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Thanks for all the help !

After sleeping on this latest move by the OC's lawyer, I'm wondering if it isn't something that maybe I can write an objection to this witness in that it's not stated who this is, what her job is, what she is testifying to, what are her credentials are, etc. And the only clue is that her address is the same as the law office. Does she work or live there ?

As I have said, there is a period of between a year and two years that I had settled with another of the OC's law office (for less money) and paid on it for an unknown time during that period. This witness can't testify to both the veracity of the account  kept by both the OC and the office that then settled and  collected on the same account, can they ? They're in two different places, The OC payments were sent to City of Industry in Ca. ( who I suspect is where the witness is from ) and the collector  is in Massachusetts. Can someone testify to both ? What do I do now ?

Is this what I should concentrate on in the Trial Brief and maybe an Objection or is it possible to do a MIL on this ?

Any help would sure be appreciated. I was all ready for the 98, I just needed to fill in the name on the subpoena and the MIL and Trial Brief, etc. 

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A witness from the OC can only testify about the records of the OC or any place he or she works.

You can also verbally object at trial to a witness being called if you have objections.

You can't object to your self being called as a witness, so an OC case will be very hard even if they don't have their own witness. A lot of OC cases do get dismissed rather then going on and fighting it in trial (especially knowing they still have to collect).

I don't know that I would file a trial brief in an OC case if it were mine unless, I had something strong for my case (or if the local rules insist on it)

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3 minutes ago, Anon Amos said:

You can't object to your self being called as a witness, so an OC case will be very hard even if they don't have their own witness. A lot of OC cases do get dismissed rather then going on and fighting it in trial (especially knowing they still have to collect).

I don't know that I would file a trial brief in an OC case if it were mine unless, I had something strong for my case (or if the local rules insist on it)

Nice to hear from you again Anon Amos!

Maybe I got this all wrong. Don't they have to have a witness to testify about business practices and collection records and so forth ? I was hoping to object to their witness for :

1) not stating who they are and what they are testifying to and  maybe where they live and    2) her not being able to testify to 2 different collection entities and their business practices, etc.,( the OC and the collection lawyer in MA )?  Don't I want/have to file a trial brief about what I want to impeach them on and bring up ?

The OC doesn't seem to want to settle this case or even talk about it let alone dismissing it. 

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4 minutes ago, calawyer said:

You may want to address this in a trial brief.  I don't think there are grounds for an MIL.

Thanks Calawyer,

I had started it under a Declaration of Defendant but I'll change the heading. What  else should I file ?

Any suggestions on how to handle the witness ?

1 hour ago, Anon Amos said:

You can't object to your self being called as a witness,

This does have me concerned, Not the being called but will they expect me to know dates and amounts because at the time I was going out of business and was dealing with  8-10 credit lines and really don't remember all the info of each. Or is it just, is this my signature, and name and did I have an account ? 

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5 hours ago, smitty009 said:

Thanks Calawyer,

I had started it under a Declaration of Defendant but I'll change the heading. What  else should I file ?

Any suggestions on how to handle the witness ?

This does have me concerned, Not the being called but will they expect me to know dates and amounts because at the time I was going out of business and was dealing with  8-10 credit lines and really don't remember all the info of each. Or is it just, is this my signature, and name and did I have an account ? 

It is good for you if you truthfully don't know an answer.  "I don't know" is a perfectly good answer in Court if it is true.

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5 hours ago, smitty009 said:

 

 because at the time I was going out of business and was dealing with  8-10 credit lines and really don't remember all the info of each.

Excellent. Not to mention dealing with the stress etc. and tons of collection calls, as well as the time that has since passed. It's perfectly normal and honest to not remember much about any of the accounts. They hardly recognizable anyway after a few late payments and the interest  rate hikes. 

5 hours ago, smitty009 said:

Or is it just, is this my signature, and name and did I have an account ? 

Yes, that too. It's a copy of your signature and you had many accounts.

 

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4 hours ago, Anon Amos said:

Excellent. Not to mention dealing with the stress etc. and tons of collection calls, as well as the time that has since passed. It's perfectly normal and honest to not remember much about any of the accounts. They hardly recognizable anyway after a few late payments and the interest  rate hikes. 

Yes, that too. It's a copy of your signature and you had many accounts.

 

Sounds like what I went through. I used to know things about the accounts I had, but now...I can't recall.

;)

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    Anyone out there know what I should do at this point ?

I had planned on fighting the 98 in lieu of testimony and they decided to have a live witness, instead. They don't say what this person is supposed to testify to, where she works, nothing except she apparently lives at the law offices as that is her address. So, now I don't have a plan as to what to do now. Do I try to discredit the witness ? Which I don't have any idea how to do this or when or what to object to.                                              Or do I use  an affirmative defense and  claim:

  " Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits."       As i had worked out a settlement with another collector on this same account, paid on it for over a year previously and then they mysteriously quit collecting.    And question why the witness has no info on the  records of those transactions.  But, do I need to have this info in my Trial Brief ? I already included copies of statements and a payment schedule in my answer to their 96 as my exhibits and used them to fight and win the MSJ they filed.               or claim that:

   "Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive".                         Since they are suing for more money than their prior collector settled for ?       or that;

Being that I did not receive regular statements for 2 years as they were sending them to the wrong address back in 2011-2013 and having 8 collectors on me at once confusing the whole situation back then that I can't really recall each creditor completely, which is true too.  ( I can't imagine winning this case with " i don't remember". even when it's true)         I'm not clear on what way to go and how to go there?   Is there a case that is similar ?  I don't even know where or how to look.  Trial is 2 weeks away.  Any help and/or opinion would be much appreciated at this point.

 

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Upon researching the witnesses name on google, I have found that it is a "legal specialist" with cap 1 since 2/2016 and a lawyer since 2009. I'm wondering what "personal knowledge" would she have with my account since the account hasn't been active since 2013. Doesn't she need that to testify ??

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3 hours ago, smitty009 said:

               Or do I use  an affirmative defense and  claim:

  " Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits."       As i had worked out a settlement with another collector on this same account, paid on it for over a year previously and then they mysteriously quit collecting.    And question why the witness has no info on the  records of those transactions.  But, do I need to have this info in my Trial Brief ? I already included copies of statements and a payment schedule in my answer to their 96 as my exhibits and used them to fight and win the MSJ they filed.               or claim that:

my take is that, you would need to include this argument in your trail brief, you would need to include any documents proving your argument in your trial brief as exhibits.  also, if they served you a ccp96, those documents should've been included in your response to their ccp96 request. 

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1 hour ago, sadinca said:

my take is that, you would need to include this argument in your trail brief, you would need to include any documents proving your argument in your trial brief as exhibits.  also, if they served you a ccp96, those documents should've been included in your response to their ccp96 request. 

Thanks for the reply. 

I did put the papers in my response to their 96 request so you think I should continue that way ? That's kind of what I was thinking since it got me past their MSJ.  Would you include the other defense, also ? Should the witness know about this settlement ? Is this ammunition at trial ? Thanks again for the input.

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21 minutes ago, sadinca said:

did you include the Accord and Satisfaction affirmative defense in your response to the complaint? you cannot bring an affirmative defense that you did not include in your general denial. 

No, I did not. You mean I needed to give an affirmative defense with my general denial 15 month's ago ? uh-oh

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Thanks for any input !  I was browsing around this site and came upon a member's opinion on getting called by plaintiff as a witness ( Iapologize to the person posting as I copied the quote but did not save the source). The quote goes like this: 

"This needs to stop and you can stop it by citing the following case about the 5th amendment: In Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316 (1973), the U.S. Supreme Court stated this rule as follows:"

"The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future proceedings."

I'd like to get some opinions on using this as I am toying with the idea but don't want to alienate the judge. 

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2 hours ago, smitty009 said:

Thanks for any input !  I was browsing around this site and came upon a member's opinion on getting called by plaintiff as a witness ( Iapologize to the person posting as I copied the quote but did not save the source). The quote goes like this: 

"This needs to stop and you can stop it by citing the following case about the 5th amendment: In Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316 (1973), the U.S. Supreme Court stated this rule as follows:"

"The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future proceedings."

I'd like to get some opinions on using this as I am toying with the idea but don't want to alienate the judge. 

The quote from Lefkowitz actually reads:

"The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."

In other words, your right to avoid self-incrimination exists if your answers could subject you to criminal penalties or prosecution.

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