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What would be my next step?


JeanW
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Ack!!!

Thank you for pointing that out. I knew it didn't look sound right to me when I was typing it. It was on a legal website, and they apparently used the wrong word for those types of damages. I also wasn't even sure if I could use those types of damages in this type of case. I was just going for everything I could in the unlikely hope that they'd think twice before going after people like this. Thank you! :)

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My God!

Ask for " an order dismissing the complaint and an order entering judgment on the counterclaims"

Ask for "Actual damages in an amount that does not exceed the jurisdiction of this Court" to cover your printing, postage and mental anguish claims

Ask for " Statutory damages as allowed by 15 USC 1692k and as further allowed under applicable State law;

Ask for " punitive damages in the amount of X, as allowed by law"

Ask for " such other, further and different relief as the Court finds proper."

Attach copies of all the letters referred to in your counterclaims.

Make sure you sign the answer and get it notarized.

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I tried to find come claims or counterclaims where it would show these types of damages and couldn't find any... so I kinda had to make it up, as I had to get it to court this morning. I also didn't get it notarized, although the plaintiff's papers, as far as I can tell, are not notarized either... and they're lawyers.

Are my mistakes serious enough that I need to redo it and hand it in tomorrow (10/4) in court? Have I totally screwed myself over? How would I redo this... I'm just very confused about the damages thing, and not sure how to word damages.

Was the request for documentation and interrogatory ok?

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Had my court briefing today, and no idea what to expect. Before it started, the opposing lawyer came over to talk to me in a friendly sorta way, which I was kind of expecting. After a bit of talk with me just watching him, he casually asked what I was thinking in terms of paying off the debt.

From where I'm sitting, this involves a case of fraud in that the Plaintiff is trying to collect a debt on which he has no legal basis, no contract with me or the original creditor. I figured if I discussed paying the debt in any way with the lawyer, that was the same as admitting I owe to his company, and would constitute an oral agreement of some kind. I had the good sense to reply, "I believe that's what we're here to determine." I said it pleasantly enough, but it got the point across that I wasn't going to fall for it, and he walked away.

A few minutes later he tried another friendly approach, just to ask if this was my current address... which of course he already knew since the papers had all been delivered there. He was testing the waters.

Since I had turned in a motion for discovery and interrogatory, and a second amended counter-claim, a date was set for Dec 7 for another briefing, with a court date of Jan 28.

I have no doubt that if I hadn't shown up, the case would have been dismissed with a summary judgment against me, and the fact that I did all those papers gave me extra time for study and drawing up more papers. The plaintiff did not show, and the lawyer said he was also going to do a motion for discovery.

I suspect what that means is he's going to try to find out my entire financial background so he knows what he can try to suck out of me. I believe I don't have to give that type of information as it is irrelevant to whether or not I owe them money. Any comments on this?

Also, would it be seriously weird of me to redo my counterclaims a third time to fix mistakes? I am planning on doing another motion of discovery in addition to first, in the form of interrogatory questions of admission.

Richard Cornforth has a .pdf file out called "Beating Up on Debt Collectors" and I was totally shocked to find that he had an entire section on this law firm (Rausch, Sturm, Israel & Hornik) that's working for the plaintiff. It's on page 28 of the document and is titled "Mandatory Judicial Notice." The entire section is about how these people are scam artists! 8-) If I can figure out how this thing is to be used, and when, I will include it in my paperwork!... It was wonderful! :)

The Judge was patient with me as a pro se, and explained a few things to me that I didn't understand.... so I guess I lucked out there... of course this was only a briefing, so he had no reason not to be helpful. Guess I'll find out later how honest he really is. :)

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Original post by: JeanW

I suspect what that means is he's going to try to find out my entire financial background so he knows what he can try to suck out of me. I believe I don't have to give that type of information as it is irrelevant to whether or not I owe them money. Any comments on this?

Irrelevant is correct. Besides the ca probably already has a cr, doesn't it?

Also, would it be seriously weird of me to redo my counterclaims a third time to fix mistakes? I am planning on doing another motion of discovery in addition to first, in the form of interrogatory questions of admission.

I'd just go with what you have got for now. You don't need to throw in another kitchen sink. Go over what you have already submitted. Make footnotes on the things you want to change. I'd focus a little less on "everything" and concentrate on assignment. When the Plaintiff strays, gently bring the argument back. You could say something like:

The Plaintiff has failed to establish that the Original Creditor has conveyed all rights and control to the Plaintiff. To argue any other point would assume that assigment has been established which would create an unfair prejudice against the Defendant.
Richard Cornforth has a .pdf file out called "Beating Up on Debt Collectors" and I was totally shocked to find that he had an entire section on this law firm (Rausch, Sturm, Israel & Hornik) that's working for the plaintiff. It's on page 28 of the document and is titled "Mandatory Judicial Notice." The entire section is about how these people are scam artists! If I can figure out how this thing is to be used, and when, I will include it in my paperwork!... It was wonderful!

I'd like to read this. Can you give me a link?

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I haven't seen anything against Cornforth from anywhere other than this forum so far. I've seen several posts here against him, but so far I haven't seen any reasons why.

At any rate, I'm not taking anything from anywhere as gospel. I've collected so many websites, so many opinions on so many related subjects. For the most part, I'm going with what appears to be law, and picking what I want from everything I've collected, that I believe to be applicable. There's so much I still don't understand.

I'm not, for instance, going after subject matter jurisdiction as Cornforth says, because I simply don't understand it. I'm not going to go after something I can't defend out of sheer ignorance.

I would love comments on what I've done so far though, as I really don't know which things are just flat out wrong, what's iffy, and what's solid. But I will continue to post on how this whole thing goes.

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  • 1 month later...

WAP was given over 60 days before the next court date to answer my request for documents, and have not done so. I was going to do a Motion for Summary Judgment, but have been told by someone who is fairly well versed in courtroom procedure that I should do a Motion to Compel first. So here it is: DEFENDANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INTERROGATORY. Next court date is in ten days. Comments would be appreciated. :)

STATE OF WISCONSIN CIRCUIT COURT MILWAUKEECOUNTY

Worldwide Asset Purchasing, LLC Successor-in-Interest

To Direct Merchant Bank, N.A., A Limited Liability Company

9911 Covington Cross DriveLas Vegas89144(Plaintiff)

Vs. Case No. xxxxxxxxxxxxx

My name and address

(Defendant)

DEFENDANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INTERROGATORY

My name, Defendant, pro se, requests that this Honorable Court compel Plaintiff, Worldwide Asset Purchasing, to answer DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORY (pursuant to Rules 33, 34, 37, and 69 of the Federal Rules of Civil Procedure and Wisconsin Rules of Civil Procedure 804.09) that were served on Plaintiff on October 4, 2007. In support, Defendant states as follows:

1. Defendant served DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORY on October 4, 2007 in the courtroom. An attempt was made to serve this document in person the previous day to the Plaintiff’s attorney at their office. Although they were willing to take the papers, they refused to sign for them as having been received.

See Exhibit A – DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORY.

2. Plaintiff has not responded in any way to the above referenced request, despite the fact that Plaintiff’s attorney stated in the courtroom that he would respond, and that he was, indeed, being given ample time to do so, in this case over 60 days.

3. Plaintiff has refused to answer previous requests for validation of this alleged debt, in spite of three separate letters from Defendant requesting proof of a contractual obligation between Plaintiff and Defendant. No attempt at debt validation has been made to date.

4. As of the present date, Defendant has not yet received executed Answers to DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORY, nor any documents which would validate the alleged debt. Plaintiff has had over three and a half years to produce these documents and has failed to do so.

GOOD FAITH ATTEMPTS TO RESOLVE DISPUTE

Plaintiff and Defendant have been unable to reach an agreement concerning this dispute, and as reasons, Defendant states the following:

1. Plaintiff has refused to answer DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORY delivered on October 4, 2007.

2. Plaintiff has refused to answer three previous requests for validation of this alleged debt. No attempt at debt validation or explanation in lieu of validation has been made by Plaintiff to date.

See Exhibits B, C and D – Collection letters and attached requests for debt validation:

Exhibit B: Neuheisel Law Firm, P.C. collection letter, dated June 18, 2004, and my response requesting debt validation on July 16, 2004 (attached).

Exhibit C: Focus Receivables Management collection letter, dated January 27, 2005, and my response requesting debt validation on March 2, 2005 (attached).

Exhibit D: Rausch, Sturm, Israel & Hornic collection letter, dated May 10, 2005, and my response requesting debt validation on June 3, 2005 (attached).

3. The second two letters requesting debt validation were in response to their continuing collection letters, which were, in fact, in violation of FDCPA rules which state collection efforts must be discontinued if debt validation is not produced.

CONCLUSION

Defendant believes, she has, in good faith, made attempts to resolve this dispute, and has been repeatedly ignored by Plaintiff, while Plaintiff continues collection efforts against FDCPA rules. Further, Defendant believes that Plaintiff is basing their claims on non-existent contracts, and demands that Plaintiff produce the alleged contracts.

See Affidavit signed November 30, 2007.

WHEREFORE, the Defendant moves for an Order compelling the Plaintiff to produce complete and executed Answers to DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORY and the required documents of proof and to submit them within the next 15 days.

Respectfully submitted,

__________________________**_____

My name, Defendant, Pro Se

Dated: November 30, 2007

Copy to:

Rausch, Sturm, Israel&Hornik, S.C.

Attorney for Plaintiff, Worldwide Asset Purchasing

2448 South 102nd Street, Suite 210

Milwaukee, WI53227

ORDER

Upon consideration of the DEFENDANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INTERROGATORY, it is this _________ day of __________________, 2007,

ORDERED, that the Plaintiff produce complete and executed Answers to DEFENDANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INTERROGATORY and related documents of proof within ________ days.

By order of Milwaukee County Circuit Court

_______________________________, this _____ day of December, 2007.

Judge

NOTARY

STATE OF WISCONSIN

COUNTY OF MILWAUKEE

Before me, the undersigned, a Notary Public in and for said County and State on this 30th day of November, 2007, personally appeared (me), to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that she executed the same as her free and voluntary act. Given under my hand and seal the day and year last above written.

__________________________________________ ______________________.

Notary Public My commission expires:

CERTIFICATE OF SERVICE

IT IS CERTIFIED that service of a true copy of the foregoing DEFENDANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INTERROGATORY was served this 30th day of November, 2007, upon Plaintiff’s attorney, Rausch, Sturm&Hornik, S.C. by:

1. hand delivery to the above referenced address of Plaintiff’s attorneys, or

2. the U.S. Postal Service, certified, return receipt requested.

Note: One of the above options will be crossed out by hand after delivery. I will first attempt hand delivery of the document, however, in the past, Plaintiff’s office has refused to sign that papers have been delivered. If such is the case again, I will send by U.S mail service.

________________________________

My name, Defendant, Pro Se

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AFFIDAVIT

State of Wisconsin

County of Milwaukee

BEFORE ME, the undersigned Notary, on this 30th day of November, 2007, personally appeared (my name), known to me to be a credible person and of lawful age, who being by me first duly sworn, on her oath, deposes and says:

I do not, nor have I ever had, any kind of agreement or contract with Worldwide Asset Purchasing (WAP). I believe WAP to be using fraud and deception to extort money on non-existent and non-transferable contracts, claiming to be “successors-in-interest” as purchasers of said contracts.

I believe that both WAP and their hired attorneys, who also admit to being “debt collectors” are well-aware of their fraud and deception, and of the risks involved with purchasing these non-transferable legal instruments. They are also well-aware of FDCPA rules, which they have consistently ignored.

Although I am going pro se, and am untrained in legal matters, I believe my submitted papers to be clear as to their intent.

__________________________________

My name and address

Subscribed and sworn to before me, this 30th day of November, 2007.

__________________________________

[signature of Notary]

__________________________________

[printed name of Notary]

My commission expires: ________________, 20____.

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I don't remember how or where I got that file, so I put it up where you can get it: http://www.kapowwie.com/pers/misc/

The file is labeled RC-BUDC.pdf

I'm still reading through this, but it seems like very good information. :)

Looks like really good info! Can't wait to look it over, thanks for sharing. I'm going through the same thing you are, writing answers to court documents pro se and bemoaning the fact that I can't find a decent lawyer in my area that knows a thing about the FDCPA.

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I had the same problem and filed a simple MTD. For me this was easy, quick and most of all, it worked.

The problem that I see with Motion to Compel is that a hearing will be set and both litigants must be present to argue. The Plaintiff may say that it needs more time and the Court may grant it.

And...the Plaintiff may decide to dismiss it's own claim "Without Prejudice" which will allow it to come back at a later time. There you are stuck in limbo not knowing if the Plaintiff will come back or not. Why not cut to the chase and file a MTD and ask for dismissal "Without Prejudice". Like I said, worked for me.

After this session, you might want to start another thread. I followed your case and understand most of the issues. Other posters who would have good answers might not want to wade through 4 pages so that they could understand what is going on.

I am glad that your hard work appears to be paying off. It is unlikely that the CA will ever come up with the proper information. It seems to be a tactic to wait until almost the last day before the CA's dismiss their own claim. IMO you should file your MTD right away and hopefully the Court will grant your motion before the CA can respond accordingly.

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I'm guessing MTD is Motion to Dismiss. I'm still confused as to the difference between a Motion to Dismiss and a Request for Summary Judgment. If I understand it correctly, the case cannot be dismissed if I've filed counterclaims, which I did. I'm not only trying to protect myself, I'm going after them for basically fraudulent claims.

As far as the time, they've already tried through 4 different lawyers to get me to comply, and each time I've requested debt validation... that's over a period of over 3 1/2 years. They finally decided to sue me, and the judge gave them 60 days to respond to my request for documentation and interrogatory... twice what the Wisc. rules say. They now have only two days to come up with that documentation. And of course, its not gonna happen... they don't have any legal documentation.

I sent off that Motion to Compel, and stupidly AGAIN forgot to sign the papers. I discovered I had more time than I thought I did, and redid everything, adding a Notice of Motion to Compel, Motion to Compel, and a Request for Admissions. I'm not quite through with all of these, but will get them up when they're done.

The interesting thing about this is that, despite the fact that I forgot to sign the papers, it apparently has them shaking in their boots a bit. I got two calls from their attorney on Monday. In the first call, the lawyer sounded very nervous, actually stuttering some, and tried to convince me it would be in my best interest if we just dismissed the suit. When that didn't work, he tried to get me to agree to postpone when he had to have the papers in.

In the second call, he tried to get me to agree to an amount that I would pay them. I'm sure the call was being taped... and if I had agreed to any amount, it would be like admitting that I owed them money... so I told him, "I don't think you can come up with any contract between us. I believe its non-existent, and until you can show me proof that I owe you, my answer is that I owe you nothing." At that point, he tried to scare me by saying that he would then be forced to request summary judgment. I told him "Yes, I think you should do that!"

As long as I file a Motion before the court, its my understanding a summary judgment is out of the question... the hearing date will be postponed, and he will have to answer to my Discovery papers. It would be sheer folly at this point, I think, for the judge to ignore my requests for Discovery. He would most surely be over-turned in an appeals court. I may have made some mistakes, but my intentions are quite clear, and judges are supposed to give some leeway to pro se litigants. In addition, I've filed quite a few papers, and the plaintiff has filed none after the original summons and complaint. I'm telling them exactly what I need for proof, and they are producing not a thing.

As far as how difficult this thread is getting to read, I think I'm going to set up a web page that will make it all easier to find and read, and I'll comment on how/why I did the things I did. It could also be zipped up and saved here, I think.

My court date is not in two days as I thought. I'm very confused on that issue. When I was in court, the judge said he would give both sides until December 7th to submit all of their motions and such. Then he said we should have that in at least ten days before that date. But in fact, going to the court website and looking up my case, it says the court date is January 28th... so now I have no idea whatsoever what that December 7 date was supposed to be. Talking to the attorney, he commented on some point that we needed to postpone because there were only a few days left... I assume that means December 7th, but then what was the ten days BEFORE that?

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To begin with, I did mean "With Prejudice".

Secondly, I forgot that the case in which I filed a MTD did not have Counterclaims. It was my first action with a CA in small claims which only required that I either admit or deny the claim. I know now to file Counterclaims but I didn't then. A defendant would want to file, instead, a Summary Judgment so that it could collect it's money from the Counterclaims.

Thirdly, according to my state's Rules a defendant can file a Summary Judgment anytime:

1.981(2) For defending party. A party against whom a claim, counterclaim, cross-petition or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in that party’s favor as to all or any part thereof.

You should do a word search for "Summary Judgment" in your state's Rules to see what it allows.

The problem with being pro se is that a Defendant doesn't really know what to file. Without money there isn't much help except from places like this forum although Caveat Emptor should always be kept in mind.

Even though you have already file a Motion to Compel I would still file a Summary Judgment. You want this over with, right? Motion to Compel won't do that...a Summary Judgment would.

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Lecasbas,

Thank you for following this with me... I realize its an awfully huge thing to try to keep up with. :)

I received packages from their attorneys on December 7th. There is an answer to my interrogatories and request for documents, Summary judgment, and a form letter to dismiss the case. The dismissal (Stipulation and Order for Dismissal) is to be a dismissal signed by both parties, and says only this: "The undersigned hereby stipulate and agree that the above entitled action be dismissed without prejudice and without costs to any party."

Its supposed to be signed by both of us, but I noticed they didn't sign it. As I was thinking about it, seems to me that if I signed and returned it, and they decided not to sign it, I might be giving up everything. They could just take the signed paper into the courtroom and say "see, she dismissed her actions against us!" Don't know if it works that way, but it would certainly be a sneaky trick if it does. Either way, I have no intention of dismissing it. I filed counterclaims, and I'm going through with fighting it.

EVERY answer to both my interrogatories and requests for documents were answered with a boilerplate comment like "request is vague, ambiguous, and contains numerous unidentified terms." The only papers attached were copies of old credit card statements with the original creditor, all stamped "VOID" and "Duplicate Statement." There wasn't a shred of proof in any way, shape or form. It was "almost" funny! :)

I now have I think ten days to answer all of these papers, which I'm working on. As far as their summary judgment, its null at this point, because I filed the motions. I won't dismiss my actions against them. So its just a matter of exposing their answers as ludicrous and illegal (as in not living up to the definition of validation of debt).

I haven't been able to find the page where it tells what court cases defined "validation of debt". If anyone knows where that is located, I would very much appreciate a url. :)

Jean :)

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As far as their summary judgment, its null at this point, because I filed the motions. I won't dismiss my actions against them.

No so fast; one has little to do with the other. What is the substance of the plaintiffs MSJ? Is it a partial? Does the Notice of Dismissal pertain only to your counterclaim?

They may be looking for Judgment on their claims while inviting you to dismiss yours. Be careful. If there is a pending MSJ, you'll want to argue against it or you'll most likely lose.

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Original post by: JeanW

There is an answer to my interrogatories and request for documents, Summary judgment, and a form letter to dismiss the case.

Looks llike they are trying to dazzle you with their "fancy footwork" so much so that you will be glad to sign the dismissal papers and be rid of all of the confusion. If they had the assignment that you asked for they wouldn't be doing this.

"The undersigned hereby stipulate and agree that the above entitled action be dismissed without prejudice and without costs to any party."

My understanding is that the Plaintiff can dismiss it's claim Without Prejudice at any time. They don't need your permission or signature.

What costs? I doubt if the county will work for free.

Original post by: nascar

They may be looking for Judgment on their claims while inviting you to dismiss yours. Be careful. If there is a pending MSJ, you'll want to argue against it or you'll most likely lose.

I agree that you should be careful of a pending MSJ. In my experience these are dangerous loose cannons. However, if the action is successfuly dismissed, With or Without prejudice, so goes the MSJ and any other motion before the Court in the action which is dismissed.

If you can post the body of the MSJ on the screen someone will help you answer, which is what I think you should do. Then I still think you should file your own MSJ stating that the Plaintiff has failed to come forth with Court-ordered documentation to support its claim.

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I agree that you should be careful of a pending MSJ. In my experience these are dangerous loose cannons. However, if the action is successfuly dismissed, With or Without prejudice, so goes the MSJ and any other motion before the Court in the action which is dismissed.

MSJ is very common. What, in your opinion makes them "loose cannons?"

My understanding is that the Plaintiff can dismiss it's claim Without Prejudice at any time. They don't need your permission or signature
.

Exactly why I think the dismissal might only apply to the OP's counterclaim. Also, many jurisdictions do not allow unilateral dismissal once responsive pleadings have been filed.

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Original post by: nascar

MSJ is very common. What, in your opinion makes them "loose cannons?"

Because of this:

1.981(2) For defending party. A party against whom a claim, counterclaim, cross-petition or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in that party’s favor as to all or any part thereof.

According to my state's Rules a MSJ can be filed anytime by either party without supporting affidavits and there will be a hearing about the matter.

From my personal experience and readings on this forum it is a common tactic used by CA's to fluster a pro-se debtor.

No different than a rogue police officer using unorthodox methods. Thus my term "loose cannon".

Exactly why I think the dismissal might only apply to the OP's counterclaim. Also, many jurisdictions do not allow unilateral dismissal once responsive pleadings have been filed.

I agree. The OP, IMO, should not sign the proffered document for dismissal.

I haven't checked my Rules to see if there are timely restrictions for a unilateral dismissal but I will tell you that a CA did dismiss it's claim against me after 8 months of proceedings. I did not object.

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