Sued by CACH in California

[Beekeeper]

Hello everyone.  I've been sued by a JDB in California.  I've been lurking.  Thank you for your incredibly helpful advice so far.  Here are my details.

Who is the named plaintiff in the suit?  CACH

What is the name of the law firm handling the suit? Neuheisel

How much are you being sued for? 15K

Who is the original creditor? First Bankcard, NE

How do you know you are being sued? Served

How were you served? In person

Was the service legal as required by your state? Yes

What was your correspondence (if any) with the people suing you before you think you were being sued? Not sure

What state and county do you live in? San Luis Obispo, CA.

When is the last time you paid on this account? October 2015.

What is the SOL on the debt? 4 years

What is the status of your case? Filed response, served BOP, got deficient response, sent M&C, CMC mid-Oct, received their and sent my RFPD, rogs, admissions, trial set for mid-Feb.

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

Did you request debt validation before the suit was filed? No

How long do you have to respond to the suit? Responded timely

What evidence did they send with the summons? Illegible Cardmember Agreement, 2 account statements, unsigned letter from OC on plain paper stating debt had been sold to JDB; affidavit from OC, bill of sale, redacted account list.

Claims are breach, account stated, and money lent.

JDB BOP response: 9 additional statements and second affidavit.  Reserved right to amend BOP response.  Objected insofar as claim is account stated. I sent M&C.

Got a fee waiver. I’m on MediCal and food stamps. Pretty sure I’m judgment proof, so don’t know why they’re bothering…

Any and all advice welcome.  Thanks!!!

 

 

[Beekeeper]

Thought I'd give you an update.  I scoured this site for info on how to prepare discovery responses, and they're ready to go.  Just for fun, I'm sending another BOP meet and confer.  Humble and profound thanks to all of you.  I've been pro se in divorce court in another state (won an appeal recently) , but this is new to me.  Thanks especially to @sadinca and @calawyer.

Questions:

I asked for 2-4 hours for the trial, but kind of got railroaded into agreeing to 1/2-1 at the CMC.  Is that enough time?  If not, what should I do?

Also, according to the docs they provided, it seems I made a payment to OC in one month, and it sold the debt a few weeks later.  Is that relevant in any way?

[calawyer]

I asked for 2-4 hours for the trial, but kind of got railroaded into agreeing to 1/2-1 at the CMC.  Is that enough time?  If not, what should I do?

Don't worry about this.  Plaintiff is going to be taking up most of the time putting on the case in chief.  You are going to be taking pot shots (objecting). and doing a tad of cross-examination.  If the case exceeds the time limit, it will not be your fault.

Also, according to the docs they provided, it seems I made a payment to OC in one month, and it sold the debt a few weeks later.  Is that relevant in any way?

Is the payment accounted for in the amount claimed by plaintiff?  The only other reason I can think that it might be relevant is for Statute of Limitations purposes.  How long after that alleged payment did plaintiff sue?

[Beekeeper]

On 11/4/2016 at 1:28 PM, calawyer said:

Don't worry about this.  Plaintiff is going to be taking up most of the time putting on the case in chief.  You are going to be taking pot shots (objecting). and doing a tad of cross-examination.  If the case exceeds the time limit, it will not be your fault.

Thanks Calawyer! That’s a relief.  I also know a good trial brief goes a long way toward reducing the need for courtroom time, so I’ll definitely spend some quality time on that.

On 11/4/2016 at 1:28 PM, calawyer said:

Is the payment accounted for in the amount claimed by plaintiff? 

Impossible to tell.  There is a final amount but nothing to show how it was calculated.

On 11/4/2016 at 1:28 PM, calawyer said:

The only other reason I can think that it might be relevant is for Statute of Limitations purposes.  How long after that alleged payment did plaintiff sue?

Within a year, so it does fall within the SOL...

[Beekeeper]

Trial is on Valentine's Day which is fast approaching, and I could really use some guidance.  Plaintiff failed to serve a timely CCP96 statement.  It arrived four days late and only after I inquired by email if they'd served me with one--because time was running out, and I needed to prepare.   Their lawyer emailed me later in the day with a CCP96 statement and a letter saying "At the start of this year my office was overhauling various workflow systems regarding receipt and delivery of incoming mail.  Your request was apparently received but I was not made aware that we had received it.  Evidently we had some kinks in the works early in the year unfortunately.  If I had known the Request was received then I would have timely responded to it.  I apologize for the inconvenience and appreciate the opportunity to respond now."  They yanked their CCP98 witness, who I subpoenaed and who was not at the address provided and offered another witness along with a bunch of evidence.  The statute says no late statement is permitted.  @calawyer and other California folks:  How do I proceed?  

[RyanEX]

The CCP 96 statute is pretty clear: they have to respond to your request within the time prescribed by the code or they "will not be permitted" to introduce any evidence or witnesses. I would include that in your trial brief & objection, and, of course, be prepared to object at trial to any evidence. You better believe that if the shoe were on the other foot, and it was you who missed a deadline, they would absolutely pounce on it. Not "being aware" and having "kinks" at the turn of the year are absolutely not valid excuses. I might even write them a letter saying "tough break, but the code is clear and I'll be objecting to anything you try to introduce".

[calawyer]

I am not very clear about all of the dates and facts in your post.  For example, did they serve a CCP 98 declaration before the CCP 96 response or as part of it?  Not sure how they “yanked” the CCP 98 witness.   In any event, I would write them a letter with something like the following (please correct any factual misunderstandings):

 

This responds to your letter explaining Plaintiff's failure to serve a timely response to Defendant's CCP 96 request. 

As you know, Defendant served a request, in a timely manner on ____.  Plaintiff responded, 4 days late.  To make matters worse, defendant had already incurred the expense of attempting to have a subpoena served on Mr. ?Ms. _____, who signed a declaration on Plaintiff’s behalf purportedly pursuant to CCP 98. 

CCP 96 itself makes clear that, “YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW.” (emphasis in original).   While your letter makes reference to unspecified difficulties in your mailroom, these vague assertions are misplaced.  Should Plaintiff wish to file a tardy response, or supplement a previous response, CCP 96(d) is clear that “[n]o additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion”.

Please be advised that Defendant intends to object to any attempt by Plaintiff to call witnesses or submit evidence identified in its untimely response unless ordered by the Court, for good cause, on noticed motion.

[Beekeeper]

2 hours ago, calawyer said:

I am not very clear about all of the dates and facts in your post.  For example, did they serve a CCP 98 declaration before the CCP 96 response or as part of it? 

They served the CCP 98 declaration before the CCP 96, several weeks ago.  My process server tried and failed to serve declarant three times at the address of a local lawyer that was provided.  Earlier this week, they served a Notice of Withdrawal of their CCP 98 declaration.  They tried to swap in another CACH witness, Tom Vigil,  on their tardy CCP96 statement.

 

2 hours ago, calawyer said:

In any event, I would write them a letter with something like the following (please correct any factual misunderstandings):

Thank you.  This is awesome.  Will do.  Do I proceed to file my Trial Brief and Objections too?

[calawyer]

Yes.  You are sending this letter on the chance that Plaintiff has several cases that day and decides to go for the "low-hanging fruit" instead of your case.  If so, they may dismiss before trial.

[Beekeeper]

On 2/5/2017 at 11:38 AM, calawyer said:

You are sending this letter on the chance that Plaintiff has several cases that day and decides to go for the "low-hanging fruit" instead of your case.  If so, they may dismiss before trial.

I sent a letter, and they responded by filing  a noticed motion for an ex parte hearing on Wednesday to allow the late statement.  I'll keep you posted...

[RyanEX]

On 2/6/2017 at 9:18 PM, Beekeeper said:

I sent a letter, and they responded by filing  a noticed motion for an ex parte hearing on Wednesday to allow the late statement.  I'll keep you posted...

Good luck with this tomorrow. Found this thread regarding a late CCP 96 response, maybe there's something useful in there.

[Beekeeper]

I had my day in court a few days ago. It did not go as I'd hoped.

First, some background.  At an ex parte hearing last Thursday, the judge allowed their late CCP96 statement of witnesses and evidence in which they offered the usual suspects--bill of sale with redacted account list, some statements, Cardmember agreement, an affidavit signed six months after the sale, and a CACH witness. 

At trial, the first thing CACH’s rent-a-lawyer did was ask the court if he could present his exhibits as a single exhibit attached to the CCP98 declaration that CACH withdrew when I was unable to subpoena the declarant because she was in Colorado and not California.  It held one document that wasn’t listed on the CCP96 statement.  I was blindsided, didn’t catch it, so it got admitted.

Then he called his CACH witness, who said the original creditor trained him in 2016, so now he can say with assurance that the records they create are genuine and trustworthy.  I asked a few questions, but rent-a-lawyer kept objecting, the judge had cases waiting, and it was almost lunchtime.

I’d submitted a Trial Brief and filed objections to all the evidence listed on the CCP96 statement.

The judge ruled on the objections in the courtroom. He admitted most of the documents including the affidavit that wasn’t on the CCP96, but he tossed the cardmember agreement because he couldn’t read it and said the only relevant bank statement was the most recent one.  I objected, but he said bank records aren’t hearsay.

 

He also said he couldn’t find the cases I’d cited in my objections but from what I said about them they didn’t seem to be relevant.  That would be Sierra v. Hale and Midland v. Romero.

I lost. 

[RyanEX]

That sucks, sorry to hear it.  Was the witness they brought listed on the CCP 96 response? Was the faulty & withdrawn CCP 98 statement included in your filed objections that he ruled on?

[Beekeeper]

12 hours ago, RyanEX said:

That sucks, sorry to hear it.  Was the witness they brought listed on the CCP 96 response? Was the faulty & withdrawn CCP 98 statement included in your filed objections that he ruled on?

Thanks RyanEX.  Yes, the witness was on the late CCP96.  The CCP98 was withdrawn before I filed my objections.

[RyanEX]

Anyone have any advice on this? Plaintiff withdrew a CCP 98 declaration after service of subpoena failed, then submitted a late CCP 96 response with a new live witness, which judge allowed over objection at an ex-parte hearing. Beekeeper lost at trial, summary above. Any grounds for appeal here?

@calawyer @anon amos

[small fry]

If this case were my mine, I would file a Notice of Appeal within the 30 day window following entry of the trial court judgment.  Instructions for filing an Appeal in a Civil Limited case are here:

http://www.courts.ca.gov/documents/app101info.pdf

Its disappointing, although not a complete surprise that Beekeeper's trial court was unfamiliar with the relevance of Sierra v. Hale or Midland v. Romero  (even though they should be familiar with both).  

But the Appellate Panel overseeing the trial court's decisions will certainly need to know and consider both decisions carefully.  That is what the Appellate Panel is there for.

The panel may find Sierra v. Hale instructive as to whether a jdb's trial witness can properly authenticate a third party's documents when the jdb attempts to enter them into evidence over a defendant's hearsay objection. 

Below shows how the Orange County Appellate Division followed the reasoning in Sierra in reaching their decision in Midland v Romero: 

"Defendant also made a hearsay objection to Smith’s declaration, which contained documentation purportedly indicating Defendant’s indebtedness and Plaintiff’s ownership of the account as the assignee." ...

"Defendant relies on Sierra Managed Asset Plan, LLC v. Hale (2015) 240 Cal.App.4th Supp. 1 (Sierra). In Sierra, the plaintiff was the assignee of an unpaid credit card account originating from Citibank, N.A. (Citibank) (Id. at p. 3.) Plaintiff filed a section 98 declaration of Marc Roberts. (Id. at p. 4.) The declaration attached exhibits showing assignments of the account, the account agreement, and account statements reflecting the unpaid balance due. (Ibid.) Roberts was personally present at trial and was cross-examined by the defendant. (Ibid.) The trial court, over defendant’s objections based on lack of personal knowledge and hearsay, received the declaration and exhibits. (Ibid.) None of the documents attached to the declaration were created by plaintiff, and Roberts was not the authorized custodian of the Citibank documents. (Id. at p. 8.) Roberts stated in the declaration that he had never worked for Citibank and “did not have personal knowledge about the account or charges in question, other than the information he knew from acquiring the documents from Citibank.” (Id. at p. 9.) The defendant testified and “acknowledged the account, but denied any knowledge of the purchases or the balance due on the account.” (Id. at p. 4.) The Sierra court held Roberts’s declaration and testimony did not meet the “necessary foundation,” and that “at best,” his declaration and testimony established that plaintiff as assignee received records originating from Citibank. (Id., at p. 9) That court concluded the records were inadmissible hearsay and the result was prejudicial. (Id. at pp. 9-10.) "...

"We find Sierra instructive and respectfully disagree with Unifund’s holding concerning the business records exception to hearsay." 

"Here, Smith had personal knowledge that the documents were part of Plaintiff’s business records, but did not satisfactorily establish those documents were a part of the prior creditor’s business records under Evidence Code section 1271. That is, there was no evidence regarding the mode of preparation or other information indicating trustworthiness. Therefore, the trial court abused its discretion by overruling Defendant’s objections to Plaintiff’s evidence."

It's also worth noting here that, prior to Sierra v. Hale or Midland v. Romero,  the San Diego Appellate Division employed very similar reasoning in an unpublished ruling in favor of CIC member easy619.

The Appellate Division there decided that the judgment entered by the trial court (against easy619) was not supported by sufficient evidence and it was unanimously reversed.

In that unpublished opinion, the Appellate Division found that: The jdb's sole witness at trial could not properly authenticate Bank statements as the witness was not the custodian of records, nor did the witness testify that they were familiar with the preparation of the records. Rather the witness testified that they were an employee of  the parent company of the jdb.

Further: The jdb's witness did not testify that the parent company of the jdb was in any way involved in the preparation of the records, and there was nothing in the record to reflect any connection between the parent company and the jdb.

Thus: Under these circumstances, the trial court erroneously applied the Evidence Code section 1271 business records exception and improperly admitted the records submitted by the jdb.

This San Diego Appellate Division opinion was not published, but again, their reasoning was very similar to that of the later court in Sierra.

[Anon Amos]

On ‎2‎/‎22‎/‎2017 at 10:40 AM, RyanEX said:

Anyone have any advice on this? Plaintiff withdrew a CCP 98 declaration after service of subpoena failed, then submitted a late CCP 96 response with a new live witness, which judge allowed over objection at an ex-parte hearing. Beekeeper lost at trial, summary above. Any grounds for appeal here?

@calawyer @anon amos

They can withdrawal the ccp 98 if they want. I wouldn't bother fighting anything over the subpoena service. You would have a good argument that the witness shouldn't have been allowed to testify, or any evidence to be admitted for that matter, due to the fact that the ccp 96 response was late. I would think there is grounds for appeal since the ccp 96 response was late, but rather or not it's worth all the work and expense should be heavily weighed.

[Beekeeper]

Thanks everyone.  I talked to a lawyer, and I will appeal.  My fee waiver should cover part of the cost.

[sadinca]

just curious, are you retaining a lawyer or are you doing it yourself?

 

[Beekeeper]

On 2/28/2017 at 3:16 PM, sadinca said:

just curious, are you retaining a lawyer or are you doing it yourself?

 

I'll most likely do it myself, but will ask a lawyer to review my brief.  

[RyanEX]

On 3/2/2017 at 5:40 AM, Beekeeper said:

I'll most likely do it myself, but will ask a lawyer to review my brief.  

@easy619 appealed a lost case 3 years ago and won. Here's the thread, you might find something useful in there. Also wouldn't surprise me if easy still checks in every now and then to see what's going on.

My California Appeal

[Beekeeper]

Just got notice that CACH filed for Chapter 11, which apparently puts a stay on judicial proceedings.  Does anyone have any idea how this might affect my appeal? (I did file notice.)

 

[Anon Amos]

30 minutes ago, Beekeeper said:

Just got notice that CACH filed for Chapter 11, which puts apparently puts a stay on judicial proceedings.  Does anyone have any idea how this might affect my appeal? (I did file notice.)

 

Not sure how it will effect you but the BK couldn't have happened to a better deserving group. Hopefully the people at CACH will get to live and feel some of what they have put people through.

[nobk4me]

On 4/12/2017 at 0:31 PM, Beekeeper said:

Just got notice that CACH filed for Chapter 11, which apparently puts a stay on judicial proceedings.  Does anyone have any idea how this might affect my appeal? (I did file notice.)

 

Just curious.  You say you got  notice, could you elaborate?  Was it sent to the court, to you, from CACH, or what?

[nobk4me]

On 4/12/2017 at 1:05 PM, Anon Amos said:

Not sure how it will effect you but the BK couldn't have happened to a better deserving group. Hopefully the people at CACH will get to live and feel some of what they have put people through.

Apparently CACH and parent company Square Two Financial are filing BK to dump debt incurred as a result of class action lawsuits.   It looks like their practice of violating as standard operating procedure is finally coming back to bite them.