Judge won't allow Interrogatories/Request for Admissions

[2fightback]

At a recent pre-trial conference, it was made very evident that the JDB that is suing did not have anything other than copies of OC's statements and an affidavit. We moved to request Interrogatories & Request for Admissions, but JDB's attorney objected, saying they already provided everything in their initial Disclosure Statment (they provided OC statements, cardmember agreement, affidavit of purchase from OC, and an affidavit of assignment from their sister company to them). We then asked if we could serve JDB with Request for Production of Documents, and Judge again says "no", but that we can request anything we might need via letter to Plaintiff, and if they don't provide it, we may then file a motion to compel. So what the heck is going on? This particular Judge is new to civil county matters (he used to do strictly criminal), so it seems like he's not familiar with our state's rules of civil procedure.

At any rate, we take it the JDB attorney pretty much hung themselves by objecting to our motion for Interrogatories/RA, as they cannot request the same of us now either. The Judge asked why we were asking for additional docs and we explained that the Plaintiff had not stated a cause of action, had not provided a signed contract, and had no proof of anything in our opinion. He seemed surprised. The JDB kept stating that all they needed was copies of the OC statements that show our current address, as well as the statments inidicating that EFT payments were made in 2006. They asked the Judge to order us to provide bank statements from 2006. We responded "if they are available", at which the Judge said, "if they aren't, then just file for a waiver". The Judge seemed very lenient with us. Even though we told him we had our Disclosure Statement ready to be mailed this week, he gave us another 30 days. It was almost as if he was saying "you guys are overlooking something, so I will give you extra time to figure it out".

So what step should we take next? File a motion to strike their assignment of debt affidavit as heresay immediately, or side-step that for now and send them a letter requesting more docs (signed contract, an accounting of balance from $0, etc.), and then file either a MTD or to strike all of their "evidence" as heresay? What about the whole bank statement thing? We really do not have access to those anymore, but what did the Judge mean by filing a waiver if we don't? The JDB made some comment about subpoening the statements directly from the bank we used in 2006 if needed, but the Judge kind of ignored them.

Thanks for any input!

[delta1]

(they provided OC statements, cardmember agreement, affidavit of purchase from OC, and an affidavit of assignment from their sister company to them).

Have they provided an affidavit of assignment from the OC to the sister company? Without that they have not proved chain of custody. Also is the affidavit of sale between the JDB named as plaintiff or is it between the OC and the sister company? Does it (the affidavit of sale) reference your specific account and name? Not too familar with CO Rules but it would seem that most is heresay.

The card member agreement is heresay and depending on what they are suing you for BOC, Account Stated, Money lent...the credit card statements can be heresay also.

I am no expert but I would do a Motion to Strike the documents.

[2fightback]

Have they provided an affidavit of assignment from the OC to the sister company? Without that they have not proved chain of custody. Also is the affidavit of sale between the JDB named as plaintiff or is it between the OC and the sister company? Does it (the affidavit of sale) reference your specific account and name? Not too familar with CO Rules but it would seem that most is heresay.

The card member agreement is heresay and depending on what they are suing you for BOC, Account Stated, Money lent...the credit card statements can be heresay also.

I am no expert but I would do a Motion to Strike the documents.

Yes, they provided an affidavit of assignment from OC to sister company, then sister company to them. The affidavit from the OC to sister company does not provide our specific account number or name. It does refer to an "exhibit a", which of course they did not provide, because it almost certainly contains a whole list of accounts they bought for pennies on the dollar. Then the affidavit from the sister company to the Plaintiff JDB is a fill-in-the-blanks type of affidavit and does list our name and makes references to the balance of the account assigned from OC and that it is a "valid debt".

The card member agreement is dated 2004, well before the account was assigned in 2007. I bet we could find updated versions if I googled long enough. It also references someone else's account number at the bottom of the very last page in very small print. It does also specifiy that governing law is in MT. From what I've read, they cannot introduce the member agreement because they cannot testify as to the authenticity of it, as they are not the OC, and thus, it is heresay. If the Judge overrules, then I've read that you can then argue the whole jurisdiction thing.

We're just not sure how the Judge will treat anything, as he seems to have his own set of rules and isn't following the standart rules of civil procedure. Has anyone ever heard of a Judge basically saying that no further discloure can occur in a case? All that has happened is the Plaintiff has provided their disclosure statement and we have 30 additional days to provide ours to them, which of course will be totally useless to them. I realize this may be in our favor, but it seems bizarre.

[admin]

In some cases there are rules about how much in advance requests for discovery must be made, for example, 30 days before court hearing.

[2fightback]

In some cases there are rules about how much in advance requests for discovery must be made, for example, 30 days before court hearing.

This all went down before trial date was even set. It was later set for mid June. I've been through this two other times and Interoggatories/RA were always mentioned at the pre-trial with the max number of RA'a also being specified as part of the case management file. So what else gives?

So I take it the general idea here would be to file the MTS the affidavits and possibly even the card holder agreement as hearsay? That would then effectively destroy their whole case.

Just need some guidance here on what to do next. It seems like things are in our favor, but we don't want to trip up on something silly and lose everything.