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Hello All,

I have lurked on this forum for over a year now.  I have filed my response to JDB's counsel Harris and Zide.  My case has fallen into the hands of arbitration (judicial non-binding).  Of course I got a Declaration in Lieu of Testimony and there was no name of the affiant nor an address.  I sent JDB's counsel a meet and confer letter (CC'd arbitrator) and they basically told me to kick rocks and were rude and nasty...so I am unable to subpoena their witness for cross examination.  I will object to the affiant's declaration but I am not sure how to do that in my brief or if I should, any thoughts?.  This case has been going on since July of last year and I know that I do have the fall back of requesting trial if I don't like the arbitrator's response so I am not too concerned or should I be? Does anyone have a sample Defendant's arbitration brief to share?...A copy of Plaintiff's brief is attached... I am also preparing my motion to strike, motion in limine and request for summary judgment for failure to state a claim once arb is done I didn't know to do this a year ago.  They also sent junk and no precise chain of title/assignment...same game just a different player.  Please let me know if you have any issues thoughts or concerns. 

 

"My meet and confer letter is attached here is there response:

Dear Ms. XXXX:

 

  1. The meet and confer code section you reference does not apply to the issues you have presented.  That code section addresses issues with discovery responses.  My office last provided discovery responses to you in February.  The deadline bring a motion with regard to any issues you had with those responses has long passed.

 

  1. The court has referred this matter to arbitration and expects the arbitration completed within a reasonable time.  Plaintiff intends to go forward with the arbitration as ordered by the court.

 

 

  1. Plaintiff believes its form complaint sufficiently pleads a cause of action.  If you do not agree, then it is up to you to determine what steps you should be taking.

 

  1. Plaintiff believes it has submitted sufficient evidence in its declaration to support entry of judgment.  If you do not agree, then again, it is up to you to determine how to address that.

 

  1. Plaintiff’s declaration is being used pursuant to the California Rules of Court for use of declarations at an Arbitration.  The Code of Civil Procedure rules regarding use of a declaration at trial do not apply to an arbitration.

 

Plaintiff disagrees with your position and contentions and will vigorously any and all of the baseless motions you claim you will file.

 

Sincerely.

 

Flint Zide

 

lvnv.doc

lvnv brief.pdf

By the way I did seek to find legal counsel (defense counsel and consumer attorneys in my area) but none would take my case because the amount they are suing me for is so low (they said they would not feel right billing me $250.00 per hour for a $1700.00 claim) SMH...OC Credit One and JDB LVNV Funding...

declaration in lieu of testimony.pdf

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No one responded to my question but I wanted to update those that may need to hear this.  I wrote my arbitration brief which should be attached and LVNV's legal counsel failed to show up and after waiting 30 mins the arbitrator ruled in my favor.  I believe that they did not show up because I called them out on their only piece of evidence which was a declaration that I completely tore apart.  Good luck out there and may God Bless us all!

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P.S.  The arbitrator called their office the day before and twice while we were waiting.  No attorney every got on the phone just the secretary asking for a continuance and the arbitrator said NO.  He said the Defendant is here and has been waiting and we are not waiting any longer.  I mean who does that-no call no show.  SMH

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Wow! Nice job.

One warning to others - California plays by different rules than most other places. In most jurisdictions, court-ordered arbitration/mediation is just used to try to get parties to settle - they have no power to issue a ruling.

 

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I think the most important part of my arbitration brief that made them no show is when I wrote this as my conclusion: 

 

Without live testimony from a qualified custodian of records from each entity in the assignment chain, Plaintiff will fail to authenticate the documents from LVNV Funding LLC and Resurgent Capital Services as "business records" falling under the business records exception to the Hearsay Rule. Because Plaintiff cannot succeed on its claims without these documents, Plaintiff is not entitled to any recovery on its Complaint. Plaintiff’s methods involving this case are at a minimum frivolous, unethical, unconscionable, and akin to acts of moral turpitude bordering criminal activities.  Pretending to have information of an alleged debt, filing a lawsuit without the proper documents, using deceit, deception and trickery is demonstrative of unclean hands and fraud upon the court. 

Finally, Plaintiff completely fails to demonstrate that it has rights to collect and sue on XXXX’s purported account. For these reasons, defendant respectfully requests that the arbitrator enter judgment in favor of XXXX.

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They have 30 or 60 days (I can't remember) to request a trial de novo.  So we shall see.  Hopefully they take the loss and move on and out of my life. 

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