Strategic differences in dealing with OC rather than JDB?

[Sevanski 18]

Mates: 

 

I'm defending my uncle in a lawsuit by AMEX and have a question for you all... Are there any significant differences in how I should approach the upcoming trial since I am dealing with the original creditor? They filed a CP 98 and I will attempt to have Linda Salas served in the coming days, but obviously, she won't be there. The process server will  give me a declaration indicating that she wasn't there, and I will object to her declaration in lieu of testimony at trial. From what I can gather, they will  have no legs to stand on at this point, and it should be a directed verdict. Am I missing something here? Oversimplification? 

 

On the other hand, if that declaration gets in, I think were screwed... but oh well, my uncle is flat broke. 

[shellieh98 1,505]

Nope, they still need a witness. Not much else you can do.

[CCRP626 429]

This sounds like California? Even if they get someone there they'd have to be a qualified witness with knowledge of AMEX recordkeeping practices/systems or have been in contact with someone who has. Did you google Linda Salas?

 

Evidence code 1271

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=evid

[Sevanski 18]

Thanks for your replies. Yeah, I Googled her. I think the odds of her showing up are infinitesimally small. But even if she does, my uncle is broke, so they can just tack all those costs onto the money that he won't be paying. 

 

It's going to be my first trial, so I'm excited and nervous at the same time!

[Anon Amos 2,247]

You cannot represent your uncle unless you are an attorney.

[BV80 2,700]

@Anon Amos

 

You beat me to it.  I was about to say the same thing. 

[Brotherskeeper 827]

Thanks for your replies. Yeah, I Googled her. I think the odds of her showing up are infinitesimally small. But even if she does, my uncle is broke, so they can just tack all those costs onto the money that he won't be paying. 

 

It's going to be my first trial, so I'm excited and nervous at the same time!

 

Linda Salas has testified in several cases in New York. One New York judge found Salas' testimony "woefully insufficient."  (Caveat IANAL--In NY, an account stated cause of action requires proof of mailing. California may not have that requirement.)

 

http://www.thelangelfirm.com/Debt-Defense-Blog/2012/May/Judge-dismisses-American-Express-complaint-after.aspx

 

'Judge Dear then took judicial notice of the fact that Salas had given testimony in other cases before him, on behalf of other American Express companies, such as American Express Centurion, that are separate and distinct legal entities. Salas gave nearly identical testimony in each instance. Judge Dear also noted that here, Salas claimed she had worked for American Express for 25 years, yet according to its governmental filings, the plaintiff company American Express F.S.B. has existed for only 12 years. For these reasons, the court concluded Salas' testimony was "robo-testimony" – she gave the same testimony in every case, regardless of the documents about which she was testifying – and thus lacked credibility.'  American Express Bank v. Tancreto, CV-24043-11/KI (Civ., KI, Decided April 27, 2012, Judge Noach Dear).

[CCRP626 429]

I hate to say it but cases with that Judge's name on them might be considered tainted. If you google Noach Dear, you'll find some history on him. For sometime he was the judge you'd want if you had to defend a debt case, he'd basically help you with defenses if you didn't think to bring them up.

BUT, California might not have heard of him, so if he's the only Judge ruling against Salas, might be worth a shot.

 

American Express Bank v. Tancreto cited above was appealed and Noach's decision overturned.

https://scholar.google.com/scholar_case?case=2154948631252577942&hl=en&as_sdt=6&as_vis=1&oi=scholarr

 

I remember reading it got to the point when a creditor Plaintiff found out they got Noach they'd just go ahead and file for a judge substitute.

[Sevanski 18]

Hey All... Sadly, I am an attorney, but have little to no experience in collections work. Each of you are far more versed in this field, and have given me a ton of confidence to do this. 

[Sevanski 18]

From my perspective as a non trial attorney, it seems as if the CCP 98 declaration is properly objected to, they are left with absolutely nothing. Who will lay the foundation for ANY documents they want to introduce?? Seems like the entire case boils down to this, but if I am wrong, I suggest any and all input from the group. 

[shellieh98 1,505]

You are correct. Also there is case law target vs rocha and cash vs ( I forget lol) that states the witness needs to be personally served . Mix that with it has to be an address within 150 miles of the court and it makes a fine set up for a dismissal. They could bring the witness in, then you would need to be creative and impeach her by a bunch of questions showing she knows nothing about your uncles account, how the records were kept, et all

[Anon Amos 2,247]

CACH vs Rodgers.

The important thing with the ccp98 is to subpoena the declarant and get a declaration of diligence from the process server stating what happened.

It's best to have them attempt service 2 times and then leave it with whoever will accept it on the 3rd attempt.

[Anon Amos 2,247]

Hey All... Sadly, I am an attorney, but have little to no experience in collections work. Each of you are far more versed in this field, and have given me a ton of confidence to do this.

I think you will be able to make lite work out of this.

[Anon Amos 2,247]

I'm sure you are well versed in CA Evidence Code 1271.

They shouldn't have anything that stands up to a proper argument of this and CA evidence code 1200.

Welcome BTW.

[sadinca 772]

delete

[Sevanski 18]

You guys are amazing. But while I have all your attention, lets get to stage 2. Once I successfully object, I wait until they try to put on their case with no evidence, then move for a directed verdict right? I know you may not be attorneys, but in a HYPOTHETICAL world on Mars, is this what you would do? Of course this has nothing to do with my matter... 

 

Also, on this hypothetical world, there would be no need for me to put my own case on I presume, since the Defendant wouldn't have met their burden? 

 

Much love to you all...  

[CCRP626 429]

Just a thought and I don't know California but is there anything not already mentioned where Plaintiff is required to produce all evidence and mention all witnesses they intend to produce so many days before trial? That way anything they try to sneak in after that period is expired is not allowed.

[Anon Amos 2,247]

Correct. (Regarding post 16)

It will most like come down to whether or not they will bring a witness and whether or not the witness is qualified to lay a foundation (assuming they don't dismiss first).

You probably don't have much of a case to put forward but will be holding plaintiff's feet to the fire instead.

[Anon Amos 2,247]

Just a thought and I don't know California but is there anything not already mentioned where Plaintiff is required to produce all evidence and mention all witnesses they intend to produce so many days before trial? That way anything they try to sneak in after that period is expired is not allowed.

Good point. OP read CCP 96 (it's probably too late to send a DISC 015 form now if you haven't already (unless they don't object to it).

[sadinca 772]

how many days away from trial? have you sent out a ccp96 request?

[sadinca 772]

@Sevanski you may want to mention, without giving anything out that your case is locate in a very pro-creditor court. with that in mind, @amos Amos lets say the judge does throw out the ccp98 for whatever reason, but the judge mentions that the statements are self authenticating, as we have heard some report. what arguments would you bring out against "self authenticating statements"? if this makes any sense.  

[Sevanski 18]

Hey All, 

 

Yes, I did send a CCP 96 request, and the only witness they identified was a Linda Salas. Along with that response, they sent the CCP 98 declaration requesting that she be allowed to testify via declaration. I want to keep my objection/ MIL in my pocket until five days before trial and drop it on them at that point. I am having a process server attempt to serve her at a law firm in Los Angeles, but obviously she won't be there. I instructed him to go twice and send me a declaration that she is unavailable... 

 

I think this is a great for me to learn on, because my uncle has nothing to lose. Even if she shows, and judgment in entered in AMEX favor, they can just tack that onto the $24,495 that he can't pay lol. Although I think the odds of them flying a rep out to LA over this case are really small (but who knows?).

 

At this stage, I think the only thing I am concerned about is some off the wall theory about why the documents are self authenticating. I just can't imagine that flying too far. 

[Sevanski 18]

@sadinca that is my only concern, but what plausible argument can they make?? I think that would be horrific on the part of a judge to allow that to occur, especially after her own declaration essentially lays out ALL the reasons she is qualified to authenticate the docs. The attorney can't testify... I can't imagine another angle. 

 

But I would love to hear others take on this. 

[BV80 2,700]

@Sevanski

 

Considering the fact that you're an attorney, hopefully @calawyer will chime in.

[Anon Amos 2,247]

You know the rules as to what constitutes self authenticating documents, nothing changes here, they are not allowed to carve out an exception.