Tiglit18

Cali - JDB using UNIFUND CCR LLC v. DEAR for witness

Recommended Posts

Capital One is the OC but bought by PRA. No arb available..

So I was good following the how I beat Midland post until I read in the CCP98 from my JDB the case of UNIFUND CCR LLC v. DEAR. They stated that it provides that an assignees authorized representative can lay foundation and authenticate its own business records including those obtained from the original creditor.

This decision basically blows my whole plan to get their witness/evidence excluded right? Here is the decision:

https://caselaw.findlaw.com/ca-superior-court/1721470.html

My case is pretty much identical to this so am I now defenseless moving into court? Should I attempt some sort of settlement to avoid a judgement and wage garnishment?

thoughts please @Seadragon @calawyer @fisthardcheese

Share this post


Link to post
Share on other sites

@RyanEXTrial is the end of Sept. - from them I have the evidence list, trial brief, witness list and affidavit in lieu of for the witness. They are requesting the same info from me.

They changed their address to a San Diego one that is only 88 miles from the courthouse. The witness/record custodian does appear to be there as I had friends check out the place for me. 

My strategy could be to subpoena the witness and hope that they aren’t available but after that I don’t have much to stand on due to that decision. Plus the decision was made in the same county I have my trial at which if I’m not mistaken sets the tone for my commissioner.

After looking at everything they submitted I see one possible loophole to attack their standing. They provided the courts with nothing that specifically states my particular account was purchased. They only show that they bought a bunch of accounts.The 3 pieces of evidence they provided to show that the account was assigned to them is:

1: bill of sale - it basically states that they bought a bunch of accounts on a particular day. It’s signed by the appropriate people from Cap One. The set of accounts is identified by a file name of the digital records but how many accounts or what accounts were in that set is not listed.

2. Assignment of records from cap one to PRA. Nothing here mentions my particular account it only states that an assignment was made and who authorized it. 

3. A spreedsheet looking thing that doesn’t give any indication of whose record it was that lists my personal info along with my account open/closed dates, and the last 4 of the account. Nothing on this sheet indicated the account was assigned so really it’s just a bunch of my information that the OC would have had when I applied for the card.

In the CCP98 they mention an account list that was included in the agreement but that due to proprietary info it was not included. Isn’t this the key piece of info needed to show my account was purchased? Even if they blacked out all the other account numbers and just left the last 4 of mine?

thoughts? Do I have a leg to stand on if the witness does show up to the trial?

Share this post


Link to post
Share on other sites

I see a few missteps in the UNIFUND CCR LLC v. DEAR case. 1) the defendant admitted to certain things (that it was his acct, that he made charges to it, never contested any charges)... I wouldn't have admitted to any of that. 2) he didn't subpoena the CCP 98 witness. CCP 98 clearly states that a declaration is admissible if:

Quote

 

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with 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 placefor a reasonable period of time, during the 20 days immediately prior to trial.

(b) The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

 

You have a right to cross-examine a live witness. But you give that up if you don't attempt to subpoena the witness.

I'll have to read UNIFUND CCR LLC v. DEAR more closely, but there are cases that counter the idea that a JDB employee can authenticate OC records ( MacLean v. City and County of San Francisco , People v. Khaled , Cooley v. The Superior Court of Los Angeles County , Taggart v. Super Seer Corporation ).

 

Did they send you an evidence & witness list on their own or did you send them a CCP 96 request first?

And by "friends check(ed) out the place for me", what does that mean? Did they confirm the actual person works there?

 

 

Share this post


Link to post
Share on other sites

Thanks for your input.

Yes they sent everything on their own and yes I do plan to subpoena the witness. I’ll cite other more favorable court cases but most of the ones I have seen are older than 2015 when this decision came out.

My friends verified that the place is real and open since I’ve heard a lot of times they give you addresses to places that are abandoned, etc.The witness has a linkdin profile and they confirmed they saw him there.

Share this post


Link to post
Share on other sites

I would send a CCP 96 request anyway and have them make an official witnesses & evidence response to that request. You can send a CCP 96 when you are between 30-45 calendar days out from trial. Form here: DISC-015, should be served with a proof of service and via certified mail/delivery confirmation.

Sometimes they give bogus addresses, sometimes not. I was given a legit address in San Diego for mine.

Share this post


Link to post
Share on other sites

I’m glad you think I should send a CCP 96 anyways - I was on the fence about it but better to be safe than sorry I suppose. 

Every other dealing I’ve had with PRA they have walked due to Arb clauses. Once they even paid me back for my filing fees just to get me to go away. I’m hoping a bit of push back will cause the  same reaction but the amount is just about $8k so not sure they are willing to walk from that.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.