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Went to first court date


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Well, I survived my first court date. This was a return date to answer complaint. The judge saw me coming with my folder of stuff and said "this is to answer the complaint only, I won't hear any other details today." I said fine, then I deny and request leave to conduct discovery (no discovery in IL small claims without leave of court). Judge asked my what I wanted, and I said since they attached absolutely NOTHING to their claim I wanted proof. Judge said "you have to file discovery" and I told him I am aware of that but needed leave to do so, which he granted. Then he kind of smirked at the OC's attorney and said "I know you are going to be on an easter egg hunt trying to come up with anything." He set date for status hearing for Dec 6 and told attorney this is specifically NOT for trial, it is to see if they were able to come up with anything for discovery and would be set for trial that date IF they had anything.

I intend to file MTD/MTC arbitration, but I assume I should proceed with discovery in the meantime. This is what I intend to ask for in discovery:

1. The Charge Agreement Plaintiff claims Defendant breached.

2. All documentation evidencing any goods and services purchased by Defendant on this alleged account.

3. All correspondence <OC> claims to have sent to Defendant, including but not limited to true and exact copies of all statements of alleged account.

4. Any documentation authenticating <affiant>'s claim that she has any personal knowledge of alleged account. Please include <affiant>'s dates of employment with <OC> and a job description of “Litigation Support Representative”.

5. A simple but complete accounting of how the amount claimed was calculated.

6. Proof of ownership of alleged debt, specifically that the alleged account is still the legal property of <OC> with all of the original creditor's rights and privileges intact.

7. Proof that <OC> has retained <law firm> to represent them in this action.

Any further suggestions? Being small claims discovery is supposed to be fairly short. I'd like to get this mailed and filed Monday (along with MTD).

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  • 2 weeks later...

OK, I went ahead and filed my request for documents. Final form:

Defendant in the above named case requests that Plaintiff, within 28 days of receipt of this request, produce the documents requested pursuant to the provisions of Illinois Supreme Court Rule, §214:

1. The Charge Agreement Plaintiff claims Defendant breached.

2. All contracts or agreements signed by Defendant.

3. All documentation evidencing any goods and services purchased by Defendant on this alleged account.

4. All correspondence Plaintiff and/or its designated agents claims to have sent to Defendant, including but not limited to true and exact copies of all statements of alleged account.

5. All documentation authenticating affiant <NAME> as a qualified custodian of records. Please include <NAME>'s dates of employment with <OC>, a job description of “Litigation Support Representative”, and the number of affidavits <NAME> signed on May 3, 2010.

6. All documents which affiant <NAME> referred to, relied upon, consulted or used in any way to determine the amounts claimed in her affidavit.

7. A simple but complete accounting of how the amount claimed was calculated.

8. Proof of ownership of alleged debt, specifically that the alleged account is still the legal property of <OC> with all of the original creditor's rights and privileges intact.

9. Proof that <OC> has retained <LAW FIRM> to represent them in this action.

Mailed copy to lawyer. Now we wait and see how they respond. I was going to file MTD today too but I was really nervous because this is all so new to me, so I filed the discovery request first to get one under my belt. It was pretty non threatening, my little courthouse has only two people in the circuit clerks office, the clerk himself and one assistant who are both really nice. It was the assistant who helped me today.

I want to stretch this out as long as I can, after the beginning of the year I hope to have some funds available to negotiate settlement with. The judge has already told OC counsel that it will be set for trial ONLY if they have complied with discovery by Dec. 6. Should I wait to see if they comply with the discovery request before filing my MTD/MTC? Or should I just go ahead and file it now and ask it be heard at the Dec. 6 date?

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Too soon for a MTD or a MTC. You do not have the actual contract so there is no way to know if you do have rights to arbitration or not so you cannot MTC until you know you have rights. As for a MTD, lets see what evidence they have first. You have until Dec 6th to see what their hand is and then trial will be another month which will get you into next year regarding putting together funds for a settlement.

And who knows, the plaintiff may end up dismissing this case themselves because you are too much of a PITA when they can go after easier targets. If that is the case, that would give you an up in the settlement negotiations if you choose to settle because they will know you are part of the 2% that actually fight.

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Too soon for a MTD or a MTC. You do not have the actual contract so there is no way to know if you do have rights to arbitration or not so you cannot MTC until you know you have rights. As for a MTD, lets see what evidence they have first. You have until Dec 6th to see what their hand is and then trial will be another month which will get you into next year regarding putting together funds for a settlement.

And who knows, the plaintiff may end up dismissing this case themselves because you are too much of a PITA when they can go after easier targets. If that is the case, that would give you an up in the settlement negotiations if you choose to settle because they will know you are part of the 2% that actually fight.

Yeah, that's what I was thinking. My only concern is inadvertently waiving the right to arbitration from waiting too long, but I haven't found anything that points to that in Illinois case law.

The judge specifically told the attorney to get me the requested documents "with enough time for her to review them" before the next court date. If they don't produce anything can (should) I ask for dismissal for deficiency of claim? Their original claim was deficient, by Illinois RCP they were supposed to attach the written instrument the claim was based on to the original complaint, which they did not. The judge gave them the opportunity to produce it in discovery.

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Inthesticks, I need your advice since appears that we're from the same state, I got summons by Midland Funding, but the summons says, "This is an Arbitration case"

I been ask to be at court on the 22nd, what do I need to bring along, they are claiming that I have a cc from BoA, which i never did, unless BoA bought that account from another cc. Do I need to file anything before my court date?

Thanks

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Inthesticks, I need your advice since appears that we're from the same state, I got summons by Midland Funding, but the summons says, "This is an Arbitration case"

I been ask to be at court on the 22nd, what do I need to bring along, they are claiming that I have a cc from BoA, which i never did, unless BoA bought that account from another cc. Do I need to file anything before my court date?

Thanks

Sorry 7478777 but the only experience I have is with this one small claims case. Your summons should tell you exactly what you need to do. It will either say you have 30 days to answer, which means you need to file an answer, or will give you a return date. Start reading up on Illinois Supreme Court Rules and Illinois Code of Civil Procedure. Oh, and maybe Illinois Uniform Arbitration Act, too.

And Cook County Circuit Clerk has a good website.

I'd dump # 7

Too late admin, I already filed. But for future reference, what's wrong with #7?

Edited by inthesticks
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