cbincali

Custodian of records successfully served/Portfolio Recovery Now what??

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The Custodian of Records for Portfoilo recovery that I served a subpoena on today was successfully served on the first attempt. Now what???? I was studying and working on my Motion and Limine to the CCP98 and  I think it is now a moot point. right?  What next freaking out. Didn't think service would be successful.  I know I should be objecting to something just not sure at this point. ::drowning:::Pasties:

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You should be objecting to any evidence they produced.

Not sure if you sent them a ccp 96 request for witness and evidence request or if you received what they plan to use.

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Yes the process server said he served her at her desk. He said she told him she gets alot of these because she is a Custodian of Records.  Yes sent the CCP 96 and got back with all the evidence they plan on using.  Which consisited of:

 CCP 98 - which is why I subpenoed the Custodian of Records

Affidavit of sale of (a pool of charge off's) account by orginal creditor which is notorized by some one in Minnesota

Blanket Cettificate of Conformity for Notary

Seller Data Sheet/with my name address and bal....

Another affidavit of sale from the colllections operations rep for the original creditor

Copy of customer agreement

Copys of statement (no charges just the page

Thats all.

 

So would I still object to the CCP 98 even though I subpoena'd and served her.

Also can I object to the affidavit's?

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I would still file an objection to the ccp98 because you don't know for sure this witness will show up (or that it was really her that was served) and there were probably exhibits a attached to the ccp98 that you don't want admitted into evidence along with it.
Also, affidavits are inadmissible at trial (unless you don't object) CA evidence code 1200. The case to cite is Elkins v Superior Court. There's more case law on this as well. Remind me when you work on this objection and I will dig them up for you.
You need to be forming objections for the other evidence as well. You aren't going to have much time so you will have to work hard.

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Seller Data Sheet/with my name address and bal....

 

One objection for this is that it was prepared solely for the sake of litigation and is to be viewed as less trustworthy. Another is that it does not meet any requirements of the business records  exceptions to hearsay under CA Evidence Code 1271.

 

"A document prepared for the sake of litigation is not a business record because it is lacking in trustworthiness"  Palmer v Hoffmam, 318 U.S. (1943)

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Agree w Anon, you should still object to the CCP 98; also prepare to cross examine the witness should they bring her to trial.

 

She might be a "Custodian of Records" for Portfolio - but unless she was employed with the original creditor in the same capacity she shouldn't be allowed to authenticate OC records. Easy619 cross examined a witness at his trial - his transcription of that cross exam here: http://www.creditinfocenter.com/community/topic/322848-my-california-appeal-edit-i-won/?p=1284312 - take a look, it's a good road map. He got screwed by the judge who allowed the witness to authenticate the docs, but it was overturned on appeal. The appellate court cited, among other issues, that a custodian of records for that JDB could not authenticate records from an OC. Summary of Easy619's reversal here: http://www.creditinfocenter.com/community/topic/322848-my-california-appeal-edit-i-won/?p=1315511.

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I would still file an objection to the ccp98 because you don't know for sure this witness will show up (or that it was really her that was served) and there were probably exhibits a attached to the ccp98 that you don't want admitted into evidence along with it.

Also, affidavits are inadmissible at trial (unless you don't object) CA evidence code 1200. The case to cite is Elkins v Superior Court. There's more case law on this as well. Remind me when you work on this objection and I will dig them up for you.

You need to be forming objections for the other evidence as well. You aren't going to have much time so you will have to work hard.

Thank you very much. Quick question I was reviewing the Elkins v Superior Court case and I not quite sure how this case works in my favor and what the pertinent parts are. Can you help me out with that? Please

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Agree w Anon, you should still object to the CCP 98; also prepare to cross examine the witness should they bring her to trial.

 

She might be a "Custodian of Records" for Portfolio - but unless she was employed with the original creditor in the same capacity she shouldn't be allowed to authenticate OC records. Easy619 cross examined a witness at his trial - his transcription of that cross exam here: http://www.creditinfocenter.com/community/topic/322848-my-california-appeal-edit-i-won/?p=1284312 - take a look, it's a good road map. He got screwed by the judge who allowed the witness to authenticate the docs, but it was overturned on appeal. The appellate court cited, among other issues, that a custodian of records for that JDB could not authenticate records from an OC. Summary of Easy619's reversal here: http://www.creditinfocenter.com/community/topic/322848-my-california-appeal-edit-i-won/?p=1315511.

Thank you very much! I'll check it out.

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Thank you very much. Quick question I was reviewing the Elkins v Superior Court case and I not quite sure how this case works in my favor and what the pertinent parts are. Can you help me out with that? Please

It's a very important case. Elkins represented himself in a divorce. There was a local superior court rule and a trial scheduling rule that required evidence to be admitted by affidavit (instead of a live witness laying a foundation), testimony to be introduced by declaration, and no right to cross examine a witness (sound familiar? It's the same way the jdb's try to handle a trial). Elkins thought it was ridiculous that he was being beaten by an affidavit and couldn't cross examine and he couldn't admit his own evidence because he didn't introduce it with a declaration (instead of laying a foundation himself).

There's more to it of course, but the Superior court agreed;reversed it and states how the rule was not Constitutional (by not providing due process) and that hearsay is inadmissible at trial (under CA Evidence code 1200, and that affidavit declarations are for motion hearings only, not trial. Also that the family court should operate under the same due process laws as a trial court, and that affidavits are only admissible at motion hearings or by statute (like ccp 98 (if not objected to).

 

It also mentions many other good case law that talks about the importance of live witness, and hearsay inadmissible. Read it again. Start by reading the first page of the case and then read it from the last page to the front page, in a reverse order, see if that helps.

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The Custodian of Records for Portfoilo recovery that I served a subpoena on today was successfully served on the first attempt. Now what???? What next freaking out. Didn't think service would be successful. 

 

My cases are from a different time and from a different state, but there is still not a guarantee they will show. Study up on how to question the COR in the event they do show. I had a case with a JDB that started with P and ended with A, and they didn't show. Nothing is guaranteed, but you should at least be ready for them. Don't just give up at because of one little thing. We have several CA posters here with lots of experience. Probably more than any other state. Ask questions, study and practice. 

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^ Good advice above @ArtVandelay. cbcali, your service was successful, but don't look at it as a setback. Think of your defense as a series of dominoes, and the first one you were going to push over was the CCP 98 declaration that couldn't be served - so they took that away > move on to the next domino.

 

A few months ago another CA member successfully served the CCP declarant. It was also PRA. Maybe PRA has (finally) caught on to defendants calling the bluff on the CCP 98 and are listing local people who can actually be served. Understandably, it probably scares a few people (who thought no person would actually be there) into rethinking the decision to fight. Curious, what was the declarant's name?

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^ Good advice above @ArtVandelay. cbcali, your service was successful, but don't look at it as a setback. Think of your defense as a series of dominoes, and the first one you were going to push over was the CCP 98 declaration that couldn't be served - so they took that away > move on to the next domino.

 

A few months ago another CA member successfully served the CCP declarant. It was also PRA. Maybe PRA has (finally) caught on to defendants calling the bluff on the CCP 98 and are listing local people who can actually be served. Understandably, it probably scares a few people (who thought no person would actually be there) into rethinking the decision to fight. Curious, what was the declarant's name?

Thank you for that pep talk, the declarant (Maria Marin) being there did shake me a bit. But I'm going to keep moving forward. Thank you again!!! Up late in LA working on my case. XhairX

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It's a very important case. Elkins represented himself in a divorce. There was a local superior court rule and a trial scheduling rule that required evidence to be admitted by affidavit (instead of a live witness laying a foundation), testimony to be introduced by declaration, and no right to cross examine a witness (sound familiar? It's the same way the jdb's try to handle a trial). Elkins thought it was ridiculous that he was being beaten by an affidavit and couldn't cross examine and he couldn't admit his own evidence because he didn't introduce it with a declaration (instead of laying a foundation himself).

There's more to it of course, but the Superior court agreed;reversed it and states how the rule was not Constitutional (by not providing due process) and that hearsay is inadmissible at trial (under CA Evidence code 1200, and that affidavit declarations are for motion hearings only, not trial. Also that the family court should operate under the same due process laws as a trial court, and that affidavits are only admissible at motion hearings or by statute (like ccp 98 (if not objected to).

 

It also mentions many other good case law that talks about the importance of live witness, and hearsay inadmissible. Read it again. Start by reading the first page of the case and then read it from the last page to the front page, in a reverse order, see if that helps.

Ok will do. Thank you soo much. You are soo very very helpful and I am truly thankful for all you've done thus far.

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Thank you for that pep talk, the declarant (Maria Marin) being there did shake me a bit. But I'm going to keep moving forward. Thank you again!!! Up late in LA working on my case. XhairX

 

Ha, that's the same name on the CCP 98 I mentioned in that post. The OC in that one was GE Capitol/Sams Club - same or different for you?

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Ha, that's the same name on the CCP 98 I mentioned in that post. The OC in that one was GE Capitol/Sams Club - same or different for you?

Yup GE! So you think she's the designated person for service.

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@cbincali. Here is a list of questions to ask should they show up. Tailor to fit your case.

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=1114

Thanks Iooked it over. Can you read from paper when questioning? So you just ask the questions when done ask judge to strike testimony and then what? The plaintiff will cross examines? I'm a bit on the shy side so I'm going to be going waaaaaayyyy out of my comfort zone.

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You should be able to read from your notes, but different courts have different rules, some require you give other side a copy if it's preplanned, so memorize just in case.

Basically yes. If they can't lay foundation for the oc, then any record keeping after it left the oC is heresay. Hammer that point. Any record keeping after it left the original creditor is heresay. Unless the witness works for the oc, they had no idea of their record keeping practices prior to them getting any information about the account. They assume the records are correct, but they can't tell you why...or how.

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One objection for this is that it was prepared solely for the sake of litigation and is to be viewed as less trustworthy. Another is that it does not meet any requirements of the business records  exceptions to hearsay under CA Evidence Code 1271.

 

"A document prepared for the sake of litigation is not a business record because it is lacking in trustworthiness"  Palmer v Hoffmam, 318 U.S. (1943)

Can you tell me what the diffrence is between a

A motion in Limine

A motion to Strike

An objection

Does one pack more of a punch?

Are they all filed the same way?

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Can you tell me what the diffrence is between a

A motion in Limine

A motion to Strike

An objection

Does one pack more of a punch?

Are they all filed the same way?

They are basically the same thing as far as your case goes. An objection to the evidence or a motion to strike it, either way you are motioning the court to rule the evidence is inadmissible. A motion in limine is a motion to prevent the jury from seeing evidence which is striking the evidence as well. In limine means at the threshold or beginning of trial, which is about the time you will file your objections.

Motions filed in limine are not "noticed" motions, meaning you don't have to give your opponent 21 days notice and the date of the motion hearing, and usually don't have to pay for filing them either. The reason people call it a MIL is because the timing in which  they are filing it. The reason people are calling them  "objections" instead is that you most likely have no jury, and some judges fuss over  that, so if you call it an objection you get around that.

The amount of punch you get out of it depends how well you learn the rules of evidence / authentication and apply it to the evidence you are attacking, as well as citing case law, statutes and rules etc. 

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Received a SUMMARY JUDGEMENT  today 2/14/15 via Fed EX from PRA. Court date is March 6, 2015. I was in the midst of working on my objection. What the heck?

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They are basically the same thing as far as your case goes. An objection to the evidence or a motion to strike it, either way you are motioning the court to rule the evidence is inadmissible. A motion in limine is a motion to prevent the jury from seeing evidence which is striking the evidence as well. In limine means at the threshold or beginning of trial, which is about the time you will file your objections.

Motions filed in limine are not "noticed" motions, meaning you don't have to give your opponent 21 days notice and the date of the motion hearing, and usually don't have to pay for filing them either. The reason people call it a MIL is because the timing in which  they are filing it. The reason people are calling them  "objections" instead is that you most likely have no jury, and some judges fuss over  that, so if you call it an objection you get around that.

The amount of punch you get out of it depends how well you learn the rules of evidence / authentication and apply it to the evidence you are attacking, as well as citing case law, statutes and rules etc. 

Received a SUMMARY JUDGEMENT  today 2/14/15 via Fed EX from PRA. Court date is March 6, 2015. I was in the midst of working on my objection. What the heck? Now I have to switch gears and figure out what to do about this??????

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@cbincali summary judgements are fairly easy to over come if you can name just one issue of material fact. Bad part is you now have to write an opposition to it.

Type out what it says. You will be able to use a lot of the work you have already done in this opposition.

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@cbincali summary judgements are fairly easy to over come if you can name just one issue of material fact. Bad part is you now have to write an opposition to it.

Type out what it says. You will be able to use a lot of the work you have already done in this opposition.

Ok I'll type what it says.  Just curious why do you think they are doing this at this late stage? Are they trying to say that they are that confident in their case? Is this a normal practice?

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