FiredupinCA

Cavalry/Winn Lawsuit in California

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You still need to wait a couple of days.  Plaintiff can place it in the mailbox on the 35th day.  That means you will receive it in a couple of days if they served it on the last day. 

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Thanks for the info calawyer.  I was a bit confused with the 30 days and 5 days mailing time thinking the 5 days covered the mailing both ways, so thank you for clearing that up for me.

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I got the production of docs info back, included in the package are the same statements they have sent twice previously, a bill of sale & assignment and an affidavit.

Their response to my request of POD is as follows:

Please take notice that the following response is made subject to the fact that investigation and discovery are ongoing, and consequently, the parties may learn additional fats presently unknown, or may locate additional facts presently unknown, or may locate additional docs presently not identified, which may alter or invalidate this response.  Consequently, this response is made without prejudice to the right to produce at any further time, including the time of trial, subsequently discovered material facts & docs.  Plaintiff reserves the right to amend or supplement these responses should this become necessary or appropriate.

Please note further that this response is made solely for the purpose of, and in relation to, the above entitled action.  Except for admission explicitly made herein, no admission of any nature whatsoever is to be implied or inferred.  The fact that this response may contain answers of admission to certain requests of questions should not be taken as an admission or concession of the existence of any facts set forth of assumed by such requests or questions, or that such response constitutes evidence of any such fact set forth or assume.

Please note further that a request of question that was propounded to be continuing is objected to as oppressive, burdensome, and not in proper compliance with the California Code of Civil Procedure and will not be regarded as continuing in nature.  The fact that such purportedly continuing request or question is responded to herein is not a waiver of such objection.

Please note further that plaintiff objects to each and every request to the extent that it calls for a response evidencing or embodying confidential communications between defendant, or any officer, director, or employee of plaintiff, and plaintiff's attorney, on the grounds that such communications are protected by the attorney-client privilege.

Please not further that plaintiff objects to each and every request to the extent that it calls for a response evidencing or embodying the work product of plaintiff's attorneys.

REQUEST NUMBER 1:  All docs relating to or constituting any agreement between defendant and Citi bearing defendant's signature.

RESPONSE TO REQUEST NUMBER 1:  Plaintiff hereby incorporates the general objections set forth above.  Plaintiff objects to this request to the extent that it fails to properly limit the time period and subject matter to the claim and/or issues raised in this litigation, and makes the request overbroad and unduly burdensome in that it seeks production of docs that are beyond the scope of this litigation.  Plaintiff objects to this request to the extent that it is irrelevant as Account Stated does not require a signed contract.  Subject to and without waiving the foregoing preliminary response and objections, Plaintiff responds as follows:  Therefore, Plaintiff will not be responding at this time.

REQUEST NUMBER 2:  All docs relating to or constituting any assignment to plaintiff of the alleged account referred to in the complaint.

RESPONSE TO REQUEST NUMBER 2:  Plaintiff hereby incorporates the general objections set forth above.  Subject to and without waiving the foregoing preliminary response and objections, Plaintiff responds as follows:  Attached hereto and incorporated herein as Exhibit '1' are true and correct copies of the Bill of Sale and Assignment, and the Schedule A.  Attached hereto and incorporated herein as Exhibit '2' is a true and correct copy of the Affidavit.

REQUEST NUMBER 3:  All docs constituting statements of alleged account number xxxx showing all payments and credits from inception until present.

RESPONSE TO REQUEST NUMBER 3:  Plaintiff hereby incorporates the general objections set forth above.  Plaintiff objects to this request to the extent that it is irrelevant as a a complete statement is not required for Account Stated.  Subject to and without waiving the foregoing preliminary response and objections, Plaintiff responds as follows:  Attached hereto and incorporated herein as Exhibit '3' are true and correct copies of the billing statements dated (lists dates of statements provided)

EXHIBIT 1:  Bill of Sale and Assignment (on the top it has Contract ID and Document ID #'s)

The bill of sale and assignment, dated Aug 20, 2015, is by Citi, a national banking association organized under the laws of the US, located at (lists address) (the "Bank") to Cavalry SPV ("Buyer") organized under the laws of the State of Delaware, with its headquarters/principal place of business at (lists address)

For value received and subject to the terms and conditions of the Purchase and Sale Agreement dated Aug 18, 2015, between Buyer and the Bank (the "Agreement"), the Bank does hereby transfer, sell, assign, convey, grant, bargain, set over and deliver to Buyer, and to Buyer's successors and assigns, the Accounts described in Exhibit 1 and the final electronic file. 

Citibank, N.A.

It has one person's name, signature and title.  The page included along with it appears to be cut and pasted from an Excel spreadsheet, has the purchase date, account number, contract date, last pay date, creditor, initial balance and maker name.

EXHIBIT 2:  AFFIDAVIT

State of Missouri, County of Platte

Account Holder:  My name, lists last 4 of the account number and last 4 of my SS#.

The undersigned (lists name) being duly sworn, states and deposes as follows:

1.  I am an employee of Citibank, N.A. a national bank located in Sioux Falls, South Dakota, and I am authorized to make this Affidavit.  My job titel is Document Control Officer.  My job responsibilities include reviewing and obtaining account info in Citi's records as it relates to credit card accounts owned or previously owned by Citi.  This includes accounts previously owned by Citi (South Dakota) N.A., which merged into Citibank in or about July 2011.  The statements set forth in this affidavit are true and correct to the best of my knowledge, information and believe based on either personal knowledge or review of the business records of Citi.

2.  My duties include having knowledge of, and access to, business records relating to the Citi account referenced above.  These records are kept by Citi in the regular course of business and it was in the regular course of business of Biti for an employee or representative with personal knowledge of the act, even, condition, or opinion recorded to make memorandum or records or to transmit info thereof to be included in such memorandum or records; and that the records were made at or near the time of the act and/or event recorded or reasonably soon thereafter.

3.  Citi's records reflect that a credit account ending in account number XXXX (the "Account") was sold to Cavalry on or about Aug 20, 2015.  At the time the Account was sold, Citi prepared and forwarded to Cavalry, a spreadsheet reflecting Account info as of the sale dated based on Citi's records, including, among other things, the Account number, Account balance, the date of the last payment, the Account holder's name, and Social Security number (the "Account Information").  The Account Information reflects that the Account was opened on (lists date).  The Account Information reflects that the Account holder's name at time of the sale was (my name) with a SS # ending XXXX.

4.  The Account Information indicates that, as of the date the Account was sold, there was due and payable on the Account (lists amount due)

5.  The Account Information reflects that, as of the date the Account was sold, the last Account payment received by City, posted to the Account on (date listed)

I solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true.  Executed on May 17, 2016

It is signed and notarized.

 

I am under the impression that debts are typically sold after 18 months, which would mean Citi sold it much before the Aug date listed as Cavalry purchasing the debt from Citi.  I'm not positive, but I believe someone else originally purchased the debt from Citi, so I would assume Cavalry purchased it from someone other than Citi, so that info seems inaccurate to me. 

I also think it's strange that the Affidavit was executed in May and in Missouri when Citi is located in South Dakota and Cavalry is located in NY.  Wouldn't the so called Citi Document Control Officer employee work/live in the same place Citi is located?  Maybe I'm reading too much into it, but it doesn't make sense to me, especially if another company purchased the debt prior to Cavalry purchasing it that the Affidavit lists the sale between Citi and Cavalry and yet the affidavit wasn't dated until May of this year when the sale supposedly transpired last Aug.

The paperwork did not include a proof of service, should it?

 


 

 

 

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Also, is it possible for me to do all the legal leg work up until the point of the trial and then hire a lawyer to represent me in court?

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15 minutes ago, FiredupinCA said:

REQUEST NUMBER 1:  All docs relating to or constituting any agreement between defendant and Citi bearing defendant's signature.

RESPONSE TO REQUEST NUMBER 1:  Plaintiff hereby incorporates the general objections set forth above.  Plaintiff objects to this request to the extent that it fails to properly limit the time period and subject matter to the claim and/or issues raised in this litigation, and makes the request overbroad and unduly burdensome in that it seeks production of docs that are beyond the scope of this litigation.  Plaintiff objects to this request to the extent that it is irrelevant as Account Stated does not require a signed contract.  Subject to and without waiving the foregoing preliminary response and objections, Plaintiff responds as follows:  Therefore, Plaintiff will not be responding at this time.

Is account stated the only cause of action??

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is the bogus affidavit signed and notarized under penalty of perjury under the state of california?

 

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As part of the main part of the form it says, "I solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true.  That's where the supposed Citi employee signed and dated it.

The notarized part at the bottom lists the date notarized and says, "before the undersigned Notary Public in and for the state of Missouri, personally appeared (lists Citi's employees name) known to be me to be the person who executed the Affidavit on behalf of Citi and acknowledged to me that he executed the same for the purposes therein stated.

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I know how nerve wrecking it can feel when you receive the above "evidence" even an affidavit like the one you mention, however, that affidavit is useless, affidavits are not admissible at trial, and most likely, they wont be using this affidavit as "evidence anyway". the only affidavit you should care about is the CCP98. 

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Thanks for the reassurance sadinca, I appreciate it!  I would have been much more stressed about it all had I not read so many other threads and seen much of the same objections to the production of docs from others. 

Should the affidavit been executed in CA?

What is my next course of action?

I'm guessing your baby girl has arrived at this point (or you have a very miserable very pregnant wife on your hands, lol) I'm sure she's absolutely perfect and you're head over heals in love, hopefully she's letting you get some sleep and not keeping you both up at night.  Congrat's!

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30 minutes ago, FiredupinCA said:

Also, is it possible for me to do all the legal leg work up until the point of the trial and then hire a lawyer to represent me in court?

yes, during my wife's case she received a letter approximately 45 days from trial from a consumer attorney near our area who offered to represent us. it should be much cheaper to hire an attorney near the last states since you had already done most of the leg work. 

however, i would be very careful on who you chose to represent you. I have heard stories from CIC members who retained lawyers to represent them during trial and the lawyer, didnt even bother objecting to any of the evidence. needless to say, defendant lose the case. 

Also, while helping a coworker with a lawsuit for a car loan deficiency, after a repo. i read the comments of a lawyers that (not from this website)that flat out stated that "the Notice of Right to Reinstate Contract and Redeem Motor Venicle/Notice of Intent to Sell Property" is simply a "courtesy letter from the bank." as if the bank is just trying to be nice sending you this courtesy letter.  That is a bold LIE. banks are obliged to mail those letters out if they intent to recover any vehicle deficiency, and there are plenty of caselaws supporting it. 

sorry about that rant. just be careful when selecting a lawyer. Calawyer, Ian Chowdhury, (and another lawyer that Calawyer has mentions by name, but for the live of mine, i cant remember it or find it) is a perfect sample that there are some extremely capable and good intentioned lawyers, but others, youd need to watch out for. maybe you can ask how they intent to fight the case for you. and you can evaluate their answers with what you have read and know. 

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43 minutes ago, FiredupinCA said:

Thanks for the reassurance sadinca, I appreciate it!  I would have been much more stressed about it all had I not read so many other threads and seen much of the same objections to the production of docs from others. 

Should the affidavit been executed in CA?

What is my next course of action?

I'm guessing your baby girl has arrived at this point (or you have a very miserable very pregnant wife on your hands, lol) I'm sure she's absolutely perfect and you're head over heals in love, hopefully she's letting you get some sleep and not keeping you both up at night.  Congrat's!

Affidavits are not admissible at trials, IF OBJECTED TO, not even if signed and executed under penalty of perjury of the state of California. for MSJ's is a different story. 

the next thing to do, would be to write a meet and confer letter. but i think they have provided all they have. do you have a trial set yet?

 

Thank you for remembering. yes, she was born On june 23, so she is just over a month old.  and i do think she is perfect and beautiful. lol. 

 

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I'm still learning the lingo, but don't think I've seen this one yet, what is MSJ's?

Yes, a trial is set for Jan.  It's as bit of a relief to know I can hire a lawyer to represent me.  Thanks for the advice regarding finding one.  We do have one in town that supposedly fights a lot of the JDB's and wins, but that's him telling me so, although I do hear he has a good reputation in town.  He is who I consulted with previously and who did my original response paperwork.  He was alright, but I left there feeling confused as he didn't explain things to me, why/how we were denying the suit, what to expect going forward etc.  So I'm a bit unsure about that, but I guess I will figure that out as I get closer to the trial date.

Should I go ahead and do the meet and confer anyhow just to see how they respond and what all else they might provide, if nothing else, just to give them more to do?  What is the purpose of a meet and confer exactly?  Would I basically be objecting (not in the legal term) to what they have provided me?  Would they really call because I would have no idea what to say if they did, but more than likely I wouldn't even answer the phone. 

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a Motion for Summary Judgment. is a motion from either party trying to persuade the judge that in the current case there is no real dispute as to what happened, that the evidence likely to be put forward is such that no reasonable factfinder could disagree with the moving party and is attempting to avoid the time and expense of a trial. 

you have some time to read and learn. if you in the future want to hire a lawyer, you may want to ask precise questions as to how does he/she intent to fight the case? how would you discredit ccp98 declaration? how would you argue or object against all evidence. bla bla bla. 

the purpose of a meet and confer letter, is a prerequisite to a motion to compel further evidence. it is required by California Civil Procedure. it is to show the judge that you made reasonable and good faith attempts to resolve the dispute outside of court. however, we sometimes encourage CIC pro per to write meet and confer letter, even if they do not intent to motion to compel because it sends a message to plaintiff, even though you are defending in pro per, you are not unsophisticated as the rest of pro per that have no idea on how to defend themselves properly. that you know their objections are baseless, and you are calling them out on it. sometimes it helps persuade a JDB to release and catch an easier pray instead, sometimes it doesnt. as ASTMedic states on his threat, you can also opt to go off the radar until about 45 days from trial, when you will pounce and demand CCP96, issue subpoenas, file objections to declarations, and to each evidence, trial briefs. etc. 

there are different ways to win. 

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Happy Friday!

My judge was supposed to be ruling on several collections trials today, but unfortunately after being there 4 hrs I was informed the parties didn't show.  Anyhow, I did learn that my judge is transferring elsewhere and beginning in January a new judge will be presiding over the cases.  My trial is in January and I am not finding the new judge on the court calendar at all.  He's not new and I see his name and Dept # on the court house listing, however, when I look at the calendar under his Dept, nothing comes up - not now, or any month through the end of the year or even in Jan.  I obviously didn't look at every day, but looked at several different days throughout each month and nothing comes up for his dept.  Do you know what I could be doing wrong in my search? 

Also, I had previously made the decision to wait until the 45 days before court before doing anything else.  Unfortunately my mind won't rest and I thought perhaps it would be best (if only for my sanity) to proceed with the next steps, which I believe are meet to confer and MTC.  After being in court today I'm not so sure of that decision.  My judge informed a pair of lawyers for a CMC that were talking about incomplete discovery and needing more time that she deplores discovery motions, finds them unnecessary and a waste of the courts time, instead she advised them to mediate.  Based off of her response to them I figured I should stick with my original decision and not do anything until closer to trial.  However, once I found out there will be a new judge I'm not sure how to proceed.  I don't want to waste my time, your time or the courts time if she's just going to direct us to mediate to avoid trial if I were to continue on with the next steps, but I would also like to end this all as soon as possible. 

I'm unsure now how to proceed and confused as to how a new judge changes things in my case with filing motions now (that the current judge apparently doesn't like) and also worried that I can't find the new judges schedule, won't be able to see him in action and get a feel for him.  Any advice or suggestions, as always would be greatly appreciated!  Thanks

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A lot of CA defendants have gone thru their cases without going as far as a pursuing a Motion To Compel. I think you would be okay if you didn't go that route and instead focused on learning your objections, working on the trial brief, etc. I would think that researching & writing up the Motion to Compel would be time consuming.

You can still do a meet and confer and pursue less formal attempts to get a proper response to your discovery requests. Winn will most assuredly continue to object to & deny your requests, so down the line when you write up your trial brief you can write about that in detail ;)

Regarding your new judge, have you called a clerk to ask about his schedule? Google might get you some insight as well - I found a few good Q&As featuring the judge in my trial thru Google (from a publication called the ABTL Report), gave me a little insight into how he ran things.

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Thanks for the info Ryanex.

What exactly is a meet and confer for?  I'm under the impression it's obviously to try to meet and straighten out the issues at hand, however, I thought it was mainly something that was required to do prior to completing a motion to compel.  I know that Winn will not follow through entirely on the meet & confer and will simply provide all they've provided in the past.  By what you said, I'm guessing it's something to do to kind of show due diligence on my side as far as trying to work it out and them basically being negligent with the info they provide, is that the purpose?  Also, on the meet and confers I've seen thus far, the people always say to call them and leave a phone number.  Do they really call?  I wouldn't even know what to say if they did.

I have read a few things on my future judge, but have been really busy (it's been a hell of a week) so haven't been able to call the clerk yet, but thanks for the advice.   I am happy to know he takes great heart in the briefs and paperwork submitted to court and although he rules from the bench has done his homework and is up on the details of the case prior to court.  As opposed to the current judge I have who has a reputation of not putting much thought into the briefs & paperwork, doesn't know details about the trial ahead of time and rules solely from the bench with the evidence provided.  I'll check out the ABTL report, thanks again!

 

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Ja meet and confer is nothing more thn an informal letter to the attorney telling him whatever it is you want to say.  Like why his answers to your discovery questions were inadequate, and to respond.  If you plan on filing a compel motion, you would give him say 10 days, and say you will file the compel motion if they don't comply.

they will ignore it. You would have to file the compel motion to show you mean business.  

You have a choice. ASTmedic took the easier way to win, his thread is at the top.  Homelessinca fought with every thing you can do, and won. Read both threads, and it will help guide you.

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Thanks Shellieh98.  I have read both threads mentioned and planned on proceeding with the M&C, MTC etc until the judge said she thought discovery motions were a waste of time, so I decided against that.  I'm just confused on whether or not a M&C should be done even if I don't plan on filing a MTC?

Ryanex, I have not been able to locate the new judge's clerk's contact info, any advice on how I do that?

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My case in unlimited and many of the things I've read pertaining to different CCP's indicate they are for limited cases and I do not find much info on CCP's for unlimited cases.  I'm pretty positive I've read more than just this one but just ran into the one below again so figured I'd ask while it was fresh in my mind.  Do unlimited cases have their own CCP #'s that correspond to the unlimited or do I not have those same rights?  If I don't have those rights, how would I proceed because everything I've seen has the CCP below followed by their CCP98, me subpoenaing their witness, etc.  If I'm not able to do CCP96 or something else similar, how do I follow through with getting their so called expert witness testimony and evidence tossed when I won't know what they are?

CCP §96(a), Either party may serve a request for disclosure of witnesses who will be called, and documents, photographs, and other evidence that will be offered at trial. . Make the request on the mandatory Judicial Council form, Request for Statement of Witnesses and Evidence—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-015).

 

 

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Looking at my credit report history it shows the OC closed the account in 2012, showing a delinquency for the last time in July 2015.  The JDB bought the debt in Aug 2015 (which is what they've provided) and  starts showing on my credit report in Nov.  I don't believe OC's hold on to debt that long before selling it, wouldn't they have sold it closer to the time they closed it? 

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If you are in unlimited then you will actually have less limitations then limited civil, so you will be OK with anything in those rules.

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