h8spleadingpaper

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A couple of thoughts about trial strategy and the chain of title arguments.

I don't think that class action will help you very much.  The thrust of that case is not that Ms. Tucker does not exist.  It is that she was swearing under penalty of perjury that she could be served at a business address that hadn't existed for more than 6 months.

Don't forget the weirdness about the Exhibit numbers that change from Original Creditor to JDB (I PM'd you about this).  I think that falls directly into subsection (d) of the business reords exception of the hearsay rule:

The sources of information and method and time of preparation
were such as to indicate its trustworthiness.

Here, the numbering suggests, if anything, the absence of trustworthiness.  And the person who could explain it from the OC will not be there.

 

As far as the Statement of Decision is concerned, you can just do that orally but if there is no Court reporter, making a written demand is probably a good idea.  There is a Rule of court on this subject as well as the CCP section:  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1590

The very last subsection (n) probably applies, so no reason you can't simply file it on the day of trial and give (serve) plaintiff's lawyer with it when you do.

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Thanks, @calawyer.  

So I think I’ll try to run down to the court first thing Monday morning, file a Request for a Statement of Decision (I assume that should be the official title) and fax a copy to Plaintiff (I’d rather not hand it to them on the morning of Trial, because I’ve read here that I shouldn’t let them hand me anything either).  I haven’t been able to find a good exemplar of a Request for a Statement of Decision anywhere, so I copied one that was submitted by a Plaintiff and changed the wording to reflect the parties involved (i.e. - switching “Plaintiff” to “Defendant” and vice versa).  How does this sound?

 

"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."

I wish it sounded more all-encompassing and generic, but maybe the specificity is good for me?  Thanks, everyone.

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(BUMP from earlier post) 

"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.  ....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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3 hours ago, h8spleadingpaper said:

So I think I’ll try to run down to the court first thing Monday morning, file a Request for a Statement of Decision (I assume that should be the official title) and fax a copy to Plaintiff (I’d rather not hand it to them on the morning of Trial, because I’ve read here that I shouldn’t let them hand me anything either).  I haven’t been able to find a good exemplar of a Request for a Statement of Decision anywhere, so I copied one that was submitted by a Plaintiff and changed the wording to reflect the parties involved (i.e. - switching “Plaintiff” to “Defendant” and vice versa).  How does this sound?

 

 

"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."

 

I wish it sounded more all-encompassing and generic, but maybe the specificity is good for me?  Thanks, everyone.

 

(BUMP) (BUMP)

(Anyone?)

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59 minutes ago, h8spleadingpaper said:

(BUMP) (BUMP)

(Anyone?)

I think it's good. File it, fax or hand it too plaintiff or whatever you have to do. The main thing is to file one, I don't think you are going to anything that can damage you here, as it's not a very critical area.

You are telling the judge to go on record with the exact reason he ruled against you. The judge will know what you are asking regardless of the wording. 

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1 hour ago, h8spleadingpaper said:

(BUMP from earlier post) 

"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.  ....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.

(BUMP) (BUMP)  

:-)

 

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1 hour ago, h8spleadingpaper said:

(BUMP from earlier post) 

"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?

I wouldn't hold much stock in the Anthony post (as I recall he was extremely un prepared  and misinformed ( and gave no explanation as to what happened) If the witness shows up at trial  it wouldn't matter if they allowed the ccp 98 declaration anyway, because the witness testimony is going to be just what he says in the ccp 98 declaration. You would cross examine the witness and try to impeach him (that would be your argument (he can't authenticate, can't lay  foundation, no knowledge of OC records etc),

Quote

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.

Too late for trial brief, but these are questions to be added to your cross examination of witness. Their allegations cannot be true by their own dates they supplied. Untrustworthy and the witness should be impeached.

Quote

 

 

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Thanks, Anon.  I’ve really been stressing (if you couldn’t tell).  

By the way, I did successfully subpona the CCP 98 declarant via personal service in this case.  But I have a funny feeling that if he doesn’t show, Plaintiff’s council will try to use his CCP 98 declaration anyway.  Is there any way to prevent them from doing this that you know of?  Just trying to somehow prepare for every eventuality I can over here.  Thanks!

PS - I never submitted my written Objection to the CCP 98, because I was under the impression that the declarant HAD to show, once subpoena’d.  In retrospect, I think I probably should have submitted it anyway, but didn’t really know what to do with a successful subpoena service (the declarant in my last case couldn’t be served).

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1 minute ago, h8spleadingpaper said:

 

Thanks, Anon.  I’ve really been stressing (if you couldn’t tell).  

That is the normal reaction. Don't forget, this isn't your first rodeo, and what you learned, and objections from the last case still apply.

1 minute ago, h8spleadingpaper said:

 

By the way, I did successfully subpona the CCP 98 declarant via personal service in this case.  But I have a funny feeling that if he doesn’t show, Plaintiff’s council will try to use his CCP 98 declaration anyway.  

I'm sure they will, unless they just dismiss.

1 minute ago, h8spleadingpaper said:

 

Is there any way to prevent them from doing this that you know of?  Just trying to somehow prepare for every eventuality I can over here.  Thanks!

OBJECTION: Hearsay CA Evidence Code 1200.  Elkins v Superior Court (as well as sever others listed in Elkins). Doesn't meet any exception to the hearsay rule under CA  Evidence Code 1271.

Then point out that the  witness said under oath and penalty of perjury he would be her for service and that you successfully served a subpoena and the witness is court ordered to appear.

 

If that fails (which is unlikely) that's the reason you have the request fro statement of decision (and having filed that the judge is less likely to do this). The statement of decision will help you have a record for appeal.

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23 minutes ago, h8spleadingpaper said:

(BUMP) (BUMP)  

:-)

 

 

1 hour ago, h8spleadingpaper said:

(BUMP from earlier post) 

 

3.  ....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.

There is recent case law on this but I can't remember the name, and with the recent website overhaul it's impossible to find. I will try to remember and get back to you on this if no one chime sin with it.

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3 minutes ago, Anon Amos said:

That is the normal reaction. Don't forget, this isn't your first rodeo, and what you learned, and objections from the last case still apply.

I'm sure they will, unless they just dismiss.

OBJECTION: Hearsay CA Evidence Code 1200.  Elkins v Superior Court (as well as sever others listed in Elkins). Doesn't meet any exception to the hearsay rule under CA  Evidence Code 1271.

Excellent.  So I’m trying to imagine how Plaintiff’s council might use the declaration if there is no witness to testify to it.  Would he just start reading it out loud?  Or maybe paraphrase it, at which point I’d raise the objection that council is testifying?

Quote

Then point out that the  witness said under oath and penalty of perjury he would be her for service and that you successfully served a subpoena and the witness is court ordered to appear.

 

If that fails (which is unlikely) that's the reason you have the request fro statement of decision (and having filed that the judge is less likely to do this). The statement of decision will help you have a record for appeal.

And do I need to point out to the judge that I’ve filed a Statement of Decision request, or will he/she know about it from having reviewed all of the paperwork in advance?  I just don’t want to call attention to it if I don’t have to, because it would almost sound like I was somehow issuing some kind of backhanded threat.  Thanks!

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22 hours ago, h8spleadingpaper said:

Is anyone still on the boards here?  Seems like most people have dropped off since the site was reconfigured on January 1st.  

Indeed. The website quality has finally reached an all time low with the reconfiguration  (in my opinion).

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7 minutes ago, Anon Amos said:

 

There is recent case law on this but I can't remember the name, and with the recent website overhaul it's impossible to find. I will try to remember and get back to you on this if no one chime sin with it.

I would SO appreciate this!  I get the feeling there will be some dirty tricks attempted by the opposition and I’m certainly no legal scholar (though I’m trying my best).  Thanks!

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OK H8, I have to TCB, and will check back in later. You had a few question that were covered by Calawyer so I didn't respond to them. Bump anything that is unclear or unanswered. Don't stress, this is something you can handle.

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1 minute ago, Anon Amos said:

OK H8, I have to TCB, and will check back in later. You had a few question that were covered by Calawyer so I didn't respond to them. Bump anything that is unclear or unanswered. Don't stress.

Thanks so much for your help, Anon!  Wanted to “like” your post, but I’ve hit my max for the day.  Cheers, friend!

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Hey, @Anon Amos.

I have this tip from calawyer (who’s extremely busy right now and may not be reachable, or I’d ask him directly - plus I’ve already bothered the heck out of the poor guy with my ignorance):

"You should object to any testimony from the witness as to the business practices of Capital One on the ground that the witness lacks personal knowledge and any testimony is hearsay. 

 

You should object to any testimony about account statements on exactly the same grounds."  

Stupid question:  Does this mean that I can/should object when Plaintiff’s council is examining the witness, or does it mean that I should object based on the above arguments after I’ve cross-examined them and established that they have no personal knowledge?  Sorry, I’m totally burnt out and can’t think straight.  Thanks.

EDIT:  Oh, wait.  I think I’ve got it.  I would wait for Direct Examination to finish, then when the Judge asks if I have any objections, I would object an the above basis, right?

 

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5 hours ago, h8spleadingpaper said:

Excellent.  So I’m trying to imagine how Plaintiff’s council might use the declaration if there is no witness to testify to it.  Would he just start reading it out loud?  Or maybe paraphrase it, at which point I’d raise the objection that council is testifying?

 

If he's reading it, or paraphrasing it, then it's hearsay. If he is  stating the information in the declaration in the manner that the declarant did in the declaration, as if it was he who made it, then it's council testifying.  Without a witness he can basically just recite what is in the complaint (much of that is in the declaration as well however.) It's kind of difficult to know when to make this objection, so just do the best you can. It's better to object and have it overruled then to not to object when it would have been allowed. Make sure you make any objection by first stating the word "OBJECTION".

 

5 hours ago, h8spleadingpaper said:

 

 

 

 

And do I need to point out to the judge that I’ve filed a Statement of Decision request, or will he/she know about it from having reviewed all of the paperwork in advance?  I just don’t want to call attention to it if I don’t have to, because it would almost sound like I was somehow issuing some kind of backhanded threat.  Thanks!

 

 

You won't need to mention this, just get it filed. If an objection gets overruled I would ask that  "may the record reflect the objection". The judge may get tired of hearing that (or he may not), but I wouldn't worry too much about a judge taking offense to anything. There are judges that won't be happy about you fighting a case, so don't be too concerned about their feelings and just fight the case. Don't let them intimidate you,. A lot of judges aren't happy about having to rule against a fellow bar member either.  I have never seen a judge too happy about anything I did, or filed etc, and have still always done very well.  As long as you use terms like "your honor" and "objection" in the right tone of voice and volume, respectfully, then you do what you have to do win.

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2 hours ago, h8spleadingpaper said:

Hey, @Anon Amos.

I have this tip from calawyer (who’s extremely busy right now and may not be reachable, or I’d ask him directly - plus I’ve already bothered the heck out of the poor guy with my ignorance):

"You should object to any testimony from the witness as to the business practices of Capital One on the ground that the witness lacks personal knowledge and any testimony is hearsay. 

 

You should object to any testimony about account statements on exactly the same grounds."  

Stupid question:  Does this mean that I can/should object when Plaintiff’s council is examining the witness, or does it mean that I should object based on the above arguments after I’ve cross-examined them and established that they have no personal knowledge?  Sorry, I’m totally burnt out and can’t think straight.  Thanks.

EDIT:  Oh, wait.  I think I’ve got it.  I would wait for Direct Examination to finish, then when the Judge asks if I have any objections, I would object an the above basis, right?

 

Object any and every time any evidence is discussed or attempted to be introduced and do it ASAP. It's perfectly acceptable to interrupt the lawyer, as long as you say "OBJETION". Most likely he will put the witness on the stand and say "do you recognize this document, or can you describe the document, or I have in my hand a document, etc etc. He is suppose dto put the witness on the stand and get them to lay a foundation and authenticate the documents. Object as soon as you realize it's happening, (try to watch some realistic court / lawyer realated shows (or cases if you can).

He may try to bypass witness foundation by trying to give it to the judge directly "you honor I would like to introduce into evidence blah blah, etc etc". Object as soon as you realize it's happening.

You know they are going to mention the evidence, and as soon as they do, that is your que to object. Don't wait for a pause in the conversation or a polite time to interject. As soon as you notice it, OBJECT. 

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6 hours ago, Anon Amos said:

 

There is recent case law on this but I can't remember the name, and with the recent website overhaul it's impossible to find. I will try to remember and get back to you on this if no one chime sin with it.

I still can't remember it. I think it was CACH V (a name of a company (not an individual) I think @sadinca may know it.

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I don't think that's it (but read it and see if it helps).

It might be CACH v Sierra  (or Sierra management ) see if you can search for that.

It says a bottom feeder can't lay a foundation for OC records,  even if they do show up as a witness.

If they would have left the website alone I could have found it. There were several conversations about it.

Let me know what you find, I'll try to find it after work if not

Also I will pm you later with some tips that helped me.

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Also I am not sure it was a company. Sierra may have been a last name. Sierra is ringing a bell however  (although I have been thinking of a Sierra Nevada beer as well,  but I really don't think that has anything to do with it)

Sorry I can't be of more help on this, at least not at the moment. 

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4 minutes ago, Anon Amos said:

I don't think that's it (but read it and see if it helps).

It might be CACH v Sierra  (or Sierra management ) see if you can search for that.

It says a bottom feeder can't lay a foundation for OC records,  even if they do show up as a witness.

If they would have left the website alone I could have found it. There were several conversations about it.

Let me know what you find, I'll try to find it after work if not

Also I will pm you later with some tips that helped me.

Sierra v. Hale?

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"While a trial court has broad discretion in determining whether a witness is qualified to testify concerning the identity and mode of preparation of business records, a declaration and testimony at trial from the authorized agent of a creditor's assignee regarding the unpaid balance on a credit card account did not meet the necessary foundation. At best, all the declaration and testimony established was that the assignee received records originating from the creditor concerning the account in question. This fell short of the foundation necessary for admission of business records as against a hearsay objection. The declaration and testimony were insufficient to permit any court to determine that the sources of information and method and time of preparation were such as to indicate its trustworthiness (Evid. Code, § 1271, subd. (d)). Further, it was error for the trial court to receive the declaration of the creditor's custodian of records, which attended the exhibits. Upon the debtor's hearsay and foundational objections, it was incumbent upon the assignee to produce a qualified witness to lay the business records foundation required by § 1271, based upon personal knowledge of the identity and mode of preparation of the documents."

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