Pending trial against GCFS, INC.

[buzziB]

1. Who is the named plaintiff in the suit? GCFS, INC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Legal Dept. of GCFS, INC

3. How much are you being sued for? About 4K

4. Who is the original creditor? (if not the Plaintiff) Wells Fargo

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

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

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? None

9. What state and county do you live in? Humboldt County, California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 6/27/2012

11. What is the SOL on the debt? 4 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). Trail set for 11/18/16.  Recently received their response to my CCP 96 request

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. No

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? Answered with a General Denial.  They are claiming Breach of Contract and Account Stated

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Sworn affidavit, 2 statements (5/26/12-6/25/12 & 12/27/11-1/26/12), Bill of Sale between Wells Fargo and Absolute Resolution (9/19/12), Bill of Sale between Absolute Resolution and GCFS, Inc. (9/24/12), generic credit card agreement, redacted list of accounts transferred

 

 

I recently received the JDB response to my CCP 96 request.  The listed witness is the same person that signed the CCP 98 sworn affidavit.  However, they still list the CCP 98 as part of their evidence they are planning on using.

Should I still try to subpoena the affidavit?  I attempted yesterday, after I received their trial brief, and she was of course not at the said address.  Could they end up not calling the witness and using the affidavit instead?

 

Thanks in advance for any help

[buzziB]

I also noticed that in the affidavit they stated that I opened the account 7/1/1996, when I was 13.  Not sure if that matters at all.

[RyanEX]

Quote

Should I still try to subpoena the affidavit?  I attempted yesterday, after I received their trial brief, and she was of course not at the said address.  Could they end up not calling the witness and using the affidavit instead?

Yes, still subpoena the CCP 98 witness. Do the 2 attempts then have it left at the address on the 3rd.

I think the open account date (when you were 13 yrs old) is worth mentioning in your brief, it's a glaring inaccuracy.

[buzziB]

19 hours ago, RyanEX said:

Yes, still subpoena the CCP 98 witness. Do the 2 attempts then have it left at the address on the 3rd.

I think the open account date (when you were 13 yrs old) is worth mentioning in your brief, it's a glaring inaccuracy.

I had it attempted 3 times, but nobody at the law office she was using would accept the subpoena on her behalf.  Is there a different form to fill out for "unable to serve", or should I just use the 2nd page of SUBP-001, and state that nobody at the office would accept?  

[RyanEX]

The process server should be able to write you a declaration of diligence, detailing his/her attempts to serve the witness as well as the office's refusal to accept it on their behalf.

[calawyer]

On ‎11‎/‎4‎/‎2016 at 8:27 AM, buzziB said:

I had it attempted 3 times, but nobody at the law office she was using would accept the subpoena on her behalf.  Is there a different form to fill out for "unable to serve", or should I just use the 2nd page of SUBP-001, and state that nobody at the office would accept?  

 

Excellent!  Refusing service is great.  Make sure the process server gives you an affidavit of "non-service" or affidavit of due diligence saying that he/she tried 3 times and it was refused.  Then file it with the court and serve it on plaintiff.

[calawyer]

On ‎11‎/‎1‎/‎2016 at 4:09 PM, buzziB said:

I also noticed that in the affidavit they stated that I opened the account 7/1/1996, when I was 13.  Not sure if that matters at all.

 

 

This is big.  One approach is to lay in the weeds and not put anything about this in your trial brief.  Because the CCP 96 ONLY lists the CCP 98 declarant as a witness, that is the only person who should be allowed to testify.  Even though you didn't serve the subpoena on that person, they could still voluntarily bring her.  If they do, imagine the responses to the following questions:

You filed a declaration in this case, correct?

And you swore that the facts contained in that declaration were true, right?

You swore under penalty of perjury?

And you said you had personal knowledge of the facts, right?

And you intended to be accurate in the facts presented, correct?

And you were especially careful with this declaration because, if no subpoena was served, there would be no opportunity for me to cross-examine, right?

You knew that as a [legal specialist-whatever title she has] ?

THe declaration says that you can be served with a subpoena during the 20 days before trial at, does it not?

You were never at that location during the 20 days before trial, were you?

So that statement was not true, right?

It was a trick, wasn't it?

Turn to paragraph ___ of your declaration, please.

 

When was this account allegedly opened?

And you know that fact from your personal knowledge, correct?

How old am I?

[if she doesn't know]  So your records don't contain the age of the person opening the account?

Let me help you out.  I will show you my driver's license.  Now, how old am I?

So how old was I when this account was opened?

THe truth is, you have no idea when this account was opened, do you?

And that is because you have no personal knowledge of anything related to this account, right?

You have never worked for [Wells Fargo] have you?

 

Your Honor, I move to exclude this witness on the ground that she has absolutely no personal knowledge of any facts relating to the account at issue.  Her testimony is tantamount to getting on the stand and testifying to a car accident after reading an account of the accident in the newspaper.