h8spleadingpaper

Sued by Absolute Resolutions / Resurgence Legal

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Usually when a sale is made from the JDB to a numbered subsidiary or trust, it's because the JDB is splitting up a portfolio purchase and selling participation in any eventual recovery to other individuals and entities.

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It is to limit liability. Most of these corportations have multiple LLC companies they divide their big portifiolios up to. If they got hit with a big sanction, or some class action (like midland et all their LLC companies) it limits the amount they would have to pay out. Cheating if you ask me, they should sanction the parent company (like the MIDLAND case) and hit them all. But that is not the norm.

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So I recently received a CCP 96 Request from Plaintiff.  At this time, I have no evidence or witnesses I plan to present at trial.  I feel like someone had the correct wording to express that in my response (on pleading paper, of course) in another thread, but I can't seem to find it.  Can anyone point me in the right direction?

There is a good response to this from Calawyer on here somewhere. You just want to say that defendant plans on using any evidence or witness testimony of plaintiff for impeachment purposes only. Technically you don't have to respond, but if you, mention the above it sends a better message.

 

Also included was the CCP 98 Declaration and half-a-dozen exhibits.  According to LinkedIn, the Declarant is the President and COO of Absolute Resolutions in San Diego, though his job title was omitted from the Declaration.  He's not a competent witness anyway (since he's not a custodian of records for the alleged OC), but I feel pretty confident in saying that a President/COO is unlikely to show up at Trial in Los Angeles for a 3-4K case.  Am I wrong?  What I'm also wondering is if having him subpoena'd increases the likelihood of him actually showing up to trial (since a subpoena is something along the lines of a court order)?

No you aren't wrong. There's always a good chance no witness will show, and a much better chance when the witness is out of state. The fact he is the vice president won't hurt either. There's always the chance  a witness will show as well however. Only the witness you subpoenaed or properly listed on the ccp 96 can be called as a witness (unless you don't object).

 

Note - the CCP 98 Declaration is also a photocopy (probably robo-signed by someone lower on the food chain, I would guess).

That's pretty much how everything they have is.

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I think this is the response to the CCP96 you are looking for. im pretty sure I copied it from one of calawyers post but I didn't save the source.

 

"Defendant does not intend to call any witnesses or introduce any documents except for purposes of impeachment."

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I think this is the response to the CCP96 you are looking for. im pretty sure I copied it from one of calawyers post but I didn't save the source.

 

"Defendant does not intend to call any witnesses or introduce any documents except for purposes of impeachment."

Thanks, sadinca!  

 

I actually found a screenshot I had taken of one of calawyer's posts on another thread, in which he suggested, "Defendant reserves the right to call witnesses for impeachment purposes."  I also had a redacted exemplar saved which essentially says the same thing (i.e. - "Defendant has No Witnesses at this time.  However Defendant reserves the right to call witnesses and use evidence for impeachment purposes.”).  I’m thinking I like your suggestion better, since it leaves the opposition wondering what I may have that they’re not aware of.  Does anyone know if "Defendant does not intend to call any witnesses or introduce any documents except for purposes of impeachment” fully satisfies my legal obligation in responding to a CCP 96?

 

Out of curiosity, how is it that I’m allowed to reserve witnesses and evidence for impeachment, since all evidence and witnesses are supposed to be disclosed in the CCP 96 Response?  Put another way, why is it okay to introduce things not previously known at trial for purposes of impeachment?  Thanks!

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There is a good response to this from Calawyer on here somewhere. You just want to say that defendant plans on using any evidence or witness testimony of plaintiff for impeachment purposes only. Technically you don't have to respond, but if you, mention the above it sends a better message.

 

That’s interesting.  You mention using “any evidence or witness testimony of plaintiff.”  Is there a hidden strategy in mentioning the plaintiff’s evidence or witness testimony specifically?  Or am I just reading too much into it?

 

Also, if anyone has a good process server they can recommend in the Greater San Diego area, I’d love to hear about it.  I have an old screen grab of one of calawyer’s posts on another thread recommending VLDCA’s process server, but I can’t find the thread it’s from.  Thanks, friends.

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That’s interesting.  You mention using “any evidence or witness testimony of plaintiff.”  Is there a hidden strategy in mentioning the plaintiff’s evidence or witness testimony specifically?  Or am I just reading too much into it?

Keep in mind that  I am assuming you have no witness or evidence of your own to submit, and are only defending against anything the produce. If you are only going to object and attack their evidence and witness testimony (impeachment), then you don't need to list it on a ccp 96, since you are only using It for impeachment purpose (it says this on the DISC 015 form and CCP 96). You don't even have to respond to this, but when you do, and you tell them you are only going to use whatever they produce for impeachment purposes only, it lets them know you will be fighting the case, and it sends them the proper message. 

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Thanks, sadinca!  

 

I actually found a screenshot I had taken of one of calawyer's posts on another thread, in which he suggested, "Defendant reserves the right to call witnesses for impeachment purposes."  I also had a redacted exemplar saved which essentially says the same thing (i.e. - "Defendant has No Witnesses at this time.  However Defendant reserves the right to call witnesses and use evidence for impeachment purposes.”).  I’m thinking I like your suggestion better, since it leaves the opposition wondering what I may have that they’re not aware of.  Does anyone know if "Defendant does not intend to call any witnesses or introduce any documents except for purposes of impeachment” fully satisfies my legal obligation in responding to a CCP 96?

You actually have no legal obligation to respond to this at all. I think it's better if you do, and what you have found here from Calawyer is very good and is the one I was suggesting you find earlier. The one from Sadinca is also good. They are al saying the same thing basically.

 

Out of curiosity, how is it that I’m allowed to reserve witnesses and evidence for impeachment, since all evidence and witnesses are supposed to be disclosed in the CCP 96 Response?

All evidence and witnesses that will be used for purposes other than impeachment have to be listed on a CCP 96 list. By law if it's for impeachment only it doesn't have to be listed. You do not have to respond to their request.  A lot of this is just because you are defending against them. They have to produce something for you to defend against and they have the burden of proof. So this is more of things they have to do. When you respond to it it is often annoying for them. This is just an example of some very good law we have here in Cali and an advantage to the defense. It's also a good reason not to use arbitration, in my opinion, 

 Put another way, why is it okay to introduce things not previously known at trial for purposes of impeachment?  Thanks!

Because you are using it to show something isn't true (or impeachment). Also, a lot of evidence (or documents) are hearsay when they are being introduced to show the truth in something (and that's why they are inadmissible as hearsay without a proper witness laying a foundation for them) .

You are not using it to show the matter asserted is true, but rather the opposite, and that it's not true (and has no foundation). Impeachment purposes only. And it need not be mentioned.

Confusing, and I'm sure there are others better at explaining it, but I do believe you have this under control.

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Sounds like you have your ducks in line.

 

Consider using the Sheriff's Department for your process service.  (If you are on Food Stamps or in a low income status, the Sheriff's Department will do your process service for free. Otherwise, I believe it is $35 an attempt. I also like the message it sends to opposition to have an officer of the law show up on their doorstep and to sign off on the attempted service, service, or failure of service.)

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if I remember correctly during my wife's case, during our research we found out that the San Diego Sheriffs department no longer serves civil subpoenas. I don't know if that's still the case.

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Thanks, HomelessInCalifornia and sadinca.  Unfortunately, I've had the same experience as sadinca mentions above.  I like the idea of sending the sheriff to a JDBs doorstep, but they just don't seem to be interested in helping citizens in this way these days (no money in it for them).  

 

Just contacted Valpro Attorney Services to get an estimate for serving the subpoena, on the recommendation of another member here.  I used another process server last time, but I had to constantly chase them to make sure they were doing their job and to get the Affidavit of Due Diligence.  So I'm hoping to find someone more reputable this time and try to avoid a little stress.  It's going to be touch and go because my 20 day mark fall right before the Christmas holiday.    :roll:

 

On a related note, I plan to send the subpoena next week, starting 20 days before my trial.  Does anyone know if I can go down to the courthouse a few days beforehand and have them issue the subpoena in advance?  I'd like to get it to the process server a couple of days early, then instruct them to start attempting delivery exactly on day 20.

 

Thanks!

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Maybe @RyanEX can recommend one. I think he is from down there.

Thanks, sadinca.  According to his post on one of my other threads, the process server RyanEX used before is no longer in business.  Valpro has yet to get back to me with a quote (never a good sign).  Anyone else know of a reliable process server in the San Diego area?  Seems like they're hard to come by.  Thanks.

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You actually have no legal obligation to respond to this at all. I think it's better if you do, and what you have found here from Calawyer is very good and is the one I was suggesting you find earlier. The one from Sadinca is also good. They are al saying the same thing basically.

 

Thanks for the advice, Anon!  I'll be sending my reply along with a POS within the next few days, using calawyer's wording.  It sounds like my response isn't so critical, but I assume that I should still send it CMRRR anyway?

 

When you respond to it it is often annoying for them. 

 

May I ask how so?  Is it only because it's one more document they have to read, or because the wording mentioned above sends them the message that I intend to try to impeach the witness?

 

Confusing, and I'm sure there are others better at explaining it, but I do believe you have this under control.

 

Thanks!  If I do have it under control, it's only through the kind help of you and others on CIC!   :-)

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It's irritating getting a response back from a defendant that didn't even have to reply because not only was all the work they put into wasn't intimidating to you, but that you are willing to go all the way to trial, and not trying to settle.

It's sends more message than irritate, but it's nothing for them to celebrate. The lawyer told me "you didn't have to bother sending that if you read the code". I got the opinion he wasn't happy about it.

You can save money and use standard mail because you don't care if they say they never got this document from you.

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You can save money and use standard mail because you don't care if they say they never got this document from you.

Thanks a bunch, Anon!  Sending it out today, with no CMRRR, but including a POS, signed by a neighbor.

 

EDIT - Still looking for a process server in San Diego, if anyone has ideas.  Valpro just got back to me (they claimed they never got my request for a quote) and advised that standard service (attempted within 48-72 hours) would be $100, while rush service (attempted within 24 hours) would be $150.  These are the highest estimates I’ve ever seen for a process server and a 48-72 hour window right around the holidays sounds very detrimental to my efforts in this case.  I’ll try to keep shopping around, but if anyone else has a name, it would be much appreciated, since I need to decide by the beginning of next week.

 

Also, still wondering if it’s okay for me to get the subpoena from the court a few days before the 20 day mark, so long as I don’t have the process server make the first attempt until day 20.  Thanks.

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I don't think it will matter if you get the subpoena several days before you send it. The important thing is that it's stamped by the court.

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So I’m going to try to get a court reporter on this one.  I’m about 3 weeks out from trial, so there should be time (I would hope).  Just throwing a few general questions out there, in case anyone has any experience with this process:

 

1.  Is there a good way to find a Pro Tempore court reporter?  I thought that last time I found a link on the court’s website that provided some names, but I can’t seem to locate it now.

 

2.  About how much should I expect to pay?  I think I’ve heard estimates of $200 elsewhere on the site (?)

 

3.  Anyone know how far in advance a court reporter generally needs to be booked?

 

4.  Do I need to notify the court in advance if I intend to use one?

 

5.  If I book a court reporter in advance and then the Plaintiff dismisses a few days ahead of time, can I cancel their services?  I don’t want to screw anyone over, but I’d hate to shell out that much money for someone that doesn’t end up having to do anything.

 

5.  CCP 1033.5  seems to indicate that Pro Tempore court reporter costs are recoverable via MC-010.  Am I correct?

 

Thanks as always, everyone!

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Also, on a side note (and my above question is actually more important to me), I just happened to notice this language on form SUBP-001 (CA Subpoena form):

 

"DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY."

 

Does this only apply if personal service on the Declarant is successful (as opposed to leaving it with whoever will accept it after 3 tries)?  Does it “go away” if the case is dismissed right before Trial?  Who initiates the punishment?  The Court?  The Defendant in the case?  Just curious.  Thanks!

 

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So I’m going to try to get a court reporter on this one.  I’m about 3 weeks out from trial, so there should be time (I would hope).  Just throwing a few general questions out there, in case anyone has any experience with this process:

 

1.  Is there a good way to find a Pro Tempore court reporter?  I thought that last time I found a link on the court’s website that provided some names, but I can’t seem to locate it now.

I would just  do a Google search. It might be safer than the court's reporter list anyway (but I don't know).

 

2.  About how much should I expect to pay?  I think I’ve heard estimates of $200 elsewhere on the site (?)

I have heard $150 - $200. Money well spent. It can end up costing you a lot more without the reporter.

 

3.  Anyone know how far in advance a court reporter generally needs to be booked?

I would think ASAP, they get busy.

 

4.  Do I need to notify the court in advance if I intend to use one?

Not sure. The court reporters will know theses answers better, and they probably handle a lot of this. Most people never get a court reporter, but I would want to have one. They are free with a jury trial however, but again, most people don't go that route either. 

 

5.  If I book a court reporter in advance and then the Plaintiff dismisses a few days ahead of time, can I cancel their services?  I don’t want to screw anyone over, but I’d hate to shell out that much money for someone that doesn’t end up having to do anything.

Understandable, and nice of you to not want to short change them with a last minute cancelation. I think there is some leeway in which you can cancel. Find a reporter on google ASAP and ask them these questions for better results.

 

5.  CCP 1033.5  seems to indicate that Pro Tempore court reporter costs are recoverable via MC-010.  Am I correct?

I believe so

 

Thanks as always, everyone!

Not a problem.

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Also, on a side note (and my above question is actually more important to me), I just happened to notice this language on form SUBP-001 (CA Subpoena form):

 

"DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY."

 

Does this only apply if personal service on the Declarant is successful (as opposed to leaving it with whoever will accept it after 3 tries)?  Does it “go away” if the case is dismissed right before Trial?  Who initiates the punishment?  The Court?  The Defendant in the case?  Just curious.  Thanks!

 

If they don't show, then I assume it would just go away (as you probably wouldn't make an issue over it at this point) because your case would be getting dismissed.

 

It would most likely require personal service as that is the law on subpoena's (ccp 1987), and they would argue they didn't get it, or personal service is required. However you could argue that the witness swore under oath and penalty of perjury she would be at the address and wasn't, and should be sanctioned for that as well.

 

Disobedience of the subpoena and lying about where they were the last 20 days prior to court are a big deal (but only if you make it an issue). They usually just dismiss if the witness will not be there, and so no one really makes an issue of it. It is something they get away thousands of times a year.

 

I made it a huge issue in my case, and used it against them. I called the lawyers office every day of the 20 prior to trial, and asked to speak to the lawyer each time to see if the witness was there as he had stated he would be.

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Also, on a side note (and my above question is actually more important to me), I just happened to notice this language on form SUBP-001 (CA Subpoena form):

 

"DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY."

 

Does this only apply if personal service on the Declarant is successful (as opposed to leaving it with whoever will accept it after 3 tries)?  Does it “go away” if the case is dismissed right before Trial?  Who initiates the punishment?  The Court?  The Defendant in the case?  Just curious.  Thanks!

 

Penalties apply when a person is personally served with a subpoena and fails to appear as required. THe problem we have in these cases is that personal service on the witness is rarely accomplished. That is the fault of the plaintiff for falsely stating that service can be accomplished at a bogus address but the result is the same: no subpoena has been placed in the hand of the witness.

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If they don't show, then I assume it would just go away (as you probably wouldn't make an issue over it at this point) because your case would be getting dismissed.

 

Thanks, Anon.  Out of curiosity, why would they dismiss if the witness doesn’t show?  In my case, the witness is also the CCP 98 declarant (president of the JDB firm).  According to their CCP 96 response, they intend to either use the CCP 98 or his live testimony.  Personal service of the subpoena on him has been successful, by the way.

 

Still having trouble finding a court reporter, if anyone knows of someone in my area or another way to look.  I did Google and Yelp searches and emailed a bunch of companies, but the only reply I’ve gotten back has to express that they’re unavailable.  I’m kind of wondering if maybe there is a certain kind of court reporter service that I’m supposed to be looking for?  It seems like most of the websites I’ve visited mention things like providing meeting space and transcripts for depositions, but not for sending a reporter to a trial.  Thanks, everyone!  :-)

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Thanks, Anon.  Out of curiosity, why would they dismiss if the witness doesn’t show?  In my case, the witness is also the CCP 98 declarant (president of the JDB firm).  According to their CCP 96 response, they intend to either use the CCP 98 or his live testimony.  Personal service of the subpoena on him has been successful, by the way.

  :-)

 

If the witness has been served with a subpoena, he has to show up.  It is an order of the Court. 

 

If the witness is served and does not show up, they almost always dismiss to avoid being in contempt of court for disobeying the subpoena and because they have no evidence to put on at trial.  If the witness is served and does not show up,  the Court should not permit them to use the CCP 98 declaration and they do not have a live witness.  All they have is you.  Even if you were to admit to incurring the debt to the OC and even admit to the amount, you know absolutely nothing about any assignment.  So they have no evidence that Plaintiff owns the debt in question.

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