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Being Sued by LVNV through Hunt & Henriques in California


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I think you had a cmc that was vacated. You may have to call the clerk just to make sure. Plaintiff may be responding to a cmc that was vacated. You are supposed to fill out a cmc statement 15 days prior to a cmc, but you need to have a cmc scheduled to do so, and you need to go to the cmc (if one is on the docket).

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You're correct. Since San Bernardino Superior schedules a Trial Setting Conference instead of a CMC, and I already have my trial date. So that's why this is so puzzling for me. Why would they file the CMC statement? It doesn't make sense since the Docket doesn't show any CMC meeting has been scheduled. In fact, it shows that it's been vacated.

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  • 1 month later...

Can anyone answer this?

I've been reading the forum for pertinent information regarding my trial that's set for about a month from today. I read in DonnaPoo's post that on the day of her trial, before she was to appear, she was called away for the mandatory last-try mediation meeting. This is what she wrote:

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The mediator asked me what type of case it was while trying to look it up and I told him “Account Stated” and he responded it sounds like you understand the case. Then he was looking for the Collections Case Management Form which is a form the courts require you bring with you for this type of hearing, I had my copy already filled out and signed and gave it to him. He noted that the amount the Plaintiff was blank and I explained the reason why it was blank was because their Complaint listed one amount but their Declaration in Lieu lists another and due to the confusion just left it blank and figured it would have been written in at some point, he said makes sense. 

My question...what is a "Collections Case Management Form? This is the first I've heard of it. Is it the same as the CMC form (which I didn't need since the San Bernardino County Superior Court replaced the CMC with a Trial Setting Conference, as per their rules)? The Plaintiff's attorneys filed their CMC document although the CMC meeting had been vacated, according to the online schedule for my case (double-checked just now and nothing's changed).

So  I need to know...do I fill out a Case Management Conference response? I believed I didn't have to but now I'm reading DonnaPoo's post, it appears they might require a filled out form IF the Collections Case Management Form is the same as the response to Plaintiff's "Case Management Conference". I just don't want to be surprised on the day of trial.

Can anyone enlighten me? Thanks in advance!

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Unless you have a CMC scheduled, you don not have to fill out any form.

If it's not too late, or you haven't done so already, I would send them a ccp 96 request for witness and exhibit list. It is supposed to be sent 45 - 30 days prior to trial.  Read ccp 96. There is a simple form for the witness and evidence list request.

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27 minutes ago, Anon Amos said:

Unless you have a CMC scheduled, you don not have to fill out any form.

If it's not too late, or you haven't done so already, I would send them a ccp 96 request for witness and exhibit list. It is supposed to be sent 45 - 30 days prior to trial.  Read ccp 96. There is a simple form for the witness and evidence list request.

 

Is that what DonnaPoo meant with her "Collections Case Management Form"? The CMC?

I have already filled out and sent per CMRRR my CCP 96 on June 20, 2016, but have not heard back from them yet. I just checked the mail for the day and it's not in the box. I fear time is running out since , if they come with a name, I'll need to subpoena the witness and I really don't know how long that can take. I don't want to miss this opportunity.

I had sent my RFP, Set two, on May 27 (they received May 31st according to the RR) and I just got their (stupid) response last Tuesday (July 5, 2016).  My trial brief is due to be filed and served no later than 10 days before trial, which makes it July 22nd. Ugh!

Thanks so much for all your suggestions and help, Anon - and of course, this extends to anyone and everyone else who are helping me with solid advice so far (Calawyer and Sadinca!).

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1 minute ago, AuthorCat said:

 

Is that what DonnaPoo meant with her "Collections Case Management Form"? The CMC?

No, don't worry about the cmc stuff, I don't believe this is going to pertain to you .

1 minute ago, AuthorCat said:

I have already filled out and sent per CMRRR my CCP 96 on June 20, 2016, but have not heard back from them yet. I just checked the mail for the day and it's not in the box. I fear

time is running out since , if they come with a name, I'll need to subpoena the witness and I really don't know how long that can take. I don't want to miss this opportunity.

Good job. Don't worry about time out here. It will actually benefit you . If they don't provide you with this response and information, then they can't use it at trial and can't call their witness (when you object).

Also, you do not subpoena this witness (only the one from a ccp 98 declaration)

1 minute ago, AuthorCat said:

 

I had sent my RFP, Set two, on May 27 (they received May 31st according to the RR) and I just got their (stupid) response last Tuesday (July 5, 2016).  My trial brief is due to be filed and served no later than 10 days before trial, which makes it July 22nd. Ugh!

I'll pm you later. If anything they did you a favor with their response to your discovery. I would think the trial brief is something to focus on. Keep your eye out for a ccp 98 declaration (that's the ONLY witness you subpoena)

1 minute ago, AuthorCat said:

Thanks so much for all your suggestions and help, Anon - and of course, this extends to anyone and everyone else who are helping me with solid advice so far (Calawyer and Sadinca!).

There are some solid people here. Keep your chin up, you are doing good!

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7 hours ago, AuthorCat said:

My trial brief is due to be filed and served no later than 10 days before trial, which makes it July 22nd. Ugh!

I have often seen that deadlines for Trial Briefs tend to be counted in court days, which differ from calendar days. Just a heads up so that you can double-check your local rules and make sure you're on the right schedule.

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45 minutes ago, RyanEX said:

I have often seen that deadlines for Trial Briefs tend to be counted in court days, which differ from calendar days. Just a heads up so that you can double-check your local rules and make sure you're on the right schedule.

I miscalculated one day - Trial Brief due to be filed on July 21st, not July 22nd. I used the Los Angeles court days calculator for this. Thanks for the heads up, RyanEx! I was off by one day!

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Question: To date, July 8, I have yet to receive Plaintiff's CCP §98.

According to CCP §98, to ensure that the opposing party receives Due Process, the declaration shall not be admitted unless:

Quote

‘A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.’ ( Code Civ. Proc. §98 (a).)

I believe the "at least" refers to "a minimum of", right? Well, I should've received their CCP §98 last Tuesday at the latest. What can this mean for my case? Anyone?
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They don't have to send a ccp 98 declaration, and there are times when they don't. I think you have a good chance to win the case either way. You can't really say what it means for your case because we have seen them not send the declaration and then dismiss the case, and we have seen them not send the declaration and bring a witness instead (although rarely). In any event we have seen people still win (and lose unfortunately) in either situation. You can't really say how it will relate to you (although it saves you $80 on serving a subpoena).

I think the only fair way we could say how it relates to your case, (and anyone else's for that matter), is that most of the people who fight the case end up beating it, one way or another.

It could simply mean that this particular bottom feeder is tired of its declarations getting poured out of court.

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2 hours ago, AuthorCat said:

Question: To date, July 8, I have yet to receive Plaintiff's CCP §98.

According to CCP §98, to ensure that the opposing party receives Due Process, the declaration shall not be admitted unless:

 

 

I believe the "at least" refers to "a minimum of", right? Well, I should've received their CCP §98 last Tuesday at the latest. What can this mean for my case? Anyone?

The key word there is "served upon the party". Since they are most likely serving by regular mail, they just needed to place it in the mail at least 30 days prior to trial.  If you're saying day-30 was 3 days ago, then it may still arrive & be timely served - give it a couple more days and if it arrives, check the POS date to make sure they complied.

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2 hours ago, RyanEX said:

The key word there is "served upon the party". Since they are most likely serving by regular mail, they just needed to place it in the mail at least 30 days prior to trial.  If you're saying day-30 was 3 days ago, then it may still arrive & be timely served - give it a couple more days and if it arrives, check the POS date to make sure they complied.

You're right. The operative word is "served". I'll be looking out for their CCP §98, and it could just mean that the mail has been late a day or two due to 4th of July.  Thanks, RyanEx!

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2 hours ago, Anon Amos said:

They don't have to send a ccp 98 declaration, and there are times when they don't. I think you have a good chance to win the case either way. You can't really say what it means for your case because we have seen them not send the declaration and then dismiss the case, and we have seen them not send the declaration and bring a witness instead (although rarely).

Thank you, Anon Amos. This clarifies a lot for me. I was just worried that I wouldn't have a lot of time to serve the subpoena should I receive their CCP 98 declaration and not have enough time to get the subpoena and serve it, or if I didn't receive one at all. But as you've alluded to, every case is different, so we'll see. If I don't receive the CCP 98 declaration, I will object to any witness they bring to trial since I could claim that I was denied due process.

I'm currently reading up on and drafting my Trial Brief. According to the calendar - and RyanEx pointing out to be very careful about dates - I must file my Trial Brief and serve it on July 21st. That's a little less than two weeks from today so you can imagine my anxiousness.

Thank you for responding!

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23 hours ago, AuthorCat said:

  If I don't receive the CCP 98 declaration, I will object to any witness they bring to trial since I could claim that I was denied due process.

This isn't entirely correct. Although you may be objecting to any witness they  bring, it probably won't be for anything relating to CCP 98.

If you don't receive a CCP 98 then you just don't concern yourself about it. It by no means prevents them from bringing a witness.  

Affidavits (declarations) are inadmissible in CA except by statute. Elkins v Superior Court. CCP 98 is the statute. If you get a ccp 98 declaration then it's their way of trying to introduce an affidavit (declaration) instead of a live witness at trial. They give you the declaration and 30 days notice to subpoena the witness so that you aren't deprived of due process, if you object to having a declaration instead of a witness at trial.

If they don't respond to your ccp 96 witness and exhibit list request; then they can be prevented from bringing a witness to trial because it deprived you of due process to prepare for the witness.

 

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6 hours ago, Anon Amos said:

This isn't entirely correct.

I got confused. Sorry. Thank you for the helpful explanation. I guess I kind of got confused thinking that CCP § 98 and the CCP  §96 were somehow connected in that CCP §98 flows from CCP §96. Thank you for the explanation.

By the way, as of today, still no CCP §98. This makes it four days since the 30-day deadline. Family and friends in the Netherlands get my cards and letters in that same time! I seriously doubt they've sent a CCP §98 , or if they have, they've mailed it late.

I still haven't received a response to my CCP §96, either, but the deadline for their response is July 15th, so they still have a week. I'll be curious to see what their response is going to be.

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Most people do confuse the two statutes, and it's  easy to mix them up, but they are two entirely different areas. CCP 98 they are saying "we aren't going to bring a witness but instead we have the witness testimony in this declaration", and in CCP 96 they are saying "this is the witness and evidence we plan to bring to trial against you".

Hopefully they don't respond to the ccp 96. Just in case you haven't already, make sure you are counting the 5 days for mail service on these.

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7 minutes ago, Anon Amos said:

Hopefully they don't respond to the ccp 96. Just in case you haven't already, make sure you are counting the 5 days for mail service on these.

I added the extra 5 days of mail service for the CCP 96, bringing me to a July 15 deadline.

I didn't do that for CCP 98 because, doesn't the statute say that I should be allowed 30 days, at minimum, before trial? If I allowed an additional 5 days, that would make it 25 not 30 days, wouldn't it?

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1 minute ago, AuthorCat said:

I added the extra 5 days of mail service for the CCP 96, bringing me to a July 15 deadline.

I didn't do that for CCP 98 because, doesn't the statute say that I should be allowed 30 days, at minimum, before trial? If I allowed an additional 5 days, that would make it 25 not 30 days, wouldn't it?

Yes, you are correct, I was just checking you LOL. You must receive a ccp 98 declaration at least 30 days prior to trial.

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17 minutes ago, Anon Amos said:

I was just checking you LOL.

You're keeping me on my toes, Anon Amos!

RyanEx said that the keyword is "served". They would still be within the timeline of the statute if the postmark shows "July 5, 2016".

So should I still receive their CCP 98 (Monday would make it six days in), the postmark should read "July 5, 2016" or it will be considered late and inadmissible, wouldn't it?

Anyway, I don't think they've sent one. As I've mentioned above, I've mailed letters and birthday cards to friends and family in the Netherlands that have taken exactly 4 days to arrive (usually 5-6 calendar days, though).

According to the green RR cards of prior correspondence with them, they receive my correspondence exactly two days after the mailing date. I have doubts that in this case the CCP 98 has been mailed or if they've mailed it, it will show a postmark a day or two after July 5, 2016. I can't imagine that the post office would take six days (post office days, which excludes Sundays) to deliver mail within California.

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The ccp 98 is going to be inadmissible regardless of whether or not they serve it timely because you are going to object to it anyway, and subpoena the witness, and it won't matter if they don't send one.

Ryan X is correct about the keyword being "served", I am throwing you off a bit with the time frame.  It is "served" and not "received" as I stated.

 

Personally I would respond to  it the same way even if it was a few days late.

 

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