Istresswaytoomuch

Sued by Portfolio Trail in 1 month need advise. ASAP

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Portfolio is the plaintiff, the amount is 3k. The original creditor is Citibank. I was served In person at my front door by a process server. Process service was a legal requirement by the state. I didn't answer any of their calls or letters. I'm in LA county, California. I defaulted in 2012. The SOL has not passed. The most that I did was file an answer last year using a general denial. Received a court date but had planned on demanding arbitration, but I have learned that that should have been filed at the time of my answer. This week a package was delivered by courier. It contains a proposed order for judgment, a memorandum of costs(summary). A request for statement of witness and evidence-for limited civil cases. Within 20 days I'm suppose to serve them with 1. the names and addresses of witnesses I intend to call at trail (except for any individual who is a party to this action). 2. A description of each document that I intend to offer at trial. 3. A description of each photograph and other physical evidence I intend to offer at trail.

 

A trail witness list which is of course an affidavit from a party at their firm. 1. Custodian of records for PRA/ his statement. 2. my name 3.His claim to call additional witnesses on the basis of newly discovered evidence, etc. also they reserve the right to ament this list at the time of trail.       

 

Notice requesting and requiring parties to attend trial, indicating that I need to bring any/all correspondence between me/original creditor/and these clowns.

 

A trail list with 4 vague exhibits. Card agreement/Bill of sale which is an electronic computer file with only two lines on it whited out/ 2 billing statements/ And a letter sent from plaintiff with the intent to commence legal action against me * This here is mind boggling to me because even when they purchased the debt and all forms included in this packet have my current address that I've resided in almost 10 years now, but this letter (the only letter) they sent to my childhood home which was sold about 5 years ago. I haven't lived there in over 20 years, I was even served at my current address so I know that they intentionally sent that one document to the wrong address on purpose. Do I have any standing for this fact alone?

 

A trail brief    I Introduction (One paragraph) II Summary of facts (another one paragraph) 1. Account Stated (three paragraphs) Defendant failed to dispute any charges Incurred (two paragraphs).

 

 

Proof of service

 

 

Declaration in Lieu of personal testimony pursuant to CCP 98.

 

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Portfolio is the plaintiff, the amount is 3k. The original creditor is Citibank. I was served In person at my front door by a process server. Process service was a legal requirement by the state. I didn't answer any of their calls or letters. I'm in LA county, California. I defaulted in 2012. The SOL has not passed. The most that I did was file an answer last year using a general denial. Received a court date but had planned on demanding arbitration, but I have learned that that should have been filed at the time of my answer. This week a package was delivered by courier. It contains a proposed order for judgment, a memorandum of costs(summary). A request for statement of witness and evidence-for limited civil cases. Within 20 days I'm suppose to serve them with 1. the names and addresses of witnesses I intend to call at trail (except for any individual who is a party to this action). 2. A description of each document that I intend to offer at trial. 3. A description of each photograph and other physical evidence I intend to offer at trail.  ^^^ that is their request for a CCP96 from you.  You can either send one and just put "defendant has no evidence, no witnessess except for purposes of impeachment"  That just says I have nothing, but I will question and impeach your wittness.

 

A trail witness list which is of course an affidavit from a party at their firm. 1. Custodian of records for PRA/ his statement. 2. my name 3.His claim to call additional witnesses on the basis of newly discovered evidence, etc. also they reserve the right to ament this list at the time of trail.    If you request a CCP96 (I think what they sent you is a CCP96, they just didn't bother to label it)   Then number 3 is out.  They cannot ammend the list at time of trial, they are stuck with what they sent.  If they said "the custodian of records for PRA, and did not give you his name and a place to serve him, then to bad for them, he can't testify if you object.  You will send them a meet and confer letter if that is the case telling them they are not in compliance with CCP96, and they need to furnish that information.

Notice requesting and requiring parties to attend trial, indicating that I need to bring any/all correspondence between me/original creditor/and these clowns.  To bad so sad.  After a diligent search and reasonable inquiry, you can not find any of the requested documents. Sorry, don't have anything for ya plaintiff.

 

A trail list with 4 vague exhibits. Card agreement/Bill of sale which is an electronic computer file with only two lines on it whited out/ 2 billing statements/ And a letter sent from plaintiff with the intent to commence legal action against me * This here is mind boggling to me because even when they purchased the debt and all forms included in this packet have my current address that I've resided in almost 10 years now, but this letter (the only letter) they sent to my childhood home which was sold about 5 years ago. I haven't lived there in over 20 years, I was even served at my current address so I know that they intentionally sent that one document to the wrong address on purpose. Do I have any standing for this fact alone? Bill of sale does not have your account listed, it is generic there is no way to tell if your account was included in the sale.  Therefore it is heresay.  They need a witness to be able to authinticate it.  Letter doesnt mean squat.  You just deny you ever recieved it.  The statements are unauthinticated.  They need a live witness to try and lay foundation, but you will not let that happen, even if they do bring a witness, the questions I sent you will help impeach the witness assuming they even show up. 

 

@Anon Amos and @calawyer Im sure will jump in.  They are both from cali.

 

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A trail list with 4 vague exhibits. Card agreement/Bill of sale which is an electronic computer file with only two lines on it whited out/ 2 billing statements/ And a letter sent from plaintiff with the intent to commence legal action against me * This here is mind boggling to me because even when they purchased the debt and all forms included in this packet have my current address that I've resided in almost 10 years now, but this letter (the only letter) they sent to my childhood home which was sold about 5 years ago. I haven't lived there in over 20 years, I was even served at my current address so I know that they intentionally sent that one document to the wrong address on purpose. Do I have any standing for this fact alone?

Was the letter the only thing sent to the wrong address, or were the exhibits sent with the letter as well? What did the letter say? You may be able to get a FDCPA violation out of this and create leverage.

 

A trail brief    I Introduction (One paragraph) II Summary of facts (another one paragraph) 1. Account Stated (three paragraphs) Defendant failed to dispute any charges Incurred (two paragraphs).

 

 

Proof of service

 

 

Declaration in Lieu of personal testimony pursuant to CCP 98.

You don't mention anything about this ccp 98 declaration, but this is a critical area that needs to be handled properly. (it sounds like you have a trial in less then 30 days and may need to subpoena a witness). 

We need more information.

 

Welcome aboard BTW.

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Welcome.

 

The CCP 98 declaration is supposed to have the address of the witness where he/she can be served within 150 miles of the court.  Typically, Junk debtors find  complying with this law inconvenient.  So they put a lawyer's address or a process server's address instead.  Two courts have ruled that this renders the declaration inadmissible.  Search this site for Target v Rocha and CACH v. Rodgers and you will find both cases.

 

If your declaration followed this strategy, you will want to have a process server attempt service at the address given.  Tell them that you do not expect the witness to be found there but you want them to try 3 times then leave it with whoever will accept it on the last attempt.  They will then give you a declaration of diligence or a declaration of non-service (same thing).  You will then have what you need to object to the declaration.

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Forgive me, Yes the CCP96 included the address of the witness which is within the required limit of the courthouse. I wasn't able to find the name of the person until I got to the last page of it where the signature was required.

 

You are 100% right shellieh98 my  name is nowhere on this page. I also counted back from the day of the trail and 7/14/2015 will mark 30 days before the trail( if weekends are included). So I went to the P.O. and sent off the CCP96 request express mail. It's guaranteed for a Monday delivery so I beat the 30 day deadline.

 

 

@ Anon Amos, yes that was the ONLY letter sent to that address. Everything pertaining to Portfolio has come to my current address, as I stated before they served me here. I know it's an intimidation factor but I just sat here and read over everything with a fine tooth comb, when I came across that I looked through everything again even what they acquired from the purchase and ALL of those papers list my current address. It's like they went way back and pulled that one our of their a$$.

It's titled, "Notification of Intention to Incur Court Costs by Filing Suit." ......You are hereby notified that, unless payment or arrangements are made by a certain date that they intend to file suit I the proper venue....... Below that there's three boxes with three different payment options and a stub to detach and send in with payment.

There's an account/reference number included all blacked out except for last four digits. On the detachable stub is where they used my childhood address.

 

 

Their Exhibit 1 is an Asset Schedule. It has 4 different sections Sale ID/# of Accounts/ Sale Rates/ Sale Balance/. Of course they are whited out. An Affidavit of Sale or Account By Original Creditor from South Dakota (Notarized). A three page list that has the day account was opened, just basically all the info about the account including my name and current address. ( The first three lines are ACCOUNT NUMBER. ACCOUNT NUMBER CROSS-REFERENCE NUMBER. ACCOUNT OPEN DATE.)  It doesn't have a title or page numbers so I don't know if it's supposed to be included along with the affidavit.

 

Hi Calawyer I already have the subpoena printed up and ready to be stamped by the court first thing Monday morning. If I understand correctly I'm to start attempting to serve them on the 20th day prior to the trail date. Shellieh98 has helped me so much, so if I misinterpret any directions don't hold it against me.

 

Since I'm taking care of the subpoena Monday should I just go ahead and file the answer to the forms they sent this week to get it out of the way? Also do I wait until after the process server does their service to file the trail brief with the court and with a summary of what happened during the requested service.

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Not sure what you mean by "file the answer to the forms they sent this week".  Are these questions from the process server? 

 

You want the process server to understand that you do not expect the witness to be found there but you want them to try 3 times then leave it with whoever will accept it on the last attempt.  It is better to have these instructions in writing.  If it is a big company, they have someone who answers the phones, someone else that does intake and others that do the actual service.  You want to make sure they don't just leave it there on the first attempt.

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I meant the documents I listed in my first post such as the CCP96 that they sent me. I thought if I didn't respond to it that they can get a default judgement or something, because it does state that I have 20 days to respond. So, do I respond? I Know how to answer but I guess they don't have to be filed with the court first. Is it okay to respond on plain paper, or do I need to download a certain type of response form, I've been searching on line and can't find one. 2. Is it okay to send the response back to them certified mail before the 20 day deadline?

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if you dont respond, then you can't use any evidence you have in court.  That's ok, you don't have any evidence to use.  You can just send them a response that I wrote above.  It should be on pleading paper and should contain Defendants CCP96 response on it.  Or don't respond, it's up to you.  If you respond, it just shows them you know what your doing.  They don't like prose people that have any sort of clue, makes winning more difficult, and they may weigh the decision to cut their losses and dismiss, or try to win it..

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Your CCP 96 response is as follows:

 

Defendant does not intend to call any witnesses or introduce any documents for purposes other than impeachment.

 

XXOO

Istress

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It's your phone, you pay the bill.

It's a good sign they keep calling. If you do pick up tell them you will only speak to the lawyer. Speak only to the lawyer (carefully ) or, if you don't want to do that then I wouldn't answer.

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OMG my heart just stopped and I'm a ball of nerves, today was my first attempt at serving the subpoena and the individual was in fact there to be served. I know that a lot of people on this site prevail in a trial by the person not being able to be found, now this changes everything for me and knocked down my confidence level tremendously. So now I guess the objection to the ccp98 is out. August 1st will be day 20 for the response back for the CCP96 that I sent them. Im just panicking now because I just received my confirmation for delivery, I'll calm down and concentrate on what my next step is.

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This changes nothing. It's actually becoming quite common. It does intimidate people as it's meant to do.

Your objection to the ccp98 stays.

This witness may not show up and even if he does, he isn't from the OC so he can't lay a foundation and authenticate OC records. You will still object to the witness being called on those grounds.

You still object to the evidence.

Witnesses are being served but defendant's are still winning.

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http://www.creditinfocenter.com/community/topic/252142-sample-motions-forms-affirmative-defenses/page-8#entry1245047

Questions to ask. Change them to fit your case.

Your homework is to learn the rules if evidence. Read the threads by string, astmedics, homelessinca , and take notes. It will all come together. Learn when and why you object. You can bring your notes to court with you. Learn when you object, and use case law to back it up. You will find it in those threads.

You can do this.

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I'm clear on all the other forms that were included in the CCP98. I've read through all types of threads as instructed and many mentioned the other two items sent to me,(Bill of Sale and Assignment/ Affidavit of Sale of Account By Original Creditor). The areas that I placed an (X) next to, did contain my correct information but I have no idea what the title of these forms(3) are exactly, and just would like someone to shed some light on it for me.

 

 

Also on this Asset Schedule I know that they whited out some info, is this just a receipt referencing the sale of all the debts in its entirety that they purchased from the OC, mine included (I'm assuming on this sheet I'm referred to as a number instead of by name)?

 

Like I said I am knowledgeable about everything else in front of me, these two items I don't understand a full 100%.  

Unknown.pdf

Asset Schedule.pdf

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Doesn't matter, they are here say. No foundation has been layer to authenticate . But just for your own curiosity, the first describes the entire lor they bought, the 2nd is the electronic info on your alleged account. That's what they get, except 1 or 2 or so statements. If they need more, they have to pay for them from the OC. The longer they wait, the more likely the OC has purged/ lost / whatever those records.

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Me too it kills me every time I look at the title to my post. It kills me even more that I can't edit it. Mine kept changing the word "trial" to "trail," I guess because it's a word that i used a lot when I was exercising and meeting with others to join me, but hey what can you do?Lol

Thanks for the insight though, I was always curious, but never asked.

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Like I said I am knowledgeable about everything else in front of me, these two items I don't understand a full 100%.

 

They do not qualify as a business records under CA Evidence Code 1271.

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:hmmmmm:I guess I'll go out a limb and ask the forbidden question( if I'm allowed to do so)? How do we answer questions if we are called on the stand? I never really see this addressed. Of course you don't want to lie, or say something that can help the plaintiff's case. What are border line "safe" answers? Just trying to prepare for everything since I've come thus far.

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Tough question, hopefully you will get some good feedback.

 

We can't answer too much without seeing (or at least knowing) the evidence.

 

If they never gave you the entire alleged ac# then you can't swear under oath it is yours, because you obviously wouldn't know and therefor would have no choice but to deny it.

 

You don't remember your ac #'s on anything, and may not remember the balance or even a balance being that high on any debts (or something like that you would only know the answer to). You definitely never heard of plaintiff before.  

 

You certainly can't swear they own the account, and your alleged ac# isn't in the BOS. You have no reason whatsoever to believe that if you paid them another bottom feeder won't come after you for the same account. 

 

You probably don't remember exact amounts, dates, #'s etc, and do not trust them or any of their hearsay docs that were for the most part created for the sake of litigation, and that's why they should have a witness from the OC there to authenticate and lay a foundation for the OC records as the plaintiff is not a qualified witness to do that.

 

"I don't recall",  "I don't know", (and neither do they), This is an honest answer to a lot of what they may ask.

 

"I would have to ask the OC to know the answer" (I always try to add tidbits of damage for them with the answers as much as possible).

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Hi Shellieh

    It's tomorrow and I feel like throwing up. I've been trying not to stress. Today is the first day out of months that they haven't called (imagine that). Feels kind of weird but I'm in good spirits just happy that it's about to be over. I do know what I need to do and I'll be sure to update everyone with the outcome. Thanks for checking in on me. Don't know how I  could have even gotten this far without you.

 

 

xoxoxo

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