Wells Fargo HELOC Lawsuit - Request for Admissions

[gwenny]

Hi all,

I'm completely new poster, here. I've been lurking for quite some time but only just created an account so that I could ask a question.

Our situation in a nutshell: HELOC taken in 2005 now at $90k. Lawsuit filed by attorney in my state (WV) on behalf of Wells Fargo, the lender. We took out the HELOC to pay off some bills and help us get by till I could go back to work FT in September 2007. I'm STILL looking. Not a good time for a stay-at-home-mom of 3 boys to try to get back into the working world! I've been a SAHM since 1996.

Anyway, hubby's 80 mile per day commute, + outrageous gas & food prices + cutback in overtime = broke people nipping at their HELOC wayyyyy too regularly.

Here we are. Wells has sued us and I have gone through about 20 attorneys in 5 states (maybe 6), travelled 8 hours, and paid $400 for a 'retroactive home appraisal' and still do not have an attorney. On Monday, I need to deliver my Discovery Requests, Response to Request for Documents, Interrogatories, and Request for Admissions to the courthouse. We live in an antiquated community that doesn't have any of its court information online. So I've been at this for a week, straight, trying to get everything together and I'm still stuck.

I don't know how to answer the Req for Admissions. I guess I don't even really understand them; can they just fry us right there?? Seems like there's no point bothering if, once I answer affirmatively, I am being issued a judgement.

Here are the Requests for Admissions:

REQUEST FOR ADMISSIONS

:

1) That HUSBAND is liable for any judgement that arises out of .... lawsuit.

2) Same as above, just with my name

3) That HUSBAND executed the Wells HELOC agreement dated Oct. 15, 2005 and attached as Exhibit A.

4) Same as above, just with my name

5) That the Well HELOC attached is true and accurate copy of the Account Agreement and line of credit agreed to by the parties.

6) That the defendants received the benefit of Wells HELOC account.

7) That although the Defs have made partial pmts on ... acct, there is still due and owing and unpaid to the plaintiff, $92,xxx.xx together with interest at rate of 24.40% from date of chargeoff.

I am simply LOST. Can someone please offer some guidance on this? Again, I need to know how to answer and also what happens to us once I've answered. I think I've made some really strong Discovery requests of Wells that basically shows that, YES, we were stupid for taking out the loan, but WELLS was equally as stupid giving it to us. With the addition of the HELOC on top of our 1st mtg, the total was more than 6x my husband's salary.

Ultimately, I think we'll end up filing Chap 13. If I understood what I was doing, I'm pretty sure we meet criteria on means test. BUT I am very hesitant to do this as of now because of trying to find a FT job. So I'm just trying to drag this case out a little so that I can see if we can

1) Come to some agreement w/out filing bk

2) Get a job so that I don't have to worry about a fresh pile of BK when they're checking me out.

Thoughts, links appreciated.

Thanks in advance for any and all suggestions you can offer.

~gwenny

[skippy1960]

I am not from your jurisdiction and don't know your rules of civil procedure, nor am I an attorney or law professional but here are a couple of thoughts. In my area you have to respond or the admissions are deemed admitted. I assume it is the same in WV. This means you have to formulate a response to these questions. You should be looking for a way to deny the admission, based on the question being asked incorrectly, but you have to be cognizant that this is a court of law and you don't want to out right lie in your response.

This means the exact language of the question is very important, but given that lets look at what you have supplied.

1) That HUSBAND is liable for any judgement that arises out of .... lawsuit.

2) Same as above, just with my name

A possible response might look something like this for #1 and #2.

Defendant Objects, the request for admission calls for a legal conclusion to be adjudicated by a competent court of jurisdiction, the Defendant is not capable or competent to form or offer a legal opinion. Defendant Denies but reserves the right to amend answer at a later date when an adjudicated legal conclusion has been given by a court of competent jurisdiction.

So you see that I have Objected to the question needing a legal conclusion, this assumes the question you have listed is worded exactly to mean what you wrote.

On this site in "Samples and Motions section I believe there are some examples of answers to requests for admissions. You should review some of these to get further ideas.

You may want to check the contract and see if it has an arbitration agreement and read the arb section of this forum. It may offer you some time and get you out of the court system. At the end of the day I would find a good BK attorney and know for sure what my opitions are exactly and when the right time to use this if needed....

Good Luck I hope others will offer some addtional ideas and thoughts on how to answer.

[gwenny]

skippy1960: I just can't thank you enough for your thoughtful and well-laid out response. I should have clarified that I was taking the Request for Admissions questions precisely from the paperwork, with the exception of replacing the word HUSBAND for my husband's name.

I hope you don't mind, but I have copied the section relating to Requests for Admissions from the WV Rules of Civil Procedure. Unfortunately, my eyes glaze over as I'm reading it so I'm not sure exactly how to take it. Are they saying that I cannot object??

Rule 36. Requests for admission.

(a) Request for admission. — A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(

set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that the party has made reasonable inquiry and that the information known or readily obtainable by the party’s is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37©, deny the matter or set forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

(

Effect of admission. — Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining that party’s action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.

And this is what the contract says in the arbitration section:

RESOLVING DISPUTES - ARBITRATION

I agree to contact the Bank immediately if I hava a problem with one of my accounts or loans with the Bank or a service the Bank provides to me. Often a telephone call will resolve the matter quickly and amicably. However, if the Bank and I are not able to resolve our differences informally, I agree that any dispute between me and the Bank, regardless of when it arises or arose, will be settled using the following procedures.

I UNDERSTAND AND AGREE THAT THE BANK AND I ARE WAIVING THE RIGHT TO JURY TRIAL BEFORE A JUDGE IN A PUBLIC COURT. FURTHER, I WILL NOT HAVE THE RIGHT TO PARTICPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY DISPUTE SUBJECT TO ARBITRATION.

DISPUTES

A dispute is any unresolved disagreement between the Bank and me that relates in any way to accounts, loans, services or agreements subject to this Arbitration provision. It includes any claims based on broken promises or contracts, tort (injury caused by negligent or intentional conduct), breach of fiduciary duty or other wrongful actions. It also includes statutory, common law and equitable claim. A dispute also includes any disagreement about the meaning of this Arbitration Section and whether a deisagreement is a "dispute" subject to binding arbitration as provided for in this Arbitration Section. No dispute may be joined in an arbitration with a dispute of any other person or arbitrated on a class action basis. Furthermore, I agree that any arbitration I have with the Bank shall not be considered with any other arbitration and shall not be arbitrated on behalf of others without the consent of both me and the Bank.

FEES AND EXPENSES OF ARBITRATION

Arbitration fees shall be determined by the rules or procedures of AAA, unless limited by applicable law. I understand that the AAA will determine the fees applicable to any arbitration that may be filed. If the applicable law of the state in which I opened my account limits the amount of fees and expenses to be paid by me, then no allocation of fees and expenses to me shall exceed this limitation. Unless inconsistent with applicabel law, me and the Bank shall each bear the expense of our own attorney, expert and witness fees, regardless of whether me or the Bank prevails in this arbitration. If either the Bank or I fail to submit to binding arbitration following a lawful demand, the party who fails to submit shall bear the costs and expenses incurred by the party compelling arbitration.

BINDING ARBITRATION

Binding arbitration is a means of having one or more independent third parties resolve disputes without using the court system, judges or juries. Either me or the Bank may submit a dispute to binding arbitration at any reasonable time notwithstanding that a lawsuit or other proceeding has been commenced. The American Arbitration Association (the AAA) will administer each arbitration, including the selection of arbitrators, pursuant to the commercial arbitration rules of the AAA. Each arbitration will be governed by the provisions of the Federal Arbitration Act (Title 9 of the United States Code) and, to the extent any provision of that Act is inapplicable, unenforceable or invalid, the laws of the state governing the relationship between me and the Bank about which the dispute arose. To find out how to initiate arbitration, I can simply call any office of the AAA.

EXCEPTION - CERTAIN REAL PROPERTY COLLATERAL

Notwithstanding contrary provisions herein, no dispute shall be submitted to arbitration if the dispute concerns indebtedness secured by real property and if arbitration of the dispute would preclude enforcement of a mortgage, lien or security interest securing such indebtedness unless the holder of such mortgage, lien or security interest specifically elects in writing to proceed with the arbitration.

RIGHT TO OTHER REMEDIES PRESERVED

Neither this Arbitration section nor the excercise of any of the rights the Bank and I have under this Agreement, shall stop me or the Bank from excercising any lawful rights either me or the Bank has to use other remedies available for the purpose of (1) preserving, foreclosing, or obtaining possession of real or personal property; (2) exercising self-help remedies including setoff and repossession rights; or (3) obtaining a provisional or ancillary remedies such as injunctive relief, sequestration, attachmnet, garnishment, or the appointment of a receiver from a court having jurisdiction. (continued next post)

[gwenny]

MISCELLANEOUS

The AAA - the arbitrator - and the parties - the Bank and I - shall, to the extent feasible, take any action necessary to assure that an arbitration proceeding hereunder is finished within one hundred eighty (180) days of the filing of the dispute with the AAA. Arbitration proceedings shall be conducted inthe state in which I reside, at a location determined by the AAA. All statutes of limitations applicable to any dispute shall apply to any arbitration between the Bank and me. If a claim is properly filed in a small claims or justice court and if the small claims or justice court has jurisdiction to resolve the claim, including all cross-claims and counterclaims, then the party that demands arbitration and removes the claim from the small claims or justice court shall pay the administrative fee of the AAA and the fees, costs and expenses of the arbitrator.

:: deep breath ::

As I read that, I vascillate between being excited that "ooh, I can try this" to "ohhhh .... nooooo ..... I CAN'T." Can you (or anyone) help me process this information?

Thanks, again...

~gwenny

[skippy1960]

Here is the section need to pay attention to in the civil procedure you posted.

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that the party has made reasonable inquiry and that the information known or readily obtainable by the party’s is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37©, deny the matter or set forth reasons why the party cannot admit or deny it.

So your jurisdiction gives you alot of latitude, I would find out what rule 37 © says and them form the rest of the responses, #3 and #4 you could use a form of the one already given. "It calls for a legal conclusion"

The underlined portion basicly says "I deny based on lack of information or knowledge, I have made resonable inquiry and the information known or readily obtainable is insufficient to enable me to admit or deny". This is pretty broad, but be careful when it relates to documents that you have signed. So when you think about #3 and #4. The word executed has mutiple meanings and you are a simple pro se defendant, farily easy to make the case of I am not a legal professional had they used the word "signed", you would be in a difficult spot.

Look for additional examples once you have all your responses then post them and ask for assitance. It is always best to ask for help, do the work and put your work on the board. Then folks can give you opinion on what you might change to improve the responses....

[skippy1960]

Here are a couple of clarifications you would need to answer to understand if Arbitration is available. Doesn't mean it something you should do, but certainly a couple of hurdles to discuss to see if it is an option for you to consider.

Q1- Is the HELOC secured by the property or simply a line of credit in which they considered your property and issued the line of credit.

The reason I ask because arbitration isn't available if the LOC is secured by the property, based on the contract information you typed in your post.

See Below-

EXCEPTION - CERTAIN REAL PROPERTY COLLATERAL

Notwithstanding contrary provisions herein, no dispute shall be submitted to arbitration if the dispute concerns indebtedness secured by real property and if arbitration of the dispute would preclude enforcement of a mortgage, lien or security interest securing such indebtedness unless the holder of such mortgage, lien or security interest specifically elects in writing to proceed with the arbitration.

Q-2- Did you recieve letters from Wells and Attorney giving you the chance to ask for validation of the debt and had information related to your rights regarding the collection of this debt?

If you did this would help determine and prove how they viewed this debt, meaning did they view it as a consumer debt issue, which is important to the rule that could apply if you chose to force arbitration on them.

Look forward to your answers to these questions.

[gwenny]

So your jurisdiction gives you alot of latitude, I would find out what rule 37 © says and them form the rest of the responses, #3 and #4 you could use a form of the one already given. "It calls for a legal conclusion"

This is Rule 37©:

© If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26© and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Additionally, this is Rule 26©:

C) The discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.

I do have another question relating to #s3 & 4; not sure if I've found a loophole or not. The date of my signature is different than the date of husband's by one day. I wrote the 14th & he wrote the 15th. Loophole to give the answer as I note in the following paragraph???? I don't recall whether 1 line was missed and hubby had to return the following day OR if it actually took place on the same day & was just an error that someone let slip through?

So, perhaps I could use the following to answer both #s 3 & 4:

Defendant Objects, the request for admission calls for a legal conclusion. I have made reasonable inquiry and the information known or readily obtainable is insufficient to enable me to admit or deny. Defendant Denies but reserves the right to amend answer at a later date when an adjudicated legal conclusion has been given by a court of competent jurisdiction.

Presuming you think it may be worthwhile (and keeping me out of jail for lying to the court!), this is what my answers currently look like:

1.) Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

2.) Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3.) Defendant Objects but reserves the right to amend answer at a later date when an adjudicated legal conclusion has been given by a court of competent jurisdiction. I have made reasonable inquiry and the information known or readily obtainable is insufficient to enable me to admit or deny.

4.) Defendant Objects but reserves the right to amend answer at a later date when an adjudicated legal conclusion has been given by a court of competent jurisdiction. I have made reasonable inquiry and the information known or readily obtainable is insufficient to enable me to admit or deny.

5.) Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

6.) CLUELESS, HERE.

7.) Defendant Denies but reserves the right to amend answer at a later date when an adjudicated legal conclusion has been given by a court of competent jurisdiction. I have made reasonable inquiry and the information known or readily obtainable is insufficient to enable me to admit or deny.

Any thoughts on #6?

Thanks, again.

[gwenny]

Q1- Is the HELOC secured by the property or simply a line of credit in which they considered your property and issued the line of credit.

Technically, it is secured by the property but we are underwater enough that WF would not get anything if we sold the house. All would go to the 1st. The judge even asked during our scheduling meeting WHAT WF was suing for; were they trying to foreclose? The attorney knew zilch about our case and basically said so. But ... to answer your question, I suppose it would be considered that the loan was taken out with the home in mind as equity.

Q-2- Did you recieve letters from Wells and Attorney giving you the chance to ask for validation of the debt and had information related to your rights regarding the collection of this debt?

Great question. We did receive reminder notices of the past due account from Wells at which time I maintained contact with them. When they finally charged-off the account, I talked to them and they just said to 'wait till you are contacted.' However, the next contact we received was a knock on the door from the Sheriff's office. Included in the complaint was an Exhibit which was a letter supposedly sent to us in October from the attorney's office - but we never received that or we would have been calling them, again. If WF keeps good phone notes, they will have the information on file that I called them TWICE after charge-off to obtain information.

Which brings me to my Request for Discovery questions. I am pretty pleased with them and wanted to share in the hopes that it will help someone else.

INTERROGATORY NO. 1: Identify by name and address, each and every witness who you expect to be called at the trial of the captioned matter. If you are unable to identify at this stage of the litigation who you will call as your witness, state the name and address of each and every person having any knowledge, however slight, of any fact having any degree of relevance or materiality to the Plaintiff’s claims or to the defenses thereto and set forth a summary of the knowledge of each such person.

ANSWER:

INTERROGATORY NO. 2: State the name, business address and job title of the officers, employees or agents answering or providing any information used to answer each Interrogatory.

ANSWER:

INTERROGATORY NO. 3: : Please identify the person(s) involved in the underwriting of the subject loan. “Underwriting” refers to any person who made representations, evaluations or appraisals of value of the home, and ability of the borrower to pay.

ANSWER:

INTERROGATORY NO. 4: Does Plaintiff provide training to new employees involved in the collection of consumer accounts?

a. if so, describe the training content, audio or visual materials used, timing and duration.

b. if so, identify each person involved in providing such training.

ANSWER:

INTERROGATORY NO. 5: State the type of traceable mail by which counsel, XXXXXXXXX, acting on behalf of A Group of Four Liars, L.C. issued alleged NOTICE PURSUANT TO FAIR DEBT COLLECTIONS ACT, Exhibit C in Complaint.

ANSWER:

INTERROGATORY NO. 6: Describe fully any system(s) Plaintiff maintains or operates to record contacts of its employees with consumers or third parties in connection with the collection of consumer accounts, and Plaintiff’s policies for operating such a system.

ANSWER:

INTERROGATORY NO. 7: : List and explain all abbreviations and codes, letters, numerals, or symbols regularly used by Plaintiff in its records or collection activities.

ANSWER:

INTERROGATORY NO. 8: State the date, time, and exact content of each and every conversation which you or your agents, representatives or employees had with the defendant, in any way pertaining to the occurrences complained of in this lawsuit.

ANSWER:

INTERROGATORY NO. 9: If you will rely on any documents at the trial of this case, identify each such documents, as well as the person with custody of each such documents or a true copy thereof.

ANSWER:

INTERROGATORY NO. 11: If Plaintiff retains attorney(s) to file lawsuits to collect consumer accounts:

a. Identify Plaintiff’s employee(s) who make(s) or approve(s) the decision to file suit or requests an attorney to file suit.

b. State what criteria and policies are used in deciding whether to sue (e.g., minimum dollar amount, debtor’s assets, defenses to claim) and how those criteria and policies have changed since 2005.

ANSWER:

INTERROGATORY NO. 12: : Identify by caption, court, civil action number and result all litigation filed against the Plaintiff alleging violations of the Fair Debt Collection Practices Act.

ANSWER:

INTERROGATORY NO. 13: State the job title, business address and telephone number, of Lady That Signed Affadavit and copies of all documents or records she keeps in the normal course of business regarding this case as well as her complete personal knowledge regarding this account.

ANSWER:

Edited October 3, 2010 by gwenny
Removed identifying information

[skippy1960]

I think you have grasped the answers to the plaintiff's admissions as for as number 6 is concerned-think of it this way. The word "benefit" is very broad.

So answer could be- Defendant Objects, the admission is overly broad and ambiguous as to benifit, defendant lacks knowleged blah blah blah...

You should be able to fill in the gaps for 6 with this.

Your interog's are fine just understand and don't be real hopeful, just as you have spent a great deal of time not answering their questions, they will do the same. They are fairly direct so you may get some information, but don't be disappointed with what you recieve. In #13 remove the word "lady" and insert the word "affiant", your professionalism was pretty strong up till the last one:).

Finally, I think you could resonably demand arbitration for the following reasons.

You said they charged off the account, which means that it is unsecured. If your home secured the loan then you would be in a foreclosure situation where they would be selling the propery to get the 90K. Although, that won't work now will it because as most you and we are upside down on loan to value.

Because this is an unsecured loan it is a consumer matter and you would be operating under the consumer rules, which is good.

Q- The LOC is for 90K have you used the entire line or is it less than that?

The reason I ask is due to the fee structure for AAA, over $75K, they move to a different fee structure. Once you provide the answer I will give you some final things to consider regarding arbitraiton.

Be sure to meet the time line of answering the plaintiffs, request for discovery. If you are considering arbitration don't file your request for discovery for a few more days, as I think you said you needed to get the answers in by Monday.

[gwenny]

Skippy: My middle son had a double header in baseball today but have been dying to get back to see if you had any further thoughts about our paperwork. As I had hoped, you did not disappoint.

I should have clarified; where I noted Lady Who Signed Affadavit, I actually have the woman's name there. I just removed it for the anonymity factor.

Regarding the amount of money; all $90k has been used. Sure wish I had told the guy who I spoke with on the phone the day this was all finalized to shove it when he said, "ohhhhhh, take more than the $40k! You've got $120k!" I'm sure I couldn't get Wells to turn that recording over.

Regarding the timeline, I am quite nervous on this front but I don't think I'll be in too bad shape. I hope. You see, the scheduling order we received from the court stated that October 1 was the date that we were to respond on or before. However, WF's attorney's office didn't even write up my information till Aug 31st when the order stated that they were to serve their Request on or before Sept 1. I didn't receive it in the mail till about the 4th or 6th of September. The WV Rules of Procedure state that I have 30 days from the time the paperwork is 'served' upon me to respond; it also mentions an additional 3 days for mailing beyond that. I didn't receive my Request from attorney in mail till either the 4th or 6th of September by US Mail.

Finally, I wanted to clarify; you mentioned holding off on submitting my Request for Discovery. The scheduling order said that I have to submit my fact witnesses and discovery requests on or before October 1st. Wouldn't I hurt myself by holding the discovery requests later than tomorrow?

I hope I have answered your questions well enough so that you can continue to assist. I just can't tell you how grateful I am; there aren't any words, but (as my oldest son says), there are cookies!!

[skippy1960]

Sounds like you will need to file both answers to plaintiff and your own request for discovery so as to be in compliance with the court scheduling order.

Part of the reason to consider holding off on your request for discovery is to give you a bit of time to decide on Arbitration. But it sounds like you just recieved the exhibits from the plaintiff, meaning a copy of the contract. So should you decide to go the arb route you should be OK. Different courts decide when you have litigated the case for a period of time, they find it prejudical to the other side if you pull the arbtration card.

I will write a second post regarding arbitration and give you some pros and cons for you to consider and how the stratgey can work. In the end you have to be realistic and understand that $90K is a big number and in the end they apparently have a signed contract. So whether you are in court or arbitration slowing things down and buying some time maybe the best you can hope for. Unless I have missed something in all the posts you have made so far?

[skippy1960]

First Arbitration is not a magic bullet and by some miracle this will all go away, but it is a strategy to consider. The basics of why it might be considered are as follows-

Court is a procedural nightmare for pro se defendant, with lots of technical issues around timing and filings. We are usually out gunned on these procedures and technicallities as the attorney for the other side operates in them all day every day and knows how to use them to their advantage. Arbitration is much less formal and the rule book is much simpler to operate under. So most who have gone this way find it less intimdating.

Generally speaking arbitration is best used on a consumer debt of 10K or less, with optimum success at $5K or less. The reason being is that most arb clauses and arb forums were set up to have the fees for arbitration paid for by the Company or Bank in and in many cases these fees are not recoverable depending on the contract and arb forum rules even if the consumer loses. So if you consider the cost the Company or Bank might have to pay in arbitration to the forum and fees for attorney, it could cost them more to get the win than they could collect. Then once they win in arbitration they have to back to court to confirm the award and get their judgment.

This all takes time and money versus they file suit, defendant answers suit, they file Summary Judgement and win, confirm judgement in court and garnish wages or lein propery.

On the down side- Court offers mutiple appeals and lots of rules and technicalities assuming you know all those rules and procedures and have the money to file appeals. Most Arb clauses have an appeal process also, but in most cases the consumer has to pay a good part of the cost. This is important to know because an arbitrator can cost up to $500 per hour to hear your case. This is great when the company or bank is paying in the initial hearing, but when the consumer has to pay half or all of a 3 person arbitrator panel at $750 per hour to review a case it gets expensive fast.

You should read the arb section of this board and others, there is greater detail about the overall strategy at the following link-http://www.debtorboards.com/

Do your own research and decide what is best for you and what your goals are for the suit itself. Are you trying to buy time, are you trying to settle, is it possible to win? When I first arrived at this board I was trying to extend the time till judgement and or soften them up to a place I could negociate. As I have been her for a while I have a strategy for each debt I defaulted on and they are a bit different depending on if the OC or JDB has the debt and the amount of the debt.

First case was lost to SJ, didn't know what I was doing and trying to learn civil procedure, 1 case dismissed in court with out predjudice, 1 case in arbitration and 2 cases in court with legal representation. So as you can see I don't have all my eggs in one basket.

[gwenny]

Again, Thanks so much, skippy.

Getting boys to school so just time for two quick questions before I sit back down, later, to finalize my documents.

In our scheduling order, mediation has already been scheduled for Dec. 31st. Is that different than arbitration? I've tried to see if I can find any posts or other websites that address that question but have not been able to do so. That being said, I am generally a pretty lousy Google'r.

Secondly, what do you know about changes to the schedule? I would like to either accelerate or delay the mediation meeting to coordinate better with school schedules as well as potential out-of-town trip.

Thank you for all of your help - not just for me but for the many, many others that I see you have helped or are helping.

~gwenny

[skippy1960]

Again, Thanks so much, skippy.

Getting boys to school so just time for two quick questions before I sit back down, later, to finalize my documents.

In our scheduling order, mediation has already been scheduled for Dec. 31st. Is that different than arbitration? I've tried to see if I can find any posts or other websites that address that question but have not been able to do so. That being said, I am generally a pretty lousy Google'r.

Secondly, what do you know about changes to the schedule? I would like to either accelerate or delay the mediation meeting to coordinate better with school schedules as well as potential out-of-town trip.

Thank you for all of your help - not just for me but for the many, many others that I see you have helped or are helping.

~gwenny

There are typically 3 different types of mediation/arbitration-

Court ordered mediation- is an attempt to find settlement options and should be non-binding.

Corurt ordered arbitratoin (sometimes refered to as ADR) Alternative Dispute Resolution- This program is run by the court system and can become binding with recomendation for judgement. A judge still has to approve the decision and you would have a chance to argue against the approval of an ADR order.

Private Arbitration via Contract- Outside court system run be private for profit or non-profit business.

As far as scheduling you will need to contact the court clerk and may have to file a motion for the date to change as presently it is court ordered. Your best bet is to get approval from plaintiff's attorney on a new time and then contact court.

Good Luck

[gwenny]

I would like to share my answers to #s 6 & 7 and would appreciate whether you feel they will be acceptable in court?

#6 reads: The Defendants, XXXXXXXXX and XXXXXXXX, received the benefit of the WF SFit HELOC account.

ANSWER: 6.) Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained herein. Benefit is overly broad and ambiguous.

#7 reads: That although the Defendants, XXXXXXXX and XXXXXXX, have made partial payments on said WF SFit HELOC, there is still due and owing and unpaid to the Plaintiff the sum of $92,xxxx.08 together with the interest rate of 24.50% from the date of charge off, pursuant to the terms of Exhibit A.

Note: Exhibit A is a copy of the original loan documents. I believe you had questioned that earlier in our conversation and I failed to respond.

ANSWER: 7) Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation. Defendant has made reasonable inquiry and the information known or readily obtainable is insufficient to admit or deny.

Regarding #7: do you feel it is necessary for me to acknowledge that Exhibit A is attached? It is 11+ pages of legalese and includes many sections discussing interest rates and various charges. I thought that it may perhaps help look as though I am not making random "I dunno" arguments?

Thanks, again.

~gwenny

Edited October 4, 2010 by gwenny
Formatting for clarity and readability

[admin]

Is WV a community property state? If not, if your husband is not on the note, then he is not responsible for the loan.

[gwenny]

From what I am reading, no, WV is not a community property state. However, both of our names appear on the lawsuit anyway.

Thank you for listening.

~gwenny

[skippy1960]

Less is more in this case and should leave it out. Only you can see the exhibit and if it doesn't have the exact amount they call out in their admission then you could deny out right. I assume exhibit is a copy of your original loan doc, so how would it have the final balance on it from 2005 when you allegedly sign it? If this is not accurate then go with what you have.

[gwenny]

We had a power outage Thursday afternoon, while I was responding to the Interrogatories. Evidently, I never saved them with a proper name and never completed them. Now, I am scrambling to answer one last question. Can I meekly request assistance??

Interrogatory No. 5) Set forth in complete detail all information upon which you base your denial to any question, or any and all reason why you were unable to admit or deny any question contained in the Plaintiff, WFB's, 1st Request for Admissions to Defendants.

Those are the admissions we worked on, together. I believe I stated the reason for my pleading in each response. How would I answer this one? I was thinking that "Defendant objects interrogatory as seeking information already in the plaintiff’s knowledge, possession, custody or control" may be appropriate??

[skippy1960]

Yes they are just fishing for information use what you have written, you gave them the detail in each answer.