ticklemore

Sued by JDB for $42K - Unlimited Civil case in California - trial in 2 weeks!

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Hello,

This forum is great.  I've gotten so much great information from here and also wanted to share my progress.

I am currently in ligation with a junk debt buyer(JDB) who is suing me for $42K+ in an unlimited civil case in California.   Here is the timeline of how everything went down:

  • JDB sent me a letter for the first time on 10/25/2019
    • It said that they are now the owner of the debt.
    • They stated that the account was charged off on 11/21/2018 and that they're charging 10% annual interest since the charge-off date.
    • They gave me two options on paying the total obligation of $42,xxx which I can either pay monthly over 4 years or pay 80% of it at $34,xxx if I can pay in one lump sum.
    • If I disagree, they said that they may file a lawsuit to seek collection.
  • I have responded back to JDB on 11/05/2019 requesting the following:
    • Debt Buyer's right to seek collection
    • Date of default or last payment
    • Full account number
    • Chain of assignment records
  • JDB responded back with a letter on 11/13/2019 and attached
    • Full account number
    • Bill of Sale between the original credit card issuer and the 2nd owner dated 02/28/2019
    • Bill of Sale between the 2nd owner and this JDB dated 09/30/2019
  • JDB(Plaintiff) filed a complaint (lawsuit) filed for Civil – Unlimited for Other Collections on 11/26/2019
    • First Cause of Action: Breach of Credit Card Agreement
    • Second Cause of Action: Money Had and Received
    • Third Cause of Action: Money Due
  • Court sent a notice of Case Management Conference (CMC) scheduled for 02/06/2020
  • I've filed my Answer to the Complain on 12/31/2019
  • I've filed my Case Management Statement on 01/22/2019
  • Plaintiff’s attorney called me on 1/28/2019 for mandatory ‘meet and confer’ before the Case Management Conference
  • Plaintiff sent me Discovery Requests:
    • Form Interrogatories
    • Special Interrogatories
    • Request for Production of Documents
    • Request for Admission
  • Case Management Conference (CMC) occurred at the court on 02/06/2020
    • Judge set the Mandatory Settlement Conference date for 9/11/2020
    • Judge set the Court trial date for 11/09/2020
  • I've responded to Plaintiff's Discovery Request on 2/19/2020
  • I've prepared my Discovery Requests and sent below to the Plaintiff on 03/02/2020
    • Request for Admission
    • Request for Production of Documents
    • Special Interrogatories
  • Due to COVID-19, the court sent a notice that trial date postponed to 05/03/2021 and Mandatory Settlement Conference set for 02/05/2021
  • Plaintiff filed Motion For Summary Judgment/Adjudication on 07/16/2020 and Hearing was scheduled to 10/15/2020.  The following papers were served to me:
    • Memorandum of Points
    • Separate Statement
    • Declaration of JDB's employee
    • Declaration of JBD's attorney
    • Exhibits
      • Credit card agreement
      • Charge-off statement
      • 24 months of monthly statement
  • I've responded with Opposition to the Motion for Summary Judgment/Adjudication on 09/29/2020 (served with overnight delivery)
    • Memorandum of Points
    • Separate Statement
    • Objections to Plaintiff’s Evidences
    • Declaration of the Defendant
    • Exhibits
      • Bill of Sale (which does not have any specific account numbers)
      • Defendant’s Request for Production of Documents (to show that I've requested for evidence but Plaintiff has failed to produce)
  • Plaintiff filed a reply to my Opposition for MSJ/MSA on 10/08/2020
    • Response to Defendant's Additional Material Facts in Dispute
    • Reply Brief in Support of Motion for Summary Judgment
  • Court's Tentative Ruling denied Plaintiff's Motion For Summary Judgment/Adjudication
  • Hearing happened on 10/15/2020
    • Plaintiff’s attorney dialed in to challenge Judge’s tentative ruling. 
    • I've dialed into the Hearing as well (due to COVID-19).
    • After hearing arguments from both sides, the Judge took the motion under submission to review the evidences again to make the final ruling
  • Final minutes on 10/19/2020 stated that Motion for Summary Judgment/Adjudication was denied with the following explanation:
    • Plaintiff did not carry its burden(producing admissible evidence) or an assignment of Defendant's debt to Plaintiff
    • Plaintiff's employee (Declarant) didn't declare having personal knowledge of OC and previous assignor's business records
    • As a result, Plaintiff failed to show the existence of a contract between Plaintiff and Defendant or an indebtedness owed by Defendant to Plaintiff
    • Additionally, Plaintiff failed to show an assignment of Defendant's debt to Plaintiff as the Bill of Sale is devoid of any reference to Defendant's credit accounts
    • Even if Plaintiff shifted the burden to Defendant to create a triable issue of material fact, Defendant has successfully done so.

***EDIT: Now the trial is in two weeks, so I am adding some updates to this post.

  • Had the Issue Conference with the Plaintiff's attorney since this needs to be done before 14 days of the trial.
    • Plaintiff is going to add to their Exhibit List an affidavit from the original credit card issuer testifying that the documents (I guess the cardmember's agreement, the monthly statements, and bill of sale) are true.  I have requested a copy of this to review because I have not seen this affidavit before.
    • On their Witness List is a representative from Plaintiff's organization.  I am planning on objecting to his/her testimony with hearsay.
  • Now, my plan is to prepare Motions of Limine for Plaintiff's exhibits:
    • Credit card agreement
    • Charge-off statement
    • 24 months of monthly statement
    • Bill of Sale between the original credit card issuer and the 2nd owner dated 02/28/2019
    • Bill of Sale between the 2nd owner and this JDB dated 09/30/2019
    • New: Affidavit from the original credit card issuer

Is there anything else that I should be prepared for?  Or am I missing anything?  Do you have any tips or advice for the trial (my first time)?  I really appreciate your feedback.  Thank you!

Edited by ticklemore
providing update
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Man, you nailed it. I know the gurus here will help you a lot on this. I learnt a lot right now, In my case, i was sued for 30k, the bill of sale has a different amount from what they are suing me for, they are suing for a lower and different amount  from the charge off, I mean suing for less than what they alleged that I am owing. I saw it late because I did not rad through the BOS well. I had opted for arbitration before I saw the discrepancy. I am gong to go the route of 

Texas Finance Code

Sec. 392.304. FRAUDULENT, DECEPTIVE, OR MISLEADING REPRESENTATIONS. (a) Except as otherwise provided by this section, in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation that employs the following practices:  and FDCPA: sections 1692e and 1692f. SAppx19 (Compl.) ¶ 53. Section 1692e makes it unlawful for a debt collector to “use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” including by making a “false representation of …

Pls keep updating ....

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15 minutes ago, Dan001 said:

Man, you nailed it. I know the gurus here will help you a lot on this. I learnt a lot right now, In my case, i was sued for 30k, the bill of sale has a different amount from what they are suing me for, they are suing for a lower and different amount  from the charge off, I mean suing for less than what they alleged that I am owing. I saw it late because I did not rad through the BOS well. I had opted for arbitration before I saw the discrepancy. I am gong to go the route of 

Texas Finance Code

Sec. 392.304. FRAUDULENT, DECEPTIVE, OR MISLEADING REPRESENTATIONS. (a) Except as otherwise provided by this section, in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation that employs the following practices:  and FDCPA: sections 1692e and 1692f. SAppx19 (Compl.) ¶ 53. Section 1692e makes it unlawful for a debt collector to “use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” including by making a “false representation of …

Pls keep updating ....

Thanks for the feedback and good luck on your case!

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I am wondering if I should send a demand for BOP (Bill of Particulars).  During the discovery, the Plaintiff has produced:

  • Credit card agreement that's dated October 2017 which is more than 3 years after the credit card account was opened in April 2014
  • Charge-off statement dated November 2018
  • 24 months of monthly statements which only shows transactions for 30% of the total principal balance
  • 2 Bill of Sale documents (Plaintiff is 3rd owner) which doesn't show any specific account number and is missing Exhibits referred in the Bill of Sale document
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7 hours ago, ticklemore said:

I am wondering if I should send a demand for BOP (Bill of Particulars).  During the discovery, the Plaintiff has produced:

  • Credit card agreement that's dated October 2017 which is more than 3 years after the credit card account was opened in April 2014
  • Charge-off statement dated November 2018
  • 24 months of monthly statements which only shows transactions for 30% of the total principal balance
  • 2 Bill of Sale documents (Plaintiff is 3rd owner) which doesn't show any specific account number and is missing Exhibits referred in the Bill of Sale document

What are the differences between the agreement at account opening and the agreement their pushing? Usually they try to go with the agreement that was in effect at the time the account was charged off. Might be something to your advantage, possibly.

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10 hours ago, alwayswinning36 said:

What are the differences between the agreement at account opening and the agreement their pushing? Usually they try to go with the agreement that was in effect at the time the account was charged off. Might be something to your advantage, possibly.

I see. Thanks for the feedback. I don’t have any other version of the agreement to compare with the one that Plaintiff has produced.  Yes, it seems like it was effective when the charge off happened. 

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On 4/17/2021 at 10:38 PM, ticklemore said:

My trial is in two weeks now!  I'm so nervous, so I've updated my post and am looking for any advice!  Thanks.

Read up on your updates. Did they ever send you a CCP 98 Declaration/Affidavit In Leiu of Testimony. Didn't see it listed but wanted to make sure.

Sounds like the main pieces of evidence they are trying to use are affidavits, bills of sale, statements... and testimony from their own employee (a JDB employee)?

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1 hour ago, RyanEX said:

Read up on your updates. Did they ever send you a CCP 98 Declaration/Affidavit In Leiu of Testimony. Didn't see it listed but wanted to make sure.

Sounds like the main pieces of evidence they are trying to use are affidavits, bills of sale, statements... and testimony from their own employee (a JDB employee)?

No, they didn't send me CCP 98 probably because this is an unlimited civil case (over $25,000), and CCP 98 applies to limited civil cases.

Today, they sent me the affidavit rom the original creditor which I added on a separate post here: 

 

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Today, was the trial.  It was a very stressful experience trying to defend my case on my own for the first time, especially over Zoom (due to COVID).   I did file the Motions in Limine to exclude Plaintiff's evidence beforehand, but the court said that Motions in Limine was only for jury trials, so I was very disappointed.

Through the testimony of Plaintiff's custodian of records testifying to receiving them from Plaintiff's assignor, they entered into evidence the monthly statements, charge-off statements, and statements showing the dates of last payment.  I've raised objection as hearsay because the custodian is a third party to those records, but they were admitted anyway. 

However, I was able to object to the Affidavit (from the original credit card company) and the Bill of Sale documents, and they weren't admitted.  Also Plaintiff made a huge mistake of omitting one of the two Bill of Sale documents (the Plaintiff is the 3rd owner, allegedly) into the Exhibit List.  Without those document as evidence, the judge ruled in my favor!  

I'd like to thank @LoveIsPower and @RyanEX for your providing guidance and assistance!  

Now the next step is to submit my Propose Judgment and try to recover my costs of the suit through the Memorandum of Costs.

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jmeyerbiz@gmail.com

3 hours ago, ticklemore said:

Today, was the trial.  It was a very stressful experience trying to defend my case on my own for the first time, especially over Zoom (due to COVID).   I did file the Motions in Limine to exclude Plaintiff's evidence beforehand, but the court said that Motions in Limine was only for jury trials, so I was very disappointed.

Through the testimony of Plaintiff's custodian of records testifying to receiving them from Plaintiff's assignor, they entered into evidence the monthly statements, charge-off statements, and statements showing the dates of last payment.  I've raised objection as hearsay because the custodian is a third party to those records, but they were admitted anyway. 

However, I was able to object to the Affidavit (from the original credit card company) and the Bill of Sale documents, and they weren't admitted.  Also Plaintiff made a huge mistake of omitting one of the two Bill of Sale documents (the Plaintiff is the 3rd owner, allegedly) into the Exhibit List.  Without those document as evidence, the judge ruled in my favor!  

I'd like to thank @LoveIsPower and @RyanEX for your providing guidance and assistance!  

Now the next step is to submit my Propose Judgment and try to recover my costs of the suit through the Memorandum of Costs.

Oh wow! I can't imagine the stress of going into trial with this - what an awesome job you did! Congrats! And what a crushing loss for them on a $42K account!

Objections can be tricky since you have to know which ones to use. Speaking from reading another poster's experience (not my own)... sometimes hearsay isn't the right objection, it might be lack of foundation or something else, etc. I remember that member basically went thru their list of objections, repeatedly objecting to the same piece of evidence until they made the proper objection and judge ruled in their favor.

My apologies on the Motion in Limine, didn't catch how you were going to name it - it is better to rename as "Objection to..." rather than "Motion in Limine..." for that reason.

Regarding costs (my experience): I filed & served the Memorandum of Costs within the allowed time frame, then gave the JDB time to respond with a Motion to Tax (which they did not) or mail a check. I erred because after the allotted time for them to file a Motion to Tax, I should have sent a letter requesting the check, but I never did. Approx a year later I decided to get the costs and I filed a Judgment on Dismissal ( it was difficult, failed on first few tries) and then sent a letter. I received a check shortly thereafter. I think you can start with a MoC and letter, then go from there if they don't send your money.

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