motion to compel problem

[TxnLady]

I've got a question for you guys that hopefully someone can answer. My apologies in advance for the lengthy explanation. And since I know it is probably relevant to know, my suit is in the state of Hawaii.

I'm being sued by Discover and have yet to see one stitch of evidence from the plaintiff's attorney. I made my first appearance in court and denied. Ordered by court to mediation. Have since responded to plaintiff's request for admissions with denials and sent request for discovery. Plaintiff's attorney answered my request for documents but with nothing more than by calling my requests unclear and calling for attorney/client privilege. So again, I got no proof.

After sending a good faith letter asking to please supply proof of debt and again being denied, I filed a motion to compel. In response, plaintiff's attorney filed a motion to compel admissions stating that I didn't answer in good faith.

So we show up in court to have both motions heard and judge requests that plaintiff's attorney make copies of his "proof" and supply them to me. I tell the judge I did answer in good faith and that I can't know if the debt is mine without seeing his proof. Judge schedules a status hearing and I think that everything is tabled until such time that I receive Discover's proof.

Now four days later I receive from Discover's attorney an "order granting plaintiff's motion to compel discovery" stating that the judge has granted his motion to compel and that my answers will be deemed admitted since I didn't answer in good faith! What? I never heard of any of this in the courtroom.

So now, what to do? I know if the answers are deemed admitted I'm dead in the water. But I'm at a loss here. Can I object to this??? Any suggestions???

Thanks again for any input!!!!

[BV80]

If it were me, I'd call the clerk of court's office and make sure there actually was "order granting plaintiff's motion to compel discovery". I'm not saying there wasn't an order, but you want to be sure. Collection attorneys are as sleazy as they come and will stop at nothing to try to intimidate, bully, and frighten.

Hopefully, some more knowledgeable members will be able to help you with the rest of your post.

[RebelLady]

I agree with BV80 on this.

In one of my cases, the opposing attorney sent me a copy of a Motion he had filed with the court. It wasn't signed but did have a space at the bottom for the judge to sign. Several days later, I received a copy of the same order from the court and it was signed by the judge.

Just because someone has filed a Motion, doesn't always mean its been agree to by the court. With some Motions, the opposing side has up to thirty days to file objections to the Motion before the judge will even look at it.

Make sure this isn't just a scare tactic or meant to intimidate you. Check with the clerk to make sure this Motion has been filed. If it has been filed, make sure its been signed.

RL

[FL4answer58]

Motion for Clarification and set for re-hearing. Ask judge to review and be prepared to argue the compels.

In your motion for clarification include defendants motion to vacate Plaintiffs motion to compel - asking judge to set timeline for both parties to answer discovery.

Check your state RCPs for:

"The court, on its own motion or on the application of a party, may extend or otherwise modify"

"There are no provisions of the Texas Rules of Civil Procedure regarding the timing of opposition or response"

"Reasonable Notice"

"Upon reasonable notice to all parties and affected persons, a party may move for sanctions or an order "

Required Pre-Filing Conference With Opposing Counsel

"Attorneys are expected to cooperate in the discovery process, and must file a certificate with every discovery motion"...

1. That a reasonable effort has been made to resolve the dispute without the court's intervention;"..

2. That that effort failed

Notice and Hearing Required

"The party that has failed to comply with discovery requests or orders is entitled to notice "

Edited October 10, 2010 by FL4answer58

[TxnLady]

Thanks for the advice, everyone.

Spoke with the court today, and the Plaintiff's motion was indeed granted. I'll look into the Motion for Clarification that FL4 mentioned. If anyone else does have any other thoughts, they'd be appreciated.

[FL4answer58]

Thanks for the advice, everyone.

Spoke with the court today, and the Plaintiff's motion was indeed granted. I'll look into the Motion for Clarification that FL4 mentioned. If anyone else does have any other thoughts, they'd be appreciated.

Any update?

[Tex_Tea]

I have read some Texas cases and guides on discovery, but have never come across "good faith" before.

Discovery can be super tricky and hangs up a lot of people. You must respond to admissions on time and in accordance with the Texas Rules of Civil Procedure: admit, deny or object. I think the TRCP may even define the nature of the objections. So, read them Rules good before responding or get a good debt defense attorney.

Sorry to hear about your situation. Curious to know more about the "good faith" issue, though.

At least, with CC Debt in Texas, they can't touch your pay with a judgement if that's what you end up with. They can garnish bank accounts though!

Edited October 19, 2010 by Tex_Tea