luckykid12

Need advice defending my case against JDB

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1   Who is the named plaintiff in the suit?

UNIFUND CCR LLC

A LIMITED LIABILITY COMPANY


2. What is the name of the law firm handling the suit?  Kenneth J  Miele,Law -offices of Kenosian and Miele

3. How much are you being sued for?

$2900 plus 10 percent interest from and after 7-7-10

4. Who is the original creditor?

CITIBANK


5. How do you know you are being sued? I was served


6. How were you served? In Person


7. Was the service legal as required by your state? Yes


8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 None

9. What state and county do you live in?

California , Santa Barbara County



10. When is the last time you paid on this account  according to the doc they gave me it was 11/18/2009

 

11. What is the SOL on the debt? To find out: 

4 years

12. What is the status of your case?

I was served on Sept 30th 2013

I initially didn’t take this seriously but replied to the court on 10/20/13, I didn’t fill out the paperwork correctly so the court sent it back to me to make corrections on 10/29/13, I had my wife return it to the courthouse the very next day.The court then told me that I had turned in the paperwork a day late and the Plaintiff had a Default Judgement against me..

I then started getting Wage garnishment letters but they tried to garnish from an account that I don’t even have anymore from B of A.

I then went back to court and filed a Motion to set aside the Default and Vacating Default Judgement which I was granted on 8/26/14

I had a case Management Conference with a rented Plaintiff Attorney on December 2nd and the result of that is  a Court date on June 1st 2015.

 



13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No



14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No



15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 See above

By looking at your threads on this amazing site,

I sent a BOP to the Plaintiff and they just sent me 13 months of Statements with my name and address.

 

The Plaintiff then requested production of documents from me and I responded to

 1.After diligent search, respondant does not have requested documents.

2. After diligent search, respondant does not have requested documents

3. After diligent search, respondant does not have requested documents

4. After diligent search, respondant does not have requested documents

5. After diligent search, respondant does not have requested documents

6. After diligent search, respondant does not have requested documents

7. After diligent search, respondant does not have requested documents

8. After diligent search, respondant does not have requested documents

Response to Admissions Number1 through7

Other. Defendant does not recall

Admissions #8

Other- Defendant has no information or belief as to the truthfulness of this request for Admissions.

Dated 11-13-1416.

 What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

I sent a CCP 96 on April 29th 2015 to the Plaintiff and they sent me back

1.An Affidavit from Citibank signed by Daniel J. Fisher on Feb 20, 2014attesting to the Business Records.

2.14 months of Copy of Statements for Acct…

3.Bill of sale between Citibank and Pilot Receivables Management,LLC and Unifund CCR,LLC.

4. A Citibank,NA Card Agreement with no signature on it from me.

They did not send a CCP 98 in lieu of witness document. 

 

Any advice on my strategy for the upcoming court date would be appreciated so much!

Thank you all in advance!!

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Looks like you've done a good job so far. Congrats on getting that judgment set aside.

 

I'd double check your online case file and make sure they didn't file a CCP 98, just to make sure they didn't "forget" to serve you with one. And they did not list any live witnesses on the CCP 96 response? > without either of those two, the JDB doesn't have anyone to authenticate the documents that they did list.

 

If it were me, I'd be thinking:

1) prep objections to any witness they  may try to bring on the day of trial, citing CCP 96/97.

2) in case they do bring a witness and your judge fails to stick to the code and alows the witness to testify: plan to question a possible witness

3) prep to object to those documents themselves should the rent-a-lawyer try to introduce them.

 

What is your court's deadline for filing Trial Briefs and Motions in Limine/Objections? Have you worked on those at all? Plenty of good examples lying around here.

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The good news is they think you have no clue, and thus, have gotten sloppy. They will try to use the affidavit by Daniel fisher to authenticate the records. Affidavidts are not allowed in California if you object. They didn't send you a ccp98, so they don't plan on bringing a witness. Like Ryan said, if they try to, object per ccp97.

No address provided so you can subpoena Daniel fisher? To bad for them.

You will need to work on a brief stating your objections. It is a motion in limine, but some courts may have time restrictions when you can.file those so call it an objection to the declaration in leiu instead.

Read the post pinned at the top by Astmedic, how I beat midland...it kinda explains it.

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Thank you RyanEX and shelliieh98 for your response and advise.I appreciate it !!

How do I find out my  court's deadline for filing Trial Briefs and Motions in Limine/Objections?I have not worked on those at all.

I will say that at the Case Management Conference, the judge told me that I should get together with the rent a lawyer to come to some kind of agreement because if I owed the money then I owe them.....He didn't seem very Defendant friendly....

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But he has to follow the rules, and if you show the judge you know them, you will either back him into a corner, and he will rule accordingly, or you will tell him you want your objections on the record for appeal. They hate that.. Look up the court you are in, and they should have their local rules posted.

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Hi shellieh98,

After reviewing the response to the CCP 96,

This is what it reads-

1. The name and street addresses of witnesses you intend to call at trial(except for any individual who is a party to this action)

A.  My name and address

B.Person most knowledgeable for Citibank,NA 701 E. 60th Street,North.Sioux Falls, SD 57117

C.Person most knowledgeable for Unifund CCR,LLC 10625 Techwoods Circle,Cincinnati,OH 45242

@. a description of each document that you intend t offer at trial. attacjh a copy of each document available to you.

A. affidavit from Citibank,NA.,signed by Daniel Fisher on February 20,2014 attesting to business records.

B. Copy of statement for account#.............. payment due date 07-02-09

C-O copy of statements for acct#...

P.Bill of sale between Citibank,NAN.A.and Pilot Receivables Management , LLC and Unifund CCR,LLC. Citibank NA Card Agreement.

#. A description of each photograph and other physical evidence you intend to offer at trial.

 

The Affiant does not have an address within 150 miles of court., that throws that out right away per CCP 98, correct?

Statements are hearsay

Bill of sale does not have my name or acct number on it.

Card agreement is generic with nothing signed by me..

Seems like a slam dunk in my favor, yes?

Thank you for your response! 

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Listing a "person most knowledgeable" (PMK) fails to comply with your CCP 96 request, which instructs the other party to give you "the names and addresses of witnesses you intend to call at trial". You need names in order to research that person in preparation for cross examination. Simply giving you "PMK" denies you that due process. I would object to any witness being called.

 

There was no CCP 98 Declaration/Affidavit in Lieu of Testimony filed, correct? So no need to worry about CCP 98 or 150 miles of the court. Those apply to CCP 98 declarations.

 

 

 

Nothing is a slam dunk. Technically, things look good for you - Unifund has failed to name a witness and will walk into court with a few statements and printouts (but no one to authenticate them) and an affidavit (but in CA you can't have trials by affidavit: CA Evidence Code 1200 > Elkins v. Superior Court).

 

But, you still need to walk into court prepared to make the right arguments & objections should Unifund decide to go thru with trial. And even then, there are bad judges out there who will overrule a proper objection & allow evidence which shouldn't be allowed. It happens. Looks like you already have doubts about your judge. You need to take precautions: your Trial Brief and Objection will put the deficiencies of their case into the record, in case you should need it for appeals. See easy619s thread. Do you know your court's deadline for filing Trial Briefs & Objections (Motions in Limine) yet? Your local rules should be available on your court's website.

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Welcome.

 

You might consider writing them a letter saying that the CCP 96 response fails to comply with that section because it does not give the name or address of any of plaintiff's witness.  You intend to object to plaintiff's calling any witness who was not properly disclosed.

 

Then do a objection saying the same thing and attaching your letter.  If plaintiff doesn't respond to your letter, you can also say that you wrote plaintiff to point out its failure and plaintiff did not respond.

 

If plaintiff does respond, you can point to the language of CCP 96 which says, "No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion."

 

:)

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Thank you RyanEX and calawyer for your responses and insight, I really appreciate it! And thank you RyanEX for reminding me that nothing is a "Slam Dunk", I just got a little excited yesterday. :):-D

 

i just looked up the courts deadline for filing a motion in limine and it says 1302 NOTICE OF MOTIONS IN LIMINE

In civil jury trials, in addition to any other notice requirements, counsel shall give written notice of any in limine motions to avoid inconvenience to jurors.

(a) [Filing of Notice] The notice shall be filed not later than two (2) court days before the first trial call. If the case goes “off calendar” and is subject to the filing of a new At-Issue Memorandum, a new notice shall be filed not later than two (2) court days before the next trial date.

Is there a document that I need to fill out to do this? 

Thank you calawyer for your advice on writing the letter to the plaintiff. I will do so.

Blessings. 

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Lucky, not a form, but a motion. Read astmedics thread, he has an MIL posted in it, it can give you an idea. You need to write the MIL, make it look like all the other court papers, the numbered paper, also called pleading paper.

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Motions in limine are typically used to keep a jury from hearing something that it should not hear (inadmissible evidence, prejudicial evidence that is of marginal relevance, etc).  What you want is to object to evidence you think plaintiff intends to offer.  You could simply object out loud at trial, but if there is no court reporter present, you would not have a record for an appellate court to review in case you lose.
 
You want to object to the affidavit of Citibank and probably any attempt to call a witness because plaintiff violated CCP 96.  It may be best to prepare separate objections and call them "Defendant's Objection to Affidavit of _______"  and "Defendant's Objection to Witnesses Called in Violation of CCP section 96".  That way, there will be a written record that you objected.
 
By the way, the case you will want to cite for the proposition that affidavits are not permitted at trial is Elkins v. Superior Court:  http://caselaw.lp.findlaw.com/data2/californiastatecases/S139073.PDF

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Thank you calawyer ,  shellieh98 and RyanEX, I so appreciate your time and willingness to help out this newbie!

So I am going to write a MIL and Defendant is going to  object the Affidavit of Daniel J Fisher as Affidavits are not allowed in Civil Trials in the State of California per California Evidence Code 1200 Elkins v. Superior Court:   "Defendant's Objection to Witnesses Called in Violation of CCP section 96" because the CCP 96 response fails to comply with that section because it does not give the name or address of any of plaintiff's witness. The Person most knowledgeable" (PMK) fails to comply with Defendants CCP 96 request, which instructs the other party to give Defendant "the names and addresses of witnesses Plaintiff intend to call at trial".

What do I use to object to the Bill of sale and the Assignment? And the copy of 14 Statements? . 

I am fighting these guys because I did not have a card from Citibank and I did not sign an agreement with them, I even looked on my credit report and it does not show up....If I had a card, wouldn't it still be on my credit report since it became negative starting in 09? That really upsets me... 

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Okay, 

While writing my MIL, I was looking over my previous paperwork and noticed that when I sent the CCP 454, I asked to be furnished within 10 days a Bill of Particulars setting forth all items and details of the account etc....  I had sent this on Sept 4 and the Plaintiff did not respond until Oct 27th..Would the credit card statements that they sent be inadmissable in Court? They sent me the same statements when they responded to my CCP 96... Thank you in advance!

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They would admissible be if you let them.  They are hearsay if no foundation has been laid to show why they should be admitted.  That is what the affidavit is for, to get those admitted.  Your defenses to those are they are hearsay documents.  The plaintiff did not make, or keep those records, and has no idea how they were kept and maintained in the coarse of ordinary business.   The documents originated from another company, there is no one from that company to show how the records were kept and maintained.  

Get the affidavit thrown out, and those go out with it on your objection.  They need a live witness, and if you work it right that witness has to be from the original creditor.  

But they can get anything they want in.  They can say their dog ate them, and they taped them back together, and get them admitted unless you object, and give a reason, with some case law to back it up.

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You object to the statements and show how they do not meet all of the business records exception to hearsay, CA Evidence Code 1271. If they don't meet all all areas of 1271 then they are not business records. They lack foundation, authentication and trustworthiness.

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Thank you shellieh98 and  Anon Amos for your wisdom and willingness to help me out, I really appreciate it! So shellieh98, ,Would I need to attack the Bill of Sale and Assignment if I can get the Affidavit thrown out?

Affidavit of Daniel J Fisher

Plaintiff has submitted the Affidavit of Daniel J Fisher ,an employee of Citibank. and asks that it be admitted into evidence at trial as Defendant had requested pursuant to Code Civ. Proc. § 96.

However, Plaintiff has failed to comply with Code Civ. Proc. §96 and therefore cannot take advantage of this statute. Moreover, Affidavits are not allowed in Civil Trials in California per Capital Evidence Code 1200 Elkin v. Superior Court.

            The Affidavit is replete with hearsay and the Defendant is not given an opportunity to subpoena the Affiant per Code Civ. Proc. § 96. Without proof of assignment, the Plaintiff’s complaint fails for failure to state a claim and to show standing.

I will attack the PMK next.....Defendant objects to the Witnesses called in violation of Code Civ. Proc. §96

Which instructs the other Party to give Defendant “the names and addresses of witnesses Plaintiff intends to call at trial”. Defendant was not given names in order to research the persons in preparation for cross examination .Simply giving the Defendant Person Most Knowledgeable denies the Defendant of that due process, and Defendant objects to any witness being called. 

.

A.    Witnesses for Plaintiff

(1)Plaintiff responded to Defendants Request pursuant to Code Civ. Proc. §96 . By providing Defendant a Person Most Knowledeable for Citibank,NA 701 E.60th Street, North ,Sioux Falls, SD 57117

(2)And Person Most Knowledgeable for UNIFUND CCR,LLC 10625 Techwood Circle,Cincinnati,OH 45242.

Defendant objects to the Witnesses called in violation of Code Civ. Proc. §96

Which instructs the other Party to give Defendant “the names and addresses of witnesses Plaintiff intends to call at trial”. Defendant was not given names in order to research the persons in preparation for cross examination .Simply giving the Defendant Person Most Knowledgeable denies the Defendant of that due process, and Defendant objects to any witness being called.   So far so good?

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Ccp 96 doesn't pertain to affidavits and the objection isn't that you can't subpoena the affiant, it is just that hearsay is inadmissible at trial.

Affidavit objection is that it is hearsay and inadmissible at trial under CA Evidence code 1200. The case to cite is Elkins v Superior Court.

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Just for informational purposes, can anyone answer a question for me?

 

I know it's a bit late for the OP to bring this up in his own situation now, but my understanding is that if a case is dismissed or as in this case, the judgment is set aside, that everything would start back at the beginning, is that correct?  So, would that mean that the defendant could declare as an affirmative defense that SOL has expired?  SOL is 4 years and it's been 6 in this case since delinquency. 

 

Does the defendant have that as an option as things start from scratch again, or does the court consider the defendant served as of 2013 and allow the case to proceed as though the last two years simply never happened?

 

 

No.  The Sol stops running when the complaint is filed with the court not when plaintiff serves the complaint.

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I understood that, I was just asking if this was a case where the original complaint still stood, or if the court required the whole deal to start over, meaning new complaint, new service, and so on.  I did not know how it's done out there, and was curious if that might offer a new situation

 

 

In California, a defendant is required to submit a proposed response to the complaint when seeking relief from default.  So the complaint stands and, if the motion for relief is granted, the response is ordered to be filed.

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