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Just received CCP98 from Plaintiff


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Hi all,

I just received a CCP98 from the plaintiff, Unifund. Do I still need to send them a CCP 96 to guarantee exclusions of anything outside of what they have already sent me?

Also, they included a CCP 96 for me, but I don't have any witnesses or evidence. What should I send back?

I'm preparing my trial brief and a MIL for an affidavit from the "Document Control Officer".

THANK YOU!

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Yes, definitely send the CCP96 and, of course, subpoena the CCP98 declarant (20 days before trial).

Personally I wouldn't waste the postage or energy replying to their CCP96, but many here recommend that you do reply - letting them know you'll use docs/witnesses for impeachment purposes only. Look at homelessinca's thread for sample language.

It is recommended that you file/serve an "Objection" instead of MIL. Same doc, just a different (and more appropriate) title.

Good luck.

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You should definitely send them your own CCP 96 request, there's a simple form for it here: http://www.courts.ca.gov/documents/disc015.pdf

The request needs to be served no more than 45 days or less than 30 days prior to the date of trial. If you have received a CCP 96 from them, then you're already in that window. Take care of this asap. Send it with a proof of service and send it CMRRR (certified mail, return receipt requested).

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You should definitely send them your own CCP 96 request, there's a simple form for it here: http://www.courts.ca.gov/documents/disc015.pdf

The request needs to be served no more than 45 days or less than 30 days prior to the date of trial. If you have received a CCP 96 from them, then you're probably already in that window. Take care of this asap. Send it with a proof of service & send it CMRRR (certified mail, return receipt requested).

 

Yup the 45 mark was 2 days ago, so I'll have it sent today.

Thank you!

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I am one that would recommend answering their CCP 96 request with just one simple line" "evidence and witnesses will be used for impeachment purposes only".Some lawyers don't like seeing that, and it lets them know that you will show up, and are going to challenge whatever they bring.

Excellent advice, thank you.

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  • 3 weeks later...

Have you sent a subpoena to  the affiant? If not, better do it now

Almost, from what @BrokenElephant has written about their dates, they are not in the 20-day window yet - but will be in that window in another 2-3 days. Should probably go ahead and get it prepared, etc.

 

BE, this is the subpoena you'd use: SUBP-001. To be valid, you'll need a sig & stamp from your court clerk on it. Here's an example of what that looks like (from the San Diego court). That one is available on the SD court website, maybe your court has a stamped version online as well, if not you'll have to go to the courthouse to get one.

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Hey Everyone,

 

Thanks for checking in, the trial date is the 21st. 

 

I'm a little confused as they have only listed me as a witness. CCP96 lists me as a witness, and then affidavit from Citi, some statements and a very nondescript bill of sale. 

 

I believe now I need to send an objection to the affidavit, but no subpoenas? 

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Affidavits are not admissible at trial.  See Elkins v. Superior Court.  You must do a quick objection to the affidavit.

 

No other witness was listed on the CCP 96 response?  Don't see how they can prove their case with an inadmissible affidavit and your testimony.  What do you know about the assignment?  What do you know about the total amount due?

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Affidavits are not admissible at trial.  See Elkins v. Superior Court.  You must do a quick objection to the affidavit.

 

No other witness was listed on the CCP 96 response?  Don't see how they can prove their case with an inadmissible affidavit and your testimony.  What do you know about the assignment?  What do you know about the total amount due?

 

So they did send me a CCP98 for someone familiar with the "business records" at the plaintiff, however that person was not listed in their CCP96 response. They did list an original Citibank affidavit in the response, but no other witnesses other than myself. 

 

The account was purchased twice, and neither bill of sale appears to have specific account information. 

 

Not sure exactly how they reached the amount, but they're claiming around $1300 plus fees and interest.

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who was named on their ccp98, it should say some addresses where the affiant can be subpoena. those addresses should be within 150 miles from the court address.

 

Yes- it is someone from the plaintiff familiar with their books and business, HOWEVER they were not listed as a witness in the CCP96 response.

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Yes- it is someone from the plaintiff familiar with their books and business, HOWEVER they were not listed as a witness in the CCP96 response.

 

They wouldn't be naming the CCP 98 declarant in the CCP 96 response, they don't intend on calling them for live testimony, that is what their CCP 98 is intended for: to get that person's testimony into the case via the CCP 98 Declaration. This is what they prefer. You, of course, have the right to cross-examine this person, which is why you need to subpoena them.

 

I imagine the CCP 98 Declaration was listed in the CCP 96 response?

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They wouldn't be naming the CCP 98 declarant in the CCP 96 response, they don't intend on calling them for live testimony, that is what their CCP 98 is intended for: to get that person's testimony into the case via the CCP 98 Declaration. This is what they prefer. You, of course, have the right to cross-examine this person, which is why you need to subpoena them.

 

I imagine the CCP 98 Declaration was listed in the CCP 96 response?

 

The CCP 98 Declaration was NOT listed in the CCP 96 response. Only the original Debt Affidavit from Citibank, which is out of state. 

 

This means that declaration can not be used as evidence, correct? If I do subpoena them, do I open up that declaration to be admissible?

 

Thank you!

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No.  The declaration will be admissible unless you subpoena the declarant.  Subpoena the declarant.

 

Thanks for the clarification. They are being served today. 

 

So does this mean evidence can be introduced that isn't included in the CCP 96 response? There is a decent amount of stuff missing from what they initially sent in discovery, that isn't listed in the CCP 96 or isn't as complete as it was in discovery. Not to mention to CCP 98 declaration was also not included in the CCP 96 response.

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Thanks for the clarification. They are being served today. 

 

So does this mean evidence can be introduced that isn't included in the CCP 96 response? There is a decent amount of stuff missing from what they initially sent in discovery, that isn't listed in the CCP 96 or isn't as complete as it was in discovery. Not to mention to CCP 98 declaration was also not included in the CCP 96 response.

 

you can consider CCP 98 as a plaintiff request to admit in court the affidavit of that person in lue of live testimony. it does not need be included in CCP 96 response. anything else, besides the CCP 98 that they try to introduce during trial that is not included in CCP 96, cannot be admitted, but you will have to raise that objection if and when it happens.

 

please, someone correct me if I am wrong.

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you can consider CCP 98 as a plaintiff request to admit in court the affidavit of that person in lue of live testimony. it does not need be included in CCP 96 response. anything else, besides the CCP 98 that they try to introduce during trial that is not included in CCP 96, cannot be admitted, but you will have to raise that objection if and when it happens.

 

please, someone correct me if I am wrong.

 

Thank you that makes plenty of sense now. It appears they have left out some things from both the CCP 96 and 98 that should help me out. 

 

I really appreciate your guys' input. I'll keep you up to date.

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Okay, here is 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 plaintiff did not include their CCP 98, declaration/affidavit in lieu of testimony, in their CCP 96 response, it should NOT be allowed into evidence.  The statute is very clear.  Now, the tough part, if your judge wants to allow it, you must object and argue that the court should follow the statute.

 

Good Luck,

 

rt

 

Just to be clear, you did serve them a CCP 96 correct?  If their response was to your CCP 96 request, I'm pretty sure the above applies.

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Okay, here is 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 plaintiff did not include their CCP 98, declaration/affidavit in lieu of testimony, in their CCP 96 response, it should NOT be allowed into evidence.  The statute is very clear.  Now, the tough part, if your judge wants to allow it, you must object and argue that the court should follow the statute.

 

Good Luck,

 

rt

 

Just to be clear, you did serve them a CCP 96 correct?  If their response was to your CCP 96 request, I'm pretty sure the above applies.

Hoping for the best and preparing for the worst.

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