Getting Sued. Filed a generial denial. Now partly lost. Court in 4 months.

[jgonzzz 5]

Hi, I've been a lurker off and on for the past year and now it's crunch time. I was sued by a JDB on october 11th, 2013 and responded to the summons legally on dec 26, 2013. I filed a general denial(PLD-C-010) with one affirmative defense "plaintiff admits to purchasing debt allegedly owned by the defendant, causing plaintiffs injury to its own self, therefore is barred from seeking relief for damages." I then countersued for loss of consortium and sleep. I received a notice of a court trial on 1/29/15.

It's a little less than 4 months out. I figured it was time to start the discovery process or just do something. That's where I get a little lost. What should I be asking for? their business/lawyer license? Anything to send them on a time sync? And nothing in regards to the actual debt as that is their responsibility to furnish and I shouldn't lead them to furnishing that right?

I've tried finding the correct way to prepare documents based on my court and haven't had any luck. Is there a good resource for all things Los Angeles county? What should I be reading now?
 

Is 1/29/15 the actual court date, or just a pre-trial hearing?

Thanks in advance. Any help whatsoever is incredibly appreciated as all of this feels so overwhelming
 

1. Who is the named plaintiff in the suit?
Portfolio Recovery Associates, LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Hunt & Henriques, Attorneys at Law
3. How much are you being sued for?
$12,XXX
4. Who is the original creditor? (if not the Plaintiff)
US Bank 
5. How do you know you are being sued? (You were served, right?)
I was Served.
6. How were you served? (Mail, In person, Notice on door)
Left at Doorstep
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. they may have called, but I never answered any phone calls
9. What state and county do you live in?
California, Los Angeles County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Uncertain as of now, but when I originally checked, they filled within the 4 year SOL
11. What is the SOL on the debt?
4 years
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).

Last I heard, I filed a generial denial and they sent me a court date of 1/29/15

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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

I have not received an interrogatory. I filed a generial denial about a year ago. They have sent no proof other than a statement saying " Plaintiff purchased the account from the original creditor or its successor in interest. Plaintiff is the current account owner". They have sent me multiple letters offering to settle.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Nothing other than a statement saying they own the account.

[shellieh98 1,505]

Start by sending them a bill of particulars. There is an example of one in the thread pinned at the top by Astmedic's.

Read astmedic's thread, read a thread by Homelessinca, and read a thread by String. That will give you some direction, then come back here and ask questions.

 

ASTmedics thread  http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

Strings thread  http://www.creditinfocenter.com/community/topic/319956-sued-by-cach-llc-in-ca-update-i-win-its-over/

Homelessinca's thread  http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/

[1stStep 242]

If the summons was left on the doorstep, it does not qualify as legal service....but since you answered, that is a moot point.

 

 

 

However send a BOP - you put them on a 15 day clock to give you everything as to how the came up with the amount they are suing for.

[jgonzzz 5]

I sent them the BoP as well as a MC-040(change of address) on 11/7/14. They sent me a list of old statements to the correct address on 11/24/14. They also sent another package of statements to my old address on 11/20/14.

I think the old address documents are just a preview of what my be coming as it can't be allowed as they sent it to the wrong address, unless they filed that with the court(Which I wouldn't put past them even though it'll turn up with ccp96). Included in the other file is, account statements, plaintiff affidavit in lieu of testimony, bill of sale and assignment of assets, affidavit of claim( document saying that the employee of usbank is a keeper of the books, unable to locate credit card app, records are maintained in the regular course of business made near or at time of transaction, and things have been sold to PRA)

Essentially everything is all hearsay at this point in time as they haven't legally proved there was ever an agreement amongst other reasons that I'm making myself familiar with. I've been reading and rereading seadragons trial brief as that pertains 100% to my situation right now. 

I'm essentially just waiting til the 16th to send my ccp96. Then planning on subpoenaing any affiant of USBank. I'm debating whether or not I should send more discovery out this monday. I just don't want to get stuck compelling further answers from them and getting involved in more paperwork I'm not familiar with. I also don't want to let them know that I know their paperwork isn't worth jack. I'm looking to allocate that time to make myself more familiar with the law and actual trial in court as I think that's where I'm headed at this point.

Of course I'm absolutely open to any opinions and thankful for any further help. The hope I have found on this forum thus far is such a blessing. Thank you so much and Happy Thanksgiving!

[jgonzzz 5]

Sending out the CCP96 tomorrow. The form says "Do Not File with the court", This may be a dumb question, but I'm thinking I should file the Proof of Service with the court to cover my bases. Am I Right?

[HumgBird 41]

You should send with Proof of Service and keep that for your records

[jgonzzz 5]

I'm absolutely sending them the pos-040 along with the disc-015. I'm just thinking that I should file the pos-040 with the courts to keep my ducks in order?

[Anon Amos 2,247]

No need to file it with the court, just save a copy for your records. Send the disc-015 CMRRR.  It's the POS-030 that you use.

[jgonzzz 5]

Thanks for the response. I sent it overnight, that's why I used the POS-040 as I didn't see the overnight option on the 030. Back to researching and preparing for trial. Next on the agenda is the subpeona of the affiant + letter of objection to. 


couple questions- If they aren't available for service and I can't officially subpeona them. What happens if the witness still shows up to court? Do they need to let me know? It looks like they brought in a witness in a previous case here vs oldwoman.

Do I object on foundation that I wasn't given due process of the ability to prepare for trial because that the affiant wasn't at the signed location. Or are they able to bring him to testify now? Where I would essentially cross examine and prove hearsay as he isn't a custodian of records from OC.

2. Do I need to send a check to my server to give to the affiant ahead of time? Or is it as easy as a phone call to the sheriff department?
 

[Anon Amos 2,247]

If they send you a ccp98 declaration in lieu of testimony, yes would subpoena the declarant. Any witness they plan on calling must be disclosed in the ccp 96 response and needs no subpoena.

If they just show up with a witness you weren't notified of then you object as you said, you are being deprived of due process.

So you have no one to subpoena unless you receive the ccp98. IF They ask for witness fees at the time you are supposed to pay them but it doesn't come up much if ever. I don't think the amount exceeds $35 but no one ever sends a check.

[jgonzzz 5]

So I just discovered that they submitted their ccp98 with the court without serving me a copy. I'm going down to the courthouse tomorrow to request that document and to subpoena the affiant right away. 

And on a different note, I sent the ccp96 USPS overnight with RRR(It shows the received it next day) and it's 6 days past their time(22 days) to respond. I'm thinking that they either slipped up and waited too long or are simply ignoring my ccp96.

[jgonzzz 5]

They mailed the testimony in lieu to the wrong address. So Im thinking the ccp98 should be void, but I figure I should subpoena anyway. I'm also going to mail an objection to letter including this prior to trial.

I got the courts to issue the subpoena, but I ran into a problem.

The sheriff office will not serve because it is now 9 court days before trial due to holiday. Should I have a friend subpoena serve the subpoena or should I hire another company?

[sadinca 772]

They mailed the testimony in lieu to the wrong address. So Im thinking the ccp98 should be void, but I figure I should subpoena anyway. I'm also going to mail an objection to letter including this prior to trial.

I got the courts to issue the subpoena, but I ran into a problem.

The sheriff office will not serve because it is now 9 court days before trial due to holiday. Should I have a friend subpoena serve the subpoena or should I hire another company?

 

you could hire another company but it would probably take a few of days for them to serve and prepare the due diligence, a rush serve would cost a pretty penny.  are you in Orange county? I know of a certified server that served our subpoena and prepared the diligence with in 2 days period.  

 

if you are running out of time, as a last resort you can definitely utilize a friend to serve the subpoena, but make sure he or she comes along with you to trial, in case the plaintiff objects to the use of your friend to serve the subpoena.

[sadinca 772]

They mailed the testimony in lieu to the wrong address. So Im thinking the ccp98 should be void, but I figure I should subpoena anyway. I'm also going to mail an objection to letter including this prior to trial.

 

how convenient for them to make such "error" in sending the ccp98 to the wrong address.

 

have you prepare your objection to the CCP 98, yet?

[jgonzzz 5]

I'll be doing that first thing when I get home. They are asking to accept service in care of abc legal, in downtown la. Any referral would much be appreciated. If I have to pay a pretty penny so be it. It's much better than losing.

[RyanEX 899]

They mailed the testimony in lieu to the wrong address. So Im thinking the ccp98 should be void, but I figure I should subpoena anyway. I'm also going to mail an objection to letter including this prior to trial.

I got the courts to issue the subpoena, but I ran into a problem.

The sheriff office will not serve because it is now 9 court days before trial due to holiday. Should I have a friend subpoena serve the subpoena or should I hire another company?

 

Mailing it to the wrong address wouldn't make it void in itself, IMO - they can always serve it again to the right address.... However, the CCP 98 statute is pretty clear that they must serve a CCP 98 declaration at least 30 days before trial. Since JDBs usually wait until the last minute to serve CCP 98s, they may have screwed themselves if they are now within the 30-day window and trying to serve you at the correct address.

 

You may still need to play it safe and subpoena the witness. Hire a company with a registered process server if you can. If you use a friend, make sure they can appear at trial should the plaintiff's attorney want to call them to verify service. Subpoenas served (attempted to be served) by a registered CA process server stand on their own and don't require the server to appear in court - I don't know the code(s) to this, but worth looking around for.

 

Fees for service of process can be recouped.

[sadinca 772]

sorry, I do not know of anyone out there in LA. the guy I used only serves is OC.

 

make sure your objection notes that their "mistake" was extremely prejudicial in that it robed you of precious time in preparing for trial.

the fact that they did not reply to your ccp 96 request in time and their "mistake" should not look good in front of the judge.

[sadinca 772]

Subpoenas served (attempted to be served) by a registered CA process server stand on their own and don't require the server to appear in court - I don't know the code(s) to this, but worth looking around for.

 

Fees for service of process can be recouped.

I believe it is California Evidence Code Section 647: 647.  The return of a process server registered pursuant to Chapter 16 (commencing with section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in. the return.

 

caselaw supporting this fact: http://www.psinstitute.com/palmvyadegar.pdf   page 9, I think

[jgonzzz 5]

Thanks for response and help.

Good news. They were 1 day late with ccp96(I sent it overnight on the 12/17 and they responded 1/9). I will definitely be objecting to ccp96 to cut off their "or unless ordered for good cause on noticed motion."

Should I quote law cases in the letter or, per calawyer just "Write a letter saying it was late and you will take the position at trial that plaintiff should not be permitted to introduce documents or witness."


As I'm figuring out what to do about ccp98/96, I keep getting this idea in the back of my head that by filing this ahead of time, it may cause the plaintiff to dismiss before trial starts. I'd rather have this go to trial so I can cut off their ability to dismiss. As the goal is to dismiss WITH prejudice so it can't come back to haunt me as the alleged debts SOL isn't out yet.

I'm trying to figure out whether to make it look as I'm officially objecting with case law in the objection or just giving them notice that their witness didn't show and I'm objecting/ their ccp96 was late and I'm objecting. Granted it has the same effect of informing them, but it makes it appear less scary, doesn't reveal my hand right away, and they may be more willing to take it to trial. Or I'm probably just overthinking things lol. I just want this to be done with and gone forever, so I can move on with my life.

 

[jgonzzz 5]

Do I need to serve PRA a copy of the subpoena once it's completed?

[jgonzzz 5]

3 Days before trial. I've been studying case law and really understanding my objections pertaining to them. I've sat in on a couple trials and will be sitting in on more tomorrow. I feel comfortable with the process. 

What arguments should I expect from them and how should I counter them?

Any other advice is greatly appreciated. 

[Anon Amos 2,247]

Their argument is going to be the allegations in the complaint, the testimony in the ccp98, and the evidence they produce.

[jgonzzz 5]

Thanks for the response Anon. Will there be any case law that they will most likely cite to rebute my Objections that I should be aware of? I'm prepared to object like a madman to every piece of hearsay they allege, verbally and by paper.

Edit: Sorry, Maybe I should have been a lawyer... my instinct is to just reask the same question over again in a different manner lol

 

[sadinca 772]

here are two links that may help you detect hearsay as soon as you hear it.

 

http://www2.courtinfo.ca.gov/protem/courses/hearsay_1/01_01.htm

 

https://www.youtube.com/watch?v=FaCDUKoG_kk

 

did you read homelessincalifornia threat? he posted a nice cheat sheet of objections and caselaws

[jgonzzz 5]

I did, but sounds like I need to revisit it.