kenpo1980

Trial Scheduled for Next Week - Should I settle first?

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Okay so I am pretty much done with my list of objections/trial brief and it occurred to me  that I have no idea what it cost to file this with the court and if I actually have to file it before trial. I checked on the court website and I did not see anything listed for filing of objections or a trial brief so I am wondering if it is free or if it falls under those $60 filing fees.

 

Also, in court what is the etiquette for giving a judge a trial brief. Do I just ask to approach or do I try to do just as the clerk? Tx!

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You have not waived your right to objection. Qbert won all 5 of his cases by dismissal I believe.

Check your local rules for filing the trial brief. There will most likely be no charge for the trial brief and objection to be filed.

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Excellent Anon. Thanks!

 

Also, I have to admit that after spending all of this time preparing I feel pretty positive about my chances and I have you and everyone else here to thank for that.

 

Really this case should be dismissed immediately because of the improper CCP 98 or the Sierra case.  And,  I guess that brings one last question. How do I handle discussions with the opposing counsel? Are they likely to try and offer a settlement before trial, obviously I would not consider anything over 50% since they already offered a 30% settlement, but, if they do, am I better off taking my chances with the trial to see if I can get everything tossed?

 

The judge who has my case does not seem to have much of a track record in collection cases, that I could find anyway. And I am just wondering how likely he would be to deny an objection firmly based on a recent decision by the court of appeals.

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Really this case should be dismissed immediately because of the improper CCP 98 or the Sierra case.

Don't count on it. Why is the ccp 98 improper? (an out of state witness is allowed to file a declaration under ccp 98 if they provide an address 150 miles from court where they can be subpoenaed ). Also, do you have a subpoena for this person?

And, I guess that brings one last question. How do I handle discussions with the opposing counsel? Are they likely to try and offer a settlement before trial, obviously I would not consider anything over 50% since they already offered a 30% settlement,

Yes, they are very likely to offer s a settlement, they will also try to get one before they dismiss a case, and they are likely to dismiss as well. I think a lot of it has to do with how well you handle the ccp 98 and subpoena part of the case. You are going to send them a message one way or another here, which will weigh heavy on their decision.

but, if they do, am I better off taking my chances with the trial to see if I can get everything tossed?

I would think so, but again, it depends a lot on how well you handle the ccp 98 stuff here, it is a critical area. Hearsay is not admissible at trial, ACCEPT by statute, and ccp 98 is the statute they are referring too.

The judge who has my case does not seem to have much of a track record in collection cases, that I could find anyway.

That may be good, or if not, it probably will make no difference, in my opinion.

And I am just wondering how likely he would be to deny an objection firmly based on a recent decision by the court of appeals.

It depends what case you are talking about and what you are objecting too. You need to know the rules of evidence as well, 1200, 1271. Elkins V Superior Court for affidavits being inadmissible. Target v Rocha and CACH v Rodgers for ccp 98.

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Thanks Anon. Actually there was a case that came out on 8/20 from the court of appeals, Sierra v Hale. It was virtually and identical situation to mine. In this case the Declarant showed up so the CCP 98 objection was moot.

In a nutshell the court said you can't use declarations from custodians with no personal knowledge of the records. So basically JDB can't just have their own custodian testify. This case is certified for publication which means it can be cited.

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Hey all,

 

I have a trial scheduled for next week with  CACH, in California,  and I am thinking that perhaps I should attempt to settle first so I am seeking some advice.  The firm representing the case is Neuheisel and I am kind of getting cold feet because they do seem to have a lot of proof of the debt and I am honestly not sure what defenses I will have available for me at trial.  So I guess i really have two separate questions. First, should I just go to trial and, if so, what should I present? Or should I just settle and what approach would be advisable.

 

My main concern here is that I do have a job and I definitely do not want to end up with some kind of judgment which leads to my wages getting garnished but, on the other hand, I am not in a financial position to make some lump sum payment to make this go away.

 

My ideal solution would be either to push this out longer, if I can, because I could probably pay a significant portion of this debt in a few months or perhaps work out a reasonable payment plan. The other thing I have thought about is bringing a lawyer in the mix but my guess is that this may end up costing more than the debt it's self, which is around $5500.

 

Sorry for the short notice but any advice would be appreciated.

 

Thanks!

So your stating that the Law firm is suing you is Neuheisel ???? from my knowledge is it From Sacramento CA location ??

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I haven't heard of that case but it sounds very good to take with you. Make copies of it for the judge and opposition. We do have good case law here and the amount is growing.

You have a good chance to beat this. A lot of people are actually better off by getting sued, it just takes a while to realize it.

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@Anon Amos  Sierra Managed Asset Plan vs David Hale. is a case that is fresh from ventura county. Ian D Chowdhury representing defendant during appeal.

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after digging just a bit further, I realized that just last year. @DaSurfer13 was defending in Ventura County against Sierra Managed Asset Plan LLC. judge O'Neil presiding.

 

he lost his case and was considering appealing. DaSurfer13 may have given us another weapon

 

http://www.creditinfocenter.com/community/topic/324584-my-trial-date-is-sept-29th-i-have-to-answer-a-ccp-96/page-5

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Hey all,

 

Well it was a good thing I checked my calendar, and spent all day Sunday preparing, because it turned out my trial was today and I won! So, first, let me thank everyone who helped me out here, with a special shout out to Anon, qbert and shellieh98.

 

So just to let everyone know how this whole things went down. I spent Sunday preparing all of my objections to the CCP 98  and i showed up at the court first thing this morning to file this with the court. I then preceded to the assigned department, checked in and sat down.

 

There were only a few cases in front of me and most of them were handled very quickly. It  was finally down to me and one other guy waiting for the JDB attorney who was in another department  on another case. When she finally showed it  was the same lawyer from my CMC and she was ready to proceed immediately.

 

The case for the other guy went up first and I felt so bad. He was not represented, had no understanding of the legal process and basically stated over and over again that he owed the money - I just wanted to yell "shut up and stop talking!" As in my case the JDB provided a Declaration pursuant to CCP 98, to which did not object, no matter how much the judge tried to help him, and the JDB won.

 

So I went up, and immediately the judge started referring to the objections I had filed on the CCP 98. He did not even address the subpoena issue and started hammering the JDB attorney on how this custodian could possibly testify to the validity of the records. He then started grilling her about the fact that the Declaration only referred to the original creditor but the Affidavit was from the second creditor and that there was no proof of chain of title. 

 

She then asked for a continuance, and I objected. The judge asked why she needed one and said this was the day for trial and she should have brought the witnesses. She then made the comment that she was not aware of these objection and that people usually file them first, which I knew the judge would hammer on. He came back and said again  that this was a  trial and that I could object to evidence as it is admitted. Finally, he said to prepare an order for dismissal and file it with the court. Pretty awesome!

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CONGRATULATIONS

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