h8spleadingpaper

Sued by Absolute Resolutions / Resurgence Legal

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Thanks as always, calawyer!  That’s great info to have.

 

​This is a total aside, but I just saw this old post of ASTMedic’s on sweatinginca’s thread:

 

"As for the various BOS they have to conform to both CCP 98 and CCP 2015.5. If they don't then you can object based on those grounds too."

 

The Bills of Sale obviously aren’t my biggest concern right now and I'll have other arguments against them anyway.  But I’d never heard of any such requirements for the bills of sale.  It seems a bit bizarre, no?  

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"As for the various BOS they have to conform to both CCP 98 and CCP 2015.5. If they don't then you can object based on those grounds too."

 

 

These codes have nothing to do with a BOS.

 

 

Look in the yellow pages for a court reporter. I have heard of people finding them when searching for legal secretary (maybe legal services).

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Still no luck with finding a court reporter.  Several people have said they were unavailable, while most haven’t bothered replying.  One sweet lady that I contacted doesn’t do court work but has reached out to several others who do on my account, none of whom replied.  I think she’s more annoyed than I am about it.

 

Anyway, I’m currently working on my Trial Brief and am wondering if anyone has a defense for the “Indebtedness” Cause of Action.  Also, I used to have a great site for looking up caselaw by party name, but can’t seem to find it anymore.  Same for looking up causes of action; I think I used CACI for this last time, but the jury instructions have no entry for “Indebtedness” as a cause of action.  Can anyone provide links or point me in the right direction again?  I’m coming into a bit of a time crunch, so I really appreciate any help at all.  Thanks!

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 wondering if anyone has a defense for the “Indebtedness” Cause of Action.  

Not sure "indebtedness" is even a recognized cause of action (you could look it up in the CACI jury instructions to find out). In any event, it's not so much as a defense to it, rather then putting them to the evidence and forcing them to prove it. Concentrate on all the evidence and have your objections for all. On top of no proper witness to lay a foundation for any of it. (or possibly no witness at all).

 

The fact that they haven't proven their claim, and the evidence should be inadmissible Is your "defense". They have the burden of proof, and haven't met it, so it should be a ruling for the defendant.

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Happy New Year, everyone.

I had a quick question regarding the CCP 98 Declaration.  It was listed on Plaintiff’s CCP 96 Response, but I’ve since had the declarant personally served with a subpoena.  This should render the declaration obsolete, but I’d like to send a message to that effect to the Plaintiff, while also letting the court know that it shouldn’t be admitted (I can imagine Plaintiff showing up without a witness and trying to get it admitted as evidence anyway).  Normally, I’d send a written Objection based on deficiencies in the CCP 98 declaration, but again, it doesn’t really seem appropriate, given that the declarant has since been personally served.

I’ve already sent the Plaintiff objections to (2) affidavits named in the CCP 96 response and have objections to the remaining evidence almost ready to go (minus the CCP 98).  I’m wondering if it would be appropriate to also submit an objection to the CCP 98 declaration (something to the effect that Defendant objects to its admission at Trial, due to the fact that the declarant has been personally served).

Thanks for any opinions on this.

 

 

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I would object to it just like you would if they had not been served.  Your objecting to that affiant, if he doesn't show, your objection is secure.  If he does show, he needs to testify in person to everything he stated in the affidavidt.  Just have your questions ready to impeach him.

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Thanks, @shellieh98.  So you’re saying you think I should send a written Objection to the CCP 98 Declaration even though the declarant was successfully served?  I’ve done written Objections to all of the evidence so far, but didn’t think it was necessary for the Declaration, since the witness has been subpoena’d (?)  I’m pretty sure that calawyer’s post on 12/28 is saying that I shouldn’t have to.  Maybe I misunderstood?

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Hey, all.

I’ve been completely unsuccessful in finding a court reporter for my upcoming trial (99% of the places I contacted didn’t even reply and the others were busy).  So I’m thinking that the next best thing would be a Statement of Decision and someone here on the site has kindly sent me an exemplar to use.   While I’ll never know for sure who my judge will be, I do know who it’s supposed to be, based on which judges usually take even and odd days at my courthouse.  I’ve watched this person try cases before and he/she seems very fair to defendants, IMO.  So my question is, do requests for statements of decision piss judges off when you submit them?  It sounds like they make extra work on the judge, so I don’t want to upset mine, but I do like the idea of at least having a judge state why they rule as they do.  Just trying to figure out if it might work against me to ask for one.  Also, does anyone know when they have to be submitted by?  Thanks.

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Can you bump this tomorrow? I think I can find you a reporter.  Under the circumstances, a reporter would be better.  You understand your evidence and I have confidence that you will object on the correct basis at the right time.  a reporter will prove that. 

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Hey, all.

Sorry to beat this dead horse again, but it looks like I’ll probably be going it without a court reporter.  Most of them I contacted didn’t get back to me.  One that did wanted $995/day or $550/half day, plus minimum of $120 for transcription, which I can’t afford.  Another quoted me $750/day or $375/half day, but told me they’ll have to call me back on Monday to see if anything opens up (they want to reserve their people for trials that last more than one day).  So I just don’t think that the court reporter thing is going to happen.  Does anyone know if asking for a Statement of Decision is likely to p@ss off the judge?  The one I think I’m going to have seems pretty fair-minded toward defendants, so if asking for a Statement of Decision is seen as some kind of insult, I wouldn’t want to tick him/her off.  If it is appropriate to ask for one, when would the time be right to submit it?  Right at the beginning of Trial?  Before Trial?  

Finally, someone else on the boards was nice enough to send me the attached exemplar.  I’d of course have to change to word “Plaintiff” to “Defendant” and vice-versa anywhere they appear in the document (it seems like it was written by my old nemesis H&H).  Thanks for any insights you may be able to provide.  

 

 

Statement of Decision.jpg

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I would file the request for statement of decision even if I thought the judge wouldn't like it. The judge isn't going to have a problem with it, and it sends a good message. You can probably file it any time before trial and send plaintiff a  copy with POS.

Edit: It does mention he timing on this in ccp 632, but it is a bit confusing.

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2 hours ago, Anon Amos said:

I would file the request for statement of decision even if I thought the judge wouldn't like it. The judge isn't going to have a problem with it, and it sends a good message. You can probably file it any time before trial and send plaintiff a  copy with POS.

Thanks, @Anon Amos.  So I’m guessing that it needs to be filed in advance of Trial?  I can get it to the court on Monday (planning to go there anyway, in order to look at Plaintiff’s brief), but it will be physically impossible to get it to Plaintiff before Trial.  Does this pose a problem?

Edit: It does mention he timing on this in ccp 632, but it is a bit confusing.

I see what you mean.  My reading of CCP 632 is that if the Trial finishes in a day or less, the request must be submitted in advance (no mention of how far in advance).  But then it goes on to say that if it finishes in a day or less, the request can be made orally, on record, in the presence of both parties.  Totally contradictory, so I’ll plan on making the request in writing, in advance. So if the Statement of Decision request is filed in advance, should I somehow call the judge’s attention to it at the beginning of Trial?   Also, does a Declaration in Support of the Statement of Decision request need to be filed with it?  

PS - It looks like this is indeed going all the way to Trial, as my Case Summary was updated this morning to indicate that the Plaintiff filed their Trial Brief with the Court, the day after they received mine. :-(   I’m going to have a bunch of questions over the next few days, so I really hope folks here might be able to help out.  Hope it’s okay that I reference a few people here, in hopes that they might receive notice of my current situation.  Thanks.  @Anon Amos   @RyanEX  @sadinca

 

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4 minutes ago, CommoSGT said:

@h8spleadingpaper   Do you have a fax number for the plaintiff?

@CommoSGTYes.  Are you recommending that I fax a copy of the request for a Statement of Decision to the Plaintiff?  Would that be something that’s required (don’t see anything about it in CCP 632), or merely a strategic move?

Also, I just re-read the Case Summary and I think that the entry about the Plaintiff filing it’s Trial Brief may be a mistake.  Last week, I filed written Objections to the Affidavits and my Trial Brief with the Court, all on the same day.  There are entries on the Case Summary for my Objections, but not for my Trial Brief.  Instead, there is one for the Plaintiff’s Trial Brief, again on the same day.  So I think that the clerks at my court may have bungled things yet again, by listing my Trial Brief as the Plaintiff’s.  Uggh.

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3 hours ago, h8spleadingpaper said:

I would file the request for statement of decision even if I thought the judge wouldn't like it. The judge isn't going to have a problem with it, and it sends a good message. You can probably file it any time before trial and send plaintiff a  copy with POS.

Thanks, @Anon Amos.  So I’m guessing that it needs to be filed in advance of Trial?  I can get it to the court on Monday (planning to go there anyway, in order to look at Plaintiff’s brief), but it will be physically impossible to get it to Plaintiff before Trial.  Does this pose a problem?

Edit: It does mention he timing on this in ccp 632, but it is a bit confusing.

I see what you mean.  My reading of CCP 632 is that if the Trial finishes in a day or less, the request must be submitted in advance (no mention of how far in advance).  But then it goes on to say that if it finishes in a day or less, the request can be made orally, on record, in the presence of both parties.  Totally contradictory, so I’ll plan on making the request in writing, in advance. So if the Statement of Decision request is filed in advance, should I somehow call the judge’s attention to it at the beginning of Trial?   Also, does a Declaration in Support of the Statement of Decision request need to be filed with it?  

PS - It looks like this is indeed going all the way to Trial, as my Case Summary was updated this morning to indicate that the Plaintiff filed their Trial Brief with the Court, the day after they received mine. :-(   I’m going to have a bunch of questions over the next few days, so I really hope folks here might be able to help out.  Hope it’s okay that I reference a few people here, in hopes that they might receive notice of my current situation.  Thanks.  @Anon Amos   @RyanEX  @sadinca

BUMP

(I have several other questions, but don’t want this one to get lost in the shuffle - thanks!)

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Okay, I’m sure folks are probably busy enjoying their well-deserved weekends.  So I’ll just throw a few more questions out and see if anyone chimes in:

1.  One of the pieces of evidence I filed an Objection to was an alleged Affidavit of Assignment from an Angela Tucker (a supposed “representative” of Capital One).  I objected on the grounds that affidavits are inadmissible at Trial (Elkins vs. Superior Court), along with the fact that her job title is not stated as Custodian of Records (or other type of qualified witness).  My Trial Brief and Objections have already been filed, but I stumbled across this and wondered if it’s worth mentioning at Trial?

http://www.slodebtdefense.com/uploads/2/5/8/1/25816994/shohdy_-_conformed_complaint.pdf

This is a Class Action Complaint against an unrelated JDB that used a CCP 98 Declaration, also allegedly signed by Angela Tucker, and using a “c/o: ABC Legal” address.  When personal service of the subpoena failed, the defendant turned plaintiff and sued for an FDCPA violation.  So my thought here is that  Angela Tucker may be a totally fictitious entity.  Just wondering if there’s any way to get any mileage out of this at Trial?

2.  I read a post by Anthony81 on @John4600’s thread that indicates his judge allowed both the CCP 98 Declaration  AND testimony by the live witness.   Calawyer was kind enough to let me know that this should not be acceptable.  Any idea how do I argue against this if it happens to me too?

3.  Plaintiff alleges that the purported OC on this account charged it off in May, 2011, yet they supplied an alleged "past-due" cc billing statement dated August - November 2012 (a four month super bill??).  It’s too late to put it in my Trial Brief, but it seems like there ought to be a way to use this at Trial.  After all, how could the OC have charged off the alleged account in May as Plaintiff and the affiants claim in their declaration and affidavits, if the OC was still sending billing statements in November?  Note - the alleged Bills of Sale contain dates after this timeframe, if it matters.

3.  My main argument at Trial will be that Plaintiff cannot demonstrate a proper Chain of Title on the alleged account because the Bills of Sale do not mention my name or the alleged account number at all (though they disingenuously attached printout pages with my personal info on them in order to try to fool the judge and I into thinking they’re part of the Bills of Sale, which they are not).  Further, the Bill of Sale which purports to transfer ownership from Capital One to Absolute Resolutions Corp. has not been authenticated by anyone at Capital One (Evidence Code 1400), is hearsay (Evidence Code 1200) and does not qualify as business records of Capital One (Evidence Code 1271) because it has not been testified to by a Custodian of Records or other qualified witness (the only thing close is the aforementioned Affidavit of Assignment by Angela Tucker, which I’ll be objecting to on the grounds that it’s not admissible (Elkins vs. Superior Court).  So my question is, what CCP or caselaw do I cite if the Plaintiff tries to argue at court that as an alleged Assignee, they “stand in the shoes” of Capital One and can therefore authenticate and testify to the identity and mode of preparation of alleged Capital One docs?  Or, alternately, that as the Assignee, they can authenticate and testify to it because they are one of the parties to the transaction?  If anyone needs clarification of what I mean by this, PLEASE feel free to ask.  I’ll be monitoring the board day-and-night until this is over in a few days.

Thanks.

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4 hours ago, h8spleadingpaper said:

Are you recommending that I fax a copy of the request for a Statement of Decision to the Plaintiff?  Would that be something that’s required (don’t see anything about it in CCP 632), or merely a strategic move?

@h8spleadingpaper Yes...you were talking about not being able to serve it on them in a timely manner due to the schedule.  Faxing it would count as them having it....  Unless someone knows something I don't.

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Thanks, @CommoSGT.  Do you know if I’m required to serve it on them, since it’s something intended for the judge alone?  I only ask because I’d have to pay to have a local shop fax if for me and I’ve spent a small fortune on postage for other documents related to this case already.  If I do have to it’s okay, just wanted to make sure first.  Thanks!

EDIT:

How does this sound for the language going of the request for a Statement of Decision?

 

"NOTICE IS HEREBY GIVEN that Defendant respectfully requests a statement of decision under Cal. Code of Civ. Proc. § 632.  Defendant respectfully requests the statement of decision set forth the basis of the decision finding in favor of  Plaintiff, if applicable, including, but not limited to, the admissibility and credibility of Plaintiff’s evidence and the testimony provided by Plaintiff’s witness regarding the admissibility of business records from the alleged original creditor and sufficiency of the proof of assignment of the purported subject debt to Plaintiff."

 

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Is anyone still on the boards here?  Seems like most people have dropped off since the site was reconfigured on January 1st.  I could really use the help as I’m in the last few days before Trial, if anyone knows of a way for me to find out who’s currently on.  Thanks.

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I'm not familiar with statements on decision, but from what I have read I don't see a requirement that you serve it to the other party in advance. I think you just need to take care of making the request "prior to the submission of the matter for decision". Not sure exactly what that means... if you must make the request once trial begins, or before the judge rules on your objection, or before he renders judgment??

I don't think a "Declaration in Support of the Statement of Decision" would apply.

I read above that you feel this is for sure going to trial because the plaintiff has filed a trial brief. I wouldn't make that assumption. Remember, most everything they send you or that they file with the court is generic -  your specific information (name, acct #, etc) gets plugged into a template and (voila!) a trial brief is produced. They're just following procedure. As always, our advice is that you prepare like you will end up in trial - I just wouldn't assume anything, one way or another.

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