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this is my case:

 

1. Who is the named plaintiff in the suit?  

    - Toyota motor credit

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

    - Patenaude & Felix

3. How much are you being sued for?

    - $1300 when the complaint was filed in 2007/ after default was a set aside they have increased to $2600

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

    - ToyotaMotor Credit, but in their cause of action they say they are the assignee for consideration

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

    - Summon was not served, filed motion to set aside default for no servicee

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

    - no service

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

    -  no

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, los angeles

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

    - According to their claim, in 2006

 

11. What is the SOL on the debt?

    - 4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)

    - Complaint filed: 01/2007; Summons & Complaint served: no
    - General denial (PlD-050 form) Answer filed: 05/29/13

    - Plaintiff's RFA, Special Interrogatories, and RFP served :no

    - Defendants Answers to RFA, Special Interrogatories, and RFP served:no

    - Defendant's RFA, Special Interrogatories, and RFP served:no

    - Plaintiff's Answers to RFA, Special Interrogatories, and RFP served :no

    - MSC scheduled for : never had one

    - Trial scheduled for 09/11/14

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.

    - Already responded

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Breach of Contract, Common Counts

  • on an open book account for money due
  • because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.
  • For money paid,laid out,and expended to or for defendant at defendants special instance and request.
  • Plaintiff entitled to attorney fees according to proof, in terms of contract and the automobile sales finance act


  •  17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

        - No.  The complaint is not verified.

    18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

        -no.

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

    When they filed for default judgement in 2007 this is what they included in summons:
  • Order granting copies in lieu of originals
  • Request for dismissal
  • Request for entry of default
  • Waiver of interest & attorney fees declaration
  • Affidavit in support of request for entry of default judgement* stated in affidavit they are unable to obtain the originals, there not lost just misplaced* for evidence code sect. 1553
  • Copy of a copy of a retail sales contract
  • Notice of plan to sell
  • Auction detail
  • Explanation of deficiency
  • Repo invoice
  • Order to show cause hearing

When I found out in 2013

 

Filed -MOTION TO SET ASIDE DEFAULT
AND DEFAULT JUDGMENT : MOTION IS GRANTED

 

Filed- NOTICE OF MOTION TO DISMISS WITH PREJUDICE

 

Order - MOTION IS DENIED./ TRIAL SET 7/2014

Filed - APPLICATION FOR EX PARTE ORDER RE: FOR CONTINUANCE ON
TRIAL HEARING

*They never gave notice*

 

 

APPLICATION GRANTED/ trial hearing continued to 9/2014

 

 

08/07/2014 NOTICE OF TRIAL FILED.

08/07/2014 NOTICE IN LIEU OF SUBPOENA TO APPEAR AT TRIAL FILED.

08/07/2014 PLAINTIFF'S TRIAL BRIEF FILED.

08/07/2014 DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT
TRIAL CC. 98 FILED.

08/07/2014 PROOF OF SERVICE RE: NOTICE OF TRIAL, NOTICE IN LIEU OF
SUBPOENA FILED.

In there trial brief they have added a different witness for declaration. They say that they appoint electronic document processing legal services to to accept service of process in this matter on their behalf. That dos not seem right to me. All help appreciated. Thank you kindly.

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Nope, look up target vs rocha which requires personal service. You should subpoena the person on the ccp 98, if they did not include an address within 150 miles from court, you can object to that affidavit, it shouldn't be entered into evidence. You don't have much time,

So who is actually suing you? You said it was assigned...are they not the true party of interest?

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this is my case:

 

1. Who is the named plaintiff in the suit?  

    - Toyota motor credit

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

    - Patenaude & Felix

3. How much are you being sued for?

    - $1300 when the complaint was filed in 2007/ after default was a set aside they have increased to $2600

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

    - ToyotaMotor Credit, but in their cause of action they say they are the assignee for consideration

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

    - Summon was not served, filed motion to set aside default for no servicee

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

    - no service

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

    -  no

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, los angeles

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

    - According to their claim, in 2006

 

11. What is the SOL on the debt?

    - 4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)

    - Complaint filed: 01/2007; Summons & Complaint served: no

    - General denial (PlD-050 form) Answer filed: 05/29/13

    - Plaintiff's RFA, Special Interrogatories, and RFP served :no

    - Defendants Answers to RFA, Special Interrogatories, and RFP served:no

    - Defendant's RFA, Special Interrogatories, and RFP served:no

    - Plaintiff's Answers to RFA, Special Interrogatories, and RFP served :no

    - MSC scheduled for : never had one

    - Trial scheduled for 09/11/14

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.

    - Already responded

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Breach of Contract, Common Counts

  • on an open book account for money due
  • because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.
  • For money paid,laid out,and expended to or for defendant at defendants special instance and request.
  • Plaintiff entitled to attorney fees according to proof, in terms of contract and the automobile sales finance act
  •  17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

        - No.  The complaint is not verified.

    18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

        -no.

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

    When they filed for default judgement in 2007 this is what they included in summons:

  • Order granting copies in lieu of originals
  • Request for dismissal
  • Request for entry of default
  • Waiver of interest & attorney fees declaration
  • Affidavit in support of request for entry of default judgement* stated in affidavit they are unable to obtain the originals, there not lost just misplaced* for evidence code sect. 1553
  • Copy of a copy of a retail sales contract
  • Notice of plan to sell
  • Auction detail
  • Explanation of deficiency
  • Repo invoice
  • Order to show cause hearing

When I found out in 2013

 

Filed -MOTION TO SET ASIDE DEFAULT

AND DEFAULT JUDGMENT : MOTION IS GRANTED

 

Filed- NOTICE OF MOTION TO DISMISS WITH PREJUDICE

 

Order - MOTION IS DENIED./ TRIAL SET 7/2014

Filed - APPLICATION FOR EX PARTE ORDER RE: FOR CONTINUANCE ON

TRIAL HEARING

*They never gave notice*

 

 

APPLICATION GRANTED/ trial hearing continued to 9/2014

 

 

08/07/2014 NOTICE OF TRIAL FILED.

08/07/2014 NOTICE IN LIEU OF SUBPOENA TO APPEAR AT TRIAL FILED.

08/07/2014 PLAINTIFF'S TRIAL BRIEF FILED.

08/07/2014 DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT

TRIAL CC. 98 FILED.

08/07/2014 PROOF OF SERVICE RE: NOTICE OF TRIAL, NOTICE IN LIEU OF

SUBPOENA FILED.

In there trial brief they have added a different witness for declaration. They say that they appoint electronic document processing legal services to to accept service of process in this matter on their behalf. That dos not seem right to me. All help appreciated. Thank you kindly.

Since they filed a Declaration of Plaintiff in lieu of Personal Service you will need to submit a Motion in LImine (MIL). Check your Court's website and determine how many days before trial you can submit to the Courts and determine how it should be served. You can also subpoena the witness in lieu of the declaration. Get your trial brief going as well. You don't have a lot of time.

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this is my case:

...

 

...

 

...

 

08/07/2014 NOTICE OF TRIAL FILED.

08/07/2014 NOTICE IN LIEU OF SUBPOENA TO APPEAR AT TRIAL FILED.

08/07/2014 PLAINTIFF'S TRIAL BRIEF FILED.

08/07/2014 DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT

TRIAL CC. 98 FILED.

08/07/2014 PROOF OF SERVICE RE: NOTICE OF TRIAL, NOTICE IN LIEU OF

SUBPOENA FILED.

 

In their trial brief they have added a different witness for declaration. They say that they appoint electronic document processing legal services to to accept service of process in this matter on their behalf. That does not seem right to me. All help appreciated. Thank you kindly.

 

So are they saying this different witnesses for the declaration is in addition to, or in place of, the original declarant?

 

I wouldn't think they could substitute or add a witness like that. Who ever that original witness was, they, presumably, complied with CCP 2015.5 and signed it under penalties & perjury laws of the state of CA, and then, presumably, complied with CCP 98 and served it upon @angel2014 at least 30 days before trial. This new witness they are trying to add to the CCP 98 did neither of those things.

 

Is the recommendation that angel2014 subpoena only the original witness? or both?

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They say that they appoint electronic document processing legal services to to accept service of process in this matter on their behalf

 

I would only subpoena the one who signed the Declaration in Lieu of and the location the declarant references in their document. Angel will need to mention that in the Declaration the witness said they can be served at one address but then the Plaintiff midstream changes the address to a different location thereby making it burdensome for the Defendant to make a determination.

 

But hopefully calawyer will chime in.

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Hey thanks for the responses I feel like I have family and hopeful!

 

Shellie – I thought Toyota was the original party but their statement in their cause of action- breach of contract says “ Plaintiff is the assignee for consideration of the contract

 

Helpme – I talked to clerk for judge she said motion in limine has to be filed 30 days before trial, im working on trial brief as best I can as we speak, and was thinking I should have sherriff’s serve tomorrow (meaning pay them for service tomorrow)

 

RyanEx – They never said that one was replacing the other. They just slipped her into the case in the trial brief, with a couple of extra, exhibits. The prior witness statement was in 2007. This new witness statement is this month added into the trial brief, they served this August 2014. I was thinking the same thing do I serve both. The first affidavit filed in 2007 reads - Affidavit in support of request for entry of default judgement{C.CP. 585 (d)] [C.C.P. 3287(a), 2983.2(a)(9)] Evidence Code, section 1553.  The second declaration by another person is the CCP 98 served 8/2014

 

Helpme – Yes they have two address, neither are home one says business, the other to accept service

 

Thanks I will await your replies

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In there trial brief they have added a different witness for declaration. They say that they appoint electronic document processing legal services to to accept service of process in this matter on their behalf.

 

I would say that accepting on "their" behalf is not the same as accepting on behalf of the ccp98 declarant, and I would subpoena the declarant at the address provided in the declaration. Only.  (Is it in CA, and within 150 miles of court?)

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I talked to clerk for judge she said motion in limine has to be filed 30 days before trial

See if you can get an "Objection" filed before trial (instead of MIL - same doc, different title).

 

im working on trial brief as best I can as we speak, and was thinking I should have sherriff’s serve tomorrow (meaning pay them for service tomorrow)

Generally, sheriff will get it done before trial, but not necessarily on the day you'd like. I'd use them anyway.

 

The second declaration by another person is the CCP 98 served 8/2014

This is the one I'd subpoena.

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Hey thanks for the responses I feel like I have family and hopeful!

 

Helpme – I talked to clerk for judge she said motion in limine has to be filed 30 days before trial, im working on trial brief as best I can as we speak, and was thinking I should have sherriff’s serve tomorrow (meaning pay them for service tomorrow)

 

Helpme – Yes they have two address, neither are home one says business, the other to accept service

 

Thanks I will await your replies

I would still recommend that you verify yourself and not rely on the clerk's response. MIL is known to be given at the threshold of trial but again as string mentioned about submitting "objections" you will still need to verify if you can do this. This info should be on your Courts website either under pre-trial/trial procedures.

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I have been recommending that People call it an "Objection to declaration of ___ in lieu of testimony (CCP 98)".  It isn't really a motion in limine because there is usually no jury trial requested.  And, you often don't get the proof of service of the subpoena  (or declaration of diligence) back from the process server in time to file a motion in limine under most local rules. 

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A new case was published yesterday that you should read.  You will want to include it in an objection to evidence if the CCP 98 witness is not to be found at the address stated in the declaration.

 

There is nothing inherently wrong in including a witness on the witness list other than the CCP 98 declarant.  But if you subpoena the CCP 98 declarant and someone else shows up, I would object like crazy.  A subpoena is not a request.  It is a Court order punishable by contempt.  And you went to great lengths and expense to obtain and serve it.  You are entitled to have that witness show up so you can question him/her about the statements made in the declaration.

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I have been recommending that People call it an "Objection to declaration of ___ in lieu of testimony (CCP 98)".  It isn't really a motion in limine because there is usually no jury trial requested.  And, you often don't get the proof of service of the subpoena  (or declaration of diligence) back from the process server in time to file a motion in limine under most local rules. 

Dear Calawyer/ Sir:

 

I was under the impression that I, as a defendant, would wait for the "declaration of diligence" then submit the copy of it along with Ojection to Declaration of___in lieu of testimony +MIL + trial brief .....say: 7-5 days prior trial date...IS THAT WRONG???

 

From your above comment, it seems it is wrong.

 

Then,...would you please guide us thru: WHEN to do WHAT....

 

Million thanks

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I was under the impression that I, as a defendant, would wait for the "declaration of diligence" then submit the copy of it along with Ojection to Declaration of___in lieu of testimony +MIL + trial brief .....say: 7-5 days prior trial date...IS THAT WRONG???

 

The declaration of diligence (or POS from server) should be attached as an exhibit to the Objection.  The Objection is used instead of a MIL.  In my case, the declaration wasn't rec'd in time to be attached to the Objection, so I wrote that I would have it at trial.  (I did have it at trial, and it was never an issue.)

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Dear Calawyer/ Sir:

 

I was under the impression that I, as a defendant, would wait for the "declaration of diligence" then submit the copy of it along with Ojection to Declaration of___in lieu of testimony +MIL + trial brief .....say: 7-5 days prior trial date...IS THAT WRONG???

 

From your above comment, it seems it is wrong.

 

Then,...would you please guide us thru: WHEN to do WHAT....

 

Million thanks

 

Brownie, the only change to your strategy is that we are now calling it an "objection" instead of an "MIL".

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Dearest Shellieh98, String, Anon Amos:

 

Thank you so very much for all of your clarification, indeed Calawyer told me once about how it should be instead of MIL, but i never "get it" / understood what calawyer means, especially when i read over and over "HomeLess" 's posting, inside there were attachment from Calawyer's Oppostion and then his "stuff",...

 

Is it safe that I label that as " Opposition to...." and then put: / MIL on the cover of the pleading paper just like what homeless did? Or it is NOT the proper LEGAL format?

 

Sorry for my stupid question(s), .....thanks 100,000,000 times in advance !

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You probably could call it an MIL and be OK; but If you don't call it an MIL anymore it is actually considered safer (per Calawyer instruction) to call it an "objection to.....(whatever they title the ccp 98 declaration as)". After Homeless won his case a few people had trouble getting it in as an MIL for various reasons (no jury, local rule requiring 30 day notice etc.) By calling it an objection you get around that. And it cures an earlier concern you had; it gives you more time to get the declaration from the process server.

 

Don't worry, after all this work you put into it, we're not going to let you blow it on a technicality when the time comes. Just keep us informed on what you receive from them.

 

And as Shelieh said, always check your local rules.

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