36 Days to Trial in Cali. Continuance? Please help.

[RyanEX]

^ I just re-read your post. Thank you! I will have my Trial Brief and Objections ready 5 court days prior to trial. Since I have to serve them on the Plaintiff, does that mean I need to send it out at least 7-10 court days prior to trial, to allow for 2 or 5 days for mailing? How would that work?  

 

I sent mine out 5 court days before, regular mail CMRRR. Filed them at the courthouse same day. Midland's address (well, the UPS mailbox they used for the case) is local so they got it next day. Plus they had 2 weekend days with it in hand. As I recall, the code didn't say it couldn't go regular mail, so that's what I did.

 

I think your good if you want to send it out a few days before that. IMO, when the JDB receives the Brief and Objection (MIL), they recognize that they will be facing an uphill battle against you if they go through with trial, and will make a last ditch effort to get you to settle with them before possibly dismissing. The JDB getting those filings a few days early can accelerate that.

 

In my case they probed to see if I was interested in settlement at trial call - 15 minutes later they dismissed while we were in judge's chambers. I got Plaintiff's trial brief 2 days later, lol, and it was completely generic.

[mgp]

I sent mine out 5 court days before, regular mail CMRRR. Filed them at the courthouse same day. Midland's address (well, the UPS mailbox they used for the case) is local so they got it next day. Plus they had 2 weekend days with it in hand. As I recall, the code didn't say it couldn't go regular mail, so that's what I did.

 

I think your good if you want to send it out a few days before that. IMO, when the JDB receives the Brief and Objection (MIL), they recognize that they will be facing an uphill battle against you if they go through with trial, and will make a last ditch effort to get you to settle with them before possibly dismissing. The JDB getting those filings a few days early can accelerate that.

 

In my case they probed to see if I was interested in settlement at trial call - 15 minutes later they dismissed while we were in judge's chambers. I got Plaintiff's response to my brief 2 days later, lol, and it was completely generic.

 

^ Man, that's great! I hope Plaintiff motions to dismiss in my case. I'll be so grateful when this thing is over. I've got a ton of work to do. But, I finally hooked up internet at home, so I can do some work at night, and on weekends.    

 

If you don't mind me asking, how long was your Brief, and how many objections did you submit? I still need to read through some of the threads I cited, and check out some samples.

[RyanEX]

^ Man, that's great! I hope Plaintiff motions to dismiss in my case. I'll be so grateful when this thing is over. I've got a ton of work to do. But, I finally hooked up internet at home, so I can do some work at night, and on weekends.    

 

If you don't mind me asking, how long was your Brief, and how many objections did you submit? I still need to read through some of the threads I cited, and check out some samples.

 

10 pages on the trial brief. Though it can probably be cut down a little. I posted links to both my brief & objection in these threads, you can take a look. I submitted just the one objection filing, but I addressed several issues in it.

 

http://www.creditinfocenter.com/community/topic/325280-anyone-got-a-good-calif-trial-brief-example/#entry1313991

 

http://www.creditinfocenter.com/community/topic/325003-portfolio-recovery-hunt-henriques/page-4#entry1313233

 

Every now and then the JDB takes these to trial, so while many get dismissed (after calling their bluff on the CCP 98 declarant & filing the brief & objection), always prepare like you'll be the one case that does go all the way.

[HumgBird]

Was the notice of hearing you received from the JDB?  That is standard procedure.  I think by law they need to do that and I received mine a few days before I got my CCP 96 response too. 

 

I would definitely ask the court clerk when you call her back about the Trial Readiness Conference and whether you will or should have one.  Mine was scheduled during the Case Management Conference at the same time the trial date was scheduled.  And it was not 2 weeks before trial...it was 2 days.  Conference was Friday and trial the following Monday.  Each department may have different rules and can be different than the county rules.

 

I filed my MIL's exactly 5 days prior to trial - then sent them to JDB attorneys same day.  The less time you give them to respond the better IMO, and they do need to be filed and send to them 5 days prior.   

[HumgBird]

^ I just re-read your posts too. Thanks for that info! It looks like the Local Rules are county wide, so that's good. I need to figure out what's going to work best. I just IM'd another member on here, who is in the same jurisdiction, and he labeled his MILs as Objections. But, your process was the opposite. I'm guessing both will work? I don't know.

 

I think if I had just labeled them "Objections" and dropped them in my departments "drop box" it probably would have been OK.  I didn't know I could do this--nor that they even had a drop box.   I pretty much had to learn the "rules" every time I went to the court office.  Because I didn't know, I was afraid they would consider it a "motion" and charge me $60 each and require me to schedule a date in advance --which is exactly what the clerk wanted to do until I pointed out it was a MIL.  So that is another question you can ask the clerk when you call her back...if you should just put your "objections" in their drop box.

[shellieh98]

I'm confused, or didn't catch it in another thread. Did you send them a ccp96?

[mgp]

I sent mine out 5 court days before, regular mail CMRRR. Filed them at the courthouse same day. Midland's address (well, the UPS mailbox they used for the case) is local so they got it next day. Plus they had 2 weekend days with it in hand. As I recall, the code didn't say it couldn't go regular mail, so that's what I did.

 

I think your good if you want to send it out a few days before that. IMO, when the JDB receives the Brief and Objection (MIL), they recognize that they will be facing an uphill battle against you if they go through with trial, and will make a last ditch effort to get you to settle with them before possibly dismissing. The JDB getting those filings a few days early can accelerate that.

 

In my case they probed to see if I was interested in settlement at trial call - 15 minutes later they dismissed while we were in judge's chambers. I got Plaintiff's trial brief 2 days later, lol, and it was completely generic.

 

CMRRR = Certified Mail Return Receipt Requested?

 

Thanks for sharing. Great advice. 

[mgp]

Was the notice of hearing you received from the JDB?  That is standard procedure.  I think by law they need to do that and I received mine a few days before I got my CCP 96 response too. 

 

I would definitely ask the court clerk when you call her back about the Trial Readiness Conference and whether you will or should have one.  Mine was scheduled during the Case Management Conference at the same time the trial date was scheduled.  And it was not 2 weeks before trial...it was 2 days.  Conference was Friday and trial the following Monday.  Each department may have different rules and can be different than the county rules.

 

I filed my MIL's exactly 5 days prior to trial - then sent them to JDB attorneys same day.  The less time you give them to respond the better IMO, and they do need to be filed and send to them 5 days prior.   

 

I received the Notice of Hearing directly from the Court. At our CMC (Case Management Conference), the Judge put us on calendar for trial. But when I re-read the local rules earlier this week, I realized that he was supposed to have scheduled a Trial Readines Conference.

 

I called the Court Clerk for my Judge today, and asked if they should have scheduled us for a Trial Readiness Conference, and she stated no. According to the Clerk, collection cases were simple, and that they didn't require one. I then explained to her that collection cases involve the introduction of discovery, and witnesses; and that the local rules state a TRC is supposed to be scheduled. I was really surprised when she said that. She replied that I could ask the Judge for a TRC when I appear at the trial! I was like what the heck?? At that point, it will probably be too late!

 

The Court Clerk was not helpful in the least, and didn't seem to know what she was talking about. I asked her when I should submit the Trial Brief and Objections, and she stated that I needed to refer to the local rules. To which I replied, that the local rules didn't address Trial Briefs.

 

I know the answer now, but sheesh.     

[mgp]

I'm confused, or didn't catch it in another thread. Did you send them a ccp96?

 

Yes, I did send them a CCP96. I overnighted the CCP96 and BOP on 1/29/15. The BOP response and the CCP98 were due yesterday, 2/10/15.

 

The CCP96 is due 2/20/15.

 

I have not received a response to the BOP and CCP98.

[shellieh98]

Good it will make it easier for your objections that they were late. Of coarse if they fail to send altogether, it will make the case easier to win at trial, if it got that far.

[RyanEX]

Yes, I did send them a CCP96. I overnighted the CCP96 and BOP on 1/29/15. The BOP response and the CCP98 were due yesterday, 2/10/15.

 

The CCP96 is due 2/20/15.

 

I have not received a response to the BOP and CCP98.

 

Remember, they just need to serve their CCP96 response (place it in the mail) by 2/20 - you may not get it until a few days after.

 

And with a 3/6/15 trial date, they would have needed to place a CCP 98 in the mail by 2/4/15 - if you haven't received it by now then maybe they blew it . I would still give it a couple days though, and I would check the postmark and POS dates if it does show up.

 

[mgp]

Remember, they just need to serve their CCP96 response (place it in the mail) by 2/20 - you may not get it until a few days after.

 

And with a 3/6/15 trial date, they would have needed to place a CCP 98 in the mail by 2/4/15 - if you haven't received it by now then maybe they blew it . I would still give it a couple days though, and I would check the postmark and POS dates if it does show up.

 

 

^ Okay, so if I understand CCP Section 1013 (a), the Plaintiff has an extra 5 calendar days to respond, if served by first-class mail, correct?  

 

And, under CCP Section 1013 ( c ), the Plaintiff has an extra 2 calendar days to respond, if served by overnight delivery, correct? 

 

So they can have anywhere from 22-25 days to respond to the CCP96 depending on the delivery method. But, this doesn't include actually delivery time. And completion of service is the date the item is dropped in the mail.

 

So even though the CCP96 is technically due within 20 days from the service of the request (Service Date 1/30/2015), they can actually respond on the 22nd day, which would be 2/20/15, and then drop it in the mail, which would take several more days. So I might not receive it until the 2/25/15, or a few days after?

 

 

BUT, with the CCP98, they don't get the 2-5 day extension? So, they would have to send out the CCP98 at least 30 days prior to trial, and the POS would have to show a date of 2/4/2015. But I don't necessarily have to receive it 30 days prior to trial because completion of service is considered to be the date it's mailed, correct?

 

I would've never thought that mailing stuff could be so complicated.

 

I'm guessing it's the same with my demand for BOP. Service must have been completed by 2/10/2015, but as long as it's in the mail by that date, then it's okay. So I might still receive a response, and I might not.   

[RyanEX]

^ Okay, so if I understand CCP Section 1013 (a), the Plaintiff has an extra 5 calendar days to respond, if served by first-class mail, correct?  

 

And, under CCP Section 1013 ( c ), the Plaintiff has an extra 2 calendar days to respond, if served by overnight delivery, correct? 

 

So they can have anywhere from 22-25 days to respond to the CCP96 depending on the delivery method. But, this doesn't include actually delivery time.

 

So even though the CCP96 is technically due within 20 days from the service of the request (Service Date 1/30/2015), they can actually respond on the 22nd day, which would be 2/20/15, and then drop it in the mail, which would take several more days, correct? So I might not receive it until the 2/25/15, or a few days after?

 

Correct

 

BUT, with the CCP98, they don't get the 2-5 day extension? So, they would have to send out the CCP98 like maybe 35 days prior to Trial in oder to make sure that I get it 30 days prior to trial?

 

 

No, their CCP 98 declaration isn't a response to a request of yours. Their deadline to serve the CCP 98 is the 30th day before trial, so they just have to place it in the mail by that 30th day & you may not get it til a few days after, so within the 30 day window. When/if you do get it, check the postmark and the POS to make sure they mailed it at least by that 30th day.

[mgp]

Okay, here's a question about responding to discovery.

 

If a response to discovery was due on 1/19/2015, which was a holiday and is probably irrelevant, an acceptable date on the POS discovery response would be anywhere from 1/21/2015 - 1/24/2015, correct?

[mgp]

Correct

 

 

No, their CCP 98 declaration isn't a response to a request of yours. Their deadline to serve the CCP 98 is the 30th day before trial, so they just have to place it in the mail by that 30th day & you may not get it til a few days after, so within the 30 day window. When/if you do get it, check the postmark and the POS to make sure they mailed it at least by that 30th day.

 

^ Okay, thaks for clarifying that. Hopefully they screwed up. Including today, it's already been 8 days since it was supposed to have been mailed.

[mgp]

Okay, here's a question about responding to discovery.

 

If a response to discovery was due on 1/19/2015, which was a holiday and is probably irrelevant, an acceptable date on the POS discovery response would be anywhere from 1/21/2015 - 1/24/2015, correct?

 

Okay, I think I just answered my own question. This is what I found, so please correct me if I'm wrong.

 

 

2016.060.  When the last day to perform or complete any act provided

for in this title [ 2016.010.  This title may be cited as the "Civil Discovery Act."]

falls on a Saturday, Sunday, or holiday as specified in Section 10, the time limit is extended until the next

court day closer to the trial date.

 

So as long as the response was in the mail by 1/20/15, it should be okay, right? 

 

[RyanEX]

Okay, I think I just answered my own question. This is what I found, so please correct me if I'm wrong.

 

 

2016.060.  When the last day to perform or complete any act provided

for in this title [ 2016.010.  This title may be cited as the "Civil Discovery Act."]

falls on a Saturday, Sunday, or holiday as specified in Section 10, the time limit is extended until the next

court day closer to the trial date.

 

So as long as the response was in the mail by 1/20/15, it should be okay, right? 

 

 

Yes.

[mgp]

Alright Everyone -

 

I just wanted to provide an update on my thread. Trial is 2 weeks from tomorrow, and I'd like to have my Trial Brief and Objections completed by this weekend if possible. Although I've done some reading on here, including some sample Briefs and Objections, and checked out some videos, I've basically being waiting for the CCP98 (which never came), in order to plan my next move. So I'll need all the feedback and help I can get. Please bear with me.  

 

So here's a bit more background on my affirmative defense(s).

 

Based on my Answer to the complaint, and on some very helpful feedback from RyanEX, my main defense will be SOL. Specifically, I'll be using the Delaware SOL, which is 3 years from the date the contract was broken.

 

It's in Del. Code Ann. tit. 10, section 8106.

 

I stopped making payments on the CC account in either 2009 or 2010, but I don't have CC statements of my own. However, the CC statements that the JDB provided indicate that I missed a payment in September 2010.

 

JDB didn't bring the suit until February 2014. I'm not basing my argument on the CA SOL, because I tried making payments on the CC account in 2011. And it's my understanding, that the clock starts ticking from the last activity on the account, correct? Just in case, I included the CA SOL as an affirmative defense in my Answer.  

 

But unlike CA law, Delaware law states that the SOL is 3 years from the accruing of the cause of such action (Del. Code Ann. tit. 10, section 8106).

 

In actuality, I missed payments prior to 2009, but the CC account number at that time was different than the CC account number being used by the JDB in the suit.

 

I found a case similar to mine, and I believe I can use it because I believe it's been published. And from what I've read, you can only cite case law that's been published, correct?

 

The case is Resurgence Financial, LLC v. Pamela S. Chambers (173 Cal. App.4th Supp. 1; 92 Cal. Rptr. 3d 844; 2009 Cal. App. LEXIS 596) < I have no idea if I did this correctly. I need to read up on how to do legal citations.

 

So, these are some questions I have:

 

1.) Does anyone have any first hand knowledge of this case, or of using the Delaware SOL as a line of defense?

 

2.) In my Answer, I didn't include anything about using the hearsay argument as an affirmative defense. Does that mean I can't use the hearsay argument in my Trial Brief, or at Trial? I plan on filing an Objection (MIL) against the evidence they have proffered. Is that good enough? And can I voice my Objection to the evidence at Trial?

 

3.) The Lexis Nexis abstract for the above case is very comprehensive, in that it cites other case law used against the JDB. Should I cite these cases in my Trial Brief as well? or is citing the Resurgence case good enough?  

 

4.) I NEVER received a CCP98. All of the main threads everyone cites (e.g. Homeless, ASTMedic) received a CCP98, and objected to it. Does this mean that the JDB plans on bringining in someone to provide live testimony? How should I proceed?

 

5.) The CCP96 is due tomorrow, or it should at least have 02/20/2015 as the date on the POS. JDB's attorney received it 1/30/2015. Should I start drafting my Trial Brief after I receive the CCP96? I have to get my Objection and Brief out by 2/27/2015. I might not get the CCP96 until 2/23/2015 or later. I didn't really want to have to wait until last minute. I'm already a bit stressed about how to even write the Brief. All the popular sample briefs cite the Hearsay Defense. Thoughts?

[sadinca]

 

4.) I NEVER received a CCP98. All of the main threads everyone cites (e.g. Homeless, ASTMedic) received a CCP98, and objected to it. Does this mean that the JDB plans on bringining in someone to provide live testimony? How should I proceed?

 

 

 

have you check the court docket and double check that they haven't in fact filed CCP98 with the court but conveniently for them you never got it???

[mgp]

have you check the court docket and double check that they haven't in fact filed CCP98 with the court but conveniently for them you never got it???

 

Yes, I did. I checked online, and I've been checking everday for the past 2 weeks just in case. I didn't see anything scanned into the court docket. Is there a delay in scanning documents into the court docket if the case is electronic? Or, is it immediate?   

[sadinca]

 

So, these are some questions I have:

 

1.) Does anyone have any first hand knowledge of this case, or of using the Delaware SOL as a line of defense?

 

I am sure there is a caselaw regarding Delaware SOL, I will review my pringouts and get back to you as soon as possible. hopefully someone else have the answer in their brains.

 

 

2.) In my Answer, I didn't include anything about using the hearsay argument as an affirmative defense. Does that mean I can't use the hearsay argument in my Trial Brief, or at Trial? I plan on filing an Objection (MIL) against the evidence they have proffered. Is that good enough? And can I voice my Objection to the evidence at Trial?

 

the hearsay rule is not something you utilize as an affirmative defense.

 

 

here, hope this helps you identify hearsay and object to it as soon as you hear it.

 

https://www.youtube.com/watch?v=FaCDUKoG_kk

 

http://www2.courtinfo.ca.gov/protem/courses/hearsay_1/01_01.htm

[sadinca]

Yes, I did. I checked online, and I've been checking everday for the past 2 weeks just in case. I didn't see anything scanned into the court docket. Is there a delay in scanning documents into the court docket if the case is electronic? Or, is it immediate?   

 

when you file something, it gets noted on the docket at the moment of filing, for the documents to be imaged and able to print out from the docket (at an outrageous price) takes about 1 or 2 days.

[mgp]

here, hope this helps you identify hearsay and object to it as soon as you hear it.

 

https://www.youtube.com/watch?v=FaCDUKoG_kk

 

http://www2.courtinfo.ca.gov/protem/courses/hearsay_1/01_01.htm

 

^ Thank you. I'll check those links out when I get home from work. You may have shared those with me in an earlier thread. I'll double check.

 

when you file something, it gets noted on the docket at the moment of filing, for the documents to be imaged and able to print out from the docket (at an outrageous price) takes about 1 or 2 days.

 

Okay, so then that means they didn't file a CCP98. There's nothing in the Docket. I can call tomorrow and double check. Hopefully the clerk can confirm this over the phone.

[sadinca]

^ Thank you. I'll check those links out when I get home from work. You may have shared those with me in an earlier thread. I'll double check.

 

 

Okay, so then that means they didn't file a CCP98. There's nothing in the Docket. I can call tomorrow and double check. Hopefully the clerk can confirm this over the phone.

 

I may have. sorry if its a double post. im not sure where you are located, but in Orange County, it would be futile to call the court to get any help from the clerks, phone system wouldn't allow you to speak to anyone over the phone due to budget cuts.

[mgp]

I may have. sorry if its a double post. im not sure where you are located, but in Orange County, it would be futile to call the court to get any help from the clerks, phone system wouldn't allow you to speak to anyone over the phone due to budget cuts.

 

Please, no worries. I need all the help I can get. Thanks for even reading my thread. I'm in San Diego, but phone hours are only 8:30 am - 11:30 pm.

I should just skip the phone, and walk down there. Tomorrow, they're open from 8:30 am - 12:00 pm.

 

So, if they did in fact not file a CCP98, they have to provide a live witness to testify at trial, correct? An employee of the creditor (affiant) who can testify as to the validity of the records being proffered as evidence, correct?