Consolidated Pre-Trial order vs oral pre-trial hearing

[GeorgiaPeach]

Hello...I've been searching for my answer here but have yet to find it so I guess I'll have to ask for help. I've been using this site to help me...back in July I was served a summons with a complaint on a contract. I filed an answer with the court using info from this site.

COMES NOW, the Defendant in the above stated action and shows the court the following:

1. Defendant denies every allegation of the complaint

AS AND FOR DEFENSES:

2. The court lacks personal jurisdiction over the defendant

3. The court lacks subject matter jurisdiction over the action

4. The plaintiff lacks the legal capacity to bring this action

5. The action is barred by the applicable statute of frauds

6. The action is bared by the applicable statue of limitations

7. The Plaintiff fails to state a cause of action against the defendant.

Wherefore, defendant asks for a judgment in favor of the defendant dismissing the complaint, together with costs, and such other further and different relief as the court finds proper here.

Defendants reserves the right to amend answers should that be necessary.

Then in August I received a Request for Admissions of Fact and Discovery to Defendant--which included Plaintiff's Request for Admissions of Fact to Defendant,Plaintiff's First Interrogatories to Defendant, Plaintiff's First Request to Produce Documents to Defendant. So again I looked to this forum for some help and I replied with

ADMISSIONS OF FACT TO PLAINTIFF

1. Defendant is without knowledge sufficient to form an opinion as to the validity of the allegations therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof..

2. 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. 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. 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. 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.

6. 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.

7. Denied. 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.

8. Denied. 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. (Indebtedness in the amount of $2039.91 as of August 13, 2007.)

9. Denied. 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.

10. Denied. 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.

11. Denied. 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.

12. Denied. 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. (Indebtedness in the amount of $2039.91 as of August 13, 2007.)

DEFENDANT'S RESPONSE TO PLAINTIFF’S FIRST INTERROGATORIES

1. My Name

My address

2. The Defendant is not a resident of the county and not subject to the jurisdiction of this court.

3. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements or billing of said debts.

4. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

5. Defendant alleges that this action is time-barred under Georgia Code O.C.G.A. § 9-3-25. A period of over 5 years has passed since the time this debt became delinquent, which is when the Statute of Limitations begins to run, from the day the debt - or payment on an open-ended account - was due. Also, at which time the debt was less than $1,480.00.

Georgia Code O.C.G.A. § 9-3-25. Open accounts; breach of certain contracts; implied promise; exception

All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11.

Due to the nature of this credit card the following also applies:

TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602

§ 1602. Definitions and rules of construction(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

DEFENDANT'S RESPONSE TO PLAINTIFF'S REQUEST FOR THE PRODUCTION OF DOCUMENTS

1. 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.

WHEREFORE, Defendant awaits Plaintiff's timely response with information showing strict proof of aforementioned claims. If such information is not produced in a timely fashion, Defendant prays the court dismiss this claim with prejudice.

So, I didn't hear anything until the end of September at which time I received a letter from the attorney stating he did not find my responses "appropriate or sufficient". He said I "denied every request for admission, but your basis for denial is inappropriate under the law. The fact that Plaintiff may not have provided evidence of the debt is not a legal basis to deny fact." And then he gave me the card name, account number, who it was financed with and that it was on or about October 25, 2001, and said " I expect to receive your amended and supplemental responses as required by law within 15 days." Well I chose not to do anything.

Finally, last week I received a packet in the mail from the Superior Court for the County of Chattooga State of Georgia. It is titled "Pre-Trial Calendar" But on the first page it is requesting that I either prepare and submit a proposed, consolidated Pre-Trial order by January 4th or that I call the Judges office to request an oral pre-trial hearing which would be held on January 7th. So I'm not sure what to do now. Any help would be greatly appreciated.

Thanks in advance.

[GeorgiaPeach]

Bump

[montanatim]

Wow. O.K. You denied everything in the admissions, then later stated that the debt started out as "less than $1480.00". Kind of contradicted yourself. Proved you do have some knowledge.

It's O.K. to admit things that won't hurt you. Flat denial of everything across the board is not a good idea, unless the debt was never yours to begin with.

Your best weapons are SOL if it applies and their chain of custody. If they in fact served you in the wrong venue, you or they can correct this. It won't stop it. If you lived in the county they are suing in when the debt was initiated, they can sue you there OR where you are now.

Your refusal to answer anything will probably be the subject, or at least part of it, at the hearing. If this trial progresses, it will also probably include scheduling

If this debt was actually yours and you will fight it with SOL and chain of custody, it would probably be O.K. to say you had an account with (O.C.) at one time, but never did business with (scumbag suing you). Where did they come from? What right do they have to sue me? Why are they claiming $xxx where's the contract? How did this amount they're suing for get calculated? This has to be ancient(past SOL) and barred by the doctrine of estoppel by silence.

The oral pre-trial hearing will probably be easier for you. They want to boil down what actually has to be litigated, due to your flat denial of everything.

If you aren't comfortable with any of this, motion for a continuance to seek counsel, and do so. I'll be surprised if it is not granted.

[GeorgiaPeach]

I wasn't sure what to admit. The ones I was denying I put denied, but the first few I wasn't admitting or denying I was trying to make them prove it. I don't have a contract or anything from this credit card. I was trying to make them do their own work because it seemed like they were trying to get me to send them all of my documents which I figured would help them.

But I see your point about contradicting myself. I wasn't trying to deny the fact that I had an account with Best Buy/Household Financial I was trying to go with SOL and out of jurisdiction. I don't reside in the county anymore and it's not the county or state the account was originated.

I did receive something from the attorney today [(Bridgers,Peters,&Kleber) suing me for Phoenix Recovery Group.(I'm assuming the original debt was sold to them)]. They typed up and sent a consolidated pre-trial order to me regarding this case. They asked me to make any additions and/or changes and return it back to them otherwise they are assuming I have no objection to this order. I shouldn't just go with their stuff should I? I should call and ask for the oral pre-trial based on the previous post correct?

I hate this....Thanks for your advice.

[KentWA]

If it is wrong venue ask for Oral arguements and submit a motion to dismiss. You might also want to go down to your local court house and file a suit againest the attorney and CA. Tell them if they agree to dismissal with prejudice you will dismiss your suit.

[montanatim]

What does it say? Is it just scheduling?

[GeorgiaPeach]

It is titled Pre-Trial Order. Basic info such as...name, address, and phone number of the attorneys conducting trial, estimated time for trial, Plaintiff's brief and succinct outline of case and contentions, a place for me to put the Defendant's brief and succinct outline of case and contentions, issues for determination by the jury, case is based on a contract(says contract is attached as an Exhibit but they didn't send me one)....it goes on and on for like 21 points.

I have to decide what to do because my time is running out. My choices are to either contact the attorney and add my side of the info to their Pre-trial Order or request an oral pre-trial hearing. (I'd like to stick my head in the sand...tap my heels together and chant there's no place like home and have this whole thing over with...like it never happened)

[Tazjeepcj7]

Bridgers, Peters & Kleber represent several collection agencies in Georgia, including the one that took me to court, Wellington Acquisitions. In my case these guys did not seem to want to participate in the discovery process. Did your purchase from Best Buy involve a computer? You may want to look and see if Georgia code section 11-2-725 applies to your situation.

[GeorgiaPeach]

No computer...I think it was for a tv and surround sound. It's been so long I don't remember. I wasn't even getting it for myself...my ex. And as far as I know he still has the equipment because I know I don't.

I'll have to look at the GA code you mentioned. Thanks.

[Tazjeepcj7]

If you defaulted less than six years before the plaintiff filed he will probably argue that the 6 year written contract statute of limitations applies. You need to be able to counter that arguement. There are threads discussing store branded cards as opposed to general credit cards like mastercard and visa, and successful arguements in Florida on this subject. Read the sticky above on 4 year SOL in Florida. I don't know if this issue has been sucessfully argued in Georgia, but the basis of the arguement would be the same.

[GeorgiaPeach]

I figured they were trying to say the SOL was 6 years and not the 4 that it is. I put that in my DEFENDANT'S RESPONSE TO PLAINTIFF’S FIRST INTERROGATORIES. Maybe that wasn't the right place to argue that point?? And maybe I need more info to back myself up. I will read the thread you mentioned.

I'm going to call the judge tomorrow and request an oral pre-trial hearing. Do you have any idea what I should expect?

Thanks again for the great input!!

[montanatim]

As I suspected, it is about scheduling and boiling down just what parts need to be litigated.

They may dress you down for the flat denial of everything. But shouldn't hopefully be too bad.

Take your proof of SOL and any good arguments you've memorized and attack their standing to even bring the suit if the court lets it get that far.

Attack the foundation of their so called contract when they try to submit it. Your rules of civil procedure and evidence can tell you about submission of facsimile documents or copy's. If it's some generic contract that you never signed and they pull it out any time they sue anyone, I'd argue.

If they have no affidavit attached to the so called contract they have no foundation.

If there is an affidavit, who signed it? How long have they worked for OC? What are their dates of employment? ETC. If they want to submit third party business documents, they better have an affidavit signed by someone with intimate knowledge of your account. Then you attack the signer. This goes for any paper work allegedly from the OC.

If you can make their contract inadmissible it would be nice.