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Okay, things are moving along apace. 

Case management conference is coming up soon.

In their case management statement they've asked for trial date 90 days away from the case management conference. I'm going to ask to get this pushed out much, much further. I'm going to be having surgery soon-ish (hopefully) and I don't really want to be worrying about getting ready for a trial in the weeks or months immediately after getting chopped in half and reassembled with fewer parts.

So, yeah. Yay. This will be interesting, I think.

 

They have not sent me any interrogatories of any sort. No discovery. Merely the rejection of my BOP request and then the case management statement.

(And yes, I sent the meet and confer a while back. Haven't had any response.)

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hope your surgery goes well and you recover quickly. 

keep your eyes out for their discovery request. should be getting them soon. 

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Bring your calendar to the CMC.  Write down all important personal dates and ask your doctor how long a recovery you should expect.

It is much easier to get a date you can work with than it is to change a date the Court has set.

 

Good luck with the surgery.

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23 hours ago, PSteele said:

In their case management statement they've asked for trial date 90 days away from the case management conference. I'm going to ask to get this pushed out much, much further.

Please follow Calawyer's suggestions--bring that calendar! It would help you to show the judge written proof of your surgery, length of recovery, etc. You're in Court now and papers matter!

Them requesting three months before trial might be a sign that they know their case isn't strong. This benefits you. Pushing the trial date much further down the road will most likely elicit a loud sigh of relief in their offices so I don 't believe they'll object.

23 hours ago, PSteele said:

I'm going to be having surgery soon-ish (hopefully) and I don't really want to be worrying about getting ready for a trial

I wish you all the best, and a very swift recovery, PSteele.

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Thanks for your good wishes, everyone.

And yeah, I tend to agree that their case isn't particularly strong, and they know it's not. Or at least, I hope they know it's not. :D

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Okay, so I survived the surgery, and I'm about 60 days out from the trial date now.

They never responded to discovery, which was served back in July.

What's next?

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welcome back!

when you say they never responded to discovery, are you referring to Bill or Particulars or actual Request for Documents?

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3 minutes ago, sadinca said:

welcome back!

when you say they never responded to discovery, are you referring to Bill or Particulars or actual Request for Documents?

 

Both. Either. 

The BOP, they sent back the snarky note I mentioned earlier, and didn't respond at all to my renewed demand. The request for production of documents IAW whatever code section, that one they never responded to at all.

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can you post the demands on your request? 

BOP is not discovery, so it is not bound by the 45 day rule to motion to compel (MTC). but since you already started discovery, i am not sure you can go back and continue with the BOP. 

MTC deadline for discovery is 45 days after plaintiff's response. since they didn't respond to you at all, you could send Meet and Confer letter, if they do not respond to that you could MTC.

 

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9 hours ago, sadinca said:

can you post the demands on your request? 

BOP is not discovery, so it is not bound by the 45 day rule to motion to compel (MTC). but since you already started discovery, i am not sure you can go back and continue with the BOP. 

MTC deadline for discovery is 45 days after plaintiff's response. since they didn't respond to you at all, you could send Meet and Confer letter, if they do not respond to that you could MTC.

 

 

Okay, but do I want to do an MTC at all? I mean, at this point if they're just blowing me off completely ... 

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Sorry, I seem to have missed your question about what I requested.

 

1. The alleged credit application from Capital One bearing the defendant’s signature and social security number; 

2. The alleged credit agreement from Capital One that states defendant’s name, complete account number, interest rate, grace period, terms of repayment, et cetera; 

3. Itemized statements or credit card statements from Capital One that demonstrate how the alleged amount of XXXX was calculated; 

4. A contract, agreement, assignment, or other means demonstrating that Portfolio recovery Associates, LLC  had the authority and capacity, and was legally entitled to collect on the debt allegedly owed by defendant to Capital One.

5. Letter(s) sent to defendant by Portfolio Recovery Associates, LLC, demonstrating an attempt to collect on the alleged debt; 

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally; 

7. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to the present litigation;

 

 8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt; 

9. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s). 

10. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s); 

 

11. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant; 

12. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and the alleged account; 

13. The plaintiff’s Articles of Incorporation;

 

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On 11/30/2017 at 7:26 PM, PSteele said:

Okay, but do I want to do an MTC at all? I mean, at this point if they're just blowing me off completely ... 

sometimes is good to keep the pressure, or you may want to know why they are withholding any documents. this would not look good on any judges eyes, because, plaintiff is not even objecting to your request they are blatantly not complying with your demand.

this is a judgement call, it is not imperative that you obtain any of the documents in order to win your case. MTC are very involved with sometimes short deadlines, and stressful. 

i forget, is this an OC or JDB?

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4 minutes ago, sadinca said:

sometimes is good to keep the pressure, or you may want to know why they are withholding any documents. this would not look good on any judges eyes, because, plaintiff is not even objecting to your request they are blatantly not complying with your demand.

this is a judgement call, it is not imperative that you obtain any of the documents in order to win your case. MTC are very involved with sometimes short deadlines, and stressful. 

i forget, is this an OC or JDB?

 

It's a JDB. Portfolio. They appeared by phone at the case management conference.

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I pretty much stopped posting publicly for a while, and kept everything in private messages for a bit, due to an appearance--possibly mistaken, but irrelevant at this stage--that Portfolio was reading this thread and may have identified the specific case being described.

Doesn't really matter now, though: trial is on Monday. 3 days from now. No, 2 days- it's after midnight, and technically Saturday already. Everything's been filed that can be.

So. Filling in the past several months.

(1) I filed and served my discovery demands back in July. I received no response of any kind.

(2) In early December I received the plaintiff's trial brief, CCP 98 declaration, exhibits, witness list, evidence list, etc.

(3) The CCP 98 declarant, of course, used a third-party law firm as the address for service. (Hunt & Henriques in San Jose. It's within 150 miles... barely.) The declarant (ever so kindly) gave me permission to contact plaintiff's counsel for effectuation of proper service, in the event that she was unable to be served at that address. Sadly, "Lori N. Williams" is not an address, and even if it was it would not be within 150 miles. I didn't bother with a 1987 notice to appear, since the declarant is not a party or a principle of hte plaintiff or some other party for whose benefit this action is being conducted, and therefore it would not be enforceable. (I called that out in the MIL specifically- I've seen Plaintiff's trial briefs where they say that Defendant should have filed a 1987 on the records custodian, and it was pure gamesmanship to not do so.)

(3) I obtained and attempted to serve a subpoena upon the witness at the address given.  Nobody there knew who she was, and the process server company said that there was no point in trying again, that I'd done my due diligence with that address.

(4) I discovered that there is a consent order against PRA from the CFPB. I'll link it later. It's magical. Forget California, it's a 50-state silver bullet against PRA. Almost every single practice that PRA was employing in this case is a thing which they are specifically "restrained and prohibited" from doing. Even the boilerplate verbiage in the CCP 98 declaration is quoted in the consent order as being a deceptive practice. But, even more hilarious, PRA is "permanently restrained and prohibited" from even making an allegation that someone owes a debt without having THOROUGHLY researched it first, and having the documents to prove it BEFORE making the allegation, never mind initiating a lawsuit. 

(4a) I also discovered that the "sale file" they produced as evidence had blended my personally identifying information with someone else's.  I'd been wondering where all this stuff came from, before. Now at least I can sort of make some semi-educated guesses, at a minimum.

(5) I wrote and timely filed my motion in limine / written objections. One of them specifically called out Plaintiff's failure to respond to discovery, and--citing the appropriate code section--characterized it as "abuse of the discovery process," and requested as relief evidence sanctions, dismissal with prejudice or a default judgement for the defendant, and holding in contempt of the plaintiff's counsel. I also made the other standard arguments based on Target v. Rocha, etc., with respect to CCP 98 deficiencies. I also called out Plaintiff for violating the consent order mentioned above, made all the hearsay objections, and everything else I'm supposed to do at this point.

(6) I wrote and timely filed my trial brief. In addition to the other claims mentioned in (5), supra, I pointed out that Plaintiff's counsel is an employee of plaintiff, rather than an employee of an outside firm contracted for this, and is certainly aware of the inaccurate / false / misleading nature of the statements used in the CCP 98 declaration, particularly the bit about the location for service of subpoena. I requested sanctions against her. Specifically, I requested that she be held in contempt for knowingly / willfully participating in Plaintiff's attempt to mislead / perpetrate a fraud upon the court. I had plenty of solid statute and case law for it.

(7) The trial was continued, due to the judge's illness.

(8) Even using the latest possible date, after the continuance, Plaintiff did not file any objection to my MIL, with it's attendant requests for relief in the form of dismissal with prejudice or a default finding for the defendant. In fact, as of close of business today--in other words, 1.5 court-hours before the trial is to commence--there was still no attempt made to object.

(9) A couple days ago (but still past the time limit for filing an opposition to my MIL), plaintiff's counsel contacted me and offered dismissal with prejudice for $0.00... but only if I'd sign a mutual release of claims. In other words, the costs and fees that I've sunk into this so far would be lost, I would not be able to file a complaint with the CFPB to reset the counter on the oversight provisions of their consent order; nor would I be able to commence any action against Plaintiff, Plaintiff's counsel, or Plaintiff's declarant for anything they'd done in the course of this case. She also, incidentally, acknowledged that they had failed to respond to discovery, but blamed it on a mis-filed scanned document. (Those stupid office staffers! they can't do anything right!)

(10) I declined this offer of settlement. Just the amount that I've spent on costs / fees / postage alone is enough to pay for a month of medical care, and a cancer patient can't afford to just throw that in the ditch and piss on it.

(11) Yesterday, Plaintiff's counsel said she was going to dismiss anyway. Of course, it would be without prejudice, and they could re-file again. She gave as a reason that her witness (i.e., the CCP 98 declarant) wouldn't be available to show up in court that day. (Ofc, she negelected to say anything about how hard they tried to make her unavailable for subpoena, or the fact that their trial witness list only described her as testifying by written declaration, rather than appearing in person.) But... she mailed it to the court, rather than faxing it or filing in some other electronic manner.

(12) I spent the balance of yesterday researching and writing a bunch of things. I wrote a notice of plaintiff's non-opposition to my motion in limine, noting that local rules of court provide that, should there be no opposition to a motion, the opposing party waives their right to make any objections or submit oral arguments, and that the failure to object may create an inference that the motion itself is meritorious. I reiterated in it that the motion sought relief  including, but not limited to, either dismissal with prejudice or a default judgement for the defendant.

(13) I created an opposition to Plaintiff's request to dismiss without prejudice. Because the MIL was unopposed and there was an inference of meritoriousness, and because it sought--essentially--a final adjudication of the claims based on the merits of the pleadings, this matter was already submitted to the court for judgement, and therefore the plaintiff's CCP 581 right to dismiss was no longer applicable. Plaintiff's request to dismiss was characterized as merely a base attempt to avoid an adverse adjudication, and then wash their unclean hands and come back for a second bite at the apple. I really want to get either with prejudice or a straight judgement for the defendant, and without giving up my claims and rights against them. And, hey, cancer patient. WTF do I have to lose? Worst-case scenario, I still get dismissed and it's only a few more months before the SOL is up on this alleged account.

(13a) I filed these notices and oppositions this morning, before the mail had arrived at the courthouse. In other words, my notice of non-opposition (in particular) beat plaintiff's request for dismissal without prejudice onto the docket. (Of course, my opposition to dismissal without prejudice did as well, but I included a copy as an exhibit to the declaration in support of opposition, just in case Plaintiff's counsel had... 'forgotten' to mail it and was hoping I just wouldn't show up on Monday.)

(14) I served the final documents by mail, and once that was done I filed the POS with the court. At that time, shortly before COB, there had still been no ruling on the request for dismissal--given the opposition, the clerks were putting it before the judge instead of stamping it themselves--and the hearing/trial remained calendared for Monday, 29 January.

(15) I returned home and emailed the documents to the Plaintiff's counsel, along with the note that we're still on the calendar. I wanted to throw in a note to wish her a safe drive--it is, after all, several hundred miles from her office to my courthouse and I'm sure she'd hoped to sleep in on Monday until at least a semi-reasonable hour--but refrained, and limited myself to expressing hope that she has a fantastic weekend.

(16) Now I wait for Monday to show up, and see what happens.

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4 hours ago, PSteele said:

(4) I discovered that there is a consent order against PRA from the CFPB. I'll link it later. It's magical. Forget California, it's a 50-state silver bullet against PRA. Almost every single practice that PRA was employing in this case is a thing which they are specifically "restrained and prohibited" from doing. Even the boilerplate verbiage in the CCP 98 declaration is quoted in the consent order as being a deceptive practice. But, even more hilarious, PRA is "permanently restrained and prohibited" from even making an allegation that someone owes a debt without having THOROUGHLY researched it first, and having the documents to prove it BEFORE making the allegation, never mind initiating a lawsuit. 

I believe you're probably going to prevail and the lawsuit will be dismissed, but it will not be due to the above.

The Consent Order is not a 50-state silver bullet.  The reason is because it's a settlement, not law.   PRA made no admission of wrongdoing, and no court made a ruling on the allegations in the CFPB complaint.  Because no ruling was made by a court, the Order is not binding on any court.  The JDB could commit an action that the CFPB alleges in the Order is a violation of the FDCPA, but a court can disagree that it's a violation.

While Portfolio may be forever restrained from doing certain things, the Consent Order ends 5 years from the date it was filed.  The only way it would continue would be if the CFPB filed another action against the JDB. (See #178 of the Order)

In addition, the restrictions placed upon PRA are not enforceable by the courts.  (See #181 of the Order)  A judge can agree that PRA violated the Order, but he has the choice of determining whether or not the Order will affect his decision.  For instance, here's how a Michigan federal court reacted to a consumer's reliance on the Consent Order.

Cooper v. Portfolio Recovery (E.D. of MI, 2017)

"His reliance on a CFPB consent judgment is likewise misplaced because whether or not PRA acted inappropriately in the past does nothing to prove how it acted in this case."

The details in the Consent Order might be persuasive to a judge, but again, its not binding, and a judge doesn't have to follow the CFPB's restrictions unless he chooses to do so.  Also, in some states, settlements are not admissible as evidence.

 

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I'm not relying on the consent order. I have plenty of other things to go on as well. I do, however, want the judge to see it, and--ideally--to note that they are violating it, whether or not he can enforce anything. That will make the net stages easier, when I go to the CFPB.

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11 hours ago, BV80 said:

I believe you're probably going to prevail and the lawsuit will be dismissed, but it will not be due to the above.

The Consent Order is not a 50-state silver bullet.  The reason is because it's a settlement, not law.   PRA made no admission of wrongdoing, and no court made a ruling on the allegations in the CFPB complaint.  Because no ruling was made by a court, the Order is not binding on any court.  The JDB could commit an action that the CFPB alleges in the Order is a violation of the FDCPA, but a court can disagree that it's a violation.

... re: settlement v. law, maybe. I don't have time to argue the whole thing right now, nor do I want to air that particular bit of laundry before Monday, on the off chance that this does turn out to be a trial. ;)

Regardless of the nature of a thing being truly a violation of the FDCPA or not, though, when there's an order that says "Don't ever again do this specific, exact, thing" and then the subject of that order goes and does that specific, exact, thing... it's hard to argue that PRA didn't violate the order, if nothing else. Even if the court declines to enforce it. I mean, in my case we're talking really specific things being prohibited, and not the kind of thing that's inadvertently done. 

 

Quote

While Portfolio may be forever restrained from doing certain things, the Consent Order ends 5 years from the date it was filed.  The only way it would continue would be if the CFPB filed another action against the JDB. (See #178 of the Order)

The conduct provisions are permanent (with one possible exception). The reality is that, on the expiration of the order, PRA will not magically be granted the authority to violate the law in any manner they choose. The conduct provisions are, essentially, a notice that they are not allowed to break the law, and the CFPB specifying certain things which are guaranteed and / or required in order to comply with the law. (Possible exception: the prohibition against selling any accounts.)

 

Quote

In addition, the restrictions placed upon PRA are not enforceable by the courts.  (See #181 of the Order) 

You're reading way too much into that. Paragraph 181 states "The provisions of this Consent Order will be enforceable by the Bureau." It does not, however, include any wording to indicate that nobody else can enforce it. (e.g., "will be enforceable solely by the Bureau.") Additionally, Paragraph 175 reads: "The provisions of this Consent Order do not bar, estop, or otherwise prevent the Bureau, or any other governmental agency from taking any other action against Respondent, except as described in Paragraph 176." 

 

Quote

A judge can agree that PRA violated the Order, but he has the choice of determining whether or not the Order will affect his decision.  For instance, here's how a Michigan federal court reacted to a consumer's reliance on the Consent Order.

Cooper v. Portfolio Recovery (E.D. of MI, 2017)

"His reliance on a CFPB consent judgment is likewise misplaced because whether or not PRA acted inappropriately in the past does nothing to prove how it acted in this case."

You're not reading enough of that case. Cooper used the consent order to show prior bad acts on PRA's part, and alleged that they were continuing to perform the same bad acts, but appears to have offered no evidence of it beyond a slightly overenthusiastic misinterpretation of case law, and unsupported speculations about PRA's behind-the-scenes operational processes. More to the point, the actions that Cooper alleges were in violation were ruled by the court to have been a-ok and met the standard set by statute and precedent: "Si[/s]nce the parties agree as to the content of the verification documents and PRA fulfilled its obligations under the FDCPA, PRA is entitled to summary judgment on the issue of verification"

This is strongly differentiated from my case, where specific actions taken by plaintiff in my case are identical, even down to the verbiage used, to what they have done in the past, and from which they are "permanently restrained and prohibited." This goes a long, long way towards indicating that a thing is just as much a violation now as it was then. Think about it this way: if there's a speed limit sign that says 55, and you get pulled over 100 yards past it for going 90, the fact that there may not be another speed limit sign for another five miles down the road shouldn't lead you to expect that you won't get a ticket for going 90 in that stretch.

After repeatedly showing that the bad acts described in the consent order continue to happen--I mean, the specific and exact bad acts--there is one spot where I do use the consent order's historical listing to infer the current existence of continued bad acts. The order describes the specific details of of warranty provisions from previous forward flow agreements as being essentially "buyer beware, because we're making no guarantees and it's your problem now." PRA asserts that they're proceeding in this on the strength of the warranties provided by the account seller... but then specifically refuses to provide the document containing the warranties, because it's "confidential and proprietary." I do draw the inference there that the specific refusal to provide the document--whether at discovery or as evidence at trial--combined with the previous history of the documents as described by the CFPB, means that the current document also doesn't say what they want it to say.

Quote

The details in the Consent Order might be persuasive to a judge, but again, its not binding, and a judge doesn't have to follow the CFPB's restrictions unless he chooses to do so.  Also, in some states, settlements are not admissible as evidence.

 

 

It's not a settlement: it's a cease-and-desist order, issued under federal law, and is described that way in 12 USC 5563.

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45 minutes ago, PSteele said:

The conduct provisions are permanent (with one possible exception). The reality is that, on the expiration of the order, PRA will not magically be granted the authority to violate the law in any manner they choose. The conduct provisions are, essentially, a notice that they are not allowed to break the law, and the CFPB specifying certain things which are guaranteed and / or required in order to comply with the law. (Possible exception: the prohibition against selling any accounts.)

They will not ever be "granted" the authority to violate the law.  I pointed out the 5-year provision to show that certain requirements in the Order will expire 5 years from the effective date.  For instance, PRA is required to have certain documentation in hand when filing a lawsuit (See #119).  That could be a provision that they will be not required to continue once the Order expires.

33 minutes ago, PSteele said:

You're reading way too much into that. Paragraph 181 states "The provisions of this Consent Order will be enforceable by the Bureau." It does not, however, include any wording to indicate that nobody else can enforce it. (e.g., "will be enforceable solely by the Bureau.") Additionally, Paragraph 175 reads: "The provisions of this Consent Order do not bar, estop, or otherwise prevent the Bureau, or any other governmental agency from taking any other action against Respondent, except as described in Paragraph 176." 

No, I'm not.  It doesn't matter that it doesn't say "solely".  No where in the Order is there a private right of action for consumers, and no where is it stated that courts must enforce the it. 

The fact that other governmental agencies can take actions against PRA has nothing to do with consumers and courts.

Kalisz v. American Express Centurion Bank (E.D. Virginia, 2016)

"Plaintiff alleges that Defendants violated a consent order entered into between American Express and the FDIC and CFPB. Plaintiff possesses no private right of action to pursue a claim alleging violations of the consent order. Consumers do not possess a private right of action to enforce consent decrees. '[A] well-settled line of authority from [the Supreme] Court establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it.'" Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975).

I did not say to not provide the Consent Order to the judge.  I stated that a judge can determine whether or not the Consent Order affects his decision.   I also originally stated that I believe you're going to win.  That's because JDBs don't usually follow the CA rules, namely CCP 96 and 98.

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1 hour ago, BV80 said:

They will not ever be "granted" the authority to violate the law.  I pointed out the 5-year provision to show that certain requirements in the Order will expire 5 years from the effective date.  For instance, PRA is required to have certain documentation in hand when filing a lawsuit (See #119).  That could be a provision that they will be not required to continue once the Order expires.

Okay, good. I just wanted to make clear that the portions that I'm leaning on the hardest on are the ones that won't expire, and which tie a specific practice to a specific piece of law. That said, I'm not really relying on even those, though. 

 

1 hour ago, BV80 said:

I did not say to not provide the Consent Order to the judge.  I stated that a judge can determine whether or not the Consent Order affects his decision.   I also originally stated that I believe you're going to win.  That's because JDBs don't usually follow the CA rules, namely CCP 96 and 98.

And they definitely blew off 98 here, for sure. As well as the 1271 exceptions: they made not even the slightest pretense at showing any of it wasn't hearsay.

I know that I'm going to get it dismissed, at a minimum, if only because Plaintiff has already filed a request for dismissal without prejudice. Thing is, I don't want it dismissed without prejudice: I want it dismissed with prejudice. And that's why I spent about 20 hours trying to figure out how to defeat the request for dismissal. I think it's better than even that I lose on that opposition, but even if I do I'm only out a few sheets of paper and a trip to the court house, and I'll still be able to complain to the CFPB afterwards.

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15 hours ago, PSteele said:

I know that I'm going to get it dismissed, at a minimum, if only because Plaintiff has already filed a request for dismissal without prejudice. Thing is, I don't want it dismissed without prejudice: I want it dismissed with prejudice. And that's why I spent about 20 hours trying to figure out how to defeat the request for dismissal. I think it's better than even that I lose on that opposition, but even if I do I'm only out a few sheets of paper and a trip to the court house, and I'll still be able to complain to the CFPB afterwards.

Unfortunately you won't be able to force a dismissal with prejudice. They have the right to dismiss with or without prejudice (their choice) at any time up until the commencement of trial (opening statements), if the trial actually begins and then they decide to dismiss, then you could push for it to be with prejudice - but looks like it won't get that far. But I think most people will agree that dismissal without prejudice is just as good in circumstances like yours. They don't want to deal with people who (know how to) fight, they want easy judgments & settlements.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=581.

Quote

 

CCP 581

(6) “Trial.” A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.

...

(c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.

...

(e) After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.

 

 

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11 minutes ago, RyanEX said:

Unfortunately you won't be able to force a dismissal with prejudice. They have the right to dismiss with or without prejudice (their choice) at any time up until the commencement of trial (opening statements),

 

In this case, the relief sought in my motion in limine includes a final adjudication. Plaintiff failed to object to the motion. Therefore, under the local rules, they have essentially waived their objections to my motion and created an inference of meritoriousness. Even without my notice of non-opposition (which was still filed before Plaintiff's request to dismiss), that means that a motion for final adjudication on the merits of the pleadings has been submitted to the court. Because Plaintiff waived their ability to object or offer arguments against it, the only thing that remains is for the judge to rule on it. In other words, there's an exception there to 581.

Granting Plaintiff's dismissal is tantamount to letting them off the hook for their behavior in this trial. They get to avoid an adverse judgement, and go wash their unclean hands so they can come back for another bite at the apple. It is not in the interests of justice to give the plaintiff a mulligan on their misuse of the discovery process and attempts to perpetrate a fraud upon the court through subversion of CCP 98 and the rules of evidence.

 

Harris v. Billings (16 Cal.App. 4th 1396. 1402):

"The right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute. Code of Civil Procedure section 581 recognizes exceptions to the right; other limitations have evolved through the courts' construction of the term 'commencement of trial.' These exceptions generally arise where the action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication."

Pielstick v. MidFirst Bank, 224 Cal. App. 4th 1452:

"The California Supreme Court has construed the word "trial" in section 581 to include a hearing on a dispositive motion."

"We held that the matter having been submitted to the court, a plaintiff no longer had the right to dismiss without prejudice. 'If he could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation.'"

 

 

 

 

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Welp, just got home from court.

I always knew that the opposition to the dismissal was a long shot, and in the end I didn't get what I wanted out of it, mostly because the main case that I was using was depublished, as it turns out. But, the judge and I had a solid 5-8 minute discussion on the underlying precedent and the differentiation between those cases and this one, and it was pretty good. And the case is, of course, still dismissed.

At both the beginning and at the end he complimented the depth of my research, the quality of my writing, and my level of knowledge, describing my work thus far as "very impressive." This was quite a big change from the case management conference where, after plaintiff's counsel was off the phone the judge said something to the effect of "see you back here in january, then, unless you settle before then. And I highly suggest you settle." None of it would have been possible without this forum and the people in it, particularly @calawyer and @sadinca.

So, now it's off to have a look at the CFPB's complaint process. I'd say that dismissing a case on the morning of trial, when the lawyer doesn't even show up, might certainly be described charitably as "filing [a] collection lawsuit without intending to prove the debt, if contested." We'll see what else I can fit in there, too.

I'll be redacting my filings over the course of the next little while and see what I can post. And, of course, I'll be filing a memorandum of costs. I think that's the right one? Whatever it is, it's what I have to do in order to get my costs and fees back.

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2 minutes ago, sadinca said:

AWESOME JOB!!!! you did great! make sure to post on the winners threat! 

Thanks! I guess I should probably do that right now, actually!

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