h8spleadingpaper

Portfolio Recovery / Hunt & Henriques_NEW

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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.

 

Got it.  Thanks!

 

I would however stand when the lawyer is finished and tell the court that it will not hear any such evidence during the trial. 

 

Do you mean that the court will not hear any admissible evidence that would back up Plaintiff's claims in the opening statement (if there is one)?  Or that it should not hear the professed evidence because it is inadmissible?  Sorry, I often read things two different ways and both sound equally likely to be what's intended.

 

And the court should wonder why plaintiff has to mischaracterize the evidence if it has any case at all.

 

Not sure what you mean by this.  What would be an example of a statement they could make that would be a mischaracterization?  Claiming that they have standing?  Again, sorry.  And again, thanks!

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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? 

 

I think the best way is through 1271 (which I don’t agree is vague).  The requirements of subsections (a) –(d) must all be met.  There is no “or” anywhere in that section.

And there is simply no way that a PRA witness can provide testimony about any of these requirements from first-hand knowledge.  For example,  the witness can’t  testify about the document’s “mode of preparation” from first hand knowledge unless the witness used to work for HSBC or took an extensive field trip there on the day your documents were prepared.  Remember, “mode of preparation” is an essential element of plaintiff’s burden of proof to meet this hearsay exception.  So important that it is mentioned twice.  Once as a stand alone requirement in subsection © and again in subsection (d) (actually, “method of preparation”).

 

   

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.  

 

We are “fair” to plaintiff when we follow rules that are published and have been in existence forever.   Plaintiff bought this debt and is trying to profit using the court system to do so.  If plaintiff finds the rules inconvenient to its business practice, it should use its extensive lobbying efforts to have the legislature change the rules.  Or satisfy itself with the recovery it gets from the 95% of people who default.

 

Thanks.     

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What I meant by the “axe murderer” comment is sometimes an attorney will say something in opening that you know they can’t prove.  I wouldn’t object during the opening if no jury is present.  But I would mention it to the judge when plaintiff finishes.  I would tell the judge that she will not hear any such evidence at trial.  And you really have to wonder why plaintiff would make something like that up if it had a good case to present.

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I think the best way is through 1271 (which I don’t agree is vague). 

 

Thanks.  What I meant by this is that because 1271 doesn't state "the custodian or qualified witness of the Original Creditor," (or something to that effect) or that "the writing was made in the Original Creditor's regular course of business," or that "the writing was made at or near the time of the Original act" (not Plaintiff's act of printing up their electronic copy), the opposition may try to twist 1271 into being about Portfolio, their custodian, and the act of their generation of records.  This is exactly what they tried to claim in their CCP 98.  You and I know it's BS.  Hopefully the judge will also know it's BS and be highly insulted (assuming they try to use it, since it's not listed as an exhibit on their CCP 96).     

 

We are “fair” to plaintiff when we follow rules that are published and have been in existence forever.   Plaintiff bought this debt and is trying to profit using the court system to do so.  If plaintiff finds the rules inconvenient to its business practice, it should use its extensive lobbying efforts to have the legislature change the rules.  Or satisfy itself with the recovery it gets from the 95% of people who default.

 

Nice.  What I meant was that I can see the judge (who I literally just found out the identity of as I was typing this very line) saying, "Well, Mr. H8, Plaintiff has provided you with a signed affidavit from a qualified employee of HSBC..."  (debatable)  "What more do you expect them to do?  Fly someone in from Nevada?"

     

 

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I think the best way is through 1271 (which I don’t agree is vague). 

 

Thanks.  What I meant by this is that because 1271 doesn't state "the custodian or qualified witness of the Original Creditor," (or something to that effect) or that "the writing was made in the Original Creditor's regular course of business," or that "the writing was made at or near the time of the Original act" (not Plaintiff's act of printing up their electronic copy), the opposition may try to twist 1271 into being about Portfolio, their custodian, and the act of their generation of records.  This is exactly what they tried to claim in their CCP 98.  You and I know it's BS.  Hopefully the judge will also know it's BS and be highly insulted (assuming they try to use it, since it's not listed as an exhibit on their CCP 96).    

 

"Generation".  Great word.  They COULD talk about "generating documents".  But the code doesn't.  It talks about preparation.  And that, in a nutshell, is the difference.

 

We are “fair” to plaintiff when we follow rules that are published and have been in existence forever.   Plaintiff bought this debt and is trying to profit using the court system to do so.  If plaintiff finds the rules inconvenient to its business practice, it should use its extensive lobbying efforts to have the legislature change the rules.  Or satisfy itself with the recovery it gets from the 95% of people who default.

 

Nice.  What I meant was that I can see the judge (who I literally just found out the identity of as I was typing this very line) saying, "Well, Mr. H8, Plaintiff has provided you with a signed affidavit from a qualified employee of HSBC..."  (debatable)  "What more do you expect them to do?  Fly someone in from Nevada?"

 

Sure.  They could pile up 20 days per day to make it economically efficient to fly someone here.  They could only buy from California sellers.  But if they want to sue, they have to follow the rules.  We shouldn't feel sorry for them if they can't.

     

 

 

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"We shouldn't feel sorry for them if they can't."

 

AMEN!!!!   

 

I say this all of the time and I think it gets trite after a while.  But it shouldn't.  They use the court system as a cudgel to effectuate their business plan.  That is very different than the typical litigant who uses the court system as a last resort to resolve a dispute.  They are huge consumers of the legal system and it is only fair that they are forced to follow the rules.

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I'm in bad shape right now.  I'm going to be putting out a few pleas for help throughout the night, as I can't do it all by myself.  If anyone out there can help me track down a few things tonight/tomorrow, I'd be immensely grateful.

 

1st Request for Help:

 

A Statement of Decision form (if there is such a thing - I looked) for me to use in California and the proper instructions for when and how to use it.  I wasn't going to go this route due to the time crunch that I'm now in, but the court finally revealed who my judge is supposed to be and he's totally pro-Plaintiff (I've seen him in action).

 

Thanks!

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Try to relax and ease anxiety. This is short time stress everyone goes through, don't let it get to you.

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I know @browniebrownie141 received a statement of decision from a bottom feeder and may be able to produce it so you can see it.

Guess I'll have to skip the Statement of Decision.  No time to look for one or look into how it's used.  Hope that doesn't hurt me.

 

Similarly, I read somewhere that in the Closing Statement (which I don't have any plans to make), I should say,

 

"Once more, Your Honor, I respectfully request that the court note Defendant's objections in the minutes to preserve them for appeal."

 

 

Should I be saying something like this at the start and end of Trial?

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I've been operating under the understanding that evidence listed on the Plaintiff's CCP 96 response as "Not Currently Available" could not be introduced at Trial. I even sent them a letter stating that I'd object to any evidence listed that wasn't made available to me in the CCP 96.  However, I just re-read CCP 96, an excerpt of which is,

 

"You are requested to serve...a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer, or if the documents are not available to you, a description of them."

 

Doesn't this totally allow them to try to introduce any evidence at trial, so long as they have listed it on the CCP 96?  I'll still object on the grounds that such items haven't been authenticated by anyone with proper knowledge, but man.  Sorry if I've already asked this.  I'm stressed out of my mind right now.

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I've been operating under the understanding that evidence listed on the Plaintiff's CCP 96 response as "Not Currently Available" could not be introduced at Trial. I even sent them a letter stating that I'd object to any evidence listed that wasn't made available to me in the CCP 96.  However, I just re-read CCP 96, an excerpt of which is,

 

"You are requested to serve...a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer, or if the documents are not available to you, a description of them."

 

Doesn't this totally allow them to try to introduce any evidence at trial, so long as they have listed it on the CCP 96?  I'll still object on the grounds that such items haven't been authenticated by anyone with proper knowledge, but man.  Sorry if I've already asked this.  I'm stressed out of my mind right now.

 

No it doesn't. Otherwise CCP 96 wouldn't really have any purpose. Did they describe what was "not currently available", and describe it in detail so that you'd know precisely what is on that document?

 

Due process. The suit has been going for months, maybe a year or two, time that they should have spent gathering their evidence and then there is your CCP 96 request. The description should be detailed enough so that you can properly prepare for it, and they should have to give a good reason to the judge as to why the document was not available until the day of trial.

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AMAZING!! CONGRATULATIONS!!!!!!

 

 

oh, no, no, no. you have to tell us more detail!!! WHAT HAPPENED!!??

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Perfect. Congratulations.

 

Don't forget to post in the winners thread (several people have won but not posted there).

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Thank you so very much to everyone that helped on here, through both advice and moral support.  I couldn't have done it without each and every one of you.  I especially want to thank the amazing, selfless, incredible calawyer who did so very, very, very much to get me through this, as well as Anon, who stuck with me through thick and thin, night and day.  You are both officially my heroes.  Your patience, generosity, and downright humanity got me through this, despite a lot of hardships, pain, and stress that are going on in my life.  I owe you guys so much and want to do what I can to pay it forward, as soon as I've had some rest (I didn't sleep at all last night).

 

I'll tell the whole tale tomorrow for those interested.  In the meantime, if anyone is in a jamb and needs something right away (I know EXACTLY how that is) and you think it's something I can help with, feel free to ask via PM tonight.  I'll try to check in off-and-on throughout the night.

 

Best wishes to all,

 

H8spp

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