed for 2 years and stopped making payments then.  According to credit report, PRA took claim of an account for amount in the lawsuit (but different than the HSBC charge off amount.  I have seen people go either direction and win.  

 

 

I went to storage earlier and just finished going through my box to find the file of the papers from last year.  My computer fried and lost the e-copies.  

 

My General Denial was as follows:

 

1. Plaintiff fails to state a cause of action against the defendant

2.  Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.

3.  The court would unjustly enrich the plaintiff by granting the relief sought herein.

4.  The plaintiff has not proven the cost of damages is accurate.  Defendant insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt. WHEREFORE, the defendant asks the Court for judgment.

 a. dismissing the complaint herein with prejudices.

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Charge off is just an accounting term used to move bad debt off the books, it doesn't wipe out the debt itself. HSBC can still collect on the amount, sell it, etc. Pretty sure there is nothing to attack in that regard.

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Thanks Ryan for the reply.

 

Skippy, to answer your question, yes, I had time but didn't.  A week after filing my general reply, I was laid off then diagnosed with cancer.  My world turned upside down and have been in just a reactive state.  This was not on the top of my mind until I got the letter about the CMC.  Yes, I should have been more proactive but I wasn't and now am in reactive mode.  I would like to fight and win this if I can ...or have it dismissed ideally, which seems to be the case usually with requesting to go to arbitration.  Based on HSBC agreement, arbitration was a choice I have, including JAMS.  From what I have read, PRA and H&H will back out.  If I request JAMS arbitration, then it must be honored by the courts.  However, PRA and H&H will not endure the costs of that especially for a $1400 case and dismiss.

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