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My middle finger to Capital One

medicbone

By medicbone,
in Is There a Lawyer in the House

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medicbone Member

medicbone

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I have a previous thread that has my discovery listed, so I'll spare you and not repost it. I'm thinking about filing this to basically say go to h**l Capital One. What do you think: File or not?? Suggestions please!!

DEFENDANT’S MOTION FOR SANCTIONS: FAILURE TO MAKE DISCOVERY

PERSUANT TO MISSOURI RULES OF CIVIL PROCEDURE 61.01

COMES NOW Me, Defendant pro se, and files this MOTION FOR SANCTIONS, and requests the court to grant such motion based on the facts stated below:

1.Defendant served Discovery requests by U.S. Mail upon Plaintiff on August 16, 2010.

2.Defendant received PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF, PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES, and PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF on or about September 17, 2010

3.As of the date of this filing, Plaintiff has not filed or received a Protective Order from this Court allowing Plaintiff to avoid requirements of Discovery pursuant to Missouri Rule of Civil Procedure 56.01.

BASED UPON THE ABOVE LISTED DOCUMENTATION, DEFENDANT STATES AND ALLEGES THE FOLLOWING:

4.Plaintiff did knowingly provide a false and/or evasive answer to Admission 1 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim.

5.Plaintiff did knowingly provide a false and/or evasive answer to Admission 2 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim.

6.Plaintiff did knowingly provide a false and/or evasive answer to Admission 3 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Plaintiff is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise.

7.Plaintiff did knowingly provide a false and/or evasive answer to Admission 4 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim.

8.Plaintiff did knowingly provide a false and/or evasive answer to Admission 5 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR ADMISSIONS TO PLAINTIFF (attached as Exhibit A). Plaintiff DENIES request, however Plaintiff fails to show proof of their Denial. Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Plaintiff is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise.

9.Plaintiff did knowingly provide a false and/or evasive answer to Answer 1 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit B). Plaintiff claims to possess a SIGNED AGREEMENT BETWEEN THE DEFENDANT AND PLAINTIFF, citing the Cardmember Agreement attached to the original petition. The attached agreement is generic boilerplate, and shows a copyright of 2005, three years prior to the alleged extension of credit. Defendant demands a SIGNED agreement between Plaintiff and Defendant.

10.Plaintiff did knowingly provide a false and/or evasive answer to Answer 2 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit B). Plaintiff claims that billing statements, attached to Discovery documents as Exhibits P08-P031, provide a complete accounting of all damages claimed in the original petition. However, the amounts listed in attached billing statements are not consistent with the amount of damages sought in Plaintiff’s original petition. Defendant demands an accurate and detailed accounting of all transactions showing how the claim amount was determined.

11.Plaintiff did knowingly provide a false and/or evasive answer to Answer 3 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit B). Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Capital One is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise.

12.Plaintiff did knowingly provide a false and/or evasive answer to Answer 4 of PLAINTIFF’S ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (attached as Exhibit B). Defendant demands proof of Plaintiff’s claim. Further, Plaintiff stating “Capital One is the original creditor” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise.

13.Plaintiff did knowingly provide a false and/or evasive answer to Answer 1 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff’s objection is preposterous. It should be well known that “Account” refers to the account alleged in the original petition. Further, Plaintiff failed to provide requested document, instead substituting a print-out of a computer screen, which shows no information relating to the requested document. Defendant demands a Credit Application SIGNED by the Defendant.

14.Plaintiff did knowingly provide a false and/or evasive answer to Answer 2 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff’s objection is preposterous. It should be well known that “Account” refers to the account alleged in the original petition. Further, Plaintiff failed to provide requested document, instead substituting a generic boilerplate agreement, with a copyright date preceding the alleged account by three years. Defendant demands a valid Credit Agreement SIGNED by the Defendant.

15.Plaintiff did knowingly provide a false and/or evasive answer to Answer 3 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff’s objection is preposterous. It should be well known that “Account” refers to the account alleged in the original petition. Further, the amounts listed in attached billing statements are not consistent with the amount of damages sought in Plaintiff’s original petition. Defendant demands an accurate and detailed accounting of all transactions showing how the claim amount was determined.

16.Plaintiff did knowingly provide a false and/or evasive answer to Answer 4 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Plaintiff stating “the pleadings speak for themselves” does not satisfy the Plaintiff’s Burden of Proof, and should be treated as hearsay until proven otherwise.

17.Plaintiff did knowingly provide a false and/or evasive answer to Answer 6 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Defendant denies receiving any letters from Plaintiff stating the alleged debt was under collections. Plaintiff should be well aware that Debt Collectors are required to advise debtors of collection activity under the Fair Debt Collection Practices Act, or face penalty. Therefore, if document was produced, it should be readily available to Plaintiff.

18.Plaintiff did knowingly provide a false and/or evasive answer to Answer 7 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Accessing Plaintiff’s own records should be in no way “unduly burdensome.” Further, Defendant reasonably believes that requested information may lead to admissible evidence. According to Missouri Rule of Civil Procedure 56.01 “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

19.Plaintiff did knowingly provide a false and/or evasive answer to Answer 8 of PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (attached as Exhibit C). Accessing Plaintiff’s own records should be in no way “unduly burdensome.” Further, Defendant reasonably believes that requested information may lead to admissible evidence. According to Missouri Rule of Civil Procedure 56.01 “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

WHEREFORE, Defendant ME prays this Court to enter its order dismissing Plaintiff’s Petition With Prejudice and enter its order of Default Judgment on Defendant’s Counterclaim as sanctions pursuant to Rule 61.01 of the Missouri Rules of Civil Procedure, as these sanctions are justified in response to Plaintiff’s unethical attempt to deceive the Defendant and this Court, and Plaintiff’s attempts to obfuscate the facts.

I plan to argue in court that deception and poor ethics have no place in an honorable court...blah blah. Let me know what you think, I'm on the fence about filing this.

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FL4answer58 Impressive 100+ postings

FL4answer58

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Why don't you ask the court for a couple million dollars as well.

Maybe such debt deception will bring New Yorkers a couple million dollars in court.

I’d guess, and I’m willing to bet, you are familiar with the article listed below. I am, however curious as to your reason for addressing yourself here in such debtors forum – your profile says something of the animosity here, and that of the individual behind it. While, many come for and others offer - ‘help’,... what is your objective?

Do you prescribe to the ideals of this type of debt buyer abuse, or while unpleasant, not criminal and outside the mainstream practices of honest collectors like yourself?

If so, or that of similar arguments of morality, would you care to open your records to investigative journalist to support your argument?

Keep in mind, with respect to admission, I ask not as a journalist but as a debtor and defendant of such a claim and deception brought about by, unregulated and assembly line [debt buyer] business models we see employed in our courtrooms today.

Re: Debt Deception, How Debt Buyers Abuse the Legal System to Preyon Lower-Income New Yorkers, May 2010.

Edited by FL4answer58
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Dr. Evil Impressive 100+ postings

Dr. Evil

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Posted (edited)
Maybe such debt deception will bring New Yorkers a couple million dollars in court.

I’d guess, and I’m willing to bet, you are familiar with the article listed below. I am, however curious as to your reason for addressing yourself here in such debtors forum – your profile says something of the animosity here, and that of the individual behind it. While, many come for and others offer - ‘help’,... what is your objective?

Do you prescribe to the ideals of this type of debt buyer abuse, or while unpleasant, not criminal and outside the mainstream practices of honest collectors like yourself?

If so, or that of similar arguments of morality, would you care to open your records to investigative journalist to support your argument?

Keep in mind, with respect to admission, I ask not as a journalist but as a debtor and defendant of such a claim and deception brought about by, unregulated and assembly line [debt buyer] business models we see employed in our courtrooms today.

Re: Debt Deception, How Debt Buyers Abuse the Legal System to Preyon Lower-Income New Yorkers, May 2010.

OP I will get to you in a second. FL, the OP doesn't appear to be in any type of debt-buying situation so other than your general disdain for the debt-buying industry and your personal experience with it, I don't really see the relevance to this set of facts. I am surprised you haven't mentioned the steps being taken in NY to curb debt buyer abuse, and to limit actions on consumer credit transactions. Dig into it, you may be surprised.

At any rate, if you wish to discuss this further, feel free to pm me.

OP: I wouldn't bother filing that motion, the response you got to your discovery demand was pretty complete and I can't see any court sanctioning them for giving them what you asked for. your response to their motion for summary judgment will give you an opportunity to point out your perceived deficiencies in their proof, or if you feel really confident, you can file a motion for summary judgment/motion to dismiss doing the same.

And a common misconception is that a signed agreement is necessary to prove a credit agreement. It's not, and that pile of statements should be more than enough to prove what is known as an "account stated" which is a quasi contract based on the actions of the parties.

So in closing, I don't really have any advice that would help you beat this thing, hopefully FL, and others will lend their expertise.

Also my apologies for my original comment which I think FL berated me for, although it was difficult to understand his post. :?

Edited by Dr. Evil
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Recovering Attorney 500 posts and hasn't been banned yet....

Recovering Attorney

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Go ahead and file it. You'll feel superb. After all, all these internet deinizens agreed with you that you are smart. Give 'em hell, Harry!!

But the judge will consider you a wiseguy. He'll deny your motion ( judges hate sanctions motions) and later, when there is a doubt, you will not get the benefit of it as he'll remember you as the guy with the ridiculous motion.

Listen, I deal with smart-a$$ collection lawyers all day who pull the kind of stuff you complaint of. Is it sanctionable? Hardly. You are better off, as another poster said, analyzing wht they sent and didn't send, and see where you can use that to your advantage. You'll do better in the long run if you keep your cool.

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colormeruby CIC Member

colormeruby

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HAHAHAAAH HAAAAAHA HAAAAAA @ DR. Freakin Evil HAAA!

I started to write a response to her/him on a different thread, and then never posted it out of RESPECT for the writer of the thread. From the responses on this thread, it is good to see I am not the only one who thinks that Dr. Evil is not here to help anyone but herself. I have a feeling Dr. Evil is the person you see at the Clerks desk with a stack of single "cookie cutter" copies of papers filing claim on 100's of people a week without any evidence to support. While the advice Dr. Evil gives, clearly has some informative value, her continued suggestions that lawyers shouldn't be held responsible for all the errors they make when they don't follow the rules of the court, makes me think she probably makes them all the time and really doesn't want you to be using that against her! All the best to you Dr, but I don't think you are on anyone's side but your own. Thanks to those who spoke out first.

And don't worry medicbone, you can get much support and help from the people here, just make sure you really understand the point of view of the adviser.

Thank you so much Dr. Evil for all your help, I don't know what this forum would do without you. And by that I mean don't you have somewhere else you need to be?
FLanswer= Do you prescribe to the ideals of this type of debt buyer abuse, or while unpleasant, not criminal and outside the mainstream practices of honest collectors like yourself?
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medicbone Member

medicbone

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I appreciate what little Doc had, and all that recovering said. Some of it was constructive. But I don't need the sarcasm. What I'm looking for is advice. Thank you all so much for what you've given. I'm leaning against filing this motion now, but still accepting opinions. :)

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FL4answer58 Impressive 100+ postings

FL4answer58

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Posted (edited)
Ps I got a motion to reconsider the motion to dismiss my counterclaim today. Will they give up?? I'm so tired of this. I've settled every account except for Cap One, because they won't negotiate. How do I make them go away?

2005 Missouri Code - § 509.310. — Motion for more definite statement or for a bill of particulars. Missouri Code All US State Codes

--------------------------------------------------------------------------------

509.310. A party may move for a more definite statement or for a bill of particulars of any matter contained in a petition, answer or reply which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleadings or to prepare generally for trial when a responsive pleading is not required. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed, or make such order as it deems just. A bill of particulars becomes a part of the pleading which it supplements.

http://www.moga.mo.gov/statutes/chapters/chap509.htm

--------------------------------

Now sanctions work ... after MTD.

Search Google and review --> misinterpretation of the dismissal rule

" Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result."

"1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative."

Also read:

http://findarticles.com/p/articles/mi_qn4180/is_20030904/ai_n10068882/

"Virtual non-response to motion for bill of particulars leads to,…"

AND:

Read 'capsonesucks' senior member post #598 Jan 2007

http://www.creditwrench-thetruth.com/

Edited by FL4answer58
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Dr. Evil Impressive 100+ postings

Dr. Evil

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Posted
HAHAHAAAH HAAAAAHA HAAAAAA @ DR. Freakin Evil HAAA!

I started to write a response to her/him on a different thread, and then never posted it out of RESPECT for the writer of the thread. From the responses on this thread, it is good to see I am not the only one who thinks that Dr. Evil is not here to help anyone but herself. I have a feeling Dr. Evil is the person you see at the Clerks desk with a stack of single "cookie cutter" copies of papers filing claim on 100's of people a week without any evidence to support. While the advice Dr. Evil gives, clearly has some informative value, her continued suggestions that lawyers shouldn't be held responsible for all the errors they make when they don't follow the rules of the court, makes me think she probably makes them all the time and really doesn't want you to be using that against her! All the best to you Dr, but I don't think you are on anyone's side but your own. Thanks to those who spoke out first.

And don't worry medicbone, you can get much support and help from the people here, just make sure you really understand the point of view of the adviser.

I wasn't aware that moral support is admissible in court to help the defense or prosecution of a case. Also, I guess I disagree that running to the judge every time you see a perceived procedural error by your adversary is a sound strategy. It is irrelevant to the actual facts of your case, and only proves that (a) you have too much time on your hands and think the court does as well, and (B) you have an internet connection.

OP I'm glad you appreciate all that recovering said, since he was echoing my advise.

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