h8spleadingpaper

Portfolio Recovery / Hunt & Henriques_NEW

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Perfect. Congratulations.

 

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

I most certainly will!!!  I'll also try to resurrect as much of my original thread as possible, in the coming days and weeks.  I'll also be redacting my Trial Brief, Objections (and anything else I can think of) and posting them here, in hopes that it will help others that follow.  Long live the Pro Ses!  Long live CIC!  

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I just want to highlight something for those of you who read this later.  In my entire time on this board (and the board we had beforehand), I can remember only one other poster that faced as much hardship and angst with a case as H8s. And it was not imagined angst.  The very real problems just kept piling on.

 

But throughout the ordeal, H8s remained level headed and did what needed to be done to win, even preparing a last minute motion to be filed with the court on the morning of trial.  H8s took the time to understand the law, to ask questions to make sure, and to file nothing short of excellent briefs with the court.

 

And it all paid off today.  I just couldn't be happier.  H8s beat a professional litigant that had a lawyer representing it in a case where the deck was stacked.  It just doesn't get any better than that.

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I AM SOOOO HAPPY FOR YOU!!!!! I know the feeling of RELIEF, its over, its over!!

 

You did a lot of work, I would have been so sad if you lost, but YOU did NOT.

 

Get some rest, clear you head,

 

I can't wait to read of what happened in court, but rest your mind first.

 

GREAT job! 

 

Thanks to all on here for helping the many people that did not know they could fight these jdb's, thank you!

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Congrats!!! You said "Dismissal without prejudice" does that mean this might creep up again in the future?

I won't say it's impossible.  But the feedback I'm getting is that it's unlikely, and if Plaintiff really wanted to push the issue, they'd have to pay the $225 filing fee all over again.  On a case in which they know the Defendant is going to fight, using solid arguments.  Plus, the alleged debt would now be past SOL in CA, which I'm hearing means they'd be out of luck when it got to Trial (please double-check this, before considering accepting a DWOP).  Under different circumstances, I'd have dug in and fought for a DWP.  But given the fact that I would have been going before a judge with a reputation for being pro-Plaintiff, the bad bout of insomnia I had gone through the night before, and all of the other weird stuff that's been happening to me of late, I was quite pleased to walk off this battlefield and just let the bodies burn.  I don't think I'll be hearing from them again.  And if I do, I'll be ready.

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Wow! So glad to hear of your win!!! I've been reading your thread and gaining lots of info and ammo. You've already helped me and I'm sure a lot of people with your  incredible journey. Congratulations!!!!!!     Can't wait to hear the details!!

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I won't say it's impossible.  But the feedback I'm getting is that it's unlikely, and if Plaintiff really wanted to push the issue, they'd have to pay the $225 filing fee all over again.  On a case in which they know the Defendant is going to fight, using solid arguments.  Plus, the alleged debt would now be past SOL in CA, which I'm hearing means they'd be out of luck when it got to Trial (please double-check this, before considering accepting a DWOP).  Under different circumstances, I'd have dug in and fought for a DWP.  But given the fact that I would have been going before a judge with a reputation for being pro-Plaintiff, the bad bout of insomnia I had gone through the night before, and all of the other weird stuff that's been happening to me of late, I was quite pleased to walk off this battlefield and just let the bodies burn.  I don't think I'll be hearing from them again.  And if I do, I'll be ready.

 

Yep :-)  When a debt is past the SOL you have an affirmative defense solely for that reason. But it goes further than that, suing on a time barred debt is a violation of the FDCPA - so not only do you have the clear affirmative defense, you can countersue for up to $1,000 for the violation. This is why is highly unlikely you'd be sued over this debt again.

 

Did they dismiss prior to your trial? Sounds like that is the case. If so, don't worry about not having fought for a dismissal with prejudice - a plaintiff is allowed, by code, to DWOP up until the commencement of trial, you wouldn't have had any argument for DWP at that point. Once trial has commenced (opening statements/argument heard, administration of the oath to any witness, introduction of any evidence) then a defendant has an argument supported by code, CCP 581, to insist that a dismissal be with prejudice (so long as you object and cite the code).

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Yep :-)  When a debt is past the SOL you have an affirmative defense solely for that reason. But it goes further than that, suing on a time barred debt is a violation of the FDCPA - so not only do you have the clear affirmative defense, you can countersue for up to $1,000 for the violation. This is why is highly unlikely you'd be sued over this debt again.

 

It is even better than that.  You also would have a Rosenthal Act violation thanks to the new Fair Debt Buyer provisions:

1788.56.  A debt buyer shall not bring suit or initiate anarbitration or other legal proceeding to collect a consumer debt ifthe applicable statute of limitations on the debt buyer's claim hasexpired.

And, there is case law out there suggesting that the remedies are cumulative (you can recover for violations of BOTH statutes).  Plus, if the JDB sues in state Court, you can allege the federal claim (FDCPA) without fear of being removed to federal court because only a complaint may be removed--not a cross-complaint.

 

Which is why most JDBs won't sue again.

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Hey, folks.

 

Sorry I've been gone a while.  Not to overshare, but some chronic health problems were exacerbated by all of the trial prep, and I was pretty incapacitated for a week afterward.  I'll be posting my redacted Trial Brief and Objections soon, but don't want to leave people hanging any longer, so here's what occurred in the final days of my case. 

 

Several adverse things happened in the weeks leading up to my trial, which caused a lot of added stress.  For one, a well-intentioned member of the site warned me that the Plaintiff's council might be trolling the site for information to use against defendants.  I found out later that this was based on one or two incidents in the past, where members hadn't been as careful as perhaps they should have in what they disclosed.  At the time, being under a lot of other pressures and only a week or so out from trial, I panicked, started deleting posts, and finally (since there were 22 pages to go through and no time to do it), had the thread taken down.  There really was no logical reason for me to do this; there was nothing incriminating to worry about and I certainly had never made any admissions that would help the opposition, even if they did somehow manage to find the time to look for, much less locate my thread.  Similarly, it made no sense for me to worry about the opposition knowing how I intended to fight them, since I was going to be giving them my trial brief anyway.  But as the old saying goes, while pressure sometimes creates diamonds, more often than not, it creates coal.  The point here is, always be absolutely sure that you are not putting anything in your threads that could damage your case (i.e. - personal information, admission of anything, etc) in case the unthinkable happens and if falls into enemy hands.  That way, you'll have no reason to panic the way I did and risk depriving yourself of the valuable input that others may be able to offer by removing your thread.  Luckily for me, folks on this site stuck right by me when I started this (new) one and matters continued after a brief setback.

 

There was also the matter of my judge.  For months, I had been calling the court and even stopping by in person to ask who my judge would be, only to be told that the judge would not be assigned until the week of my trial.  Going back to the first days when I found out that I was being sued, an acquaintance who has spent a lot of time at my local courthouse had warned me about a particular judge there who was known to be pro-Plaintiff.  There are differences of opinion as to whether any judge is truly pro-Plaintiff or pro-Defendant, and I respect that.  But what I did come to learn in the final stages of things was that, to a varying extent, much can come down to the judge and whether he/she chooses to accept a defendant's arguments or not.  This came as a bit of a surprise to me (as it no doubt does to some of you), and only served to increase my anxiety over the fact that I wasn't being told who I would be getting.  At one point, one of the clerks actually told me that a completely different judge from the one who I ended up with would be presiding.  I could tell he was basing this an entry in my Case Summary, which probably meant nothing at all (obviously, I was right about this).  

 

A few days before my trial, I called the Clerk's office again and wouldn't relent.  They had, after all, told me that they would finally reveal the mystery judge's name during the week of trial.  This time, they finally connected me with the clerk that actually works inside the courtroom during proceedings.  She informed me that my judge would be the very same one an acquaintance had warned me of back at the start of things.  I let out a heavy sigh and she asked if her response was good or bad.  I told her that for a Defendant, it was probably not good.  In a low voice, she informed me that she agreed with my assessment of the situation.  My heart sank.  I had observed this judge in action and witnessed him informing the courtroom that he believed cc statements to be "self-authenticating."  I looked into issuing a Peremptory Challenge to have the judge removed, but since the court had denied me knowledge of who he was up until that point, the deadline for filing had already passed (different courts have different rules on this - for me it was 10 days prior to trial).  I called the clerk back and explained the situation.  She informed me that all I could do was to file the Peremptory Challenge on the morning of my trial and that the judge would rule on whether it was timely or not.  I fretted over it, but in the end decided that this judge would most likely just rule against me on it and I'd have a PO'd pro-Plaintiff robe set against me the whole time.  

 

I'd love to be able to tell you all that on the morning of trial, I strode into court with my chest puffed out and my head held high, and proceeded to destroy the opposition, despite my concerns.  However, this wouldn't be honest and, moreover, I think that the truth might be of use to those who find themselves feeling less-than-sure of themselves when the day rolls around for them.  In reality, given all of the setbacks, having to take state exams just days before trial, and in dealing with assorted health problems, I was still racing to prepare the night before (not at all how I planned for things to go).  As a result of the extra stress, my insomnia kicked into high gear and I didn't sleep.  I dressed my best the next day and went in to court feeling resigned.  All options were now on the table.  I was tired and hurting as I sat down and started looking over my Brief and Objections.  The words were swimming before my eyes and I was upset that after working so hard on this for so long (with others working just as hard to help me out), it might all go down in flames.  But I decided to keep my cool (or at least to appear that way), and gave off the appearance that I was thinking profound thoughts.  No matter what, I was not going to make this easy on them.

 

There were pages and pages worth of trials and motions posted outside the court room that day.  The plaintiff's rent-a-lawyer flew in on a broomstick and started complaining in a loud voice that she was overbooked and overworked.  I thought, "This is good for me."  She started calling defendants out into a side room to cut deals, while we all waited for the judge to show up (he was late, just as he had been when I observed him weeks earlier).  When she finally got to me, I had a few hints ready to drop her way about the fact that I had a very good case and was prepared, but it never became necessary.  As soon as we got in the other room, she informed me that she was going to dismiss without prejudice.  Not what I had expected, but with my enormous binder under one arm, I decided to press my luck a bit by citing CCP 581(e), and telling her that only a dismissal with prejudice would do.  She countered that she couldn't do that unless the trial had begun.  I stalled for time.  She told me (I'm paraphrasing here), "Look.  I don't know what your case details are.  I haven't even seen your trial brief.  But Plaintiffs almost never re-file these cases, especially if it would be outside the statute of limitations."  At that, I agreed to the dismissal without prejudice.  I went over and quietly talked to the clerk, asking if there was any way to get it in writing that my case had been dismissed.  She made a joke about me not believing the Plaintiff's attorney.  I asked, "Would you?"  After all I'd gone through, I wanted to hear it from the judge's own lips.  Finally, when the judge was a full 20 minutes late to begin proceedings, the clerk announced in front of a packed court room that my dismissal was in the system and I could go.  At this, I felt comfortable enough and left.  

 

There are a few points that I'd like to make about the above.  One is the fact that exactly one day after the Trial, I received a notice of dismissal from the JDB's lawyers in the mail, which had been sent several days before all of this.  Had it gotten there two days sooner, I could have spared myself a lot of grief.  When I looked at the dates, what I came to realize is that on the very day that the opposition received my Trial Brief and Objections, they printed and signed the dismissal letter.  However, since this was on a Friday afternoon, it was never actually postmarked until Monday (I'm sure they didn't bother to rush it right down to the Post Office for me).  Now, my original strategy in sending the Brief and Objections to the Plaintiff had been to illicit just such a response.  However, I didn't get it to them as early as I had planned (at least a week ahead of the trial).  Thus, while the strategy does appear to have worked, it wasn't quite timely enough.  So if you plan to use a similar strategy, I would highly recommend that you consider getting your brief to the opposition a full week in advance.  Also, be sure to check your court's rules ahead of time, as some actually require you to serve a brief on the Plaintiff, and may have rules about when you have to do it.

 

The other thing I'd like to point out is how very important it was for me to go to court that day, despite feeling defeated.  Anything could have happened, had I not.  There could have been no dismissal letter floating around in the USPS NeverNeverLand.  Had there not been, it would have been easy for the Plaintiff to ask for and receive a default judgment, without knowing anything about my case or being prepared for my arguments or any evidence that I might choose to present (I still can't believe that an attorney for the Plaintiff actually admitted that she had no details about my case and hadn't even read my Brief).  She was overloaded with cases, in an emotional tizzy, and might not have fought very hard if pressed.  Simply put, once it's down to the wire like that and you've committed to going through with things, there's nothing to lose and everything to gain by having your day in court, in my opinion.  I did the research, prepared well (with an incredible amount of support and help from heroes like calawyer and Anon), was thrown some hard curve balls, thought I was down-and-out, showed up anyway, and got a dismissal.  We all tend to think that the opposition is working every bit as hard as we are on our cases, grinding teeth, and burning the midnight oil to beat us.  In reality, the JDB was not prepared for a fight, used a rent-a-lawyer, and decided to go after the low-hanging fruit.  If you prepare for war but get thrown some really hard luck, things can still go your way.  Just don't give up.

 

Maybe not the adventure story you were all expecting, but for me, it was a happy ending nonetheless. 

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Great information. I hope you are doing much better now.

You overcame this ordeal, with the outcome we all were hoping for

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"There are a few points that I'd like to make about the above. One is the fact that exactly one day after the Trial, I received a notice of dismissal from the JDB's lawyers in the mail, which had been sent several days before all of this. Had it gotten there two days sooner, I could have spared myself a lot of grief. "

 

Sorry, quote function not working.

 

This makes me madder than just about any other tactic that JDBs use.  They file the case.  They resist discovery.  They use trial tricks that have been exposed and rejected by appellate opinions.  Then they dismiss and don't tell you---leaving you to prepare and stress and take the day off work.

 

What you can't appreciate is that they would never do this to a lawyer representing you.  They would dismiss well in advance of trial or at least call with a head's up.  It is a courtesy that is expected and would be long-remembered if not extended.  But they do it to pro pers all the time.  Apparently, courtesies are only extended because one is a lawyer.  Not because we are human beings.

 

Unreal.

 

Anyway, I again want to say how proud I am of you.  If you have any doubt at all that it was your efforts that brought about this result, think again.  You were not one of those defendants ushered into the back room to cut a deal.  Your case was dismissed before you even got there.

 

Nicely done!
 

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You can be a consumer lawyer and a good person, while they may be a bottom feeder and morally bankrupt, but you are still both fellow bar members (no offense meant).

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Anyway, I again want to say how proud I am of you.  If you have any doubt at all that it was your efforts that brought about this result, think again.  You were not one of those defendants ushered into the back room to cut a deal.  Your case was dismissed before you even got there.

 

Nicely done!

 

Thanks, calawyer.   You were such an inspiration, my rock through all of this.  I've told some close friends and a family member about how very much you and others on the site did to help me.  You may never meet a single one of them, but believe me when I tell you that they all deeply appreciate you, and were touched by what you did for me.  I really needed help, and it meant so very much to us that someone who didn't even know me was willing to reach out and to give so generously of their time.  You have our eternal love and gratitude.  

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Now that the trial is over, I have some questions about the Plaintiff reporting on my CR.  The last time I pulled my credit report (2013), this JDB had a tradeline thereon.  So I'm currently considering pulling my CR again and looking into a possible FDCPA violation for reporting on a disputed (and dismissed) account.  My questions, for any who may have knowledge and experience in such matters, are as follows:

 

1.  I should be able to pull a free annual credit report again.  Rather than using up this once-a-year option however, I'm wondering if having been sued is a qualifying event for receiving a report (similar to how a consumer can get a free report if turned down for a credit card, etc).  This way, I could hold my free annual report in reserve, in order to check things again in the coming months.

 

2.  If the JDB is still reporting on my CR, is this an automatic FDCPA violation?  Or do I need to write them to remove it first?  

 

3.  Does the fact that the case was dismissed without prejudice allow the JDB to continue to report on my CR for a period of time?

 

4.  Is suing for an FDCPA violation difficult, or relatively straightforward?   

 

5.  Finally, I'm interested to hear peoples' thoughts on whether or not suing for an FDCPA violation would be worth it or not.  To be more specific, SOL on this alleged account was up in California almost a year ago.  So I'm wondering if going ahead with pursuing an FDCPA violation would likely cause the JDB to try to renew their efforts to re-open the suit, or perhaps less likely, since they would realize that I'm an aggressive defendant.  I realize that no one has a crystal ball to look into and give me a definitive answer on this; I'm just trying to gather some educated opinions so that I can make a more informed choice.

 

Thanks for any input you may have.

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I don't think being sued qualifies as an event that gives you an additional free report. But you are entitled to a free report each year from each of the credit bureaus. So you can get 3 free reports a year, if your previous report was from Transunion, use Equifax next time, etc.

 

Unfortunately they don't have erase the trade line after dismissing your case. Fortunately though, the allowable reporting time on their trade line is tied to the allowable reporting time of the trade line from the original creditor. So whenever your trade line from the original creditor hits the reporting limit (7 years from the original default), any collections trade lines based on that account have to fall off your report too, even if they have been reporting less than 7 years.

 

FDCPA suits: For SOL violations - what matters is when they filed the suit. If they filed the lawsuit before the SOL was up, they are okay, there is no violation. When there is a violation, you have just one year from the date on which the violation occurs to file a suit against them.

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H8, did you ever file to get your expenses back??

Good question!  To be honest, there's been so much else going on with me (medically) that I forgot all about it.  Does anyone know if I can do this if the case was dismissed without prejudice?  Is it likely to "stir the beehive" and get the Plaintiff to re-open the suit (which is now outside of SOL in California)?  Thanks!

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Unfortunately they don't have erase the trade line after dismissing your case. Fortunately though, the allowable reporting time on their trade line is tied to the allowable reporting time of the trade line from the original creditor. 

Thanks, RyanEX.  Does this seem kind of strange to anyone, though?  I mean, if it was dismissed, shouldn't the reporting also stop?  Sometimes dismissals arise from the fact that a defendant has demonstrated that the alleged debt is clearly not theirs.  It seems like in such instances (which, granted, is not quite the same as my situation, since the case was dismissed prior to trial), Plaintiff would have to stop reporting.  

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@h8spleadingpaper

 

A dismissal "without prejudice" is not considered a ruling on the merits of the claims asserted in the lawsuit.   The court did not rule that the plaintiff's allegations were not proven. The plaintiff could refile (as long as the debt is still within the SOL or there's no "saving statute). 

 

Because there's no ruling on the claims made in the complaint, you can't tell the credit reporting agencies (CRAs) that the court ruled that you don't owe the debt.  You can't tell them that the court ruled that the JDB didn't prove ownership of the debt. 

 

Without my going back to review, what is the date of first delinquency reported by the OC?

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Good question!  To be honest, there's been so much else going on with me (medically) that I forgot all about it.  Does anyone know if I can do this if the case was dismissed without prejudice?  Is it likely to "stir the beehive" and get the Plaintiff to re-open the suit (which is now outside of SOL in California)?  Thanks!

 

Yes, you absolutely can. Per CCP 1032, you are the prevailing party and can claim costs.

1032

(a) As used in this section, unless the context clearly requires otherwise: (1) "Complaint" includes a cross-complaint. (2) "Defendant" includes a cross-defendant or a person against whom a complaint is filed. (3) "Plaintiff" includes a cross-complainant or a party who files a complaint in intervention. (4) "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the "prevailing party" shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (  Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. © Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.

 

 

First step is to "file and serve a Memoradum of Costs (MC-010)  within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk" > California Rules of Court  3.1700.

Fees that can be recovered are listed in CCP 1033.5. Generally speaking, a pro se can get back the filing fee & process server fee.

 

Did H&H buy this debt on or after Jan 1, 2014? If yes, you might be able to include "costs of preparing for trial, including, but not limited to, lost wages and transportation expenses." (CCP 581.5, CC 1788.50, SB 233). Perhaps you can stick it to them a little extra for knowing they'd dismiss days before trial, but not informing you until the trial day & wasting more of your time. Haven't read of anyone successfully using 581.5 to get wages & transportation, but @caoptout was attempting this after their case, just never got an update in their thread.

 

IMO, no beehive to disturb; as much as these people behave like they're ignorant of the code, they know what's in there and that they're on the hook for costs when they dismiss. Besides you're beyond SOL anyway.

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