Something fishy? Update!

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Dh is in the midst of his fight with MBNA, as I have posted. Last week, when the default judgment was vacated, he was ordered to file an answer to their application to confirm the arbitration award (which I did today) and then file a Supreme Court Rule 222 Disclosure within 28 days. I am working on that one (it's tough). Anyway, today he recieved a letter from the CA attorneys stating that they were "requesting" that he answer the questions on the form that was included per Supreme Court Rule 216. It was typed up to look like it had been filed in court, but alas, no "filing" stamp on it. All the statements on the paper are along the lines of "requesting" him to ADMIT to all their charges. Is he required to do so, since it was not filed with the court?

Adding on:

It's titled: Plaintiff's Request to Admit Facts and Genuineness of Documents

The text says, "Now comes the Plaintiff, MBNA America Bank, by its attorneys, XXXXX, pursuant to IL Supreme Court Rule 216 requests the Defendant, XXX, to admit under oath, within twenty-eight (28) days, the truth of the following facts and the genuineness of the following documents, in accordance with the following instructions:

If, in response to any of the following statements of fact, it is your belief that the statement is true in part or as to some items, but not true as to all items or parts, then answer separately as to each part or item.

1. Admit that the Defendant applied for and/or opened a charge account financed by MBNA, specifically accounts number XXXXX.

2. Admit that the Defendant received an MBNA charge agreement in the mail sometime after applying for her (sic-it's my dh's) account. See exhibit A.

3. Admit that the account agreement allowed MBNA to amend the terms of the charge agreement.

4. Admit that the Defendant received an amended account agreement in the mail sometime after applying for his account. See Exhibit B attached hereto for a copy of said agreement.

5. Admit that the Defendant made charges to his MBNA charge account after the date of XXXX.

6. Admit that Defendant last made payment on his MBNA charge account on or about XXXX.

7. Admit that MBNA initiated an arbitration action against Defendant with the National Arbitration Forum pursuant to the terms of the charge agreement.

8. Admit that Defendant was served with the claim in that arbitration action.

9. Admit that on XXXX, the National Arbitration Forum issued an award against Defendant and in favor of the Plaintiff in the amounts of XXXX. See exhibit C attached hereto.

10.. Admit that the sum of XXXX is due and owing on his MBNA account.

I know for a fact that #5 is not true, according to my statements that I have kept. I am guessing that the date they have listed is when the arbitration clause went into effect??

Any thoughts?

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Anyone want to help with suggestions on how to answer these? Thanks so much.

[LadynRed]

Well.. I'm no lawyer, but this is what I would do:

1. Admit that the Defendant applied for and/or opened a charge account financed by MBNA, specifically accounts number XXXXX.

You can fairly safely admit to this one if the account numbers etc are correct.

2. Admit that the Defendant received an MBNA charge agreement in the mail sometime after applying for her (sic-it's my dh's) account. See exhibit A.

I'm assuming the attached exhibit is a COPY of a current charge agreement ?? I don't know if you should admit 100% on this. If it is an old account, do you have a copy of the original agreement ? You can ASSUME you got one perhaps, but have no evidence to be SURE you got one. The court assumes that it got to you if its their regular business practice to do so.

3. Admit that the account agreement allowed MBNA to amend the terms of the charge agreement.

How can you admit to something like this ? The whole agreement is such legal mumbo-jumbo even a contract law professor at Harvard admits she doesn't understand them !

4. Admit that the Defendant received an amended account agreement in the mail sometime after applying for his account. See Exhibit B attached hereto for a copy of said agreement.

Again, they can only ASSUME you got such an agreement. If that Exhibit B isn't an EXACT copy of the original - which it won't be if the account is even a few years old - how can you admit to that 100% ? No way I'd agree 100%, you have no way of knowing if its an EXACT copy of the ORIGINAL when it was sent before.

5. Admit that the Defendant made charges to his MBNA charge account after the date of XXXX.

Yes, the date here would be the date of the amended agreement. That's how they nail you .. if you don't object and CLOSE the account, then you are tacitly agreeing to their slimy change of terms.

6. Admit that Defendant last made payment on his MBNA charge account on or about XXXX.

If the dates are correct, I suppose you can admit that.

7. Admit that MBNA initiated an arbitration action against Defendant with the National Arbitration Forum pursuant to the terms of the charge agreement.

I'd partially agree, only because you do NOT know that their exhibit is an EXACT copy of your ORIGINAL agreement or even the original changes.

8. Admit that Defendant was served with the claim in that arbitration action.

Kinda hard to deny that.

9. Admit that on XXXX, the National Arbitration Forum issued an award against Defendant and in favor of the Plaintiff in the amounts of XXXX. See exhibit C attached hereto.

Probably have to admit that too, they DID get the award, but that doesn't mean it was right. Did you object and reject the arbitration ?

10.. Admit that the sum of XXXX is due and owing on his MBNA account.

NO WAY I'd admit to this one. What have they produced to PROVE EVERY PENNY of what they allege is owed ??? Admitting this would be an instant hanging for you.

Now, I may be all wet with my logic and approach, so hopefully someone with a law degree will chime in. I'd certainly go dig into that case against MBNA that said their arbitration agreements are crap - unconcionable and unenforceable !!

[Leadhead]

What the plaintiff has sent you is discovery. Discovery is not filed at the time it is sent (usually), so there would not be a court stamp on it.

I think I would answer every Request for Admission:

Defendant lacks sufficiant information to admit or deny.

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Thank you both so much for your input! It will be extremely helpful in determining how he answers.

I am just confused on why they're sending him this (pursuant to IL Supreme Court Rule 216) when the court ORDERED that dh file a limited discovery pursuant to IL Supreme Court Rule 222, which is specifically for arbitration hearings. Dh is scheduled for an arbitration hearing on Jan. 5. The first arbitration award was through the NAF, but now they're doing a local hearing, after the default judgment was vacated.

Also...He really can't DV them now that we're into court proceedings can he? I found this board WAY after dh was into this mess. Is there any way to make sure they have to PROVE the account is his, etc., in court?

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bumping

[Leadhead]

He can send discovery of his own.

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Does he file that with the court, as well?

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Here is dh's response to the request (which after doing some more reading, I found is legal within the guidelines of Rule 222 that he also has to file) that I have written so far:

1. In response to paragraph #1, the Defendant admits a charge account was opened with MBNA.

2. In response to paragraph #2, the Defendant lacks sufficient information to admit or deny.

3. In response to paragraph #3, the Defendant lacks sufficient information to admit or deny.

4. In response to paragraph #4, the Defendant lacks sufficient information to admit or deny.

5. In response to paragraph #5, the Defendant denies making charges to the MBNA account after the date of XXXX.

6. In response to paragraph #6, the Defendant admits having last made a payment on or about XXXX.

7. In response to paragraph #7, the Defendant lacks sufficient information to admit or deny.

8. In response to paragraph #8, the Defendant admits receiving the claim, but lacks sufficient information as to the legal significance of that document.

9. In response to paragraph #9, the Defendant admits receiving a copy of the award from the National Arbitration Forum, but lacks sufficient information as to the legal significance of that document and the amount owed.

10. In response to paragraph #10, the Defendant lacks sufficient information to admit or deny.

Defendant reserves the right to amend any answer should that be necessary.

How does that sound? Can he add affirmative defenses to this or not? Thanks for any input!