Sued by Chase/Zwicker in GA HELP

[GAmatters]

I live in Georgia and was served a summons from Zwicker & Assoc. representing Chase Bank USA. I am being sued in State court for over $9,000. I have already looked into bankruptcy and know that I cannot afford to file a chapter 13. When I received an initial letter from Zwicker prior to the summons I was immobilized with fear and I did not understand the importance of requesting a DV. With the help of this Forum, I barely answered the summons and simultaneously submitted a MTD within the 30 day window allowed in GA.

Question #1: I thought a hearing would be set for a decision on the MTD. But, as Mimi-to-8 pointed out, GA Uniform Rules State Court Rule 6.2 Hearing “unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motion for new trial and motions for judgment notwithstanding the verdict…”

Can someone tell me what should happen next on the MTD? And, is the MTD tied into Discovery requests and/or answers?

Question #2: I thought discovery requests were not allowed until a decision on the MTD was made according to GA code 9-11-11.1d “ all discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection b of this code section”. The motion shall be heard not more than 30 days after service until the emergency matters before the court require a later hearing.” That is why I have not made any discovery requests yet. I’m so confused.

While I have been waiting for either a hearing or decision on the MTD, I just received from Zwicker first request for Interrogatories, first admissions to defendant and first request for production of documents. Please let me know what action I can and should make. I have 21 days left.

I tried to attach the summons, my answers, defenses and the MTD but they were to big. Is there another way of showing them to someone who knows a lot more than me? In looking back, I feel the MTD is weak. If I screwed up something to this point and it can be fixed, I'd like to know.

Finally, I have been following several threads to get to this point and want to thank everyone for their contributions.

[Cap321]

bump

[donqII]

The first thing I would like you to do is not panic.

You can answer their discovery.... you have pleanty of time.

You can also submit your own to them... there is time for that.

Actually, their sending to you first is good because it will

give you a guidline as to what they may be looking for

from you for evidence to prove their case. You must be careful

in your wording because you never want to say something that

would allow them to think you are admitting anything.

Then when you do your side you will have a better grasp of how

and what to ask.

First... have you checked your state Rules of Civil Procedure for

how may combined discovery you can submit to them?

That is first and foremost.

Now, go to this page on here...

http://debt-consolidation-credit-repair-service.com/forums/forumdisplay.php?s=&daysprune=&f=198

and start to research how to answer discovery, and how to ask it.

Also, you will find information through here...

http://www.debtorboards.com/index.php?board=56.0.

Last. If you scan your docs into your computer you then can

copy and paste any you want to ask for help on.

This is best because you do want to remove or black out

any of your info like name, address, actual account number

that kind of thing.

Start with these things and others will jump on here soon to help.

[honeybucket99]

I practice law in Carrollton, and would be more than happy to help if you need it. Zwicker & Assoc., I am assuming the allegation is that they were assigned the contract, is this correct? did you cite "Wirth v. Cach" in your MTD? Realistically, you should be filing a motion for summary judgment after discovery rather than a MTD. If you need help let me know.

[GAmatters]

Thanks to DonqII and Honeybucket99 for your kind advice and quick replies. I can use all the help I can get. I've finished my first request for interr/admissions and docs to Plaintiff and would welcome any comments before I mail it out this week. Special note: My admissions #9 is missing the Georgia Code section that would stipulate what docs, if any, such as a contract agreement referred to in complaint are required to be attached (which it was not) because I cannot find the reference. If anyone can shed some light on this matter, I would greatly appreciate it. P.S. I'm going to have to send this through in 2 or 3 separate posts, too long I'm embarassed to say I've left out the instructions and definitions.

"The Defendant requests the following discovery of the Plaintiff, pursuant to O.C.G.A § 9-11-33. Plaintiff is directed to serve its verified answers, and to produce the requested documents in conformance with the above-cited rules, on or before thirty (30) days from the date certified below, to the Defendant's Residence xxx., x, GA xxxxx. In the event you become aware of or acquire in your possession, custody or control, of additional responsive documents, you are asked promptly to produce such additional documents for inspection and copying.

DEFENDANT’S FIRST CONTINUING INTERROGATORIES TO PLAINTIFF

Interrogatory No. 1

Identify when the alleged account was originally opened by the defendant and if and when it was subsequently charged off by Chase Bank, USA, N.A.

Interrogatory No. 2

Identify the person or persons answering these interrogatories. Include their business address, business phone number, and title within the Plaintiff’s Organization.

Interrogatory No. 3

Please provide the following information for each person known to the Plaintiff who has knowledge of facts relevant to this case, including but not limited to all persons interviewed by you, by your counsel, or by any person cooperating with you in the this action, giving a brief description thereof, for each person you may call as a witness in this case.

1. Name, address, and telephone number.

2. Place of Employment

3. Relation to the Plaintiff

4. The subjects and substance of the testimony the witness will give; and whether the witness is to be tendered as an expert witness.

Interrogatory No. 4

Please provide the following information.

1. Your Full Name

2. Your Full Business Name

3. Your Business Purpose (e.g. Creditor, Lender, Collection Agency, etc.)

4. Form of Business Organization (e.g. corporation, partnership, LLC, sole proprietorship, etc.)

Interrogatory No. 5

In regards to the contract or agreement alleged in this action, please state the following:

1. Terms of the Contract or Agreement:

2. Credit Limit Amount Financed in the Alleged Contract or Agreement:

3. Date and Monetary value of any valuable consideration received on the contract or agreement:

4. Date and Monetary value of any payments or credits alleged to be executed on the contract or agreement:

Interrogatory No. 6

Please provide the following information for each person who has had any involvement in any manner in any efforts on your behalf to collect or attempt to collect any debt (s) purportedly owing by Defendant.

1. His/Her Position

2. His/Her work address, telephone numbers

3. Nature and purpose of his/her involvement.

Interrogatory No. 7

Identify the persons or entities, regarding any debt(s), which you have attempted to collect from Defendant, identify all documents related or relevant to your contractual agreement(s) (Servicing, Assignment(s), etc.), or other business relationships with said persons or entities.

Interrogatory No. 8

Plaintiff or Attorney. Please Identify each person who has had any contact or communication on your behalf regarding Defendant’s purported debt(s), state when, how, where, and with whom said contact or communication occurred and in detail and with particularity the substance thereof.

Interrogatory No. 9

Attorney. Describe all collection activities, which you were authorized to perform for, and identify the terms of the agreement between Chase Bank USA, N.A. and you pursuant to which you sought to collect this account.

Interrogatory No. 10

Describe Chase Bank USA, N.A. procedure and policy with respect to the Maintenance, preservation, and destruction of documents, stating in your Answer whether any documents or things relating to any information Requested in these interrogatories, or related in any way to this lawsuit, have ever been destroyed or are no longer in your custody. For each such document, please identify the document,

how, when and why each document was destroyed or otherwise left your control, the identity of any person who participated in any way in the destruction and/or action for destroying the document or to transfer it out of your control or custody; and if the document still exists, identify the person now having control or custody of the document.

Interrogatory No. 11

What document states in writing in support of your Complaint that the Defendant is indebted to pay the Plaintiff and when was this agreed statement in writing entered into?

Interrogatory No. 12

On what date did the defendant become indebted to the plaintiff for

$9,xxx.xx plus any outstanding interest due and owing.

Interrogatory No. 13

Identify all witnesses with evidence in support of your Complaint that the Defendant, entered into a contract and is indebted to the Plaintiff.

Interrogatory No. 14

State all actions taken to verify the accuracy and completeness of the accounts reported and state your procedures designed to assure the maximum possible accuracy of the information reported by you.

Interrogatory No. 15

What is the date that the defendant allegedly defaulted on the original account?

Interrogatory No. 16

What was the status of the alleged contract/account when acquired?

Interrogatory No. 17

What credit card purchases and/or cash advances were made on this account? When where they made?

Interrogatory No. 18

Please identify and describe each exhibit you will use in the trial of Civil Action No. xxxx 0000000

Interrogatory No. 19

State fully, completely and at length the factual basis of each defense which you now assert or intend to assert in this action.

Interrogatory No. 20

As to each defense set out in response to Interrogatory Nineteen (19), above, state the following as to notification to Defendant of such defenses; (a) the date or dates when notification was given; ( the manner in which notification was given; and © the specific party or parties to whom notification was given.

Interrogatory No. 21

Do you have the Actual Contract between the Defendant and Chase Bank USA, N.A.?

Interrogatory No. 22

Do you have an Agreement between Chase Bank USA, N.A. and Zwicker & Associates, P.C.?

Edited November 7, 2010 by GAmatters
REmove personal info

[GAmatters]

Sorry, for the length, here is the 2nd part of my request for interr/admiss/docs:

DEFENDANTS FIRST REQUEST FOR ADMISSIONS TO PLAINTIFF

The Defendant requests that the Plaintiff answer the following requests to admit facts pursuant to, and in accordance with O.C.G.A. § 9-11-36, Georgia Civil Practice Act. If the Plaintiff objects to any requested admission, the reason therefore shall be stated. The Plaintiff's answer shall specifically admit or deny the requested admission, or set forth in detail the reasons why the Plaintiff cannot truthfully admit or deny the requested admission. A denial shall fairly meet the substance of the requested admission, and when good faith requires that the Plaintiff qualify an answer or deny only in part of the matter of which an admission is requested, the Plaintiff shall specify so much of it as is true and qualify or deny the remainder, again detailing the specificity of the denial of the part thereof.

Admission No. 1

Please admit that you were not assigned Chase USA, N.A. obligations under the purchase agreement.

Admission No. 2

Please admit that you do not have the original or a copy of an assignment between you and Chase USA, N.A.

Admission No. 3

Please admit that there is no written agreement, signed by Defendant, between Defendant and Chase USA, N.A.

Admission No. 4

Please admit that there is no written agreement between Zwicker & Associates, P.C. and the Defendant.

Admission No. 5

Please admit that as of the date you drafted your Complaint, you had no evidence admissible at trial that proves Defendant owes the debt.

Admission No. 6

Please admit that Zwicker & Associates P.C. are considered Debt collectors under the Fair Debt Collection Practices Act.

Admission No. 7

Please admit that you are barred under the Fair Debt Collection Practices Act § 1692 f(1) from collecting interest on any amount not authorized by the agreement creating the debt or permitted by law.

Admission No. 8

Please admit that you do not have the agreement to claim the amount(s) submitted in the complaint.

Admission No. 9

Please admit that Zwicker & Associates, P.C. failed to comply with Georgia ??? by not attaching the actual agreement referred to in Plaintiff’s complaint.

Admission No 10

Please admit that you do not have a copy of or the original Chase Bank USA, N.A. Cardholder Agreement.

Admission No 11

Please admit that Chase Bank, USA, N.A. did not transfer the alleged assignment rights over to Zwicker & Associates, P.C. in order to collect alleged debt.

DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

DOCUMENTS TO BE PRODUCED

1. Please provide the actual credit card contract upon which your Complaint is based.

2. Please provide a contract, agreement, assignment, or other means of demonstrating that the Plaintiff has the authority and was legally entitled to collect on the alleged debt.

3. Please provide proof of evidence of the Defendant’s alleged debt to Plaintiff, including specifically the alleged contract, between the plaintiff and defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing Defendants signature and/or please produce the contract that legally requires the Defendant to pay the amount entered into complaint.

4. Please provide the original or copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts.

5. Please provide an Itemized account of all transactions mentioned in Interrogatory No. 17.

6. Provide the proof that displays the information in Interrogatory No. 22.

7. Please evidence authorization of Plaintiff to do business, create loans, issue or extend credit, collect debts and/or operate in the State where the Plaintiff conducts their business.

8. Please evidence authorization of Plaintiff & Attorney to do business, create loans, issue or extend credit, collect debts and/or operate as a financial business in the State of Georgia.

9. Please attach any and all notices sent to Defendant by Plaintiff in regards to this account demanding payment.

10. Please attach copies of all statements generated while this alleged account was open with Plaintiff.

11. Please attach a complete and accurate history of the interest charged on this alleged account with Plaintiff. Show the exact dates those interest rates changed and list the various rates that were charged during this debt and the exact method of amortization.

12. Please attach any and all notices sent to Defendant by Plaintiff announcing changes in interest, fees or penalties and/or the terms of this alleged debt.

13. Identify each Credit Reporting Agency (credit bureau) to which the Plaintiff reported defendant’s debt and the dates of each such report.

14. Please provide the original dunning letter that was sent to Defendant.

15. Please attach any and all notices sent to Defendant by Plaintiff in regards to account announcing transfer and/or assignment of credit card account from plaintiff to any collection agency or collection attorney.

16. Please attach a copy of the agreement with Plaintiff that grants Zwicker & Associates, P.C. Attorney(s) the authority to collect this alleged debt.

The 9th day of November, 2010"

My plan is to mail this out to Zwicker this week and then prepare my answers to their request which is due in two weeks.

I want to thank you all again. Your support and suggestions are invaluable especially to those of us like me who are truly newbies with poor resources.

[honeybucket99]

you need to request information in interrogatories pursuant to ocga 9-11-26 as well as 9-11-33; you should make your requests for production notices to produce as well as rfp's as the P will be subject to contempt if it appears in court without the documents.

Why ask #9 (Rog)? Ask that full assignments of the alleged account be produced tracing ownership from the present to chase.

If you don't get traction with this, send a 30((6) depo notice to the employee/agent of chase most knowledgeable about the account, records keeping, and any account transfer.

good luck

[GAmatters]

you should make your requests for production notices to produce as well as rfp's as the P will be subject to contempt if it appears in court without the documents.

Why ask #9 (Rog)? Ask that full assignments of the alleged account be produced tracing ownership from the present to chase.

If you don't get traction with this, send a 30((6) depo notice to the employee/agent of chase most knowledgeable about the account, records keeping, and any account transfer.

good luck

I took your advice and added this to my request for docs "Please provide proof of evidence showing full assignments of the alleged account, tracing ownership from the present to Chase Bank USA, N.A..

However, I don't understand. Please elaborate on "requests for production notices to produce" and what is "rfp's" and "Rog"? Sorry for the lame questions and thanks.

[GAmatters]

I've started preparing my answers to Zwicker's 1 set of ROG, etc. I need help answering the following interrogatory:

"Please describe in detail why you defaulted and failed to make payments on the account at issue."

[mylumnad]

"30((6) depo notice" Weird question, if a pro se was to depo someone, does it cost money?

[SECLG]

"30((6) depo notice" Weird question, if a pro se was to depo someone, does it cost money?

Someone has to pay the court reporter!

[My4Dogs]

I have a similar situation with Zwicker on a CitiBank case in Gwinnett County.

Anyone willing to assist me in my debate on next steps?

Do I file a motion to compel, a MTD, or a summary judgment?

I have a bench trial set for April 13th, 2011.

Any help/advice is appreciated!