CaliMOO

Sued by Unifund LLC via Kenosian & Miele

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Consider sending a letter to plaintiff's attorneys about the CCP 96 response:

 

Dear K&M:

 

CCP 96 requires Plaintiff to list  the names and addresses of  the witnesses it intends to call at trial.  Plaintiff has not done so.  Instead, it has "identified"  the "Person Most Knowledgeable" for Citibank NA and Unifund. 

 

Plaintiff's failure to provide the names of the witnesses it intends to call at trial has hampered Defendant's ability to prepare for trial.  Please take notice that Defendant intends to object if Plaintiff attempts to call any witnesses at trial not identified by name in its CCP 96 response.

 

XXOO

 

CaliMOO

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UPDATE!!!I sent my response to the plaintiff's CCP 96 request with a "Defendant will be using evidence and calling witnesses for impeachment purpose only" on 6/26. Over the weekend the plaintiff's lawyer sent me a letter informing me that they have not yet received my signed agreement to their settlement offer. They provided me with a number and contact should I have any questions or any offer that I would like to present to them.

 

Should I even entertain this letter and contact them? I would like to tell them that my offer for them is for me to pay $0 and for them to drop the case, now would this offer even be a worthwhile effort on my part? Please advise. And thanks again for all the advise and help this group has been giving to me. My court date is coming up soon 7/17/15 and sure hope I can finally put this chapter to an end.

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You can (if you prefer) make an offer of a dismissal with prejudice now and both sides assume their own cost.

If they dismiss at trial then you will file for your fees (assuming you incurred fees).

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You can (if you prefer) make an offer of a dismissal with prejudice now and both sides assume their own cost.

If they dismiss at trial then you will file for your fees (assuming you incurred fees).

 

So are you saying that I can avoid paying any fees that I might incur if I were to get a dismissal during trial? So far the only fee that I have paid was to get my trial scheduled, what other fees would I incur? I understand that the various fees should the judgement be in the plaintiff's favor (I sure hope not).

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So are you saying that I can avoid paying any fees that I might incur if I were to get a dismissal during trial? So far the only fee that I have paid was to get my trial scheduled, what other fees would I incur? I understand that the various fees should the judgement be in the plaintiff's favor (I sure hope not).

 

Whatever fees you need to pay, you'd pay up front. Should you prevail, it would be a matter of Unifund paying you back. That does take a little time and some work. At this point I think the only fees you have left to pay would be the process server fee & any postage fees.

 

If they dismiss (before or during trial) without coming to some sort of agreement with you, you would be entitled to recouping your costs. For a Pro Se that is usually the process server fee & the filing fee (in this case maybe that is the same as your trial scheduling fee?). In my case, the filing fee and process server fee were about $240 - after Midland dismissed I obtained a judgment against them and they had to pay me back.

 

Anyhow, like any business, they'd prefer to cut their losses when they can. They might entertain an option like Anon described if they think this case is a potential loser for them.

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So are you saying that I can avoid paying any fees that I might incur if I were to get a dismissal during trial? So far the only fee that I have paid was to get my trial scheduled, what other fees would I incur? I understand that the various fees should the judgement be in the plaintiff's favor (I sure hope not).

 

The prevailing party in litigation is entitled to its allowable costs.  The costs are set forth in the statute and Ryan is correct that this typically is limited to filing fees and costs of service.

 

If you decide to make this offer, you should probably put a time limit on it.  Tell them you must receive their response 3 days before trial.  You should also demand that they stop reporting this alleged debt to any credit bureau.

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That sounds like a pretty good deal for them. So now you have an offer for plaintiff.

 

Thanks everybody for the advise and response. I decided to present them with my offer and will be emailing the contact on the letter. I've created a new Gmail account for the sole purpose of establishing email communication with the plaintiff. Here is the draft I have composed:

 

I have received and reviewed your settlement offer and would like present you with the following offer:
 
- Case is to be dismissed by Plaintiff with prejudice (Case is to be dropped with prejudice without any Stipulation of Entry Judgement as originally offered by Plaintiff).
- There will be no settlement sum for the Defendant ($0.00).
- The Plaintiff shall remove and cease reporting this alleged debt to any of the Credit Bureaus.
 
Of course I will also mention the deadline of receiving a response within 3 days before trial date at the latest.
 
I am not really sure if I have captured everything here to prevent any recourse action from the plaintiff, any feedback would be appreciated!!! Thanks!!!

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They really are not getting anything in your offer, they may decide to take their chances.  You could put each party to bear their own costs, that might be a little incentive for them to drop it.

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They really are not getting anything in your offer, they may decide to take their chances.  You could put each party to bear their own costs, that might be a little incentive for them to drop it.

 

I see. I thought that their dismissal also meant bearing our own costs, I will go ahead and include that to make sure everything is covered. Thanks!

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My court date/trial is up in 8 days. So far, I have sent sent my CCP 96 response to the plaintiff and I have sent them a response informing them of objecting when they call in their witnesses from Citibank NA and UNIFUND on account of they were listed in their CCP 96 response as "Person Most Knowledgeable" and without any name for me to do my research on. I have also sent them my counteroffer of case dismissal with prejudice, cease the reporting of the alleged debt to the credit bureaus and for each party to bear their own cost upon dismissal.

 

I have not received any CCP 98 or have seen any mention of  "affidavit in lieu of live testimony" in any of the documents I have received from the plaintiff. As for signed affidavit, the only one I have received has been the one from Citibank, which the plaintiff intends to use during my court date/trial which was notarized in Missouri. My question are as follow:

 

- Do I still file a Motion in Limine (MIL) even though I have not received any CCP 98 or have seen anything that says "affidavit in lieu of live testimony" from the plaintiff?

- Or do I still file an MIL for any evidence that I would like for the court to rule to prevent the plaintiff from using such as their use of witnesses "Person Most Knowledgeable" from Citibank and UNIFUND? Or the use of 12 months worth of credit card statements which fails to show how the alleged debt became from $0 to the amount that they are claiming for? Or are these objections that I can just make during the trial?

- Is there still time for me to file for an MIL? I am 8 days away from my court date/trial.

 

I know that I need to do my Trial Brief and to send a copy of this to the plaintiff CMRRR.

 

I have been using Seadragon's pre checklist but would like to make sure I do not leave anything out. Thanks again for all the help and advise!

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you cannot file a motion in limine for CCP 98 that apparently do not intent to use at trial. have you check the court docket just to make sure that plaintiff didn't file a CCP98 but, oops, mail man must have lost it, kind of thing?

 

it is probably to late to file a MIL but you can file objections to... whatever evidence plaintiff intends to use at trial. Bill of sale, affidavit of sale, statements. etc. and file them along with your trial brief.

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you cannot file a motion in limine for CCP 98 that apparently do not intent to use at trial. have you check the court docket just to make sure that plaintiff didn't file a CCP98 but, oops, mail man must have lost it, kind of thing?

 

it is probably to late to file a MIL but you can file objections to... whatever evidence plaintiff intends to use at trial. Bill of sale, affidavit of sale, statements. etc. and file them along with your trial brief.

 

I just checked the court docket report results and there is no record in there for CCP 98 from the plaintiff. All it mentions is their CCP 96 request and the notice to attend trial that they sent me. Speaking of which, should I have filed my CCP 96 to the court when I mailed my request? I only sent my request to the plaintiff and kept a copy for myself. When you say "file" are you saying that I should file my objections and trial brief in court? Or do I just send a copy of the trial brief and objections to the plaintiff CMRRR and have a copy for myself?

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just to be sure, it most likely wont be called "ccp 98" on the court docket. perhaps "declaration-other"

 

when I say file, it means that you should file your objections and trial brief in court AND do send a copy to the plaintiff of everything you file.

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just to be sure, it most likely wont be called "ccp 98" on the court docket. perhaps "declaration-other"

 

when I say file, it means that you should file your objections and trial brief in court AND do send a copy to the plaintiff of everything you file.

 

Nothing that says "ccp 98" or "declaration-other" in the docket results.

 

Thanks for the clarification, I will make sure I file my objections and trial brief in court. Is there a particular form that I should be using for my objections? As for the CCP96 request that I sent out to the plaintiff back in May that didn't need to be filed in court correct?

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your objections shall be on a numbered pleading paper. if you need some samples perhaps I can attach some later.

 

I do not think you need to file the request you sent. I didn't. but I think you can file a written objection to it if they call for "other most knowledgeable employee of..." type of thing.

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your objections shall be on a numbered pleading paper. if you need some samples perhaps I can attach some later.

 

I do not think you need to file the request you sent. I didn't. but I think you can file a written objection to it if they call for "other most knowledgeable employee of..." type of thing.

 

Yes, seeing a sample of how I need to compose my objections would be a great help! Thanks!!!

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sorry for the delay, our new computers at work wont allow me to copy and past to and from browsers, nor upload documents. I have to transfer them to my phone and those are not very user friendly.

 

you wont call the documents MIL, but rather Defendants objection to bill or sale, credit card statement, ccp 96, etc, etc.

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I may have the template. Give me a sec

 

Thanks for all the help. However, it looks like these samples are pertaining to "affidavit in lieu of live testimony". As I have mentioned before, I have not received or seen anything stating that the plaintiff is doing "affidavit in lieu of live testimony". Here is the list of items that the plaintiff will be using during my trial, hopefully having all this info can steer me towards the proper direction.

 

- Plaintiff responded to my CCP 96 request stating that they plan to call witnesses during the trial. The names of the witnesses were not disclosed and were listed as "Person most knowledgeable" for both Citibank and UNIFUND. An out of state address was provided for both.

- A signed affidavit from Citibank.

- 12 months credit card statement

- Bill of Sale from Citibank down to various JDBs eventually coming down to UNIFUND

- Original data source (raw data)

- Generic Credit Card Agreement document.

 

Thanks for all the help!

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I would send a meet and confer letter and ask that they identify the names of witness as the code requires and that you will be objecting to any witness being called at trial not properly listed per ccp 96.

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I would send a meet and confer letter and ask that they identify the names of witness as the code requires and that you will be objecting to any witness being called at trial not properly listed per ccp 96.

 

While I did not title my letter "Meet and Confer", I did send this to the plaintiff which basically says the same:

 

TO: UNIFUND CCR, LLC :

     CCP 96 requires Plaintiff to list the names and addresses of the witnesses it intends to call at trial. Plaintiff has not done so.  Instead, it has "identified" the "Person Most Knowledgeable" for Citibank NA and UNIFUND.

 

Plaintiff's failure to provide the names of the witnesses it intends to call at trial has hampered Defendant's ability to prepare for trial.  Please take notice that Defendant intends to object if Plaintiff attempts to call any witnesses at trial not identified by name in its CCP 96 response.

 

This should suffice, correct?

 

I am also looking at luckykid12's posting since our situation is very similar.

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