Update: Plaintiff's Responses to Discovery. Clap1/Nidland Fumbleding

[SingleDadJames]

I obviously don't want to get too detailed here but last week I did receive Nidland $cumding's "answers" to my Discovery requests from the alleged crapital one cc they allegedly were sold the rights to collect on.

Just some quick background. They are pursuing this on an account stated basis. The original complaint contained the standard bs affidavit and they later provided a BS bill of sale mentioning no specific account number. Just a generic statement that they sold some a large group of accounts and that info pertaining to them is in some mysterious electronic file.

Here are the majority of my requests and their responses along with my thoughts. I'd appreciate any thoughts and feedback on what to do next.

Requests for Admission:

Please admit the BS affidavit of indebtedness from so and so is merely an accumulation of hearsay.

"Plaintiff denies as untrue." Don't they have to give a little more of a response than that? Does this response "fairly meet the substance of the request". I was looking for a small explanation of why they feel it is NOT hearsay since it's not from the OC and merely from one of their own employees.

Please admit that the BS affidavit of indebtedness was prepared in anticipation of litigation and with intent of initiating litigation/legal action. (The affidavit includes language that states something to the effect that the alleged balance will continue to accrue interest etc "until suit is filed".

Denied as untrue w/ no explanation.

Please admit there is no written and signed agreement between Defendant and the OC.

Objected based on relevancy

Admit that there is no written agreement between Plaintiff and Defendant.

Admitted. Plaintiff is "successor in interest" to the agreement between Crapital one (the OC) and Defendant.

Admit there is an arbitration clause in the alleged CrapOne CC agreement that if exercised by either party, requires the dispute to be resolved by binding arbitration and that bars pursuit of any claim before judge/jury. They ADMIT to this. I'm not terribly clear how arbitration works in this court but is this something I should consider pursuing?

Admit that Plaintiff never provided any goods or services to defendant.

Admit. In further response the OC permitted the Defendant to charge services and goods and Plaintiff is successor in interest to this credit agreement.

(They have not provided any type of account statements from the OC proving I charged ANYTHING on this alleged debt). I have seen no records showing any transaction. No Debits, No Credits. Just a BS faxed account cycle statement stating my address, alleged account # and an alleged balance.

Admit when Plaintiff filed their complaint they had no evidence admissible at trial that proves Defendant owes alleged balance due.

Denied as untrue.

Admit plaintiff can't provide any documents proving Plaintiff owns this SPECIFIC alleged debt.

Denied as untrue with instructions to see their supplied documentation. This of course is nothing but a BS bill of sale not showing any specific reference to the SPECIFIC alleged account in this case. (No name..no account number...nothing).

I also asked them to admit to the outcome of several recent cases with Nidland $cumding. Admit that judge so and so in such and such court found them guilty of routinely using false affidavits in filing their cases.

Of course they objected to all of these due to irrelevancy.

Please admit that Plaintiff did not transfer rights over to the law firm for the law firm to attempt collect.

Object on relevancy. They stated they are representing the Plaintiff and no transfer of rights is needed. Wouldn't a transfer of rights be needed for the attorney and firm to attempt to collect on the debt prior to filing suit...which they did?

Admit that the LAW FIRM is the true party in interest.

Denied as untrue. THE LAW FIRM is merely an attorney representing the plaintiff

Here are the highlights of my interrogatories and their responses:

List the JOB TITLES, NAMES, AND ADDRESSES of all witnesses the Plaintiff intends to call and a summary of their knowledge of the alleged account:

The Defendant- Testimony regarding his use and payment on the CC.

Custodian of Records: Provide testimony to authenticate records.

This is NOT what I requested. I specifically requested the NAME, TITLE, ADDRESS etc....they were just too lazy to look it up.

List the date of default on the alleged account:

They provide a date that the last payment was made. I have no idea whether that is true and correct

State the dated the OC charged off the alleged debt:

They provide yet another date with no supporting documentation.

I asked whether Nidland funding is licensed, registered, bonded etc in MI to be permitted to collect debt in MI.

Objected as irrelevant. MCL450.2012(1)(h) shows that securing/collecting debt does not constitute transaction of a business. I looked it up and it states:

"BUSINESS CORPORATION ACT (EXCERPT)

Act 284 of 1972 450.2012 Activities not constituting transaction of business; applicability of section. Sec. 1012.

(1) Without excluding other activities which may not constitute transacting business in this state, a foreign corporation is not considered to be transacting business in this state, for the purposes of this act, solely because it is carrying on in this state any 1 or more of the following activities:

(h) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts."

Here are some of my requests for POD:

Provide a BOS and contract, assignment, agreement, or other documentation SPECIFICALLY LISTING THIS CC account # and demonstrating Plaintiff had the authority and capacity, and was legally entitled to collect on this alleged debt.

They referred to their attached documents...which is a Bill of sale not mentioning this account (or any SPECIFIC account) at all. Nothing PROVES to me that this is my debt and that even if it is..that they were ACTUALLY assigned the rights to THIS PARTICULAR account. I probably should have worded this request differently. What I wanted to see was a bill of sale specifically listing this alleged crap one CC and saying they have the right to collect on it. NOT just a generic affidavit that says they "bought a bunch of accounts" and those accounts are "in a separate electronic file somewhere".

Provide a copy of the alleged CC application.

Objected as irrelevant (account stated case).

The Plaintiff states liability was established through Defandant's use of card. Plaintiff is unaware of any actual requirement for a copy of the application and federal law only requires cc applications to be kept for two years and one month.

Provide copies of the Plaintiff's responses to the Defendant's requests for validation of the alleged debt:

Object as irrelevant. This documents would be in possession of Defendant

Provide itemized statements and CC statements that show how the alleged balance was calculated.

Please see attached documentation which is all of the documentation the Plaintiff has in their possession and control, but that Plaintiff is ordering additional media.

Please provide a copy of the plaintiff's articles of incorporation:

Object as irrelevant.

Provide a copy of any credit reports associated with the Defendant that were obtained by plaintiff or their attorney along with any communications explaining why/how the Plaintiff obtained the report(s) and may have reported the alleged debt to any CRA .

Object as irrelevant.

Provide the Resume and employment record for the affiant of the BS AFFIDAVIT of indebtness:

Object based on relevancy and due to the fact that this request would contain privileged information.

There's more but those were the major requests and their responses. I'd appreciate any thoughts and feedback. Should I reply and request more info on some of these or simply let it go for now?

Edited September 22, 2010 by SingleDadJames

[Savoir]

Check your PM

[SingleDadJames]

Just an extra note about what documentation was actually supplied with the plaintiff's discovery answers. They supplied little of anything in the way of new info. They basically resent stuff they already provided with the complaint and then another affidavit.

This new affidavit is supposedly from an employee/custodian of records for the OC. It basically says little more than the affiant is familiar/aware of the process of the sale and assignment of electronic stored business records and documentation. It then merely states that on such and such date crapone sold a "pool" of of charge off accounts to Nidland Scumding. It also mentions that as part of that sale electronic records and other records were transferred on individual accounts to Nidland scumding. It of course does not even reference any specific account numbers etc.

I had two questions regarding this new affidavit.

1. Do I need to/should I address the affidavit? Should I attempt to have it stricken? I'm not sure on what grounds I would argue to have it stricken other than it's well over a year old.

I'm not overly concerned about the affidavit because it basically says nothing other than a bunch of accounts were sold on so and so date. It doesn't do much to prove that this alleged account is mine or that crap one sold this specific debt to nidland scumding.

2. This affidavit was actually signed the day before the alleged bill of sale. Is this acceptable or common practice? For instance the affidavit says, "On or about July 3rd, 2009, Crap One sold a pool of charge off accounts to..." and the affidavit is dated and signed on the day before, July 2nd. I'm guessing the "on OR ABOUT" works to their advantage. I was just a little curious how you could give an affidavit on the 2nd discussing facts of a sale in the past tense that supposedly didn't happen until the next day on the 3rd.

The affidavit isn't even really signed. Instead the signature appears as half cursive initials of someone at crap one.

[Massive]

That alleged original creditor affidavit is laughable. It's amazing what they try to pass off as "evidence." The affidavit is inadmissible in a court of law due to no foundation. No detailed records to back up the "affidavit." I love those bogus "signatures" also. They didn't provide any evidence through discovery that can't be defeated at trial. You're in great shape heading to trial.

[SingleDadJames]

That alleged original creditor affidavit is laughable. It's amazing what they try to pass off as "evidence." The affidavit is inadmissible in a court of law due to no foundation. No detailed records to back up the "affidavit." I love those bogus "signatures" also. They didn't provide any evidence through discovery that can't be defeated at trial. You're in great shape heading to trial.

Yes none of their affidavits say much..just general blanket references to "accounts" and "files" and other B.S.

Should I be trying to get this affidavit stricken or simply wait and let them present it if we go to trial?

They really haven't provided much "evidence" except out of the blue balances they claim are due via their own documentation. Despite repeated requests to be shown how any of these balances were calculated I still have no idea where the hell they've managed to come up with a balance that has nearly tripled the amount of the credit limit on the alleged card. Not to mention the fact that they've yet to show me that the card and debt were mine and then even if they are, that they have the right to collect on THIS particular account.

I suspect they may eventually obtain and send some copies of cc statements on the alleged card because it wasn't charged off all that long ago...but only time will tell.

[SingleDadJames]

I'd love some feedback from anyone with thoughts on the Plaintiff's responses listed in the first post and on thought on how to proceed. I know the original post is long but I wanted to try to lay it all out in one spot.

Also, should I be re-requesting some of my original discovery responses and demanding a non-evasive reply? For instance when I asked for the resume and employment records for their affiant for their affidavit of indebtedness they objected that it was irrelevant and would contain privileged information.

How can it be irrelevant when they basically brought this entire action against me based on that one sole piece of "evidence". They've since supplied (manufactured?) more "proof" that amounts to nothing. I'd love to see just how long this supposed legal speciali$t affiant has worked there and how much experience she has in dealing with the business transactions of the jdb and the oc.

Instead of re-requesting the information via the attorney could I send interrogatories and other requests directly to their affiant? I suspect it would be a waste of postage and certified mail/return receipt fees.

In their responses the plaintiff also admitted that there is an arbitration clause in the crap 1 cc agreement applicable to this account that if exercised by either party, bars any sort of litigation and sends the case to binding arbitration.

Is this something I should be pursuing or should it be used as a last resort? I'm not sure how late in the game I could play the arbitration card or if I even should. My guess is that would be a tactic for me to consider if they suddenly come up with a bunch of evidence to turn the tables in their favor?

[nobk4me]

I would recommend pursuing the alleged OC affiant, thru more discovery. I'm not sure you can contact the affiant directly. You may have to send more interrogs to Nidland.

The affidavit is probably a forgery. Have you googled the affiant's name, to see what you can find?

[SingleDadJames]

I would recommend pursuing the alleged OC affiant, thru more discovery. I'm not sure you can contact the affiant directly. You may have to send more interrogs to Nidland.

The affidavit is probably a forgery. Have you googled the affiant's name, to see what you can find?

I doubt they'll provide any information about this affiant voluntarily via Discovery since I already requested basic info about their first affiant and they objected. With regard to their affidavit of indebtedness I requested the affiant's resume and employment records in Discovery and the attorney objected to it as irrelevant and that it would contain privileged info. I'm sure they'd say the same thing for this affiant.

I guess I'll have to look into a subpoena for the info I want? Which costs money ...and they know it. Does anyone know if I can send rogs, requests for admissions and requests for production of documents directly to the plaintiff's affiant or MUST I only send to the plaintiff's attorney. I suppose I should post that question in another thread or this will get off topic.

Thanks everyone for the help thus far!!

"James"

[SingleDadJames]

So I thought I'd post some quick general thoughts/concerns regarding these Discovery questions and the plaintiff's responses and what I'm debating on doing since I realize many are going to ignore the long original post.

1. They objected to my request for the resume and employment records of the affiant who signed their affidavit of debt. They objected as irrelevant and containing privileged information.

I don't think the work history of the person who supposedly knows so much about the OCs records...the junk debt buyers records, and this alleged account is irrelevant.

Can I request the info from the affiant via Discovery requests? Do I have to subpoena the info? Is there another way to "object" to their objection and try to get this info?

2. Via Discovery the Plaintiff has submitted two "cycle statements" that are nothing but typed pages or a print off of a crude electronic database, A BS bill of sale that doesn't reference any specific account, and two BS affidavits. They all appear like generic documents they probably use on nearly all cases. No copies of cc statements from the alleged OC as of yet.

I submitted a motion to strike the affidavit of debt that was supplied with the complaint. (Judge has not ruled on it yet.) Do I now need to motion to strike all of these new documents or should I wait until trial and argue then?

I'm afraid if I submit too many motions etc. I'll anger the court or otherwise hurt myself.

3. In their Discovery responses the Plaintiff admits that there is an arbitration clause in the crap one credit agreement that bars litigation if exercised by either party.

I'm afraid if I elect for arbitration and the case is going my way (I THINK it may be) it could backfire. Should I wait to mention this to the judge and "save" attempting to ask for arbitration in case the case turns in the Plaintiff's favor? I can't figure out why they would say they have no copy of the CC agreement but then admit there is an arbitration clause in the agreement..unless they are HOPING I'll ask for arbitration.

I have another pre-trial coming up soon. Still no trial date. Still no real evidence that proves anything to me...although they are supposed to be trying to obtain "additional media" such as cc statements and documentation showing how they calculated the alleged balance etc. What should I be doing right now? Should I do nothing until after the next pre-trial?

I don't want to submit another 5 or 6 motions because its like 20 or 30 bucks a motion that I don't have to throw away. If I can combine motions on several things that NEED to be done I'd be happy to. Just don't want to tick off the judge or send myself to the poorhouse with filing fees.

Perhaps wait and see if they produce any further documentation and if not look into a motion to dismiss etc?

Any feedback is greatly appreciated. This is my very first time and I'm just trying to think about how to proceed.

[ADSOFT]

SDJ,

I'm just behind you in my case in filing for discovery. However I started with a Bill Of Particulars which address the following question:

Provide itemized statements and CC statements that show how the alleged balance was calculated.

Please see attached documentation which is all of the documentation the Plaintiff has in their possession and control, but that Plaintiff is ordering additional media.

In california they have 10 day to get info to me or 15 days by mail otherwise they can't use it court. I don't know how it is in your state, but if you send one, if you can, they have 15 days (or what ever ) to come up with it otherwise they can't use it in court.

You might also have want to look into a Motion to Compel (both Items and Contract) otherwise you can't defend your self. If they don't provide enough info you can file a motion to dismiss (at least the people that are helping me have put me on that path).

IMH and inexperienced court opinion, it looks like they don't have enough info, you might look at a motion to compel and then a motion to dismiss or MSJ(motion for summary judgement).

[SingleDadJames]

Thanks for the input ADSOFT!

It's good to know some of what I was thinking was at least on the right track.

I looked into a Bill of Particulars for MI and it I believe from what I can tell it's something reserved for Criminal cases. The rules of civil procedure don't address a BoP and the only place I found anything about it was in the rules of criminal procedure.

What I was thinking was I should wait until my next pre-trial and see what happens...and then give them 10 days or so to get Discovery I requested and then file a motion to compel for oc cc statements, affiant employment info, records etc. if they don't comply.

Don't I have to make some good faith efforts to get the info from the plaintiff before filing a motion to compel? I think I've read that a lot of judges/courts like to see that an effort has been made to get things accomplished outside of the court before filing a motion to compel. They did respond..they just evaded most of what I needed/wanted.

Should I file some sort of reply to their Discovery response, stating it's evasive and asking again for the information I want with a mention that It's an attempt to avoid the need to file a motion to compel?

After all of that If I don't get the information I want then I guess I'll look into a motion to dismiss/MSJ.

I just wasn't sure if I should be filing a motion to strike this new affidavit and these other so called "documents" and "proof" they've provided via Discovery in the meantime.

[ADSOFT]

Thanks for the input ADSOFT!

It's good to know some of what I was thinking was at least on the right track.

I looked into a Bill of Particulars for MI and it I believe from what I can tell it's something reserved for Criminal cases. The rules of civil procedure don't address a BoP and the only place I found anything about it was in the rules of criminal procedure.

What I was thinking was I should wait until my next pre-trial and see what happens...and then give them 10 days or so to get Discovery I requested and then file a motion to compel for oc cc statements, affiant employment info, records etc. if they don't comply.

Don't I have to make some good faith efforts to get the info from the plaintiff before filing a motion to compel? I think I've read that a lot of judges/courts like to see that an effort has been made to get things accomplished outside of the court before filing a motion to compel. They did respond..they just evaded most of what I needed/wanted.

Should I file some sort of reply to their Discovery response, stating it's evasive and asking again for the information I want with a mention that It's an attempt to avoid the need to file a motion to compel?

After all of that If I don't get the information I want then I guess I'll look into a motion to dismiss/MSJ.

I just wasn't sure if I should be filing a motion to strike this new affidavit and these other so called "documents" and "proof" they've provided via Discovery in the meantime.

Sounds like you are on the right track. I don't know the Michigan court system but if you tell me at what level (supreme, small claimes, superior:what we have in Calif, etc) I might be able to find something.

I do know about contract law, and the plantiff has to prove they have a contract with you and that all charges add up(so they HAVE TO supply a contract and all fees have to add up and an itemized bill, minimum). Contractual obligaitions in all states pretty much have those requirements.

I didn't answer my discovery initially and was compeled(it turns out that in California each county has what are called local rules, in Los Angeles they give you a court date as soon as you answer, In Orange county you can go two years ++ before a trial date). They couldn't get a judgement by me failing to answer, so if there is no BOP in your state, motion to compel seems like it would be the next step(but like I said I know contract law but really weak in Civil Procedure).

Yep if they didn't answer the basic stuff, 1) Contract , 2) Itemized bill, 3) Proof they own the bill, then a motion to compel and dismissal might be the path you want to go: but check with someone that knows Michigan Law.

Hope that helpls, I will be keeping an eye on this thread, since I seem to be in the same boat as you; The plaintiff seems to not have all the proper paper work to prove a contractual obligation(steps 1-3 as I mentioned above).

Hope you don't mind if I jump in once in a while.

[SingleDadJames]

Sounds like you are on the right track. I don't know the Michigan court system but if you tell me at what level (supreme, small claimes, superior:what we have in Calif, etc) I might be able to find something.

This is in Civil District Court in MI

I do know about contract law, and the plantiff has to prove they have a contract with you and that all charges add up (so they HAVE TO supply a contract and all fees have to add up and an itemized bill, minimum). Contractual obligaitions in all states pretty much have those requirements.

Unfortunately I don't think contract law is even applicable here. They have basically treated this as an account stated. I'm no expert but from what I've read they don't even need to have a signed copy of the application, or any actual written agreement between me and the alleged issuer of the alleged CC. They merely need to show that the card was used by the person they are suing and then someone can attest that they have reviewed the records of the account and that such and such amount is due. If a defendant doesn't put up a fight that's good enough most of the time.

The problem is they haven't shown me any type of CC statement to prove that this card is mine or that it was even used by me...or anyone at all. I suspect they should be able to obtain some CC statements since this alleged debt was charged off a little over a year ago. I guess I and the Court are supposed to sit around and wait and wait until they can manufacture, I mean obtain, them.

When and if they can find some CC statements they'll have to be pretty convincing. Even if the card is somehow shown to be mine (I have no recollection or knowledge of it) then I expect to be shown real proof that the JDB bought THIS specific debt. Not some generic bill of sale that says a crapload of accounts were purchased. I would also expect to see how every penny of this alleged balance that is nearly triple the credit limit of the alleged card was calculated. I'm not sure the judge would agree but I don't plan on rolling over and accepting anything less.

Hope you don't mind if I jump in once in a while.

Of course not...in fact quite the opposite! I love when someone offers their constructive input. At times it's just good to hear that other people are going through the same thing and hear how they are approaching the situation!

[ADSOFT]

.

The problem is they haven't shown me any type of CC statement to prove that this card is mine or that it was even used by me...or anyone at all. I suspect they should be able to obtain some CC statements since this alleged debt was charged off a little over a year ago. I guess I and the Court are supposed to sit around and wait and wait until they can manufacture, I mean obtain, them.

When and if they can find some CC statements they'll have to be pretty convincing. Even if the card is somehow shown to be mine (I have no recollection or knowledge of it) then I expect to be shown real proof that the JDB bought THIS specific debt. Not some generic bill of sale that says a crapload of accounts were purchased. I would also expect to see how every penny of this alleged balance that is nearly triple the credit limit of the alleged card was calculated. I'm not sure the judge would agree but I don't plan on rolling over and accepting anything less.

!

They have to at least prove that. No statements and an Itemized bill and proof they own the contract, no deal.

I would think they have to produce a contract since they have to prove interest and fees. Also look into Custodian Of Records and proper witness to the account. How do you know if there wasn't a computer malfunction and some charge didn't add up, etc.

Find out about contract law too, also Breach Of Contract: which should be mentioned somewhere in your summons. btw, could you please look on your summons and see if it states "breach of contract" anywhere, or just collections?

[SingleDadJames]

They have to at least prove that. No statements and an Itemized bill and proof they own the contract, no deal.

I would think they have to produce a contract since they have to prove interest and fees. Also look into Custodian Of Records and proper witness to the account. How do you know if there wasn't a computer malfunction and some charge didn't add up, etc.

Find out about contract law too, also Breach Of Contract: which should be mentioned somewhere in your summons. btw, could you please look on your summons and see if it states "breach of contract" anywhere, or just collections?

I'm trying to get info on the supposed custodian of records who signed the affidavit of indebtedness..but they objected to any records pertaining to this affiant as irrelevant and privileged. I was debating on trying to subpoena the records I requested or the actual affiant...but I'm not sure it's worth the time and expense.

The complaint I was given with the summons says nothing about a contract. The closest thing it comes to mentioning a contract is in one of their allegations that says something to the effect of "Plaintiff's assignor allowed Defendant to charge goods and services on open credit account and on Defendant's promise to pay same."

Then it goes on to list amounts due and says that defendant's failure to pay resulted in default on the account.

It mentions that the Plaintiff's assignor has "completed performance" and "rendered an account stated" with an affidavit attached. The affidavit is from someone who is simply one of the plaintiff's employees. The affiant basically just states they make statements based on personal knowledge of records maintained on behalf of plaintiff and that the records say I owe such and such amount.

[ADSOFT]

Sorry, for not replying sooner I missed your post.

You might also find COLLECTIONS/BREACH of contract on the summons cover sheet or a reference to which part of the civil code they are suing under.

They may say its priviledged info, but I wouldn't buy it. You might look into motion to compel. Thats a bunch of BS about thier witness.

After a motion to compel you might want to file a motion to dismiss. Looks like they are quite short of establishing a contractual obligation between you and the plaintiff.

Look into "breach of contract, collections, credit cards, your state" in google. It has to fall under breach of contract, since like you said it say you promised to pay, ... which means contract.

[FL4answer58]

This new affidavit is supposedly from an employee/custodian of records for the OC. It basically says ...the affiant is familiar/aware ... business records and documentation.

It then merely states that on such and such date crapone sold a "pool" of of charge off accounts to Nidland Scumding. It also mentions that as part of that sale electronic records and other records were transferred on individual accounts to Nidland scumding. It of course does not even reference any specific account numbers etc.

I had two questions regarding this new affidavit.

1. Do I need to/should I address the affidavit? Should I attempt to have it stricken?

2. This affidavit was actually signed the day before the alleged bill of sale. Is this acceptable or common practice? For instance the affidavit says, "On or about July 3rd, 2009, Crap One sold a pool of charge off accounts to..." and the affidavit is dated and signed on the day before, July 2nd. I'm guessing the "on OR ABOUT" works to their advantage.

Strike affidavit - focus here. Without account numbers indicating your alleged account included - no go. Without confirmation of complete assignment and not in part - no go. 'Broken' chain - no go. A lot of established law - for your state and circuit.

"If the debt was assignment by purchase, many state consumer laws require proper notice to you or the assignment is ineffective or invalid!

See this recent Mich case: http://creditinforesource.com/forums/casedocs/Unifund.v.Riley.pdf

“Defendant also argues that plaintiff failed to show that it legally acquired defendant?s account from Citibank. We agree. Although plaintiff submitted a copy of a bill of sale executed by Citibank, it did not provide the portion of the assignment that indicated that this specific account was one of the accounts being assigned. Because the assignment occurred through the contract, absent evidence of the contract showing the specific assignment, the affidavit containing plaintiff?s employee?s bare assertion of the assignment is insufficient to establish factual support for plaintiff?s claim that it acquired defendant?s account by assignment.”

See; http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=214882&highlight=michigan+assignment

Read this: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=292720&highlight=michigan

Look here: http://www.attorneysforconsumers.com/Michigan-Fair-Debt-Collection-Practices-Act.html

See: http://www.avvo.com/legal-guides/ugc/tips-for-those-sued-in-michigan-courts-for-a-credit-card-debt

Edited October 1, 2010 by FL4answer58

[admin]

In your interrogatories, you asked them to admit a lot of irrelevant facts. You don't need everything to be an "admit" or "deny". Also, the way you asked about the affidavit was not exact the best way.

Please admit the BS affidavit of indebtedness from so and so is merely an accumulation of hearsay.

Admit that the affidavit is hearsay?? No - that doesn't work. You need to ask questions about the person signing the affidavit and how they came to have personal knowledge.

Please admit that the BS affidavit of indebtedness was prepared in anticipation of litigation and with intent of initiating litigation/legal action. (The affidavit includes language that states something to the effect that the alleged balance will continue to accrue interest etc "until suit is filed".

Why would anyone admit to this? Besides, intent is almost impossible to prove in the law.

How you can ask about the affidavit:

1. State the title and position of the affiant signing the affidavit.

2. Describe how the affiant had personal knowledge of the original account.

[SingleDadJames]

In your interrogatories, you asked them to admit a lot of irrelevant facts. You don't need everything to be an "admit" or "deny". Also, the way you asked about the affidavit was not exact the best way.

. . .

How you can ask about the affidavit:

1. State the title and position of the affiant signing the affidavit.

2. Describe how the affiant had personal knowledge of the original account.

Great suggestions. I probably should have asked these and I did ponder asking basically the same thing. I figured they would have just referred to the affidavit if I asked question number 1. I'm not sure how they would respond to #2 other than pointing me to the affidavit and saying it's (somewhat) described there. The affiant lists his/her name and makes a general statement that he/she is a records custodian of so and so and has access to and has reviewed the alleged records.

I agree some of the Discovery questions I asked weren't that great. I did ask for some help and many of these questions were based on suggestions. I basically had to fire them off because I was out of time. I didn't expect them to admit anything...but I agree some of mine were not formatted the greatest. I probably should have asked more Interrogatories but I pretty much used their Discovery requests as an example. It was a BUNCH of Requests for admissions and just a couple interrogatories.

I guess hoping they admit to their affidavit being hearsay is about as funny and far fetched as them asking me to admit I used this alleged credit card and that I owe the alleged balance.

So here is my question. Is it ever allowed/permitted to send a follow up round of interogs and Requests for admission? Can I send off another set of questions? This is in MI District court and I'm not seeing much info pertaining to that in the rules of civil procedure. Just curious if I could send some more Interrogatories worded a little better and also in an attempt to get some clarification regarding the responses they provided.

[SingleDadJames]

Thanks for the help FL4answer58,admin and everyone else!

Greatly appreciated!

[ADSOFT]

??? Motion for a more definate statement??

I have read some threads where plaintiff's don't like the answers given.

There are lot of threads that I'm on top of( well, involved in would be more appropriate), but If I remember correctly you asked enough questions to prove they don't have a contractal obligation with you.

You might be able to ask the questions above at trial, there a few people who have won cases that way.

By no means am I saying don't file a motion for more definate answer, at least you will get more time. At some point you should look for a motion to dismiss.

Again I think you have enough to win at this point, but ask for more info if possible.

[admin]

So here is my question. Is it ever allowed/permitted to send a follow up round of interogs and Requests for admission? Can I send off another set of questions? This is in MI District court and I'm not seeing much info pertaining to that in the rules of civil procedure. Just curious if I could send some more Interrogatories worded a little better and also in an attempt to get some clarification regarding the responses they provided.

I don't know. Anyone?

[SingleDadJames]

??? Motion for a more definate statement??

I have read some threads where plaintiff's don't like the answers given.

There are lot of threads that I'm on top of( well, involved in would be more appropriate), but If I remember correctly you asked enough questions to prove they don't have a contractal obligation with you.

You might be able to ask the questions above at trial, there a few people who have won cases that way.

By no means am I saying don't file a motion for more definate answer, at least you will get more time. At some point you should look for a motion to dismiss.

Again I think you have enough to win at this point, but ask for more info if possible.

I have a pre-trial and motion hearing for my motion to strike their affidavit of debt coming up very soon. I'm kind of waiting to see what happens there before I directly ask anything further of the court. After that I think I may have a slightly better idea of how the judge is going to be and what direction I need to take.

[ADSOFT]

I have a pre-trial and motion hearing for my motion to strike their affidavit of debt coming up very soon. I'm kind of waiting to see what happens there before I directly ask anything further of the court. After that I think I may have a slightly better idea of how the judge is going to be and what direction I need to take.

Good luck hope things workout for you.

[FL4answer58]

So here is my question. Is it ever allowed/permitted to send a follow up round of interogs and Requests for admission? Can I send off another set of questions? This is in MI District court and I'm not seeing much info pertaining to that in the rules of civil procedure. Just curious if I could send some more Interrogatories worded a little better and also in an attempt to get some clarification regarding the responses they provided.

Michigan Small Claims Court Dollar Limit: $3,000, Attorneys: Not allowed. Remember, a small claims case will be heard by a judge or attorney magistrate; you have no right to a jury trial.

Either party has the right to ask that the case be heard in the general civil division of the district court. If you want to have the case moved to the general civil division of the district court, you can complete the Demand for Removal, form DC 86, print it, and bring it to the court before or on the day of the hearing. You must file the form with the court clerk. The court will notify the person filing the lawsuit if the defendant makes such a request. In the general civil division of the district court, both the plaintiff and the defendant have the right to be represented by an attorney. Whoever loses the case may be ordered to pay court costs and attorney fees.

IF you demand general civil division; Then discovery.

I assume you are in civil court:

Rule 2.302 General Rules Governing Discovery

(A) Availability of Discovery.

(1) After commencement of an action, parties may obtain discovery by any means provided in subchapter 2.300 of these rules.

(2) In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties. A motion for discovery may not be filed unless the discovery sought has previously been requested and refused.

(3) Notwithstanding the provisions of this or any other rule, discovery is not permitted in actions in the small claims division of the district court or in civil infraction actions.

(Scope of Discovery.

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party, including the existence, description, nature, custody, condition, and location of books, documents, or other tangible things, or electronically stored information and the identity and location of persons having knowledge of a discoverable matter. It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(E) Supplementation of Responses.

(1) Duty to Supplement. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information acquired later, except as follows:

CHAPTER 2 CIVIL PROCEDURE Chapter Last Updated

8/16/2010

(a) A party is under a duty seasonably to supplement the response with respect to a question directly addressed to

(i) the identity and location of persons having knowledge of discoverable matters; and

(ii) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert is expected to testify, and the substance of the expert's testimony.

( A party is under a duty seasonably to amend a prior response if the party obtains information on the basis of which the party knows that

(i) the response was incorrect when made; or

(ii) the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

© A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time before trial through new requests for supplementation of prior responses.

Edited October 2, 2010 by FL4answer58