Motion to Compel Discovery or Leave it Alone?

[SingleDadJames]

So I sent Discovery requests and got back the standard cut and paste nothing of substance responses from nidland $cumding.

I posted a summary of it in this thread: http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=304151. Basically I didn't get anything to prove the alleged debt is mine, how the heck they calculated the debt, or anything that actually shows they purchased and were assigned the rights to this SPECIFIC alleged debt even if it was mine. They either objected to my requests or said they've sent all the info they currently have in their possession and control and will be "ordering" more "media".

Massive and some others feel that I'm in good shape heading to trial..but there is no trial date set yet. I have NO idea how long it will be drawn out.

Some have suggested, and I was debating, on filing a motion to compel Discovery. I'm just not sure that is the right way to go. They DID respond to my requests...they just didn't give me anything of use.

I'm wondering if I should stay away from a Motion to Compel. I'm not sure I want the Court to FORCE them to go on a documentation fishing expedition anyway. Right now I think I have some valid arguments if we had to go to trial tomorrow.

I'm not sure whether they will actually send any additional documentation or if this is it. The alleged card was charged off about a year ago..so one would assume any OC CC statements would be readily obtainable. I suspect they'll just stall as long as possible to either try to get them or get me to fail to appear.

Instead of a Motion to Compel Discovery would it be better to file some sort of reply to their Discovery answers? For example I planned on listing the info they didn't provide, pointing out their evasive responses and stating why I feel some of their objections on relevancy are total BS since they are DEFINITELY relevant. Is this permitted/acceptable?

I'm thinking rather than filing a motion to compel I could file and serve the aforementioned reply politely asking again with a timeline. If they don't respond (I doubt they would since they are under no legal obligation to do so) I could then look into filing a motion to dismiss.

Any thoughts? If I did eventually file a motion to dismiss/msj etc. wouldn't it look better in the eyes of the Court if I'd make a second request for info I didn't get in Discovery before jumping to a MTD?

I'm not sure if it's even acceptable to file a reply to their Discovery answers but its seems like a more logical (and economical) solution for both the Court and I.

[ADSOFT]

SDJ,

From my background in contract law, anytime someone demands a bill from you they have to have A CONTRACTUAL OBLIGATION, which consists of three basic things.

1) A contract

2) Ownership of the contract

3) An Itemized bill (consideration). from the custodian of recods(witness).

From what you are saying they haven't even come close to proving that, so ball is in THEIR court.

I can't speak from court experience, but if someone was billing me and they didn't have those three things I would tell them to go pound sand. If I came before a judge I would just say, "your honor, I sent plaintiff discovery questions in a good faith effort to let the plantiff prove a contractual obligation with proper documentation, they failed to meet the first three elements. Upon proving that, I was ready to possibly negotiate a settlement if they would have proven a contractual obligation, since plantiff hasn't proven that I move to dismiss case as I have no obligation to the plaintiff".

Of course you should ask people with more court experience, they might come up with evidence at trial, but you might be able to block it if it wasn't presented in discovery ( I would ask some other members). So if they havent' at least produced the above three things, YOU MIGHT HAVE DONE ENOUGH WORK TO GET THE CASE EITHIER DISMISSED BEFORE OR AT TRIAL.

No contract, No Itemized bill, no proof of ownership of the bill, no testimony from coustodian of Records: .... NO DEAL.

I'm pretty sure on that!

Sorry for all the caps, they were ment to motivate and give confidence not to be difficult.

...hope that helps.

Comments welcome.

[SingleDadJames]

SDJ,

From my background in contract law, anytime someone demands a bill from you they have to have A CONTRACTUAL OBLIGATION, which consists of three basic things.

1) A contract

2) Ownership of the contract

3) An Itemized bill (consideration). from the custodian of recods(witness).

From what you are saying they haven't even come close to proving that, so ball is in THEIR court.

No contract, No Itemized bill, no proof of ownership of the bill, no testimony from coustodian of Records: .... NO DEAL.

I'm pretty sure on that!

They've made a half arsed attempt to "provide" or skate around these...

1. They dance around the "contract" which I'm assuming would be the OC CC agreement. They don't have to produce a signed CC agreement or CC application on an account stated. I believe all they have to do is prove the card was used. That being said they should STILL have to provide a copy of the agreement so we all know what the terms of the "agreement" are...correct? I suppose at some point I'll receive an impossible to read CC agreement in the mail but ONLY after they determine which of the various updated and revised agreements best suit their needs for this case. Then they'll send THAT one.

2. They've ATTEMPTED to provide proof of ownership of the alleged account and the rights and title to it. This currently amounts to nothing but a BS bill of sale that vaguely references a "pool" of charged off accoutnts. They've also provided a couple of affidavits..one from their employee who conveinently is the custodian of records that swears the records show I owe this much. and then one allegedly from the OC of the alleged account. Neither affidavit nor the bill of sale mention this alleged account specifically. No mention of my name...or this account number. If they prove anything at all ... all they prove is that on or about a certain date Nidland Scumding bought a crapload of charged off accounts from Crap1. Doesn't prove this debt is mine..or that it was even one of the accounts purchased.

3. I've seen no itemized bill (I've requested it several times and officially through Discovery). I've only seen an alleged balance due. The only testimony from the custodian of records would be their affidavit which simply says they have personal knowledge and reviewed the records pertaining to the alleged account and those records say I owe such and such amount.

I anticipate seeing a copy of a CC agreement and some copies of statements. I could be wrong but I don't see why the couldn't get them since this was charged off around a year ago. If I can see those maybe I can figure more out.

I'm not sure they'll ever be able to show me proof that they own THIS specific debt even if it was mine. Sure they have some paperwork showing they bought some charged off accounts..but none of it mentions this alleged account. My guess is the entire case will be based on whether or not the judge finds their bill of sale NOT mentioning any specific account sufficient proof.

[ADSOFT]

Are you being sued by the OC or some JDB?

[SingleDadJames]

Being sued by a junk debt buyer who allegedly bought this alleged debt from Crapital One.

[admin]

I'd file a motion to compel, but I'd come up with good reasons why their objections don't cut it.

[ADSOFT]

I'd file a motion to compel, but I'd come up with good reasons why their objections don't cut it.

Yep if it's a JDB I would do that too. If you feel that thier answers never establish a contractual obligation between you and the JDB w/ a custodian of records and proof they didn't breach (sent you all notices on raising rates), and of course a proper contract, then I would move on to motion to dismisss or MSJ.

However, keep an eye on the SOL, if you can delay filing the motion to dismiss after SOL then if they sell it another JDB you don't have to go through this again.

[ADSOFT]

SDJ,

Here a template for a MTD, this is what you want to work torward. I think what admin is saying is file a Motion To Compel. If you get no answer file something like this. You can find other examples in the stickys area.

Dismissal of complaint:

=====================

Superior Court of California

County of San Mateo

Superior Court

Case No. XXXXXX

Motion to Dismiss Complaint

Palisades Collections, Inc.

Plaintiff

Vs.

Josephine Debtor

Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

Comes now the Defendant Josephine Debtor, and files this Request for Dismissal of Complaint, as follows:

1. The Causes of Action specified in the complaint filed by the Plaintiff is insufficient as a matter of law.

The complaint does not set forth the True facts upon which Plaintiff seeks a summary judgment. The complaint should be dismissed.

2. Defendant received the Plaintiff's Complaint on or about December 1, 2005. Defendant answered the complaint on or about December 28, 2005.

3. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements or billing of said debts.

4. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

5. The Plaintiff has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the Plaintiff to collect the debt on behalf of the original creditor.

WHEREFORE, Defendant, Josephine Debtor, respectfully submits that the Court should dismiss the deny the Plaintiff's complaint, filed herein Palisades Collections, Inc. and prays for Dismissal of the complaint by the Plaintiff.

Defendant's Request submitted this ___________ day, of __________ 20__

We both seem to be going in the same direction on our cases.

Read #4 and become familiar with Coppola v. Arrow Financial Services, I haven't read it, but I think this guy was basically arguing what I've been saying, failuar to provide a contractual obligation: Contract, Itemized bill, proof of ownership, proper witness. I have to get familar with that too but at this time I will be filing discovery soon and have to get up to speed on discovery

Do you have any good links on preparing discovery?