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DSmithKMA

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Everything posted by DSmithKMA

  1. Yeah, they're all real weenies. They actually didn't show at the General Sessions hearing and I won a default for 10K. They appealed though. Credigy Services, Inc. is its own entity. Stewart & Assoc. are the legal arm, although they are a seperate entity as well. Credigy's president is Brett Samsky and S&A's is Steve Stewart. S&A are actually defending the action. Their 'representative liason' for Tennessee is Steve Crawford from Memphis. Funny they couldn't find someone here in Nashville to represent them. Crawford doesn't know the difference between the FCRA and PETA. I've got a thread here somewhere detailing all that's happened. But I'm looking for a lawyer. AFter their refusal to respond to my second rounds of discovery, I've had it. Let some barrister make some money from this.
  2. Xan, I'm still in Circuit court with my case against Credigy...they refuse to settle and lately I haven't heard a peep out of them. I'm looking for an attorney now...this is taking WAY too much time for me to fight by myself. I thought about removing the suit to federal, as their lawyer is not admitted to the fed bar.
  3. I don't think Experian removes that often...it's TU that likes to use that tactic. I know now if I ever have to sue TU again, I'll file directly in federal. My opinion is CRA's like to remove to federal, especially against a pro se plaintiff, for sheer intimidation. Didn't work for TU when I filed against them in SCC. I simply educated myself on federal procedure and we settled after a while. Also, in every pleading I filed, I inserted, at the outset, the following: Haines v. Kerner, 404 U.S. 520 (1971) Plaintiff-inmate filed pro se complaint against prison seeking compensation for damages sustained while placed in solitary confinement. In finding plaintiff's complaint legally sufficient, Supreme Court found that pro se pleadings should be held to "less stringent standards" than those drafted by attorneys. That doesn't mean you don't follow the rules, but you don't need to be an attorney to have "substantial justice" done.
  4. I filed the motion to deem the req. for admissions as admitted. I gave the defendant until Monday on the rest (Interrogs, and Prod. of Docs.) So if Monday rolls around and no response...another motion will be filed.
  5. Well, just because you "see" them as being wrong and at fault doesn't mean they think they are so they fight it. Another thing, they may be waiting for you to screw up and get the suit dismissed.
  6. I have to agree with you Doc. The judicial system (and to an extent, legislative as well) was created by lawyers for lawyers...kind of an "exclusive" club, made very complex. However, if it was simple, there wouldn't be a need for as many lawyers (except the great ones on this board).
  7. Gotchya! Thanks again. I have a hearing on 10/29...unless, of course, the defendant doesn't reply by 5:00PM on the Monday before the Friday on which the motion will be heard, in which case the motion is granted.
  8. Thanks RA ...that's kind of the way I was leaning but wasn't totally sure. I've never been to a motion hearing. So when I attend a motion hearing, do I just repeat what my paper motion says?
  9. I'm kind of in the same boat, as our rules are somewhat vague. Our rule 26 really doesn't address any sort of time table and what happens if you DON'T request an oral hearing when you submit a motion. http://www.nashville.gov/circuit/circuit/circuitlocalrules.asp#26
  10. You need to check your court rules to see when discovery is allowed to be sent. A scheduling conference is a meeting where all parties try to agree on a timetable of events, such as when discovery will end, when the trial will be, etc.
  11. No. Discovery is a "system" of finding out what the other side has, in terms of evidence. There are four standard discovery tools used: 1. Interrogatories 2. Request for Production of Documents 3. Request for Admissions 4. Depositions A sample of an interrogatory might be: Identify all persons known to you, who have knowledge of facts relevant to this case, including, but not limited to, all persons interviewed by you, by your counsel, or by any person cooperating with you in the defense of this action, and state the subject matter of testimony, giving a brief description thereof, for each person you may call as a witness in this case. Request for Document: Any and all documents that you believe establish that plaintiff had an outstanding account or debt related to account XXXXXXXXX Request for Admission: Admit that the plaintiff does not possess a ‘credit application’ or any other documentation evidencing the alleged debt, bearing the plaintiff’s signature, that attributes her as responsible for the alleged debt. The following link has more sample discovery used in an FDCPA suit. http://www.consumerlaw.org/publications/manuals/content/samples/M8fdc_591-595.pdf
  12. Given the fact most credit reports are reduced to merely a credit "score", I doubt a written explaination is beneficial.
  13. First off, is this your debt and can Unifund prove it is? If so, you don't have grounds for filing a counter-complaint because review of your credit report for collection of an account is a PP. Now, your state says: Collection activities of collection agencies are generally governed under the Illinois Collection Agency Act (225 ILCS 425/1, et seq.) The State of Illinois does not permit any collection agencies to conduct business without first obtaining a certificate of registration from the Director of Department of Registration and Education. A registered collection agency must file a surety bond in the amount of $25,000. (225 ILCS 425/8) Unifund isn't listed as being licensed. Also, a search on the Illinois Secretary of State website show Unifund's corporate status as being revoked. SInce they don't have a license or are properly registered with the state, I don't see how they're able to legally transact business, including filing a lawsuit.
  14. Wait a second...have you been sued? Please give us a quick background from the beginning.
  15. The FDCPA defines what a collection agency is. The FDCPA is federal law. This trumps any state law definition. (6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include -- (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; ( any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts; © any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties; (D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt; (E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.
  16. You want to file a Motion for Leave to Amend Plaintiff's Complaint. Do a Yahoo or Google search on the whole underlined term above. You should be able to find one to adapt to your needs. Remember to follow your court's rules in preparing a motion.
  17. Slow down... A brief background on what's happened so far would help.
  18. Little update: The defendant's responses to my second round of discovery was due this past Monday. Guess what? They didn't send it. Imagine that. Tonight I'm preparing a Motion to Deem Request for Admissions Admitted and file it first thing tomorrow morning, as well as a Motion to Compel the rest (Req. for Docs and Interrogs). This is the second time I've had to file a Motion to Compel. I'm asking for sanctions this time.
  19. Oh, forgot to mention...I also sent them a second round of discovery as well. Some of their responses to my first batch raised questions that need answered.
  20. Thanks for the encouragement! And if they are watching...I will never give up, give in, or surrender. I will be on this like a bulldog on a bone, until I hear the jury foreman utter the words, "We, the jury, find in favor of the plaintiff and award actual damages, statutory damages and punitive damages in the amount of $$$$$."
  21. Boy, it's been a while since I posted! To answer your question, Doc...a little...not much. The defendant appealed the SCC default judgment and now we're in Circuit court. I've sent them discovery and they responded to it in typical lawyer "avoidancese" (no offense board attorneys). What I mean by that is, they're responses were clearly inadequate. For instance, in regards to my Req. for Doc. Prod., they claimed atty-client privilege when I requested all of the collection records of the alleged account. They also denied ever accessing my credit report, even though there are two inquiries plainly showing they did in Jan and Feb/2004. They claim the inquiries are where they updated the account. They either don't understand what an 'inquiry' is, or they're trying to shuck-n-jive me. I've sent Equifax a subpeonea and an affidavit for them to attest to the fact the defendant did, in fact, obtain my report twice. Just yesterday I filed a Motion to Compel discovery and a Brief in Support. Trial date is Nov 17. I'm also going to depose two of the CA's employees in a few weeks. I simply can't understand whay they're trying to defend this. They have no documentation whatsoever, that shows the creation of the alleged debt. Apparently the the OC was Associates, who sold it to First Select, who sold it to Credigy. The only docs they provided was a nebulous 'Bill of Sale' showing that Credigy allegedly bought a portfolio of debt. They also have this one lined spreadsheet hat could have been made up with information obtained from my credit report. They're incredulous. My Motion to Compel (actually the Brief) is scathing in their lack of response. Here's the Brief in Support: BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DISCOVERY PRELIMINARY STATEMENT The plaintiff alleges the defendant violated the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Tennessee Consumer Protection Act, and defendant’s actions have resulted in negligence, invasion of privacy, mental distress, humiliation, and defamation of character upon the plaintiff. BACKGROUND On June 19, 2003, plaintiff obtained a copy of his consumer credit report in order to do a routine examination of the contents and found a ‘First Select’ (hereafter “FS”) account appearing that was not plaintiff’s. Plaintiff contacted FS by phone disputing information and was informed that the alleged account had been sold to Credigy and advised to contact them as well. Plaintiff contacted Credigy in a preemptive move to prevent Credigy from reporting the erroneous account and damaging plaintiff’s credit reputation. Plaintiff was assured by Credigy employee, Rona Radcliffe, who is no longer with the company, the issue “would be taken care of”. On January 29, 2004 the plaintiff discovered the defendant had reported the erroneous account to consumer credit reporting agency, Equifax. This information, which stated the account was a collection account, caused the plaintiff to be denied credit, as this was the only negative information contained on plaintiff’s credit report. The defendant also obtained the plaintiff’s consumer credit reports without a permissible purpose on two occasions, as well as failed to report the erroneous account as disputed, in violation of the FDCPA. The Plaintiff sent the defendant combined discovery on June 24, 2004 (received on June 28th) and received the defendant’s responses back on August 2. However, some of the defendant’s responses were inadequate and inappropriate. The plaintiff contacted the defendant, by letters dated August 3 and August 23, 2004, trying to rectify the dispute but to no avail. ARGUMENT Information is discoverable if “relevant to the claim or defense of any party” or if it “appears reasonably calculated to lead to the discovery of admissible evidence.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); Lewis v. ACB Bus. Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). Further, “It is well established that the scope of discovery is within the sound discretion of the trial court.” Coleman v. American Red Cross, 23F.3d 1091, 1096 (6th Cir.1994) (quoting United States v. Guy, 978 F.2d 934, 938 (6th Cir. 1992)). In Johnson v. Nissan North America, Inc. (2004 Tenn. App. Nash. LEXIS 338), discovery rules are accorded broad and liberal treatment for mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation, Hickman v. Taylor 329 U.S. 495, 507, 67 S. Ct. 385, 392, 91 L. Ed. 451 (U.S. 1947); however, [*9] though the scope of discovery is broad, it does have limits. Miller v. Doctor's General Hospital, 76 F.R.D. 136, 139 (W.D. Okl. 1977). "The basic positive touchstone is relevance, including the reasonable possibility that the information sought would lead to admissible evidence." Miller at 139. The Tennessee Rules of Civil Procedure strike a balance between two important policies. "The first, and perhaps more important, policy is that discovery should enable the parties and the courts to seek the truth so that disputes will be decided by facts rather than by legal maneuvering." (citations omitted) White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). "The second policy is that the discovery rules should not permit less diligent lawyers to benefit from the work of their more diligent opponents." (citations omitted) Id. at 223. I. Plaintiff’s Interrogatories to Defendant A.) Plaintiff’s Interrogatory number 5 requests: List and explain all abbreviations and code words, letters, numerals, or symbols regularly used by you in your records of collection activities. Defendant’s response: “Interrogatory #5 is objected to as calling for information which is irrelevant to the factual and legal issues in the within action and is filed for the purpose of harassing or annoying Defendant, rather than seeking discovery of matters relevant to this lawsuit” However, this information is relevant to identify and define any codes or symbols used by the defendant in their collection records. In Yancey v. Hooten, 180 F.R.D. 203, 213 (D. Conn. 1998), the court ordered the production of collection records and a key to codes used therein. The plaintiff requests the Court to order the defendant to answer. B.) Plaintiff’s Interrogatory number 7 requests: Please describe your procedure and policy with respect to the maintenance, preservation, and destruction of documents, stating in your answer whether any documents or things relating to any information requested in these interrogatories, or related in any way to this lawsuit, have ever been destroyed or are no longer in your custody. For each such document, please identify the document, how, when and why each document was destroyed or otherwise left your control, the identity of any person who participated in any way in the destruction and/or action for destroying the document or to transfer it out of your control or custody; and if the document still exists, identify the person now having control or custody of the document. Defendant’s response: “Interrogatory #7 is objected to as calling for an improper narrative response. It is further objected to as an improper compound interrogatory. Furthermore, th production of the requested information and/or documents would be burdensome and oppressive. The requested information and associated documents, whether they exist or not, is relevant in that the plaintiff is trying to ascertain upon what basis the defendant reported the account to Equifax, as well as believed they had a permissible purpose in acquiring plaintiff’s credit reports. This requested information is pertinent as is establishes the routine procedures that Credigy employs or doesn’t employ, as to the existence of documentation evidencing the creation of the alleged debt in question. The plaintiff maintains this account is not, nor ever was, his and is simply requesting what documentation, if any, Credigy routinely obtains when purchasing debt and how that documentation is, or is not, maintained. The plaintiff requests the Court to order the defendant to answer. II. Plaintiff’s Request for Admissions A.) Plaintiff’s Req. for Admissions number 6 requests: Admit that defendant accessed plaintiff’s credit reports in January and February, 2004 Defendant’s Response: “Objection. See attached sheet.”[Plaintiff’s request for Admission #6 is objected to on the grounds that it is vague, uncertain and confusing; as a consequence of which, Defendant is unable to ascertain the intent or meaning of the question. Without waiving said objection, defendant states that it never retrieved or examined the Plaintiff’s credit report.] This request is not vague, uncertain, or confusing. In the amended Complaint, Exhibit “D” (and “D”, page 2) clearly show inquiries by Credigy in Jan/2004 and Feb/2004. It is a fact that inquiries are records of an entity requesting, accessing, obtaining, acquiring, or viewing a consumer’s credit report. The plaintiff requests the Court to order the defendant to respond. B.) Plaintiff’s Req. for Admissions number 8 requests: Admit that Credigy does not possess any itemized statements, such as credit billing statements, if applicable, or any other documentation from“Assoc-6810001799XXXX”, or any other alleged debt, that attributes him as responsible for the alleged debt in any way, shape, form, or fashion. Defendant’s Response: “Denied.” However, Tenn. R. Civ. P. 36.01 demands specificity when a request for admission is denied. In addition the instructions at the beginning of the Req. For Admissions stated, If you deny any of the following requests for admissions, please state all relevant facts and documentation, on which you base your denial, including any witnesses having knowledge of such issues. The plaintiff requests the Court to order the defendant to deny with particularity. C.) Plaintiff’s Req. for Admissions number 11 requests: Admit that Credigy also does business under the name of Stewart & Associates. Defendant’s response: “Denied.” Again, Tenn. R. Civ. P. 36.01 demands specificity when a request for admission is denied. The plaintiff requests the Court to order the defendant to deny with particularity. D.) Plaintiff’s Req. for Admissions number 12 requests: Admit you did not have a permissible purpose to acquire plaintiff’s credit report. Defendant’s response: “Denied.” Again, Tenn. R. Civ. P. 36.01 demands specificity when a request for admission is denied. . By denying, the defendant is inferring they did have a permissible purpose to obtain plaintiff’s credit report. The plaintiff requests the Court to order the defendant to deny with particularity. E.) Plaintiff’s Req. for Admissions number 15 requests: Admit that prior to reporting the account information to Equifax and acquiring the plaintiff’s credit report, Credigy did not contact the plaintiff in any manner. Defendant’s response: “Denied.” Again, Tenn. R. Civ. P. 36.01 demands specificity when a request for admission is denied. By denying, the defendant is inferring they contacted the plaintiff. The plaintiff requests the Court to order the defendant to deny with particularity. F.) Plaintiff’s Req. for Admissions number 17 requests: Admit that Credigy accessed plaintiff’s credit report after January 29, 2004, specifically in February of 2004. Defendant’s response: “Objection. See attached sheet.”[Plaintiff’s request for Admission #17 is objected to on the grounds that it is vague, uncertain and confusing; as a consequence of which, Defendant is unable to ascertain the intent or meaning of the question. Without waiving said objection, Defendant states that it updated Plaintiff’s credit report in February 2004.] This request is not vague, uncertain, or confusing. In the amended Complaint, Exhibit “D” (and “D”, page 2) clearly show inquiries by Credigy in Jan/2004 and Feb/2004. It is a fact that inquiries are records of an entity requesting, accessing, obtaining, acquiring, or viewing a consumer’s credit report. The plaintiff requests the Court to order the defendant to deny with particularity. III. Request for Production of Documents A.) Plaintiff’s Request for Production of Documents number 12 requests: Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the plaintiff and/or “Assoc-6810001799XXXX”. Defendant’s Response: “Request number 12 is objected to as calling for matters protected by the attorney-client privilege. Without waiving said objections, Defendant will supplement its response to this request if and when documents not potentially subject to privilege become available.” It is well established that collection companies keep notes regarding a debt that relate to events such as when dunning letters are sent, when a collection call to the debtor is made, when a payment is received, etc. The plaintiff seeks this information to further bolster his position that the defendant either knew or should have reasonably known the alleged account was not his, yet the defendant reported it to Equifax anyway and accessed his credit report twice, without a permissible purpose. The information sought is not privileged nor attorney work product. Further, the attorney-client privilege "belongs" to the client Smith County Educ. a$$'n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984). The plaintiff fails to see how ‘collection notes’ would be considered a “client” under any circumstance. In Yancey v. Hooten, 180 F.R.D. 203, 213 (D. Conn. 1998), the court ordered the production of collection records and a key to codes used therein. The plaintiff requests this Court to order the defendant to produce the aforementioned documents. CONCLUSION In order to prepare for trial, which is scheduled for November 17, 2004, the plaintiff must have cooperation from the defendant as discovery is pursued. WHEREFORE, by the foregoing, the plaintiff prays this Honorable Court grant plaintiff’s Motion to Compel Discovery. Respectfully Submitted this 31ST day of August, 2004
  22. My opinion is if you become aware of further infractions not realized at the beginning of the action, you absolutely have the right to amend your complaint. Otherwise, why would the courts allow it at all? ANy attorneys care to weigh in?
  23. calawyer, Does it work the same way for, say, embarassment, humiliation, etc?
  24. You can also avail yourself to the Waiver of Summons. Fill out 2 copies and mail it, certified, along with the Complaint to the defendant. Also, they are not allowed to refuse the Waiver just because they don't believe the suit is just and can be compelled to pay costs to serve them. You can find the form on your stste's US District court website.
  25. I'm sure he's allowed to practice in TN after doing a bit more research. Anyway, I just sent the defendant my Notice of Jury Demand, per the TN Rules Civ. Proc. #38.03, as well as a boatload of discovery.
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