medicbone

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  1. The answer definitely didn't win it. This was a basic answer that got me on to the next steps (there were a LOT of steps). Read the next 4 and let me know what you think!
  2. Plaintiff/Counter-Defendant states in its petition that [OC name redacted] is the original creditor in this matter. Therefore, no agreement exists between the Plaintiff/Counter-Defendant and the Defendant/Counter-Plaintiff. Further, the agreement attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF contains a boilerplate contract dated February 2010, seven months after the last activity on the account shown by Plaintiff/Counter-Defendant. Therefore, this agreement is invalid and inadmissible. As no agreement exists, Plaintiff/Counter-Defendant is barred from collecting on the alleged debt, and is in violation of this section of the FDCPA. 15 USC 1692g, Section 809, Subsection (a), Paragraph 1: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -- (1) the amount of the debt. Plaintiff/Counter-Defendant did not provide Defendant/Counter Plaintiff with any communication relating to the amount of the alleged debt prior to the commencement of this action. Burden of proof for proving the existence of an alleged non-existent document falls upon the Plaintiff/Counter-Defendant. 15 USC 1692g, Section 809, Subsection (d) states: A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). Therefore, the initial petition is not admissible to meet this standard. 1592 USC 1692g, Section 809, Subsection (a), Paragraph 2: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -- (2) the name of the creditor to whom the debt is owed. Plaintiff/Counter-Defendant did not provide Defendant/Counter Plaintiff with any communication relating to the creditor owed prior to the commencement of this action. Burden of proof for proving the existence of an alleged non-existent document falls upon the Plaintiff/Counter-Defendant. 15 USC 1692g, Section 809, Subsection (d) states: A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). Therefore, the initial petition is not admissible to meet this standard. 15 USC Section 1692g, Section 809, Subsection (a), Paragraph 3 and Paragraph 4: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -- (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector. (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector. (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. Plaintiff/Counter-Defendant did not provide Defendant/Counter Plaintiff with any communication stating the right to dispute the validity of the debt, that verification will be provided upon request, or that the name and address of the original creditor will be provided upon request prior to the commencement of this action. Burden of proof for proving the existence of an alleged non-existent document falls upon the Plaintiff/Counter-Defendant. 15 USC 1692g, Section 809, Subsection (d) states: A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). Therefore, the initial petition is not admissible to meet this standard. 15 USC 1692g, Section 809, Subsection (a), Paragraph 5(: If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. As noted in the attached facsimile to Plaintiff/Counter-Defendant’s attorney, Defendant/Counter-Plaintiff requested validation of the debt. Plaintiff/Counter-Defendant has failed to provide validation of the debt and is therefore barred from seeking collection on the alleged debt. Further, by commencing this action, Plaintiff/Counter-Defendant is in violation of 15 USC 1692g, Section 809, Subsection (a), Paragraph 5( for continuing collection activities without validating a debt. 15 USC 1692j, Section 812, Subsection (a): It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating. Plaintiff/Counter-Defendant states in its petition that “The original creditor [OC name redacted] provided money by credit card to Defendant and/or for the benefit of Defendant and intended that the money be repaid by Defendant.” By stating that money is owed to [OC name redacted], Plaintiff/Counter-Defendant compiled its petition to create a false belief that [OC name redacted] is a participant in this cause of action. DISPOSITION OF COUNTERCLAIM 15 USC 1692k, Section 813, Paragraph (a) states “Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person…” Therefore, any finding of uncontroverted fact on any of the listed facts is dispository, and therefore summary judgment must be granted. CONCLUSION Plaintiff/Counter-Defendant has failed to show any argument to controvert the facts presented by the Defendant/Counter-Plaintiff. It is therefore in the best interest of justice that this Court issue a Summary Judgment in favor of the Defendant/Counter-Plaintiff. [END OF COUNTERCLAIM MOTION FOR SUMMARY JUDGMENT] I know that's A LOT of stuff, but it was much easier than it looks. I sent both motions for summary judgment to the attorney via e-mail (Missouri requires electronic and paper to be transmitted on MSJ, the same for Discovery). With that I wrote a message stating: "I hope you see the futility of persuing this matter further." What a middle finger to them, right?! "In the hopes that we can resolve this matter, I will accept *this amount of money* to drop my counterclaim if you drop your claim WITH prejudice." I can't tell you how much I requested, because I signed a non-disclosure agreement WHEN THEY AGREED TO MY TERMS!!!!! So there it is. Don't just settle for a dismissal without prejudice from Midland, TAKE THE MONEY THEY STOLE FROM THE POOR FOLKS WHO DON'T READ THIS FORUM!!!
  3. And on the counterclaim, I filed this summary judgment: DEFENDANT/COUNTER-PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIM COMES NOW [name redacted], and for the legal basis of Defendant/Counter-Plaintiff’s Motion for Summary Judgment on counterclaim, states that: Plaintiff/Counter-Defendant violated various sections of the Fair Debt Collection Practices Act. Defendant/Counter-Plaintiff asserts that there is no genuine dispute as to the material facts of the counterclaim. DEFENDANT/COUNTER PLAINTIFF’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF SUMMARY JUDGMENT ON COUNTERCLAIM 1. Plaintiff/Counter-Defendant is a debt collector as defined under 15 USC 1692a, Section 803, Paragraph 6, and is therefore accountable under the Fair Debt Collection Practices Act. 2. Plaintiff/Counter-Defendant violated 15 USC 1692e, Section 807, Paragraph 2(A) by falsely representing the character, amount and legal status of the debt. Statements attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF are incomplete and invalid. Therefore, the character, amount and legal status of the debt has been falsely represented by the Plaintiff/Counter-Defendant. 3. Plaintiff/Counter-Defendant violated 15 USC 1692e, Section 807, Paragraph 10 by falsely and deceptively representing themselves in an attempt to collect a debt. Plaintiff/Counter-Defendant implies in Count 1 of its petition that [OC name redacted] is a party to this matter. While Plaintiff/Counter-Defendant objects to Paragraph 7 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF, Plaintiff/Counter-Defendant adds, “Admit that [OC name redacted] is not a party to this action.” 4. Plaintiff/Counter-Defendant violated 15 USC 1692f, Section 808, Paragraph 1 by attempting to collect a debt not expressly authorized by agreement. The agreement attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF contains a boilerplate contract dated February 2010, seven months after the last activity on the account shown by Plaintiff/Counter-Defendant. No agreement exists, therefore Plaintiff/Counter-Defendant is liable under this section. 5. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 1 by failing to provide the amount of the alleged debt within five days of the initial communication. Defendant/Counter-Plaintiff requested this instrument in Paragraphs 1 and 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF, however it was not provided. Therefore, this document should be deemed non-existent and it is the Plaintiff/Counter-Defendant’s burden to prove otherwise. 6. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 2 by failing to provide the name of the creditor to whom the debt is owed within five days of the initial communication. Defendant/Counter-Plaintiff requested this instrument in Paragraphs 1 and 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF, however it was not provided. Therefore, this document should be deemed non-existent and it is the Plaintiff/Counter-Defendant’s burden to prove otherwise. 7. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 3 by failing to notify the Defendant/Counter-Plaintiff of the right to dispute the validity of the debt within 30 days of the initial communication. Defendant/Counter-Plaintiff requested this instrument in Paragraphs 1 and 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF, however it was not provided. Therefore, this document should be deemed non-existent and it is the Plaintiff/Counter-Defendant’s burden to prove otherwise. 8. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 4 by failing to state that a validation of the debt will be furnished to the Defendant/Counter-Plaintiff upon request. Defendant/Counter-Plaintiff requested this instrument in Paragraphs 1 and 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF, however it was not provided. Therefore, this document should be deemed non-existent and it is the Plaintiff/Counter-Defendant’s burden to prove otherwise. 9. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 5 by failing to state the name and address of the original creditor will be furnished upon written request by the Defendant/Counter-Plaintiff. Defendant/Counter-Plaintiff requested this instrument in Paragraphs 1 and 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF, however it was not provided. Therefore, this document should be deemed non-existent and it is the Plaintiff/Counter-Defendant’s burden to prove otherwise. 10. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 5( by failing to cease collection activity on the alleged debt after request for validation by the Defendant/Counter-Plaintiff (see attached facsimile to Plaintiff/Counter-Defendant requesting validation of the debt). 11. Plaintiff/Counter-Defendant violated 15 USC 1692g, Section 809, Subsection (a), Paragraph 5( by failing to validate a debt prior to resuming collection activities, as evidenced by the filing of this cause of action. 12. Plaintiff/Counter-Defendant violated 15 USC 1692j, Section 812, Subsection (a) by compiling the original petition to falsely lead the Defendant/Counter-Plaintiff to believe that the original creditor was participating in the suit. Plaintiff/Counter-Defendant implies in Count 1 of its petition that [OC name redacted] is a party to this matter. While Plaintiff/Counter-Defendant objects to Paragraph 7 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF, Plaintiff/Counter-Defendant adds, “Admit that [OC name redacted] is not a party to this action.” DEFENDANT/COUNTER-PLAINTIFF’S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT ON COUNTERCLAIM COMES NOW [name redacted], Defendant pro se, and files this Memorandum in Support of Summary Judgment. INTRODUCTION Plaintiff/Counter-Defendant Midland Funding LLC commenced collection activity on the debt alleged in its petition sometime prior to March 3, 2012. On March 3, 2012, Defendant requested, through Plaintiff’s attorney, that the debt in question be validated in accordance with the Fair Debt Collection Practices Act (FDCPA), and that all communications cease until validation is received (see attached facsimile requesting validation of the debt). No further communication was made until the commencement of this cause of action, and no validation of debt was ever received by the Defendant/Counter-Plaintiff. In commencing this cause, among other violations, Plaintiff/Counter-Defendant violated multiple sections of the FDCPA. ARGUMENTS Defendant/Counter-Plaintiff’s arguments are based on 15 USC 1692, known as the Fair Debt Collection Practices Act. For the sake of brevity, the law supporting each of the Defendant/Counter-Plaintiff’s claims will be listed and argued individually. 15 USC 1692e, Section 807, Paragraph 2(A): A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (2) The false representation of (A) the character, amount, or legal status of any debt; Plaintiff/Counter-Defendant states in their original petition that “All right, title and interest in the right to receive payment as described…were assigned to [Midland Funding LLC]. However, Plaintiff/Counter-Defendant has failed to provide any proof through the discovery process that they hold any right to the alleged debt. Plaintiff/Counter-Defendant has therefore falsely represented the character and legal status of the debt. Further, Statements attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF are incomplete and invalid. Therefore, the character, amount and legal status of the debt has been falsely represented by the Plaintiff/Counter-Defendant. 15 USC 1692e, Section 807, Paragraph 10: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. Plaintiff/Counter-Defendant states in its petition that “The original creditor [OC name redacted] provided money by credit card to Defendant and/or for the benefit of Defendant and intended that the money be repaid by Defendant.” By stating that money is owed to [OC name redacted], Plaintiff/Counter-Defendant represents in a false, deceptive and misleading manner that [OC name redacted] is a party to this matter. 15 USC 1692f, Section 808, Paragraph 1: A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. http://www.creditinfocenter.com/forums/there-lawyer-house/316076-better-start-finish-against-midland-funding-llc-5-5-a.html
  4. I could have just let it go to trial and won there, but my time is valuable, so I wrote a summary judgment. READ YOUR STATE'S CIVIL PROCEDURE TO FIND OUT WHAT HAS TO BE FILED! In Missouri filing the wrong paperwork on an MSJ is enough to get it thrown out, then you have to pay the opposing attorney and the court! Missouri residents refer to Rule 74.04. You must file a MOTION FOR SUMMARY JUDGMENT, attached to that a STATEMENT OF UNCONTROVERTED FACTS, and then file a separate MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT. If you don't understand it, DON'T FILE IT!! So here's what I filed on the original petition: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMES NOW [name redacted], and for the legal basis of Defendant’s Motion for Summary Judgment, states that: 1)Plaintiff does not have a right to collect on the alleged debt as prescribed by law, and; 2)The Plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to prove any claims listed in the Plaintiff’s petition. DEFENDANT’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF SUMMARY JUDGMENT 1. Plaintiff admits in Paragraph 4 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF that the Plaintiff did not offer, sell or otherwise provide merchandise or services to Defendant. Therefore, Plaintiff cannot meet its burden as set forth in Citibank v. Whiteley. 2. Plaintiff admits in Paragraph 5 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF that the Defendant did not request merchandise or services from Plaintiff. Therefore, Plaintiff cannot meet its burden as set forth in Citibank v. Whiteley. 3. Plaintiff presents two account statements from the alleged account attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF. Neither of these statements shows a true and accurate accounting of how the Plaintiff determined the amount of the alleged debt. Further, neither of the statements show any purchases made. Therefore, Plaintiff is unable to meet their burden under the theories of Suit on Account, Breach of Contract, or Account Stated. 4. While Plaintiff objects to Paragraph 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF, Plaintiff offers no evidence that they are able to prove whether the charges on the alleged account were reasonable. Further, the account statements attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF do not show any charges made on the account. Therefore, Plaintiff is unable to meet its burden for the theory of Suit on Account as detailed in Citibank v. Whiteley. 5. Plaintiff, after an adequate period of discovery, has failed to provide any documents or affidavits necessary to properly prosecute its cause of action in accordance with the laws of the State of Missouri. DEFENDANT’S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT COMES NOW [name redacted], Defendant pro se, and files this Memorandum in Support of Summary Judgment. INTRODUCTION Plaintiff Midland Funding LLC filed suit against [name redacted], Defendant, claiming a Suit on Account for money owed through an account of credit issued by [OC name redacted]. Plaintiff asserts that it is now the owner of the debt in question and is entitled to payment on the account. STANDARD OF REVIEW “…a "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Regardless of which of these three means is employed by the "defending party," each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.” ITT Commercial Finance v. Mid-America Marine 854 S.W.2d 371 (1993). “An action on account is an action in contract for each purchase transaction.   To recover on an action on account, the plaintiff must show:  offer;  acceptance;  consideration between the parties;  correctness of the account;  and reasonableness of the charges.   Such evidence includes proof that:  defendant requested [Plaintiff] to furnish merchandise or services;  plaintiff accepted the offer of defendant by furnishing such merchandise or services;  and the charges were reasonable.”  Citibank v. Whiteley, 149 S.W.3d 599, 601 (Mo.App. S.D.2004). ARGUMENT Citibank v. Whiteley clearly defines the four necessary elements in pleading a case based on the theory of Suit on Account. Further in Whiteley, “A party bringing a cause of action cannot prevail if one or more elements of the cause of action are not supported by substantial evidence.” Using the simplified version of Citibank v. Whiteley, we can test the validity of the Plaintiff’s cause. Was there an offer of merchandise or services from the Plaintiff? No, Plaintiff is not a purveyor of goods or services, so there would be no goods or services to provide to the Defendant. While Plaintiff may argue that the merchandise or services were provided by the original creditor, Plaintiff has failed to establish that there were any goods or services exchanged between [OC name redacted] and the Defendant. In the statements attached to PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF, the only items listed are a payment for $20.00 and a late payment fee of $39.00. Clearly no goods or services were exchanged in those transactions. Further, Plaintiff admits in Paragraph 4 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF that Plaintiff did not offer, sell, or otherwise provide merchandise or services to the Defendant. Did the Defendant request merchandise or services from the Plaintiff? No, as no relationship existed between the Plaintiff and Defendant. Further, Plaintiff is not a purveyor of goods or services. In addition, Plaintiff admits in Paragraph 5 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF that the Defendant did not request merchandise or services from Plaintiff. Were the charges on the account reasonable? That cannot be ascertained based on the evidence (or lack thereof) presented by the Plaintiff. No receipts or bills of sale are submitted by the Plaintiff, so no assumption can be made as to whether or not the charges for merchandise or services were reasonable. While Plaintiff objects to Paragraph 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF, Plaintiff adds, “Upon information and belief a consumer would not purchase an item or other service in the course of ordinary business unless the consumer believed the price or charge was fair and reasonable.” This assertion cannot be admitted without creating an undue prejudice against the Defendant. It is the Plaintiff’s burden to prove the reasonableness of charges without making assumptions as set forth by Citibank v. Whiteley. Clearly the Plaintiff has failed to prove that assertion. Does the Plaintiff meet the burden for “correctness of account”? Plaintiff presents two statements in PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF. The first statement dated July 4, 2009 shows a balance due of $285.24 with no accurate accounting of how that amount was obtained. The second statement dated December 4, 2009, a full six months later, shows a balance due of $517.53, with no accounting as to how that amount was obtained. Clearly these statements do not provide sufficient accounting to allow a trier of fact to determine whether or not this account is correct. Further, this lack of accounting would fail a test for any theory tried before a court, whether it be Breach of Contract, Suit on Account, or Account Stated. Even if all of the above items were met, Plaintiff has failed to provide a single affidavit, deposition or testimony from anyone who has knowledge of how the amount listed in Plaintiff’s petition was accounted. Without having an officer of the original creditor present to assert that the requirements of Citibank v. Whiteley are true, all items admitted would fall under the hearsay rule. When testing these defenses against ITT v. Mid-America, it is clear that not one, but all of Plaintiff’s facts presented in the petition are negated; and that after an adequate period of discovery, [Plaintiff] has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements. CONCLUSION It is clear that no material facts exist in this case as Plaintiff has failed to provide any evidence showing their legal ability to collect on the alleged debt. It is therefore in the best interest of justice that this Court issue a Summary Judgment in favor of the Defendant. [END OF MOTION FOR SUMMARY JUDGMENT] http://www.creditinfocenter.com/forums/there-lawyer-house/316075-better-start-finish-against-midland-funding-llc-4-5-a.html
  5. While waiting for the first hearing, I sent Discovery: DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF [redacted], Defendant pro se, requests Plaintiff, to admit or deny the following material statements of fact within thirty (30) days after service of this request upon you. A FAILURE TO TIMELY RESPOND TO REQUESTS FOR ADMISSIONS IN COMPLIANCE WITH RULE 59.01 SHALL RESULT IN EACH MATTER BEING ADMITTED BY YOU AND NOT SUBJECT TO FURTHER DISPUTE. 1. Plaintiff does not possess any contract, agreement, assignment, or other means demonstrating that the Plaintiff has the authority and capacity, and is legally entitled to collect on the alleged debt. ANSWER: 2. Plaintiff does not possess complete accounting of the amount claimed due from the Defendant, including principal, interest, collection charges and any other components that contribute to the balance claimed in the original petition. ANSWER: 3. Plaintiff does not possess proof of ownership showing that Plaintiff has legal grounds to collect the alleged debt. ANSWER: 4. Plaintiff did not offer, sell, or otherwise provide merchandise or services to Defendant. ANSWER: 5. Defendant did not request merchandise or services from Plaintiff. ANSWER: 6. Plaintiff holds no evidence attesting to the reasonableness of charges alleged due by Defendant to Plaintiff. ANSWER: 7. The alleged original creditor, [OC name redacted], is in no way participating in this cause of action. ANSWER: 8. Plaintiff in no way represents [OC name redacted], the original holder of the purported account listed in Plaintiff’s petition. ANSWER: 9. Plaintiff did not contact the Defendant, via mail, telephone or otherwise, in an attempt to collect the alleged debt prior to the filing of this cause of action. ANSWER: 10. Plaintiff is a debt collector as defined by the Fair Debt Collection Practices Act. ANSWER: DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF [redacted], Defendant pro se, requests Plaintiff to produce the following documents by providing photocopies of the originals to [redacted], [add redacted] within thirty (30) days after service of this request upon you. DEFINITIONS The following definitions are to be used in responding to the following interrogatories. A. “Plaintiff,” means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf. B. “Defendant” means [name redacted], an individual residing in the City of St. Louis. C. “Document,” means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports. D. “Credit Application”, means the Original Signed Application bearing Defendant’s signature for any contract between Plaintiff and Defendant or Defendant and [OC name redacted]. DOCUMENTS TO BE PRODUCED 1. All documents evidencing any communication between Plaintiff and Defendant in connection with the Account described in Count 2 of Plaintiff’s Petition, including letters and correspondence. 2. The alleged credit application from the Account described in Count 2 of Plaintiff’s Petition bearing the Defendant’s signature. 3. The alleged credit agreement from the Account described in Count 2 of Plaintiff’s Petition that states interest rate, grace period, terms of repayment, et cetera. 4. Itemized statements or credit card statements from the Account described in Count 2 of Plaintiff’s Petition that demonstrate how the alleged amount of $517.53 was calculated. 5. A contract, agreement, assignment, or other means demonstrating that Midland Funding LLC has the authority and capacity, and is legally entitled to collect on the alleged debt. 6. Letter(s) sent to defendant by Midland Funding LLC, demonstrating an attempt to collect on the alleged debt. 7. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally. 8. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to this cause of action. 9. Any further documentation, beyond what has been previously requested, that clearly establishes Defendant’s liability and/or responsibility to the alleged debt. 10. Any and all written communication, received by the Plaintiff and/or Plaintiff’s attorney from the Defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as Plaintiff’s and/or Plaintiff’s attorney accessing of Defendant’s credit report(s). 11. Any and all communications from Plaintiff and/or Plaintiff’s attorney to the Defendant explaining why Plaintiff and/or Plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining Defendant’s credit report(s). 12. Any and all credit report(s) Plaintiff and/or Plaintiff’s attorney obtained from any credit reporting agency concerning the Defendant. 13. 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 defendant and/or the Account described in Count 2 of Plaintiff’s Petition. DEFENDANT'S FIRST SET OF INTERROGATORIES TO PLAINTIFF [redacted], Defendant pro se requests Plaintiff to serve answers to the following interrogatories within thirty (30) days after service thereon: 1. Are you able to provide a complete and accurate accounting of all payments and charges related to the alleged account to prove, in a detailed manner, the amount of damages claimed in the original petition? ANSWER: 2. Are you able to produce proof of ownership of the alleged account? ANSWER: 3. Has the debt alleged in the original petition been purchased by Midland Funding LLC, its subsidiary or partners, or any other debt collector? If yes, indicate if this account was purchased for less than the amount of damages claimed in the original petition, and the actual amount of purchase of the alleged debt. ANSWER: 4. What statute, law, provision, or otherwise does the Plaintiff invoke in its assertion that it holds “All right, title and interest in the right to receive payment as described…” in Paragraph 3 of Counts 1 and 2 of the original petition? ANSWER: 5. Has an agent of the original creditor, [OC redacted], attested to the validity of the alleged debt? ANSWER: 6. Has an agent of the original creditor, [OC redacted], attested that the Defendant is the true debtor in this cause? ANSWER: 7. How was demand for payment made of Defendant as stated in Paragraph 6 of Count 1 of the original petition? ANSWER: [END OF DISCOVERY] After 30 days, I sent them a Good Faith Letter. Midland requested an additional 30 days to respond. Our first pre-trial hearing was scheduled for day 59 of their 60 day deadline (ugh!). At the hearing, the attorney for Midland said they would drop their case without prejudice if I dropped my counterclaim! I said "No thanks, where's my discovery? It's due tomorrow." To which she replied, "Umm..let's talk to the judge." We went in front of the judge, who said, "Sir, do you have an argument to make?" I said, "No your honor, I'm waiting on the plaintiff to file discovery, but I'm ready for trial." So we set a trial date. FIVE DAYS LATER I received a reply to my discovery requests. They never sent me any discovery requests. Here's what I got in reply: PLAINTIFF'S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF 1. Deny 2. Objection. This request is vague and unclear in that it calls for speculation as to the meaning of the terms "complete accounting" and "any other components." 3. Objection. This request call for a legal conclusion. Subject to and without waiving said obection: Deny. 4. Admit 5. Admit 6. Objection. This request calls for a legal conclusion. Upon information and belief that a consumer would not purchase an item or service in the course of ordinary business unless the consumer believed the price or charge was fair and reasonable. 7. Objection. This request is vague and unclear in that it seeks speculation as to the meaning of the term "participating." Subject to and without waiving said objection: Admit. 8. Objection: This request is vague and unclear in that it seeks speculation as to the meaning of the term "represents." Subject to and without waiving said objection: Admit. 9. Deny 10. Objection. This request calls for a legal conclusion. In the responses to the Request for Production of Documents I got: 1. Statement dated July 4, 2009 showing a balance of 285.24, including a payment of $20 and a late payment fee of $39. 2. Statement dated December 4, 2009 showing a balance of 517.53, including a late payment fee of $39. 3. A standard credit agreement dated February 2010 (six months after the last activity on the account). 4. A redacted sale agreement between the OC and Midland. That was IT!! They expected to make a case on this???!!! As for my Interrogatories, they objected to everything, so nothing big to report there. http://www.creditinfocenter.com/forums/there-lawyer-house/316074-better-start-finish-against-midland-funding-llc-3-5-a.html
  6. I have to throw a huge thanks to brjmhome6 and the sticky "Start To Finish Winning Against Midland Funding Aka Jdb!" I used a lot of stuff from this, however I added a few other items I found on the forum. In the end Midland dropped the case WITH prejudice, and settled for an undisclosed amount of money on my counterclaim! Here's how I did it: I received a dunning letter requesting payment. I returned my validation letter and received no reply or validation until a suit was filed (FDCPA, HELLO!). Here's the standard crap lawsuit Midland sent: COUNT 1-FOR MONEY LOANED COMES NOW Plaintiff and for Count 1 of its cause of action herein states: 1. Plaintiff MIDLAND FUNDING LLC is a limited liability company duly organized and existing under law. 2. Defendant [redacted] is a resident of ST. LOUIS CITY, State of Missouri. 3. All right, title and interest in the right to receive payment as described below were assigned to Plaintiff. 4. The original creditor [redacted] provided money by credit card to Defendant and/or for the benefit of Defendant and intended that the money be repaid by Defendant. 5. Defendant has failed to repay the money loaned and the balance due is 517.53 per the Exhibit attached hereto and incorporated by reference. 6. Demand for payment was made on or about January 16, 2012. WHEREFORE, Plaintiff prays judgment against Defendant in the sum of 517.53, together with interest thereon at the rate of 9.00 percent per annum from January 16, 2012, and for Court costs herein expended. COUNT 2-ON ACCOUNT COMES NOW Plaintiff, ALTERNATIVELY, and for Count 2 of its cause of action herein states: 1. Plaintiff incorporates by reference paragraphs 1, 2 and 3 of Count 1 as if set out in full herein. 4. Defendant is indebted to Plaintiff on account of credit provided by the original creditor [redacted] to Defendant at the Defendant's request in the sum of 517.53 per the Exhibit attached hereto and incorporated by reference. 5. The charges on said account were reasonable. 6. After all offsets and credits due Defendant, there remains a total balance due on said account in the amount of 517.53. 7. As a result of Defendant's failure to pay the above balance is due. Demand for payment was made and refused. WHEREFORE, Plaintiff prays for judgment against Defendant in the sum of 517.53, together with interest thereon at the rate of 9.00 percent per annum from January 16, 2012, and for court costs herein expended. [END ORIGINAL PETITION] Attached is a "Statement of Account" with my name (nothing else identifying me), Midland Funding listed as the owner, and the name of the original creditor. In reply I filed a written answer (not required by my court, but I definitely suggest it), affirmative defenses and a counterclaim: ANSWER AND AFFIRMATIVE DEFENSES TO PETITION COMES NOW [name redacted], Defendant pro se, as answer to SUIT ON ACCOUNT as filed by the Plaintiff: COUNT 1 – FOR MONEY LOANED 1. AFFIRM. Statement is a matter of fact. 2. AFFIRM. Statement is a matter of fact. 3. DENY. I have been presented with no evidence which verifies that Plaintiff is the holder of the account in question. 4. OBJECT. Any relationship between Defendant and [OC name redacted] is irrelevant to any money owed to Plaintiff by Defendant. Without waiving said objection, Defendant asserts he has no recollection of holding an account with [OC name redacted]. 5. OBJECT. See paragraph 4. 6. DENY. To the Defendant’s knowledge, no demand for payment was made. COUNT 2 – ON ACCOUNT 1. See paragraphs 1, 2 and 3 above. 4. DENY. First, Defendant has not held, nor currently holds, any contractual agreement with Plaintiff. Second, Defendant’s relationship (or lack thereof) with [OC name redacted] is not the subject of these proceedings. Third, Defendant denies knowledge of a previous contractual relationship with [OC name redacted]. And fourth, Plaintiff’s exhibit fails to show any exchange of services or goods between the Defendant or [OC name redacted]. 5. OBJECT. Plaintiff has failed to show that any charges exist on an account between the Defendant and Plaintiff or [OC name redacted]. Further, any information related to said account cannot be determined to be “reasonable” based on the Plaintiff’s attached exhibit. Without waiving said objection, Defendant denies knowledge of said account. 6. OBJECT. Plaintiff has failed to show that any charges exist on an account between the Defendant and Plaintiff or [OC name redacted]. Without waiving said objection, Defendant denies knowledge of said account. 7. OBJECT. Plaintiff has failed to show that any charges exist on an account between the Defendant and Plaintiff or [OC name redacted]. Without waiving said objection, Defendant denies knowledge of said account. As to the second sentence, Defendant denies that demand for payment was made, and therefore was not refused. AFFIRMATIVE DEFENSES 1. FAILURE TO STATE A CLAIM ON WHICH RELIEF MAY BE GRANTED: Plaintiff’s petition fails to state facts sufficient to constitute a cause of action against the Defendant for which relief may be granted. 2. STATUTE OF FRAUDS: No contract, written, verbal or otherwise, exists or has existed between the Defendant and Plaintiff. The alleged account falls within a class which requires a written contract, and no such device exists between the Defendant and Plaintiff (RSMo 400.2-201). 3. LACK OF LEGAL STANDING: Plaintiff has stated, through its petition, that the potentially aggrieved party in this matter is [OC name redacted]. As Plaintiff is and was not a party to the purported exchange of goods and services between the Defendant and [OC name redacted], Plaintiff is not aggrieved and therefore has no standing. (I DIDN'T INCLUDE THIS CASE LAW IN THE ORIGINAL, BUT MISSOURI RESIDENTS SHOULD INCLUDE CACH LLC v. ASKEW HERE!!!) 4. UNJUST ENRICHMENT: Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested. 5. LACK OF PRIVITY: No contract, written, verbal or otherwise, exists between the Plaintiff and Defendant, therefore Plaintiff lacks the power and authority to collect relief on said account. 6. LACK OF CONSIDERATION: No money or item of value has been exchanged between the Plaintiff and Defendant. 7. UNCLEAN HANDS: Defendant alleges that Plaintiff has acted in a dishonest and/or fraudulent manner, and is therefore barred from relief. 8. According to Exhibit attached to Plaintiff’s petition, Plaintiff purchased the purported account from [OC name redacted], causing Plaintiff’s injury to itself, and therefore barring Plaintiff from relief. 9. Plaintiff’s complaint fails to allege that [OC name redacted] has knowledge of this action or that [OC name redacted] has conveyed all rights and control to the Plaintiff. The record does not disclose this information, and said information cannot be assumed without causing unjust prejudice against the Defendant. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time. WHEREFORE, [name redacted], Defendant Pro Se, prays this Court enter its order to DISMISS PLAINTIFF’S PETITION WITH PREJUDICE, and grant further relief as this Court deems reasonable. DEFENDANT’S COUNTERCLAIM ON PETITION COMES NOW [name redacted], Defendant pro se, as counterclaim to Suit on Account as filed by the Plaintiff, states as follows: 1. Plaintiff MIDLAND FUNDING LLC is, by its own admission, a limited liability company duly organized and existing under the law. 2. Plaintiff is a debt collector as defined under 15 USC 1692a, Section 803, Paragraph 6, and is therefore accountable under the Fair Debt Collection Practices Act. 3. Defendant resides within the City of St. Louis, Missouri. Therefore, the Circuit Court of St. Louis City, Missouri holds jurisdiction over this matter. WHEREFORE, Defendant alleges the following: 4. Plaintiff did knowingly violate 15 USC 1692e, Section 807, Paragraph 2 by falsely representing the character, amount and legal status of the debt in question. 5. Plaintiff did knowingly violate 15 USC 1692e, Section 807, Paragraph 10 by falsely and deceptively representing themselves in an attempt to collect a debt. Plaintiff implies by Petition that the original creditor, [OC name redacted], is a party to this cause of action, thereby falsely representing the Plaintiff in an attempt to deceive the Defendant. 6. Plaintiff did knowingly violate 15 USC 1692f, Section 808, Paragraph 1 by attempting to collect a debt not expressly authorized by the agreement, as no agreement exists between the Defendant and Plaintiff. 7. Plaintiff did knowingly violate 15 USC 1692g, Section 809, Subsection (a), Paragraphs 1-5 by failing to provide the Defendant written notice of the debt. 15 USC 1692g, Section 808, Subsection (d) forbids the use of the original petition as notice of debt. 8. Plaintiff did knowingly violate 15 USC 1692j, Section 812, Subsection (a) by compiling the original petition to falsely lead the Defendant to believe that the original creditor was participating in the suit. WHEREFORE, Defendant prays judgment against the Plaintiff for actual damages incurred, $1,000 as additional damages, and any other relief the court sees fit in compliance with 15 USC 1692k, Section 813. [END ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM] http://www.creditinfocenter.com/forums/there-lawyer-house/316073-better-start-finish-against-midland-funding-llc-2-5-a.html
  7. Thanks for posting this. I used a lot of your advice against Midland, also in the 22nd Circuit of Missouri. EXCEPT I filed a counterclaim for FDCPA violations. They basically begged me for a mutual dismissal yesterday. The lawyer seemed pretty upset when I called "READY FOR TRIAL" yesterday. Not to mention they're three days late replying to my discovery! Filing my MSJ on the petition and counterclaim tomorrow, so it looks like I'll be walking out with $1,000 of THEIR money! I'll post a new thread with everything I filed at the conclusion of the trial. Thanks again!
  8. Ps I got a motion to reconsider the motion to dismiss my counterclaim today. Will they give up?? I'm so tired of this. I've settled every account except for Cap One, because they won't negotiate. How do I make them go away?
  9. I appreciate what little Doc had, and all that recovering said. Some of it was constructive. But I don't need the sarcasm. What I'm looking for is advice. Thank you all so much for what you've given. I'm leaning against filing this motion now, but still accepting opinions.
  10. Thank you so much Dr. Evil for all your help, I don't know what this forum would do without you. And by that I mean don't you have somewhere else you need to be?
  11. Well the only reason I'm considering this is because the judge seems to have more disdain for the collection attorney than I do. Also, I have a different judge for trial, so if I do piss this judge off, I get a fresh start with the next judge.
  12. I would agree that this is a long shot, but if granted it would be awesome. If denied, we go to trial. If I do nothing, we go to trial. So I figure why not give it a shot.
  13. Wow. What did I get started...lol. Despite that tangent, still looking for any advice on this
  14. I have a previous thread that has my discovery listed, so I'll spare you and not repost it. I'm thinking about filing this to basically say go to h**l Capital One. What do you think: File or not?? Suggestions please!! DEFENDANT’S MOTION FOR SANCTIONS: FAILURE TO MAKE DISCOVERY PERSUANT TO MISSOURI RULES OF CIVIL PROCEDURE 61.01 COMES NOW Me, Defendant pro se, and files this MOTION FOR SANCTIONS, and requests the court to grant such motion based on the facts stated below: 1.Defendant served Discovery requests by U.S. Mail upon Plaintiff on August 16, 2010. 2.Defendant received PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF, PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES, and PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF on or about September 17, 2010 3.As of the date of this filing, Plaintiff has not filed or received a Protective Order from this Court allowing Plaintiff to avoid requirements of Discovery pursuant to Missouri Rule of Civil Procedure 56.01. BASED UPON THE ABOVE LISTED DOCUMENTATION, DEFENDANT STATES AND ALLEGES THE FOLLOWING: 4.Plaintiff did knowingly provide a false and/or evasive answer to Admission 1 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. 5.Plaintiff did knowingly provide a false and/or evasive answer to Admission 2 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. 6.Plaintiff did knowingly provide a false and/or evasive answer to Admission 3 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Plaintiff is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise. 7.Plaintiff did knowingly provide a false and/or evasive answer to Admission 4 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. 8.Plaintiff did knowingly provide a false and/or evasive answer to Admission 5 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Plaintiff is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise. 9.Plaintiff did knowingly provide a false and/or evasive answer to Answer 1 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit . Plaintiff claims to possess a SIGNED AGREEMENT BETWEEN THE DEFENDANT AND PLAINTIFF, citing the Cardmember Agreement attached to the original petition. The attached agreement is generic boilerplate, and shows a copyright of 2005, three years prior to the alleged extension of credit. Defendant demands a SIGNED agreement between Plaintiff and Defendant. 10.Plaintiff did knowingly provide a false and/or evasive answer to Answer 2 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit . Plaintiff claims that billing statements, attached to Discovery documents as Exhibits P08-P031, provide a complete accounting of all damages claimed in the original petition. However, the amounts listed in attached billing statements are not consistent with the amount of damages sought in Plaintiff’s original petition. Defendant demands an accurate and detailed accounting of all transactions showing how the claim amount was determined. 11.Plaintiff did knowingly provide a false and/or evasive answer to Answer 3 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit . Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Capital One is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise. 12.Plaintiff did knowingly provide a false and/or evasive answer to Answer 4 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit . Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Capital One is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise. 13.Plaintiff did knowingly provide a false and/or evasive answer to Answer 1 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff’s objection is preposterous. It should be well known that “Account” refers to the account alleged in the original petition. Further, Plaintiff failed to provide requested document, instead substituting a print-out of a computer screen, which shows no information relating to the requested document. Defendant demands a Credit Application SIGNED by the Defendant. 14.Plaintiff did knowingly provide a false and/or evasive answer to Answer 2 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff’s objection is preposterous. It should be well known that “Account” refers to the account alleged in the original petition. Further, Plaintiff failed to provide requested document, instead substituting a generic boilerplate agreement, with a copyright date preceding the alleged account by three years. Defendant demands a valid Credit Agreement SIGNED by the Defendant. 15.Plaintiff did knowingly provide a false and/or evasive answer to Answer 3 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff’s objection is preposterous. It should be well known that “Account” refers to the account alleged in the original petition. Further, the amounts listed in attached billing statements are not consistent with the amount of damages sought in Plaintiff’s original petition. Defendant demands an accurate and detailed accounting of all transactions showing how the claim amount was determined. 16.Plaintiff did knowingly provide a false and/or evasive answer to Answer 4 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff stating “the pleadings speak for themselves” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise. 17.Plaintiff did knowingly provide a false and/or evasive answer to Answer 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Defendant denies receiving any letters from Plaintiff stating the alleged debt was under collections. Plaintiff should be well aware that Debt Collectors are required to advise debtors of collection activity under the Fair Debt Collection Practices Act, or face penalty. Therefore, if document was produced, it should be readily available to Plaintiff. 18.Plaintiff did knowingly provide a false and/or evasive answer to Answer 7 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Accessing Plaintiff’s own records should be in no way “unduly burdensome.” Further, Defendant reasonably believes that requested information may lead to admissible evidence. According to Missouri Rule of Civil Procedure 56.01 “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” 19.Plaintiff did knowingly provide a false and/or evasive answer to Answer 8 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Accessing Plaintiff’s own records should be in no way “unduly burdensome.” Further, Defendant reasonably believes that requested information may lead to admissible evidence. According to Missouri Rule of Civil Procedure 56.01 “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” WHEREFORE, Defendant ME prays this Court to enter its order dismissing Plaintiff’s Petition With Prejudice and enter its order of Default Judgment on Defendant’s Counterclaim as sanctions pursuant to Rule 61.01 of the Missouri Rules of Civil Procedure, as these sanctions are justified in response to Plaintiff’s unethical attempt to deceive the Defendant and this Court, and Plaintiff’s attempts to obfuscate the facts. I plan to argue in court that deception and poor ethics have no place in an honorable court...blah blah. Let me know what you think, I'm on the fence about filing this.
  15. You say they didn't respond to your discovery...did you file a motion to compel? Motion for sanctions?