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Found 125 results

  1. Hello, I have read up on this thread and I can say that this has been a tremendous help to know that I am not alone. If I may I need a little help in my case. I have been summoned for a pretrial conference with a court date for in about a month. I looked for the part where it said response in my summons but i couldn't find one. There is no 20 - 30 day response just a mandatory request to show up without any witnesses. I did check the lawyers office does exist and the complaint has been filed in court. I wanted to know how do I go about submitting a debt validation? Do I bring it to court that day? Do I go and file it with court ahead of the day schedule? Also like most people I got scared and called the lawyers office not really admitting to the debt but is that evidence against me? I am not sure if they record conversations or not. I am in the state of florida. I would appreciate any little help or guidance. I am dealing with LVNV assigned by providian. Thanks...
  2. My spouse represented self Pro Se small claims against a JDB. It was as many said it would be, a cattle-call of lawyers matched against defendants where most who showed up settled in mediation. The judge’s assistant (JA) runs the pretrial conference in our area. The JDB’s lawyer was a no show. The JA called out their (JDB Lawyers) name twice during the first hour – no show. We thought great – motion to dimiss (a)Plaintiff. If plaintiff fails to appear on the initial appearance date (pretrial conference), or fails to appear at trial, the action may be dismissed for want of prose¬cution, The JA went through a few more cases and then another court attendant approached and told her (JA) the JDB attorney was running late. My spouse’s name was called – appeared as defendant without opposition or so we thought. The court ‘lost’ the file (spouses, files, motions, answers). Court asked another attendant to find the file. Thus began the grilling by the JA without the JDB attorney in court. JA asked if she agreed or disagreed with claim. Spouse denied claim – said she denied debt with plaintiff. Now the JA took it upon her self to ‘question’ my spouse in more detail – asked the same question in deferent ways. Spouse who had already answered was now very confused. No other defendant was asked or grilled this way. The JA seemed hell bent on proving this was her debt or that she didn’t have enough cause to challenge the claim. Spouse held her composure but firmly denied debt and questioned the facts or proof of assignment. The JA was now yelling across the room at her and said “ what does the assignment have to do with anything, you’ve just said it was not your debt”. It became a disaster as the JA ushered her out the room with a mediator. We didn’t recognize this person as a mediator until directed into anther room. The mediator sat,– explained the process - told us the lawyer would be in soon. We were surprised to find the JDB lawyer was now here. Spouse again denied the claim. Question the facts and evidence or lack of and asked for proof beyond what was already give. JDB presented the exact same account statement without any authentication or affidavit. The JDB lawyer said she (my spouse) was argumentative and she (lawyer) did not have to take it. Mediator interrupted the JDB lawyer and asked the lawyer to calm down – he did not think my spouses question was unreasonable. Lawyer folded up her PC and said I won’t argue - lets go to trial. Once back in the courtroom the JA called my spouse and lawyer up. JA quickly mentioned something about the missing files. Did the attorney have any? No, she agreed with the attorney, we will just make a note. JA asked about witnesses and subpoenas’. Then she (JA) told my spouse to follow the attorney down to the judges office for scheduling. My spouse was confused did not understand everything – never had the chance to ask for the jury trial she had in her answer. Never given her opportunity to question the late appearance of the JDB’s lawyer. If defendant was that late – a default judgment when have been processed quicker then sh-t! No matter how much she tried to prepare, and understand. My spouse just did not understand the process enough to defend herself. We can’t afford a lawyer and she was overwhelmed by the JA who had NO patience for her at all. So, now my advice – if you feel the slightest bit intimidated – don’t be – have confidence and speak up. Your day probably will not go as bad as ours. Interrupt the process and ask your question – don’t let them bully you. My spouse knew the right things to ask – just did not know when to do it. She thought she would get her time to speak, and before she knew it – it was over. No jury trial, not answer from the court on our missing files and motions, no opportunity to question the tardiness of the lawyer. On another note, she (my spouse and I ) were not focused as she was very confused by it all. We asked for a continuance days earlier. You see our son was nearly killed by a drunk driver over new years. So we have been pre-occupied with his recovery. We attempted to talk to the judge prior but were informed the judge can not talk to defendant -can not accept mail. So we filed a motion for continuance of pretrial. We didn’t get answer back. The courts never seem to answer any motions - unless you ask for a hearing on the motion. So now its’ on to a new battle and trial. Hope this helps some other newbies out there on what NOT to do.
  3. First of all I would like to thank cic for all of your great advice. Currently, I am waiting for the 3rd pretrial conference. The plaintiff's (CAP1) lawyer says he will recommend a hardship dismissal to CAP1- but he needs tax records for the past 2 years for hardship screening. I am self employed, taking a loss every year. Would it hurt to provide this tax info to CAP1? Thanks.
  4. Hi all thought I would start a new thread.. I am working through my Motion to Dismiss. After much reading, Federal statute claims that Motions can only be filed before any pleadings..and I am thinking it says the same for our local statutes: B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1. Lack of jurisdiction over the subject matter; 2. Lack of jurisdiction over the person; 3. Improper venue; 4. Insufficiency of process; 5. Insufficiency of service of process; 6. Failure to state a claim upon which relief can be granted; 7. Failure to join a party under Section 2019 of this title; 8. Another action pending between the same parties for the same claim; 9. Lack of capacity of a party to be sued; and 10. Lack of capacity of a party to sue. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment. A motion to dismiss for failure to state a claim upon which relief can be granted shall separately state each omission or defect in the petition, and a motion that does not specify such defects or omissions shall be denied without a hearing and the defendant shall answer within twenty (20) days after notice of the court's action. In my Motion TO Strike, the opposing turd used this against me, saying that since further pleading did happen, that my Motion should be struck down due to my filing it late..etc.... Also the opposing turd states that: "Further, Defendant has wholly failed to cite any mandatory authority supporting her Motion to Strike Plaintiff's Affidavit. Defendant specifically failed to cite any of the enumerated provisions of Title 12 ).S. 2002 2012 of the Oklahoma Code of Civil Procedures in support of her claim." He them goes on to say " Finally, Defendant's motion was not accompanied by a brief in support or a list of authorities upon which she relied to reach her conclusion. Rule 4 of the District Courts of Oklahoma state: Every motion shall be accompanied by a concise brief or a list of authorities upon which movant relies. Unless the court directs otherwise, neither a brief nor a list of authorities shall be required with respect to any of the following motions: (1) Motions for extensions of time, if the request is made before expiration of the time period originally prescribed, or as extended by previous orders, (2) Motions to continue a hearing, pretrial conference or trial, (3) Motions to amend pleadings or file supplemental pleadings, (4) Motions to appoint a guardian ad litem, (5) Motions for physical or mental examinations, (6) Motions to add or substitute parties, (7) Motions to enter or vacate default judgments, (8) Motions to confirm sales, (9) Motions to stay proceedings to enforce judgments, (10) Motions to shorten a prescribed time period, and (11) Motions for scheduling conferences and other settings. d. If the motion does not comply with the requirements of b and c above, the motion may be denied without a hearing, and if a responsive pleading is required, the moving party shall serve any pertinent responsive pleading within twenty (20) days after notice of the court's action. Okay..so my Motion To Strike the Affidavit may be bogus..this is what I had filed in court: DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIDAVIT AND MOTION TO DISMISS Now comes Defendant, xxxxx, and respectfully moves the court to strike the Affidavit of xxxxxxxxxxxxx.,. Contingent upon granting Defendant’s Motion to Strike Affidavit, Defendant respectfully moves pursuant to the Federal Rules Of Civil Procedure, U.S. Code, Rule 901. Requirement of Authentication or Identification: (a) General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Plaintiff can prove no set of facts nor evidence supporting a claim entitling Plaintiff to relief and that the case be dismissed with prejudice. Memorandum Defendant respectfully submits this motion to strike Plaintiff’s affidavit for the Court’s consideration. The following facts are significant to this motion. Facts 1. As alleged in Plaintiff’s Complaint and the attached Affidavit of Plaintiff’s representative, Defendant owes Plaintiff a sum certain due an alleged debt. 2. Plaintiff failed to attach a copy of the original written instrument as an exhibit to the Complaint and failed to recite relevant information. In the case of Sollami v. Eaton, 2002 Ill. Lexis 331, Docket Nos. 91284, 91378, it states: "The court also reviewed the requirement that the affidavit attach sworn or certified copies of records upon which the affiant relied. Plaintiff argued that this requirement was merely technical. But the court disagreed. ". . . [T]his requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself . . . We are unwilling to allow the simple production of an expert’s conclusion ‘to become a free pass to trial.’" In this case, striking plaintiff’s expert affidavit was upheld because of the failure to attach the pertinent records. Plaintiff thus had no expert affidavit." 3. Although Plaintiff claims to “have access to records pertaining to the account”, Plaintiff has not attached those records, and has attached an affidavit by Lynn Hale in lieu of a written instrument or any records pertaining to the account. 4. On information and belief, the affiant, xxxxxxxxxxx, was never employed by the original creditor. 5. On information and belief, the affiant, xxxxxxxxxxxxxx, was never in a fiduciary or any other position to examine the original creditor’s open books for the account of the alleged debt . 6. On information and belief, the affiant, xxxxxxxxxxxcan not have personal knowledge of the original creditor’s creation, maintenance, issuance, and tracking of the billing or statements. Analysis Although Plaintiff claims to have access to “records” pertaining to Defendant’s alleged debt, Plaintiff refused to comply with rules of civil procedure which states: “When a claim or defense is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.” The attached affidavit does not suffice for a written instrument and Plaintiff’s affidavit constitutes heresay and is not admissible under Oklahoma Rules of Evidence. Conclusion Federal Rules of Civil Procedure requires a copy of a written instrument be attached to the Complaint when it is the basis of the Plaintiff’s claim. When not attached, a valid reason for its omission must be given. Plaintiff’s claim that it has access to Defendant’s records when it does not may constitute a “misrepresentation” and as such, evidence of further violations of the Fair Debt Collection Practices Act. Plaintiff’s Complaint alleges that Defendant is in default under the terms and conditions of an alleged written instrument, but fails to disclose the terms and conditions under which Plaintiff acquired said instrument. Plaintiff alleges that this written instrument forms the basis for Plaintiff’s right to sue and demand judgment against Defendant. The written instrument is the best evidence of any transactions that allegedly occurred between Defendant and Plaintiff or Defendant and another creditor. Without the written instrument, Plaintiff cannot prove what terms and conditions Defendant allegedly defaulted on. Additionally, Defendant is harmed because Defendant does not have an opportunity to raise affirmative defenses that may rise from any defects in the written instrument. Motion To Strike and Dismiss submitted and filed this _____ day of May, 2005. Soooo...I am doing something wrong. WHAT is a 'BRIEF IN SUPPORT'? or a "LIST OF AUTHORITIES? IF my Motion To Strike was way off..so will my Motion To Dismiss...I need some legal minds to help me!!! Sorry this post is so long. I have been at my wits end. Today, I am 'sitting' 2 unhousetrained puppies AND both grandkids..CALGON take me awayyyyyyyyyyyyyyy. Thanx
  5. OK, I have studied and read till my eyes bleed. I showed up for pretrial conference. I denied all allegations and asked for a trial. I filed motion to continue, then I filed a motion to produce,and waited my 35 days.then I filed motion to dismiss as no docuentation or documents have been produced by plaintiff - MIDLAND FUNDING. I then filed a motion to dismiss and am going to court on Tuesday. What do I need to know and expect at trial so I can get this thing thrown out of court? Should I file my motion and fax to compel ASAP before court, or just wait to see what happens with the motion to dismiss?HELP
  6. I have quite a few posts regarding my situation, so here is a brief rundown... Sued by Cap1 with Debt Collection Attorney, answered complaint. Answered Plaintiff's discovery, sent my own, which I just got back the other day. Had a pre-trial scheduling conference on 9/11, with bailiff "presiding", no dates were discussed. Checked the court website, no pre-trial orders have been input. According to my court's rules - A. At the initial pretrial conference, the Judge will, among other inquiries, determine the status of the case with reference to settlement: 3. Every case that has not been reported as settled shall have: a. A trial date set; and b. A pretrial order served and journalized. The pretrial order shall set the dates for final pretrial conference and trial and establish deadline dates for disclosure of experts, completion of discovery, motions to add a necessary party, motions for summary judgment, trial materials exchange, objections to trial materials, filing pretrial statements, and taking of perpetuation depositions. Then there is more stuff after that provides details regarding the pretrial order. My concern is that no trial date was set (the bailiff said this probably wouldn't get to a trial), and no pretrial order has been served/journalized, almost a month and a half later. Heck, I don't even know if the Judge is aware he has my case!! I'm torn between compelling the plaintiff to provide the docs that they ignored in my request (copy of application, missing statements, affidavit from OC verifying the account, and something with an account number), or going ahead and sending in letter electing arbitration. OR, do I just sit here and wait to see what happens next? I want to be proactive, but since no dates for ANYTHING have been set, I'm confused... Any thoughts?
  7. I'm being sued by Discover in county court in Florida (I don't think it's small claims, as the summons says that an attorney can appear for me) for just under $3000. I believe it's actually Discover - they're listed as the plaintiff, although the firm listed on the summons and the letters I've received have been from a law firm billing themselves as "Attorneys in the practice of debt collection," and all of their correspondence, including a letter I received after being served, state "this is an attempt by a debt collector to collect a debt." I received a summons at my home via a sheriff (or at least, somebody wearing a badge) on August 30. I'm due to appear for a pretrial conference on October 7. I've been looking around for information pertaining to debt lawsuits without finding much of use, just lots of credit consolidation websites. I just found this website yesterday and have been trying to absorb as much info as possible in the short amount of time I have. I pretty much have no info on this account. I lost most of my financial records to a water leak a while back, so I don't have any of the original information on the account, and I don't know when the last payment was made. I was unemployed for several months about two years ago, and had been undergoing some financial problems even before then, so I figure my last payment was sometime between 2 and 3 years ago. I very much doubt it was so long ago that the SOL has expired. I haven't disputed the charge, either to the attorney or any credit bureaus. Nor have I requested debt validation. I don't dispute that I did have the card, although it had a limit of $2000 (when I had it; the evidence sheet attached to the summons appears to list the limit at $3000, if I'm reading it correctly), and I can't verify the $3000 balance they claim it currently has. I didn't submit an answer to the summons because nowhere in the summons did it say anything about doing so - merely that I had to show up for the pretrial conference. As I said, most of the info that I've found online has been of little help, and I found this site a wee bit later in the process than I would have liked. I did not receive a questionnaire with the summons. I got the summons, a notice of my right to change venue, a statement of claim, an affidavit in support of judgment, and a sheet with what I assume to be a printout of the account information from the creditor's database. The statement of claim states that "the plaintiff sues the defendant for money owed plaintiff by defendant; and which is past due and unpaid for (money due to plaintiff upon accounts stated and agreed to between them)"..."Wherefore plaintiff demands judgment in the sum of $2900.00 principal, $0.00 interest, together with court costs which the court may assess and attorney fees of $0.00." So I've got a couple of questions: 1. Since I didn't submit a written answer within a month, am I pretty much doomed to a default judgment? I've read and reread the summons, and nowhere in it does it say anything about being required to submit an answer prior to the pretrial conference. 2. I can assume that, although the firm listed in the summons is a third party debt collections attorney's office, since the plaintiff listed is Discover, I'm actually being sued by Discover and not a CA, correct? Which means that a defense that I don't have a contract with the plaintiff would be right out the window. As would getting their exhibits thrown out as hearsay, as they would have the original agreement and statements. Am I correct in assuming this? 3. On September 13, I received a letter from the attorneys in the summons stating that their client has served a lawsuit, but they're contacting me in an attempt to set up a payment plan to avoid going to trial. The letter, dated September 11, states my current balance at $3300.00, whereas the summons has them stating a balance of $2900.00 and asking for a judgment for that amount. It does say "as of the current date" in the summons though. If they're suing me for $2900.00, can they continue to add to the balance as we go forward? Or is the CA just trying to squeeze me for more money without going to trial? I would have thought that they could only sue for the amount that they originally stated in the summons. The card's been inactive for at least 2 years - it's not like I have any way to tack on an additional $400 in charges in a month, even assuming astronomically high interest rates. 4. I don't have a copy of the original cardholder agreement, and I doubt that, even if Discover were inclined to send me a copy, I could get it by Oct. 7. Does anybody familiar with Discover's agreements know what their arbitration clause is? Is it too late to request arbitration rather than a trial? If I'm actually being sued by Discover, then I'd assume they would have any necessary documentation to support a judgment, and if that's the case, I'd just as soon not go to trial. I don't get much time off from work, and I'd rather not throw it away on a lost cause. If I was able to get arbitration rather than a trial, would they be more likely to settle for less than the listed amount? Or would I be better off just contacting them and trying to set up a payment plan or settlement? 5. If I were able to and chose to opt for arbitration, how would I go about doing so? Would I submit a written request at the pretrial hearing? I've seen quite a few posts here suggesting opting for the arbitration clause, but I haven't seen any actual instructions on how to go about it. Okay, so that's actually like 25 questions. I apologize if some (or all) of them have been asked before. This is all new to me. I've been reading through the forum soaking up information for the past day, and will continue to do so. I just wanted to get my questions out there, as this conference is looming over my head. Edit: I just found the listing on my local court website, and apparently it is small claims court after all. Don't know if it changes anything or not.
  8. Hi everyone, I'm being sue by CapitalOne and I've being served. Here's what the SUMMONS/NOTICE TO APPEAR FOR PRETRIAL CONFERENCE/MEDIATION says: "CAPITAL ON BANK (USA), N.A., a corporation Plaintiff. vs. MY Name. Defendent, _____________________/ SUMMONS/NOTICE TO APPEAR FOR PRETRIAL CONFERENCE/MEDIATION STATE OF FLORIDA - NOTICE TO PLAINTIFF AND DEFENDANT(S) MY Name My address YOU ARE HEREBY NOTIFIED that you are required to appear in person or by attorney at Nort Dade Justice Center, (address........), Miami, Florida on OCT 08 2009 at 9:00 AM, for a PRETRIAL CONFERENCE. IMPORTANT - READ CAREFULLY. THE CASE WILL NOT BE TRIED AT THE PRETRIAL CONFERENCE, BUT MAY BE MEDIATED AT THAT TIME. DO NOT BRING WITNESS. YOU MUST APPEAR IN PERSON OR BY ATTORNEY. WHOEVER APPEARS FOR A PARTY MUST HAVE FULL AUTHORITY TO SETTLE FOR ALL AMOUNT FROM ZERO TO THE AMOUNT OF THE CLAIM WITHOUT FURTHER CONSULTATION. FAILURE TO COMPLY MAY RESULT IN THE IMPOSITION OF SANCTIONS, INCLUDING COSTS, ATTORNEY FEES, ENTRY OF JUDGMENT, OR DISMISSAL. The defendant(s) must appear in court on the date specified in order to avoid a default judgment. The plaintiff(s) must appear to avoid having the case dismissed for lack of prosecution. A written MOTION or ANSWER to the court by the plaintiff(s) or the defendat(s) shall not excuse the personal appearance of a party or its attorney in the PRETRIAL CONFERENCE/MEDITION. The date and time of the pretrial conference CANNOT be rescheduled without good cause and prior court approval. A corporation may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation. Written authorization must be brought to the Pretrial Conference/Mediation. The purpose of the pretrial conference is to record your appearance, to determine if you admit all or part of the claim, to enable the court to determine the nature of the case, and to set the case for trial if the case cannot be resolved at the pretrial conference. You or your attorney should be prepared to confer with the court and to explain briefly the nature of your dispute, state what efforts have been made to settle the dispute, exhibit any documents no proof and will expedite the trial, and estimate how long it will take to try the case. Mediation Mediation may take place during the time scheduled for the pretrial conference. Mediation is a process whereby an impartial and neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties, without prescribing what the resolution should be. It is an informal and nonadversarial process with objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. 544312 In mediation. decision making rests with the parties. Negotiations in county court mediation are primarily conducted by the parties. Counsel for each party may participate. However, presence of counsel is not required. If full agreement is not reached at mediation, the remaining issues of the case will be set for trial. Mediation communications are confidential and privileged except where disclosures are required or permitted by law. If you admit the claim, but the desire additional time to pay, you must come and state the circumstances to the court. The court may or may not approve a payment plan and my withhold judgement or execution or levy. RIGHT TO VENUE. The law gives the person or company who has sued you the right to file in any one of several places as listed below. However, if you have been sued in any place other than the one of these places, you , as the defendant(s), have the right to request that the case be moved to a proper location or venue. A proper Location or venue may be one of the following: (1) where the contract was entered into; (2) if the suit is to recover property or to foreclose a lien, where the property is located; (4) where the event giving rise to the suit occurred; (5) where any on or more of the defedants sued reside; (6) any location agreed to in a contract; (7) in an action for money due, if there is no agreement as to where suit may be filed, where payment is to be made. If you, as the defendant(s), beleive the plaintiff(s) has/have not sued in of these correct places you must appear on your court date and orally request a transfer, or you must file a WRITEN request for transfer in affidavit form (sworn to under oath) with court 7 days prior to your first court date and send a copy to the plaintiff(s) or plaintiff(s') attorney, if any. A copy of the statement of claim shall be served with this summons. DATED at________________________, Florida, on AUG 27 2009 Clerck of the Court By: Jamil Kirby Shaw 301309 Deputy Clerk" Here's the the COMPLAINT: "CAPITAL ON BANK (USA), N.A., a corporation Plaintiff. vs. MY Name. Defendent, _____________________/ COMPLAINT The Plaintiff, CAPITAL ON BANK (USA), N.A., sues the Defendant (My Name), and alleges: (1) This is an action for damges that does not exceed $5,000.00, exclusive of interest, court costs and attorney's fees. (2) The Plaintiff established a credit card account, bearing the number 517XXXXXXXXX, in the name of the Defendant and issued a credit card to the Defendant. (3) The credit card and the original credit card agreement (the "Agreement") were sent to the Defendant. Upon information and belief, Defendant is in possession of the original Agreement. A copy of the Agreement is attached and incorporated herein by reference. (4) Defendant, or others authorized by the Defendant, used the account to incur charges, thus accepting the terms of the Agreement and agreeing to be bound thereunder. (5) Defendant breached the Agreement by failing to make payment when due. (6) Defendant owes Plaintiff $4,634.35 plus interest on the credit card account. (7) All conditions precedent to bringing this action have occurred or have waived. (8) Plaintiff is obligated to pay its attorneys a reasonable fee for their services. The Agreement provides for the recovery of attorney's fees. In the event of a default, a reasonable fee would be $400.00 WHEREFORE, Plaintiff demands judgment for damages, plus interest, costs and attorney's fees. RUBIN & DEBSKI, P.A. BY: (Signature) Maureen B. Murray Attorney for the Plaintiff P.O. Box 47718 Jacksonville, FL 32247 Phone: (904) 425 0901 Florida Bar #28179" Can any one help out as to what I should do next?
  9. I just submitted my answers (see below) last FRI. How do they look? Is there anything I should be doing in the meantime while I wait for the pretrial conference on SEPT14? IN THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION STATE OF HAWAI’I Case No. xxxxxxxxxxx CAPITAL ONE BANK (U.S.A.), N.A. Plaintiff Vs. FIRST AMENDED ANSWERS, DEFENSES AND COUNTERCLAIMS ME Defendant ANSWERS Defendant, ME, appearing pro se, for its reply to the Plaintiff’s FIRST REQUEST FOR ADMISSIONS AND FOR ANSWERS TO INTERROGATORIES states as follows: All Answers correspond to the numbered requests for admissions and interrogatories. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegations contained therein, unless expressly admitted herein, and leaves the Plaintiff to provide strict proof thereof. REQUEST FOR ADMISSIONS NO1 RESPONSE: Deny REQUEST FOR INTERROGATORY NO1 The Defendant disputes the alleged credit card account by Plaintiff, as solicited in REQUEST FOR ADMISSIONS NO1, and demands strict proof thereof. REQUEST FOR ADMISSIONS NO2 RESPONSE: Deny REQUEST FOR INTERROGATORY NO2 In response to REQUEST FOR ADMISSIONS NO2, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO3 RESPONSE: Deny REQUEST FOR INTERROGATORY NO3 In response to REQUEST FOR ADMISSIONS NO3, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO4 RESPONSE: Deny REQUEST FOR INTERROGATORY NO4 In response to REQUEST FOR ADMISSIONS NO4, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO5 RESPONSE: Deny REQUEST FOR INTERROGATORY NO5 In response to REQUEST FOR ADMISSIONS NO5, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO6 RESPONSE: Deny REQUEST FOR INTERROGATORY NO6 In response to REQUEST FOR ADMISSIONS NO6, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO7 RESPONSE: Deny REQUEST FOR INTERROGATORY NO7 In response to REQUEST FOR ADMISSIONS NO7, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO8 RESPONSE: Deny REQUEST FOR INTERROGATORY NO8 In response to REQUEST FOR ADMISSIONS NO8, the request states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. REQUEST FOR ADMISSIONS NO9 RESPONSE: Deny REQUEST FOR ADMISSIONS NO10 RESPONSE: Deny AFFIRMATIVE DEFENSES 1. Plaintiff’s Complaint fails to allege a valid assignment [according to U.C.C. § 9-406], and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. 2. Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. [according to U.C.C. § 9-406] 3. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. [according to U.C.C. § 9-406] 4. Plaintiff is unable to show that the debt was legal in the first place (failed to provide any contract or agreement bearing the signature of the Defendant, nor itemization of the bill to prove debt and amount claimed; Inadequate evidence was presented by Plaintiff.) 5. Attached documents (Exhibit #1, #2) are not authenticated by an employee of Capital One Bank (USA), N.A., and are therefore inadmissible as evidence. 6. Plaintiff has no reasonable grounds for belief that there is no substantial dispute over the amounts in controversy since such defense has previously been interposed by service of an Answer on the Defendant's behalf. 7. Plaintiff's proffered use of the disclosure device pursuant to Hawaii Rules of Civil Procedure [33, and 36(a)] is inapposite as the items being sought are in dispute, are not a matter of mere public knowledge, and form the very basis of the contested account. 8. Until Plaintiff responds to Defendant's discovery demand, such information is not in Defendant's possession or control to the extent allowing an answer and as to the remaining items, has already been answered by Defendant in the Answer or related discovery. 9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. WHEREFORE, Defendant prays that Plaintiff’s Complaint be DISMISSED, at Plaintiff’s cost, for costs and attorney fees expended herein, and all other just and proper relief. Dated: August 7, 2009
  10. Back in May I had a pretrial conference with Midland and let the attorney know I demanded proof that this debt is actually mine. He asked for my SS# and said he could be able to verify it over the phone. I told him if this was actually my debt he would be able to tell me what my ss# is or at least the last four no's. He froze and said I should look into filing identity theft and get back with him. That was it. Have not heard from them since. So I went down to the courthouse yesterday and checked on my case and it just says "case closed". What are the next steps I should be taking to actually close this case? Thank you!
  11. During what part of the legal process can I request for production of evidence/documents? Discovery While answering request for admission? During pretrial conference? Mahalo
  12. Had Hearing , Lost on all Six MOTIONS need to Figure out why ? Had Hearing and Pretrial conference on three cases , ( 2 were mine and 1 my wife's ) Had 3 MOTIONS TO QUASH SUMMONS and 3 MOTIONS TO DISMISS all 6 were denied . No explanation as to why , this bothers me . I ask the Judge if I would receive a reason as to why ? He said yes . It is in Florida Small Claims County Court , I have several questions : 1 . How do they notify me ? , 2 . How soon ?, 3 . And can I put in a second motion to ask for reconsideration or in some way appeal his decision ? ( How much time do I have to do something ? ) 4 . Do they or Do They Not have to deliver a Summons by hand to the person it is to be served on ? 5 . Can they just leave it on your door step . ( everything I could find in our laws and rules say it has to be delivered to the person being served )
  13. Question ? The court granted me Discovery at the Pretrial , Plaintiff has all my requests . Now the plaintiff sends me a ---- PLAINTIFF'S OBJECTIONS TO DEFENDANT'S REQUEST FOF ADMISSIONS AND INTEROGATORIES ---- 1 . Plaintiff objects on the basis that the information requested is not relevant to the subject matter of this lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence .FRCP 1.280 (b )(1) . " It is axiomatic that information sought in discovery must relate to the issues involved in the litigation , as framed in all pleadings " Krypton Broadcasting of Jacksonville , Inc. Vs. MGM-Pathe Communications Co. 629 So.2d852 (Fla. 1 DCA 1993 ), citing , Becker Metals Corp, vs West Florida Scrap Metals , 407 So.2d 380 (Fla. 1 DCA 1981 ) See also Allstate Insurance Co. Vs. Langston, 655 So.2d 91 (Fla 1995 ) . The discovery is limited to inquiring as to the attorney who was present at the pretrial conference and who made a limited appearance for that purpose . Question 1 If the plaintiff can use that to not answer my INTEROGATORIES and not furnish me with documents , can I use the same exact statement to the Plaintiff's demands ? Question 2 They have sent me PLAINTIFF'S REQUESTS FOR PRODUCTIONS , I now have 30 days plus 5 to answer , would that be correct ? To date they have furnished me with zero information or documents so I just filed a MOTION TO COMPEL DISCOVERY , do you think the Court will grant me that Motion ?
  14. Well first off I would like to thank everyone who helped me out regarding my situation. I was served by Cap 1 back in Feb. of this year. My pretrial conference was set for this week and it has been cancelled because the attorneys for Cap1 and myself were able to reach an agreement. This is what I had hoped for all along, most importantly no judgement. Also, I got them to settle at 50%. Which makes me think that my defense of VA law governs may have held up in court. I guess I will never know. Anyways I am just glad to have this behind me. Hopefully Cap 1 will stop reporting as a charge-off every month now!! Only time will tell. Thanks again!!!
  15. Hi , I am new to this forum and don't have a clue to what I am doing , but I need some advice . I have been served to appear in court ,I am being sued by Capital One ( credit card debt ) it states -- Summons/ Notice To Appear For Pretrial Conference / Mediation -- Law Firm involved is Rubin & Debski , complaint states 2,603.13 plus interest , I called them , they said the total is 4,000.00 . We were in an accident 2 / 28 / 07 , by the end of 2007 I could no longer make any payments because of medical and living expenses , I notified Capital One by letter about my situation and requested they freeze my account and put me on their lowest interest rate until we could get our situation under control . Checking my record , I had used my card four times between the time of the accident till the end of 2007 , charged 310.00, paid payments of 600.00 , the balance before the accident was about 1700.00 I thought . Tomorrow I am going to the court house to see what I can find out . Are there certain things that are the same in every state ? I have sent the law firm a registered letter , stating their claim is disputed and requesting validation , does anyone in this forum have any idea of what I can expect or should do ? -----Can I tape the court Proceedings ? -----If after a motion to compel Validation , And motion to dismiss , If those do not work can I demand a Jury Trial ? -----Need to find someone from Florida going through the same thing
  16. NEWRYMAN , sorry that I am messing this up so bad on this forum , I am starting to understand it better . The summons was given to me 5/20/09 , SUMMONS/ NOTICE TO APPEAR FOR PRETRIAL CONFERENCE/ MEDIATION , It states the case will not be tried at the pretrial conference , but may be mediated at that time . On the COMPLAINT section No # 6 says Defendant owes Plaintiff 2,603.13 plus interest . What have you done so far as regards answering the summons? The plaintiff is Capital One Bank and the lawyers are Ruubin & Debski , all I have done so far is called the law firm , they told me the amount was now 4,000 , they would give me no further information , I then sent them a letter saying I disputed the debt , and requested validation . My court date is 6/17/09 . The summons does not say anything about an answer it does say -- The defendant must appear in court on the date specified in order to avoid a default judgment .
  17. Hi , I am new to this forum and don't have a clue to what I am doing , but I need some advice . I have been served to appear in court ,I am being sued by Capital One ( credit card debt ) it states -- Summons/ Notice To Appear For Pretrial Conference / Mediation -- Law Firm involved is Rubin & Debski , complaint states 2,603.13 plus interest , I called them , they said the total is 4,000.00 . We were in an accident 2 / 28 / 07 , by the end of 2007 I could no longer make any payments because of medical and living expenses , I notified them by letter about my situation and requested they freeze my account and put me on their lowest interest rate until we could get our situation under control . Checking my record , I had used my card four times between the time of the accident till the end of 2007 , charged 310.00, paid payments of 600.00 , the balance before the accident was about 1700.00 I thought . I am so broke I can not pay them anything regardless of what the court action brings . I have sent the law firm a registered letter , stating their claim is disputed and requesting validation , does anyone in this forum have any idea of what I can expect or should do ? Thank You David
  18. david9041 david9041 is online now Newbie Newbie Join Date: May 2009 Location: florida Posts: 3 david9041 Member of the club Default Summons/ Notice To Appear Hi , I am new to this forum and don't have a clue to what I am doing , but I need some advice . I have been served to appear in court ,I am being sued by Capital One ( credit card debt ) it states -- Summons/ Notice To Appear For Pretrial Conference / Mediation -- Law Firm involved is Rubin & Debski , complaint states 2,603.13 plus interest , I called them , they said the total is 4,000.00 . We were in an accident 2 / 28 / 07 , by the end of 2007 I could no longer make any payments because of medical and living expenses , I notified them by letter about my situation and requested they freeze my account and put me on their lowest interest rate until we could get our situation under control . Checking my record , I had used my card four times between the time of the accident till the end of 2007 , charged 310.00, paid payments of 600.00 , the balance before the accident was about 1700.00 I thought . I am so broke I can not pay them anything regardless of what the court action brings . I have sent the law firm a registered letter , stating their claim is disputed and requesting validation , does anyone in this forum have any idea of what I can expect or should do ? Thank You David wahoo238's Avatar wahoo238 wahoo238 is online now 500 posts and hasn't been banned yet.... 500 posts and not banned yet Join Date: Jun 2005 Location: TEXAS Posts: 623 wahoo238 will become famous soon enough Default You will with out question need to file an answer or a default judgment may be granted. I would suggest you post your Q in the “Is there a Lawyer in the house” section to get a better handle on your situation. Default Question Question -- The statement - file an answer ? Is that something I do at the pretrial conference ? and how could they expect mediation if they do not furnish validation ?
  19. I recieved a summons today to attend a pretrial conference being sued by Harvest Credit Management on behalf of Barkleys bank. This is in the State of Florida and their is no place to respond just says I am required to attend the pre trial conference..I would like to try to delay this for a month or two and not sure what I can do for a delay or by simply showing up I can get this put off for a few months before going to trial. AT this point in time I believe were basically judgement proof..No assets no money, no income except $1000 in monthly unemployment which is soon to run out..this is what my family of 4 is currently living off of...Home is in foreclosure. My husband is a licenced contractor and we are trying to qualify a corporation prior to filing BK I'm trying to get the money together to do this but I can not show any outstanding Leins, BK's or Judgements on my credit report..Not sure if I can make this all happen by June 10...Once the corp is qualified we intend on filing for a chapter 7 BK. The debt is legit so I would feel uncomfortable attempting to fight it as well as I can't afford an attorney at this point in time knowing it will be included in my bk...Its not that I am worried about someone obtaining a judgement against me since their is nothing to go after with a BK to follow...its more the licencing issue I would like to get through...so a good month or two could mean the difference of my families future survival..Self employment is really our only option at this point in time their are no jobs where we live right now.. What are my options? Can I simply request a date change because its "inconvient" Or can I get judgement delayed by going to the pretrial conference explaining my situation etc?
  20. So, today I had to go to a pretrial conference for a credit card from 2003, last payment made was March 2004. They tried to sue in June of 2008 never got served. Then got served in April of 2009. The summons had nothing attached to it. So obvisouly they had no evidence. I went to court today, sat down. Guy in a suit came over grabbed my papers and told me to follow him. Sat down at a Table(judge or mediator was not there), told me it was for a credit card and the people who are suing were nice people and wanted to work something out. I told him that they had no proof and it was out of SOL. Then had another guy in a suit they started talking.....He then said that it would cost me more to fight and I would not get the results I wanted and probably have a judgement or a lein on my house. We went back and forth...finally he said I could pay 20.00 a month that he could go even lower. At that point I felt so intemidated and freaking out that I agreed. They filled out this paper and it was signed by a mediator. The first payment is due June 19th. Then he said that these people are very nice and they will work with me. After it was all said and done....I realized that he was the attorney for them and I had just got screwed. Is there anything I can do? Obvisouly now that I think about it...of course they wanted to settle so low because they have nothing....but scare tatics....Any help would be greatly appreciated on this one??
  21. I have been searching for days on how to answer or file the disclosure statement. I did finally find a form from another AZ county to pull from. But, I am stumped on what to say. I am required to say who I am calling as witnesses (no one), what my testimony is (not sure, but giving it a shot below), and legal theory (????)...among others. I'm going to put the questions here with what I think should go as my answers. I'll also post the JDB's disclosure statement. The JDB has not provided any signed contracts or receipts, not even an account number for the alleged OC. They attached a notarized affadavit, so I am planning on filing a motion to strike affadavit and a sworn denial. But here's what I was thinking. Please give your input. I need to get these done ASAP as we are set for mediation on Weds. 1. Factual Basis for each claim/defense: Plaintiff has no evidence to support that they are the owner of said debt. No proof of alleged debt has been provided, including signed original contract. 2. A description of the damage(s) and copies of any exhibits that show how you calculated the dollar value of the damages. Bring a copy of these documents/exhibits to any scheduled Pretrial Conference. Defendant is unaware of any such documents and therefore cannot produce said documents. 3. The legal theory upon which each claim/defense is based:1. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 2. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 3. . Midland Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Arizona, or solicit the right to collect or receive payment of a claim of another. 4. On a separate page entitled "List of Witnesses", and made a part of this Disclosure, list the names, addresses and telephone numbers of any witnesses whom the undersigned party expects to call at trial. (Include a brief summary of their testimony). Plaintiff's Attorney, Defendant 5. On a separate page entitled "List of Documents and Other Information":If I don't have anything what do i put here? Do I mention the sworn denial here? A. List the documents or evidence which would be available for review by the Court which supports the claim(s) of the undersigned party. Bring a copy of these documents and description of the evidence to any scheduled Pretrial Conference. B. Any other information, documents, or witnesses of which the undersigned party has knowledge, or that a reasonable person would recognize as leading to the discovery of such knowledge pertaining to this matter, is outlined on a separate page and made a part of this disclosure.Again, what do i put here? I don't think I really have anything to go here
  22. My husband just got some paperwork in the mail from Bennett & Deloney and I am not sure what I do next, I posted on here previously asking about Midland, we already received the summons and answered back with a debt validation letter. Now they have sent my husband a letter that states, per your request you will find documentation providing verfication of the debt. Attached to this is an affidavit in support of judgment. It reads as follows: BEFORE ME, the undersigned authority personally appeared and personally known by me, this day, and who after being duly sworn deposed and says as follows: 1. That I am a competent person over eighteen years of age. I am employed by Midland Credit Management, Inc. servicer of this account on behalf of Midland Funding, I make the statements herein based upon my personal knowledge. Midland Funding is the current owner of, and/or successor to, the obligation sued upon. 2. That Midland Funding predecessor in interest sold and assigned all right, title and interest in the defendant's (original card holder and account number were stated, as well as Midland's account number for this)to Midland Funding. In the ordinary course of business, Midland Funding purchases charged-off credit accounts, installment acounts andor other credit lines. 3. That the scope of my job responsibilities in cludes the oversight of credit accounts maintained by Midland. blah, blah, blah (talks about the persons duties) 4. That based upon my personal knowledge of MCM, Inc's business records and the practices for servicing of the credit accounts of Midland the contents of this Affidavit are true and correct. If called upon and sworn to testify herto, I could and would so competently testify thereto. 5. That in addition to the foregoing, Midland maintains, as a regular practice of its business, computer records of activity on its accounts, including payments received, amounts owing on such accounts, credits and offsets. etc, etc..... 6. (This paragraph gives the just and true balance on account). 7. That demand for payment of the just amount has been made more than 30 days prior hereto and payment for the amount owing has not been tendered. There is no record of any legitimate dispute by the accountholder. 8. That all documents attached hereto are certified to be correct originals of true and correct copies of the originals, being reproductions from the records or being evidence to establish the contents of a lost or destroyed document or computer transactional records. I declare under the penalty or perjury that the foregoing is true and correct. 9. That upon information and belief, based upon business dealings with the defendant, that defendant is /are not and infant or incompetent person and that defendant is not in the military service and is not entitled to the rights and privileges provided under the Solders and Sailor Civil Relief Act of 1940, as amended. Then at the bottom there was a copy of a signed signature. Then it said it was notarized, also just a copy. The pages that followed were a copy of the cardmember agreement. No signature from my husband, nothing that would really prove it is his other than the account number. The next piece of paperwork that came was a request for pretrial conference with no date. What does this mean and what do I reply? Can I write back saying that was not proper validation and request proper validation? Thanks again. Sorry this is soooo long....
  23. 1. Who is suing you? PROFESSIONAL INVESTMENT AND FINANCE, LLC. ASSIGNEE OF CHASE 2. For how much? 1400 3. Who is the original creditor? CHASE 4. How do you know you are being sued? THEY ARE REQUESTING A PRETRIAL CONFERENCE...SO I ASSUME I'M ON MY WAY 5. How were you served? Were you served? BY A SHERIFFS OFFICER, UH...YES 6. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE, I WAS PAST THE INITIAL 30 DAY DEBT VALIDATION PERIOD, AND WAS TRYING NOT TO WAKE THE SLEEPING GIANT BY GETTING THEIR ATTENTION...DIDN'T WORK 7. Where do you live? FLORIDA 8. When is the last time you paid on this account? UNSURE, BUT THEY CHARGED IT OFF IN NOVEMBER OF 2005 9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). WAS SERVED TODAY WITH A NOTICE OF PRETRIAL CONFERENCE / MEDIATION 10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO. THOUGHT I WAS OUTTA TIME 11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. 12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? NO QUESTIONNAIRE., IT DOESN'T REQUIRE A WRITTEN RESPONSE.. BEING CHARGED WITH NON PAYMENT OF A CREDIT CARD 13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? THEY ATTACHED A CHARGE OFF STATEMENT AFFIDAVIT OF DEBT 14. What is the SOL on the debt? 4 YEARS IN FLORIDA.. SO I'M GUESSIN NOVEMBER 2009 BUT I THOUGHT IT STARTED FROM THE FIRST DAY OF NON PAYMENT.. NOT THE CHARGE - OFF DATE??
  24. an assignee of Chase is requesting my attendance at their little "courtroom ball" in Florida.. Is there a list of steps that I should follow? I've never been involved in legal proceedings and am curious what my options are???? I do see they up'd my original credit card limit from 700 to 1400 to match what they charged off, but aside from that everything else seems legit to my untrained eye?? I have a month before I have to appear in court... yikes.... thanks for the help
  25. I need some advice and after reading all input I am a little confused. Received a summons on an old credit card account. Lowes acct charged off 3/2007. The papers included with the summons are as follows::Old copies of statements for two or three years then affidavit of sale from GE Money bank and sold to CACH LLC.Next is a bill of Sale from GE to CACH then Certificate of Assignment to CACH LLC, Business Records Affidavit from CACH LLC stating that this person is a custodian of records for CACH LLC. An Affidavit of Indebtedness and certificate of assignment state of Colorado with the heading of the cty court in Florida. Statement of claim which state the plaintiff is CACH LLC with a case no for me to appear in court.The first page is a summons to appear for pretrial conference and that this Lawyer is representing CACH LLC as plaintiff in our case. Sorry to drag out just wanted to give you as much info. Facts are we owe of $2500.00 in an old credit card debt that was charged off and sold to CACH. They now have a lawyer and we have to appear in court. No where on this paper does it say file an answer but everyone here says I should , so I will anyway, but what can I use as a defense or anything to help us to avoid a judgment. I know that before the start of business the judge says "would anyone like to go with one of our negotiators and negotiate before we begin?" The last time this happened I had said that I didn't agree with the total charges and they made me sit for a few hours then the judge had a phone call with the lawyer and worked out a payment plan but there was never a judgment put on us. So do I try that again and hope for the best, talk to the lawyer before hand and ask for a payment arrangement and avoid court altogether or is there something I can use in an answer sheet that will keep me from admitting our debt totally and keeping from getting a judgment. We are willing to make reasonable arrangements but barely making it so they would have to small for now. Please any advice would be welcome.