CaliMOO

Sued by Unifund LLC via Kenosian & Miele

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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!

 

 My post #71 contains samples to Objections to statements, bill of sales, and not named alleged witnesses referencing ccp96

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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.

 

Yes, good job. That Is your m&c letter.

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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.

 

 

 

Wow, your boss must be a total slave driver.

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Wow, your boss must be a total slave driver.

 

LOL. not my boss. it must be the organization IT's decision. my computer got replaced with a new one and now the copy and paste option is gone, also I cannot "quote."  I am able to quote at the moment because im covering the position of another employee whom is still using the older version of computers. LOL. oh well.

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So it looks like my best path is to follow what luckykid12 had done since what we have is very similar. Same plaintiff, original creditor, lawyers, etc. It appears that even their responses to our CCP 96 request has been the same. I am now working on my MIL since it looks like I can still file this still call this MIL even though I did not see any CCP 98 from the plaintiff. I am pretty much just changing a few pieces of information here and there. There is a section that someone here can possibly help me with. There is a section on his Bill of Sale objection that names a declarant. Which declarant would this be? The person who signed the Declaration of Mailing? Or would this be one of the folks who signed in the Bill of Sale documents?

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So it looks like my best path is to follow what luckykid12 had done since what we have is very similar. Same plaintiff, original creditor, lawyers, etc. It appears that even their responses to our CCP 96 request has been the same. I am now working on my MIL since it looks like I can still file this still call this MIL even though I did not see any CCP 98 from the plaintiff. I am pretty much just changing a few pieces of information here and there. There is a section that someone here can possibly help me with. There is a section on his Bill of Sale objection that names a declarant. Which declarant would this be? The person who signed the Declaration of Mailing? Or would this be one of the folks who signed in the Bill of Sale documents?

 

After thoroughly reading the sample it appears that the declarant that I need to put down is the person who signed the Bill of Sale and Assignment from Citibank.

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Do I need to include copies of the documents that the plaintiff intends to use for the trial when I file my MIL/Objections?

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After thoroughly reading the sample it appears that the declarant that I need to put down is the person who signed the Bill of Sale and Assignment from Citibank.

 

It is hard to tell without looking at the brief.  Was there an affidavit of sale from the OC?

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It is hard to tell without looking at the brief.  Was there an affidavit of sale from the OC?

 

Here are the following Bill of Sales and Assignment the Plaintiff will be using as evidence during the trial

 

- Bill of Sale And Assignment document from Citibank to Pilot Receivables (signed by Citibank Director Douglas Morrison)

- Bill of Sale document from Pilot Receivables to Distressed Asset Portfolio (signed by Pilot Receivables VP Morgan J Smith)

- Assignment document from Distressed Asset Portfolio to UNIFUND. (signed by Pilot VP Morgan J Smith and UNIFUND Legal Operations Manager Autumn Bloom)

 

No affidavit or any other document pertaining to Bill of Sales or Assignment were provided or shared by the Plaitinff during discovery or my CCP 96 Request.

 

Given, the three pieces of document the Plaintiff will be using during trial, can anyone advise the best way for me to get these evidence inadmissible during trial?

 

TIA

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Documents are not either admissible or not admissible in and of themselves.  In other words, you can't just look at a document and say, that one is not admissible.

 

The key to the document's admissibility is the testimony from the sponsoring witness.  That person must establish that it is authentic and establish some basis for the application of an exception to the hearsay rule (usually, in these cases, the business records exception to the hearsay rule).

 

So when Plaintiff serves a CCP 98 declaration, we can evaluate the admissibility of the document because we have the sponsoring testimony in the declaration itself.  We can see whether the declarant has personal knowledge that the document is authentic.  We can see whether the declarant  has shown that the document meets an exception to the hearsay rule.

 

It is more difficult when no CCP 98 declaration has been filed because you are anticipating what the witness will say on the stand at trial.  However, It is difficult to believe that a Unifund witness will have any personal knowledge that a document executed between Citibank and Pilot Receivables is authentic or meets some hearsay rule exception.  It seems highly unlikely to me that a Unifund witness ever saw Douglas Morrison sign a document and therefore recognizes his signature.  It seems unlikely that the witness could testify that either Citibank or Pilot prepared the documents in the regular course of their business.  Or that the document was executed on or about the date noted.  Or that a Unifund witness could testify as to the document's "mode of its preparation" or trustworthiness.

 

So, the most likely scenario is that the witness just blurbs something out like "here is the Bill of Sale And Assignment document from Citibank to Pilot Receivables signed by Citibank Director Douglas Morrison.  You will object and say that the witness has not shown that he/she has any personal knowledge that the document is authentic. Nor has the witness demonstrated that any hearsay exception applies.  For example, he/she has not offered any testimony about the document's mode of preparation.  The same is true of the other two documents (with the possible exception of the last because the witness might recognize Bloom's signature and be able to say that Unifund prepared the document in the regular course of its business).

 

One thing that may happen is that the judge might say something like "well, I won't rule on the admissibility right now but I will allow you to cross examine the witness on these points after plaintiff finishes its case.  If so, when it is your turn, you should ask questions like the following:

 

Have you ever been employed by Citibank?

Have you ever met Mr. Douglas Morrison?

Have you ever watched Mr. Morrison sign a document?

Have you ever visited Citibank's recordkeeping facilities?

Have you ever personally observed Citibank employess creating documents?

Do you know what computer system Citibank used in (insert appropriate year of bill of sale) for maintaining its records?

 

Assuming the witness answers "No" to these questions, you should say "Your Honor, I renew my objection to the Bill of Sale And Assignment document from Citibank to Pilot Receivables.  This witness has no personal knowledge that would permit him/her to testify that it is authentic.  He/she has no personal knowledge of Citibank's recordkeeping procedures such that she could testify that the documents was prepared in the regular course of Citibank's business, she can't testify as to its "mode of its preparation" or trustworthiness.  THerefore, the document has not been shown to be authentic and it is hearsay.

 

If the Judge sustains your objection, that really should be the end of it.  Plaintiff has not shown standing because it can't establish the initial transfer from the original creditor.  Your should ask for a verdict in your favor on the ground that plaintiff has not shown, by admissible evidence that it is the assignee and has standing to pursue its claims in Court. 

 

However, if the Court doesn't immediately agree with you, you should repeat the questions for Pilot Receivables and Distressed Asset Portfolio (and your objections to the other two Bills of sale).

 

Hope this makes sense.  Ask if it doesn't.

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It is awesome when Calawyer hands a pro per the M240mg for trial. Niiiiiice. He just told you how to win, exactly how. Don't forget objections at trial. Most CA's try to lead the witness through the testimony. So you can object: Objection! leading the witness, attorney testifying, facts not in evidence. during their case in chief, as well as Lacks foundation, personal knowledge,not a percipient witness.

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Documents are not either admissible or not admissible in and of themselves.  In other words, you can't just look at a document and say, that one is not admissible.

 

The key to the document's admissibility is the testimony from the sponsoring witness.  That person must establish that it is authentic and establish some basis for the application of an exception to the hearsay rule (usually, in these cases, the business records exception to the hearsay rule).

 

So when Plaintiff serves a CCP 98 declaration, we can evaluate the admissibility of the document because we have the sponsoring testimony in the declaration itself.  We can see whether the declarant has personal knowledge that the document is authentic.  We can see whether the declarant  has shown that the document meets an exception to the hearsay rule.

 

It is more difficult when no CCP 98 declaration has been filed because you are anticipating what the witness will say on the stand at trial.  However, It is difficult to believe that a Unifund witness will have any personal knowledge that a document executed between Citibank and Pilot Receivables is authentic or meets some hearsay rule exception.  It seems highly unlikely to me that a Unifund witness ever saw Douglas Morrison sign a document and therefore recognizes his signature.  It seems unlikely that the witness could testify that either Citibank or Pilot prepared the documents in the regular course of their business.  Or that the document was executed on or about the date noted.  Or that a Unifund witness could testify as to the document's "mode of its preparation" or trustworthiness.

 

So, the most likely scenario is that the witness just blurbs something out like "here is the Bill of Sale And Assignment document from Citibank to Pilot Receivables signed by Citibank Director Douglas Morrison.  You will object and say that the witness has not shown that he/she has any personal knowledge that the document is authentic. Nor has the witness demonstrated that any hearsay exception applies.  For example, he/she has not offered any testimony about the document's mode of preparation.  The same is true of the other two documents (with the possible exception of the last because the witness might recognize Bloom's signature and be able to say that Unifund prepared the document in the regular course of its business).

 

One thing that may happen is that the judge might say something like "well, I won't rule on the admissibility right now but I will allow you to cross examine the witness on these points after plaintiff finishes its case.  If so, when it is your turn, you should ask questions like the following:

 

Have you ever been employed by Citibank?

Have you ever met Mr. Douglas Morrison?

Have you ever watched Mr. Morrison sign a document?

Have you ever visited Citibank's recordkeeping facilities?

Have you ever personally observed Citibank employess creating documents?

Do you know what computer system Citibank used in (insert appropriate year of bill of sale) for maintaining its records?

 

Assuming the witness answers "No" to these questions, you should say "Your Honor, I renew my objection to the Bill of Sale And Assignment document from Citibank to Pilot Receivables.  This witness has no personal knowledge that would permit him/her to testify that it is authentic.  He/she has no personal knowledge of Citibank's recordkeeping procedures such that she could testify that the documents was prepared in the regular course of Citibank's business, she can't testify as to its "mode of its preparation" or trustworthiness.  THerefore, the document has not been shown to be authentic and it is hearsay.

 

If the Judge sustains your objection, that really should be the end of it.  Plaintiff has not shown standing because it can't establish the initial transfer from the original creditor.  Your should ask for a verdict in your favor on the ground that plaintiff has not shown, by admissible evidence that it is the assignee and has standing to pursue its claims in Court. 

 

However, if the Court doesn't immediately agree with you, you should repeat the questions for Pilot Receivables and Distressed Asset Portfolio (and your objections to the other two Bills of sale).

 

Hope this makes sense.  Ask if it doesn't.

 

Thanks! It makes perfect sense and you have actually given me a ton of information that is very easy for me to understand. Now as for the witnesses that will speak on behalf of the evidence documents (ie. signed Citibank Affidavit, Bill of Sales and Assignment, one year's worth of credit card statement, etc.), These witnesses have been identified as "Person Most Knowledgeable" from Citibank and UNIFUND. I should be able to submit my MIL objecting to the use of these witnesses due to not giving me names that will allow me to prepare for the case which violates CCP 96, correct? And without anyone to speak on behalf of any evidence documents then the Plaintiff really has nothing to stand on. Am I right in thinking this?

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Thanks! It makes perfect sense and you have actually given me a ton of information that is very easy for me to understand. Now as for the witnesses that will speak on behalf of the evidence documents (ie. signed Citibank Affidavit, Bill of Sales and Assignment, one year's worth of credit card statement, etc.), These witnesses have been identified as "Person Most Knowledgeable" from Citibank and UNIFUND. I should be able to submit my MIL objecting to the use of these witnesses due to not giving me names that will allow me to prepare for the case which violates CCP 96, correct? And without anyone to speak on behalf of any evidence documents then the Plaintiff really has nothing to stand on. Am I right in thinking this?

You will need to be a bit careful if a witness from Citibank actually shows up. It would be very unusual for that to happen but it is possible.

If so, you want to be a bit more careful about your questions. Ask the Citibank witness whether he/she has ever met Mr. Morrison and go from there. If the witness says "No", then it is probably safe to say, "You have never actually seen Mr. Morrison sign a document, correct?"

But even if a Citibank witness shows up, I don't see how plaintiff will prove the assignment between Pilot Receivables to Distressed Asset Portfolio. No witness from either company was listed on your CCP 96 response, correct?

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You will need to be a bit careful if a witness from Citibank actually shows up. It would be very unusual for that to happen but it is possible.

If so, you want to be a bit more careful about your questions. Ask the Citibank witness whether he/she has ever met Mr. Morrison and go from there. If the witness says "No", then it is probably safe to say, "You have never actually seen Mr. Morrison sign a document, correct?"

But even if a Citibank witness shows up, I don't see how plaintiff will prove the assignment between Pilot Receivables to Distressed Asset Portfolio. No witness from either company was listed on your CCP 96 response, correct?

 

Correct. Only "Person Most Knowledgeable" from Citibank and UNIFUND are listed as witnesses during trial. No witnesses identified for Pilot Receivables and Distressed Asset Portfolio.

 

Can the Plaintiff prove their Bill of Sale and Assignment chain if there is no one from Pilot and Distressed to validated?

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UPDATE!!! I am filing my objection (instead of MIL since my trial is in 4 days) and trial brief today. Can anyone tell me if I also need to file a "Declaration of Defendant..."? I noticed that the Dec is usually done alongside your MIL. Thanks!

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Usually the last page is the declaration stating you are over 18 and a citizen etc. It should be included.

Send a copy to plaintiff with POS and POS filed with court as well.

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Usually the last page is the declaration stating you are over 18 and a citizen etc. It should be included.

Send a copy to plaintiff with POS and POS filed with court as well.

 

Is there snippet or something that you can post here so I can copy and paste it. Or is there some form out there that contains this?

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...and also what do I declare since the ones I've seen are for MIL which I am not doing? My objections are for Plaintiff's use of "Person Most Knowledgeable, Affidavit signed by Citibank employee and the preclusion of the Bills of Sale and Assignment documents to the case.

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Is there snippet or something that you can post here so I can copy and paste it. Or is there some form out there that contains this?

 

Most of the functions like that have never worked me. You can probably see one from plaintiff to you and use it a  template, or  one on the tail end of someone's objection / MIL here, maybe in ASTMedic's or String's thread.

 

You would just write on pleading paper and include it. Nothing fancy, it just needs to say,

 

DECLARATION OF CALIMOO

 

1)             I  Calimoo am over eighteen years of age, a citizen of California, and a defendant in Pro Per  to this case.

 

2)             I seek an order from this court to: (something like that and explain briefly what you want the court to do for you). 

 

3)             Each of the facts set forth herein are within my personal knowledge and I would so testify if called as a witness at the hearing

 

 

 

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on July 00-2015 in (your city, county of..., and State of California

 

DATE &  SIGNATURE

 

 

something like that.

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UPDATE!!! I filed my Objections, Declaration in Support of Objections and Trial Brief at my local court house yesterday. Sent copies to Plaintiff overnight. I'm 3 days away from my trial and continuing to prepare, familiarizing myself with cases to cite that support my arguments/objections, making my list of questions that I'll need to ask should the Judge allow the Plaintiff's witnesses to testify, preparing for what questions I may get asked during the trial and getting all my documents organized.

 

So far I have not received or seen anything from the Plaintiff. The most recent documents I received from them was their CCP 96 request, CCP 1987 and follow up on their settlement offer. I have responded to their CCP 96 Request and emailed my counteroffer of dismissed with prejudice on the settlement offer. I'm checking my docket report daily and have not seen anything new from the Plaintiff there.

 

Does the Plaintiff need to file their Trial Brief as well and send me a copy?

Any idea what they could be cooking up on their end?

 

I sure hope I win this case and just get back to my life.

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Does the Plaintiff need to file their Trial Brief as well and send me a copy?

They don't have to file a trial brief and sometimes they don't. When they do they usually hand it to you at trial (sometimes you get stuff delivered from them the night before trial).

Any idea what they could be cooking up on their end?

It's always business as usual. How can they convince you to settle and avoid trial.

 

I sure hope I win this case and just get back to my life.

We all hope the same for you. You'll get your life back either way, but hopefully you do join the ranks of the recent winners here.

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No witness... they can't lay a foundation or authenticate documents

 

evidence is then hearsay, lacks foundation /authentication

 

Lawyers cannot testify, he needs to call a witness to lay a foundation for documents and to testify (he cannot do it for them)

 

OBJECT

 

Good Luck

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