kenpo1980

Trial Scheduled for Next Week - Should I settle first?

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noting to lose.  Just have him serve it and leave it with anyone that will accept service.  If they don't bring a witness, you have a good shot then.  :please:

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Yeah, if you only have an opportunity for 1 attempt, then do one. The code says the declarant needs to be available for the "20 days prior to trial", not for multiple attempts. If the one attempt fails, then write your objection on that.

 

 

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...

 

Here's the thing about their offer - if someone was confident about their case, and that case having already been ongoing for 1 year (or more), would they be offering a 30% deal on it on the eve of trial?? After all that time and whatever expenses they've taken on, would they be giving away 70% of it to avoid trial - if they were confident? Why would someone do that? That tells you something, kenpo. They know they have a case propped up by hearsay documents and an unqualified "witness". You've rattled their cage simply by staying in the game this long.

 

It's one thing for you to have doubts because this is not your arena nor the way you make a living - but for seasoned attorneys to behave this way tells you what kind of confidence they have in their case under the possibility of the "evidence" being held under scrutiny by a judge. Do everything you possibly can between now and trial and call their bluff.

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Thanks RyanEx and I actually thought that myself. Since we are so close to trial you would think they would only offer to settle for a a little bit less than the full amount or just go to trial. The attorney I spoke with, who was awesome by the way, was willing to take the case on short notice and just walk into the trial  and win based on what I told him.

 

I think I am pretty clear on what I need to do moving forward but as I look at this  I do have a couple of other things I am wondering about how to deal with at the trial.

 

First, I have an "Affidavit of Assignment" from the "second OC", I will get to that, and it is probably pretty typical. It is from a "Representative of Capital One" and it just says that the account was "subsequently sold, assigned and transferred to CACH". It has my name and the final balance on the account. There is no additional record to document the sale to CACH and there is no indication of who this person is that signed off on this. My assumption here is that I could make objections to this at trial based on Foundation but I am wondering if this is true.

 

Secondly, and I didn't even think about this, but the original account was sold to Capital One from HSBC and half of the statements are when it was with HSBC so I am wondering if there is another objection in here anywhere? Would they have needed an Affidavit from HSBC as well.

 

Finally, and the major point here, there is no one from either of the original creditors testifying to the validity of the actual statements attached. The only person doing that is a CACH employee. Perhaps I am reaching here, and obviously an unfriendly judge could make all of  this moot, but it seems like it might be relevant. TX

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Your thinking here is correct. Yes, there should be a clear chain of title between all alleged onwers of the debt, so HSBC > Cap1 > CACH.; documents that clearly show your account being sold to each entity and there should be a witness from each seller to authenticate those documents.

 

Bills of Sale that refer to a "sale of accounts" without naming yours specifically don't cut it (so long as you object)...and a follow up affidavit claiming yours was included in "xxxx" sale doesn't either, nor do affidavits that don't comply with CCP 2015.5. But even if they had the right documents that complied with the right codes, you can't have a trial by affidavit/declarations (Elkins v. Superior Court) - someone needs to authenticate them and that someone needs to be qualified to do so: an employee from the original creditor(s) that can attest to the record keeping practices of the OCs (HSBC and Cap1). A CACH employee is not a qualified witness for that purpose (again, so long as you object).

 

What CACH will be (wrongly) trying to argue is that since they bought the acct, and hence the records, that they get to step into the shoes of HSBC and CAP1 and that their employee can authenticate what they now claim to be "their records"; further they are trying to get this testimony in via the CCP 98 declaration instead of via live testimony because they don't want the expense of witnesses and they don't want you asking them questions, either.

 

So your objections are layered. You have an objection to the CCP 98 should the subpoena fail. After that you still have objections to trial by affidavit. After that to a CACH employee trying to authenticate records from an OC. After that you have (likely) affidavits that don't comply with 2015.5. You don't have to win all of these to get CACH's documents precluded, just one - but you don't know how your judge is going to rule on any of the particular objections, so you have to cover your bases by setting up all of them (including the subpoena) and objecting to all of them as they come. 1) - that gives you the most ammo should your judge be a bad judge and you need to appeal. 2) - that covers you in case you have a judge that might rule for you on one objection (ex: the subpoena) but not the others. Prep for them all and cover your bases.

 

In the slight chance you successfully serve a declarant, or CACH brings them anyway, prepare to cross examine them.

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If a witness does not show, you have target vs rocha, ( there are 2 more just like target vs rocha) that says a witness must be served personally. So if they try to get a continuance, object. If they try to get the ccp98 admitted, object. If they do bring a witness, print off this list of questions to impeach the witness.http://www.creditinfocenter.com/community/topic/252142-sample-motions-forms-affirmative-defenses/page-8#entry1245047

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So, just to be clear, the affidavit of sale mentions me by name and list an account number that is partially redacted, which I don't understand.

In terms of presenting the objections am I wrong in thinking I can just file them with the court before trial and then give copies to the judge and the JDB attorney that day?

Also, and I know I asked this before, but if the JDB starts asking questions about whether the debt is mine or questions about it being my address on the statements how do I respond. Obviously the issue is not whether they have my address correct but the validity of the documents they are presenting for evidence.

Finally one last thing I discovered by going through these threads is that the Declaration CACH submitted is from some guy who evidently works for a sister company of CACH in Denver and has the title "Officer of Affidavits". Not sure if I even need to bring this up, or how I would prove this on my end other than LinkedIn, but thought I would mention it..

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the affidavit of sale is inadmissible.  It was made for litigation from plaintiffs own records.  The records the affidavit referenced are inadmissible hearsay. And (did they attach the very records they referenced?) the records referenced were not attached.  (or completely attached.  Cite the Elkins case)

If the JDB asks questions, you can answer yes this is your address, anything about the account "I do not recall"  "I never had an account with cach, I do not recall this account with xxxx.

the guy that did the declaration is the only witness that should be allowed to testify.  If they did not send you a witness list with anyone else s name on it, object to them as a witness.  They did not give you time to prepare for trial, bringing in a surprise witness prejudices you. Object.

lots to remember, but it comes together fairly quickly.  Just find your objections, and print them out,  you can take them in with you for reference.

Oh and yes you can file it before court, bring copies in for the judge, plaintiff and yourself into court. :)

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First, I have an "Affidavit of Assignment" from the "second OC",

OBJECTION: HEARSAY CA Evidence Code 1200, Elkins v Superior Court. Doesn't meet the business records exception of CA Evidence Code 1271

 

Secondly, and I didn't even think about this, but the original account was sold to Capital One from HSBC and half of the statements are when it was with HSBC so I am wondering if there is another objection in here anywhere? Would they have needed an Affidavit from HSBC as well.

It's a live witness they need to lay a foundation as affidavits are inadmissible at trial (if objected to). You also object to STANDING, they must prove they have legal standing to sue. They should have a complete bill of sale for each time it was sold, you pressure them for a proper witness from each to lay a foundation for any records.

 

When cc statements are introduced as evidence by the lawyer;  you object under the grounds FOUNDATION as the lawyer cannot testify or lay a foundation for these records, it must come from a witness from OC (read CA evidence code 1271).

 

Finally, and the major point here, there is no one from either of the original creditors testifying to the validity of the actual statements attached. The only person doing that is a CACH employee. Perhaps I am reaching here, and obviously an unfriendly judge could make all of  this moot, but it seems like it might be relevant. TX

OBJECTION: FOUNDATION  This ^^^^^ is a perfect example for it.

You are not reaching, it is relevant, and yes a bad judge can rule as he or she sees fit (that's why we have court reporters and appellate courts).

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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.

I would get this offer in writing anyway.  Maybe you can borrow the money in case the trial doesn't go as planned.  Just thinking you could use this as a backup just in case.  Even if you don't have the money right now, they probably would give you a little time to come up with the money and you could maybe borrow it?  Just a thought.

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@Terri123

No that's not how it works. They want a lump sum all at once for an offer that low. It would not be good even if he did get it writing, then went to trial because they would dismiss once he paid, or at trial just say we have settled. But they won't do payments for a 30% offer anyway, it would have to be closer to 80%, then if he failed to pay, they could get a judgement for the full amount.

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Hey guys,

 

Just spending my Sunday preparing my objections for trial and I was wondering I needed to object to each specific paragraph to which there is a valid objection or should I just do all of my objections to the document as a whole?  

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Document as a whole, then break it down when they ask on what objections- xxx is based on xxxx,  xxx is based on xxxxx     xxx is based on xxxx.

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You are objecting to the entire document as hearsay. If they bring a witness in to testify to everything said in the document, then you object to each piece of evidence and testimony that comes out. Starting by objecting to the witness as improper as they can't lay a foundation or authenticate OC records.

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It will be a lot easier to object to the ccp98 declaration if you have subpoenaed the witness, and that will also send the right message to plaintiff.

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the only thing i can say about the 30% offer is it give the impression they are not all that confident in the case.

 

that plus the fact that you are makign an effort at fighting back (presumably unbeknownst to them) should give you a little wave of confidence to work with

 

11th hour is tough, but as many many people have said here, they are beatable (i beat 'em all)

 

focus on nothing but the case for next 2 days, take a day off work if you can. its alla bout the next 48 hrs and being as prepare as you can be when you walk into that courtroom

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Yes, their offer of 30% to settle  this close to trial seems a little low. If there were confident they would win I woud have assumed they would have perhaps come back at like 80% or something.

 

I am really just writing a statement of my objections, which I guess is kind of like a trial brief. I do have quite few examples from California of objection only pleadings but if you have any samples you want to share let me know .

 

Also, and I know  it's not this easy, but just on the Sierra v Hale case alone the judge should completely keep out the declaration. I am actually going to bring copies of that case since it is not yet available anywhere but on-line.Tx!

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Thanks those are excellent document!! So, and I know I have asked this before, but are there any objections I can't raise, or present on the day of trial?

 

In other words, even though it would have possibly saved me this whole headache of even going to trial in the first place had I done these objections before they are not "waived" at this point, correct? In other words, the only way I would waive these if I did not present these at trial.

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