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Hello, and a few questions.


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I'm dealing with a lawsuit in Virginia by a Junk Debt Buyer. I first appeared in court on the day indicated in the summons/letter and pleaded not guilty, so they just set a trial date, and dates for "bill of particulars" from the JDB and a letter of defense from me. (If my letter isn't received by the date indicated the judge can decide the case any time before the trial date.) In other words the process has two stages in the state of Virginia. I've already received the bill of particulars, which includes printouts of a few debt receipts/collection letters by the original credit card company along with the a statement than since I made a payment on the debt I had agreed to the debt's terms (which seems to imply that they don't have a signed copy of the contract). As I recall, I made this payment by phone and hadn't seen any of the debt collection letters, so I had no idea they were charging me 30% interest at the time, let alone whether the penalty charges were in line with a contract I don't have. I was just scared and dumb, and struggling to survive.

I have doubts that they have any other records than these copies of receipts and demands for payment (at 30% interest plus penalties) which is why I gave up trying to keep up with the debt. There don't seem to be any records of purchases I made on the card, so I'm requesting those.

The last payment I made, according to their records, was about 3 years ago, which I think is within the statute of limitations... but just barely. That is, by the time of trial I'll be well beyond the statute of limitations, but when I was originally "served" and appeared in court (Virginia has a two-stage process) it was within the statute of limitations. Also, this is a contract dispute and in Virgina the Statute of Limitations on signed contracts is 5 years, so if their case hangs on that then I suspect they'll have to produce an actual signed contract, rather than one implied by "last activity," even if their evidence of that is legit. But I'm a little unclear about that, as well.

I was never formally served, by the way. I wasn't even served via certified letter or anything. Just received a carbon copy of the summons filed at the court through regular mail. I'm not sure how relevant that is, because it was my understanding that a formal summons was required in order to ensure that the defendant knew about the suit, so I'm a little confused about that also

I'm preparing a Request for Admissions and Production of Documents. The admissions themselves, and the documents, seem rather straightforward, but I've a couple of questions about some of the other terminology, which seems rather inscrutable to me even though I'm fairly well educated.

Here are my priority questions:

First of all, is it appropriate to include both the request for admissions and for production of documents in the same form? I think it is, but want to make sure.

Second, Virginia statute provides a time limit of 21 days within which the requests have to be answered by the Plaintiff, but specifies that 3 days are added if the service is by mail. So when I indicate a time period or deadline, in the document do I say "within 21 days" or do I say "within 24 days?" That is, is the extra three days just assumed, from the date the letter is postmarked, or will it be 21 days from the date the letter is signed for at the receiving end?

Third, do I sign the document myself, at the end, or does the Plaintiff sign it? The final paragraph of the boilerplate form I'm using has me really confused. I realize I have to include a certificate of service with the request, so I'm not talking about that.

Here's the verbiage I have that closes the combined request. I have some comments indicating what I'm confused about, within square brackets:

The foregoing responses to each of the requested items, together with the attached papers and documents, constitute the total response of this answering Plaintiff, and the undersigned [Which should be me, the defendant, right?] certifies to the filing of the original thereof and service upon the Defendant of a true, correct and complete copy thereof, including all attachments. [service upon the defendant? I thought this was going to be served on the Plaintiff? This doesn’t make sense, if I'm going to sign this below.]

I hereby certify, under the penalties of perjury, that the foregoing answers are true, correct, and complete. [What “foregoing answers?" Shouldn’t this be “admissions” and not “answers” if this is to be signed by the Plaintiff? The sentence doesn’t make any sense.]

_________________________________________

Signature

__________________________________________

Name Typed or Printed

___________________________________________

Capacity in which signing

SUBSCRIBED and SWORN to before me on ______________________, 2009.

___________________________________________

Notary Public for Virginia

So my basic confusion is that the verbiage seems ambiguous about whether I'm certifying something or the plaintiff is, and I'm just totally at sea about what to do. I've searched everywhere for a document that tells me how to "wind up" the request in a more coherent manner, but to no avail. I suspect that the person who provided me with the boilerplate made some typos that created this ambiguity but I can't reach them, so perhaps someone knows of some more coherent boilerplate?

I have to send a letter outlining my defense in about a month (must be received by June 25, 2009), and the trial date is set for July 28, 2009. I'll post the requested admissions and document descriptions lists below, but I'm not so concerned about those at the moment. The main issue is this confusing boilerplate, and who signs the document.

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Just to clarify, there's a statute of limitations in Virginia that's based on "last activity" of 3 years, whereas the statute for signed contracts is 5 years. Even if they can prove that the last activity they document for the original debt holder is accurate I'll be beyond that limit by trial. In fact, I'm pretty sure I'm already beyond it.

Here's the set of admissions I'm requesting:

Requests for Admissions

Pursuant to Scope of VSC Rule 4:1(B) of the Virginia Supreme Court Rules, and other applicable provisions of said Rules of Civil Procedure including VSC Rule 4:11(a), the following of which admissions are deemed admitted unless you respond in writing within twenty-four (24) days with a proper denial or objection.

1. Admit that the last statement transaction on the account was more than three years prior to the date you served Defendant with the Summons and Complaint.

2. Admit that there is no written contract between you and the Defendant.

3. Admit that the Defendant has not consented to any assignment of the account.

4. Admit that as of the date you drafted your Complaint, you had no evidence admissible at trial that proves Defendant owes the debt.

5. Admit that you were not assigned the original creditor's obligations under the alleged credit agreement.

6. Admit that you are not the real party at interest.

and here's the Request for Production of Documents:

REQUEST FOR PRODUCTION OF DOCUMENTS

Pursuant to Rules of the Supreme Court of Virginia 4:1 & 4:9 and other applicable provisions of said Rules Defendant requests that you respond to the following requests for production of documents within twenty-four (24) days. [i think this should be changed to "twenty-one (21) days" but I'm not sure.]

Defendant requests that you attach copies of all responsive documents to your responses. If this is not feasible or possible, Defendant requests to be permitted to inspect and copy all responsive documents at a mutually-convenient date, time, and place.

This request is intended to cover all documents in your possession or subject to your custody and control, regardless of location.

As used in this request for production of documents and things, the term “documents” includes statements, writing and recordings of every kind (mechanical, electronic, typed or written), including, but not limited to, letters, correspondence, maps, diagrams, photographs, pictures, memoranda, notes, reports and transcriptions.

If you decline to produce any of the requested documents or things on the ground of privilege, please provide a descriptive list of each such document or thing and state the grounds for your refusal to produce each such document or thing.

If there are no documents responsive to a request, please so state. If there are such documents, please list appended documents responsive to each request.

If you withhold documents because you object to them or claim a privilege, describe the nature of the document not produced and your reason for not producing it.

These requests are deemed continuing in nature.

DOCUMENT REQUESTS

1. The alleged credit application from (JDB File #) and (Original Credit Card Company Account #) bearing the Defendant's signature.

2. The alleged credit agreement from (JDB File #) and (Original Credit Card Company Account #) that states interest rate, grace period, terms of repayment, transfer of debt agreement, etc.

3. Itemized statements or credit card statements from (JDB File #) and (Original Credit Card Company Account #) that demonstrates how the alleged amount of $12380.40 was calculated.

4. A contract, agreement, assignment, or other means of demonstrating that (JDB) has the authority and capacity, and was legally entitled to collect on the alleged debt from (Original Credit Card Company Account #).

5. Letter(s) sent to Defendant by (JDB) demonstrating an attempt to collect on the alleged debt from (Original Credit Card Company Account #).

6. A notarized statement, if presently exhibiting or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally.

7. Any and all further documents that you believe establish that Plaintiff had an outstanding account or debt related to (JDB File #) and (Original Credit Card Company Account #).

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant's liability and/or responsibility to the alleged debt.

9. Proof of the Date of Last Activity (DOLA) as evidenced by date of the last payment made on alleged (JDB File #) and/or (Original Credit Card Company Account #), check # or draft #, amount paid and copies of the DOLA as reported on Defendant's credit report. If these dates do not correlate or match, please provide evidence as to why the discrepancy.

10. Any and all written communication, received by Plaintiff and/or Plaintiff's attorney from the Defendant, regarding the reporting of the alleged account to any credit reporting agency or agencies, as well as Plaintiff's and/or Plaintiff's attorney accessing of Defendant's credit report(s).

11. Any and all communications from Plaintiff and/or Plaintiff's attorney to the Defendant explaining why Plaintiff and/or Plaintiff's attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining Defendant's credit report.

12. Any and all credit report(s) Plaintiff and/or Plaintiff's attorney obtained from any credit reporting agency concerning the Defendant.

13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the (JDB File #) and (Original Credit Card Company Account #).

14. The Plaintiff's Articles of Incorporation.

15. Provide proof that the alleged debt is not time-barred according to the statute of limitations in the State of Virginia.

16. Provide proof that the Plaintiff is licensed to collect debt in the State of Virginia and has procured a bond as required by the State of Virginia.

17. Provide proof that the Plaintiff is licensed and authorized to solicit the right to collect or to receive payment for the claim of another in the State of Virginia.

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14. The Plaintiff's Articles of Incorporation.

remove this .. wont do you any good, and plaintiff will say to not relavent..

( your already asking for thier licence in 16 & 17)

change to say all phone records from Plaintiff pertaining to Defendants, in any format

and add, Proof this alleged debt is/has not been written off to loss

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14. The Plaintiff's Articles of Incorporation.

remove this .. wont do you any good, and plaintiff will say to not relavent..

( your already asking for thier licence in 16 & 17)

change to say all phone records from Plaintiff pertaining to Defendants, in any format

and add, Proof this alleged debt is/has not been written off to loss

I respectfully disagree with you. The articles of association and incporporation are what give the company the legal rights to do certain things. It is certainly relevant for the plaintiff to prove they have the legal basis to act in the way they did. A state licence is no guarantee that the articles of association are in fact drafted correctly to allow the company to do what it seeks. Articles that are poorly drafted and do not allow a company to perform certain actions can in the right circumstances be enough not only to get the action dismissed but also leave the directors and officers open to personal suit. I always ask for them. As always others may have a different opinion.

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Thanks for the suggestions. I will add "proof that this alleged debt is/has not been written off to loss" although I'm not sure what the defense would be for that. If it has been written off to loss, they can no longer collect on it?

Also, still not sure about the verbiage in the closing paragraph, and would like something that's a little more coherent.

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I ran out of time for the requests, so just deleted the final paragraphs, and signed the document and had it notarized. Also included a Certificate of Service.

Now I wait for a reply? How likely is that?

Also, do I need to send a copy of this request to the Court Clerk?

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I ran out of time for the requests, so just deleted the final paragraphs, and signed the document and had it notarized. Also included a Certificate of Service.

Now I wait for a reply? How likely is that?

Also, do I need to send a copy of this request to the Court Clerk?

Im of the opinion you file everything with the court, if it isnt filed, they can deny it ever happened,,

I also make aextra copy "just in case'" so I make 4 of everything. 1 court,1 atty, 1 me 1 extra, that 'extra" came in handy when atty tried to say he didnt have his copy with him,,ZIP here ya go...:shock:

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