jene_rae

Cach vs Me in CA, Trial Balance Help Needed

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Received Summons from CACH, LLC (attorney Mandarich Law Group)

 

Complaint: Breach of Contract and Common Counts

 

Discovery completed

 

CCP96 sent

 

Awaiting CCP98 cut off date 12/19/15 and will Subpeona any witness. (Won last case against them here) :)

 

Court date Jan 5th, CA San Joaquin County

 

1st Question:  CACH is Plaintiff and notes Bank of America, N.A. is Plaintiffs assignor BUT the Bill of Sale provided from discovery, production of documents, says CACH,LLC is purchaser and seller is FIA Card Services.  Is this usually correct or do they need to provide a bill of sale from Bank Of America to FIA Card Services???

 

2nd Question: Received Privilege Log; Purchase agreement between OC and Cach "flow agreement for purchase and sale of charged off accounts - Trade Secret??? Calif Evidence Code section 1060 and Calif Civil Code section 3426.1.  How can I fight this?

 

A few small technicalities I found wrong: amount on Summons compared to Bank of America bank statements provided by Cach, they state that "within the last four years, the defendant failed to make payments but there are a few payments listed in those four years and Bill of Sale they have no mention of my ss# or account number.

 

2 time winner and looking for 3rd win...need smoking gun.

 

 

 

 

 

 

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1st Question: CACH is Plaintiff and notes Bank of America, N.A. is Plaintiffs assignor BUT the Bill of Sale provided from discovery, production of documents, says CACH,LLC is purchaser and seller is FIA Card Services. Is this usually correct or do they need to provide a bill of sale from Bank Of America to FIA Card Services???

BofA and FIA are basically the same entity and has been proven several times there's no argument here. However you could always hold their feet to the fire and have them prove how FIA is relevant anyway.

2nd Question: Received Privilege Log; Purchase agreement between OC and Cach "flow agreement for purchase and sale of charged off accounts - Trade Secret??? Calif Evidence Code section 1060 and Calif Civil Code section 3426.1. How can I fight this?

Did you receive proof an actual privilege log has been filed, or was this just an objection they made (in discovery etc).

A few small technicalities I found wrong: amount on Summons compared to Bank of America bank statements provided by Cach, they state that "within the last four years, the defendant failed to make payments but there are a few payments listed in those four years

I think in most situations mention of payment won't help you, but here you can show an indiscrepancy in their allegations if you were to shed light on it

and Bill of Sale they have no mention of my ss# or account number.

One of the objections to it will be "irrelevant". You need to find out how many ways you can attack it under the rules of evidence and authentication, and show that it doesn't meet a business records exception to the hearsay rule.

need smoking gun.

Not necessarily. Most people win without one. You need to know the rules of evidence that pertain to you and object to the evidence they give you. Force them to need live witnesses (including from the OC to lay a foundation for evidence etc). Objections, trial brief and subpoenas over a smoking gun. And challenge their standing to sue you as well.
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 BofA and FIA are basically the same entity and has been proven several times there's no argument here. 

Did you receive proof an actual privilege log has been filed, or was this just an objection they made (in discovery etc).

I think in most situations mention of payment won't help you, but here you can show an indiscrepancy in their allegations if you were to shed light on it

One of the objections to it will be "irrelevant". You need to find out how many ways you can attack it under the rules of evidence and authentication, and show that it doesn't meet a business records exception to the hearsay rule.

Not necessarily. Most people win without one. You need to know the rules of evidence that pertain to you and object to the evidence they give you. Force them to need live witnesses (including from the OC to lay a foundation for evidence etc). Objections, trial brief and subpoenas over a smoking gun. And challenge their standing to sue you as well. 

Agreed.

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There is a trade secret privilege, but it would be up to the judge whether or not this document meets the criteria.

You could always agree not to disclose anything in it to a third party or stipulate to redaction of any alleged trade secrets

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There is a trade secret privilege

 

You're right, but the procedure requires that plaintiff file a motion for a protective order, not simply list it on a log and withhold.  Still may be too late to do anything about it though.

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 Still may be too late to do anything about it though.

Maybe not. I always say "too late" is when the judge says it's "too late".

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@Anon Amos

Isn't there a mention on-site about Defendant telling Judge that party is ammenable to Plaintiff showing all to Judge in Chambers?

As I remember it, Plaintiff despises the notion of revealing their $0.02 on the dollar purchase prices and, sometimes, prefers to just settle instead.

I distinctly recall envisioning Plaintiff wanting to settle and me insisting we stay in trial...LOL!

Hey! I get my thrills where I find them on the cheap these days, ok? LOL!

Anyway, I am 99.9% certain the point was made to circumvent Plaintiff's whole "trade secret" scheme and get Judge to both order it into chambers, unredacted, of course, (Punch One of the ol' 1 - 2), and, have Judge see the baloney Plaintiff was trying to pull on Judge, (Punch Two of the ol' 1 - 2).

It seems like there are no examples of Plaintiff going forward and actually bringing in the originals, unredacted, to chambers, yes?

BTW:

Are there threads for the prior (2) Defendant wins in pro per?

What a stunning batting average to be super-duper proud of yourself for acheiving!

Warmly,

There is a trade secret privilege, but it would be up to the judge whether or not this document meets the criteria.

You could always agree not to disclose anything in it to a third party or stipulate to redaction of any alleged trade secrets

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Maybe not. I always say "too late" is when the judge says it's "too late".

Word.

Just a week ago I was to turn in a completed packet same-day. Court Rules: 14 days from next court date, which, wouldn't you know it, was 14 days from that day.

I careen in to file & conform, heart racing, jazzed at the total ease of parking...

The Homeland Security gal UNLOCKS THE DOORS TO THE COURTHOUSE & OPENS THEM .... AND, STEPS OUTSIDE...

"Courthouse is closed for today. Come back in the morning.", she says.

Ya know, Miss Barnie Fife coulda-woulda-shoulda kept her cautionless hips on the safe side of those locked County doors, gestured at the clock, shrugged and I would have understood in any language without her risking her safety, but whatever. For $12.00/hour, what level of critical thinking skills are likely?...

Next morning, I go forth with Anon Amos' words playing in my head, giving me HOPE (and I really-really needed it just then, as I could EASILY have been told, "What are YOU doing here; LOSER, BY DEFAULT for FAILURE TO FILE IN A TIMELY MANNER, effective date, YESTERDAY"...

AND, the demon spawn deputy clerk from frustrated beyond belief hell, FILED & CONFORMED MY PAPERWORK ... and all after "only" making me go get a fresh set of copies of the copies for her, the ORIGINAL being totally rejected as unacceptable by her that day... which, it just so happens, was the 180-degree OPPOSITE of her capricious little snippity demands for fresh copies when I showed up with SIX SETS OF ORIGINALS to file & conform my answer, and she insisted they were ALL COPIES!

Sometimes, ya just gotta laugh!

But, ALL THE TIME, ya just gotta keep going forward, even when a day late, like I was, last week, because ANON AMOS is spot-on when he says nothing is over until Judge says so.

You are doing great!

I look forward to reading your next update!

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@Anon Amos

Isn't there a mention on-site about Defendant telling Judge that party is ammenable to Plaintiff showing all to Judge in Chambers?

As I remember it, Plaintiff despises the notion of revealing their $0.02 on the dollar purchase prices and, sometimes, prefers to just settle instead.

I distinctly recall envisioning Plaintiff wanting to settle and me insisting we stay in trial...LOL!

Hey! I get my thrills where I find them on the cheap these days, ok? LOL!

Anyway, I am 99.9% certain the point was made to circumvent Plaintiff's whole "trade secret" scheme and get Judge to both order it into chambers, unredacted, of course, (Punch One of the ol' 1 - 2), and, have Judge see the baloney Plaintiff was trying to pull on Judge, (Punch Two of the ol' 1 - 2).

It seems like there are no examples of Plaintiff going forward and actually bringing in the originals, unredacted, to chambers, yes?

BTW:

Are there threads for the prior (2) Defendant wins in pro per?

What a stunning batting average to be super-duper proud of yourself for acheiving!

Warmly,

A lot of this may come up if the plaintiff attempts to file a privilege log properly. You could agree not to talk about it, that it be sealed and only open in the presence of the judge etc.

They don't like to give the forward flow because it says no warranty etc. So the OC said it may be incorrect then it's hard to later lay a foundation for evidence.

I don't think there's many judges that make an issue out of what they paid for it. It's not illegal to be a bottom feeder or profit from these debts.

If you type jene_rae in the search box I think you will find some of her threads showing victory, but much of it was probably done in PM.

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Thanks to everyone that replied.  As for their "Privilege Log" I do not see that they ever filed it with the courts.  I went on the courts website and looked up my case and no mention of it. 

 

Since CACH did not file this with the courts do I still need to try and file a motion to compel?

 

The burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim if a motion to compel is filed.  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192 see Ev. C. §§402, 405.

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As for their "Privilege Log" I do not see that they ever filed it with the courts.  I went on the courts website and looked up my case and no mention of it. 

 

Like the rest of discovery, it doesn't get filed with the court.

 

 

Since CACH did not file this with the courts do I still need to try and file a motion to compel?

I don't believe you have time to file a MTC.

 

I agree - that's what I meant by "may be too late to do anything about it."  

 

OP: I think you'd need to M&C, then file a MTC.  Might try sending the M&C letter anyway, reminding them of the need to file a motion for a protective order.  Who knows - might just prompt them to do it, which would get the issue before the judge - and that's all you really want anyway.

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I agree with the M&c letter, but if trial is less than 30 days the MTC will be too late. Also you have to file the MTC no later than 45 days from their objection.

The main thing is to know how to object to the evidence they provide in response to your ccp 96.

I would deal with the forward flow with a M&C letter and verbally at trial, and file objections to the evidence you do receive

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Maybe not. I always say "too late" is when the judge says it's "too late".

I lost track that trial was less than 30 days where I said this. I think it is only too late to file an MTC on this, but you can still pursue it in M&C LETTER and at trial (since you did ask for it in discovery)

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@jene_rae

 

I am also getting sued from CACH,LLC through NEUHEISEL LAW FIRM i got served 11/17/14

Do you have any tips on how to win ? i created a forum on it ..

By the way can i also use the CCP 98 C form ?

Any tips will help thank you

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CCP96 sent

 

Awaiting CCP98 cut off date 12/19/15 and will Subpeona any witness. (Won last case against them here) :-)

 

This is the right way to go.

 

Court date Jan 5th, CA San Joaquin County

 

1st Question:  CACH is Plaintiff and notes Bank of America, N.A. is Plaintiffs assignor BUT the Bill of Sale provided from discovery, production of documents, says CACH,LLC is purchaser and seller is FIA Card Services.  Is this usually correct or do they need to provide a bill of sale from Bank Of America to FIA Card Services???

 

I would argue that they should show all transfers.  It is necessary to show standing.

 

2nd Question: Received Privilege Log; Purchase agreement between OC and Cach "flow agreement for purchase and sale of charged off accounts - Trade Secret??? Calif Evidence Code section 1060 and Calif Civil Code section 3426.1.  How can I fight this?

 

Any motion to compel must be filed within the time set forth in CCP 2031.310 c. 

 

A few small technicalities I found wrong: amount on Summons compared to Bank of America bank statements provided by Cach, they state that "within the last four years, the defendant failed to make payments but there are a few payments listed in those four years and Bill of Sale they have no mention of my ss# or account number.

 

A few payments in the last few years is consistent with the statement that "within the last four years, the defendant failed to make payments".

 

2 time winner and looking for 3rd win...need smoking gun.

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@Anon Amos

Isn't there a mention on-site about Defendant telling Judge that party is ammenable to Plaintiff showing all to Judge in Chambers?

As I remember it, Plaintiff despises the notion of revealing their $0.02 on the dollar purchase prices and, sometimes, prefers to just settle instead.

I distinctly recall envisioning Plaintiff wanting to settle and me insisting we stay in trial...LOL!

Hey! I get my thrills where I find them on the cheap these days, ok? LOL!

Anyway, I am 99.9% certain the point was made to circumvent Plaintiff's whole "trade secret" scheme and get Judge to both order it into chambers, unredacted, of course, (Punch One of the ol' 1 - 2), and, have Judge see the baloney Plaintiff was trying to pull on Judge, (Punch Two of the ol' 1 - 2).

It seems like there are no examples of Plaintiff going forward and actually bringing in the originals, unredacted, to chambers, yes?

BTW:

Are there threads for the prior (2) Defendant wins in pro per?

What a stunning batting average to be super-duper proud of yourself for acheiving!

Warmly,

 

So are you saying that at my trial date, Jan 5th, I can request the judge to review the document in his chambers or do I need to file something ahead of time?  My judge is very flexible and kind to Pro See (thank goodness).  Should I send a M&C that I will be requesting this at trial?

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Update:

 

Received their response to my CCP 96:

 

Plaintiff submits the following witness and evidence list:

Witnesses

1. Plaintiff intends to call one of these potential witnesses: Magic West, Christie Coston, Tom Vigil, Angelica Martinez, Peter Hubar, signe Espinoza, Alex Calonje or Victoria Mason, who are employed as Custondian of Records for CACH, LLC; located at 4340 Monaco Street, 2nd floor, Denver Colorado 80237, and can be reached through Plaintiff's attorney's office, Mandarich Law Group, LLC at phone #.

2. Plaintiff intends to call named Defendant, Me

 

Evidence

Plaintiff will submit the following:

1. Bank of America, N.A./FIA Card Services, N.A. credit card account statements ...exhibit 1

2. Bank of America, N.A./FIA Card Services, N.A., Bill of Sale with Redacted Loan Schedule...exhibit 2

3. Bank of America, N.A./FIA Card Services, N.A, Affidavit of Sale...exhibit 3 (was not supplied to me in discovery!)

4. Plaintiff intends to introduce any relevant discovery; and 

5. Plaintiff further intends to introduce documents allowed for impeachment purposes pususant to CCP 97.

 

Questions:

 

Exhibit 2, Bill of Sale and Assignment of Loans.  So it mentions between Cach, LLC purchaser and FIA Card Services, NA seller, pursuant to the loan sale agreement dated June 21st, 2013.

 

1)Exhibit 3 is an affidavit of sale and certification of debt and it mentions that FIA Card Services, NA is a wholly owned subsidiary of Bank of America Corporation and is successor in interest...signed April 21, 2014. (They did not send this document to me in discovery but as a document to my CCP96 request)  Are they allowed to do this?

2) So it seems they are bringing in a witness so I don't need to subpeona anyone right?

3)  I'm going to argue that they should show all transfers because it is necessary to show standing.  I also looked up CCP 2031. 310c and the other alternative is to serve a motion in limine at trial excluding all evidence that was not produced in discovery.  So this would be their affidavit of sale and the alleged trade secret log, right?

 

thanks for the help!

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Update:

 

Received their response to my CCP 96:

 

Plaintiff submits the following witness and evidence list:

Witnesses

1. Plaintiff intends to call one of these potential witnesses: Magic West, Christie Coston, Tom Vigil, Angelica Martinez, Peter Hubar, signe Espinoza, Alex Calonje or Victoria Mason, who are employed as Custondian of Records for CACH, LLC; located at 4340 Monaco Street, 2nd floor, Denver Colorado 80237, and can be reached through Plaintiff's attorney's office, Mandarich Law Group, LLC at phone #.

2. Plaintiff intends to call named Defendant, Me

Objections: They are supposed to tell you who they intend to call, not who they may call from a pool of candidates. And: They are supposed to give you the address of the witness as well so that you can do research and prepare to cross examine them at trial. By this you were deprived of due process.

 

 

.

 

1)Exhibit 3 is an affidavit of sale and certification of debt and it mentions that FIA Card Services, NA is a wholly owned subsidiary of Bank of America Corporation and is successor in interest...signed April 21, 2014. (They did not send this document to me in discovery but as a document to my CCP96 request)  Are they allowed to do this?

Objection: affidavits are not admissible at trial CA Evidence code 1200, the case to cite is Elkins V Superior Court.  They probably should have given it to you at discovery, but there are probably ways they could argue against that, but the objections mentioned here are stronger.

2) So it seems they are bringing in a witness so I don't need to subpeona anyone right?

Not unless you also received a ccp 98 declaration in lieu of testimony earlier in addition to the ccp 96 response.

3)  I'm going to argue that they should show all transfers because it is necessary to show standing.

YES

 I also looked up CCP 2031. 310c and the other alternative is to serve a motion in limine at trial excluding all evidence that was not produced in discovery.

You can file an MIL (which Calawyer advises calling an objection) to evidence they gave you in discovery as well. If some of the evidence was requested in discovery and not produce then you can add that issue to your LIST of OBJECTIONS.

 

 So this would be their affidavit of sale

OBJECT to this as I listed above CA Evidence code 1200 and cite  Elkins v Superior court. Affidavits (hearsay) are not admissible at trail except by statute (such as ccp 98) and they did not attempt it with ccp 98 so it's inadmissible regardless of not producing it in discovery (you could add the non production in discovery but as a SECONDARY objection.

and the alleged trade secret log, right?

I don't think there is a "log" and nothing was filed (I believe), further they have not mentioned it in the ccp 96 response (so they don't intend to introduce anything regarding it), and it's nothing you need to win, so I think this is a non issue 

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So are you saying that at my trial date, Jan 5th, I can request the judge to review the document in his chambers or do I need to file something ahead of time?  My judge is very flexible and kind to Pro See (thank goodness).  Should I send a M&C that I will be requesting this at trial?

I wouldn't send a letter telling them you will request it at trial. You can't really ask for something at trial (for the most part), but rather attack evidence and foundation at trial.

 

The document will not be at trial for you to request the judge to view in his chambers. For the most part this is a non issue now and you would concentrate on the evidence that is at trail and being used against you.

 

The way you would use this forward flow against them at trial: is to argue that they stated terms of the sale and your account (or whatever it is they said) were included in this document, they mentioned it in a BOS (and never produced it as an exhibit (rule of completeness CA Evidence code 356).

 

You probably won't even need to. I have never seen anyone here win a case who ever got the forward flow or won because of it.

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Thanks Anon Amos and everyone that has helped me with this.  I sent them a letter just stating that this M&C is a reminder that you need to file a Motion for a Protective Oder for the Privilege Log, Document 1, Purchase agreement between Original Creditor and CACH,LLC/"Flow Agreement for Purchase and Sale of Charged Off Accounts".

 

They sent me a settlement offer.  NO thanks! lol

 

Let me get my Trial Brief together with what I have found and what everyone has helped me with on here and I'll share it soon.

 

I'm feeling much better now about my position. :)

 

Thx!!

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Today 12/12/14,

So if I wanted to file a MIL I have 20 days before my court date on 1/5/15, meaning I have time if I fax and overnight a M&C to attorneys today and I would have to file my MIL no later than 12/16/15.  Yikes that's a lot of stress on me and don't forget I'm the one with the rare brain disease and it's the holidays. (sorry, talking to myself...lol).

 

I can do it if needed but I'm thinking of making a very well put together Trial Brief (one judge in another case said that mine was better than most professionals, attorneys)  Super stoked from that one.

 

Objections: (not in this exact wording) 

1) Affidavits (hearsay) are not admissible at trial except by statute (such as ccp98) site: CA Evidence code 1200, cite Elkins V Superior Court.

2) They are supposed to tell me who they intend to call, not who they may call from a pool of candidates, And: They are supposed to give me the address of the witness as well so that I can do research and prepare to cross examine them at trial.  By this I was deprived of due process. (any case law to site here?)

 
Any thoughts?
 
Thanks

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So if I wanted to file a MIL I have 20 days before my court date on 1/5/15, meaning I have time if I fax and overnight a M&C to attorneys today and I would have to file my MIL no later than 12/16/15.  Yikes that's a lot of stress on me and don't forget I'm the one with the rare brain disease and it's the holidays. (sorry, talking to myself...lol).

 

No need to M&C for the MIL (Objection)

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2) They are supposed to tell me who they intend to call, not who they may call from a pool of candidates, And: They are supposed to give me the address of the witness as well so that I can do research and prepare to cross examine them at trial.  By this I was deprived of due process. (any case law to site here?)

 

Any thoughts?

 

Thanks

You have a right to due process under the 14th amendment of the Constitution, this includes  proper procedure and interpretation of statutes. They made no attempt to abide by what the statutes states, so you do not know exactly who it is you will cross examine or where they're from, or if they really work where they claimed (or if they even live in that state).

I don't believe you are going to find any case law on ccp 96.

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