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Portfolio Recovery / Hunt & Henriques_NEW

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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.

Oh, really?  That would be great!  I thought maybe we were trying to get things to them a week before trial so that they would have plenty of time to review things and (if I was super, super lucky), dismiss a few days in advance.  If I send it standard CMRRR tomorrow morning, it might get there on Friday, or Saturday by the latest (so say, Monday morning).  That would give them a couple of days next week to look at it.  If overnighting it is a better strategy and it's around $25, I'm game for it though.

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There are two full moons in July the second one is July 15th

The moon has to shine brighter for all us "beat the collectors" in the Sunshine state.

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I'm also quite sad to see the abundance of information from your previous thread disappear. That was probably the most thorough thread in all the web. Hope all goes well next week.

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I'm also quite sad to see the abundance of information from your previous thread disappear. That was probably the most thorough thread in all the web. Hope all goes well next week.

Thanks, John!  I exported most of the posts in the thread before having it taken down.  Once trial is over, I definitely intend to repost all of the information that I can.  It's the very least I can do, given all of the help I've gotten here from folks.  Also, if there is any particular topic that you remember in the thread that you need right away, let me know.  I'll try to find it and, if necessary, PM you the info.  Good luck to you too!

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Hey, folks.  Getting ready to pop my Trial Brief, written Objection, and Declaration in Support of written Objection in the mail to Plaintiff this morning.  A couple of nervous last minute questions:

 

1.)  Do I need to include any kind of "cover letter" on pleading paper indicating what Plaintiff is receiving and why?  Or can I literally just put the three documents in an envelope, send them, and know that Plaintiff will understand why they're getting them?  I only ask because anything I've sent previously (Discovery requests, etc) always had some kind of opener addressing Plaintiff directly.

 

2.) The Trial Brief, written Objection, and Declaration in Support all needed my signatures on them.  I keep the originals and just send copies, both to Plaintiff and Court, right?

 

Pretty sure I know the answers to both of the above questions, but I wouldn't want to slip up now on a technicality.  Thanks! 

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No cover sheet is needed. Originals to court, copies for everyone else.

Whoa.  So glad I asked.  I was going to give the court copies and keep the originals!  I take it that it's okay I used black ink when I signed the docs?  I know credit2011 mentioned blue ink, but I don't usually keep blue pens in the apartment.  Thanks, Anon!

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So my Trial Brief and written Objection went out to Plaintiff this morning.  Now I'm getting the originals together for the Court (and making copies for myself).  Can I keep the signed original docs from third parties (POS forms, Affidavit of Due Diligence, etc), give the court copies of them, and just provide signed originals of the things I sign (like Trial Briefs and Objections)?  Sorry, I just didn't get much sleep or food last night, so I'm not thinking very clearly.

 

Also, should I bring my copies of these docs along with me when I file them with the court clerk so that she can conform (stamp) them, in order to have a record that they were filed?  Thanks!

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I doubt your court makes an issue whether or not they're originals, mine did however and I had to sign in blue ink as Credit2011 said.

I always brought my copies to be stamped as well.

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I doubt your court makes an issue whether or not they're originals, mine did however and I had to sign in blue ink as Credit2011 said.

I always brought my copies to be stamped as well.

Oh, no.  I can't believe they'd be so anal over whether the ink is blue or black.  How did you find out?  Was it on their website or did you try to file something that was signed in black ink and they wouldn't accept it?  I wonder what could happen?

 

Also, when you mention that court made an issue about your docs being originals, are you referring to the docs that the Defendant signs (Trial Brief, Objection, Dec in Lieu of Objection) or the docs other people sign (POS, Affidavit of Due Diligence, etc).  Or both?

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I don't think you need to worry about it. My court is extremely corrupt. All docs from Defendant have to be originals, and you had to be able to prove it. Plaintiff docs didn't matter to the court.

Black ink is perfectly legal, but it's easier to prove an original if signed in blue. Don't sweat it, you won't have the same problems I had.

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I don't think you need to worry about it. My court is extremely corrupt. All docs from Defendant have to be originals, and you had to be able to prove it. Plaintiff docs didn't matter to the court.

Black ink is perfectly legal, but it's easier to prove an original if signed in blue. Don't sweat it, you won't have the same problems I had.

Whew!

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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.

 

How much are we talking about for a court reporter (ballpark)?  Anyone know?  Or how far in advance they usually have to be booked?  Just curious.

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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.

 

Silly question perhaps, but how would the court minutes be generated without a court reporter?  In other words, who usually records the minutes in a court that doesn't provide a reporter?

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Court reporters are expensive- I Just called a few  to see and they are like 350 for 1/2 day not including transcripts. If you find a cheaper one, please post or PM me

 

Its also said due to cutbacks, that we cannot get full transcripts of trials- Where are all these fees going to? 

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I think some courts use a stenographer that just takes partial notes and highlights and some record parts and from that they take the minutes.

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So I'm a few days out from Trial and still confused on some basic issues:

 

1.  As far as objecting to evidence, I know that I need to object to anything Plaintiff tries to get admitted that is not in the CCP 96.  However, I'm trying to imagine the scenarios under which Plaintiff's attorney will submit things that are in the CCP 96 (which the judge already has), and whether they should be objected to again after I initially raise my objections at the start of trial.  In other words, should I be objecting to anything that JDB lawyer tries to hand to either the judge or a witness during Trial unless I see it first?  I know that if it gets to the point of Plaintiff's attorney asking a witness about docs in the CCP 96, I should cross-exam them afterward and renew my objections to the docs at that point, based on witnesses' lack of personal knowledge.  I'm just wondering if there should be any objection to Plaintiff getting CCP 96 docs in front of a judge or witness in the first place during Trial?  (very confused on this - please let me know if you'd like the question clarified)

 

2.  I've read that when I check in, I should have any witness Plaintiff may bring in sequestered right away so they can't hear the proceedings.  My understanding is also that when called, they should go straight to the witness box, so as not to let the JDB attorney coach them.  So my question is, how do I find out if there is a witness in the court room or not?  Do I ask the Clerk when I check in?  I'm just afraid that Plaintiff won't say anything about him/her/them being there, then call them from the audience halfway through the Trial, after they've already heard everything.  

 

3.  If I lose:  I've read on the Los Angeles Court's website that when a Plaintiff wins a case in Limited Civil, but could have filed in Small Claims court (because the suit is for less than $10K), the judge can, at their discretion, choose not to award attorney's fees.  I have to prepare myself for the eventuality of losing, so does anyone know how I would try to convince the court not to award attorney's fees in this scenario?

 

4. I remember a post from oldwoman that seemed to indicate that the judge in her case was mad about the fact that Plaintiff could provide no POS for Plaintiff's Trial Brief.  But I've also had lots of other people tell me to just be prepared for Plaintiff to dump it on me a few minutes before Trial.  Is there any court rule that states that a Plaintiff must furnish Defendant with their Trial Brief prior to Trial?

 

5.  Finally (and it's probably much too late for this), I've heard that HSBC (the alleged original creditor) was bought by Cap. One at some point.  Does anybody know when?  It's a topic I thought of bringing up in regard to Chain of Title a while ago, but I never looked into it.  Just trying to think of last ditch arguments, if things start going south for me.   

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Also, I've been wondering about a couple of things for a long time, but have been hard pressed to put them into words:

 

1.  I'm objecting to the Dec In Lieu by Plaintiff's employee on the basis that she has no personal knowledge of the alleged original documents or HSBC's business practices, and therefore can't authenticate them (though Plaintiff will undoubtedly try to claim that she is authenticating Portfolio's business records and therefore, doesn't have to have knowledge of HSBC - this is essentially what they tried to do in the Dec in Lieu).  Since the language in Evidence Code 1271 is vague in this regard, I've mentioned the fact that a custodian of one entity cannot testify to the business practices of another and cited  Herrera v. Deutsche Bank National Trust Co.; I also intend to grill any witness on cross-exam regarding their knowledge of HSBC.  Since I may be going before a pro-Plaintiff judge, does anyone know of another way to hammer this point home (the fact that a witness must be from the alleged OC), in case the judge claims (incorrectly) that the custodian of the Plaintiff is a proper witness? 

   

2.  Per the above line of argument, the alleged cc statements, Bills of Sale, and Load Data should all be considered hearsay documents, since they are not authenticated by anyone having proper foundational knowledge.  Then there is the Affidavit of Sale, however.  Affidavits as a general rule are not admissible (even when notarized), as it denies Defendant due process (Elkins).  Nor can this Affidavit be considered a business record, since the requirements of Evid. Code 1271 have not been met.  Because the Affidavit was not prepared until almost a year after the alleged Sale took place, it should also be ruled inadmissible as being generated "in preparation for litigation" (Gee v. Timineri).  

 

The person who allegedly signed the Affidavit in my case is out-of-state.  Since there are obviously going to be cases in which it would be financially prohibitive for Plaintiff to fly in witnesses who have proper foundational knowledge, I have to imagine that the court allows the Plaintiff a way out.  What would this be?  A CCP 98 Declaration from a "proper" witness doesn't make sense in any case where they are located out-of-state (since a subpoena can't be enforced).  Basically what I'm trying to get at is, how should the Plaintiff have gone about authenticating the exhibits named above that they actually have not done?  I'm looking for something to say if the judge claims that he/she will accept the Affidavit because he/she needs to be "fair" to Plaintiff.  

 

Thanks.     

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Then there's this question.  I posted it a while back, but I think we all got wrapped up in other topics and may not have gotten back to it:

 

"Finally, in regard to Objecting to Plaintiff's Opening Statements, I've read a few slightly different opinions here. One says to pipe up and object to basically everything Plaintiff tries to say or introduce at Trial. The other says the following:

 

'PRACTICE POINTER: Your objection during the opponent's opening statement may be viewed by the jury (and the judge) as a rude interruption. Therefore, be as circumspect as possible. The proper procedure is for counsel to state "Objection" (or in an egregious case, to rise and object) and ask to approach the bench.'

 

 

So is there a way for me to gauge what is being rude vs. what is appropriate when objecting? I think the judges at my local court are pretty lenient with most things, but I've also seen what can happen when someone really p@ssed them off and that's not a road I want to go down. As always, thanks everyone." 

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So I'm a few days out from Trial and still confused on some basic issues:

 

1.  As far as objecting to evidence, I know that I need to object to anything Plaintiff tries to get admitted that is not in the CCP 96.  However, I'm trying to imagine the scenarios under which Plaintiff's attorney will submit things that are in the CCP 96 (which the judge already has), and whether they should be objected to again after I initially raise my objections at the start of trial.  In other words, should I be objecting to anything that JDB lawyer tries to hand to either the judge or a witness during Trial unless I see it first?  I know that if it gets to the point of Plaintiff's attorney asking a witness about docs in the CCP 96, I should cross-exam them afterward and renew my objections to the docs at that point, based on witnesses' lack of personal knowledge.  I'm just wondering if there should be any objection to Plaintiff getting CCP 96 docs in front of a judge or witness in the first place during Trial?  (very confused on this - please let me know if you'd like the question clarified).

 

The lawyer must give you a copy of any exhibit that she shows to a witness.  Since there are very few exhibits, she may give them to you in advance.

 

2.  I've read that when I check in, I should have any witness Plaintiff may bring in sequestered right away so they can't hear the proceedings.  My understanding is also that when called, they should go straight to the witness box, so as not to let the JDB attorney coach them.  So my question is, how do I find out if there is a witness in the court room or not?  Do I ask the Clerk when I check in?  I'm just afraid that Plaintiff won't say anything about him/her/them being there, then call them from the audience halfway through the Trial, after they've already heard everything.  

 

I would not ask that the witness be sequestered.  One does that in very long trials where you don't want one witness to hear the other witness's testimony.  Here, there will likely be only one witness.

 

3.  If I lose:  I've read on the Los Angeles Court's website that when a Plaintiff wins a case in Limited Civil, but could have filed in Small Claims court (because the suit is for less than $10K), the judge can, at their discretion, choose not to award attorney's fees.  I have to prepare myself for the eventuality of losing, so does anyone know how I would try to convince the court not to award attorney's fees in this scenario?

 

I would only make the request if the judge announces an adverse ruling from the bench.  Usually, the judge will take the matter under submission and issue a judgment later on.

 

 

4. I remember a post from oldwoman that seemed to indicate that the judge in her case was mad about the fact that Plaintiff could provide no POS for Plaintiff's Trial Brief.  But I've also had lots of other people tell me to just be prepared for Plaintiff to dump it on me a few minutes before Trial.  Is there any court rule that states that a Plaintiff must furnish Defendant with their Trial Brief prior to Trial?

 

We looked and didn't see any local rule.  That is where it would be.

 

5.  Finally (and it's probably much too late for this), I've heard that HSBC (the alleged original creditor) was bought by Cap. One at some point.  Does anybody know when?  It's a topic I thought of bringing up in regard to Chain of Title a while ago, but I never looked into it.  Just trying to think of last ditch arguments, if things start going south for me.   

 

I didn't know that.  I will check.

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Then there's this question.  I posted it a while back, but I think we all got wrapped up in other topics and may not have gotten back to it:

 

"Finally, in regard to Objecting to Plaintiff's Opening Statements, I've read a few slightly different opinions here. One says to pipe up and object to basically everything Plaintiff tries to say or introduce at Trial. The other says the following:

 

'PRACTICE POINTER: Your objection during the opponent's opening statement may be viewed by the jury (and the judge) as a rude interruption. Therefore, be as circumspect as possible. The proper procedure is for counsel to state "Objection" (or in an egregious case, to rise and object) and ask to approach the bench.'

 

 

So is there a way for me to gauge what is being rude vs. what is appropriate when objecting? I think the judges at my local court are pretty lenient with most things, but I've also seen what can happen when someone really p@ssed them off and that's not a road I want to go down. As always, thanks everyone." 

 

 

The opening statement is not evidence.  And there is no jury that could be prejudiced.  So even if the lawyer says you are an axe murderer, I would not object.

 

I would however stand when the lawyer is finished and tell the court that it will not hear any such evidence during the trial.  And the court should wonder why plaintiff has to mischaracterize the evidence if it has any case at all.

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The lawyer must give you a copy of any exhibit that she shows to a witness.  Since there are very few exhibits, she may give them to you in advance.

 

Got it.  Good to know.

 

I would not ask that the witness be sequestered.  One does that in very long trials where you don't want one witness to hear the other witness's testimony.  Here, there will likely be only one witness.

 

Oh, okay.  I had thought it was to keep the witness from being "coached" by the proceedings and having the lawyer point things out while sitting next to them.  Got it.  No sequestering.

 

I would only make the request if the judge announces an adverse ruling from the bench.  Usually, the judge will take the matter under submission and issue a judgment later on.

 

Oh, really?  I had thought that my case would be ruled on the day of Trial.  Can't believe I didn't know this before now.

 

 

We looked and didn't see any local rule.  That is where it would be.

 

Gotcha.

 

I didn't know that.  I will check.

 

Thanks!

 

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