Court in 3 Weeks- Need Help- Me vs. Cach LLC (California)

[Chills22]

Hello, I just received the response to my CCP 96. It consists of years worth of billing statements, the bill of sale of the debt, my responses to their interrogatories, a notice for me to appear, and an affidavit from an employee of the original creditor signed in 2015 and notarized.    

There is no address listed for me to serve the employee of the original creditor it only lists the city of Virginia on the affidavit. 

I know that many people have had success by subpoenaing the people who are submitting declarations to verify the records. But I haven't read about what anyone has done in a situation where it is an old affidavit signed by a supposed employee of the original creditor and notarized.  

[sadinca]

13 minutes ago, Chills22 said:

I haven't read about what anyone has done in a situation where it is an old affidavit signed by a supposed employee of the original creditor and notarized.  

object. affidavits are not admissible if objected to. 

have you received a ccp 98 in lieu of personal testimony?

[sadinca]

are you within 30 days prior to trial?

[Chills22]

No, I did not receive a CCP 98 in Lieu of Personal Testimony. It is just an affidavit from 2015 signed and notarized by what is claimed to be an employee of the original creditor. The trial is on March 29th. 

[sadinca]

i would not worry much about that affidavit. 

AFFIDAVIT OF SALE – must object or you waive right.

 

“OBJECTION Your Honor, Affidavit of Sale is HEARSAY, See, Elkins v. Superior court and cases cited therein), it also LACKS FOUNDATION, and Declarant LACKS PERSONAL KNOWLEDGE”

 

·        Hearsay (Evidence Code § 1200)

·        No Foundation (Evidence Code § 1271)

§  Sale is Hearsay.

§  Declarant not familiar with CHASE business processes

o   Not made in the regular course of business (Evidence Code § 1271a)

o   Not made at or near the time of the event. (Evidence Code § 1271b)

§  Sale between Chase and Hilco not Equable

§  Agreement made Nov 20, 2009 but notorized in 2012

§  Writing made for purpose of lititgation

o   Witness not qualified as Custodian of Records (Evidence Code § 1271c)

§  Declarant can’t testify to the mode of preparation

§  Declarant not familiar with how CHASE prepared BOS and Affidavit of Sale

o   Source of writing untrustworthy (Evidence Code § 1271d)

o   Method of preparation untrustworthy (Evidence Code § 1271d)

 

·        Does not comply with CCP 2015.5

o   No CHASE representative states:

     “I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct”.  Date and Signed

[sadinca]

are you working on your written objections (MIL) and trial briefs? 

 

[Chills22]

Yes, that is why I am trying to figure out how I should approach the MIL and trial brief with what they are planning to present. 

[sadinca]

i have a few templates if you need them. let me know. 

[Chills22]

Yes, I would like any help I can get. The difference in this case is they have an affidavit from the original creditor not from their own company attesting to the validity of the records. 

[Seadragon]

was prepared for litigation Plus the CCP2015.5 argument are key points

California-Trial-Objections.doc

NEW REDACTED TRIAL BRIEF 060313.doc

REDACTED QUESTIONS FOR PLAINTIFF'S WITNESS(ES).docx

California-Trial-Hearsay-Exceptions.doc

[sadinca]

20 hours ago, Chills22 said:

an affidavit from an employee of the original creditor signed in 2015 and notarized.

Is the person signing the affidavit named in the witness list they provided? did they produce a list of witness that will appear at trial?

[Chills22]

They did not send a witness list. 

They sent a document titled Plaintiff's Response to Defendant's Request For Statement of Witness and Evidence. It says the plaintiff intends to introduce the following testimony at the trial: A. Testimony of Plaintiff's Person Most Knowledgeable. B. Testimony of Defendant. 

Plaintiff also intends to introduce the following evidence: Copy of Charge off statement, Copy of statements for Defendants Account from May 2011 through February 2013, Copy of Plaintiff's Bill of Sale, Copy of Plaintiff's Affidavit of Assignment, Copy of correspondence from Plaintiff's counsel to Defendant notifying of intent to file suit, Copy of Defendant's answer, Copy of Defendant's responses to discovery, notice to appear.     

They then attached everything. That was all that was sent.

The affidavit is an affidavit of assignment. It says it is from an employee of the OC. 

[sadinca]

1 hour ago, Chills22 said:

They sent a document titled Plaintiff's Response to Defendant's Request For Statement of Witness and Evidence. It says the plaintiff intends to introduce the following testimony at the trial: A. Testimony of Plaintiff's Person Most Knowledgeable. B. Testimony of Defendant. 

how can you prepare to cross exterminate an alleged witness if you dont know his or her identity? you may want to send plaintiff a letter. 

Dear___

 

Defendant have received Plaintiff's response to the request to identify witnesses and evidence pursuant to CCP section 96.  In response, Plaintiff has stated that it intends to call "Plaintiff's custodian of records".  This response is insufficient under the Code.

 

As CCP 96 specifically states, a responding party must give " the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial".  Plaintiff's response does not identify any witness by name much less give an address.  Please be advised that Defendant intends to object to any witness that Plaintiff attempts to call at trial.

 

[sadinca]

if plaintiff also "reserved its right to amend its witness list at any time prior to trial" you may also want to include something like this in your letter:

 

Name

address

adress

 

February 26, 2015

 

JDB

adress

adress

 

Re: JDB, LLC v. Defendant. Case Number: xxxxxxxxxxx

 

Dear JDB, LLC and Their Attorneys of Record:

 

I am in receipt of your response to Defendant's Request for Statement of Witnesses and Evidence in which you state "Plaintiff, (JDB) reserves the right to amend this Witness List at any time prior to or during trial." In your response, you further allege, "Plaintiff reserves the right to introduce exhibits not provided on this list for impeachment or other purposes."   

 

California Code of Civil Procedure § 96 explicitly states "(d) No additional amended or late statement is permitted [by the responding party] except by written stipulation or unless ordered for good cause on noticed motion."

 

California CCP § 97 further elaborates, and specifies:

 

"(a) Except as provided in this section, upon objection of a party who served a request in compliance with Section 96, no party required to serve a responding statement may call a witness or introduce evidence, except for purposes of impeachment, against the objecting party unless the witness or evidence was included in the statement served.

 

                (b) The exceptions to subdivision (a) are:

                (1) A person who, in his or her individual capacity, is a party to the litigation and who calls himself or herself as a witness.

                (2) An adverse party.

                (3) Witnesses and evidence used solely for the purposes of impeachment.

                (4) Documents obtained by discovery authorized by this chapter.

                (5) The Court may, upon such terms as may be just (including, but not limited to, continuing

                the trial for a reasonable period of time and awarding costs and litigation expenses), permit

                a party to call a witness or introduce evidence which is required to be, but is not included

                in such party's statement so long as the court finds that such party has made a good faith

effort to comply with subdivision (c) of Section 96 or that the failure to comply was the result of his or her mistake, inadvertence, surprise or excusable neglect as provided in Section 473.

                (c) Nothing in this article limits the introduction of evidence in any hearing pursuant to

                Section 585. 

             

As specified in CCP § 97, witnesses or evidence not included in the responding statement are inadmissible; except, for the sole "purposes of impeachment." Evidence cannot be introduced for purported "other purposes" at Plaintiff's leisure.

Please be advised that Defendant intends to object should Plaintiff attempt to call any witness or use any document that is not listed on Plaintiff's response dated 02/18/2015.

 

 

Respectfully,

 

 

Defendant's Name, Defendant in Pro Per

 

          

[Chills22]

I can definitely send them that letter. How does this affect what I should submit to the court?

[sadinca]

this letter does not affect anything you should submit to the court. 

[sadinca]

if you havent already. i would recommend you start working on your written objections to submit to court. 

Objection to Affidavit of Indebtedness_redacted.doc

[Chills22]

19 hours ago, sadinca said:

how can you prepare to cross exterminate an alleged witness if you dont know his or her identity? you may want to send plaintiff a letter. 

Dear___

 

Defendant have received Plaintiff's response to the request to identify witnesses and evidence pursuant to CCP section 96.  In response, Plaintiff has stated that it intends to call "Plaintiff's custodian of records".  This response is insufficient under the Code.

 

As CCP 96 specifically states, a responding party must give " the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial".  Plaintiff's response does not identify any witness by name much less give an address.  Please be advised that Defendant intends to object to any witness that Plaintiff attempts to call at trial.

 

I am sending this letter off today. Have they missed the time period where they can still supply me with a witness list or by sending this does it still allow them to send me a list that complies with CCP 96? The trial is now in exactly 20 days. 

[sadinca]

unfortunately for the plaintiff, that ship has sailed: as you can read on the second letter i posted 

California Code of Civil Procedure § 96 explicitly states "(d) No additional amended or late statement is permitted [by the responding party] except by written stipulation or unless ordered for good cause on noticed motion."

[Chills22]

54 minutes ago, sadinca said:

if you havent already. i would recommend you start working on your written objections to submit to court. 

Objection to Affidavit of Indebtedness_redacted.doc

This is really great. Thank you. Do I need to schedule a motion hearing for this or just submit it and it will be discussed at the trial? 

If I am able to prevent them from calling any witnesses because of the lack of witness list, and the judge rules that they cannot use the Plaintiff's Affidavit of Assignment based on the motion, that would leave them with the billing statements and their bill of sale.  

[sadinca]

2 minutes ago, Chills22 said:

This is really great. Thank you. Do I need to schedule a motion hearing for this or just submit it and it will be discussed at the trial? 

i know the template i posted says Motion in Liminie, in trying to get that fixed. @Calawyer has previously recommended that dont call them MIL, but instead just Defendant Objections. 

[sadinca]

4 minutes ago, Chills22 said:

If I am able to prevent them from calling any witnesses because of the lack of witness list, and the judge rules that they cannot use the Plaintiff's Affidavit of Assignment based on the motion, that would leave them with the billing statements and their bill of sale. 

The judge should not accept Plaintiff's Affidavit of Assignment because you will object to it written and verbally when they attempt to introduce it during trial. Besides, i bet $1 that it is not even sworn under penalty of perjury under the laws of the State of California. is it?

[Chills22]

19 minutes ago, sadinca said:

The judge should not accept Plaintiff's Affidavit of Assignment because you will object to it written and verbally when they attempt to introduce it during trial. Besides, i bet $1 that it is not even sworn under penalty of perjury under the laws of the State of California. is it?

It does not say anything about penalty of perjury. This is exactly what it says:

I am an employee of (Original Creditor) an agent and affiliate of ("Seller"). assignee of HSBC Bank, Nevada, N.A. which owned the account of the customer (s) named below under the account number specified. The account was subsequently sold, assigned and transferred to ("Buyer") on or about XX, XX, 2013.

The statements in this affidavit are based on the computerized and/or hard copy books and records of the Seller, maintained in the ordinary course of business, the entries having been made by a regularly operated business. The affiant is authorized to make the statements and representations herein.

Customer (s): Chills22 (Although my name is incorrect here and on all billing statements and I was sued under the wrong name. Also this was a joint account with my ex-wife and only I was sued although they still list Does 1-10)

Account Number: Blacked out except for last 4 digits 

A computerized ending balance and charge off date were maintained on the Seller's database.

The end balance showing on the books and records of the Seller at the time of assignment of the account to Buyer was $1,XXX on XX XX, 2013. 

The charge off date maintained on the Seller's database for this account is XX XX, 2013.

Dated this XX day of XXX Month 2015 year.

Employee Signature

Commonwealth of VIRGINIA, County of CHESTERFIELD

Sworn and subscribed before me on this XX day of XXX, 2015

Notary Public Signature and stamp. 

 

[sadinca]

there you go. as you can see this affidavit does not even ATTEMPT comply with CCP 2015.5

[Chills22]

3 hours ago, sadinca said:

there you go. as you can see this affidavit does not even ATTEMPT comply with CCP 2015.5

Should I put this in my motion. I sent the letter out to opposing counsel today. What else should I be doing?