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I say this is a Zombie Case cause it had no activity or signs of life for almost 3 years. 

 

1. Who is the named plaintiff in the suit?

I am

2. What is the name of the law firm handling the suit? 

Hunt & Henriques

3. How much are you being sued for?

~2300

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

Chase (Actually Washington Mutual)

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

Served in 09/2013

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

Personal Service 

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?

Dont remember, little to none  

9. What state and county do you live in?

Fresno,  Ca  

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

As per JDB 7-11 (was within SOL at original time of filing)

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

4 Years

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

Status Open no pending dates  However case was in a state of inactivity for almost 3 years. The last activity was in 09/16 when a affidavit in lieu of testimony was filed. I just found out about this today because I was called by place where I used to live that I received some important documents in the mail. So I checked the court website and seen their CCP 98

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes in 2013

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? 

See question 12  

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

Other than the original filing which was unvalidated and the current CCP 98 nothing much has been filed or happened. I did of course file a general denial and response back in 2013 in a timely manner. I did wish not to stir the pot since it seemed I might be able to wait the 3 years to have the case dismissed due to lack of prosecution but it seems they did The CCP 98 just in time. 

 

Im a bit at a loss because the case does not have any pending court dates. No pre-trial hearings or CMCs scheduled. I also have not received anything else. 

My questions: 

1: the address on the CCP 98 is in excess of 150 miles, should I do nothing with that and simply file a MIL when the trial is scheduled?

 

2: Do I need to file a change of address with the court?

 

3: if they had asked for interrogatories and admissions would those have had to be filed? 

 

4: I have some experience in criminal and civil law due to working as a court interpreter, but I want to act as much as novice as possible in order to not show my hand. Is this the course you would recommend.

 

Besides a CCP 96 before trial, a brief and MIL with Supporting Argumets is there anything else I should have on my radar? 

 

Thank you you all in advance for your time & consideration. 

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Welcome.

 

I don't know why the court did not push plaintiff to move the case along more quickly.  You should check with the court again about a trial date.  The CCP 98 declaration suggests at least that plaintiff thinks you have one.  They are supposed to be served at least 30 days before trial.  And you can't serve a trial subpoena unless you have a trial date.   Is there a trial date listed on the caption of the CCP 98 declaration?

Also, can you tell whether the CCP 98 witness lives in another state?  If you do have a trial date, it is a tough call but even though the witness is 150 miles away, I think I would serve a trial subpoena.  If the address for service is substantially more than 150 miles away, that should be enough to exclude the affidavit.  But if you serve anyway, and the witness does not show, you have another arrow in your quiver.

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2 hours ago, calawyer said:

Is there a trial date listed on the caption of the CCP 98 declaration?

No there is none on the caption.  I just finished calling the court who informed me that not hearings have been scheduled. 

2 hours ago, calawyer said:

Also, can you tell whether the CCP 98 witness lives in another state?

No the address is in the state but more that 300 miles away. I understand the maybe I will still subpoena once a trial date is set.

 

Seems the CCP 96 will be something I should start preparing as well as a MIL for this declaration in lieu of live testimony. Anything else you suggest?

 

As I undesrtand even if the person named on the CCP98 does show up to court, because they are an employee of Midland Funding and not of the OL, she would not be able to substantiate ownership of the account because she would not have personal knowledge of the the OL's business practices. Which is a necessary component in order to admit testimony that would otherwise be considered hearsay. Correct?

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2 hours ago, theMagi In Cali said:

 

 

Seems the CCP 96 will be something I should start preparing as well as a MIL for this declaration in lieu of live testimony. Anything else you suggest?

The CCP 96 demand must be served no more than 45 days or less than 30 days prior to the date first set for trial.  So if there is no trial date currently set, you should wait until it has been set by the Court.

 

As I undesrtand even if the person named on the CCP98 does show up to court, because they are an employee of Midland Funding and not of the OL, she would not be able to substantiate ownership of the account because she would not have personal knowledge of the the OL's business practices. Which is a necessary component in order to admit testimony that would otherwise be considered hearsay. Correct?

I believe that a Midland witness will have insufficient personal knowledge to authenticate documents or describe practices of Chase.  Worse yet for plaintiff that this was originally a WaMu account.  However some judges disagree.  You will also need to make objections to the testimony as it comes in.  I think it helps if you do a MIL/objection to the CCP 98 declaration because that shows that you are objecting to the lack of personal knowledge.

 

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Hi guys I have some bad news. But I am hoping you guys can help anyway.

The above mentioned case went with out activity since  Sep 2016. But in May Admission were sent to me. (I did not get them my own fault since I moved) and I did not respond in time to the date of the hearing for the Motion for Admissions which was in May of this year (05/04/17)

So as it stands the Admissions have been admitted in to evidence.

So am I screwed. If all their admission are now by default true is their any defense?

The admissions are basically this:

I had account xxx, 

Account XXX was issued by Chase

The balance was $$$$ on  XXXX date.

I have made no payments since XXXX

Account XXX was sold to Midland on YYYY

Midland is the owner of XXX

 

Thoughts?

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calawyer if you have some advise, I found the following.

 

1: Wilcox v Birtwhistle

the court found that: Construing subdivision (m) to permit the withdrawal or amendment of deemed admissions is consistent with the Legislature's intention to remedy these problems. By eliminating the time limits on obtaining relief, subdivision (m) is much less draconian than the previous practice — which only gave a nonresponding party 30 days after receiving notice of the deemed admissions to obtain relief. Applying subdivision (m) to deemed admissions also allows the trial court to tailor the sanction to the severity of the discovery abuse.[6] Any concerns about potential harm to the propounding party are alleviated by the need to show no substantial prejudice and the availability of additional sanctions. (Ibid.) In contrast, precluding the withdrawal or amendment of deemed admissions is arguably more draconian than the previous practice because the nonresponding party may have as little as 15 days — the minimum notice required for a motion — to avoid an irrevocable admission

May this apply?

I noticed that I could not find (m) on 2033.

but I did find (b) on 2033.300

(b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party s action or defense on the merits.

 

thoughts?

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If your move caused you not to receive either the FAs or the notice of hearing, that might constitute mistake, inadvertence, excuse...under the code.  You are supposed to notify the court and Plaintiff of a change of address so that will work against you a bit.  But the bottom line is that you did not receive anything and it was an honest mistake.

You will need to file a motion quickly because you will want to say that you filed the motion as soon as you found out.

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On 6/23/2017 at 8:09 AM, calawyer said:

If your move caused you not to receive either the FAs or the notice of hearing, that might constitute mistake, inadvertence, excuse...under the code.  You are supposed to notify the court and Plaintiff of a change of address so that will work against you a bit.  But the bottom line is that you did not receive anything and it was an honest mistake.

You will need to file a motion quickly because you will want to say that you filed the motion as soon as you found out.

Thank you calawyer. I did go head and made the change of address as well as set a date (08-03-17) for the hearing on the motion to be relieved of deemed admissions.

Attached is a copy of the motion I plan to file. I am a looking for your input (or anyones for that matter). It feels very simplistic but that is the best I can do on my own. I got the sample from a self-help link for the Sacramento Court house. I deleted any reference about local Sacramento rules.

Also Attached at the end is a copy of the admissions I need to respond to. I was also hoping to get some guidance on this. I tried to follow Medics but I got lost somewhere along the process.

Please any guidance would help. Thank you.

relief-from-admissions-motion_1.pdf

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I will try to look at this soon.  Have you calculated the last day the motion can be filed?

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Thank you so much calawyer.

 

But I believe I have 16 court days prior to hearing to file so that would mean file by July 16th and an addtional 5 days to serve via mail so that means I have to send them the motion by July 5th.

Does that sound right?

These are the local rules: 

Motions

Generally must be served and filed at least 16 court days before hearing, with an additional 5 days notice given if served by mail within California, an additional 10 days notice if served outside of California, an additional 20 days notice if served outside the United States, or an additional 2 calendar days notice if served by facsimile or express mail. (CCP §1005(b).)

Papers opposing a motion or replying to an opposition are to be served so that delivery is ensured to be made to the other parties no later than the close of the next business day. (CCP §1005(c).) This time frame includes motions for summary judgment/adjudication as well.

Proof of service of the moving papers must be filed no later than 5 court days before the hearing. (CRC 3.1300(c).)

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21 hours ago, theMagi In Cali said:

Also it would seem I need to file the proof of service by July 26th.

Hi calawyer. I just checked the account online and seems that a motion was filed on 06-26 for judgement. Hearing will be on 07-24-17. 

 

Any suggestions?

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Your calculation seems correct.

You will have to get the papers to be sure, but I am guessing that there was a "gotcha" RFA that says something like "admit that you have no defense to this case".  Because that was "deemed admitted", they are now asking the Court to enter judgment in their favor.

These "gotcha RFAs" are disfavored.  I will send you a case if I can find one that is published.

The larger question is how the heck they managed to get an earlier hearing date than you did for the relief from the Court's order.  That complicates things a bit.  You will have to respond to this motion and ask the Court to defer any ruling on the entry of judgment until it decides whether to grant relief from its order.  I think you should file your motion ASAP instead of waiting until the last day.

 

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