Butterfly Bloom

Sued by Portfolio Recovery. Need to appear in Court in a week. Dealing w/Declaration of Plaintiff

Recommended Posts

Hello all,

   

I am being sued by Portfolio Recovery Associates in Los Angeles CA,.  I have a court appearance next week. The amount is roughly 1,900 dollars.  I need some inputs, guidance or advice on how to handle this matter. 

 

I was served by a process server at my home several months ago.  After I received the complaint I went to the court house and filed a general denial response. In the general denial form, there is a portion where it asking you  the reason of your denial. I wrote that there is no evidence or documentations that can prove their (PRA) claim. Then, on Aug 2014 before the court appearance, PRA sent me a copy of the  "Declaration of Plaintiff in Lieu of Personal Testimony at Trial." they sent to the court where I was required to appear, and received my copy via UPS overnight delivery . There is an attachment which they refer to as "Exhibit A" . Attached in the Exhibit A are the following

 

1.) "Bill of Sale"  GE signed by "I don't know" who because the signature are not readable and there is no print name under the signature.  

 

2.) Then, there is this spreadsheet which states when the account was opened, date it was charged off, last payment made and the summary amount of roughly 1,200.00 dollars. It was written on a white plain paper, again, a copy not original.  

 

3.) The last document is  "Affidavit of Sale " stating that the declarant is a Collections Operation Representative at GE Bank & that she reviewed the debt and was sold to PRA in 2010. It was written on a plain white paper ,  notarized by a Notary Public in MInessota County of Ramsey, then there are some "copies" of a Sears statements.

 

 PLEASE HELP ME WHAT TO DO.

 

I have a court appearance a week and I need some help. I cannot afford to hire an attorney, I am jobless at this time. To those who have experienced the same and have won against PRA, please share what you did and what you have said before the court. I am reaching out to all of you.

 

Please help, I'd like to win on this case.

Share this post


Link to post
Share on other sites

Some I have read from this website that I need to file a CC96? How can I do this? Please help. On the declaration of Plaintiff that I received. It was from "Hunt Enriquez Atty at Law in San Jose California.  What Benefit it gives me if I file the CC 96? Can I still file this even though my court appearance will be on November 6, 2014? Please help

Share this post


Link to post
Share on other sites

Yes, my trial.

Share this post


Link to post
Share on other sites

 What is CMC (Case Management Conference)? I never had a Case Management Conference with PRA.  Do I need to file this form CM-110 ? Or can I use this against PRA that we never had a case management conference? 

Share this post


Link to post
Share on other sites

It's late in the game, so you'll have to do some serious cramming to get ready for trial. People have come in last minute, studied and taken the right steps and have won (or obtained dismissals) - some have lost. There's still plenty you can do to help yourself out.

 

It's too late to use the CCP 96, you had to send that to the plaintiff between 30-45 days before trial, you can't do it now. It's an important tool, but it doesn't sink your case that you didn't use it, it just makes it harder for you to prepare.

 

What you have received (Bill of Sale, spreadsheet, Affidavit of Sale, statements) are the same items everyone gets in these trials. I got them and beat them.

 

Read this thread if you haven't already: How I beat Midland in California - will give you an idea of what these cases are all about, how to attack the documents they intend to offer as evidence. Midland works the same way as Portfolio Recovery and the other JDBs (junk debt buyers). Same playbook. So you'll use the same steps/strategy to fight them. Pay attention to everything related to the CCP 98 declaration (the item you talked about above: Declaration of Plaintiff in Lieu of Personal Testimony at Trial).

 

Most of the items Portfolio wants to introduce as evidence were created by GE Bank/Sears, not Portfolio. They are hearsay, and are not admissible so long as you object to them properly. Portfolio is trying to get around this by offering the CCP 98 Declaration of Plaintiff in Lieu of Personal Testimony at Trial, so you need to attack the CCP 98.

 

 

Priority #1 for you (along with reading the thread linked above): Subpoena the declarant of the CCP 98 Declaration of Plaintiff in Lieu of Personal Testimony at Trial. You have to do this and you need to start working on this TODAY. Here is a copy of the subpoena you'll need, SUPB-001. That one is blank, you need a stamp and signature from your court's clerk, which you'll probably need to get at the courthouse. Here is an example of what a stamped subpoena looks like (from San Diego county): SD supb-001.

  • Like 3

Share this post


Link to post
Share on other sites

 What is CMC (Case Management Conference)? I never had a Case Management Conference with PRA.  Do I need to file this form CM-110 ? Or can I use this against PRA that we never had a case management conference? 

 

Forget about this. The CMC is a procedural meeting that some counties don't even use. There is nothing related to it that will help (or hurt) you at trial.

Share this post


Link to post
Share on other sites

Yeah, I know, it's kinda late in the game. But thank you for the information. I will keep that in mind that I need to attack the cc98. I am reading that thread about Midland and am reading some thread too, trying to get some points or maybe can get what "choice of words" I need to say on my trial. I just hope and pray that it will be dismissed. Thanks again 

Share this post


Link to post
Share on other sites

There are two addresses  in CCP98. One is the address of the employee of PRA stating that he is doing business in Norfolk ,Virginia, and it's like thousand miles from the courthouse.

The other address is the address of their Hired Attorney's I believe, and it is San Jose California which is about 300 miles from the courthouse.

Share this post


Link to post
Share on other sites

If the addresses in the CCP98 where affiant can be subpoena are not within 150 miles from the court house then it is not in compliance with CCP98. you do not need to send a subpoena.

search around these forums for Objections to Declaration in lieu of testimony. draft one up and file it with the court.

 

can you post a redacted version of your ccp98 or PM it to someone with experience like Ryan EX, just to double check.

Share this post


Link to post
Share on other sites

There are two addresses  in CCP98. One is the address of the employee of PRA stating that he is doing business in Norfolk ,Virginia, and it's like thousand miles from the courthouse.

The other address is the address of their Hired Attorney's I believe, and it is San Jose California which is about 300 miles from the courthouse.

 

Are these addresses where the declarant says s/he will be available for service of process "during the 20 days prior to trial"?

  • Like 2

Share this post


Link to post
Share on other sites

Are these addresses where the declarant says s/he will be available for service of process "during the 20 days prior to trial"?

No, there is another address the declarant says s/he will be available for service of process during 20 days prior to trial and it's  a C/O address with one of those entities who does Service of Process (based on website). and it's like 6 miles from the court house.

Share this post


Link to post
Share on other sites

Perfect - send someone a subpoena to appear. When they are not able to be served like CCP 98 states, you can move that the declaration be tossed for not complying.

  • Like 1

Share this post


Link to post
Share on other sites

No, there is another address the declarant says s/he will be available for service of process during 20 days prior to trial and it's  a C/O address with one of those entities who does Service of Process (based on website). and it's like 6 miles from the court house.

 

That's where you should (attempt to) serve the subpoena.

  • Like 2

Share this post


Link to post
Share on other sites

Since, I did not send the CC96 in response to their CCP98. CAn I still object their CCP98 verbally on trial? If yes,  Please help me how to and what to say as far as to obejecting that declaration.......... I am new to this and its my first time to have trial...I don't understand some of the legal terms...   

 

Please help guys....I feel hopeless...

Share this post


Link to post
Share on other sites

have you tried serving the subpoena yet? if you do not serve the subpoena my guess is that the judge will overrule any verbal objections to the ccp98

Share this post


Link to post
Share on other sites

since you are so close to trial you can use a certified process server, and do a rush serve, which is a bit pricy. or you can try serving it with the help of a friend, if he or she is willing to come to trial to testify of the service.

 

maybe you could hire those process servers whose address is listed on the ccp98?

Share this post


Link to post
Share on other sites

correction: you do not serve the subpoena 20 days prior to trial. the address is giving in the CCP 98 is for you to attempt service during the 20 days prior to trial. you still have 3 days. serve it with a friend. or ask those process servers, which you say they are located in the same address as the declarant how much it will cost you to serve a subpoena at their own address.

 

or have a friend serve it for you!

 

 

CCP 98:

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial. -

  • Like 3

Share this post


Link to post
Share on other sites

great do that, since I believe your declarant is an out of state, s/he will not be available for service at that address, much less likely if that address is a process server business address.  if you serve it with the help of a friend, you can try leaving it today, then another attempt tomorrow, and some will recommend that on the last attempt you leave the subpoena with a person named in the "c/o" or with any other willing to accept it. (experts please chime in).

 

then after you serve it, we can help you draft an objection to the ccp98, and don't forget to also work on your trial briefs.

  • Like 2

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.