gradys

Sued by Cavalry SPV I, LLC in California

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8 hours ago, gradys said:

lso, I have received and Affidavit from a Citibank employee that has been notarized.  They are in St. Louis, and there is no address for me to subpoena them.  Is this just an affidavit, but not an affidavit in lieu of testimony? 

i believe this is just an affidavit, not a ccp98. a ccp98 would be titled something like: Plaintiff's Declaration in Lieu of Personal Testimony. 

was this affidavit included in Plaintiffs their response to your CCP 96 request?

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Cavalry just submitted docs for the "Mandatory Settlement Conference."   I didn't even know it was scheduled.  It didn't say anything about it on docit of upcoming events.  Is this common?  What happens if I miss it?

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20 minutes ago, gradys said:

@sadinca The affidavit was included in response to my discovery request.

Affidavits are inadmissible at trial, IF objected to: 

i would include an objection to the affidavit in your Trial Brief and prepare an Objection the Affidavit. 

also the affidavit does not comply with California Civil Procedure 2015.5

 

example:

 

AFFIDAVIT OF SALE – must object or you waive right.

 

“OBJECTION Your Honor, Affidavit of Sale is HEARSAY, See, Elkins v. Superior court and cases cited therein), it also LACKS FOUNDATION, and Declarant LACKS PERSONAL KNOWLEDGE”

 

·        Hearsay (Evidence Code § 1200)

·        No Foundation (Evidence Code § 1271)

§  Sale is Hearsay.

§  Declarant not familiar with CHASE business processes

o   Not made in the regular course of business (Evidence Code § 1271a)

o   Not made at or near the time of the event. (Evidence Code § 1271b)

§  Sale between Chase and Hilco not Equable

§  Agreement made Nov 20, 2009 but notorized in 2012

§  Writing made for purpose of lititgation

o   Witness not qualified as Custodian of Records (Evidence Code § 1271c)

§  Declarant can’t testify to the mode of preparation

§  Declarant not familiar with how CHASE prepared BOS and Affidavit of Sale

o   Source of writing untrustworthy (Evidence Code § 1271d)

o   Method of preparation untrustworthy (Evidence Code § 1271d)

 

·        Does not comply with CCP 2015.5

o   No CHASE representative states:

     “I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct”.  Date and Signed

 

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I just received a Plaintiff's "Mandatory Settlement Conference Statement" and a request to be excused from personal attendance at "Mandatory Settlement Conference."  I do not have any settlement conference scheduled.  
I believe that this is some mumbo-jumbo way that they get around from sending a CCP 98.   Trial is on November 16th and they haven't sent one yet.  Should I send Objections to these?  I can include redacted letters if everyone wants to see.
Please advise.  Thanks.

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Check the online docket to see if the Court has calendared a settlement conference.  You should also check the local rules to see if the Court sets one in EVERY case.

 

Also, did plaintiff list a date, time, and Dept on the caption page?

 

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Redacted screenshot of my trial info. #27 and #26 is what I'm worried about. No mandatory settlement conference, it has to be court ordered.  Thanks. 

screenshot.thumb.jpg.a89ec710e56cf1898f761796e983bd40.jpg

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i would bet that the "Mandatory Settlement Conference" is the same as "Trial Readiness Conference" scheduled for 11/9

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On the front page of the Mandatory Settlement Conference Statement, did they list a date, time and Dept??

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@sadinca I think you are correct.  It is weird to me that they send a "Case management Statement" to say that they want to be excused from "Personal Attendance."   I wish I could do the same.  These guys are playing loose and fast with the rules.  They are also trying to make some rules as they go.

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The current status:  I have not received a CCP98 from Calvary.  They did answer my CCP96, and listed that they would use an employee as a witness.  And listed that they would use their hearsay documents (statements, bill of sale, etc.). 
TRC is on 11/9/2017.  Calvary as put in a request to be excused from attending the TRC. 
Court rules say that attendance is required by both parties.  
I haven't finished my trial brief yet.  I planned on submitting it after the TRC. 
If I go to the TRC and they don't show up, should I request for a dismissal?

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Attached is their "PLAINTIFF CAVALRY SPV I, LLC’S MANDATORY SETTLEMENT CONFERENCE STATEMENT"
& "REQUEST TO BE EXCUSED FROM PERSONAL ATTENDANCE AT MANDATORY SETTLEMENT CONFERENCE"

Should I object to any of this?  I'm unsure of what to do.

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On the front of their Statement, they list November 9 at 9:30 in Dept C-66 as the date, time, and Dept of the Settlement Conference.  So THEY think there is one scheduled on that date.

 

In the local rules for trial readiness conference, do they say that there will be a settlement conference?

 

In any event, you should attend.  If you want to do a brief statement of your own, you should point out that ALL issues are disputed.  THey say "none" but when you file a general denial, that puts everything in the complaint at issue.  And you dispute the assignment and the amount owed.

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On 11/4/2017 at 1:55 AM, gradys said:

TRC is on 11/9/2017.  Calvary as put in a request to be excused from attending the TRC. 
Court rules say that attendance is required by both parties.  
 

I think they are requesting to be excused from attending personally and will do a  phone appearance instead. 

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@calawyer  When I filled out my CMC statement I didn't check the box to request a settlement conference, so there should be one that I know of.  Here is what the rules states for TRC and Settlement conferences:

Rule 2.1.15
Trial Readiness Conference

A trial readiness conference will generally be scheduled four weeks before the trial date. The parties must meet prior to the scheduled hearing and attempt to resolve the case, or, if that is not possible, limit issues for trial. If the case is not settled in its entirety, all parties must prepare and sign a joint trial readiness conference report in the format set forth in the joint trial readiness conference report available on the Civil Forms area of the court’s website at http://www.sdcourt.ca.gov. Separate reports will not be accepted. Failure to disclose and identify all trial exhibits and witnesses intended to be called at trial and all other items required by the report may, in the court's discretion, result in exclusion or restriction of use at trial. The completed report must be presented to the judge at the scheduled conference. No part of the joint trial readiness conference report is to be received into evidence against any party in later proceedings. Parties completely familiar with the case and possessing authority to enter into stipulations must be present at the scheduled hearing. Orders made will be binding on the parties and will not be subject to reconsideration due to an attorney's unfamiliarity with the case at the time of the hearing. The parties must be prepared to discuss any unusual evidentiary or legal issues anticipated during the trial and all remaining matters believed by any party to be appropriate for stipulation.
During the trial readiness conference, the court will review with counsel and sign or issue the advance trial review order setting forth specific trial preparation requirements of the trial department.
(Adopted 1/1/1998; Rev. 1/1/2000; Renum. 7/1/2001; Renum. 1/1/2006; Rev. 1/1/2009; Rev. 1/1/2016)

Rules for Settlement Conference:
Rule 2.2.1
Voluntary Settlement Conferences

Settlement conferences may be requested if the parties represent that:
A. Settlement negotiations between the parties have been pursued, demands and offers have been exchanged, and resolution has failed.
B. A judicially supervised settlement conference presents a substantial opportunity for settlement;
and
C. The case has developed to a point where all parties are legally and factually prepared to present the issues for settlement consideration and further discovery for settlement purposes is not required. If a request for a voluntary settlement conference has been accepted by the court and a settlement  conference has been scheduled, all parties must comply with the provisions of rules 2.2.2, 2.2.3, and 2.2.4 unless otherwise ordered.
(Adopted 1/1/1998; Rev. 1/1/2000; Renum. 7/1/2001; Renum. 1/1/2006; Rev. 1/1/2012; Rev. 1/1/2013)

Rule 2.2.2
Mandatory Appearance

A. The provisions of rules 2.2.2, 2.2.3, and 2.2.4 apply to both voluntary and mandatory settlement
conferences unless otherwise ordered.
B. All parties, attorneys of record, and others whose authority is required to fully settle the case (including but not limited to insurance adjusters and right-of-way agents) must attend the settlement conference in person unless excused or permitted to attend by telephone as provided in section D below. If a party is not a natural person, a representative of that party with authority to resolve the dispute or, in the case of a governmental entity that requires an agreement to be approved by an elected official or a legislative body, a representative with authority to recommend such agreement, must attend the settlement conference in person, unless excused or permitted to attend by telephone as provided below.
C. If any party is insured under a policy of insurance that provides or may provide coverage for a claim that is a subject of this action, a representative of the insurer with authority to settle or recommend settlement of the claim must attend the settlement conference in person, unless excused or permitted to attend by telephone as provided in section D below. The party must notify each insurance carrier of the date, time and place of the settlement conference and of the carrier's duty to attend with full settlement authority.
D. A party or participant may submit to the court a written request to be excused from personal attendance at a settlement conference provided that the party or participant will be available by telephone for the duration of the settlement conference. Such requests must be served on all parties at least five court days prior to the settlement conference. If the settlement conference is to be heard by a temporary judge, such requests must be submitted to the independent calendar department to which the case is assigned.
E. If a party is excused from personal attendance at the settlement conference, counsel appearing on behalf of the party must be completely familiar with the case and must have authority to make an initial demand or counteroffer in a specific amount.
F. If a party or participant fails to appear, is not fully prepared, or fails to participate in good faith, the court may continue the hearing and/or impose sanctions against the offending party or counsel. If the settlement conference proceeds as scheduled, the orders made will not be subject to reconsideration due to counsel's unfamiliarity with the case at the time of the hearing.
(Adopted 1/1/1998; Rev. 1/1/2000; Renum. 7/1/2001; Rev. 1/1/2005; Renum. 1/1/2006; Rev. 1/1/2013)

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I don't see anything about a settlement conference.  Maybe Plaintiff messed up.  But you have to go anyway for the trial readiness conference so that rule of court is good to know.  You should check out the form they want you to fill out and post any questions you may have.

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Hi Gradys, I am very curious of how this works out for you. I am in the same exact situation. I am being sued by Cavalry thru a Law Firm out of Fresno. It is probably the same one as you. Have you looked at the California Fair Debt Buying Practices? There is a lot of good info that "Debt Buyers" have to follow.

 

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@USCTROY1 Is it Qardot Cuall?  (first letters switched up just in case they are monitoring). :rolleyes:

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