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I will apologize for my absence at another time.  But I had to post the news of this gift we received today from the California Supreme Court.

 

Cal Supremes held that a CCP section 98 declarant must be subject to actual personal service at the address given, and that the requirement is not satisfied by the defendant/defense counsel agreeing to accept service of a subpoena at that address. 

 

 

The case is Meza v. Portfolio Recovery Associates  http://www.courts.ca.gov/opinions/documents/S242799.PDF

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That means you don't have to leave it at the phony address. You weren't supposed to before, but judges gave leniency to the JDB if you didn't. Now there is a Supreme court backing for not doing that.  Good for CA.

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Amazing news!!  Thank you @calawyer !!!

EDIT:  To all you California folks who are wondering why this post is PINNED -- keep reading.  Five (5) posts below (post #10), I provide a detailed breakdown of how this new ruling can help you WIN.

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On 2/15/2019 at 12:15 PM, calawyer said:

Cal Supremes held that a CCP section 98 declarant must be subject to actual personal service at the address given, and that the requirement is not satisfied by the defendant/defense counsel agreeing to accept service of a subpoena at that address. 

 

 

The case is Meza v. Portfolio Recovery Associates  http://www.courts.ca.gov/opinions/documents/S242799.PDF

** Before I say anything ... CAN SOMEONE PLEASE MAKE THIS A STICKY.  And/or add it to the "Case Law" section of the forum.  This is really important and useful case law!  Thanks, fellas! **

I finally hunkered down and actually READ the ENTIRE official ruling of the California Supreme Court on this.

So beautiful!  Perfect. Legal. Logical. Amazing.

At the end you're left going, "Well, of course! Duh!"

Thank you California Supreme Court!  Thank you Chief Justice Cantil-Sakauye! Thank you Julia Meza! Thank you Raeon R. Roulston, Esq and the entire team at Consumer Law Center!  And anyone and everyone involved in this win!

If you want to see the actual oral arguments in front of the California Supreme Court, here's the link:

http://jcc.granicus.com/player/clip/856?view_id=12

The Meza v. PRA case starts at 1:01.  It happens during the morning  session of the "Supreme Court Oral Argument 2019-01-08"

Great poise by Roulston in arguing in front of the California Supreme Court and answering questions from the Justices!

Great win for all of us!  Especially in California!

Thanks again, @calawyer for keeping us informed!  You rock!!

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@calawyer Does this also work for Original Creditors declaration of how records are kept etc. and the exhibit A of cardmember agreement and exhibit B of all credit card statements?

Plaintiff's declaration was from a "litigation support coordinator for Discover Products Inc., successor by merger to DB Seervicing Corporation, the servicing affiliate of Discover Bank."

I am in california and this was "excecuted in New Albany, Ohio. If called as a witness, I could cmpentenetly testify to the matter stated herein. 

NO ADDRESS or SERVICE ADDRESS was included in the declaration. 

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A HUGE THANKS to @Harry Seaward for pinning this post!  Everyone in California thanks you!! 🥳

And, of course, huge thank you to @calawyer!

California peeps -- remember:

No more arguing and ambiguity -- The Supreme Court of California has said that THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD.

Modify ALL your documents with this new ruling!

Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019)

For anyone in California seeing this post for the first time and thinking, "why is this post so important?"  It breaks down like this (with a huge thanks to @ASTMedic's original breakdown):

( ... I am guessing you have already read @ASTMedic's thread and/or @HomelessInCalifornia's thread to familiarize yourself with the entire process.  If not, I'll link them at the bottom. Remember ... there is a LONG process before we get to this point. Read up. Learn. Do. And DO NOT MISS DEADLINES!  YOU GOT THIS!!)  Here we go:

  • 45 days before the day of the trial, you will send a DISC-015 FORM pertaining to CCP 96. The CCP 96 (through the DISC-015) makes the JDB disclose everything they intend to use in court -- names and address of witnesses they intend to call, documents they intend to use, & photo/physical evidence they intend to use at trial. If they don't disclose it to you in the mandated time (within 20 days of service of the DISC-015), then they can't use it in court.  YOU CANNOT MISS THE DEADLINE FOR THIS and YOU MUST USE THIS TOOL if you intend to WIN.  Again, DO NOT MISS THE DEADLINE for when you are supposed to send this to the plaintiff (through their attorneys)!!
  • They (plaintiff's attorneys) will send you a package with the documents they plan to use and the list of witnesses. 
  • In California they are allowed, through CCP 98, to submit an "Affidavit in lieu of live testimony."  Meaning, a piece of paper signed by someone saying all the papers they (plaintiff) plan to use are good.  They have to serve this Affidavit to you, "at least 30 days prior to the trial" (per CCP 98(a)).  This is a way to make litigation less expensive (CCP 96 and CCP 98 are all part of the law governing "Economic Litigation for Limited Civil Cases"), and that way not have to send a LIVE PERSON to testify in court. 

The thing is, as you should know by now:

  1. The papers they sent you are hearsay ... until someone authenticates them.
  2. This "Affidavit in lieu of live testimony" is their attempt to authenticate these hearsay documents they sent you.  The thing is, this Affidavit is most likely signed by someone who works for the JDB (not the OC) ... so they are trying to use a BOGUS way to apply the "business records exception to the hearsay rule" hoping you don't know they are doing this.  The fact is: THIS PERSON THAT WORKS FOR THE JDB CANNOT PROPERLY AUTHENTICATE THESE DOCUMENTS.  Only someone from the OC can properly authenticate these documents.
  3.  In California, regardless of the plaintiff's ability to submit this Affidavit, YOU STILL HAVE THE RIGHT TO FACE THIS PERSON THAT SIGNED THE AFFIDAVIT ... IN COURT.  But YOU MUST ASK to face this person in court.  You do this through a SUBPOENA.
  • Now ... if you don't do anything (if you don't ASK to face this person in court) ... you're pretty much done, because the court will accept the Affidavit submitted by the plaintiff, AND will accept all the documents that the plaintiff submitted -- hearsay or not.  So ... YOU. ARE. 💀💀💀!!!
  • But, of course, YOU WILL DO SOMETHING.
  • Here is what you do.  When you receive the package of documents and the list of witnesses (see above), and the "Affidavit in lieu of Live Testimony" -- attached to that Affidavit they have to provide, per CCP 98(a), "... a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial."  You will pick the address closest to the court and YOU WILL PAY FOR SOMEONE TO PERSONALLY SERVE A SUBPOENA to the person that signed the Affidavit (the "affiant" -- aka. the witness that you want to show up to court) in those "20 days." The earlier in those 20 days, the better!! (if you have a fee waiver, the County Sheriff will do it for free).
  • "Personally Serve" means to give it to the actual person that signed the Affidavit (affiant), and not just leave it there, or give it to someone else that happens to be/work there.
  • You pay for someone (or if you have a fee waiver, the County Sheriff will do it for free) to PERSONALLY SERVE a Subpoena,  because 99% of the time that person (the affiant) isn't going to be available for PERSONAL SERVICE at the address they provided.  For a variety of reasons ... like the fact that most of these people work/live out of state.

Before this ruling by the Supreme Court of California there was a lot of arguing and ambiguity about if the affiant actually had to be "personally served."  NO MORE. THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD.

  • So, after you've tried to PERSONALLY SERVE the subpoena to the affiant unsuccessfully, you will include this fact -- together with this case law -- in your Motion in Limine (MIL) in order to make sure all of the papers they want to introduce in court are INADMISSIBLE.
  • NO PERSON TO AUTHENTICATE hearsay documents IN PERSON ... documents are can't be used.
  • NO EVIDENCE ... the plaintiff DOES NOT HAVE STANDING TO SUE.

Remember -- most of the time JDBs do not want to pay for the affiant to fly all the way to California to be witnesses in a trial.  If they have several cases in different days, all month long, all year long, it gets expensive -- hence, the Affidavits.

BUT ... SOMETIMES THEY DO SEND THE AFFIANT TO TESTIFY!!  It does happen, and you MUST be prepared to deal with that!!  I won't cover that in this post -- just remember ... if the affiant works for the JDB, then they cannot properly authenticate the documents and the "business records exception to the hearsay rule" DOES NOT APPLY.  You can be prepared for that!!

And also remember -- YOU MUST SUBMIT A MOTION IN LIMINE (MIL)!!  (sometimes several of them).  Some courts/judges allow oral MILs, some DO NOT.  Your best bet is to WRITE UP YOUR MIL (it helps you prepare!) and submit it before the court's deadline!!  Make sure you know of your LOCAL COURT RULES to make sure you KNOW the deadlines to submit your MIL.  And make sure you know if the deadline is in "court days" or just regular days.  LA County has a nifty "court day calculator" here:

http://www.lacourt.org/courtdatecalculator/ui/

Remember, this post has to do with the new CCP 98 ruling of the Supreme Court of California:

Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019)

If you want to read the actual ruling (and you should), here is a .pdf:

SUPREME_CCP98_win_Meza_vs_Portfolio_Feb2019.PDF

In a post above I posted the link of the actual oral arguments in front of the Supreme Court of California. It is a FASCINATING WATCH!  Especially if you want to witness poise under pressure, and what it takes to be truly prepared to argue your case in front of a judge.

And remember:

  1. I AM NOT AN ATTORNEY.  So caveat emptor, YMMV, I am not responsible, do your due dilligence, etc, etc, etc.
  2. I am just simplifying the process for those of us who are not lawyers or experts and need a little guidance in order to know how to proceed. You need to read more than just this post!  And you need to become UTTERLY FAMILIAR with the SPECIFICS of YOUR CASE, which may be completely different than someone else's case!!!
  3. I am simplifying the ruling of the Supreme Court of California in order to make it useful for people in this forum.  There is more meat in that bone (like the fact that if you are a "party" to the lawsuit, then you don't need a subpoena to be called to attend trial), but this is about JDB lawsuits -- and in JDB lawsuits, the affiant is 99.999999% of the time not a "party" to the lawsuit and the only way to get someone who is not a "party" to the lawsuit to appear in court IS THROUGH A SUBPOENA.
  4. This post DOES NOT cover A LOT of things like, "what is standing to sue," the use of a Bill of Particulars, Discovery, how to write a proper Motion in Limine, what is hearsay, the specifics of the "business record exemption to the hearsay rule," Subpoenas, on, and on, and ON!  THIS POST DOES NOT COVER A LOT OF THINGS YOU MUST KNOW in order to be successful and be properly prepared to WIN.
  5. But the answers are in this forum and there are a ton of people that are willing to help you find the answers in this forum or in other places.
  6. THIS IS NOT -- I REPEAT ... NOT -- THE ONLY STRATEGY YOU SHOULD BASE YOUR CASE ON.  DO NOT PUT ALL YOUR EGGS IN ONE BASKET!!  I REPEAT, DO NOT PUT ALL YOUR EGGS IN ONE BASKET!!!!
  7. I AM NOT AN ATTORNEY.
  8. Did I mention that I AM NOT AN ATTORNEY?

Like I said at the beginning, I recommend you read @ASTMedic's brilliant thread, and also @HomelessInCalifornia's outstanding thread -- which are chock-full of information, resources, and guidance!!  Here they are:

And with this, I bid you adieu.  I wish everyone strength, stamina, and a relentless love for self!  Always remember, no matter your current situation, YOU ARE WORTHY!  I DO NOT CARE HOW CHEESY THIS SOUNDS!!  You are NOT defined by your past mistakes, bad breaks, or current situation!!  Many have gotten through this!! And all of us who have, are not any more "special" than you.  If we can do it, so can you!!

YOU GOT THIS!! 🔥

@LoveIsPower

 

 

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Hi @LoveIsPower

Thank you for the breakdown! Unfortunately, I missed the deadline for CCP 96. I have not received a CCP 98.  The trial is set for Oct. 4, 2019 and today is September 8, 2019.  What recourse, if any, do I have to recover my standing against the JDB? Have I forfeited my ability to file MIL? 

Thank you so much for any help you can provide! 

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On 9/8/2019 at 10:00 PM, navy joy said:

Thank you for the breakdown! Unfortunately, I missed the deadline for CCP 96. I have not received a CCP 98.  The trial is set for Oct. 4, 2019 and today is September 8, 2019. 

Hi @navy joy!  Let me get this straight ... you have NOT been served (received) an "Affidavit in Lieu of Live testimony" from the plaintiff?  And your trial is Oct 4?  Because ... they missed the deadline.  

EDIT:  To clarify, just in case -- for proper "service," they have to put it in the mail 30 days prior to the trial.  That means last week on September 4th (I think, double check this).   Since it's been 8 days (today is Sept 12), you should have received it by now.  Have you?

CCP 98 says, "... To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies: 
(a)
 A copy has been served on the party against whom it is offered at least 30 days prior to the trial ..."

Here is the actual link from the California Legislature:

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=98.&lawCode=CCP

So now the only way to authenticate the documents they sent you is to ACTUALLY SEND A LIVE PERSON to testify on the day of the trial.  Something they may not want to do.

If they don't do that, their documents are hearsay!  BUT YOU HAVE TO RAISE THIS FACT IN YOUR MOTION IN LIMINE (MIL)!!!!

On 9/8/2019 at 10:00 PM, navy joy said:

What recourse, if any, do I have to recover my standing against the JDB? Have I forfeited my ability to file MIL? 

Let's get something out of the way:  you have not forfeited your ability to file a MIL.  And you must focus on learning how and crafting a killer MIL.

Since you missed the deadline to send the CCP 96 request, right now the tricky part is figuring out a way to ask for their "witness list."   Why?  Because you have to tailor your MIL to take down their evidence AND this witness.

Hopefully other California peeps chime in and offer suggestions.  Or you may have to dig a bit in the forums to find someone that was in a similar boat as you -- I'm sure there are plenty.

My suggestion is to find out your LOCAL COURT RULES.  There are deadlines for submitting your MILs, as well as submitting to the court your evidence, documents, trial briefs, and witness list.  If both parties have to submit documents to the court BEFORE the deadline to submit the MIL, you're in luck.  Just prep your MIL well so you can "insert" the name of the person.  (Remember, your MIL will have to be adjusted depending if the witness works for the JDB or the OC ... although they rarely work for the OC.  But you have to be ready for both).

ALSO ... some LOCAL COURT RULES require parties to prepare JOINT statements, witness lists, even briefs.  If that's the case for you, you're in luck, since all you'll have to do is send a "Meet and Confer" email or letter asking to start the exchange of information in order to prepare the JOINT documentation required by the court.  And you have to do that with plenty of time in order to meet the Court's deadlines for submission.  When you get the witness name and info, you'll be ready to insert it in your amazingly crafted MIL.

You've got to get crackin' ASAP!!  You've got a little, tiny bit of time -- not much --  but enough to kick some azz!!

You got this!

Hope this helps!

Edited by LoveIsPower
clarification on "service" deadline for CCP 98.

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21 hours ago, LoveIsPower said:

Hi @navy joy!  Let me get this straight ... you have NOT been served (received) an "Affidavit in Lieu of Live testimony" from the plaintiff?  And your trial is Oct 4?  Because ... they missed the deadline.  

EDIT:  To clarify, just in case -- for proper "service," they have to put it in the mail 30 days prior to the trial.  That means last week on September 4th (I think, double check this).   Since it's been 8 days (today is Sept 12), you should have received it by now.  Have you?

Hi @LoveIsPower! Thank you so much for your response! 

To answer your questions, I have not received an Affidavit in Lieu of Live Testimony at all. I just got back from the mailbox to double check it didn't come today. Nothing has been filed in court regarding that either. 

I've searched all over the forums since this weekend and am having a really hard time finding good examples of an MIL without having done the CCP 96. @RyanEX suggested (THANK YOU so much for your responses as well) I just make my MIL more general and addressing what they sent via BOP which was 10 statements, a general/sketchy bill of sale that makes no mention of me or my account and that's about it. 

I'm looking at the MIL examples posted on the forums and online and I'm trying to figure out what I say, in legalese, to address my objections without being too specific.

Also, I researched and can't find any local rules that stipulate MIL dates or Trial Brief deadlines. In fact, I've read a few articles that discouraged a Trial Brief (or at least implied it was unnecessary) for Sacramento courts. I, on the other hand, believe it would help my situation and let Winn Law Group know that I intend to show up and fight (especially since I didn't get my CCP 96 in).  Do I send it anyway and, if so, what "rule" do I follow for  a deadline since this doesn't seem to be the norm for Sacramento courts?

Thank you so very much for your responses and knowledge in this area. I've been reading these forums every free moment I have and, had I sent my CCP 96 in, I would have definitely followed how Homeless in CA conducted their case! So inspiring to read! However, my circumstances feel so different that I'm having a hard time finding "like" cases on here.  @RyanEX I took your advice and messaged @jcman but it shows they haven't been on the forums since they posted the dismissal and I haven't heard from them. Yet. Reading over their posts, though, it seems like they didn't do any filing or responses in the weeks and days before the trial or, if so, didn't detail out what they did.

So if I have a little itty bit of time to get my MIL in and Trial Brief, what timeframe am I looking at (since I can't find one for Sac County)? 

Thank you in advance!

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3 hours ago, navy joy said:

Hi @LoveIsPower! Thank you so much for your response!

You got it!  Happy to help!  💪

Quick question ... do you have a thread of your own?  I ask because it is MUCH easier to answer you there -- and for everyone else to chime in too -- when ALL the information about your case is easier to access. 

Believe me, I know what it is like to feel nervous.  Posting in several threads can get a bit unhinged, though.  People trying to help you but, not everyone getting the whole story and trying to help you with bits and pieces, here and there.

It may do you good, if you don't have one, to consolidate your information and make one.  That way you can "refer" people there and they can read your whole story, what you've done and haven't, what you have and don't have, etc.

3 hours ago, navy joy said:

I've searched all over the forums since this weekend and am having a really hard time finding good examples of an MIL without having done the CCP 96. @RyanEX suggested (THANK YOU so much for your responses as well) I just make my MIL more general and addressing what they sent via BOP which was 10 statements, a general/sketchy bill of sale that makes no mention of me or my account and that's about it. 

I can't say I'm a MIL expert.  I'm sure there are much more experienced folks that can help you.  @sadinca helped me quite a bit, but, as you know, they are not posting that much any more.  You've been to @Inthedred's post where @sadinca left a lot of their documents for the final stages of the fight. MIL samples, objections, etc, etc.  That is a great place to start!  Modify as needed.

But, sorry I can't be or more help there.  Perhaps @RyanEX can guide you better.

Here is the thread, just in case:

3 hours ago, navy joy said:

Also, I researched and can't find any local rules that stipulate MIL dates or Trial Brief deadlines.

This, you CANNOT "wing."  YOU MUST -- I repeat -- MUST find out your LOCAL COURT RULES.  Go to the courthouse if you have to.  Go to the courtroom where your case will be tried and ask the clerk.  A lot of times they have them printed out for people to take.  YOU MUST KNOW THIS.

(remember, your case is "limited" -- so rules may be a little different than those for "unlimited" cases -- READ WELL)

And you also MUST KNOW YOUR COUNTY COURT RULES.  I just did a Google search on "sacramento county civil court rules" and the 2nd hit was the .pdf.  Download that, read it, scour it!  KNOW IT!!

Both of them together will give you what you need.

3 hours ago, navy joy said:

To answer your questions, I have not received an Affidavit in Lieu of Live Testimony at all. I just got back from the mailbox to double check it didn't come today. Nothing has been filed in court regarding that either. 

In my opinion this is good news for you.  This means if they don't bring someone to court to testify ... they're fried!  But ... YOU MUST MENTION THIS IN YOUR MIL!!  If you don't ... you may be fried.

3 hours ago, navy joy said:

In fact, I've read a few articles that discouraged a Trial Brief (or at least implied it was unnecessary) for Sacramento courts. I, on the other hand, believe it would help my situation and let Winn Law Group know that I intend to show up and fight (especially since I didn't get my CCP 96 in).  Do I send it anyway and, if so, what "rule" do I follow for  a deadline since this doesn't seem to be the norm for Sacramento courts?

Again, things vary from county to county (some places don't like MIL's but like "Objections" instead) -- but the fact is that YOU MUST OBJECT!!  How you object depends on your county.  Even on your particular judge.  This is why you MUST get a hold of your LOCAL COURT RULES!

But YOU MUST OBJECT!!  This is not a choice.  YOU HAVE TO OBJECT if you want to win.

In my humble opinion IT IS ALWAYS BEST TO HAVE IT IN WRITING and submit it (MIL or Objection, or whatever) before the court's deadline.  The judge may not "rule" on your MIL (EDIT: Some judges prefer "oral" MIL/Objections the day of the trial, and even DURING the trial -- so you MUST KNOW your COUNTY and LOCAL COURT RULES -- and if so, you must be ready to do it orally, ie. know when and how to orally introduce the MIL, or Objections), but anything you can do to help the judge see your side AS CLEARLY and AS EASILY AS POSSIBLE, (even when you're orally arguing your MIL/Objections) -- do it!!

Plus, it helps, in case you need to appeal.

It's better to "over" do it (submit MIL/Objections in writing), than to regret it later.

As long as you're following your COUNTY and LOCAL COURT RULES.

Hope this helps!

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Wanted to send another public congratulations to you, @navy joy for your win last Friday!

CONGRATULATIONS!! 🥳

(Since this is a pinned thread, whomever may end up here in the future may be wondering how your case ended)

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