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Being sued by Collection Agency, The Saga Begins....


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1. Who is suing you? MRC Receivables Corporation asignee of Providian National Bank via Lustig, Glaser & Wilson PC

2. For how much? $2,898.59 amount on complaint

3. Who is the original creditor? Providian National Bank

4. How do you know you are being sued? Received Summons/Complaint March 30, 2007

5. How were you served? Were you served? Sherriffs Office, left Summons/Complaint on top of mailboxes in Apartment Building, then mailed me copy of Summons.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? I had sent both Midland Credit Management aka MRC and their attorney a DV letter on February 26, 2007 received by attorney on feb 27, 2007. DV letter sent to Midland Credit Management came back underliverable because the address they state on my credit report is incorrect and also they are the same company as MRS (whic I was unaware of) Resent a DV letter to Midland on March 27, 2007 and they received it on March 29, 2007. They were all Certified Mail/RRR.

7. Where do you live? Massachusetts

8. When is the last time you paid on this account? Not sure, last activity on credit report states 2003.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). Not sure...Does have a Docket Number.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I disputed the debt with the credit bureas not the OC because I did not know of this debt. Also they use another name and address for the Debt collection company on my Credit Report.:confused:

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes I did, there response was a Summons/Complaint...:(

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? Yes, it did I will copy/past my Answer in post below. No interrogatories were received.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Only an affidavit signed by the lawyer "Affidavit Pursuant to MGL Chapetr 231, section 13b." and A Statement of Damages and a Uniform Counderl Certification of Civil Cases.

14. What is the SOL on the debt? 6 years

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Usual heading then:

ANSWERS AND COUNTERCLAIM

Defendant ME, answering the Complaint of the Plaintiff, asserts:

1. In response to paragraph #1, the Defendant lacks sufficient knowledge to admit or deny the allegations.

2. In response to paragraph #2, the Defendant admits.

3. In response to paragraph #3, Defendant lacks sufficient knowledge to admit or deny the allegations of paragraph 3 of the Complaint and on that basis denies the allegations therein.

AFFIRMATIVE DEFENSES

As and for a First Defense,

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense,

2. Plaintiff has unclean hands as Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Third Defense,

3. 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.

As and for a Fourth Defense,

4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendant.

As and for a Fifth Defense,

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Sixth Defense,

6. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements.

As and for a Seventh Defense,

7. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for an Eighth Defense,

8. Defendant states that Plaintiff’s claim is precluded as Plaintiff failed to follow validation procedures as required by FDCPA 15 U.S.C § 1692g, which include, but are not limited to, obtaining and providing validation of the alleged debt from the original creditor.

As and for a Ninth Defense,

9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIM

Statement of Facts

1. Defendant had no knowledge that MRC Receivables Corporation owned above alleged debt.

2. Defendant was under the impression from credit report that Midland Credit Management owned above alleged debt.

3. Defendant had no knowledge that MRC Receivables Corporation and Midland Credit Management are the same company.

4. Defendant sent letter to Midland Credit Management aka MRC Receivables Corporation on February 26, 2007, by way of certified mail; disputing and requesting complete validation of alleged debt.

5. Said letter was returned because the address that appears on Defendants credit report for Plaintiff is incorrect.

6.Defendant had to search the Internet to obtain correct mailing information for Plaintiff.

7. Defendant sent a letter to Lustig, Glaser & Wilson P.C. on February 26, 2007, by way of certified mail, disputing and requesting complete validation of alleged debt.

8. Said letter was received by Plaintiff on February 27, 2007, and signed for by Ed Gordon, agent of said Plaintiff.

9. Defendant sent another letter to Midland Credit Management aka MRC Receivables Corporation on March 27, 2007, by way of certified mail; disputing and requesting complete validation of alleged debt.

10. Plaintiff received said validation letter on March 29, 2007, and signed for by D. Petiotto, agent for the Plaintiff.

11. A complaint and summons was filed and issued on March 21, 2007 with an attached complaint dated March 20, 2007.

12. Up until the date of this filing, no validation was received from MRC Receivables Corporation aka Midland Credit Management or their attorney, yet through their attorney, continued to collect on alleged debt.

13. On March 30, 2007, Defendant was served with the summons and complaint.

Statement of Claim

11. In the course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act in the following respect:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(B).

(B) The failure to communicate that a disputed debt is disputed, therefore violating 15 USC 1692e(8).

© The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization, therefore violating 15 USC 1692e(14).

WHEREFORE the defendant prays the court as follows:

1. That the Plaintiff have and recover nothing of it in this action and that

the Plaintiff’s action be dismissed as to it;

2. That the Court grants injunctive relief enjoining plaintiff from selling, transferring, reporting or otherwise assigning the alleged account to any other collection agency, debt collector, debt buyer or credit reporting agency.

3. That the Court grants a judgment against plaintiff on the merit of the Counterclaim in the sum of two thousand dollars ($2,000.00).

4. That the Court grants have and recover all cost of defending against this suit and interposing Counterclaim, including but not limited to attorneys’ fees, filing fees, witness costs and postage.

4. That the Court grants to defendant such other and further relief as to the Court may seem just and proper.

I have a couple of questions:

1. Does my Answer look correct?

2. Aren't they supposed to validate the debt before suing me in Civil Court?

3. Should I also start a Discovery and do a Request for Production of documents, I am really stuck with this part. I am not sure how to word it and also what to ask for.

____________________________

Any help would be appreciated. Do I just have to wait and see what they respond to this? Can I send them a Request for Documentation?

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This is probably similar to the response you'll get from the other side. Unfortunately, the internet laundry list of defenses usually don't apply.

AFFIRMATIVE DEFENSES

As and for a First Defense,

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

What did they leave out?

As and for a Second Defense,

2. Plaintiff has unclean hands as Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

That's not what the "clean hands" doctrine means. You would need to prove their "damages" were caused by their own fraudulent act. Receiving an assignment of debt is not a fraudulent act.

As and for a Third Defense,

3. 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.

Your use of the card constitutes acceptance.

As and for a Fourth Defense,

4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendant.

Can you prove there was no consideration between the OC and JDB? They were the parties to the agreement that gave the JDB in interest in the debt, not you.

As and for a Fifth Defense,

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

Not needed if your contract with OC contained assignment clause.

As and for a Sixth Defense,

6. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements.

Not a recognized affirmative defense (most of the others in your answer aren't either)

As and for a Seventh Defense,

7. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

Equity defense; not applicable in a contract with defined terms.

As and for an Eighth Defense,

8. Defendant states that Plaintiff’s claim is precluded as Plaintiff failed to follow validation procedures as required by FDCPA 15 U.S.C § 1692g, which include, but are not limited to, obtaining and providing validation of the alleged debt from the original creditor.

Not a defense to a CFI action.

As and for a Ninth Defense,

9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

You might think about doing that.

Your counterclaim will likely be dismissed for failure to state a claim for which relief can be granted.

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Thanks for the help. I guess I'm Pretty screwed.. We will se what happens when I go to court. No court date yet. Your advice was very helpfull though.

I plan to file the following Request for Production of Documents, please let me know if I am in the right direction. According to Rule 5 of the Massachusetts Civil Procedure section (d)(2) Unless the court, generally or in a specific case, on motion ex parte by any party or concerned citizen, or on its own motion shall otherwise order, the following shall not be presented or accepted for filing: notices of taking depositions, transcripts of depositions, interrogatories under Rule 33, answers and objections to interrogatories under Rule 33, requests under Rule 34, and responses to requests under Rule 34. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to court if needed or so ordered. Notwithstanding anything in this Rule 5(d)(2), any party pressing or opposing any motion or other application for relief may file any document pertinent thereto.

If I understood this correctly I donot need to file the request with the court.... Right???

Defendant's First Request for Production of Documents from the Plaintiffs

Pursuant to Rule 34 of Massachusetts Rules of Civil Procedure, the Defendant hereby requests that the Plaintiff, MRC Receivables Corporation assignee of Providian National Bank produce for inspection and copying the documents specified below at the place of residence of Defendant, within 30 days from the date of service of this request.

DEFINITIONS

(a)"Plaintiff" or "Plaintiffs" refers to the Plaintiffs named in this lawsuit, as well as any other person or entity in their agency or employ.

(B)“Document” means any written, recorded or graphic matter, whether produced, reproduced or stored on papers, cards, tapes, belts, or computer devices or any other medium in your possession, custody or control, or known by you to exist, and includes originals, all copies of originals, and all prior drafts. It includes all original business records, non-identical copies, computations, memoranda of oral or telephone conversations, tabulations, records of correspondence, notes made on other documents, microfilms, etc. A request to identify a document is a request to state as applicable:

1. The date of the document;

2. The type of document;

3. The names and present addresses of the person or persons who prepared the document and of the signers and addressers of the document;

4. The name of the employer or principal whom the signers, addressers and preparers were representing;

5. The present location of the document;

6. The name and current business and home addresses of the present custodians of the original document, and any copies of it;

7. A summary of the contents of the document; and

8. If the original document was destroyed, the date and reason for or circumstances by which it was destroyed.

© "Person" means any natural person, group of natural persons, corporation, partnership, government agency or board, association, proprietorship, organization, or any other legal entity.

REQUESTS FOR PRODUCTION

1. The alleged credit application from “”Account”” bearing the Defendant’s signature;

2. The alleged credit agreement from “”Account”” that states interest rate, grace period, terms of repayment, et cetera;

3. Itemized statements or credit card statements from “”Account”” that demonstrate how the alleged amount of $X,XXX was calculated;

4. A contract, agreement, assignment, or other means demonstrating that Plaintiff had the authority and capacity, and was legally entitled to collect on the alleged debt from “”Account””;

5. Letter(s) sent to Defendant by MRC Receivables Corporation assignee of Providian National Bank, demonstrating an attempt to collect on the alleged debt, “”Account””;

6. 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;

7. Any and all further documents that you believe establish that Defendant had an outstanding account or debt related to “”Account””;

8. Any further documentation, beyond what has been previously requested, that clearly establishes Defendant’s liability and/or responsibility to the alleged debt;

9. Any and all credit report(s) Plaintiff obtained from any credit reporting agency concerning the Defendant;

12. 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 “”Account””;

13. All DOCUMENTS relating to any communications between Plaintiff and Defendant with respect to the alleged account or debt.

14. All DOCUMENTS relating to any communications between Plaintiff and Original Creditor with respect to the alleged account or debt.

15. Plaintiff’s FILE with respect to the alleged account or debt.

16. Plaintiff’s FILE with respect to the Defendant.

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Anyone, Also what happens after you file your Answer with the Court? What exactly am I waiting for now? :confused::?:

I am going to be sending the Plaintiff a Request for Production of documents I believe I do not need to file this request with the court accourding to the following Rule from the Massachusetts Civil Procedure Rules:

"Rule 5 (d)(2) Unless the court, generally or in a specific case, on motion ex parte by any party or concerned citizen, or on its own motion shall otherwise order, the following shall not be presented or accepted for filing: notices of taking depositions, transcripts of depositions, interrogatories under Rule 33, answers and objections to interrogatories under Rule 33, requests under Rule 34, and responses to requests under Rule 34. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to court if needed or so ordered. Notwithstanding anything in this Rule 5(d)(2), any party pressing or opposing any motion or other application for relief may file any document pertinent thereto."

and they have 30 days to respond to it according tu Rule 34 (B). Please let me know if I understood the first Rule correctly. I do not have to file the Request with the Court.. right??

Thanks

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Thanks,

I will be sending this out today. I added some stuff to the Request but it is too long to post. I will keep you posted on what happens with this. Thanks for all the great help on this forum.

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This is probably similar to the response you'll get from the other side. Unfortunately, the internet laundry list of defenses usually don't apply.

But the bad guys will still have to take time and resources to point all that out, giving the OP leverage to negotiate a settlement.

What did they leave out?

Most likely, a signed affidavit from Providian that the cardholder agreement copy ,they will no doubt submit, (and will probably be illegible) is the one that the OP is bound by and an itemization of how they came to the final amount they say is owed.

That's not what the "clean hands" doctrine means.

I would use Volenti non fit injuria there, or assumption of risk, but you should search for more on that one here on CIC.

Your use of the card constitutes acceptance.

True, but make them prove that, too.

Can you prove there was no consideration between the OC and JDB? They were the parties to the agreement that gave the JDB in interest in the debt, not you.

There was no consideration between the OP and the JDB.

Not disagreeing with you, Nascar. Just giving my point of view.

The "internet defenses", that a lot of the well experienced people and lawyers here roll their eyes at, are often still used by professional and experienced lawyers who represent people in cases like this, so they must be worth something.

I see them a lot on my county's online court records. Among the droves of default judgements, the .5% of people who bothered to get a lawyer, most have used those defenses and a settlement is almost always reached before it goes to trial.

When there is a countersuit, the JDB's won't hesitate to use those trite defenses, either.

Make it expensive to sue you, but also be willing to settle for a reasonable amount. That has worked for me.

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The funny thing on my CR from Equifax they deleted the account from Midland aka MRC that they are suing me on after I disputed it. If they are suing me under MRC why did they report as Midland? Oh well, I guess I just have to wait and see what happens. I also had sent a DV to Providian but no response from them. Should I even bother sending the 2nd DV since I am being sued and all.

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Updte: Scumbag lawyer for MRC received my Request for Production of Documents, no word from him yet, I also did not hear from him on my Answers to his Complaint. No court date yet either....

Quick Question: Eqx deleted both the line from Midland (MRC) and the original credit card company form my CR, does that mean that they could not verify the account? I guess I am just waiting to see if they answer my Request for Docs and if I get an actual court date.

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  • 2 weeks later...

OK guys I really need your help, I just received from Scumbag CA Lawyer his Answers to my Counterclaim (look at the beginning of post to see what I answered) also received, 1st set of Interrogatories, Prod of Documents and Admissions from him, but yet he did not send me anything I asked in my Request for Production of Documents.

Here is what his Answer to my Counter Claim says:

1. Plaintiff can neither admit or deny allegations contained in the first paragraph of the Defendants Counterclaim, as they relate to the mental impressions or knowledge of the Defendant, of which Plaintiff has no knowledge. Threfore, the Plaintiff denies these allegations and calls upon the Defendnat to Prove the same. In my amswer I stated that I did not know that MRC owned the debt which is true since it says Midland on my Credit Report)Should I send them a copy of my CR??

2. Same as above. (i had stated that I thought midland owned if from CR)

3. Same as above. (I had said I did not know that Midland and MRC are the same Co.)

4. Same as above. (i Said I had mailed Midland a Letter in Feb. asking for validation..Should I send copy of letter)

5. Same as above. (it got returned because address on CR for Midland was wrong) Give copy of envelope date stamped and yellow stamped "Undeliverable"???

6. Same as above (I stated I had to search internet for correct address)

7. Plaintiff admits it recieved a letter from Defendant, but denies the contents of letter are as described in the 7th paragraph of the Defendants CC. Plaintiff states that the letter's Content speak for themselves (????Usual validation letter sent) The Plaintiff Denies the remaining allegation in paragraph 7.

8. amits received by Ed Gordon, deniesl the contents like above.

9 P has insufficient knowledge to admit or deny. etc etc demadns proof

(should I send copy of letter and RR)

10. same as above

11. object to this CC, as overly vague and confusing, in that it refers tto date of summons and complaint which do not correspond to the dates in this action and does not state the docket number of the action to which Defendant is referring. As such the P cannot respond to these allegations. Therefore, the P denies these allegations and calles upon the D to prove the same... Are they kidding me. :confused::shock: All I said in the CC was that a Compl and Summons was filed and issued on March 21, 2007 with an attached complaint dated March 20, 2007....What the heck are they blabering about??

12. Denies. (that up until the date of the filing of Summ. and Complaint they had not sent validation of debt by MRC, Midland or atty)

13. Admits

14. denies. (that they violated the FDCPA)

Here are the Defenses

1. D failed to state claim upon which relief can be granted.

2. D's claims are barred in whole or part by applicable statues of limitation (????)

3. The D has been damaged by her own actions and not by the actions of P.

4. the D has failed to join party necessary in this action under Rule 19. (?????)

5. the P has acted in good faith at all relevant times and if it has violated any of the statues as alleged in the D CC such violations were the result of bona fide error.(???)

6. The D has failed to mitigate her damages and as a result is not entitled to damages sought in CC.

-----------Then There are the Req for Admission. I need help answering these.

1. You applied for Credit Card from OC.

2. You received Credit Card for which you had applied.

3. you used Credit card to make charges.

4. you received monthly statements

5. you received credit card agreement

6. under terms of credit card agreement you were required each month to make payments

7. you did not make some of the monthly payments

8. you defaulted on the terms

9. you did not authorize any person other than yourself to use said credit card.

10. no person other than yourself used credit card.

11.you made or authorized all of the charges made on the credit card

12. you have never disputed any charges make on the credit card/

13. prior to litigation you did not dispute any charges made (yes I send debt validation letterr))

14. the credit card was purchased by and sold to the Plaintiff

15. P is presently the rightful owner and holder of credit card account

16. the amount due is $XXXXXX

17.P has mad demand for the amoun due on you Credit card account (actually they gave me 2 different amounts one on the summons and complaint and one on a letter after they served the complaint for more $$)

18. you have not paid the amount demanded

19 P counsel sent you letter dated 8/26/06 copy attached as exhibit a (but I dont have it, the first one I have is dated 10/2006)

20 you recieved letter above on xxxxxx

21. same as 19 but refrased (haha)

22 you resided at address during perion of 8/15/2006 to 3/1/2007 (I can Admit this)23.

23. you have not been damaged by the actions fot he P of which you complain in the Counter Claim.

24 you have suffered no pecuniary or financial loss as a result of the action of the P.

25. you suffered no physical har or illness or any physical sympons as a resul of the action of P.

26. you suffered no emotional distress or harm as a result of these actions

27 the letter you clain to hacve sent on or about Feb 26, 2007 to P and to P's attorney, where the first letter you sent requestion validation on your credit car account. (Admit??)

28. Prior to feb of 2007 you did not send any letter to P or 's atty regarding Credit Card Account. (Answer something like D admits and then state I was unaware that MRC and Midland were one and the same?? Midland is the one on my CR not MRC)

OK how do I answer these??? :shock::confused::cry:

Then their req for documents.

1. Copies of all payments made on Credit card --- I dont have but what am I going to do hand them their evidence against me???

2. copies of all reciepts from payments

3. copies of all correspondence between D and P... I have them they all went CMRRR

4. copieis of all agreements regarding credit card.

5. copies oall documents not otherwise requested that may relate to credit card

6. copies of all documents D intends to introduce as evidence at trial. --- I just have copies of my letters sent CMRRR---

7. copies of all docs D intends to use at trial --???

8. copies of all docs showing D paid or settle the amount due on Credit card

9. Copies of all doc relating to any disputes the D had involvinf credit card account or charges incurred on it.

10. copies of all docs requesting information from the P or any of its employees -- letters I sent CMRRR

11. Copies of letter requesting validation

12. cpies of all docs relating to any harrasment that you allege you suffered as a result of this action by P.

(2 letters in one month--received countless phone calls from midland though not MRC, received letter after summons was serrved trying to collect debt)

13. copies of docuemnt relating to harm that you have suffered.

14. copies of receipts, invoices, or other proof of paumet for any treatment, dignosis, consultation etc as a result of any harm suffered.

15. copies of recordings of conversations --- dont have any

16. copie sof all records of telephone calls and other communications -- dont have

17. copies of each of the letter referred to in your Counter Clain -- I have these

18. ANy copy of the credit report tyo which you reference in Paragraph 2 of your counter claim from which you allege that you learned that Midland credit management owned the debt at issue. --I have this-- both my Experian and EQ have midland listed as owner 2 different addreses for them --EQ deleted them after I disputed but EX still has them.

Any help would be appreciated....They also sent me interrogatorries but I will try to answer them and post ansers later..

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Notice thay they just deny everything, even if you can prove it. That's because of the "innocent until proven guilty" right we have in America. It' doesn't just apply to criminal law. That leaves the decision up to the judge.

You should file a motion to compel, because he wants you answers before he gives his.

Even though most rules of civil procedure say you must answer every question as best as you can, people simply deny, deny, deny everything. The reason is that, supposedly, there is no extra punishment for being caught in a lie in court, that just means the other party has proven their case.

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[quote name=

Even though most rules of civil procedure say you must answer every question as best as you can, people simply deny, deny, deny everything. The reason is that, supposedly, there is no extra punishment for being caught in a lie in court, that just means the other party has proven their case.

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You could attack their answers with a motion to preclude or strike, sighting the civil procedures and court rules that forbid evasive answers to admissions and interrogatories.

But then they would do the same thing to you unless you are very honest, which you shouldn't be.

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Here is what I might do, but I've never done this part before, either....

1. You applied for Credit Card from OC.

Denied. I was pre-approved.

-or-

Objection. Vague. I could have applied more than once. (What date?)

2. You received Credit Card for which you had applied.

Objection. Vague. I have received many credit cards I have applied for.

-or-

(If they specify an account number, which they usually do) I do not recall the account numbers of any cards I may have had in the past, or ma in posession of now.

3. you used Credit card to make charges.

Objection. Vague. What card?

4. you received monthly statements

Denied. I did not receive a statement every month. (this basically says you had a dispute with the OC)

-or-

Objection. Vague. From whom?

5. you received credit card agreement

Denied. I do not recall ever receiving one.

6. under terms of credit card agreement you were required each month to make payments

Denied. See above.

7. you did not make some of the monthly payments

Denied. I always pay all my bills on time.

8. you defaulted on the terms

Denied. What terms would those be?

9. you did not authorize any person other than yourself to use said credit card.

Objection. Non sequitur. Statement presumes affirmative answers to previous statements.

10. no person other than yourself used credit card.

Objection. See above.

11.you made or authorized all of the charges made on the credit card

Objection. See above.

12. you have never disputed any charges make on the credit card/

Objection. See above.

13. prior to litigation you did not dispute any charges made

Denied. I made many written disputes, therefore, there is no account stated. (Important that you specifically deny there being an account stated.)

14. the credit card was purchased by and sold to the Plaintiff.

Denied. Plaintiff has not established chain of title to the alleged debt. (This one is important, they are trying to get you to stipulate to the proper chain of title so they won't have to prove that. "Lack of Standing" should be one of your affirmative defenses for this one. Amend your answer if you have to.)

15. P is presently the rightful owner and holder of credit card account

Denied. Prove it. (<------ Yeah, I'd go there.)

16. the amount due is $XXXXXX

Denied. Prove it.

17.P has mad demand for the amoun due on you Credit card account

Denied. What you said -->(actually they gave me 2 different amounts one on the summons and complaint and one on a letter after they served the complaint for more $$)

18. you have not paid the amount demanded

Of course not, Plaintiff hasn't proven I owe them anything, and can't even figure out what the demanded amount is supposed to be. (don't put "admitted". Admit to nothing, and I wouldn't worry about being a smartass, either. They are going to complain about your answers anyway, unless you admit to them.)

19 P counsel sent you letter dated 8/26/06 copy attached as exhibit a

Denied. Fraud. because of --->(but I dont have it, the first one I have is dated 10/2006) (They are trying to take advantage of case law that says they only have to prove they have an organized system of mailing dunning letter, and don't actually have to prove they sent it, but make them spend time explaining all of that, too. Accusing them of fraud because of that may not work, though.)

20 you received letter above on xxxxxx

Objection. Vague. I received a lot of letters that day.

21. same as 19 but refrased (haha)

Objection, same basic question as above.

22 you resided at address during period of 8/15/2006 to 3/1/2007 (I can Admit this)23.

Objection. Relevance? (Your position is that they need to explain why they need to know that, and I still say you should admit nothing.)

23. you have not been damaged by the actions of the P of which you complain in the Counter Claim.

Denied. My rights as a consumer have been willfully violated.

24 you have suffered no pecuniary or financial loss as a result of the action of the P.

Objection. Irrelevant. The FDCPA is a strict liability statute. Not actual financial loss is necessary to justify a cause of action. (check-mate bitches!)

25. you suffered no physical harm or illness or any physical symptoms as a result of the action of P.

Denied. I have suffered from nausea and loss of sleep from the stress of this matter.

26. you suffered no emotional distress or harm as a result of these actions

Denied. I have suffered great emotional distress. That's what caused the nausea and loss of sleep.

27 the letter you claim to have sent on or about Feb 26, 2007 to P and to P's attorney, was the first letter you sent requesting validation on your credit card account.

Objection. Non sequitur. That letter was to dispute the debt.

28. Prior to feb of 2007 you did not send any letter to P or 's atty regarding Credit Card Account.

Objection. Non Sequiter. because -->( I was unaware that MRC and Midland were one and the same?? Midland is the one on my CR not MRC)

(Now they will have to come back and ask you "well did you send anything to MRC blah blah blah?)

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14. the credit card was purchased by and sold to the Plaintiff

15. P is presently the rightful owner and holder of credit card account

16. the amount due is $XXXXXX\

IMO, this is where Midland is very weak. All of the Encore companies are wholly-owned subsidiaries, which means they are separate business entities. The bill of sale from the OC might show an assignment from OC to MRC or one of the others, but not all of them. Lots of times Midland will not sue under the proper subsidiary name because they don't even know which business the transaction was done under. (Unifund will pull the same thing, suing under the name of Providian (and themselves) or someone else because they can't produce proper assignments.)

They also claim in their government filings to purchase only "receivables", not accounts. This is important because a purchaser of a "receivable" is only entitled to recover the amount of the receivable at the time of the purchase, nothing more. If the entire "account" was assigned, then and only then does the additional rights to interest etc, follow. You'll want to make sure you see the actual bill of sale. It will likely use the term "receivable."

You really need to make them produce.

(The receivable v. account comment will likely generate some questions. If so, please do it in another post so Jary's OP doesn't get junked up.)

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They also claim in their government filings to purchase only "receivables", not accounts. This is important because a purchaser of a "receivable" is only entitled to recover the amount of the receivable at the time of the purchase, nothing more. If the entire "account" was assigned, then and only then does the additional rights to interest etc, follow. You'll want to make sure you see the actual bill of sale. It will likely use the term "receivable."

(The receivable v. account comment will likely generate some questions. If so, please do it in another post so Jary's OP doesn't get junked up.)

Yeah. I thnk I will ask about that. JDB's that claim they are factring companies often have the word "Reciveables" in their company name.

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Guest Jary

OK - This is what I have so far for answers for the Request for Admissions:

DEFENDANT’S RESPONSE TO PLAINTIFF’S FIRST REQUEST FOR ADMISSIONS

Now comes the Defendant, Jary, and pursuant to Massachusetts Rules of Civil Procedure, Rule 36, in the above cause, responds as follows to the Plaintiff’s First set of Requests for Admission from the Defendant:

1. Denied. 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 allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

2. Denied. 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 allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3. Denied. 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 allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

4. Denied. 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 allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

5. Denied. I do not recall ever receiving one.

6. Denied. See Above.

7. Denied. Defendant demands strict proof thereof.

8. Denied. See answer to Admission Request No. 5.

9. Objection. Non sequitur. Statement presumes affirmative answers to previous statements.

10. Objection. See above.

11. Denied. See above.

12. Denied. See above.

13. Denied. I made written disputes, therefore, there is no account stated.

14. Denied. Plaintiff has not established chain of title to the alleged debt. Therefore, Defendant calls upon Plaintiff to provide strict proof of the same.

15. Denied. 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 allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

16. Denied. Plaintiff has given Defendant two different amounts on the Complaint and another on a collection letter sent after service of Summons and Complaint; please see Exhibit A and B attached here to.

17. Denied. See Above.

18. Denied. See Above.

19. Denied. Plaintiff’s first letter received was dated October 16, 2006.

20. Denied. See Above.

21. Objection, same basic question as above.

22. Objection. The Defendant objects to this Admission Request based on relevancy. The requested information would not lead to any discoverable facts or evidence.

23. Denied. My rights as a consumer have been willfully violated.

24. Objection. Irrelevant. The FDCPA is a strict liability statute. Not actual financial loss is necessary to justify a cause of action.

25. Denied. I have suffered from nausea and loss of sleep from the stress of this matter.

26. Denied. I have suffered great emotional distress. That's what caused the nausea and loss of sleep.

27. Objection. Non sequitur. That letter was to dispute the debt.

28. Objection. Non Sequitur. I was unaware that the Plaintiff and Midland Credit Management were one and the same. Midland Credit Management is the company listed as owning this debt in my Credit Report not the Plaintiff.

Any input would be appreciated. Now for the Production of Documents. I am not sure how to word my answers for stuff that I do have and stuff that they should have like statements, payments, etc., that they are asking me to produce any ideas??

Thanks

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Guest Jary

Any help on preparing my answer to their Request for POD?

Then their req for documents.

1. Copies of all payments made on Credit card --- I dont have but what am I going to do hand them their evidence against me???

2. copies of all reciepts from payments

3. copies of all correspondence between D and P... I have them they all went CMRRR4. copieis of all agreements regarding credit card.

5. copies oall documents not otherwise requested that may relate to credit card

6. copies of all documents D intends to introduce as evidence at trial. --- I just have copies of my letters sent CMRRR---7. copies of all docs D intends to use at trial --???

8. copies of all docs showing D paid or settle the amount due on Credit card

9. Copies of all doc relating to any disputes the D had involvinf credit card account or charges incurred on it.

10. copies of all docs requesting information from the P or any of its employees -- letters I sent CMRRR11. Copies of letter requesting validation

12. cpies of all docs relating to any harrasment that you allege you suffered as a result of this action by P.

(2 letters in one month--received countless phone calls from midland though not MRC, received letter after summons was serrved trying to collect debt)13. copies of docuemnt relating to harm that you have suffered.

14. copies of receipts, invoices, or other proof of paumet for any treatment, dignosis, consultation etc as a result of any harm suffered.

15. copies of recordings of conversations --- dont have any16. copie sof all records of telephone calls and other communications -- dont have

17. copies of each of the letter referred to in your Counter Claim -- have these- validation letters1

8. Any copy of the credit report tyo which you reference in Paragraph 2 of your counter claim from which you allege that you learned that Midland credit management owned the debt at issue. --I have this-- both my Experian and EQ have midland listed as owner 2 different addreses for them --EQ deleted them after I disputed but EX still has them.

I also need help answering the interrogatories.

1. asks for name, address, ss#, occupation, current employer - Answered my name and address, and objected to the rest saying it was irrelevant.

2. please state whether you maintined a cc account from Bank

3. Please state whether you recieved cc from Bank acct. no. xxxxxxxx.

4. please state each and every address at which you have resided for a period of more that 2 weeks and each and every address at which you received mail since the date you applied for the Bank CC acct no. xxxxxxxxx- Answered- My current address is xxxxxxxxx. I object to the remainder of the interrogatory as being irrelevant and invasive of my privacy.

5.Please state whether you used the Bank CC acount No. xxxxxx.

6. If the above answer is affirmative.... blah blah

7. please state whether you received monthly statements

8.please state whether you received a copy of the card holder agreement from bank, and whether you have one in your possession.

9. please state whether you made monthly payments

10 if yes answer this. basically whether i have copies of all payment receipts, cancelled checks, amounts etc.

11 please state full name and address of each and every person including yourself who signed the application for bank cc.

12. please describe why you did not make monthly payments.

13. who are you calling as expert witness -- (My Name) has not determined whom her expert witnesses or witnesses will be, if any, at trial. (My Name) reserves the right to update this answer to this interrogatory and its subparts at a later time when that decision is made.

14. who are you calling as witness - same as above

15. if you believe a sum of $$ is due the Plaintiff, with respect to the account but the amount is different fomo the amount claimed by P in the Complaint please state the amount you believe is due and how you have calculated such amount. Are they kidding me.. how do I answer this??

16. Did you ever authorize a person to utilise the Bank CC,m please give full names and addresses,

17. please state to your knowledge whether any person other than yourself ever used the Bank cc without your permission

18. if the answer to above is yes, then they want dates, names, amounts, addreses, nature of goods or services charde, etc.

19. If you or anyone on your behalf disputed any amount or item charged please identify the date, amount, merchant, if disputed in writing, the results of dispute

20. Please state in detail and with particularity each and every reason why you feel you do not owe the P the amount of money alleged in their complaint--how do i answer this.

21. please fully describe all of the conduct of the P which you allege the P violated the FDCPA USC Section 1692e(8) with respect to the collection of the Bank cc, which you complain in you Counterclaim, stating the followiing for each.

a. the date of each and every letter you sent to the Plaintiff

b. the substance of what was requested - validation of debt

c. the aneme of each company, firm to whom such letter was addressed- here it gets sticky 2 letters were addressed to Midland because they appear on my credit report not MRC, who is suing me - one letter to Atty. no answer but did receive summons

d whether you have copies of such letters. YES CMRRR

e. where you got the form for each such letter -- Searched internet- how can I answer??

f what response if any did you receive. None from Midland, Summons/Complaint from Atty. then collection letter after Summons was served.

I can answer the rest up to no, 26. This is the kicker---26. Please state the full name address and telephone number of any person, business website, co., or any other party who assisted you (including but not limited to providing you with form letters, drafting letters, formulating language, or giving advice) in preperation of the letters you sent to the plaintiff and its counsel dated Feb. 26, 2007 and please state what assistance was provided. How can I answer this something like it is to broad scope or something not sure, say I searched internet and drafted myself as I have prior knowledge of court systems (i worked for a lawyer 3 years)

27. Same but in regards to my answer and counterclaimed filed. Not sure how to answer this...just say I researched on the net and in law libraries, civil procedure rules...Question Accourding to the Mass Civil Procedure Rule 33, I have to write the Interrogatory and follow it by the Answer when I answer it?? Not sure, if I am understanding it properly, see below:

33(3) Answers; Final Request for Answers. Each interrogatory shall be answered separately and fully in writing under the penalties of perjury, unless it is objected to, in which event the reasons for objection shall be stated in lieu of the answer; each answer or objection shall be preceded by the interrogatory to which it responds. The answers are to be signed by the person making them, the objections by the person or attorney making them. The party upon whom the interrogatories have been served shall serve answers and objections, if any, within 45 days after the service of the interrogatories. The court may, on motion with or without notice, specify a shorter or longer time. Unless otherwise specified, further answers to interrogatories shall be served within 30 days of the entry of the order to answer further. The interrogating party may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. Alternatively, for failure to serve timely answers or objections to interrogatories (or further answers, as the case may be), the interrogating party may serve a final request for answers, specifying the failure. The final request for answers shall state that the interrogating party may apply for final judgment for relief or dismissal pursuant to paragraph 4 in the event that answers or objections are not timely received. The party upon whom the interrogatories have been served shall serve the answers or objections either within 30 days from the date of service of the final request or prior to the filing of an application for a final judgment for relief or dismissal, whichever is later.

Any help will be appreciated.

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Guest Jary

Anyone??? I am drafting my response to production of documents and answers to interrogatories, will post drafts when finished to get input.

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Did you read the big thread at CB? It looks like you did and have proper answers for everything.

It also looks like they are trying to intimidate you by implying that they will expose your "criminal activites" on a credit repair site. :roll:

I would definitely object to those questions as too broad and harassing and that the law is available to all American citizens.

#20 is also harassing and uses presumptuous language. You don't feel you don't owe it, it is up to them to prove it. Admit nothing, deny everything, and demand proof.

For #21, you should have already submitted your exhibits and don't need to again.

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Guest Jary

UPDATE: Finally sent them my response to their Request for POD. It read as follows:

Now comes the Defendant, ME, Pro Se and pursuant to Massachusetts Rules of Civil Procedure, Rule 34, in the above cause, responds as to the Plaintiff’s Request for Production of Documents from Defendant. Defendant responds to the requests in the order in which they appear in Plaintiff's Request for the Production of Documents.

1. Objection: Defendant objects as Plaintiff's request #1 as it is overly broad, oppressive, unduly burdensome, and unnecessary to the extent it seeks records or documents not within the current knowledge, possession, custody or control of the Defendant. Additionally, such information could be more readily obtained from Plaintiff's own files, from documents or information already in Plaintiff's possession, as Plaintiff is required in the normal course of business to retain such records or documents.

2. Objection: Defendant objects as Plaintiff's request #2 as it is overly broad, oppressive, unduly burdensome, and unnecessary to the extent it seeks records or documents not within the current knowledge, possession, custody or control of the Defendant. Additionally, such information could be more readily obtained from Plaintiff's own files, from documents or information already in Plaintiff's possession, as Plaintiff is required in the normal course of business to retain such records or documents.

3. Defendant will produce the requested documents, copies of which accompany this response.

4. Objection: Defendant objects as Plaintiff's request #4 as it is overly broad, oppressive, unduly burdensome, and unnecessary to the extent it seeks records or documents not within the current knowledge, possession, custody or control of the Defendant. Additionally, such information could be more readily obtained from Plaintiff's own files, from documents or information already in Plaintiff's possession, as Plaintiff is required in the normal course of business to retain such records or documents.

5. Defendant will not produce the requested documents for inspection for the reason that the request is overly broad as requesting “all documents that in any way relate to, involve or regard the Defendant’s Providian National Bank credit card.”

6. Objection: Defendant objects to Plaintiff's request for production #6 as being premature in that it requests the Defendant, prior to the completion of discovery, to state all the facts supporting its present contentions and to speculate as to its future contentions. Subject to, and without waiving Defendant's Objections, as all documents become known to Defendant in their entirety, Defendant shall produce all such documents in Plaintiff's request within 5 business days after the completion of all other Discovery requests or such other time mutually agreed upon by both Plaintiff and Defendant.

7. Objection: Defendant objects to Plaintiff's request for production #7 as being premature in that it requests the Defendant, prior to the completion of discovery, to state all the facts supporting its present contentions and to speculate as to its future contentions. Subject to, and without waiving Defendant's Objections, as all documents become known to Defendant in their entirety, Defendant shall produce all such documents in Plaintiff's request within 5 business days after the completion of all other Discovery requests or such other time mutually agreed upon by both Plaintiff and Defendant.

8. Objection: Defendant objects to Plaintiff's request #8 as it is overly broad, oppressive, unduly burdensome, and unnecessary to the extent it seeks records or documents not within the current knowledge, possession, custody or control of the Defendant. Additionally, such information could be more readily obtained from Plaintiff's own files, from documents or information already in Plaintiff's possession, as Plaintiff is required in the normal course of business to retain such records or documents.

9. Defendant objects to Plaintiff's request #9 as it is overly broad, oppressive, unduly burdensome, and unnecessary to the extent it seeks records or documents not within the current knowledge, possession, custody or control of the Defendant.

10. Defendant will produce the requested documents, copies of which accompany this response

11. Defendant will produce the requested documents, copies of which accompany this response.

12. Defendant will not produce the requested documents for inspection because the request is vague, uncertain and confusing. Without waiving this objection, Defendant is unaware of the existence of such documents. Defendant has never alleged “any harassment” as a result of the actions of the Plaintiff. Defendant has stated that Plaintiff was in violation of the FDCPA.

13. Defendant will not produce the requested documents for inspection because the request is vague, uncertain and confusing. Without waiving this objection, Defendant is unaware of the existence of such documents. Defendant has suffered from nausea and loss of sleep from the stress of this matter.

14. Defendant is unaware of any such documents. The FDCPA is a strict liability statute. No actual financial loss is necessary to justify a cause of action.

15. Defendant is unaware of any such documents. Defendant will seasonably supplement this response pursuant to Mass.R.Civ.P. 26(e).

16. Defendant is unaware of any such documents. Defendant will seasonably supplement this response pursuant to Mass.R.Civ.P. 26(e).

17. Defendant will produce the requested documents, copies of which accompany this response.

18. Defendant will produce the requested documents, copies of which accompany this response.

19. Defendant is unaware of any such documents.

20. Objection. Defendant objects to request #20 as it seeks information which could be more readily obtained from Plaintiff's own files, from documents or information already in Plaintiff's possession, as Plaintiff is required in the normal course of business to retain such records or documents.

Respectfully submitted,

Wish me luck, I also sent them a request for admission and interrogatories. I had sent them a Request for POD that is due back to me on Friday, have received nothing yet. I will keep you guys posted as to what happens with this Lawsuit.

If they donot respond to my Request for POD, I have to do a Motion to Compel right?:confused:

This forum is awsomexdancex , I could not have done all this on my own, thanks to everyone who has helped me, so far I have deleted about 11 negative TL from my CR, I have gone 9 + points on my EQ Fico and 20 on my EX. Which currently they sit at 601 and 621. Slowly but surely I will get them up.:wink:

Thanks once again for all the great help.

J@ry

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