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Portfolio Recovery / Hunt & Henriques_NEW

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***Please note:  The first part of this thread may now be found here: http://www.creditinfocenter.com/community/topic/326374-portfolio-recovery-hunt-henriques-old/?p=1327446.  I feel as though there was a lot of useful information to be had therein, from lots of kind and knowledgeable folks who were very generous with their time and goodwill.  Good luck and best wishes to all of my fellow Pro Se Defendants!***

 

 

@calawyer

@Anon Amos

@RyanEX

 

Hey, guys.

 

As you all know, I received some information last night that caused me to have my thread deleted this morning.  The timing really couldn't have been worse, as I have Trial coming up soon and have to get my Trial Brief and Objections in the mail (at this point, I'll probably have to borrow the money to pay to overnight them in order to get them to Plaintiff 4-5 days before court).  So I've started this new thread, in the hopes that maybe you will be willing to let me ask a few general questions over the next few days, in order to get this thing over the finish line.

 

What do you all think?  Thanks.

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Thanks, guys.  Here are a few I've been wondering about today:

 

1.)  I just read the Court Reporter's notes from another Trial.  I'm assuming that Defendants choose to pay for these in order to have a more complete record of the Trial, in case the need arises to appeal.  I really didn't want to have to go to the expense, since I already have so much time and money tied up in this.  Does anyone know what it usually costs and how far in advance the reporter has to be booked?  I'll try to find it on the court's website as well, but wanted to throw it out there.

 

2.)  If a Court Reporter isn't hired, then Appellate Court can only go by the documents filed (and objections raised therein), along with any notes the Judge may happen to take, correct?  In other words, if I miss an objection in the Trial Brief and written Objection, the appeals court can't consider it, right?

 

3).  The Court Reporter notes I read indicate that at the beginning of Trial, the Judge asked if there were any 402 motions (apparently, these are motions in limine).  I'll be filing a written Objection to the Dec in Lieu and all exhibits (combined) instead of an MIL, because I had read that some judges won't allow an MIL if it's not a jury case.  Court and Plaintiff should have this 4-5 business days before Trial.  So should I assume that my written Objection won't be read before Trial commences, and that I should then ask at the beginning of it that the Objection be considered at that time?

 

4.)  There was also mention in the Court Reporter notes of requests for "Judicial Notice" and "Statements of Decision."  What are these?

 

Again, many thanks.  :-)

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Oh, no there was a lot of valuable information on your thread, can it be recovered by admins? Unless it was another reason.

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Oh, no there was a lot of valuable information on your thread, can it be recovered by admins? Unless it was another reason.

I had it deleted on purpose.  Knowing that I might be depriving others of that info was heartbreaking.  But I did export most all of the information and will definitely try to repost it, once my trial is over.  I had hoped that the thread could just be rendered inactive or hidden temporarily, but it wasn't the case.  

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Don't know how far in advance you'd have to request a court reporter, but if you prevail you can recoup that cost. See CCP 1033.5

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more good question. im sorry you had to delete your threat. I don't know what happened, but im very curious.

 

I'll sit back and wait for the big hitters answer your questions.

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1) Defendants pay for the court transcripts when they know they are going to appeal their case, and there was a court reporter at their trial. It's not cheap and it's a process to get these transcripts. and there has to have been a court reporter present when the trial took place.

 

2) If you have no reporter the appellate court will only have your written objections to evidence and possibly some information from the "minutes" (court notes) to review. I doubt if you can get a trial brief into an appellate file but there are a few people here who have been there and know more about it.

 

3) Treat your written objections as if they are MIL's (they are basically the same thing). An MIL means "motion in limine" which means a motion at the threshold of trial (or in other words a motion at the beginning of trial). Before trial starts you are trying to get the judge to rule on your evidence objections before he tries the case. The judge may simply say no and that you can object when it's being introduced.  When it's an MIL it's a motion to keep the jury from seeing evidence that you state is inadmissible and to prevent prejudicing them. When it's an objection it's an objection to keep evidence from being admitted into trial. Pretty much the same thing since you have no jury. So when the judge ask if there's any issue before trial, any MIL, motions, or  anything to discuss etc. before trial; then you ask if the court will rule on your objections. If not then you object as the evidence is being introduced at trial and keep your written objection for notes or to read it into the record (possibly the "minutes" as well if you have no reporter).

 

4)  A judicial notice is when you are asking the court to take notice of a law or bring it's attention to a law. You would write a short document explaining what the statute says and attach it so that the court will be familiar with that law (the judge doesn't know all the laws or statute often, especially in debt cases that are rarely fought).

 

A statement of decision is actually a form that is supposed to be filed before the trial even starts and it is asking the judge to write down for the record exactly what the ruling is and why he rules the way he did. This way there is no question of why a party lost and exactly what caused it. This is something that goes into the appellate file if you need to appeal the case. You don't even hear about these much. so I think the courts may be a bit lenient on them not being filed. It's a pretty simple document if you can find an example, maybe google it (it wouldn't have to be from a debt case). It probably would send a good message to file one and may help keep the judge in line.

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1) Defendants pay for the court transcripts when they know they are going to appeal their case, and there was a court reporter at their trial. It's not cheap and it's a process to get these transcripts. and there has to have been a court reporter present when the trial took place.

 

2) If you have no reporter the appellate court will only have your written objections to evidence and possibly some information from the "minutes" (court notes) to review. I doubt if you can get a trial brief into an appellate file but there are a few people here who have been there and know more about it.

 

My court doesn't provide a court reporter in civil cases anymore (due to cutbacks) and I'm pretty much out of time/money.  Guess I'll take my chances on that one.  As for not getting the Trial Brief into an appellate file, what does an appellate court base their decision on (assuming there is no Court Reporter document)?

 

3) Treat your written objections as if they are MIL's (they are basically the same thing). An MIL means "motion in limine" which means a motion at the threshold of trial (or in other words a motion at the beginning of trial). Before trial starts you are trying to get the judge to rule on your evidence objections before he tries the case. The judge may simply say no and that you can object when it's being introduced.  When it's an MIL it's a motion to keep the jury from seeing evidence that you state is inadmissible and to prevent prejudicing them. When it's an objection it's an objection to keep evidence from being admitted into trial. Pretty much the same thing since you have no jury. So when the judge ask if there's any issue before trial, any MIL, motions, or  anything to discuss etc. before trial; then you ask if the court will rule on your objections. If not then you object as the evidence is being introduced at trial and keep your written objection for notes or to read it into the record (possibly the "minutes" as well if you have no reporter).

 

Okay.  Calawyer and I put our heads together and combined all of my individual written objections to the Dec in Lieu and each piece of evidence into one shorter doc, in hopes that the judge will actually read it before Trial.  So I guess I should wait until he asks about objections, ask him to read mine if he hasn't, and then start arguing.

 

4)  A judicial notice is when you are asking the court to take notice of a law or bring it's attention to a law. You would write a short document explaining what the statute says and attach it so that the court will be familiar with that law (the judge doesn't know all the laws or statute often, especially in debt cases that are rarely fought).

 

Oh, no.  This has gotten super-complicated.  Does this mean that for each Evidence Code, CCP, California Jury Instruction, and Case Law that I cite in my Trial Brief or plan to use, I have to write such a document???  How would I decide what requires a judicial notice?

 

A statement of decision is actually a form that is supposed to be filed before the trial even starts and it is asking the judge to write down for the record exactly what the ruling is and why he rules the way he did. This way there is no question of why a party lost and exactly what caused it. This is something that goes into the appellate file if you need to appeal the case. You don't even hear about these much. so I think the courts may be a bit lenient on them not being filed. It's a pretty simple document if you can find an example, maybe google it (it wouldn't have to be from a debt case). It probably would send a good message to file one and may help keep the judge in line.

I'm so swamped, but good to know.  I'll leave myself a note to try to find one before the Trial.  Sounds like a good idea.

 

As always, thank you for all of the help and good info, Anon!

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My court doesn't provide a court reporter in civil cases anymore (due to cutbacks) and I'm pretty much out of time/money.  Guess I'll take my chances on that one.  As for not getting the Trial Brief into an appellate file, what does an appellate court base their decision on (assuming there is no Court Reporter document)?

I forgot to tell you the court reporter is on you, it's not handled by the court, you have to find and hire your own. Usually the situation you're in and not having the money to hire one go hand in hand and most people do go without the reporter. If the appellate court doesn't have a good record of your objection then it will just base it's opinion on the lower courts ruling and most likely agree with it or just rule against you. If doesn't have anything to go on then it won't. If you don't have proper records then you wouldn't file the appeal in the first place however. It's really hard and expensive and time consuming to appeal a case.

 

 

Okay.  Calawyer and I put our heads together and combined all of my individual written objections to the Dec in Lieu and each piece of evidence into one shorter doc, in hopes that the judge will actually read it before Trial.  So I guess I should wait until he asks about objections, ask him to read mine if he hasn't, and then start arguing.

Make sure Calawyer doesn't suggest filing the objection to the ccp 98 a little before trial (like a week). Make sure you are understanding correctly. I would think you would file the objection to the ccp 98 declaration before trial, and would want plaintiff to have a copy of it just before trial (a lot of times they dismiss when they see it). I know Calawyer works with you and it can be done either  way but I just wanted to make sure the suggestion is to bring it to court without first filing it.

 

 

Oh, no.  This has gotten super-complicated.  Does this mean that for each Evidence Code, CCP, California Jury Instruction, and Case Law that I cite in my Trial Brief or plan to use, I have to write such a document???  How would I decide what requires a judicial notice?

 

Don't worry about the judicial notice, you won't need it. Concentrate on the evidence and arguments to impeach witness (incompetent witness, can't lay a foundation for OC records, can't authenticate OC records).

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Don't know how far in advance you'd have to request a court reporter, but if you prevail you can recoup that cost. See CCP 1033.5

But the OP said they had to borrow funds for the other filings overnight if needed- maybe ? How does one pay for court reporting at this point, as I assume these court reporters are maybe $200 - not sure.

I do see how beneficial the court reporter may be. Does it send a message to the judge, I got the money to do this, but can't pay the debt. Their is so much uncertainty is the judges emotions on things. The court reporter also sends a message " hey don't put your foot in your mouth- I got you covered now judge for my appeal"

 

I am sure judges don't like to be the ones called down and loose an appeal..

My two cents

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A court reporter sends a message to the judge to play by the rules, apply the law and not just rule as he pleases., and that the decision will be appealed if he doesn't get it right. A judge doesn't ever want his ruling reversed and if it happens too many times he will lose his seat on the bench.

 

If you don't have the money then you don't have the money & if you're here then you probably don't have the money. If you get the right  judge then you won't need the reporter anyway.

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Make sure Calawyer doesn't suggest filing the objection to the ccp 98 a little before trial (like a week). Make sure you are understanding correctly. I would think you would file the objection to the ccp 98 declaration before trial, and would want plaintiff to have a copy of it just before trial (a lot of times they dismiss when they see it). I know Calawyer works with you and it can be done either  way but I just wanted to make sure the suggestion is to bring it to court without first filing it.

Hey, Anon.  Thanks again.  I think I may have confused you.  Sorry about that.  I'm actually planning to file the Objection within the next few days (along with the Trial Brief) and overnight a copy to the Plaintiff.  Time is tight, but I'm shooting for 5 business days before the trial to have it to them.  What I was actually saying is that I'm assuming if the judge doesn't read the Objection to CCP 98 in advance, I will just have to state the objection orally at beginning of trial and start arguing my points.

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I forgot to tell you the court reporter is on you, it's not handled by the court, you have to find and hire your own. Usually the situation you're in and not having the money to hire one go hand in hand and most people do go without the reporter. If the appellate court doesn't have a good record of your objection then it will just base it's opinion on the lower courts ruling and most likely agree with it or just rule against you. If doesn't have anything to go on then it won't. If you don't have proper records then you wouldn't file the appeal in the first place however. It's really hard and expensive and time consuming to appeal a case.

 

Wow.  That's really terrible.  I feel like a lot of people have taken the stance of, "If you get a bad judge that doesn't follow the rules and you lose, well, that's what appeals court is for!"  Without a court reporter however, it sounds like a Pro Per has zero chance of winning on appeal.  Uggh.   :(

(not that I don't appreciate the honesty)

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2) If you have no reporter the appellate court will only have your written objections to evidence and possibly some information from the "minutes" (court notes) to review. I doubt if you can get a trial brief into an appellate file but there are a few people here who have been there and know more about it.

 

This is why I was kind of scared to combine my written Objections into the objection to Plaintiff's Dec in Lieu.  My thought process is that if the judge throws out the combined Objection because the witness shows up (or he/she just feels like it), then my written Objections to the evidence go with it and are never seen by a potential appellate court.  Does that sound logical?

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Hey, Anon.  Thanks again.  I think I may have confused you.  Sorry about that.  I'm actually planning to file the Objection within the next few days (along with the Trial Brief) and overnight a copy to the Plaintiff.  Time is tight, but I'm shooting for 5 business days before the trial to have it to them.  What I was actually saying is that I'm assuming if the judge doesn't read the Objection to CCP 98 in advance, I will just have to state the objection orally at beginning of trial and start arguing my points.

 

Perfect. It sounds like you're in good shape.

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This is why I was kind of scared to combine my written Objections into the objection to Plaintiff's Dec in Lieu.  My thought process is that if the judge throws out the combined Objection because the witness shows up (or he/she just feels like it), then my written Objections to the evidence go with it and are never seen by a potential appellate court.  Does that sound logical?

 

Hopefully your written objections will never have to see an appellate court. If you file the written objections with the court then you have them on record. If the judge overrules your objections or doesn't even read the written objections before trial, they are still on record and can be viewed  by an appellate  court.

I think with the written objections and you objecting verbally at trial (this would at least get a mention in the minutes) if you appealed you would have preserved the bare minimum for the requirements of appealing. Seadrgaon and Easy619 are the appellate people here and would know more about it.

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Wow.  That's really terrible.  I feel like a lot of people have taken the stance of, "If you get a bad judge that doesn't follow the rules and you lose, well, that's what appeals court is for!"  Without a court reporter however, it sounds like a Pro Per has zero chance of winning on appeal.  Uggh.   :(

 

That's not so. easy619 did not have a court reporter when he lost his case; he won his appeal. You do have to do more work to reconstruct the trial record for the appellate board, but it can be done. Cross that bridge if you get to it, though - focus on winning this the first time around.

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If I happen to win, I believe I can get some costs back by sending the Court and Plaintiff a JUD-100, MC-010 and POS.  Does anyone know if you have to ask for this at the conclusion of Trial, or can you just send the forms within a reasonable amount of time afterward?  Thanks. 

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Silly question No. 1 Billion:

 

I have to try to get my Trial Brief and written Objections out to Plaintiff first thing in the morning (I'm running late on this, since I wanted them to be there tomorrow).  When sending these, do I need to include copies of all of the exhibits cited in the Brief and Objections (including things Plaintiff already has like Plaintiff's Dec in Lieu, etc), so that it's a page-for-page match to what I'll be submitting to the Court?  I'm assuming so, but thought I'd better ask.  My reason is that I'm going to have to pay to send these documents to Plaintiff overnight.  When I've done that in the past, it's been over $20.00 for just a few sheets of paper.  Since my Trial Brief, Objections, and Exhibits (including docs Plaintiff sent me previously) will add up to a STACK of papers, I'm thinking that USPS is going to destroy me on cost (unless maybe most of the $20.00 they've charged me in the past has been for the rush delivery alone).  Anyone have any thoughts on this?  I expect I'll have to send it all, so no need to sugar-coat it for me if so.  Thanks! 

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If you win you should get your costs back, but right now that should not be on your mind, it sounds like it is stressing you, and that is not where you want to place your energy right now. Take a deep breath and just get the docs to them and don't think about recouping costs till after its all over, this is the least of your worries right now. A flat rate overnight I believe has no weight restrictions, its about 25 or so. Make sure you get a signature confirmation too and tracking.

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Silly question No. 1 Billion:

 

 

You haven't asked a silly one yet.

 

You do have to copy all of the exhibits.  Plaintiff needs to get a copy of the same thing you file with the court.

 

But I don't see why you need to send it express mail.  As I recall, you couldn't find a local rule on point and I just looked and didn't see one either.  So we just want to get it to them in time for them to read it and hopefully realize that this is one case they don't want to take to trial.

 

If you typically get mail from them in one or two days, just mail it to them CMRR.  That should be plenty of time.

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