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BrunoTheJDBkiller

MiserableUsers
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Everything posted by BrunoTheJDBkiller

  1. If you deny not having a defense, they will hit you with ROGs asking you what it is, since you have claimed to have one. You should change that, give them something noncommittal. Considering all your answers cited lack of info, where did you get enough info to formulate a defense? Just tell them it is a premature request until you see their evidence and you will update your response at a later time.
  2. 2.DEFENDANT "GINGERBREAD MAN" MAY or may not have proof that Midland is NOT the PRIMARY owner,Not the SECONDARY owner , NOPE NOT the TERTIARY owner BUT the ALLEGED QUARTERNARY owner of Alleged Account. You need to clarify this. The rest of your post indicates that Midland bought this from the OC. They need a proper bill of sale identifying your specific account. They also need to produce statements from the account, preferably all of them, the agreements in force during the life of the account, and an affidavit from the OC. Usually they only have their own affidavit. Ask for this in discovery. You can send these if you haven't already sent them, don't recall giving you these. They work well. Requests for Production of Documents 1. The original signed application establishing the account 2. Charge slips bearing defendant's signature which establish use of the account 3. The original written agreement in which defendant allegedly assented to the terms of the account 4. A complete history of the account from day one, establishing the legitemacy of the balance sought 5. Any document setting forth the choice of law provision 6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default 7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce 8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed 9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial 10. Proof of mailing of monthly statements 11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time 12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time." 13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder. 14. The forward flow document governing this transaction, or any document setting forth any guarantees or warrantees (or lack thereof) from the original creditor attesting to the accuracy of the account balances.
  3. Wow, she was busy at the mall, huh? Oh well, this isn't anything worth getting divorced over, altho it is rather upsetting to a good homelife. I would get her to a BK attorney pronto before this wrecks your relationship.
  4. There isn't any at this point, uraess Florida has some weird rules. First of all, it won't be admitted, it has nothing to do with your case. I believe I gave you a startegy that might get this admitted. At the very least, you have to conduct discovery to have any chance at all of getting a judge to look at this.
  5. They usually get a lot longer than three months before you can nonsuit them for failure to prosecute. It varies from state to state, but three months isn't going to be in the cards. You should send discovery to see what they have, then you can plan your strategy. Is arbitration in the agreement? Like JAMS maybe?
  6. Counter suit (frivolous lawsuit based on no facts etc) There really isn't any such thing. The best you could hope for is to get sanctions and costs. There is no tort action for being incompetent.
  7. Take papers means that the judge will do just that, he will take the papers submitted by both sides and make his decision based upon them. You do not go to court for a non-arguable motion. The date means little, all that means is that short calendar motions are heard on Monday, that is the date they gave you. If you did not file an objection to their motion, it will be granted "absent objection." Default for what? You didn't say. If it is for failure to plead, which means you did not answer something they sent, it can be fixed. That is usually what defaults are used for in your state. This is probably not a case ending motion like summary judgment would be.
  8. You can object to it, but you have to have a good reason or you'll lose the objection. Hearsay is not always the best way, affidavits are considered sworn testimony in lieu of having the live person there in court. If the person was there, you would be given an opportunity to cross examine them. You cannot cross a piece of paper, so if you want to examine the person, you have to subpoena them, which could cost you some money. Be sure of what the affiant says. the "personal knowledge" angle doesn't usually work.
  9. From Rule 34..........The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. part of 37a...........in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer or a designation or an order compelling inspection in accordance with the request. It's up to you, but I don't like the idea of hounding people for things that will make you lose your case. The rule says "may" move for an order. It is not mandatory. Usually you only do this when the document will help you win. Me, I'd just let it go. If they had answered, I would send admissions. Let them forget this, if this goes far enough and they try to introduce evidence late in the game, move to have it stricken or precluded.
  10. Nobody here is going to write an MSJ for you, we are not legally allowed to do that without a law license. I am sure it is also against the forum rules. You don't need 18 pages. The sample I gave you will show the breakdown you need.....maybe an introductory statement, facts of the case, argument, points of law, (case law) and a conclusion. Your exhibits would consist of the admissions they failed to respond to and your proof of the time they were sent. I can't see this thing being more than three or four pages at most. Stress the fact that since they were deemed admitted, they have no case and there is no need to take this to a trial. Work something up and post it here for critique.
  11. Has she considered filing BK? It sounds like you married a financial disaster in the making. Does she have any more of these coming down the road?
  12. Requests for Production of Documents 1. The original signed application establishing the account 2. Charge slips bearing defendant's signature which establish use of the account 3. The original written agreement in which defendant allegedly assented to the terms of the account 4. A complete history of the account from day one, establishing the legitemacy of the balance sought 5. Any document setting forth the choice of law provision 6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default 7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce 8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed 9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial 10. Proof of mailing of monthly statements 11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time 12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time." 13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder. 14. The forward flow document governing this transaction, or any document setting forth any guarantees or warrantees (or lack thereof) from the original creditor attesting to the accuracy of the account balances.
  13. The problem you are going to have is that if you want to elect arbitration, you have to do it early on in the case, preferably in lieu of an answer. If you get too far into litigation, the court will deny you, as they will view it as a desperation attempt. Discovery copies do not go to the court in any state that I have seen, it is between parties and is ongoing up until a few days before a trial. You really don't need that much in the way of discovery, these cases are won or lost with documents. If this debt was sold numerous times it makes it almost impossible for them to establish a proper chain of custody.
  14. You don't need any definitions, all they do is waste paper and ink and invite you to be objected to. Try this: "The following discovery requests shall be answered in accordance with the rules of civil procedure for the State of Arizona." Let;'s see them object to that. The rest of this stuff is crap.
  15. http://www.mdd.uscourts.gov/Opinions/Opinions/Gardner%20v%20Mont%20Co%20Teachers%20FCU-Web.pdf This is a higher level court, but the format will be acceptable. Modify it to suit your situation.
  16. SOL is not an admission of anything. All it does it say that the plaintiff has no legal right to bring suit due to a time barred debt. By the way, if you win that motion, you can sue them under the FDCPA.
  17. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, This is the first and key phrase. Did they do any of these things? Now in my rules, they cannot dismiss unless they motion and both parties sign. We need the statute or rule and the language that says this. Most venues allow dismissal by the plaintiff unopposed. may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief This part sounds in summary judgment. It isn't entirely clear, but it does not sound like a simple dismissal based on procedure. A right to relief comes back to standing to bring suit, or bringing an action which is unsupported as a cause of action.
  18. In the suit it states that midland does not file suit with those they feel are financially unable to do so.. Whose rules govern that statement in proof. If there were evidence of that presented to the judge, would it be cause for dismissal? Nobody's rules govern this. The legal term for this is "puffery." Translation, BS advertising and if you believe this we'll make up more. You could have fun with this in discovery, and they will object to every question, but at the bottom you have to prove that you are "financially unable" whatever that means. There is an IRS form for insolvency, serve that on them with some discovery if you want to torture them. The time you spend is yours, and the life you save may be your own.
  19. Memorize your argument and the weaknesses in the other side's response. Let the judge run the hearing. He may have a few questions, or he may not. Usually each side will get a few minutes to state their position. If it's your first time, the judge may just want to size you up. Dress nice and observe the rules of the court. Unless you go first, watch the other cases and watch how the attorneys behave. Say as little as possible. Just answer what they ask you, don't elaborate. Stick to the issue. Don't talk to the other side, talk only to the judge. Stand when you respond, sit down when you are finished. At the end thank the judge for his time and leave. He probably will give you some indication of his decision, but he may not.
  20. I would work up a response and take it to the hearing, just in case. If the judge rules against you for some reason, (MI is tough) just hand opposing consel a copy and tell the judge you are formally serving the other side with your opposition to their MSJ.
  21. "without recourse and without representations or warranties of any type, kind, character, or nature, express or implied..." This will do if you want to fight the legitemacy of the balance. The other argument you mention is standing to sue based upon ownership. (proper party in interest is the correct term) If you win the second argument, you don't need the first.
  22. Did they provide a bill of sale? That usually has the same non-guarantee language.
  23. It isn't clear whether or not your mother and brother are alive or not. If they died and did not have a will, it will go to probate court. If there is a will, the lawyer who is ignoring you will have a copy.
  24. The rule does not specify a motion, it is automatic. I would use summary judgment to fix this, since they admitted to everything you asked them and therefore have no material facts in dispute. Maryland Rule 2-424 Admission of Facts and Genuineness of Documents (a) Request for Admission A party may serve at any time one or more written requests to any other party for the admission of (1) the genuineness of any relevant documents described in or exhibited with the request, or (2) the truth of any relevant matters of fact set forth in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Each matter of which an admission is requested shall be separately set forth. ( Response Each matter of which an admission is requested shall be deemed admitted unless, within 30 days after service of the request or within 15 days after the date on which that party's initial pleading or motion is required, whichever is later, the party to whom the request is directed serves a response signed by the party or the party's attorney.
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