Redlinehome

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About Redlinehome

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  1. refusing to answer in a civil case provides the judge the opportunity to hold you in civil contempt. like i said in my post ... the fifth amendment protects you from incriminating yourself from criminal actions ... not from dumb actions. so far, being dumb is not a crime.
  2. pleadings are public records whether they are online or filed in the office of the court clerk == district court, small claims court, county court, federal court. sometimes the clerks assistants will help you find cases. in larger counties these pleading are computerized and you can search by plaintiff's name. motions for summary judgment typically have rigid time frames and trigger dates. once you file it opposing counsel must answer within 21 days. motions to strike do not have a time frame trigger date and will typically be ruled on by the court in a pretrial hearing. small claims courts do not have pretrial hearings. so motions to strike get ruled on at the trial. the advantage to the motion for summary judgment is the trigger date and the fact that plaintiff must answer within 21 days. if you have the intellectual ability to prepare a motion for summary judgment go for it. put them on that rigid 21 day time frame. i promise you they do not want to work that hard.
  3. You can get any pleading you want online. Get a Pacer Account. Search your defendant's name. Do a Search for my name "Redlinehome" and read my postings in this forum regarding Midland. I think this is a sticky. Here is one of the postings in that chain: In Federal Court all pleadings can be found online. Link Here: https://pacer.login.uscourts.gov/cgi...court_id=00idx Set up an account at the Pacer Website and look at what has been done in your jurisdiction. Anyone can have a Pacer Account. You do not have to be an attorney. Do not loose your password. It will only be sent by mail, ugh. Put it in a safe place. You will find U.S. District Courts and Bankruptcy Courts here. Downside is that there is a charge of ten cents a page. Upside ... a lawyer costs a lot more than that. There is a Plantiff Defendant Index. Just type in the Plaintiff's name and look for pleadings. You don't pay the ten cents until you look at the actual pleading. You can review the docket for free. By looking at the disposition of the case and the nature of the pleadings at the online docket (which is a listing of electronic pleadings filed) you will get a pretty good idea of who was successful Type in Experian ... or any of the Credit Reporting Agencies. Always look at the Motions for Summary Judgment. This will give you a good view of what's hot in these cases. You will get a pretty good idea of which JDB has had the table turned on them with a Counterclaim or Motion for Sanction. How the Business REcord Affidavit was filed and the Motion for SUmmary Judgment should be full of legal precedent for your jurisdiction. You will probably find the very pleadings you might need and can observe successful challenges in your jurisdiction. You do not have to reinvent the wheel.
  4. Either they produce in time or they do not. Why are you sending them letters? Are you AGREEING to give them additional time? Why would you do that? During the trial show they court you requested the documents, they were not produce and now, during the trial they have no evidence. Move to strike any evidence they attempt to admit that was requested and not produced. If they have no evidence, they have no case. Move for dismissal with prejudice. That's their problem if they cannot get their client to answer. You get thirty days. You agree to give them more time or they file a Motion with the Court and ask for additional time. That's it.
  5. yes, there is a way it gets in. hearsay can ALWAYS be used to impeach. further, as an admission against interest, an exception to the hearsay rule, this gets in. do you not realize how many, many exceptions there are to the hearsay rule. plus there is no record in small claims court ... so sure, lots of things happen there that will NOT happen in a court where a court reporter is present and you may appeal from the record. Remember: the Fifth Amendment protection is not used in Civil Cases but only in criminal cases. You plead the Fifth in a civil case and you will be laughed out of court by the Judge and opposing counsel. The Fifth Amendment protection is for self incrimination regarding a CRIME. It does not protect someone from not knowing the law and saying and doing dumb things ... like posting here and believing it is private or posting here and WISHING the Fifth Amendment applied in a case like this. IT DOES NOT. Plain and Simple. Savoring with delight a facial expression ... give me a break. the only thing you will be doing is wiping egg off your face. The judge will think you are an idiot and opposing counsel will eat your lunch. Evidence 101 ---
  6. Go to work for a bankruptcy firm. They need lots of help. Business is really, really good for them. Clean the bathroom, send out mailers to people behind on their mortgage. They have tons of scut work. Then after a month or so, ask if they will 'represent' you. That means you can tell the debt collectors that you have a bankruptcy atty and you qualify for Chapter 7 because you have only a part time job and no assets. Watch them fall all over themselves trying to work with you. Do you have an atty friend? Work for ANY atty and ask if they will allow you to tell your creditors that they are advising you regarding a Chapter Seven Bankruptcy. They get really reasonable when they realize they may get zip for their claims.
  7. Unless they can prove in court that they actually bought YOUR account and have detailed information regarding YOUR account they have no proof. It costs Collection Agencies additional money to buy the details. Usually they just buy the names and and the contractual paper with your Original Creditor. They cannot provide the details regarding your original debt and how it was transferred to them. They cannot sustain their claim. If they try to introduce anything into evidence not previously furnished to you move to exclude.
  8. They do not GET additional time. You do not give them additional time. Only the Court can give them additional time. You will have a hearing on your final issue. Object to any evidence they may try to present because it was not furnished in a TIMELY response to discovery. THey will have no evidence against you. Ask the Court for a Dismissal WITH prejudice. What is this sternly worded letter crap????
  9. I cannot emphasize how strongly I disagree with the previous poster who indicates you cannot challenge a valid Business Record Affidavit from the Original Creditor. Business Record Affidavits are extremely technical and that is where you always begin. Does the affidavit comply with the state's rules on affidavits. Is it made on knowledge of facts or on the infamous INFORMATION AND BELIEF. I still see those INFORMATION AND BELIEF affidavits all the time. Those are NOT AFFIDAVITS. Is it made by a person in authority, familiar with the records, in their capacity as record keeper or HOWEVER YOUR STATE PHRASES IT. You will see a lawyer in one state draft it for evidence in another state all the time and get it wrong. DO NOT BE LAZY. READ THE BUSINESS RECORD AFFIDAVIT STATUTE TYPICALLY IN THE RULES OF EVIDENCE AND THE AFFIDAVIT STATUTE TYPICALLY IN THE RULES OF PROCEDURE. These are two different affidavit statutes but the Business Record Affidavit must comply with BOTH. Be sure it does. Check the notary with your state ... make sure they are authorized and their seal is up to date ... their bond is paid. Notaries do not pay their bonds all the time and their notarization will be INVALID. Go to the notary and ask to see her book and make sure she recorded it correctly if you want to get really technical. If there is big money involved I would do that. Check the amounts ... are they correct and are they consistent. There are errors here often. I have seen one name in the body of the affidavit and another signing the affidavit. That's an out the door violation. DO NOT BELIEVE FOR ONE MINUTE YOU CANNOT FIND AT LEAST A DOZEN THINGS TO CHALLENG ABOUT A BUSINESS RECORD AFFIDAVIT FROM AN ORIGINAL CREDITOR. In my experience one in ten cannot withstand judicial scrutiny. Get the business record thrown out ... you are in trial and they have no evidence. Move for dismissal with prejudice.
  10. The problem with a JDB and a Business Record Affidavit is that they buy this debt in bulk. It does not come with Business Record Affidavits from the Original Creditor. To get a business record affidavit from the Original Creditor will cost the JDB some cash. Not sure how much. Someone on this board ought to know that. They try to get by with these pseudo affidavits that will not withstand judicial scrutiny. Their affidavits (and I am paraphrasing) typically indicate they bought some debt from someone who said it was a valid debt. What they must have is a business record affidavit from the Original Creditor indicating that defendant (you) the Original Debtor entered into an agreement with the Original Creditor whereby you would pay the debt. I have seen them even attach some sort of general agreement to the affidavit and indicate under oath ... that most likely debtor (you) signed an agreement much like the one attached. They know this will not work and it their course of conduct is BAD FAITH for which they should be fined. You should respond with a counterclaim for BAD FAITH in your answer and file a Motion for Contempt to have them sanctioned and BEST OF ALL FINED for pulling these shenanigans.
  11. JURISDICTION AND VENUE USE ONLY IF YOU ARE IN FEDERAL COURT ... OTHERWISE USE YOUR STATE JURISDICTION IDENTIFICATION 1. In response to Paragraph 1 of the Complaint, DEFENDANT admits that Plaintiff has claimed federal jurisdiction pursuant to 15 U.S.C. § 1681(p) and under 28 U.S.C. § 1331. As to the remaining allegations in Paragraph 1, DEFENDANT denies each and every allegation contained therein. 2. In response to Paragraph 2 of the Complaint, DEFENDANT admits that Plaintiff has properly claimed that venue lies in the xxx Division. DEFENDANT also admits it is qualified to do business in the . DEFENDANT states that these are a legal conclusions, not subject to denial or admission. JURY DEMAND 3. Defendant has demanded a jury trial and paid a jury fee. PARTIES FACTUAL ALLEGATIONS 6. In response to Paragraph 6 of the Complaint, DEFENDANT does not have knowledge or information sufficient to form a belief as to the truth of these allegations and, on that basis, denies each and every allegation contained therein. REPEAT STATEMENT OF CLAIM AGAINST DEFENDANT 16. In response to Paragraph 16 of the Complaint, DEFENDANT denies each and every allegation contained therein. 17. In response to Paragraph 17 of the Complaint, denies each and every allegation contained therein. 18. In response to Paragraph 18 of the Complaint, denies each and every allegation contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Neither Plaintiff’s Complaint nor any purported cause of action asserted therein states facts sufficient to constitute a cause of action against DEFENDANT , and further fails to allege facts sufficient to entitle Plaintiff to the relief sought, or to any relief whatsoever, from DEFENDANT . SECOND AFFIRMATIVE DEFENSE (Truth/Accuracy of Information) DEFENDANT is informed and believes, and thereon alleges, that Plaintiff’s claims against DEFENDANT are barred, in whole or in part, because all information DEFENDANT communicated to any third person regarding Plaintiff was true. THIRD AFFIRMATIVE DEFENSE (Indemnification) DEFENDANT is informed and believes, and thereon alleges, that any purported damages allegedly suffered by Plaintiff is the result of the acts or omissions of third persons over whom DEFENDANT had neither control nor responsibility. FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Plaintiff has failed to mitigate his alleged damages and/or injury, if any. FIFTH AFFIRMATIVE DEFENSE (Contributory/Comparative Fault) DEFENDANT is informed and believes, and thereon alleges, that any alleged damages sustained by Plaintiff was, at least in part, caused by actions of Plaintiff and/or third parties, and resulted from Plaintiff’s or third parties’ own negligence, which equaled or exceeded any alleged negligence or wrongdoing by DEFENDANT . SIXTH AFFIRMATIVE DEFENSE (Laches) Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiff’s claims are barred, in whole or in part, by the doctrine of equitable estoppel. EIGHTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver. NINTH AFFIRMATIVE DEFENSE (Independent Intervening Cause) DEFENDANT alleges upon information and belief that if Plaintiff sustained any of the injuries alleged in the Complaint, there was an intervening, superseding cause and/or causes leading to such alleged injuries and, as such, any action on the part of DEFENDANT was not a proximate cause of the alleged injuries. TENTH AFFIRMATIVE DEFENSE (Other Defenses Incorporated by Reference) DEFENDANT hereby adopts and incorporates by this reference any and all other affirmative defenses asserted or to be asserted by any other Defendants in this proceeding. ELEVENTH AFFIRMATIVE DEFENSE (Improper Request for Punitive Damages) Plaintiff’s Complaint does not allege facts sufficient to rise to the level of conduct required to recover punitive damages, and thus all requests for punitive damages are improper. TWELFTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation. THIRTEENTH AFFIRMATIVE DEFENSE (Right to Assert Additional Defenses) DEFENDANT hereby gives notice that it intends to rely on any additional affirmative defenses that become available or apparent through discovery and/or the factual development in this case or otherwise, and thus reserves the right to amend its answer to assert such additional defenses. WHEREFORE, DEFENDANT prays for the entry of judgment in its favor and against Plaintiff as follows: 1. That this action be dismissed in its entirety and with prejudice; 2. That Plaintiff takes nothing by way of the Complaint; 3. For such other relief as this Court deems just and proper.
  12. JURISDICTION AND VENUE USE ONLY IF YOU ARE IN FEDERAL COURT ... OTHERWISE USE YOUR STATE JURISDICTION IDENTIFICATION 1. In response to Paragraph 1 of the Complaint, DEFENDANT admits that Plaintiff has claimed federal jurisdiction pursuant to 15 U.S.C. § 1681(p) and under 28 U.S.C. § 1331. As to the remaining allegations in Paragraph 1, DEFENDANT denies each and every allegation contained therein. 2. In response to Paragraph 2 of the Complaint, DEFENDANT admits that Plaintiff has properly claimed that venue lies in the xxx Division. DEFENDANT also admits it is qualified to do business in the . DEFENDANT states that these are a legal conclusions, not subject to denial or admission. JURY DEMAND 3. Defendant has demanded a jury trial and paid a jury fee. PARTIES FACTUAL ALLEGATIONS 6. In response to Paragraph 6 of the Complaint, DEFENDANT does not have knowledge or information sufficient to form a belief as to the truth of these allegations and, on that basis, denies each and every allegation contained therein. REPEAT STATEMENT OF CLAIM AGAINST DEFENDANT 16. In response to Paragraph 16 of the Complaint, DEFENDANT denies each and every allegation contained therein. 17. In response to Paragraph 17 of the Complaint, denies each and every allegation contained therein. 18. In response to Paragraph 18 of the Complaint, denies each and every allegation contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Neither Plaintiff’s Complaint nor any purported cause of action asserted therein states facts sufficient to constitute a cause of action against DEFENDANT , and further fails to allege facts sufficient to entitle Plaintiff to the relief sought, or to any relief whatsoever, from DEFENDANT . SECOND AFFIRMATIVE DEFENSE (Truth/Accuracy of Information) DEFENDANT is informed and believes, and thereon alleges, that Plaintiff’s claims against DEFENDANT are barred, in whole or in part, because all information DEFENDANT communicated to any third person regarding Plaintiff was true. THIRD AFFIRMATIVE DEFENSE (Indemnification) DEFENDANT is informed and believes, and thereon alleges, that any purported damages allegedly suffered by Plaintiff is the result of the acts or omissions of third persons over whom DEFENDANT had neither control nor responsibility. FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Plaintiff has failed to mitigate his alleged damages and/or injury, if any. FIFTH AFFIRMATIVE DEFENSE (Contributory/Comparative Fault) DEFENDANT is informed and believes, and thereon alleges, that any alleged damages sustained by Plaintiff was, at least in part, caused by actions of Plaintiff and/or third parties, and resulted from Plaintiff’s or third parties’ own negligence, which equaled or exceeded any alleged negligence or wrongdoing by DEFENDANT . SIXTH AFFIRMATIVE DEFENSE (Laches) Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiff’s claims are barred, in whole or in part, by the doctrine of equitable estoppel. EIGHTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver. NINTH AFFIRMATIVE DEFENSE (Independent Intervening Cause) DEFENDANT alleges upon information and belief that if Plaintiff sustained any of the injuries alleged in the Complaint, there was an intervening, superseding cause and/or causes leading to such alleged injuries and, as such, any action on the part of DEFENDANT was not a proximate cause of the alleged injuries. TENTH AFFIRMATIVE DEFENSE (Other Defenses Incorporated by Reference) DEFENDANT hereby adopts and incorporates by this reference any and all other affirmative defenses asserted or to be asserted by any other Defendants in this proceeding. ELEVENTH AFFIRMATIVE DEFENSE (Improper Request for Punitive Damages) Plaintiff’s Complaint does not allege facts sufficient to rise to the level of conduct required to recover punitive damages, and thus all requests for punitive damages are improper. TWELFTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation. THIRTEENTH AFFIRMATIVE DEFENSE (Right to Assert Additional Defenses) DEFENDANT hereby gives notice that it intends to rely on any additional affirmative defenses that become available or apparent through discovery and/or the factual development in this case or otherwise, and thus reserves the right to amend its answer to assert such additional defenses. WHEREFORE, DEFENDANT prays for the entry of judgment in its favor and against Plaintiff as follows: 1. That this action be dismissed in its entirety and with prejudice; 2. That Plaintiff takes nothing by way of the Complaint; 3. For such other relief as this Court deems just and proper.
  13. ORIGINAL COMPLAINT AND JURY DEMAND JURISDICTION AND VENUE 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, in that this dispute involves predominantly issues of federal law. Defendant EXPERIAN INFORMATION SOLUTIONS, INC. (“EXPERIAN”) is liable to the Plaintiff pursuant to provisions of the Fair Credit Reporting Act, 15 U.S.C. § 1681 – 1681x (the “FCRA”). The Court has jurisdiction under 15 U.S.C. § 1681p. 2. Venue lies in the LOCATION because each defendant resides in the Location. 28 U.S.C. § 1391((1). A corporate defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391©. Defendant EXPERIAN is doing business in the LOCATION. JURY DEMAND 3. Plaintiffs demand trial by jury. PARTIES 4. Plaintiff resides in LOCATION. He is a “consumer” as defined by the FCRA, 15 U.S.C. § 1681a©. 5. Defendant EXPERIAN Information Solutions, Inc. is an Ohio corporation registered to do business in the State of Texas. EXPERIAN is a “consumer reporting agency” within the meaning of the FCRA, 15 U.S.C. § 1681a. Service of process on EXPERIAN can be made through its registered agent, CALL YOUR SECRETARY OF STATE OF REGISTERED AGENT. FACTUAL ALLEGATIONS 6. On approximately DATE , the United States Department of the Treasury recorded a lien (the “IRS Lien”) against the property of Plaintiff in the COUNTY AND STATE land records, alleging that Plaintiff was indebted for unpaid federal income taxes. The lien was apparently recorded in Book 12938, Page 255 of those records. 7. Plaintiff paid the taxes due and the Treasury Department filed a release of the IRS Lien in 1998 with the COUNTY CLERK. 8. EXPERIAN added the information about the IRS Lien and its release to EXPERIAN’s database of consumer information. 9. In DATE , Plaintiff obtained a consumer report on himself from EXPERIAN. At that time, the report issued by EXPERIAN showed both the IRS Lien and its satisfaction. 11. Plaintiff’s son went to a Bank branch in to obtain credit. Plaintiff authorized the credit application for himself over the phone with a NAMEBank representative. 12. NAMEBank obtained, as part of its loan underwriting process, a consumer report from EXPERIAN. 13. The consumer report issued by EXPERIAN to NAMEBank on DATE showed the IRS Lien but did not show any satisfaction of the IRS Lien. Based on the apparently unsatisfied IRS Lien, NAMEBank turned down Plaintiff’s application for credit. NAMEBank sent a letter to Plaintiff at Plaintiff’s son’s address informing Plaintiff that his application for credit was denied for derogatory information on the EXPERIAN consumer report. The only derogatory information on Plaintiff’s EXPERIAN consumer report is the erroneous report of the unsatisfied IRS Lien. 14. Equifax Credit Information Services, Inc. is not currently reporting any information about either the IRS Lien or its release on Plaintiff’s consumer report. 15. Plaintiff suffered embarrassment and humiliation because of the incorrect information on the EXPERIAN consumer report. STATEMENT OF CLAIM AGAINST EXPERIAN 16. On information and belief, EXPERIAN failed to maintain reasonable procedures to ensure the maximum possible accuracy of the consumer credit information it reported concerning Plaintiff. 17. EXPERIAN’s actions were willful, or in the alternative negligent, violations of the FCRA. 18. Plaintiff is entitled to actual damages, punitive damages, costs, and reasonable attorney’s fees. WHEREFORE, the Plaintiff prays, after all due proceedings are had, there be judgment herein in favor of the Plaintiff and against the Defendant, as follows: enjoining Defendant from reporting the IRS Lien on Plaintiff’s consumer report; for all reasonable damages sustained by the Plaintiff; for punitive damages; and for attorney’s fees to the extent allowed by law, together with pre-judgment and post-judgment legal interest thereon. The Plaintiffs further pray for all such additional, general and equitable relief as may be necessary and proper.
  14. Pacer will have all Motions. You might want to use your State as the source for Interrogatories because each state has their own unique issues with regard to all Discovery. The only thing we use in Texas that Federal Court does not use is a form of Discovery called Request for Disclosure. These items of Disclosure are presumed in Federal Court. Request for Disclosure asks some basic questions typically found in the interrogatories. Try to look at your State Interrogatories. Motion to Compel is pretty basic. See if you can find a Credit Bureau or a Credit Reporting Agency as a defendant. The reason I suggest Pacer is because it is online, it is easy and there is a good Plaintiff/Defendant index and you will find all the major credit Bureaus being sued in virtually every federal jurisdiction in the United States.
  15. There is one old trick when it comes to records in the possession of another to which you are entitled: Provide a release authorizing them to get the records. This gives both of you equal access and when that happens ... they have to get them. Put a compliance/expiration date on the release of about one month. Obviously, this has intrinsic dangers. Attach the release to your response for their discovery. Good luck.