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

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if they filed CCP 98 it would look something like this on the docket

 

 

 

37 DECLARATION - OTHER FILED BY MIDLAND FUNDING LLC; MIDLAND FUNDING LLC ON 10/16/2014 10/16/2014 62 pages

36 PROOF OF SERVICE FILED BY MIDLAND FUNDING LLC; MIDLAND FUNDING LLC ON 10/16/2014 10/16/2014 2 pages

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Ok, I couldn't find the caselaw on Delaware SOL. I know I saw one and I found it these threats, i'll double check at home with the rest of the documents and i'll try to post as soon as I find it.

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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?

to my knowledge, CCP98 is the only code that allows them to produce what otherwise would be hearsay documents and introduce them without a live witness to testify to their validity.

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if they filed CCP 98 it would look something like this on the docket

 

 

 

37 DECLARATION - OTHER FILED BY MIDLAND FUNDING LLC; MIDLAND FUNDING LLC ON 10/16/2014 10/16/2014 62 pages

36 PROOF OF SERVICE FILED BY MIDLAND FUNDING LLC; MIDLAND FUNDING LLC ON 10/16/2014 10/16/2014 2 pages

 

^ According to County of SD ROA, the last filing entry was 12/04/2014, and it was my CMS.

 

Ok, I couldn't find the caselaw on Delaware SOL. I know I saw one and I found it these threats, i'll double check at home with the rest of the documents and i'll try to post as soon as I find it.

 

^ Okay, thank you so much.

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to my knowledge, CCP98 is the only code that allows them to produce what otherwise would be hearsay documents and introduce them without a live witness to testify to their validity.

 

^ Well, that could mean several things I think. Either they messed up, and didn't send a CCP98; and now, they can't introduce hearsay evidence at trial. Which would be sooo great. 

 

Or, they plan on using a live witness at trial in order to introduce evidence. Which would be not so great.

 

I'll prepare for the latter, and hope for the former.

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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 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?

 

 

^The search function is my friend. Use of the search term 'Resurgence Financial LLC' yielded 3 pages of results. Looks like I need to do a lot of reading, but at least I'm not on my own.  

 

Ok, I couldn't find the caselaw on Delaware SOL. I know I saw one and I found it these threats, i'll double check at home with the rest of the documents and i'll try to post as soon as I find it.

 

^ That's okay. Thanks for your help. If it's easy enough, then by all means, please do. But, don't burden yourself. I just did the above search. Next, I'll do Delaware SOL. 

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Sorry i looked through my print outs but i couldn't find it. We didnt have the SOL option thats why we dont have it but im almost certain that i saw it through the threats. Im sure google will being it up.

Get your questions for the witness ready just in case.

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Sorry i looked through my print outs but i couldn't find it. We didnt have the SOL option thats why we dont have it but im almost certain that i saw it through the threats. Im sure google will being it up.

Get your questions for the witness ready just in case.

 

That's okay. Thanks for looking. I really appreciate it. I found a bunch of threads regarding Resurgence Financial LLC v. Chambers which discusses the Delaware SOL. I'm reading through them now.

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HAMBRECHT & QUIST VENTURE PARTNERS v. AMERICAN MEDICAL INTERNATIONAL, INC. 38 Cal.App.4th 1532 (1995) 46 Cal. Rptr.2d 33

 

http://scholar.google.com/scholar_case?case=4763613297294907471&q=Delaware+Statute+of+limitations&hl=en&as_sdt=4,5

 

 

Hughes Electronics Corp. v. Citibank, 15 Cal. Rptr. 3d 244 - Cal: Court of Appeal, 2nd Appellate Dist., 8th Div. 2004

 

http://scholar.google.com/scholar_case?case=10708265506092078472&q=Delaware+Statute+of+limitations&hl=en&as_sdt=4,5

 

http://www.courts.ca...eResurgence.pdf          

 

from one of the threats:

 

Furthermore, Plaintiff filed the complaint, which alleges that Defendant breached the terms of a credit card agreement between Defendant and Plaintiff, a Delaware corporation. The credit card agreement contains a Delaware choice-of-law clause to be applied "without regard to conflict-of-law principles." Under Delaware law, the statute of limitations for breach of contract is three years. (§ 8106; Wed- derien v. Collins (Del. 2007) 937 A.2d 140.)"

 

 D. The Demurrer Should be Sustained Without Leave to Amend Since the Plaintiff’s Complaint Exceeds the Statute of Limitations

“Where there is a basis for choosing a foreign jurisdiction's law, the court determines if the foreign jurisdiction's law is contrary to a fundamental policy of California. California courts have afforded contracting parties considerable freedom to modify the length of a statute of limitations. Courts generally enforce parties' agreements for a shorter limitations period than otherwise provided by statute, provided it is reasonable. ‘Reasonable’ in this context means the shortened period nevertheless provides sufficient time to effectively pursue a judicial remedy.”

(Resurgence Financial, LLC v. Pamela S. Chambers (2009) 173 Cal.App.4th Supp. 1; 92 Cal.Rptr.3d 844; 2009 Cal.App. LEXIS 596.) 

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HAMBRECHT & QUIST VENTURE PARTNERS v. AMERICAN MEDICAL INTERNATIONAL, INC. 38 Cal.App.4th 1532 (1995) 46 Cal. Rptr.2d 33

 

http://scholar.google.com/scholar_case?case=4763613297294907471&q=Delaware+Statute+of+limitations&hl=en&as_sdt=4,5

 

 

Hughes Electronics Corp. v. Citibank, 15 Cal. Rptr. 3d 244 - Cal: Court of Appeal, 2nd Appellate Dist., 8th Div. 2004

 

http://scholar.google.com/scholar_case?case=10708265506092078472&q=Delaware+Statute+of+limitations&hl=en&as_sdt=4,5

 

http://www.courts.ca...eResurgence.pdf          

 

from one of the threats:

 

Furthermore, Plaintiff filed the complaint, which alleges that Defendant breached the terms of a credit card agreement between Defendant and Plaintiff, a Delaware corporation. The credit card agreement contains a Delaware choice-of-law clause to be applied "without regard to conflict-of-law principles." Under Delaware law, the statute of limitations for breach of contract is three years. (§ 8106; Wed- derien v. Collins (Del. 2007) 937 A.2d 140.)"

 

 D. The Demurrer Should be Sustained Without Leave to Amend Since the Plaintiff’s Complaint Exceeds the Statute of Limitations

“Where there is a basis for choosing a foreign jurisdiction's law, the court determines if the foreign jurisdiction's law is contrary to a fundamental policy of California. California courts have afforded contracting parties considerable freedom to modify the length of a statute of limitations. Courts generally enforce parties' agreements for a shorter limitations period than otherwise provided by statute, provided it is reasonable. ‘Reasonable’ in this context means the shortened period nevertheless provides sufficient time to effectively pursue a judicial remedy.”

(Resurgence Financial, LLC v. Pamela S. Chambers (2009) 173 Cal.App.4th Supp. 1; 92 Cal.Rptr.3d 844; 2009 Cal.App. LEXIS 596.) 

 

 

Thank you Sadinca! This is VERY helfpul.

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Very helpful SadinCa, you are making a big difference.

 

thank you!   I couldn't make them go away on my wife's case, now Im just hoping I can help someone else just a bit so they can win their case

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Hope this helps

 

I just read through the questions. Thank you! I never even thought of asking most of those questions. And I like the way you wrapped it up at the end to explain why the questions were relevant.

 

Am I allowed to ask all of those questions?

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Am I allowed to ask all of those questions?

 

well, it depends on how your trial is going. if the witness testifies right off the bat that he/she has never worked for the OC but he/she is a JDB employee, then during your time you would just start by saying: for the record you have never worked for OC, you are an employee of JDB, correct? you have no idea how they keep or maintain their records correct? and if the alleged records were transferred with errors? correct? you have never seen any of these records being generated? you were not present at the time or near the time these records were signed, correct?

at this moment you can move to strike the witness testimony citing all pertinent caselaws regarding lack of personal knowledge and evidence code.

 

if i remember correctly I read some old threats where defendant moved to strike the testimony this way and it was granted.

 

if not you can continue to question the defendant with the rest of the questions, at that moment I would skip all the questions regarding OC since lawyer can object to them since defendant in this scenario already stated that has never worked for OC.

see, where I am trying to go? you may have to adjust your questioning depending on how the trial is proceeding.

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Here is a transcript of an actual court examination and cross examination of a jdb witness. Its a bit lengthy but interesting read. It will give you an idea of when to object and under what grounds while examination.

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Thank you, thank you! I really hope this case doesn't go to trial, but if it does, I'll be better prepared thanks to your help, and thanks to the help from all the other members who have chimed in.

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Hey Everyone, here's the latest update - 

 

I never received a CCP98. But, I did receive a response to my BOP.

 

In addition to not providing a compliant response to the BOP, they're also trying to circumvent the discovery process. Here's what they said in their BOP response:

 

"Plaintiff's response to Defendant's Demand for Bill of Particulars is attached hereto as Exhibit "A". Discovery is ongoing, and Plaintiff is seeking additional documents from the underlying creditors. Additional documents will be provided to Defendant upon receipt as a supplemental response to the Demand for Bill of Particulars."

 

According to the rules of discovery, they should have completed discovery 30 days prior to trial, which is set for 3/6/15. A demand for BOP isn't discovery, and the statute doesn't provide for a supplemental response.

 

Also, they didn't fully comply with CCP 454 because they didn't provide the requested documents on time. They're allegedly trying to supply the requested docs late.

 

Plaintiff only provided an unverified (unverified = not notarized, correct?) Bill of Sale that was signed by an Assignor and an Assignee.    

 

Attached to the Bill of Sale are about 1 years worth of statements. There is no verified Affidavit included with the Bill of Sale. The Bill of Sale refers to an agreement entered into between the buyer and seller on 06/19/2013, but the agreement is not included. The Bill of Sale is dated 06/27/2013.

 

I received this packet of information (Bill of Sale and Statements) twice. Once after the mandatory settlement conference, and once as a response to my BOP.

 

So far, Plaintiff has not provided a copy of the contract. I'm still waiting for Plaintiff's CCP96 response, which is due any day now. The CCP96 POS needs to have a date of 2/20/15. Again, Plaintiff never sent a CCP98.

 

So my plan was to draft an MIL to preclude the giving of evidence based on their non-compliant response to CCP 454, and their attempt to circumvent the rules of discovery. I was also going to include the fact that the documents they have provided are hearsay. I was thinking of including a letter with the MILs when I send them to the attorney. 

 

Thoughts?

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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.

 

 

Ryan's objection is a great template.  Very clear and short.  However, since that time, another case has been decided that agrees with Target Bank.  It is called CACH v. Rodgers.  If you look at post 32 of the following thread, I suggest some language that can be included in the objection to incorporate that case:  http://www.creditinfocenter.com/community/topic/324789-sued-by-midland-funding-court-date-in-31-days/page-2

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Ryan's objection is a great template.  Very clear and short.  However, since that time, another case has been decided that agrees with Target Bank.  It is called CACH v. Rodgers.  If you look at post 32 of the following thread, I suggest some language that can be included in the objection to incorporate that case:  http://www.creditinfocenter.com/community/topic/324789-sued-by-midland-funding-court-date-in-31-days/page-2

 

I'm all about clear and short briefs. I've had enough difficulty drafting short MILs. I remember seeing the CACH v. Rodgers case mentioned in the forum, but I never read it. I'll check out the link. Thank you!   

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Hey Everybody -

 

I don't think anyone has checked this thread for a while, but I thought I'd let you all know that I won my case :-D

 

My Trial was scheduled for Friday, March 6, 2015, but we never went to trial. I checked in, and Plaintiffs attorney asked if I was willing to discuss the case. We went outside, and he asked what type of settlement I'd be interested in. I explained that I was willing to waive all costs, if they were willing to dismiss with prejudice. He checked with his higher ups, and they gave him the thumbs up.

 

So, plaintiff agreed to a dismissal with prejudice if I agreed to drop any and all counter claims, and each party would bear its own costs. We went on the record before the Judge, and that was it. I'm free and clear!

 

I want to thank everyone who took the time to offer help in my thread, especially Sadinca and Anon Amos, and everyone who took the time to communicate with me through private messages - RyanEX and Humgbird. I couldn't have done it without any of your help!! And, I especially want to thank Calawyer, who's generosity and help really made the difference. Thank you all so very much!!! We're all so fortunate to have this forum as a resource.

 

So remember, it can be done!! Don't give up!!!

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