kenpo1980

Trial Scheduled for Next Week - Should I settle first?

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as RyanEx states you are not outside the window to file a subpoena. to serve a subpoena, hire a process server to serve both, the subpoena and the notice to attend trial. the notice to attend trial should be left at the address given in ccp 98 and the subpoena should be only served to the declarant, if the declarant is not to be found, process server should attempt two more times and leave the subpoena on the third time with whomever would sign for it.

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Thanks Anon! So I will read those other posts but just a couple of follow-up questions.

 

First, since the time is so short, I believe I am outside the window of time to serve a subpoena and file an objection to CCP 98 so is it even worth doing this at this point? And, in relation to this, isn't attempting service kind of a moot point if the Declarant is based in Colorado but they are giving an address in Los Angeles? Couldn't I argue that attempted service would not even matter in this situation because they violated CCP 98 in the first place?

There's time to subpoena and it's not a moot point. We aren't sure they violated ccp98 because we don't know if it says the witness will be at the addr4ess or not. Even so, the courts are very lenient on this. They will let a subpoena be served just about anywhere and to anyone, but hey want to see that you attempted service like the declaration said you could, regardless of how ridicules it may be.

 

Secondly,how do these trials work and what should I actually bring in as far as written documents are concerned?

Most of the time it never gets that far, the plaintiff will dismiss, sometimes right before the trial starts. A lot of people win at the trial if I gets that far. And some people lose at trial. It's just like anything else in life, some people take risk, some don't, there are winners and there are losers, and some settle. In Cali most of the cases are dismissed, and there is a very low loss rate, but it does happen. It goes with the territory. You have to do what you feel is right for you. But I will say this, if you are going to fight, you better get to it (ccp 98 declaration objection / subpoena), and you won't have much time for second guessing anything.

 

Third, since I am representing myself, does opposing counsel get to question me and what exactly do  I have to answer in terms of questions.

They can call you to the stand and try to get you to lay a foundation and authenticate their evidence. You have to answer questions, but as Ryan says, a lot of you simply may not recall or you just "don't know". I was able to honestly answer many of the judge's questions with "I don't know".

 

Fourth, if I did decide I wanted to get a lawyer to represent me would that be enough to get an extension and would it be worth it financially? The total amount that CACH is suing on is around $6500 and I am wondering what I would be looking at in terms of attorney's fees. I know when I had a student loan issue awhile ago the attorney was paid 10% of what they saved me in the settlement.

If you had a lawyer you may be able to get the extension. If you object to the declaration CACH will probably ask for the extension. I don't know if it would be worth the money, but I would rather pay a consumer lawyer than pay the bottom feeder. You would a need a consumer lawyer that is interested in fighting it more than settling. It's very late in the game for any of this and only getting later. My guess Is the lawyer would be about 2k. A good one would get it dismissed and from there it would go to a 50% off what they are sung you for. I think most people can negotiate better than 50% off if you fight them first , but most people that fight  get it dismissed anyway.

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Thanks for the responses! So in a nutshell, all I really need to do is attempt service and that should be enough to prove a violation of CCP 98, correct? Also, and sorry if I am not understanding this, but can I just object at trial to the documentation in the Declaration in lieu of testimony? And, if so, how do I do that? Is the objection a foundation objection? Is it  a hearsay objection?

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Your best fight is going to be serving the subpoena. Do it tomorrow. Glean an objection to the ccp98 and bring it with you to court. It would be best to get the declaration from the process server saying they could not be served first, but it is not necessary. File it a couple of days before court, or if you run out of time object with oral arguments. If they ask for a continuance, I would OBJECT. Because while you may feel this give you more time to learn and beat them, they will at that time know they have to bring the witness, and it gives them time to do so.

If they have no witness at trial, and you have tried to serve the declarant, you have objected to the ccp98, they have no case, their only recourse is to ask for a continuance or dismiss. Object to it. There is some case law as to why continuances should be denied at trial, I'm sure on of the Cali people will post it. USE IT.

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Thanks! So can you direct me to the form for the subpoena and  the objection? 

 

Also, because I think this may be a separate issue, could I still win just on objecting on hearsay and/or foundation grounds to the Declaration. One appeals case I read did not even get to the issue of the CCP 98 objection becuase they felt the declaration did not meet the requirements under evid code 1721.

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You have to serve the subpoena, period.

You can print your objection, and argue it in court rather than file it, but most people do not feel that comfortable speaking in court. Would be better to file it, then you won't have to argue it as much in court. Also many jdbS dismiss before trial when they receive that objection.

You need to do some work here. There are several examples of the ccp98 objection posted in threads anon Amos gave you. They are briefs, and you will need to change them to fit your case.

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Here is a blank copy of a subpoena, you need to fill out one of these with a stamp from your court clerk - stamped versions are available from your court house, possibly online but most people have to physically go to their court house to get one. Here is an example of what a stamped subpoena looks like from San Diego county: stamped subp-001.

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Here is the subpoena. Fill it out, get it stamped at the court, then high tail it over to a process server. Tell him you want 2 attempts to serve personally, then leave it with whomever will accept it on the 3 rd attempt. You then need to get his declaration of service or non service to file with the court.

http://www.courts.ca.gov/documents/subp002.pdf

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RYANEX beat me to the punch.

My employer should really start allowing us to attach files to websites. Tsk tsk...

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RYANEX beat me to the punch.

My employer should really start allowing us to attach files to websites. Tsk tsk...

 

Your employer does sound like slave driver, you have it tough at work.

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Thanks for the responses! So in a nutshell, all I really need to do is attempt service and that should be enough to prove a violation of CCP 98, correct?

Serve the subpoena. That will notify them you want the declarant there as a live witness.  I doubt you can prove any violation of ccp 98, nor do you need to. They have the right to use the statute, and although they may abuse it, it is commonly allowed. You are just saying that you want the testimony live. 

Also, and sorry if I am not understanding this, but can I just object at trial to the documentation in the Declaration in lieu of testimony? And, if so, how do I do that? Is the objection a foundation objection? Is it  a hearsay objection?

Yes you can just object verbally to the ccp 98 declaration when they introduce it  at  trial, and state that you served the subpoena. I think most would suggest a written objection as well, but you can object to anything at trial. They don't have to be written. Written provides a better record and unless you hire your own, you won't have a court reporter there. 

 

 

Also, we don't know what the ccp 98 says, so we don't know if it complies, etc. Regardless, for best results the subpoena should be served. 

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If you are just planning to verbally object to the ccp 98 at trial and subpoena the declarant: if it were mine, I would over night mail the attorney a meet and confer letter advising him / her of that fact. Bring the letter and proof of subpoena to trial along with a declaration of diligence from the process server of the subpoena stating what happened with the service.

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kenpo, did you mention that the declaration states that a Notice to Appear at trial can be served at the address they gave you?

 

calawyer has recommended that a notice to appear at trial in such cases should also be served a long with the subpoena.

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Thanks Anon and not be a downer but I think this may be a bit much at this point. Trial is next Tuesday which means I would essentially need to figure out a way to have everything taken care of between tomorrow and Monday, which seems like a push at best with my job so let me get your thoughts on the below options:

 

1. Call the law firm and attempt to settle  tomorrow, I actually left a message for them yesterday and I believe they tried to call today but did not leave a message.

2. Just show up for trial Tuesday and object to the declaration on foundation and hearsay issues?

3. Just show up for trial on Tuesday and attempt to work out a settlement there?

 

Also, what is the difference between losing at trial versus getting a default judgment? I would assume the main difference is that if you actually have a trial everything is on the record for an appeal.

 

By the way, I do have an appointment to discuss this with a lawyer tonight so I imagine he might have some thoughts at what to do at this point but  I am going to end up being able to settle on my own for  a few thousand I am wondering if a lawyer is even worth it unless he is pretty convinced he can win the whole thing.

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Thanks Anon and not be a downer but I think this may be a bit much at this point. Trial is next Tuesday which means I would essentially need to figure out a way to have everything taken care of between tomorrow and Monday, which seems like a push at best with my job so let me get your thoughts on the below options:

 

1. Call the law firm and attempt to settle  tomorrow, I actually left a message for them yesterday and I believe they tried to call today but did not leave a message.

Give them a low ball offer and let them counter. I would tell them you will speak only to the lawyer. You want to end up below 50%

2. Just show up for trial Tuesday and object to the declaration on foundation and hearsay issues?

I suppose you could do that.

3. Just show up for trial on Tuesday and attempt to work out a settlement there?

That's exactly what they plan to do 

 

Also, what is the difference between losing at trial versus getting a default judgment? I would assume the main difference is that if you actually have a trial everything is on the record for an appeal.

Pretty much. I wouldn't count on any kind of record or appeal in your case however.

 

By the way, I do have an appointment to discuss this with a lawyer tonight so I imagine he might have some thoughts at what to do at this point

I would think so, assuming it's a consumer lawyer.

but  I am going to end up being able to settle on my own for  a few thousand I am wondering if a lawyer is even worth it unless he is pretty convinced he can win the whole thing.

I don't think you need a lawyer to negotiate a settlement, so no, probably not worth the money. A good consumer lawyer will most likely be confidence they can win the case, and then they likely would be worth the money.

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Well it is obvious this isn't important enough to you unless you don't have to do anything. You wait what..a year? Ask for help. Procedure is spelled out, and while you ask for help 4days before trial, you are not willing to put in any effort.

This is beatable, but since you can't be bothered unless everything is done for you, I would just call them now and be done with it. Good luck.

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Shellieh,

You know the old saying "if you don't have something nice to say..." At the end of the day this is an advice forum and it is obviously up to each person what they want to do with it. You can obviously say what you want but it is not your place to chastise me or anyone else. As you probably know there is a lot of feelings of guilt, and shame,that come with finding yourself in this situation so do you think it is helpful for you to pile on because someone makes a choice, their own choice, to handle something differenly than what you recommend? Your response is that exact reason many debtors don't ask for help at all.

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No Kenpo1980, reading your posts, you asked for help, the people here offered it.  By by the way you post, it appears you do not have time to do any of the things suggested.  It doesn't appear to be because you have made a decision to settle, it just looks like ..."well I will do it if it is easy"

I don't want to make you feel guilty for anything.  Your a big boy, and you can make your own choices.  California is one of the easiest states in the Union to get a dismissal on technicalities.  Sometimes it's easy, you don't even need to learn the rules, sometimes the JDB will call you out, and you lose because you don't know the rules.  Just saying, the only thing you would need to do by Tuesday is serve the subpoena, and have a copy of objections for court Tuesday. No witness, no trial. If they have one, you can settle then.  I am just perplexed why that seems impossible given the short time.  We had one guy here who served the subpoena the day before court.  He got a dismissal.

 

If you want to settle, by all means do so. Like I said, good luck.

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Thanks for the response Shellieh98 , i appreciate it. It's just that, as you can imagine, having these financial issues is stressful enough and the last thing I wanted to do is get into a back on forth when I am coming to a forum like this asking for advice. 

 

Obviously, I did everything that was required to even get a trial date set but, like a  lot of people, I honestly thought I could perhaps come up with something to settle this before trial and that did not happen which is why I procrastinated, In terms of the subpoena service the issue, my understanding was that I had to have several attempts made prior to trial and even if that were possible it's not 100% that a judge would still not accept the testimony in Ventura County, which is where I am located. And that these JDB attorneys are starting to bring witnesses with them because they are getting challenged on this issue so much. 

 

At any rate it is moot point now because the JDB called me the morning about settling and offered a lsettlement number, which was about 30% of the debt, and coincidentally what the lawyer was going to charge to represent me. Since I don't have money to make a lump sum and they will not do any type of payment plan unless,  it's for the full amount, it looks like we are going to trial so all I can do is prepare for that.

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