Motion to Quash Discovery

[debt tired]

I received Notice to Produce Docs, Admit, and "Rogs" from Plaintiff on Friday. The debt is out of SOL by over 2 years. I'm going to file a Motion to Dismiss, but someone suggested I also file a Motion to Quash their Discovery. I can't find much on the web about it. Does anyone have any experience with this?

[Recovering Attorney]

You can quash a subpoena, but you can't quash discovery. Sounds like you are on your way. If you think you can win on a motion, don't bother playing with their discovery. You'll simply tick off the judge.

[IHateCAs]

Well you're going to need discovery to prove your SOL defense (unless they admit dates on the complaint itself), and you don't have any docs to turn over to them.

[IHateCAs]

Being sued by OC or JDB?

[debt tired]

Being sued by OC or JDB?

I would say the JDB. They have the OC listed as Planitiff, but the "attorneys" suing, are Gerald E. Moore and Assocs. I DV'd them in the beginning, all they sent was a copy of the last statement before CO (Feb - Mar 01). I then sent them the SOL letter. Their answer to that was the summons. I answered the summons with SOL as my #1 affirmative defense. I listed the date and sited the law (I live in GA). Their answer to that is the discovery papers. I am completely shocked that they keep "pursuing" this when SOL is expired. Last activity on account is Sept 00. No payments or activity since. I also sited in my defenses that this is an open acct and not writtien. But even if they try for the 6 years, it's still out of SOL. Summons was not filed until Dec 06. So if I just simply file the Motion to Dismiss, will it come back and bite me in the end if I don't answer their discovery? I've read that not answering is almost like admitting. Am I wrong?

[IHateCAs]

I dunno enough about GE Moore to know if they sue for OCs or not. You're going to have to conduct discovery to get proof that the account charged off September 2000 and you can dispose of the case.

A phone call to the OC would probably reveal whether or not they sold the debt or just assigned it. If you find out they sold it and GE Moore is listing the OC as the plaintiff, you'd have a nice FDCPA suit.

[Leadhead]

Why don't you file an FDCPA counter-claim against them for sueing you on a debt they knew to be out of SOL?

[debt tired]

Why don't you file an FDCPA counter-claim against them for sueing you on a debt they knew to be out of SOL?

Don't feed me to the wolves...but...the debt is mine and b/c sol has expired, I didn't want to "look a gift horse in the mouth" by counter suing. I feel "lucky" that I didn't have to pay the debt sooner; therefore, I decided not to be greedy and countersue. But now, since they are so blantantly wanting to pursue this, I do think I should countersue. I have already filed my answer, so is it too late now?

[IHateCAs]

It's not too late.

FDCPA is not a compulsory counterclaim. You could dispose of this suit and file later in either state or fed court.

[debt tired]

You can quash a subpoena, but you can't quash discovery. Sounds like you are on your way. If you think you can win on a motion, don't bother playing with their discovery. You'll simply tick off the judge.

This is my thinking, I don't want to state anything in the discovery that may come back and bite me; therefore, I'm not going to answer it. This is not a court ordered discovery. They would have to file a motion to compel discovery, correct? With that being said, I'm going to file my Motion to Dismiss. I firmly believe that the judge is going to rule in my favor. I have a clear cut SOL defense. Even if they try for a written account SOL, in GA it is 6 yrs and that too has passed. Am I wrong in my thinkin?

Thanks Recovering Attorney and IHATECAs!

[Methuss]

This is not a court ordered discovery.

Bar registered lawyers are officers of the court. So don't fool yourself, they have the authority and most judges give them a lot of latitude because of this status.

However, you have your defense and a motion to dismiss is perfectly normal procedure. If you don't have proof to back up your motion you may have some trouble getting a judge to agree though.

[IHateCAs]

Judge will probably not grant MTD unless it is evident on the pleadings that the suit is barred. That's why I'm saying you have to conduct discovery to prove SOL.

[debt tired]

Judge will probably not grant MTD unless it is evident on the pleadings that the suit is barred. That's why I'm saying you have to conduct discovery to prove SOL.

In my answer, I stated the DOLA (09/00) and also stated SOL law. I also included all letters that were sent to the "attorney's" prior to filing stating that SOL had expired. In that letter, the DOLA was also mentioned. So am I understanding that I should file discovery on them?

This is my Motion to Dismiss. Please let me know what you think.

MOTION TO DISMISS

Comes now Defendant, debt tired, appearing Pro Se, moves that the above entitled action be dismissed.

1. On XXX DATE, Plaintiff filed the above complaint with the Clerk of Court in the State Court of XXX County, Georgia.

2. In the complaint, the Plaintiff is suing the Defendant for an amount owed with regard to a Revolving Credit Card Account. Plaintiff included a copy of a statement from OC dated XXX, 2001. This was the last statement prior to charge off in XXX 2001. A credit card company must charge off an account 180 days after the first delinquency. The first delinquency occurred in XXX 2000.

3. Plaintiff’s Complaint is barred by the Statute of Limitations as found in Georgia statute § 9-3-25. The Complaint was filed on XXX Date, and thus the Complaint was filed more than six (6) years after the accrual of the cause of action; which is XXX 2000. Thus, the cause of action is barred by Georgia statute § 9-3-25.

4. The Plaintiff’s counsel has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the counsel to collect the debt on behalf of the original creditor.

5. Plaintiff’s counsel was notified prior to filing that alleged debt was barred by the Statute of Limitations on XXX DATE. Plaintiff’s counsel then filed the summons on XXX DATE. Plaintiff and Plaintiff’s counsel is in violation of the Fair Debt Collection Practices Act, hereinafter called FDCPA, for attempting to collect on a time-barred debt. (§ 807. False or misleading representations [15 USC 1962e]). Defendant can be entitled to damages per the FDCPA (§ 813. Civil liability [15 USC 1692k]).

6. Notice of Request for Production of Documents, Interrogatories to Defendant, and Request for Admissions sent by Plaintiff’s counsel was received by Defendant on XXX DATE. These Notices seek information which is irrelevant and immaterial. Additionally, all documentation used to support Defendants affirmative defenses were attached to the answer filed with the Clerk of Court in the State Court of XXX County and also received by Plaintiff on XXX DATE by certified mail.

WHEREFORE, Defendant debt tired, respectfully requests this court grant the Motion to Dismiss the Complaint, together with the costs and disbursements of this action.

[Strawberry Bird]

Debt Tired .. did you file this mtd and did it work? It looked good to me and my situation is really similar.. I have to file answers, etc on Monday.

Thanks

SB

[debt tired]

Debt Tired .. did you file this mtd and did it work? It looked good to me and my situation is really similar.. I have to file answers, etc on Monday.

Thanks

SB

No, I ended up filing an "answer" and listed my defenses, SOL being #1. I have since filed for a motion for summary judgment. They have filed a response to my MSJ saying the acct is 6 yr and not 4 yr SOL and also filed for MSJ. Figured that was coming, so I have now filed a response to their request for MSJ. Calling the judge's sec on Monday to request hearing. Either way, the acct is past SOL. DOLA is 09/00. I think the attorneys are po'd that they didn't get their easy default judgment. They didn't know I was going to be such a hassle to them. HA!