Dotheyeverstop?

Sued by Midland Funding Court date in 31 days....

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I need to add the information regarding the subpoena  BUT I finally finished my Objections to Declarations doc!!!   Yeah.   Now to get the proof of lack of service and mail the papers.   Do I need to attach a copy of the declaration itself?   I assume since the court has the papers that Midland filed I only need to attach my lack of service paper.

 

Now for the trial brief....fun! 

AAAAAREDACTED OBJECTIONS.docx

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You want to add the CACH v. Rodgers case right after you talk about Target Bank.  Rodgers is now "the very recent case"

 

Here is a link to my post:  http://www.creditinfocenter.com/community/topic/324516-target-v-rocha-comes-to-southern-california/

 

Here is another link to the case:  http://caselaw.findlaw.com/ca-superior-court/1676824.html

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be prepared in case a live witness shows also. make sure to bring up the fact that the accounts seller gave no basis for the accuracy or trustworthiness of the accounts in their bill of sale they make no warranty so they have no reason to believe the records are reliable.

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@calawyer   Is this cited correctly?

This is precisely the conclusion reached by the Court in the very recent case, CACH LLC. V. Rodgers (August 5,2014),_Cal. App. 4th Supp._(14 Cal Daily op. Serv. 10,139) which upholds the decision in Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1.  There, Target National Bank (“Target”) sued Ms. Rocha for an alleged credit card debt exceeding $7,000.  Shortly before trial, Target served a declaration in lieu of live testimony at Trial executed by a Tiffany Lewis of Minneapolis, Minnesota.  Because she resided out of state, Ms. Lewis gave the address of her counsel as a place where she could be served.

 Thanks  @Seadragon I plan to use ASTMedic and Homeless's examples to write my trial brief and create my folder.   Also I did serve a ccp96 And should have the answer by day -10.   I may hold off on filing this objection until day -15 as that's half way between when I received it and trial, and only 5 days before the cp96 answer is due, if the witness isn't listed...can he testify?

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Thanks again @Seadragon I will definitely wait until Wednesday (day -18)  to mail the Objection (have to wait for the subpoena anyway) that will put it in their hands on Thursday or Friday.   The CCP 96 answer  is due 20 days after delivery  (the following Thursday 10/30) so at that point I should have a pretty clear idea of what to expect.  I can't see how they'd get a continuance as everything has been timely on my end, I'm thinking they will make a settlement offer next

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CACH v. Rodgers now has an official cite.  It is CACH. LLC v. Rodgers (2014) 229 Cal.App.4th Supp. 1.

 

Try this in your brief instead:

 

      This is precisely the conclusion reached by the Court in Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1.   There, Target National Bank (“Target”) sued Ms. Rocha for an alleged credit card debt exceeding $7,000.   Shortly before trial, Target served a declaration in lieu of live testimony at Trial executed by a Tiffany Lewis of Minneapolis, Minnesota.   Because she resided out of state, Ms. Lewis gave the address of her counsel as a place where she could be served.

     The Court held that Target failed to comply with CCP Section 98 and it was an abuse of discretion to introduce the declaration at trial.   Id. at p.7.   The Court reviewed the history of CCP Section 98 and noted the due process implications of presenting evidence by declaration at trial.   The Court concluded: “…….a party may only introduce a witness’s declaration if the opposing party had the opportunity to cross-examine the witness at deposition or could require the witness to be subject to cross-examination at trial.”

     The Court further found that giving an attorney’s address or other location where the witness does not actually reside, fails to comply with CCP Section 98. Id. at 7.   As the Court noted: “For all of the foregoing reasons, the Appellate Division concludes that the declaration offered by Target did not comply with Section 98 as Lewis was not available for service of process within 150 miles of the courthouse.   Thus, the trial court abused its discretion in admitting the declaration as evidence.   As that was the only evidence offered at trial, the judgment in favor of Target cannot stand.”

 

 

And follow that with:

 

The Court reached the same conclusion in the very recent case CACH v. Rodgers (2014), 229 Cal. App. 4th Supp. 1, 2014.  There, CACH, a debt purchaser, sought to introduce a declaration executed by “Magic West”.  The declaration was executed in Denver, Colorado.  Although the witness was not present in California, he purported to authorize plaintiff’s counsel to accept service on his behalf.  Defendant tried to serve the witness at that location to no avail.  The court nonetheless admitted the declaration over defendant’s objection.  Id. at 4.

 

The Appellate Division reversed.  The Court agreed with Target Bank, supra and held that CACH did not make Magic West available for service under CCP 98:  “We agree with the holding of Target v. Rocha, supra, 216 Cal.App.4th Supp. 1, 157 Cal.Rptr.3d 156 and find its logic persuasive. Magic West was not available for service within 150 miles and was not at the location for a reasonable period of time during the 20 days immediately prior to the trial as required by statute.”   229 Cal. App. 4th Supp. at 6.  “If the legislature had intended to allow long distance service without complying with section 1987, or making a third or hybrid type of service permissible, they certainly know how to say so.”  Id

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Thank you again @calawyer!  I have edited the brief to match your wording.   I find it interesting that  the declaration states "For a reasonable period of time, during the 20 days immediately prior to trial I agree to accept service at any of the following locations:  (list of 5 locations and 5 c/o lawyers). Clearly he wants service to be accepted through a 3rd party.  These people have to know that they cannot accept service this way, so why bother?   And the 2 cases cited are pretty clear cut, I doubt you would even need the subpoena in order to win the objection.  Although, why tempt it?   

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Thank you again @calawyer!  I have edited the brief to match your wording.   I find it interesting that  the declaration states "For a reasonable period of time, during the 20 days immediately prior to trial I agree to accept service at any of the following locations:  (list of 5 locations and 5 c/o lawyers). Clearly he wants service to be accepted through a 3rd party.  These people have to know that they cannot accept service this way, so why bother?   And the 2 cases cited are pretty clear cut, I doubt you would even need the subpoena in order to win the objection.  Although, why tempt it?   

 

 

We call this the "belt and suspenders" approach.

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CACH v. Rodgers now has an official cite.  It is CACH. LLC v. Rodgers (2014) 229 Cal.App.4th Supp. 1.

 

Try this in your brief instead:

 

      This is precisely the conclusion reached by the Court in Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1.   There, Target National Bank (“Target”) sued Ms. Rocha for an alleged credit card debt exceeding $7,000.   Shortly before trial, Target served a declaration in lieu of live testimony at Trial executed by a Tiffany Lewis of Minneapolis, Minnesota.   Because she resided out of state, Ms. Lewis gave the address of her counsel as a place where she could be served.

     The Court held that Target failed to comply with CCP Section 98 and it was an abuse of discretion to introduce the declaration at trial.   Id. at p.7.   The Court reviewed the history of CCP Section 98 and noted the due process implications of presenting evidence by declaration at trial.   The Court concluded: “…….a party may only introduce a witness’s declaration if the opposing party had the opportunity to cross-examine the witness at deposition or could require the witness to be subject to cross-examination at trial.”

     The Court further found that giving an attorney’s address or other location where the witness does not actually reside, fails to comply with CCP Section 98. Id. at 7.   As the Court noted: “For all of the foregoing reasons, the Appellate Division concludes that the declaration offered by Target did not comply with Section 98 as Lewis was not available for service of process within 150 miles of the courthouse.   Thus, the trial court abused its discretion in admitting the declaration as evidence.   As that was the only evidence offered at trial, the judgment in favor of Target cannot stand.”

 

 

And follow that with:

 

The Court reached the same conclusion in the very recent case CACH v. Rogers (2014), 229 Cal. App. 4th Supp. 1, 2014.  There, CACH, a debt purchaser, sought to introduce a declaration executed by “Magic West”.  The declaration was executed in Denver, Colorado.  Although the witness was not present in California, he purported to authorize plaintiff’s counsel to accept service on his behalf.  Defendant tried to serve the witness at that location to no avail.  The court nonetheless admitted the declaration over defendant’s objection.  Id. at 4.

 

The Appellate Division reversed.  The Court agreed with Target Bank, supra and held that CACH did not make Magic West available for service under CCP 98:  “We agree with the holding of Target v. Rocha, supra, 216 Cal.App.4th Supp. 1, 157 Cal.Rptr.3d 156 and find its logic persuasive. Magic West was not available for service within 150 miles and was not at the location for a reasonable period of time during the 20 days immediately prior to the trial as required by statute.”   229 Cal. App. 4th Supp. at 6.  “If the legislature had intended to allow long distance service without complying with section 1987, or making a third or hybrid type of service permissible, they certainly know how to say so.”  Id

We must all write briefs like this. It is very smooth and flows nice.

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be prepared in case a live witness shows also. make sure to bring up the fact that the accounts seller gave no basis for the accuracy or trustworthiness of the accounts in their bill of sale they make no warranty so they have no reason to believe the records are reliable.

Key point in all the debt collection cases nationwide.

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A Quick rant about Midland Funding LLC:    I am recently separated from my husband, I am the sole defendant in this suit, I make 700/per month own an eleven year old vehicle and nothing else.    If I were to lose...

...you wont. If you play your cards right and follow advice. Sounds like you are almost there

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Thanks@Anon Amos and @string it's actually a lot easier the way Astmedic formatted, AND I can argue that way.   I plan to have this ready before Monday (day -20) so that I can file it as soon as subpoena isn't served...then get my trial brief in by about day 7.   I'm a little curious as to why I've yet to receive a settlement offer.   That seems a little strange all things considered.   Taking today off from this to celebrate my daughter's birthday.   Thanks for all your help...AGAIN!

midland didnt try to settle with me. they went as far as to send a rent a lawyer to court who 'agreed to part ways' in the hallway minutes before the trial

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midland didnt try to settle with me. they went as far as to send a rent a lawyer to court who 'agreed to part ways' in the hallway minutes before the trial

That's pretty dumb of them.   It would save them time in a lot of cases to try to settle, and might even get them some cash.   Whatever, seems to me they do things following a "script" and waste everyone's time and money.   I wish I could sue them for harassment or something if they do make me go to court and then dismiss right before.    What a waste of time, gas and time off work.   Their answer to my CCP96 is due tomorrow.   Even with mailing times, it should be here by Friday, Saturday at the outside, that could be interesting.

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That's pretty dumb of them.   It would save them time in a lot of cases to try to settle, and might even get them some cash.   Whatever, seems to me they do things following a "script" and waste everyone's time and money.   I wish I could sue them for harassment or something if they do make me go to court and then dismiss right before.    What a waste of time, gas and time off work.   Their answer to my CCP96 is due tomorrow.   Even with mailing times, it should be here by Friday, Saturday at the outside, that could be interesting.

Midland's practice is disturbing. Essentially, they are knowingly filing suits they have no intention of taking to trial.

It seems to me what would be useful for members here would be draft letters of complaint addressed to California's Attorney General and the State Bar of California regarding Midland and their attorneys.

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Midland's practice is disturbing. Essentially, they are knowingly filing suits they have no intention of taking to trial.

It seems to me what would be useful for members here would be draft letters of complaint addressed to California's Attorney General and the State Bar of California regarding Midland and their attorneys.

I'm in, just as soon as this is done I will write a letter of complaint.   I'll even itemize the costs of fighting this thing, since if they dismiss I won't be reimbursed.   Doesn't seem fair at all.    

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Day -11.   I should have received the response to my CCP 96 today.  And while the day's not over, AND if they mailed it won't be here until Saturday, I'm thinking they are going to fail to respond.   So I'm starting my trial brief and trial folder based on their only evidence being the CCP 98, which I've already objected to.   CCP 96 isn't filed in court, so that will be exhibit 1.   I really wish I could get them to dismiss BEFORE I have to take a day off work, but I'm feeling pretty confidant that this will be dismissed.   

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good luck, we are only a few days apart. according to my calculations CCP 96 response should've been served on the 28th of this month. we will see what the mail bring today. I served it over night, which  gives them 20+2 for mailing.

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good luck, we are only a few days apart. according to my calculations CCP 96 response should've been served on the 28th of this month. we will see what the mail bring today. I served it over night, which  gives them 20+2 for mailing.

i served mine overnight as well.   They received it around noon on the 10th.   They have to mail postmarked today, so even snail mail would have it here by Saturday.  Monday latest.  My court date is November 10th, getting down to the wire.   I'm going to write a trial brief over the weekend, give it until mail delivery on Monday, then send in the trial brief.   I'm getting a lot of grief for the day off (it will make it a 4 day weekend as Nov. 11 is a holiday), I think I'm more stressed about that, then the trial.  

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Since you served by express mail, they only get 2 court days' extension instead of the normal 5 by US mail.  CCP 1013 (c.  Did your proof of service show that it was sent by express mail?

Hi calawyer, I read it, but maybe im not understanding it. are you saying that the proof of service should note that the service was sent overnight?

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I would argue that they only get 2 Court days, but it would be messy to prove it.  Your proof probably says that you sent it by US mail and that is incorrect.  You are probably better off leaving it alone.

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POS-030 states "Depositing the sealed envelope with the United States Postal Service with the postage fully prepaid" I did send it through USPS but Priority Mail Express. I have my receipt which states the date dropped and the scheduled delivery date, as well as a tracking print out confirming delivery, along with the return receipt.

 

hopefully @Dotheyeverstop? used the right form. in case he didn't either? should we note it in our trial briefs?

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