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CCP 96 answered and I have big questions...trial date coming


xavi72
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I see JBD's and OC becoming a bit more savvy as the consumer increases their knowledge of procedures.  So I've been following the timelines set on astmedics thread and sent my CCP 96 to the plaintiff on a timely manner.  Got the plaintiff''s response in a timely manner as well but they included a set of all statements from a zero balance to the date the CC defaulted along with a customer agreement.  In addition, they have designated a few "legal specialists" who may possibly appear depending on their schedule. They mentioned five different persons and stated that all witnesses should be contacted through the plaintiff's attorney.  They provided their corporate office address which is within 150 miles of the trial court.

 

This is my second time around defending a lawsuit and the last CCP96 I sent, they provided a specific name and address.  Does any one have any suggestions on how to respond with the subponea?  Who do I subpoena and who are these legal specialist? My court date is exactly a month from now.  

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Lets clarify something prior to answering your question.  Most CCP 96 responses have a document that is called CCP 98 Declaration in Lieu of Testimoney, which is basically an affidavit that supports or authenticates all the statements  and cardagreement you recieved.

 

Are you saying they didn't supply this affidavit?

 

They simply gave you a list 5 people that may show up to trial?

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There was was no CCP 98 declaration included or any statement indicating authentication of the documents.  Their response only listed exhibit A, B, and C, which were the statements, card agreement and the 5 names of the legal specialist who may appear if their schedule permits along with a document named " plaintiff's responses to requests for statement of witnesses and evidence."  The specifically stated that all Capital One Bank witnesses should be contacted through their law firm.  

 

I've read some old threads where an individual had the same situation and ended sending a subponea to the same law firm I'm dealing with.  However, I have 5 potential "legal specialists" so does that mean I have to subpoena each and everyone of them individually?

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You don't need to subpoena anyone on a CCP96 witness list. They are saying they will produce them.

 

 

Does that mean they are not suppose to authenticate any of the documents?  I mean, who are these legal specialists? For all I know, they can be the janitors.  I would like to prepare myself by knowing what these specialist are going to be there for, especially not knowing if they have any personal knowledge of this alleged account.

 

After doing further research, I understand that any response to a CCP 96 request cannot be interpreted as a CCP 98 declaration. It is also common for a declarant to state in a CCP 98 declaration that the attorney's law office can be authorized to accept service of a subpoena.  So in other words, it appears I can't subpoena them but if I could, it would have to be served at the law office.

 

Has anybody experienced something similar?  It seems that they're one step ahead of my thinking here. 

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It's the same address I've used

 

Do a Google search of the law office address, see if it actually is a law office. In my case, the only address they've given me is a rented mailbox at a UPS store.

 It's the same address I've used before to send them my discovery and other documents so it's their actual office.

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Does that mean they are not suppose to authenticate any of the documents?  I mean, who are these legal specialists? For all I know, they can be the janitors.  I would like to prepare myself by knowing what these specialist are going to be there for.

 

After doing further research, I understand that any response to a CCP 96 request cannot be interpreted as a CCP 98 declaration. It is also common for a declarant to state in a CCP 98 declaration that the attorney's law office can be authorized to accept service of a subpoena.  So in other words, it appears I can't subpoena them but if I could, it would have to be served at the law office.

 

Has anybody experienced something similar?  It seems that they're one step ahead of my thinking here. 

 

You might be over-thinking this. If they have not sent you a CCP 98 Declaration in Lieu of live Testimony, then you don't have to worry about CCP 98, nor do you have to worry about subpoenas. They have indicated they might bring one (or all) of the 5 "legal specialists" they listed in the CCP 96 response. You just have to worry about dealing with these people if they do show > in other words, cross-examining them.

 

Since there is no CCP 98 involved, the easiest thing for you would be if none of these people showed up, therefore you wouldn't want to compel their attendance at trial with a subpoena.

 

If one (or more) do show up, then they would be showing up in an attempt to authenticate the documents they indicated in the CCP 96 response: the billing statements & the card agreement.

 

Don't really have any details to your case here. Are you being sued by a JDB or an OC?

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You might be over-thinking this. If they have not sent you a CCP 98 Declaration in Lieu of live Testimony, then you don't have to worry about CCP 98, nor do you have to worry about subpoenas. They have indicated they might bring one (or all) of the 5 "legal specialists" they listed in the CCP 96 response. You just have to worry about dealing with these people if they do show > in other words, cross-examining them.

 

Since there is no CCP 98 involved, the easiest thing for you would be if none of these people showed up, therefore you wouldn't want to compel their attendance at trial with a subpoena.

 

If one (or more) do show up, then they would be showing up in an attempt to authenticate the documents they indicated in the CCP 96 response: the billing statements & the card agreement.

 

Don't really have any details to your case here. Are you being sued by a JDB or an OC?

 

It's actually an OC.  The law firm is representing Cap 1.

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Does that mean they are not suppose to authenticate any of the documents?  

 

No it doesn't, Someone needs to show up to lay a foundation for and authenticate the evidence, as well as testify at trial.

 

If it's an OC; then they most likely can prove their case. It's just a matter of economics, and whether or not they will send a witness. I have seen 5 people fight Cap 1 and they dismissed every time rather than send a witness. That's what it's going to come down too. 

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There are threads on here where people beat Cap 1, but I can't remember right off hand (Umars is one member). You fight them like you would a jdb, but you don't bother fighting their standing to sue.

 

Anyone I ever worked with on an OC we just agreed that If the witness showed up the defendant would most likely lose, and it all comes down to whether or not they will go through with bringing a witness to trial. I've seen Cap 1 dismiss a $24,000 case.

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There are threads on here where people beat Cap 1, but I can't remember right off hand (Umars is one member). You fight them like you would a jdb, but you don't bother fighting their standing to sue.

 

Anyone I ever worked with on an OC we just agreed that If the witness showed up the defendant would most likely lose, and it all comes down to whether or not they will go through with bringing a witness to trial. I've seen Cap 1 dismiss a $24,000 case.

 

I am actually one  that has previously beat Cap 1.  As a matter of fact, this account is the same one that was brought into issue last time just different plaintiff's attorney (H & H).  The only difference is that the last time, the lawyers did attempt to use the CC98 as oppose to the present case I'm dealing with.  The evening before trial, they filed a request to dismiss without prejudice.  That is why this one is taking me for a loop.  They're not going to use an affidavit but instead possibly bring in the witness.  It seems like I"m left with fewer options than last time to defend this case (e.g. question personal knowledge/disqualify the witness).

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I am actually one  that has previously beat Cap 1.  As a matter of fact, this account is the same one that was brought into issue last time just different plaintiff's attorney (H & H).  The only difference is that the last time, the lawyers did attempt to use the CC98 as oppose to the present case I'm dealing with.  The evening before trial, they filed a request to dismiss without prejudice.  That is why this one is taking me for a loop.  They're not going to use an affidavit but instead possibly bring in the witness.  It seems like I"m left with fewer options than last time to defend this case (e.g. question personal knowledge/disqualify the witness).

 

It seems that H&H are intending on bringing a live witness, which may make it very difficult to win this time.  I would start doing some Google and Linkdin searches of the names they have given you to see if you can find any ammunition for cross examination....

 

OC with a real witness from the OC, not good for us.

 

By chance is this an account they purchases, example HSBC account that they rolled into the Cap One portfolio???

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It seems that H&H are intending on bringing a live witness, which may make it very difficult to win this time.  I would start doing some Google and Linkdin searches of the names they have given you to see if you can find any ammunition for cross examination....

 

OC with a real witness from the OC, not good for us.

 

By chance is this an account they purchases, example HSBC account that they rolled into the Cap One portfolio???

 

No, it appears to be strictly just a Cap 1 account.  BTW, I have searched the names of some of those witnesses and I have found their profile in linked in.  It does state they're legal specialists.  I also found a summary of what they do, which is why I think this one is going to be tough to beat.  I've been here in this forum off and on for about 2 years and never have I read a thread/post stating that a legal specialist might show up at the hearing without having to subpoena them.  Either the plaintiff is thinking that they have a better shot of winning by not cornering themselves with a CCP 98 or they really intent to bring a witness.  

 

Anyway, this is the summary of what legal specialist do at cap1:

 

Lead corporate witness for Capital One for both offensive and defensive litigation matters, appearing Nationwide at Trials and Depositions, along with Arbitration and Mediation hearings.

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Given this I would be prepared for two primary things:

 

1.  To Object to them attempting to enter any CCP 98 Declaration In Lieu of Testimony, from any of the 5 witness, at the time of trial.

 

2.  Start gathering some questions for cross examination, to attempt to discredit the legal speicalist.

 

How soon before your trial?

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Given this I would be prepared for two primary things:

 

1.  To Object to them attempting to enter any CCP 98 Declaration In Lieu of Testimony, from any of the 5 witness, at the time of trial.

 

2.  Start gathering some questions for cross examination, to attempt to discredit the legal speicalist.

 

How soon before your trial?

 

Thanks for your reply.  I have about a month before the trial.  I have a list of cross exam questions that I've picked up from this forum.  How would I go about objecting if they throw the whole CCP 98 at me at trial?  Since I can't subpoena them, would it be a matter of using oral arguments and point out cases like Target vs. Rocha, etc.?

 

I'm beginning to worry a bit here.  I'm not sure if I should hire a lawyer that will go to trial only..let him do the hard part.

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Read the CCP 98 statute and you will see what requirements have to be made. I doubt they would try to introduce a ccp 98 in lieu of testimony at trial; but If they did you would have plenty of objections just by the requirements of  the ccp 98:

 

1) they did not send it to you at least 30 days prior to trial.

 

2) they did not give you an address to subpoena an affiant or time to do so.

 

3) they did not have a deposition or give you the opportunity to attend one

 

4) affidavits are not allowed at trial, the case to cite is Elkins v Superior Court.

 

Read the ccp 98 statute. Just because they say they will bring a witness doesn't mean they really will. Sometimes there is no ccp 98 because they don't plan to go to trial with the case. Also, when they do plan on going to trial they will usually serve you with discovery request (although they have also sent discovery and still not gone to trial).

 

You still have time to prepare and learn. You're just getting cold feet which is understandable.

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@xavi72 I cross examined a live witness at my trial. I lost, but many would argue I shouldn't have with a different judge. I'm appealing. But you should prepare to cross the witness. Look them up on linked in, facebook, google, ect. Probably not much info, because these people are professional witnesses and hence don't have much info posted online. I posted my cross exam questions in a thread somewhere, check my content. There's a few other good ones on the board too (i borrowed heavily from those).

 

Look into the 1271 evidence code (business records exemption to hearsay) and the requirements. Think of how to disquailify the witnesses knowledge. Are the witnesses listed on the ccp 96 statement listed by name and address? IF not object under ccp 97. Being an OC it will be harder to beat their evidence and witnesses. Look into attacking each piece of evidence individually, the witnesses qualification to testify.

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Read the CCP 98 statute and you will see what requirements have to be made. I doubt they would try to introduce a ccp 98 in lieu of testimony at trial; but If they did you would have plenty of objections just by the requirements of  the ccp 98:

 

1) they did not send it to you at least 30 days prior to trial.

 

2) they did not give you an address to subpoena an affiant or time to do so.

 

3) they did not have a deposition or give you the opportunity to attend one

 

4) affidavits are not allowed at trial, the case to cite is Elkins v Superior Court.

 

Read the ccp 98 statute. Just because they say they will bring a witness doesn't mean they really will. Sometimes there is no ccp 98 because they don't plan to go to trial with the case. Also, when they do plan on going to trial they will usually serve you with discovery request (although they have also sent discovery and still not gone to trial).

 

You still have time to prepare and learn. You're just getting cold feet which is understandable.

 

Excellent points!  Those are spot on objections and have been duly noted.  I will have to reconfigure my trial brief but at this time I'm not quiet sure how to proceed since I have really nothing to defend and probably won't find out until trial.

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@xavi72 I cross examined a live witness at my trial. I lost, but many would argue I shouldn't have with a different judge. I'm appealing. But you should prepare to cross the witness. Look them up on linked in, facebook, google, ect. Probably not much info, because these people are professional witnesses and hence don't have much info posted online. I posted my cross exam questions in a thread somewhere, check my content. There's a few other good ones on the board too (i borrowed heavily from those).

 

Look into the 1271 evidence code (business records exemption to hearsay) and the requirements. Think of how to disquailify the witnesses knowledge. Are the witnesses listed on the ccp 96 statement listed by name and address? IF not object under ccp 97. Being an OC it will be harder to beat their evidence and witnesses. Look into attacking each piece of evidence individually, the witnesses qualification to testify.

 

I've been doing different types of searches but as you said, there is not a lot of information on them.  I've come across some good x exam questions and definitely adding them to my x exam question bank.  The plaintiff's response of my CCP 96 included names but no individual address for each of the possible witnesses.  Instead they stated that any contact to their witnesses be done through their office.  They did provide their address which from my understanding, is acceptable.  

 

Thanks for the info on the evidence code and ccp97; I will definitely do my research on this.  The only evidence that they are submitting is the statements and card agreement; how would you propose attacking each piece individually?  I'm not clear on what you were referring to.

 

In your case, did you subpoena the witness?  Was it a JBD or OC? I'm curious to know where your trial was held at (if you don't mind, can you pm me the county your case was tried at?).  

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@easy619

 

So with 1271 evidence code, this is the criteria that has to be met by the witness:

 

Evidence Code section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule ... if:

"(a) The writing was made in the regular course of a business;

"(B) The writing was made at or near the time of the act, condition, or event;

"© The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

"(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."

 

Meaning that if the witness can not prove any of the above, then any testimony becomes hearsay?

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