navy joy

Being sued by Calvary/Winn in California...do I use Doctrine of Laches when responding?

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2 hours ago, Gasman4571 said:

@sadinca, If I read the Plaintiff's Answer to the BOP correctly, I'm curious if Plaintiff in this matter has filed a Privilege Log with the Court.

 

i am willing to put money on the table and bet that they haven't, and if they did OP would probably be aware of the filing. those are just boilerplate objections that JDBs utilize time again and again. BOP demands itemization of the account, statements, receipts, contract etc, if they exist, were created during the alleged relationship between OC and OP, not between OC and its lawyer, and much less were those documents the work product of OC attorney. 

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26 minutes ago, sadinca said:

think of it this way: do you know for sure they are the assignee of OC? not saying that the alleged bill of sale they produced is forged, however, the bill of sale has to be authenticated by a witness. 

The Bill of Sale is signed by a person who, I think, have the title: SVP Collections and Recovery.  It's deceptive though because right before his name, the bank name is listed. No personal account info is included on this bill of sale (only on the Schedule excerpt. So, I would definitely say, no, I don't know they are the assignee of the OC. The only thing that tells me that is that is how they list themselves on the complaint as Plaintiffs. Just because they say it is so, doesn't mean it is, right?  

So, if the bill of sale only has one signature from someone possibly within Calvary and no witness signature or verification form with it, it would be called into question in court?

Thank you for clarifying!!

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27 minutes ago, sadinca said:

i am willing to put money on the table and bet that they haven't, and if they did OP would probably be aware of the filing. those are just boilerplate objections that JDBs utilize time again and again. BOP demands itemization of the account, statements, receipts, contract etc, if they exist, were created during the alleged relationship between OC and OP, not between OC and its lawyer, and much less were those documents the work product of OC attorney. 

Ok, showing my igorance here but what is OP? I know OC and JDB but OP? I looked at the case online to see what has been filed and there is no mention of a Privilege log. What is that? 

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2 minutes ago, navy joy said:

Just because they say it is so, doesn't mean it is, right?  

specially a vulture feeding feeding off dead accounts. 

5 minutes ago, navy joy said:

So, if the bill of sale only has one signature from someone possibly within Calvary and no witness signature or verification form with it, it would be called into question in court?

i would bring it into question specially because it only has one signature. bill of sale, that i can think of, have two signatures; buyers and sellers. 

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3 minutes ago, navy joy said:

Ok, showing my igorance here but what is OP? I know OC and JDB but OP? I looked at the case online to see what has been filed and there is no mention of a Privilege log. What is that? 

OP, would be Original Poster, thats you. 

a privilege log would be a list and a description of documents that plaintiff deems privileged. an example of that would be trade secrets of how plaintiff conducts business. 

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On ‎3‎/‎1‎/‎2018 at 5:04 PM, navy joy said:

Yes, both my request and my husband's BOP request was on pleading paper.  I think this freaked me out a bit more because 1) it looks official; 2) it's different than what they sent my husband and 3) all of their jargon in what I typed above. What are they saying exactly and can I use any of that? I know they are giving smoke and mirrors to answering the BOP - is it just a bunch of fluff to cover up the fact that they most likely don't have any other paperwork than what they've sent us 3 times now?

Smoke and mirriors but the BOP Motion to compel hasn't bore much fruit in LA County but did they get the response to you on time? If nit is out of the time frame push for Motion to compel. Also PM me the name of the Judge.

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11 minutes ago, Seadragon said:

Smoke and mirriors but the BOP Motion to compel hasn't bore much fruit in LA County but did they get the response to you on time? If nit is out of the time frame push for Motion to compel. Also PM me the name of the Judge.

I see That you are in NorCal

redacted replyMotion to preclude.doc

redacted Motion to preclude 1.doc

outline to crush distefano.txt

Seadragon's California Discovery Requests.zip

redacted Argument for preclusion markrev.doc

ESI RFPD.zip

redacted memoppomottocompel.zip

Don't freak out just front loading you for the next round

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Thank you so much, @sadinca Got the answer filed on Friday and is recorded as such. Took a deep breath, took the weekend off, as you suggested, and am now turning my attention to next steps. Thank you so much for the meet and confer letter.  Can you explain what this is exactly? Am I requesting to meet with them? You had mentioned earlier that some have had mixed results with the meet and confer letter and pushing for motion to compel. Is it something I should pursue? What is the risk in pursuing it? Worst case scenario?

Thank you @Seadragon I really appreciate the documents you've linked! I just filed my answer on Friday and am now looking at my next steps which would be a meet and confer letter. Sadinca has been so helpful in providing a template and thoughts on including a motion to compel or not.  I am in NorCal and a judge has not been assigned to my case yet. Forgive my ignorance but what are the documents you have attached exactly?  and when/how do I send them? 

To you both, am I completely naive in hoping the Plaintiff will just drop this? 

Thank you, again, for your help! I am so grateful!

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Also, @sadinca when do I send the meet and confer letter? And are you firmly not recommending it include a motion to compel? Do I send it to them certified mail?

Thank you SO much for your help! The letter is brilliant and addresses each of their objections well!

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@Seadragon I just looked at the certified mail receipts and then the BOP response dates of when I received their answers and they are in compliance. I did receive the packets (my husband and I sent separate BOPS) within the 10 day timeframe.  

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13 minutes ago, navy joy said:

@Seadragon I just looked at the certified mail receipts and then the BOP response dates of when I received their answers and they are in compliance. I did receive the packets (my husband and I sent separate BOPS) within the 10 day timeframe.  

Were they sitting at your mail box to verify you received them? I would act as if it did not show up. I mean it is a busy law office who said the secretary really mailed it? Just saying, fight fire with fire. Made up case, made up evidence you got to smear them with non compliance label to win.

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7 minutes ago, Seadragon said:

Were they sitting at your mail box to verify you received them? I would act as if it did not show up. I mean it is a busy law office who said the secretary really mailed it? Just saying, fight fire with fire. Made up case, made up evidence you got to smear them with non compliance label to win.

It's the mailbox rule.  All they have to do is testify that they mailed it. 

Evanston Ins. Company v. 155 Hamilton Development, LLC, CA Court of Appeal, 2nd District, Division 2

"Evidence Code section 641 states: "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." The presumption accorded by Evidence Code section 641 is one that affects the burden of producing evidence. It requires the trier of fact to assume a letter correctly addressed and properly mailed was received unless and until evidence is introduced to support a finding that it was not. (Evid. Code, § 604.)"

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19 minutes ago, BV80 said:

It's the mailbox rule.  All they have to do is testify that they mailed it. 

Evanston Ins. Company v. 155 Hamilton Development, LLC, CA Court of Appeal, 2nd District, Division 2

"Evidence Code section 641 states: "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." The presumption accorded by Evidence Code section 641 is one that affects the burden of producing evidence. It requires the trier of fact to assume a letter correctly addressed and properly mailed was received unless and until evidence is introduced to support a finding that it was not. (Evid. Code, § 604.)"

But it still raises the spectre of they are lying. You see they would have to go through the hassle. Who ever said we have to be nice to them.

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3 minutes ago, Seadragon said:

But it still raises the spectre of they are lying. You see they would have to go through the hassle. Who ever said we have to be nice to them.

 I disagree. It does not raise the specter that they are lying, and they would not have to go through a hassle.  

According to the evidence rule, it would be up to the OP to prove that the mail was not received.   

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40 minutes ago, BV80 said:

It's the mailbox rule.  All they have to do is testify that they mailed it. 

Evanston Ins. Company v. 155 Hamilton Development, LLC, CA Court of Appeal, 2nd District, Division 2

"Evidence Code section 641 states: "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." The presumption accorded by Evidence Code section 641 is one that affects the burden of producing evidence. It requires the trier of fact to assume a letter correctly addressed and properly mailed was received unless and until evidence is introduced to support a finding that it was not. (Evid. Code, § 604.)"

The trier of fact must assume that a letter was received (absent contravening evidence) if such letter is correctly addressed and properly mailed.

So, is testimony all it takes to demonstrate that the letter was correctly addressed and properly mailed?  Is the believability or persuasiveness of the witness all that matters?  Would other evidence about the entity or individual's usual mailing practices be considered? 

Suppose, for example, that a consumer plaintiff in a fdcpa action (in the same district/circuit) mailed a cease and desist notice to a debt collector by ordinary first class mail.

Debt collector doesn't cease and desist.  Debt collector claims nonreceipt of the notice.  Consumer plaintiff testifies that the notice was correctly addressed and properly mailed.

Must the notice be admitted as evidence?

If it must, then the cost of certified mail seems like an unnecessary expense.

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As has been shown on this site and others, Plaintiffs have said they did not receive vital paperwork and were believed. If you bring up that you did not receive the response and push on it to compel or prevent them from entering evidence it will make what has become extreme lassitude with court procedures to be tightened up. Vigorous litigation is the requirement for a defendants attorney, as well as a pro per.

In my opinion, a small push at this stage will show the temperament of the judge and let you know where you stand.

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1 hour ago, Xerxes said:

So, is testimony all it takes to demonstrate that the letter was correctly addressed and properly mailed?  Is the believability or persuasiveness of the witness all that matters?  Would other evidence about the entity or individual's usual mailing practices be considered? 

In Springfield v. Metropolitan (CA Court of Appeals, 2013), an affidavit of service was enough proof that a document was served.

"In light of the presumption of Evidence Code section 641, this affidavit is sufficient to satisfy the court that all acts necessary to effect service were performed in a timely fashion and that actual delivery would occur in the ordinary course of mail.'"

1 hour ago, Xerxes said:

Suppose, for example, that a consumer plaintiff in a fdcpa action (in the same district/circuit) mailed a cease and desist notice to a debt collector by ordinary first class mail.

Debt collector doesn't cease and desist.  Debt collector claims nonreceipt of the notice.  Consumer plaintiff testifies that the notice was correctly addressed and properly mailed.

Must the notice be admitted as evidence?

If it must, then the cost of certified mail seems like an unnecessary expense.

The law doesn't require that letters sent by consumers must be sent by certified mail.  That is merely what has been suggested in order to make it easier for a consumer to prove he sent, for instance, a timely request for validation.  The date on the receipt would be proof the letter was sent within 30 days of receiving an initial communication.  It also makes it less likely that a debt collector will bother to claim a letter was not received.

Again, it's not required, but it does make it easier for the consumer.

In this instance, the OP received the mail.   To testify otherwise would be a lie.

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16 hours ago, navy joy said:

Thank you so much for the meet and confer letter.  Can you explain what this is exactly? Am I requesting to meet with them?

Before moving to compel discovery, compel further BOP California law CCP  §2016.040  requires that the parties "meet and confer." Meet and confer would mean to make a legitimate good faith attempt to resolve the dispute. you are not requesting to meet physically; you meet and confer via mail. the dispute you would be trying to resolve would be the deficient response to your BOP demand. 

if you decide to send the meet and confer letter plaintiff  can 1-amplify its response, 2- double down on their objections, or 3- ignore it. 

if your M&C letter contains verbiage threatening to MTC, option 3 would raise your chances of a successful. During my wife's case then during my case @calawyer advised us against threatening to MTC and not following through if plaintiff decides for option 2 or 3. 

16 hours ago, navy joy said:

You had mentioned earlier that some have had mixed results with the meet and confer letter and pushing for motion to compel. Is it something I should pursue? What is the risk in pursuing it? Worst case scenario?

i cannot say if this is something YOU should pursue. this would have to be a personal choice. MTCs are very involved, with lots of typing, a few trips to the court for filing, very tight deadlines to file a reply to plaintiff's opposition to your motion. you should also keep in mind that you may be required to speak in front of the judge and defend your motion. plaintiff may be physically represented or may phone in. 

Some courts utilize Tentative Ruling, which means the judge reads your motion, plaintiffs opposition and your reply and makes a tentative ruling on the merits of your motion the evening before the hearing is scheduled. if you are satisfied with the tentative ruling, you are good to go, unless your or plaintiff are dissatisfied with the tentative ruling, you would need to call the court before closing time to request oral arguments the following day.

https://saclaw.org/wp-content/uploads/sbs-motion-to-compel-discovery-responses.pdf

 

as to worse case scenario CCP 2031.310 http://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2031-310.html in section (h) states that the court can impose monetary sanctions who unsuccessfully makes or opposes a motion for any of these reasons http://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2023-010.html (as you can see section (i) failing to confer in good faith. 

my wife went through a Motion to Compel, froze in front of the judge and folded. she didn't get sanction because she followed the rules, and her motion was in good faith and reasonable. 

during my case, i didnt MTC further BOP, however i did meet and confer. just so JDB would know that i knew the law and the rules and its answers were not bought. i saved the threat of MTC for after plaintiff objected to my discovery questions. 

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17 hours ago, navy joy said:

Do I send it to them certified mail?

i would cent them CMRRR in case you need to bring it up in court. 

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@sadinca Thank you SO much for your explanations! Is there a timeframe in which I should send a meet and confer letter?

Right now, I don't know what to do or what the next steps are. I've filed our answer, just got the copy of it certified by the court today and now what?? Do I wait for them to respond? The court to respond and assign a judge? Send the meet and confer or wait to do that?

Thank you, again, for all of the help you've provided up to this point! I'm really grateful for it!

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14 hours ago, navy joy said:

Right now, I don't know what to do or what the next steps are. I've filed our answer, just got the copy of it certified by the court today and now what?? Do I wait for them to respond? The court to respond and assign a judge? Send the meet and confer or wait to do that?

the next step for plaintiff would be to serve you with its discovery question. I notice JDBs serve discovery question 30 to 60 days after they receive your answer. 

what i would do in your case (and what i did in my case) is to serve the M&C letter, with out threatening to MTC. then sit back and keep learning as much as you can regarding Civil Procedure, caselaws, objections, motions, etc. save the MTC for discovery when you feel more confident. 

have you read Homelessincalifornia's threat? 

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@sadinca Thank you so much! I have read all of HomelessinCalifornia's thread. So inspiring but also intimidating.  I think the reality is I dread going to court and would rather avoid it. I keep hoping they'll dismiss because it's not worth the hassle for them but I'm beginning to think that is pie in the sky thinking. 

I'll go ahead and send my M&C letter via Certified Mail this weekend, Monday morning at the latest. 

 

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I just want to reiterate that all correspondence you mail to plaintiff must be sent with a Proof of Service. 

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