Help with answering discovery

[buckeyechick1219]

I've answered most of my discovery, denying anything having to do with the credit card in question as "Denied, I do not recall applying for a card with Citibank."

The sticking point for me is in the interrogatories. They asked me to back up my affirmative defenses for SOL, usury, statute of frauds, and failure to state a claim.

I answered the SOL question by stating that the contract indicates this account is governed by South Dakota laws and therefore has a six year SOL.

Does Ohio recognize a choice of law provision? I haven't really seen anything about it.

For usury, Ohio usury puts a 21% cap, but after researching, I'm sure they're going to argue that South Dakota allows any interest rate so long as it is in the contract. From what I understand, South Dakota allows their usury laws to supercede the usury laws of the debtors home state.

Do I just state that I withdraw this defense, or should I put Ohio's 21% interest cap? And am I understanding the usury laws correctly?

For Statute of Frauds, both Ohio and South Dakota specifically exclude credit cards under the statute of frauds. Again, do I need to ammend my complaint to remove this defense?

And for Failure to State a claim...does this mean that they did not state enough information to state a claim, or can I argue that the information they included in their complaint was inaccurate? Do inaccuracies in their complaint fall under a different defense?

Thanks in advance for any advice you can offer. I have pretrial on Thursday and my discovery is due by Saturday. I'm starting to get nervous at the thought of defending myself when I'm not sure exactly what pretrial is going to bring.

[nascar]

Before you answer anything, be sure you look at your Rules of Civil Procedure as they relate to responding to discovery requests. Read through it carefully to see if you have grounds for objection to any of the questions.

[buckeyechick1219]

They attached a general objection to their answers, indicating that the information requested is protected by attorney client privilege, that they seek information from individuals and other sources whose knowledge is not presently known by Unifund and that they attempt to compel Unifund to answer on the part of a third person, that they are not reasonable calculated to lead to the discovery of admissible evidence, etc etc etc. This looks like it's something they probably have as a template and throw onto every case.

They went on to object to all of my interrogatories as "the interrogatory is premature, as discovery is ongoing; overly broad and unduly burdensome." Mind you, I asked them for the exact same information they asked of me.

Now, in request for admissions, I asked them to admit they were not in possession of a properly executed written assignment of debt with my account number, including the effective date of the assignment, consideration paid, etc...the items that Civil Procedure indicate are necessary for a proper assignment of debt. They denied and sent me a generic Bill of Sale, not referencing an account number, and did not list the amount paid. It says "For value received and subject to the terms and conditions of the Purchase and Sale Agreement dated..." blah blah blah.

They did however, admit that they do not have a signed application, do not have copies of any instruments used to pay on the account, and don't have any evidence that I actually used the credit card.

The request for production of documents for the application, checks used to make payments, and any document bearing my signature...they answered "Requests documentation not currently within the possession... of the Plaintiff; requests documentation within the possession...of a third party over whom the Plaintiff has no control; requests documents that...should be the knowledge of the Defendent." They went on to say that they have requested this information from a third party but that it may have been destroyed.

Basically, this means they have no case, correct?

They also objected to all of my other requests for documents (the same documents they requested from me) as unduly burdensome. I plan to object to the same after seeing their "response."

The one that gets me...I asked them to produce any and all documents pertaining to the debt that is the subject of this lawsuit. They object as it is overly broad and unduly burdensome. If they're filing a lawsuit, shouldn't they have this information on hand?

Also, what bearing do the general objections have on their responses? They start every response with "Subject to and without waving these or the General Objections..."

[buckeyechick1219]

And for Failure to State a claim...does this mean that they did not state enough information to state a claim, or can I argue that the information they included in their complaint was inaccurate? Do inaccuracies in their complaint fall under a different defense?

I think (and somebody please correct me if I'm on the wrong track) that their failure to state a claim lies in the fact that they did not provide the date of the first delinquency. They provided the charge off date (which according to information reported by the OC is wrong anyway), but did not provide the DOFD which is when the SOL would have begun ticking.

[nascar]

failure to state a claim

That essentially means that the plaintiff has failed to allege anything, which if true, entitles him to any recovery.

[buckeyechick1219]

I guess I don't understand... If a Plaintiff is sending a Complaint, wouldn't it always say something that, if true, would entitle him to recovery? If he said, "Joe Debtor owes me $6000" and it's true, then it would entitle him to recovery. But pretty much every post on here encourages those answering their summons to list "Failure to state a claim."

[LUEser]

Right, but people can claim anything they want. They also have to be able to prove that they're entitled to such relief, as through statutes and preponderance of evidence.

"Failure to state a claim..." is basically a fancy way of saying, "Prove it."