Your thoughts on my response to admissions

[Great Lakes]

Hi,

I posted a question on the board in the past, so any of you who did not read are not aware of who I am, I copy/pasted some relevant information to this thread.

I am from Ohio and received a summons from my local court house regarding an old charged off debt with Ge Money Bank/Best Buy (I will just call it GEM from now on). The GEM debt appears to have been sold to Arrow Financial and Arrow is now using a law firm from Columbus to pursue the debt in court. *Just a note: I called GEM to inquire about the debt and they basically told me to call Arrow, because they did not have the debt any more.

When I received the summons, all I got was a piece of paper saying the account number, amount owed and from what date it was owed. No signed contract, no payment history, or that the debt was assigned to Arrow. So, I denied the allegations and demanded strict proof. Several weeks later I received the discovery.

I finished the admissions part and before sending it in, I would like to know what you felt about my answers. If they could be improved please let me know. I answered them as appropriately as possible and would appreciate any feedback.

Request #1: Admit that defendant applied for a credit card and/or charge account (herinafter referred to as “account”) with GE MONEY BANK/Best Buy, account #00000000000.

ANSWER

Defendant denies Plaintiff’s request for admission #1

Request #2: Admit that you were issued a credit card/charge account by GE MONEY BANK / Best Buy, account #000000000.

ANSWER

Defendant denies Plaintiff’s request for admission #2

Request #3: Admit that you received monthly statements from GE MONEY BACK/Best Buy indicating all of the charges you made on said account.

ANSWER

Defendant denies Plaintiff’s request for admission #3

Request #4: Admit that you charged items on the Account with GE MONEY BANK/Best Buy, account #000000.

ANSWER

Defendant denies Plaintiff’s request for admission #4

Request #5: Admit that Defendant has never notified GE MONEY BANK/Best Buy or Plaintiff of any dispute concerning the debits or credits to this Account.

ANSWER

Defendant admit Plaintiff’s request for admission #5

Request #6: Admit the Defendant is not entitled to any credits, offsets, or deductions that have not already been granted by GE MONEY BANK/Best Buy and Plaintiff .

ANSWER

Defendant admit Plaintiff’s request for admission #6

Request #7: Admit that Plaintiff is the owner of Defendant’s Account with GE MONEY BANK/Best Buy.

ANSWER

Defendant denies Plaintiff’s request for admission #7

Request #8: Admit that you owe Plaintiff the sum of $1,713.68 plus interest at the rate of 8% from August 1, 2004 on Defendant’s GE MONEY BANK/Best Buy account which is the subject of this action.

ANSWER

Defendant denies Plaintiff’s request for admission #8

Request #9 Admit that there are no documents, writings, letters, records or papers of any sort which Defendant intends to utilize as evidence of or as the basis for any defense in this action.

ANSWER

Defendant denies Plaintiff’s request for admission #9

Request #10: Admit that there are no facts upon which Defendant relies as a basis for any defense in this action.

ANSWER

Defendant denies Plaintiff’s request for admission #10

Request #11: Admit that every statement or allegation contained in Plaintiff’s complaint is true and correct.

ANSWER

Defendant denies Plaintiff’s request for admission #11

Request #12: Admit that You have been contacted by Plaintiff and/or Plaintiff’s agents or employees regarding the payment of the account(s) at issue.

ANSWER

Defendant admit Plaintiff’s request for admission #12

Request #13: Admit that the balance herein sued for is due and owing by Defendant to Plaintiff and that you have made no payments to either Plaintiff or GE MONEY BANK/Best Buy to be applied against the balance on credit card/charge account #000000 since January 1, 2005.

ANSWER

Defendant denies Plaintiff’s request for admission #13

[nascar]

I answered them as appropriately as possible and would appreciate any feedback.

Not telling the truth isn't a very good idea. If someone advised you to deny everything like that, you might want to seek some different advice.

[Great Lakes]

Thank you Nascar for responding.

A few things that I did not mention, which may or may not be pertinent, are that the folks at arrow have my named misspelled continually. Say for example (and its not) my name is john doe. Arrow and their respective attorneys have my name misspelled as john oe on all documents (summons, request for admissions, etc). For example, request 1 and 2 I did not request a card with a misspelled name, it was requested with my legal full name. Secondly, the last consumer attorney I spoke with was not interested in Arrow's legal right to collect on the old junk debt, but was more interested in settling the debt for me and getting me to pay them 30% of what they saved me off the original balance. Plus, whatever they settled the debt for with Arrow.

My defense is simply that the debt is not my legal name and that Arrow has no legal claim to the debt due to the fact that it was charge off by GEM in 2000 according to my credit report that is 6 months old. The consumer attorney I spoke with, said that having my named misspelled did not matter, Arrow could just amend it to my legal name through the court system and still pursue the debt in court. Even if Arrow changed it to my legal name, it still does not show that Arrow has a legal claim to this debt. When you consider the fact that if Arrow had a complete payment history, it would show that the last payment made was more than 6 years ago. In Ohio the sol for an open ended contract/credit card, is 6 years. Lastly, in the summons, a signed contract was not shown, nor was there any documentation showing Arrow's purchasing of or responsibility for said debt.

I appreciate your feed back nascar. I do not mean to imply I am being dishonest in my response to the admissions, nor do I wish to sound ungrateful for your help. Given the conditions I have explained, I am looking for help with this matter since the consumer attorney I spoke with was really of no help at all. Also, just so you know, I did not deny everything, just most of it.

[LAMET]

www.budhibbs.com - for more information on Arrow Financial - JUNK DEBT BUYERS. GO THERE ASAP! CHECK YOUR CREDIT REPORT AS WELL.

Arrow is known for filing bogus court documents, illegally re-aging of debts, attempting to collect debts beyond statute of limitaTions and other violations of the Fair Debt Collection Practices Act.

They will not be able to validate (prove it is actually yours), because GEMB is not able to validate it either.

I have a similar issue with GEMB/JCP credit- they also claimed to not have the files anymore That is LIE! They will not work with you because they are probably responsible for the defaulted account themselves.

In my case fraudulent charges, unauthorized address change and no attempt to contact me before they sold it as Junk Debt, (legally uncollectable)

They also lost 650.000 customer records in Oct 07, did not publicly announce that and made no effort to inform account holders of the potential for fraudulent charges and identity theft. MY ISSUES ARE PROBABLY RELATED TO THIS DATA LOSS.

Do a search on GEMB OR GE Money complaints on the internet- they violate Fair Credit Billing Act and the Fair Credit Reporting Act regularly and never resolve the problems they themselves created in customer accounts.

Immediately file complaints with the Federal Trade Commission and Office of Thrift Supervision. Otherwise GEMB will not fix their errors and correct your credit rating

[retmar]

The responses are proper based on what is being asked. Remember, in a civil case, the decision is based on preponderance of the evidence, nothing else. The burden sits wholly on the Plaintiff. The answers are now basically forcing them to show proof of their claim, such as the signed contract, a payment history, or other proof. All the OP has to do is continue to deny all accusations until such time as claim is proven. Otherwise, show up in court and make it quite clear they cannot prove their claim, thus, the court must dismiss, with prejudice.

To include, if this debt became timebarred prior to service, the Plaintiff has no legal recourse to their claim anyway. All that has to be submitted is the defense of the claim being too old to be enforced, and, submit Kimber v Federal Financial. If the service was prior to the SOL, they are still within their rights to continue.

Lastly, and above all else, if the defense is going to be the SOL, do not let them claim that since they now own debt, the original SOL does not apply. The FDCPA is quite clear on this. Just look for yourself.

[debtorshusband]

I agree with most of what retmar says. And if you're sure the SOL has expired, that should be the main thrust of your defense.

I mainly wanted to add these comments (I've gone to greater length in previous posts, if you want to go to the trouble of searching for them)

When you are responding to a Request for Admissions, it is not the same as testifying in court to the same questions. YOU ARE NOT LYING TO THE COURT. This is Discovery, and it's about establishing what facts both sides are willing to have placed before the court without dispute. Debt collection attorneys have perverted the process by routinely trying to get defendants to "admit" to things that the plaintiff should have to prove. If they succeed in getting the defendant to "admit", they never have to provide the proof. I've quoted a judge's statement before, which I will paraphrase since I don't have it close at hand: Refusing to admit something doesn't mean you are denying the fact; it just means you are refusing to admit it.

Regards,

DH

[nascar]

"Truth" is referenced four times in Rule 36. I have a pretty good idea the legislators used it for a reason. The following is from the Ohio RCivP since the OP lives there;

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Civ. R. 26( set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. ...

If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. ...

A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer, or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder ...

A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Civ. R. 37©, deny the matter or set forth reasons why the party cannot admit or deny it. ...

If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees.

Regardless of what you see floating around on the internet, blanket denial of a request for admissions is not acceptable in any court, even California. Refer to 2033.210 et seq. Suggesting that it is OK, or somehow acceptable or proper to answer a Request for Admission by simply denying everything is bad advice and it is wrong. On top of that, it can cost you more money.

[retmar]

nascar, what you have posted is good info, but, you missed some things that so many miss as they do not understand what the words are saying. For example:

"If objection . . . The answer shall specifically deny the matter, OR set forth . . ."

"A denial shall fairly meet the substance of the rquested admission . . . OR deny only a part . . ."

"the party may, subject to the provisons of Civ. R. 37©, deny the matter OR . . ."

The important thing to remember in the collection of delinquent debt is that any rule, ordinance, statute, or law written, must be written so that the least sophisticated consumer can understand them. The last paragraph can be considered as misleading since the other parts clearly give the option of "either/or". AND, it would be easy to argue any claim that you lied by denying a whole request. Remember, the addition or omission of even one word in a sentence can change the whole theme of the sentence. A judge, if objective, and always strives for justice in their courtroom, will not allow the other side to prevail, solely on that claim. Always look for key words when reading any "law". For example, when you read any section of the U. S. Code that uses the word "includes", the only items that apply are those following the word "include".

Let's say the request for admission was in regards to a copy of a monthly statement. You denied the request, but, admitted the statement was a true copy of the creditor's monthly. What would stop the other side from submitting to the court your stating the statement looked real? They would claim that since you agreed the statement was true, it now proves the debt is yours. This is, in fact, not true. You only agreed it was a true copy based solely on the legitimate monthly statements you recieve, and the contents are like. Even if you state in your answer that it "appears" to be true, what stop's the other side from pointing their finger?

Let's look at a signed contract. You answered that the signature looked like yours, but, denied the bill entirely. The other side shows the court that you said the signature was true, when, in fact, all you were saying was the signature looked like yours, BUT, you were never given the opportunity to see the original copy to assure that the signature was not a copy, or a forgery.

I will agree that the above denials could have contained some more specific comments, but, at the same time, when dealing with only copies, no originals, or not notarized to be proven as true, how can anyone even consider admitting one item and not the other? It is very simply a set up, and why each and every consumer who receives these requests know exactly what they are doing in their answers.

Understand that no judge is going to call you a liar, and hold you liable, if you stand before them and state that the reason you denied the whole matter was that you were not given actual copies to where you could give a reasonable and honest answer by being able to properly examine a true copy. It won't happen. Yes, one would think that by stating this in the answer should tell the court your reason for denial, but, again, you have to realize who you are dealing with. Those who appear for the plaintiff have more experience than most consumers, thus, the scale is already leaning in their direction. And, yes, if the person is sent an original, or a notarized copy, and denies anyway, they deserve to be penalized.

The point I am trying to make here is, as nascar's info is good and true, is that anyone who receives these requests must not just sit down and say what you think is correct, or proper. Read each item carefully. If you have doubts to the definition of a word, take the time to look it up. Don't just rely on Webster's, or any dictionary, also go to Black's Law. Then combine all definitions to arrive at an overall idea of the whole meaning.

The OP's answers are acceptable as a whole. BUT, if a piece of paper is presented to prove, and the judge questions the denial, the OP must have ready their exact reason why, by stating as I've shown here, or a like response.

Lastly, always remember it is a play on words in court. It is also how you present your evidence. It is how you stand before the judge. Are you erect? Keeping eye contact? Does your presentation contain short and direct verbiage? Or, is it just rambling on with unnecessary nonsense? And, of course, does your evidence prove beyond the preponderance of the evidence that you should prevail?

[nascar]

nascar, what you have posted is good info, but, you missed some things that so many miss as they do not understand what the words are saying.

Your position is similar to lots of other folks who perceive some kind of strategic advantage in providing blanket denials to RFA's. And of course, you're free to answer them however you choose. Just know that such responses are technically "non-responsive" and as such, are subject to the type of treatment referenced in the example below. This defendant got socked with almost six grand in additional attorney fees for the kinds of responses I'm trying to warn people against making.

Plaintiff's motion to recover costs under Fed. R. Civ. P. 37©(2) because defendants failed to admit certain requests for admission was granted because defendants' answers plainly did not comply with the requirements of Fed. R. Civ. P. 36(a) (among other things, defendants did not make "reasonable inquiry" prior to serving their answers). …

The party to whom requests for admission are propounded acts at his own peril when answering or objecting. Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted or in a post-trial award of monetary sanctions without prior opportunity to correct the deficiency. Therefore, the only safe course of action for counsel is to adhere to the plain language of Rule 36(a). …

If the responding party is not sure whether to admit or deny, he must make "reasonable inquiry" into the subject matter of the request and state in his answer the steps taken to satisfy this obligation. see Kutner Buick, Inc. v. Crum & Foster Corp., No. 95-1268, 1995 U.S. Dist. LEXIS 12524, at *6 (E.D. Pa. Aug. 24, 1995). If the responding party finds the wording of a request for admission imprecise, he should set forth a qualified answer that fairly meets the substance of the request. Id.; Milgram Food Stores, Inc. v. United States, 558 F. Supp. 629, 636 (W.D. Mo. 1983). Requests for admission are not games of "Battleship" in which the propounding party must guess the precise language coordinates that the responding party deems answerable. …

For the reasons set forth above, plaintiff is awarded the sum of $ 5,807.50 against defendants Giant of Maryland, LLC and Michael Green as a sanction for failing to admit the truth of Request for Admission Nos. 5-34. Plaintiff is not awarded any attorney's fees for bringing the motion. House v. Giant of Md., LLC, 232 F.R.D. 257, 2005 U.S. Dist. LEXIS 27058 (D. Va., October 28, 2005, Decided ).

Dang, there's that word "truth" again.

[retmar]

Also notice I included that the OP could have supplied more info.

At the same time, it is relating to the wording. It is obvious to me in the referenced decision, that the responses were too vague as a whole, and, not being of a legal mind, as attorney's are, messed up. It also shows that the defendant did not properly prepare their defense prior to appearance. An average consumer, knowing the cost of an attorney is most often above their means, will only rely on and understand the words as they appear. Then, noting the options afforded, they respond as they feel is correct. BUT, when they get to court, they are screwed for responding as they found to be proper, based on their own knowledge, or understanding of the questions presented.

Therefore, if they respond as they understand, organize their defense to support their reasons for denial, the judge will have to accept this and deny the plaintiff's claim for lying. If not properly written, you have a problem. Why would FDCPA 809© be written if the court was not required to accept and recognize a consumer's defense, no matter time of dispute? In short, if your caim is a flat out lie, you lose. If by not fully understanding, how can a reasonable judge even begin to consider this type of claim?

Read my last few parpagraphs again as it clearly is stating what this referenced case is referring to. The whole of any response or claim is all about the wording.

nascar, like you, I say what I say for the same reason. My goal is your goal. If even one poster here takes the time to do as I mention, and you, they will have a better outcome in the end, even if they still have to pay. For example, a friend of mine got sued by a CA for an unpaid bill. His position was that since the OC was in error of amount billed, he should not be liable for the amount claimed. He denied the debt from the git. He simply went to court, let the CA speak, then, spoke his piece. The judge agreed with his written simple "I deny this claim", and adjusted the balance accordingly, without any further input from the CA. She spoke, he listened. The CA was not a happy camper. Now, if he had responded with vague denials, then, yes, he deserved to lose, but, he simply held his ground as to denying the whole claim, and received a fair decision.

[henry1018]

Nascar- I assume even after giving a blanket denial that if, in court, the defendant would have been faced with some irrefutable validation, at that time the defendant could have chose a different course of action and tried to settle. Would it not be foolish to do anything but deny until proper evidence is presented??? Why would you want to make the plaintiff's case or be a witness for the plaintiff and take the plaintiff's responsibility to prove their case away from them??

[retmar]

henry1018,

You bring up a good point in reference to nascar's comment, but, understand that nascar's intent here is not to assist the plaintiff, but, to assure the consumer knows up front what they may face by responding with a "blanket" denial. That is why my comments are like they are.

The important thing to remember as a consumer is that OC/CA/JDB's have attorneys on retainer at all times. Their goal is to "squash" you like a bug and bleed you dry. This is why, when you read of those here asking questions during the discovery process, you find threads like this one. The average consumer lacks "knowledge of law", plus, have not argued in court, and do not have case law in front of them to refer to. And, of course, they are not taught to speak in "legalese".

I've deleted my last paragraph to add the following. I contacted someone quite familiar with laws to the whole of nascar's first post up to mine, and, of course, the subject of this thread. A specific site was referenced, as well as an opinion as to what a consumer should do when responding during the discovery process. The opinion is as follows:

The key to answering discovery is to be honest and upfront, but hedge - so the proper response to a request for admission on something like that document would be to say something to the effect that "you are not aware of the geniousness of the purported document and cannot ascertain it's authenticity and on that basis you do not admit to it, but that upon a proper showing that there is such a document for your review you may revise this denial". Then they cannot say you denied it wrongfully and get the sanctions under the discovery laws.

What I did was submit a scenario by saying the consumer received a copy of a statement, denied overall, but, neglected to include their reason why, thus, leaving the door open, as pointed out in nascar's post. it was a copy, possibly scanned, or computer generated, not original, therefore, could not admit to as it was not notarized or proven in any other way to be a true copy. And, due to their not indicating their reason got "spanked".

[admin]

I have nothing to add, but to note that this is an excellent discussion!

[Lecasbas]

Original post by Great Lakes

My defense is simply that the debt is not my legal name and that Arrow has no legal claim to the debt due to the fact that it was charge off by GEM in 2000 according to my credit report that is 6 months old.

It would depend upon how badly the name was misspelled. If the CA's letters are being delivered to your house and you have not returned them to the post office as "no one by that name lives here", then I don't think your argument will carry much water.

The debt being charged off has no control over the CA's ability to chase after the debt. The outdated SOL does, however, preclude the CA from collecting the debt through the court system.

Blanket denials are pretty common. Wait until you get your Answers from the CA. It'll do the same thing.

Besides, if the CA has not sent appropriate validation to you, and you have no paperwork yourself, how could you admit to knowing about the debt?

[retmar]

Regarding "lescasbas" comments, this is a true fact. If a consumer, in a written answer, and/or goes to court and uses the defense of name being misspelled, the defense will not fly, especially for the one reason described. To wonder why is this. All that the court would do is to amend the complaint then change the name to the correct spelling. For example, to successfully use this as a defense, you would have to deny and state as such in that you would note in your answer that in the past you received written communication and "returned to sender" as "not here" on the envelope. Then the court will have ask to the CA/ATTY/JDB to show proof the alleged claim is your responsibility. At the same time, this should prompt them to properly identify before continuing activity, so as to protect all involved parties.

This even applies if they receive a default judgement. If the CA/ATTY find after the judgement is awarded that the name was misspelled, will simply amend the complaint to the court and it will be corrected.

In short, if you use the defense of name, you must address as so. For example, my last name is misspelled more times than one likes to think. It is why my wife and I stress on our CR's that we never apply for credit, or allow our names to be any different than that given by us. That is, we use only our full first name, middle initial, and last name only (Military Signature). This is due to how many times any of us who apply in person, or on phone, end up getting paperwork or future offers using a shortened version of our first name, or a misspell to our last name. It is also the first thing we dispute each year on our CR's, as our current creditors sometmes do this. BUT, it is not the creditor in itself, it is the lazy, useless representatives who want to take a shortcout.

Let's add this for those who may not be aware of something. If you receive a letter in the mail, note a variation of spelling of your name, and open it anyway, you did not commit a crime as many would assume, and is true if done so for any other reason. Remember, letters from collectors do not identify themselves to where a reasonable person would know the sender prior to opening. All you need to do is note on envelope as to "opened in error" and return to sender as "not here". If envelope is beyond repair, simply place in another and return. No one can charge you for something you had no cause to believe was incorrect from the beginning. Also realize this would be true if an offer letter is sent to you from some company who works with one of your creditors.

The whole of any defense and if it will hold up or fail is how you addressed it from the beginning.

Regardng the OP's claim, the only true defense here is the SOL, or the right to collect by Arrow, whichever is the applicable fit here.

[Great Lakes]

Thank you all for the great discussion and your feedback.

I did not mention this before, but I did speak with a local consumer attorney in the initial phase of the summons. He told me, pretty much what retmar said, that a misspelled name really did not matter. The atty would just go and amend the name to the correct spelling in court. Once the consumer atty told me this, I decieded there were better defenses than a misspelled name. On a side note, the consumer atty was not interested in helping me fight the case. He was more interested in settling down the actual amount of the complaint with the plaintiff and then taking a 3rd of what he saved me off the orginal balance. Plus, having to pay arrow for whatever amount the consumer atty got arrow down too.

As far true defenses are concerned with this specific case, I am going with Arrow's right to collect. The SOL defense I guess has worked for people, but I feel it is not as strong as other defenses, unless you have proof of last payment. I am not sure who said it on this site, but CAs have been know to go to thier local convient store and buy a $10 money order. Then put the account number or name possibly on the money order to pay the bill to themselves (ie: CA). Thus, resulting in the SOL starting all over again. Legal? Not sure, but probably not. Could the defendant disprove they did not make the payment? Possibly, but I bet it would not be easy and probably impossible to disprove. In a nut shell, if you dont have proof on your side for the last payment made, the SOL most likely is not the best defense to utilize imo. This is my reasoning for not using the SOL argument for this specific case.

As so far as the truth discussion is concerned I guess it is like that old saying "beauty is in the eye of the beholder" , but in this case it would go "honesty is in the heart of the beholder". The truth debate is great in this thread, some have varied definitions of what the truth is, but all I can say is make sure the truth you use in court does not come back and bite you in the hindquarters. Or simply put another way, as Nascar pointed out in one of his posts, you get caught lying in court....yea your probably going to be sued.

Thank you all for your response, great discussoin, and feedback. Thank you Nascar for all your help. When I find out more about my case I will post it. Not sure if I should post it in this thread or make a new post. My court date is in Feburary '09' so we will see what happens and I will let you all know.

[BTO429]

defendant has no current knowledge of the debt at this time and demands strict proof would be a better answer.

[retmar]

You can still use the SOL as a defense. Look at the dates on your CR. The first reported will more than likely be based on when Arrow first reported, not the original DOFD. You can challenge them to show proof of date of service/treatment. By this, they would have to produce a statement on the OC's letterhead clearly displaying the dates necessary to prove their claim. As to your comment about the CA buying a MO, you would have no problem proving a forgery as you would demand they submit into evidence a copy of the MO bearing your signature. If they do produce one, give the Bailiff your Drivers License to hand to judge so they can see the forgery for what it is. Any judge worth their weight can easily see. To include, by making a payment does not always cause the clock to be reset. It will depend on your state;s laws if this is true. For example, in California, you must sign a new agreement or contract to reset the clock.

As to their right to collect, make sure you have absolute proof they do or don't. By this, make sure their license or "right" is in their name alone, and not a corporation unknown to you. Here you want to really look close.

Gunny, yours will also work. Thanks for including it.