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I'm writing up my Objection to Plaintiff's Declaration in Lieu using @h8spleadingpaper's objection as a exemplar. I have a few questions and am hoping the California folks can help me out. :-)

 
For Argument A ("Failed to Comply With CCP Section 98") H8 states the declarant "does not say where the declaration was executed. He also does not give an address in California where he may personally be served."
 
For my case, the declarant does give an address in La Jolla, CA where "this affiant is available for service of process ... during the 20 days immediately prior to trial. If service is of process cannot be effectuated at the aforementioned address, I authorize the Defendant to contact attorney XXX for purposes of effectuating proper service on my behalf."
 
Also, the last line of the Declaration says "Executed on this day XXX, at San Diego, CA."
 
So, I'm thinking I should either strike Argument A or rewrite it such that it only says the declarant was unreachable* by the process server.
 
* The subpoena will be issued on Monday and I'm guessing the declarant probably won't be available, but will know for sure soon enough.
 
I go to trial this week as well, so am getting the subpoena in just under the wire. I won't have 5 days to file the objections with the court, but do plan on overnighting a copy to PRA's lawyers so that they are aware I plan to fight back with gusto. Is this correct?
 
-- 
 
PS: I'm terribly behind. I have two cases in motion - but they will be months apart. Unfortunately, I haven't been organized and missed my chance to do the preliminary stuff on suit #1. Nevertheless, I am inspired by those that have crammed a lot of learning into a short time and come out the other side. I'm determined not to let being behind stop me from trying. (Also, I worry that not fighting this will send the wrong message when it comes to suit #2. So, I'm in it to win it.)
 
The one thing I have done is read, read, read this forum! I've seen that the members here will help people who are willing to do the work - and I am willing to work hard.
 
Will probably have more questions over the next week, but I'll keep them all contained in this thread. :) Thanks in advance!
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If the declarant swears under perjury to be at that address and isn't, that's a false statement to the court, or fraud on the court. That's a big deal and should be pointed out.

Sub service is not permitted, only personal service of subpoena, ccp 1987.

Tell the process server you don't expect the witness to be there, try to serve 3 times and leave it with someone else on the 3rd try.

There are many other ccp98 objections here that are a closer fit for your case.

Many people have waited for the last week and still won.

Did you send them a request for or receive from them the ccp96 witness and evidence list?

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I did not send them a request for CCP96, however it looks like they sent me everything:

  • Notice to Appear
  • Plaintiff's Trial Witness List (the custodian of records for PRA via written declaration, me and "reserves the right to call additional witnesses"),
  • Trial Exhibit List: Bill of Sale, Affidavit of Sale and Plaintiff's Sale File; final billing statement; Letter of intent to commence legal action
  • Trial Brief
  • Proposed Order for Judgement

Will ask the process server to try three times. This will take up until the day before trial. That's not a problem, right? I remember reading you can attempt to serve the subpoena up until the day of trial?

 

I'll do a search for CCP98 and see what other examples I can find. Thanks!

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Argh. I misspoke. I'm not using h8spleadingpaper's example, I have the HomelessinCA's example from here: http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/page-13

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You can subpoena right up to the trial date. Ask the process server for a declaration of diligence explaining what happened with the service, and bring it to the trial.

Did they cite any case law in their trial brief?

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Hi, SoCalGal.

 

Here are my thoughts (note - I have a lot less experience than some of the other members, so please take them with a grain of salt):

 

1.  Yes, it sounds like you're behind on this one.  But you're owning it and that's not nothing.  A lot of folks wait until the last minute, bury their heads in the sand, and lose by default.  Personally, I'd rather go down fighting than lose that way and have to face myself after not trying.  Also, anything you learn/get done on this one will undoubtedly help with the second case.  For me, falling behind lessens your ability to use your hard work strategically, to try to get the Plaintiff to dismiss before Trial.  Doesn't mean you can't still go in and fight them.

 

2.  It sounds to me like they are trying to sidestep the rules set forth in CCP98, which states that in order to be admitted, the Declaration must provide the current address of the affiant.  Have you looked up the address they gave you in La Jolla?  My guess is that it may be where the attorney or JDB does business.  If so, then it is not the current address of the affiant, unless he/she works for one of them.  And if he/she does, then he/she is not a competent witness to testify as to the OC's records.  Who does the affiant claim to work for in your case?  Also, as Anon mentions, substitute service is not allowed.  The fact that they've mentioned leaving it with an attorney tips their hand that the affiant is not located at the given address, in my opinion.  And yes, if they have stated where the Declaration was executed, you should delete that line from your Objection.

 

3.  Interesting that they sent you the Evidence and Witness list without it being requested.  I think you should look into the entry you mentioned regarding "the custodian of records for PRA via written declaration."  To my mind, that sounds less like a witness, and more like a statement of intent to use an affidavit, which is inadmissible, as I understand it (or perhaps the CCP 98 Declaration, which you will be objecting to).  Also, if PRA is the JDB and not the OC, then again, it is coming from an incompetent witness with no personal knowledge of the OC's business practices.  I'm curious to know Anon's or calawyer's thoughts on listing what sounds like a document as a "witness."

 

4.  You mentioned a witness list.  How many are there?  I ask because you may want to consider using my M&C letter regarding the witness list in my case, if it seems applicable.  Also, feel free to use any of my other documents (Trial Brief, Objection to CCP 98, Declaration in Support of Objection to CCP98, etc).  Calawyer was extremely helpful in getting them where they are and I think they're pretty tight.  If you do, just make sure that everything in there applies to your case; if not take it out.  You can find them here (Post #106):

 

http://www.creditinfocenter.com/community/topic/326248-portfolio-recovery-hunt-henriques-new/page-6

 

If you want the M&C letter, shoot me a PM.  I've shared it with a few others here.

 

4.  So far, the evidence in your case doesn't sound that all that different from mine.  If you have time, you may want to consider uploading redacted copies for others here to look at so they can better help you.

 

Best wishes,

 

H8spp 

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@h8spleadingpaper : Thanks for the kind words. :-) The La Jolla address is listed as a PRA address in Google and the affiant is an employee of PRA. So, we'll see. The witness list does show the declarant's name where it states via written declaration, but yes this is this CCP98 that I will be objecting to. As an employee of the JDB, the declarant is not qualified to testify to the OC's business practice.
 
@Anon Amos - they cite case law to support their argument of "Account Stated" see the (redacted) Trial Brief from the Plaintiff below

  • Zin v Fred R. Bright Col - "essential elements" of account stated
  • California Bean Growers Assn v Williams - "if an debtor does not object, his acquiescence will be taken as an admission that the account is truly stated"
  • Dawkins v Sears Roebuck and Co. - requires written billing error dispute of charges

https://www.dropbox.com/s/0wgarygp242ojc4/plaintiff-trial-brief.pdf?dl=0

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If I were in your shoes, I'd subpoena the affiant's employment records and/or current address.

 

My guess is that the affiant does not live or work in La Jolla. My guess is that the affiant probably lives where PRA has their HQ (Virginia).

 

That can be used to set up a potential claim for fraud.

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If I were in your shoes, I'd subpoena the affiant's employment records and/or current address.

 

My guess is that the affiant does not live or work in La Jolla. My guess is that the affiant probably lives where PRA has their HQ (Virginia).

 

That can be used to set up a potential claim for fraud.

 

So, I would issue 2 subpoenas: one for the Affiant/Declarant and separate one for his employment records and/or current address? Who would I send the second subpoena to? The lawyers?

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Here is a copy of the Declaration in Lieu from PRA's affiant, in case it helps. I can also scan in the exhibits if needed, though it won't be until this afternoon as I have to go to work for a few hours.

 

https://www.dropbox.com/s/po9moii03ypk0xu/declaration-in-lieu.pdf?dl=0

 

I'm thinking the Objection will be:

  • Affiant is not competent to testify to OC's business practices because he is an employee of the JDB and therefore has no first-hand knowledge

Then, attack the exhibits individually as inadmissable:

  • Bills of Sale (3) can not be authenticated by Affiant
  • Affidavits are inadmissible because they are hearsay
  • The alleged "Data" records are not admissible as they were prepared for litigation and not normal business records
  • The alleged statements can not be authenticated by Affiant

This is an HSBC account that became a Capital One account which was purchased by Portfolio. Am I right in thinking PRA would have to have a "custodian of records" from each company in order to authenticate any documents?

 

How do I handle the Letter of Intent to File Suit? Do I need to address that? Does it matter that I didn't respond and dispute the charges?

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So, I would issue 2 subpoenas: one for the Affiant/Declarant and separate one for his employment records and/or current address? Who would I send the second subpoena to? The lawyers?

You would have to subpoena records at least 20 days prior to trial. You won't have time to subpoena records, but you will be OK without them anyway so don't worry about it.

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You would have to subpoena records at least 20 days prior to trial. You won't have time to subpoena records, but you will be OK without them anyway so don't worry about it.

 

Great! Thanks!

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Here is a copy of the Declaration in Lieu from PRA's affiant, in case it helps. I can also scan in the exhibits if needed, though it won't be until this afternoon as I have to go to work for a few hours.

 

https://www.dropbox.com/s/po9moii03ypk0xu/declaration-in-lieu.pdf?dl=0

 

I'm thinking the Objection will be:

The objection for this document is HEARSAY: Inadmissible at trial CA Evidence Code 1200   the case to cite is Elkins v Superior Court.

  • Affiant is not competent to testify to OC's business practices because he is an employee of the JDB and therefore has no first-hand knowledge

This ^^^^ is the objection to the witness being called to testify, and why he is an incompetent witness (even after being subpoenaed). The objection is FOUNDATION / AUTHENTICATION (see underlined above) the case to cite is Sierra Managed Asset Plan, LLC v David C. Hale.

Then, attack the exhibits individually as inadmissable:

Exactly. If you have time you can  file written objection for each piece, if not, you can object to each piece of evidence as it is being introduced at trial. I will get back here in a while when I have time and make suggestion for the evidence.

 

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  • Bills of Sale (3) can not be authenticated by Affiant

If it doesn't reference your name or alleged ac # then: IRRELEVEANT, also; FOUNDATION / AUTHENTICATION, HEARSAY doesn't meet a hearsay exception and isn't a business record CA Evidence Code 1271

 

  • Affidavits are inadmissible because they are hearsay

CA Evidence Code 1200 Elkins v Superior Court

  •  
  • The alleged "Data" records are not admissible as they were prepared for litigation and not normal business records

"A document prepared for the sake of litigation is not a business record because it is lacking trustworthiness" Palmer v Hoffman 318 US 109 (1943),  HEARSAY CA Evidence Code 1200, not a business record as it doesn't meet hearsay exception for business records CA Evidence Code 1271 Elkins v Supreior Court

 

  • The alleged statements can not be authenticated by Affiant

FOUNDATION. A witness from the bottom feeder cannot authenticate and lay a foundation for records from the OC.  Sierra Managed Asset Plan LLC v David C Hale (this case is new and you need the actual cite for it, which I'm not sure of and would have to look. I believe it's in Ventura (maybe someone will chime in with it).

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For Sierra v Hale, I have it in my notes as:

 

Sierra Managed Asset Plan, LLC. v. Hale

Superior court appellate division reversed a limited civil collection case judgment for plaintiff. the appellate division concluded that the trial court erred in admitting exhibits attached to a declaration, because the declarant had failed to satisfy the requirements of the business record exception to the hearsay rule.
A company employee's testimony regarding documents created by company's predecessor-in-interest is insufficient to lay foundation needed for business record exception to hearsay rule.
 
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For Sierra v Hale, I have it in my notes as:

 

Sierra Managed Asset Plan, LLC. v. Hale

Superior court appellate division reversed a limited civil collection case judgment for plaintiff. the appellate division concluded that the trial court erred in admitting exhibits attached to a declaration, because the declarant had failed to satisfy the requirements of the business record exception to the hearsay rule.

A company employee's testimony regarding documents created by company's predecessor-in-interest is insufficient to lay foundation needed for business record exception to hearsay rule.

 

from: http://www.creditinfocenter.com/community/topic/326706-california-sierra-managed-asset-plan-llc-v-hale-2015/?hl=hale

 

"Sierra Managed Asset Plan v. Hale, (2015)_ Cal. App. 4th_, 2015"  is the cite for the time being.

 

Because it's so recent, you'll want to print out copies, and attach them to your documents as exhibits. 

 

By the way, if you go to trial, try to find plaintiff's attorney before your case is called. Make sure they have seen your objections and trial brief. They may be unaware of your filings with the court. Give them copies if they have none. They may decide to dismiss the case once they see you are well prepared.   

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Thanks for the updated citation @small fry. Good idea about making sure the attorney knows I've got my trial brief and objections ready to go. I'll be there early — hopefully they will be too.

 

The declarant was available so the subpoena was served. 

 

I'm working on the objections to the Plaintiff's list of Exhibits (listed above with proper citations thanks to @Anon Amos). My question is, should I write up a separate objection for each exhibit or do all the objections go in a single document?

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@Seadragon one of our strong and long time contributors recently suggested this regarding objections.

 

 

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Posted 24 October 2015 - 11:11 PM

jrome1228, on 24 Oct 2015 - 9:27 PM, said:snapback.png

Thanks Anon & H8pp! Without this forum I would be lost. Time to finish up my Objections and Trial Brief which I should have done next week along with the service of the subpoena. I've been in touch with someone who can finish it in 2 days.

I would label the objections Motion in limine CCP402/Written objections to evidence due to recent cases of the court not ruling on documents titled Written objections. I know it has been said to title them that way but the courts are not ruling on them without ccp 402 on them. Also at trial, make objection for every question about leading the witness.

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Thanks for the examples @sadinca. I will go through and break down the objections into separate MIL docs.

 

In working through the Trial Brief, I'm having a hard time with the section on Account Stated. The Plaintiff's single claim is Account Stated. Their brief states

"Defendant Filed to Dispute an Charges Incurred" [Original creditor] mailed monthly statements, yada yada... Defendant never disputed any charges until the filing of the Complaint. For these reasons, Plaintiff has established an account stated Defendant.

 

From this it sounds like the failure to dispute charges may establish a debt owed to the original creditor, but it would not establish a debt with the Plaintiff.

 

They include as Exhibit C the JDB's Letter of Intent to Sue with a stated "amount owed." Am I right in thinking that the Letter of Intent to Sue can not establish an Account Stated claim because there is no previous relationship with the JDB? Also, even if the alleged debt was established with the original creditor, the JDB does not have standing to sue if all their "evidence" is inadmissible?

 

Can I object to the Letter of Intent to Sue since it is simply a printed copy from the JDP? There is no proof it was sent or received?

 

Just want to make sure my thought process is logical.

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“To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal citations omitted.)

That is in your California civil jury instructions. So break it down. The first statement in the paragraph disputes their theory. What statement did the JDB send you? An intent to sue letter is not a billing statement.

You also needed to acknowledge the debt. I doubt that you did. There was never a balance struck between parties. Did they send you anything showing transactions? Charges or payments? They need that too, not just a charge off statement, but one showing they established an account in the first place.

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Thanks @Shellie98. That helps a lot. :) The example documents I've been getting here are awesome, but I want to make sure I have a clear understanding in case I have to argue in court.

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