Telephonic Testimony Granted before Filing Objection

[laradee23]

1. Who is the named plaintiff in the suit? Webcollex LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Machol & Johannes

3. How much are you being sued for? $1,200.

4. Who is the original creditor? (if not the Plaintiff) Cabela's

5. How do you know you are being sued? (You were served, right?) served

6. How were you served? (Mail, In person, Notice on door) Mail

7. Was the service legal as required by your state? yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? They sent me a letter about the alleged debt and I sent them DV, they replied and after a month or so they served the summons.

9. What state and county do you live in? Colorado.  

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) According to my credit report last date of payment was year 2012.

11. What is the SOL on the debt? To find out: 6 Years.  

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Trial is set in May 2016

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. YES.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Already done, case is pending trial.  

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Only the statement from Cabelas.

----------------------------------------------------

 

Please help me what to do now, I received a court order from the mail that the Plaintiff's Motion for Telephonic Testimony was GRANTED, I thought it was still within the time frame to be able to File my Objection to the said motion.

 

 I received plaintiff's Motion for Telephonic Testimony dated May 3 and I got it in the mail on the 5th of May. I have been searching information on how to object to the motion thanks to this site by the way and so I just sent my objection to the said motion Saturday (May 7th) via crmm then I realized the court is closed so I couldn't file it in the court. I'm thinking about filing it first thing in the morning on Monday. When I got home I checked my mail and got a mail from the court which states the following;

 

To: my name

Subject: Service of Documents in 2015Cxxxxx.

 

You are being served with documents file electronically through the Integrated Colorado Courts E-Filing System. Please review the following details concerning this service.

• Court Location: xxxx County
• Case # : 2015Cxxxxx
• Filing ID/ N/A
• Filed Document Title :
  • Order: Proposed Order for Telephonic Testimony
• Submitted on Date/Time: Wed, May 4
• Submitted by Authorizing Attorney:   xxxxxxx County Court

 

If you have a question about the above listed case, please ask the court.

The attached document is an Order Granting Telephonic Testimony.

 

This is what it states in the said Order;

 

"This matter coming before the court and the court having reviewed the case and things surrounding this case, NOW Therefore

 

It is hereby ordered the the plaintiff's witness, xxxxx xxxxxor associate will testify as to the matters and things contained in the Plaintiff's motion for telephonic testimony at the present    trial date May, xx, 2016 at xxxx."

 

The Colorado Rules of Civil Procedure states that;

 

(2) Response. If any party objects to absentee testimony, said party shall file a written response within 7 days following service of the motion unless the opening of the proceeding occurs first, in which case the objection shall be made orally in open court at the commencement of the proceeding or as soon as practicable thereafter. If no response is filed or objection is made, the motion may be deemed confessed. C.R.C.P. 343 h (2).

 

So, I'm trying to figure this out Plaintiff sent me a copy of the Motion for Telephonic Testimony dated May 3rd, I got it in the mail May 5th. The proposed order was granted and issued on May 4. I got these documents in the mail May 7th. I wonder what date did the plaintiff filed the motion in the court. The Plaintiff should be able to receive the Objection Letter on Monday, if we start counting May 3-9 it is 6 days. It's still within the time frame that I should be able to object right? What should I do now? What paperwork should I file to consider my objection to the order?  I really need your suggestions and inputs. This is so stressful I am a t lost.

 

Thank you in advance.

 

[BV80]

@laradee23

If you can show when you received a copy of the motion, you may need to file a motion to vacate the order along with an opposition to the motion.

Does the envelope which contained the motion show when it was mailed?  Also, if your rules require a certificate of service with motions, check the court file to see when they claim they mailed the motion.

Hopefully, @nascar and @shellieh98 can help.

[CCRP626]

@laradee23 Nothing unusual. It's automatically approved unless you object. If no response is filed or objection is made, the motion may be deemed confessed.

Some objections such as credibility and lack of ability to cross examine you'd have would be after making sure which court rules to reference. Did they include with their motion (A) The reason(s) for allowing such testimony. (B) A detailed description of all testimony which is proposed to be taken by telephone or other medium of communication. (C) Copies of all documents or reports which will be used or referred to in such testimony.

COLORADO RULES OF CIVIL PROCEDURE C.R.C.P. 43

COLORADO RULES OF COUNTY COURT CIVIL PROCEDURE C.R.C.P. 343

[laradee23]

9 hours ago, CCRP626 said:

@laradee23 Nothing unusual. It's automatically approved unless you object. If no response is filed or objection is made, the motion may be deemed confessed.

Some objections such as credibility and lack of ability to cross examine you'd have would be after making sure which court rules to reference. Did they include with their motion (A) The reason(s) for allowing such testimony. (B) A detailed description of all testimony which is proposed to be taken by telephone or other medium of communication. (C) Copies of all documents or reports which will be used or referred to in such testimony.

COLORADO RULES OF CIVIL PROCEDURE C.R.C.P. 43

COLORADO RULES OF COUNTY COURT CIVIL PROCEDURE C.R.C.P. 343

 

Yes, they included 3 reasons in their motion; 

This is what they said in the motion;

The Plaintiff, by it’s attorneys, JDB, pursuant to CRCP 343(h), request an order permitting its witness to testify by telephone at the trial of this matter scheduled for May xx, 2016 and shows the court as follows;

1.The cost of having the witness appear in person would prejudice both sides unnecessarily by significantly increasing the amount of the judgment in the event the plaintiff prevails. Further, the nature of the testimony, as set forth below, is not such as would raise credibility issues requiring the court to observe the witness in person.

2.The identity of the witness is as follows;

                                  Jane Doe or associate for Webcollex
                                  Addresss and phone number

3. The witness will identify the business records of the plaintiff and testify as follows;
             
              a. As to the plaintiff’s acquisition and ownership of the account at issue
              b. That the original account records were made at or near the times of the transactions described by, or from 
                  information transmitted from, a person with knowledge of the matters recorded.
              c. That the original account records were kept in the regular course of the regularly conducted business activities of
                 the plaintiff’s assignor, according the the regular practices of the plaintiff’s assignor’s business,
              d.That the records are received and maintained by the plaintiff are sufficiently reliable to warrant admission under
                 CRE 807,
              e. As t the substantive information recorded, including calculation of the damages sought in this matter, the terms of
                  the credit agreement, charges and credits recorded, events of default and the regular practices  of the plaintiff in
                  regard thereto;
               f. As to any other information necessary to explain or clarify any testimony, the contents of any exhibit, or as
                  necessary for rebuttal.

4.   The cost of the testimony will be born by the plaintiff.
5.   Copies of the records described herein are tendered herewith.
           a.  Credit Card Application ( from the OC ) 

            b. Billing statement ( from the OC )
WHEREFORE the Plaintiff requests an order permitting its witness to testify by telephonic at trial of this matter.

Dated May 3, 2016.

 

9 hours ago, BV80 said:

@laradee23

If you can show when you received a copy of the motion, you may need to file a motion to vacate the order along with an opposition to the motion.

Does the envelope which contained the motion show when it was mailed?  Also, if your rules require a certificate of service with motions, check the court file to see when they claim they mailed the motion.

Hopefully, @nascar and @shellieh98 can help.

I'm going to check the court tomorrow to find out the date when they filed the motion. The copy I received from the Plaintiff was dated May 3, 2016. I don't have the envelope which contained the document anymore but I know for a fact that if they sent the document in the mail on that same day it will take at least 3 days (first class mail) to receive it especially when the mail is coming from a different city like Denver. But when it is mailed within the same city where there is a USPS processing plant you will receive first class mail the next day.

[CCRP626]

They aren't the original creditor so it's hearsay, doesn't meet business records exception, so there goes credibility and trustworthiness. They seem to know this and used 807- residual exception which provides a detour around the usual 803 (6) 902 (11) objection you'll want to counter. Go over the rules of evidence which also lists caselaw you can use. Some objections that come to mind but also use 803 (6) and 902 (11):

902 (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
902 (11) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

Best Evidence Rule- 1002

When did the witness ever work at the original creditor and if so in what capacity?

 

C.R.C.P. 343 also gives you a checklist to counter-

(3) Determination. The court shall determine whether in the interest of justice absentee testimony may be allowed. The facts to be considered by the court in determining whether to permit absentee testimony shall include but not be limited to the following:

(A) Whether there is a statutory right to absentee testimony.

(B) The cost savings to the parties of having absentee testimony versus the cost of the witness appearing in person.

(C) The availability of appropriate equipment at the court to permit the presentation of absentee testimony.

(D) The availability of the witness to appear personally in court.

(E) The relative importance of the issue or issues for which the witness is offered to testify.

(F) If credibility of the witness is an issue.

(G) Whether the case is to be tried to the court or to a jury.

(H) Whether the presentation of absentee testimony would inhibit the ability to cross examine the witness.
 

[BV80]

@laradee23

Has the JDB provided an affidavit from the OC confirming that your account was included in the sale between the OC and JDB?

[shellieh98]

When is your trial? 

What evidence did they send you? Above you said they sent statements, but we need to know everything they sent you.

did they send an affidavit from someone stating they have knowledge of the business records?

Is this the original creditor for cabelas, or was this debt sold to a 3rd party?

did you file the objection to the tele witness?

for 1, they have to give you the name of the witness, not just "an employee", but actual name.  did they send you a packet of evidence they called disclosure? 

timing is of the essence if your trial is soon, you need to write a motion in limine and file it before court, or on the day of trial with objections, but I need to know what evidence they have to help you.

[laradee23]

On ‎5‎/‎13‎/‎2016 at 8:22 AM, shellieh98 said:

When is your trial?  Trial is on  May 23

What evidence did they send you? Above you said they sent statements, but we need to know everything they sent you. They only sent me a copy of the OC (Cabela's) bill of statement and the Credit Card Agreement with my signature on it and that's all.

did they send an affidavit from someone stating they have knowledge of the business records? No affidavit nor bill of sale.

Is this the original creditor for cabelas, or was this debt sold to a 3rd party? Original Creditor was Cabela's, Plaintiff is Webcollex LLC (Collection Agency) the attorneys working for the plaintiff is Machol

did you file the objection to the tele witness? Yes, I filed objection but was denied. I guess because the judge already granted the order in favor of the plaintiff before I had a chance to send my objection.

for 1, they have to give you the name of the witness, not just "an employee", but actual name.  did they send you a packet of evidence they called disclosure?  They give me a name of an employee but the also put "or webcollex associate without a name.

timing is of the essence if your trial is soon, you need to write a motion in limine and file it before court, or on the day of trial with objections, but I need to know what evidence they have to help you.

Thank for you response, I was so busy that I havent check this site. Hope to hear from you soon. I would appreciate if you could help me more about this.

 

 

[CCRP626]

Your trial is Monday so not much time. Here's a cheat cheat for objections, especially study the last page. If this witness did not ever work for the original creditor as a custodian of records- Objection Hearsay. They must have provided all the documents they intend to introduce as evidence. Nothing that you see first time Monday.

http://denbar.org/repository/Inside_Bar/TrustEstate/Trial_Procedure/CRESummaryTrialGuide.pdf

803 (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

RULE 602 Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses

901 (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

[laradee23]

Update;

I lost in court, and judge ordered me to pay plaintiff. I must admit I wasn't well prepared and maybe did not do my very best but I am thankful for all the information you shared. The attorney for plaintiff was an older attorney and I think he is very experienced because when I heard the judge called his name I recognized the attorney's name who happened to have a  law office here in town. When the judge called me to the stand, the attorney presented all these documents in a folder which was half an inch thick which contained "Bill of Sale and Assignment of Assets" which is only a couple of pages and the rest of the documents are copies from the original creditor " Cabela's". I was so shock because I never received any copies of those documents except the copy of the account from Cabela's. I should have asked for additional documents from plaintiff as soon as I got their motion for telephonic witness.  They also called the witness by telephone who was an employee of Webcollex. When the attorney presented the BoS in front of me  I objected those documents as hearsay but still the judge over ruled everything to I objected and entered those documents as evidence. I was so nervous during the trial, maybe I didn't do it right and maybe the timing for my objections were not right. Or maybe just because I was a pro se and the attorney was an experienced attorney who was well known for his practice in the valley the judge favored the other side. So, my question is can I appeal? Will it be worth it since I have to put an appeal bond which is the amount equal to the judgment in a money demand case. If I don't appeal will they garnish my wages or will they allow me to just pay every month? I would appreciate your opinion and information. Thank You.

[CCRP626]

@shellieh98

@laradee23 if they presented evidence at trial you've never seen before and piles of it, that seems like a violation. Nothing from the original creditor authenticating it. Witness is a third party employee. Did the bill of sale indicate your account?