Quick Question Regarding JDB's original Complaint

[ThankfullOne]

I am still trying to piece the whole process together. I have found a lot of useful info here. Thank you.

My question is, should I motion to strike these three documents now, before pretrial?

The JDB original complaint filed with the court contained an exhibit (General Assignment Letter signed by JDB) with no account specific details.

The original complaint also has a bill of sale exhibit, signed by OC, with no account specific details.

In Addition, they sent me their discovery requests and included a copy (exhibit A) of a credit card statement. It appears to be the last statement form the OC.

I have not had pretrial. So far, I answered the complaint denying all allegations and sent them my discovery requests. They have also sent me their discovery requests which I plan on answering based on samples on this site. That is where we stand right now. Pretrial is set in three weeks.

Please let me know the appropriate time to motion to strike these exhibits.

Edited November 23, 2010 by ThankfullOne

[BV80]

Read your state's court rules of civil procedure. They should have information about motions and when they can be filed.

[ThankfullOne]

Spent a few hours last night looking at the civil rules for ohio... clear as mud. I guess what I need to figure out is, should I motion to dismiss these things now or what my next move is. I want to stay on the offense and not just wait for the judge to rule, but I am just waiting for something to happen at this point...

[bmc100]

Make sure you follow the Rules for Civil Procedure. What I found is that JDB typically will violate civil procedure by not mailing you information they will file in court or by not providing you proper time to respond to additional claims or motions. Also, wait until the judge assigns discovery. Dont give this company any additional time to research and respond to your requests. Also put your requests in writing and ask for a validation of debt stipulating all the items you want the JDB to provide to you and send it certified mail. If the JDB cannot provide all of the information you requested, use that as evidence and file a motion to strike at the case evaluation or disposition of summary judgement.

Im not an attorney, but I am dealing with a JDB that is violating civil procedure in Michigan.

[ThankfullOne]

Pretrial in one week.

Discovery to be complete in 4 weeks.

Trial in 6 weeks.

Thank you. The judge has assigned a discovery deadline (see schedule above). I sent the JDB my discovery requests via certified mail.. as well as the court. I included the cert of service and have the delivery receipts for the delivery. The JDB has also sent me their discovery request. I will be answering the discovery requests as recommended in this forum... essentially denying everything and giving them nothing. I just feel like I am waiting right now for something to happen and I want to make sure I am not missing anything. The three documents that they have attached to the pleadings really are general and vague and not account specific.

I have looked online at the other cases this JDB has been involved with at the same court as my trial. Seems like they keep the case going and try to fight it the best they can. I have had one other case in the past where a JDB folded and dismissed on the last day of Discovery, but this current JDB will most likely not do that based on the other cases I have looked at.

Should I do anything other than deny everything I can and give them nothing during my pretrial next week and wait for them to make the next move? My last case did not have a pretrial before the JDB dismissed. I just worry about those attachments to the pleadings. I want to make sure I do not get burned by them based on a lack of action on my part.

Edited November 24, 2010 by ThankfullOne

[BV80]

Read your court rules concerning Motions. When allowed, file a Motion to Strike their affidavit. There are sample motions and forms on this site.

[ThankfullOne]

Are these three things considered affidavits? Is any signed document they show me during discovery considered an affidavit or is there some special way they need notarized and signed to be considered an affidavit? Here are the three docs they have produced so far.

Exhibit 1 - Front page of a credit card statement showing balances, address, etc. There are no itemized charges. No signatures.

Exhibit 2 - Bill of Sale signed by OC's CFO and JDB. This document has no specific account listed. It is a general bill of sale.

Exhibit 3 - Assignment from one JDB to another... Same company I believe, just slightly different names. Signed by JDB.

Edited November 29, 2010 by ThankfullOne

[BV80]

Affidavits are notarized. The items you listed are "evidence".

An affidavit from a JDB usually has statements from one of their employees stating he/she works for the JDB and has personal knowledge of the account. THAT is what you motion to strike.

[ThankfullOne]

Thank you for the clarification. I was thinking I should not motion to strike these three items for some reason but it was unclear.

Basically, I just want to wait until pretrial/trial and argue that they don't prove anything... correct?

I see many places on the forum that explain why they don't prove anything... I just needed to know the best time to argue that.

Pretrial is in a few days.

Discovery complete in a few weeks.

Trial in a month.

[lheart]

None of those items are affidavits. An affidavit is sworn testimony on paper. The items listed are evidence. As currently stated, they would fall under the hearsay rule. They need to be authenticated by a record keeper of the company that created and maintained the information.

Read the sticky on Start To Finish Winning Against Midland Funding Aka Jdb! to better understand how to handle a JDB.

In Ohio, you don't send discovery request copy to the court unless you are compelling arbitration that has not been answered.

I would wait until after the pretrial (attempt to get both sides to agree on issues or settle the matter - don't) and after the time for Discovery is over. Any thing that is not revealed in Discovery should be objected to if they try to bring it up later. After Discovery Motion to Strike any documents that are not authenticated by an affidavit as hearsay.

As soon as Discovery is over, bombard them with motions strike and motions to exclude.

[BV80]

Once discovery is complete, if they haven't offered to dismiss, file a Motion to Stike their affidavit, if they provide one. The more serious they believe you are, the more likely they are to give up.

Also, look up case law in Ohio and your District Court of Appeals for JDBs, affidavits, etc. It's good to have case law if you file a motion.

Is the debt within the SOL?

[ThankfullOne]

Had the pretrial. JDB had a local attny there to represent them. He seemed more on my side if anything. He told me that I probably need to see them prove the debt before anything. I agreed of course. He asked if discovery was complete, I told him no. We went in front of the judge and the judge said the pretrial was premature. He did not reschedule the pretrial, but he did push the the trial back a few weeks. I was not all that happy about that I guess. Now that the pretrial is over, I need to complete their discovery requests (due in a week or so) and see if they complete mine. If they don't complete it, I will motion to compel then motion to dismiss. I may have a few questions as I answer their discovery this week but I think it is pretty straight forward... Object to most of it based on the examples within this forum. Thank you. Also, the debt is within the SOL.

[RebelLady]

If you feel you've asked for enough documents and they still haven't been able to produce them, they can't show up to court with any 'surprise' documents. They can and may try to but you can Object on the grounds that they failed to provide the documents or information during Discovery and it is therefore inadmissible.

When you Motion to Compel, they may Motion for a Continuance. In effect, you have now given them more time to produce the documents or information they haven't been able to produce so far.

I'm not sure about your particular case, but in a case I had recently, the Plaintiff Motioned for Continuance and the judge granted the Motion. I couldn't object since they were allowed one Continuance. That gave them an additional 90 days to come up with some admissible evidence. When the Plaintiff in this case Motioned the court yet again for another Continuance, I immediately and vehemently filed my objections and the judge denied their second Motion. Having no real admissible evidence and having, by then, run out of time to come up with any, they had to dismiss.

Why give them more rope to hang you? Sometimes its good to go with what they've sent you especially if they've sent you documents that you can easily Motion to Strike (non-specific bills of sale, non-authenticated statements, etc.).

RL

[ThankfullOne]

So you wouldn't motion to Compel? At what point would you motion to strike the existing docs? Their discovery time and pretrial is over and they haven't produced anything. I am trying to figure out my next move. Trial is scheduled in about 30 days.

Edited December 8, 2010 by ThankfullOne

[ThankfullOne]

This case continues and I continue to read as much as I can on these forums and educate myself. I think I have a pretty good grasp at how it all comes together in a basic case... except for the final stages... That is where I could use a little help and direction.

This case in summary...

1. JDB filed complaint with three exhibits

**** Exhibit 1 - Front page of a credit card statement showing balances, address, etc. There are no itemized charges. No signatures.

**** Exhibit 2 - Bill of Sale signed by OC's CFO and JDB. This document has no specific account listed. It is a general bill of sale.

**** Exhibit 3 - Assignment from one JDB to another... Same company I believe, just slightly different names. Signed by JDB.

2. I answered complaint denying everything.

3. I sent my request for production of documents. (wish I would have sent them admissions too now I understand them better)

4. They sent me request for admissions, interrogatories and production of documents.

5. Went to pretrial, neither side had completed any discovery as pretrial date was still within the 28 days allowed to respond to requests. So Judge rescheduled the trial for several weeks later.

6. I responded to their admissions, interrogatories and production of documents, on time, notarized, certified mail with return receipt... and gave them nothing in my responses (thanks to this forum).

7. To date, they have not responded to my request for production of documents at all.

The judge put some deadlines on the case after rescheduling the trial...

**** Discovery and dispositive motions to be complete in 4 weeks.

**** Responses to dispositive motions to be complete in 5 weeks.

**** Trial in 6 weeks.

I did not motion to compel production of docs based on forum posts... Why compel them to produce more documents... makes sense.

Now even though the judge has a deadline of 4 weeks for discovery to be complete, it is my understanding that JDB still has to abide by the 28 days to respond to my request for documents. Is this true? That time has come and gone. What is the 4 week deadline the judge put for discovery for?

This is where I am still struggling....

Do I motion to Strike the three exhibits and then motion to dismiss? Do I motion to strike and dismiss at the same time or wait for an outcome on the motions to strikes? I see all over the board about striking the affidavits.. but what about these exhibits? What do I do about them and when do I do it?

I have read the civil procedures in Ohio and have spent hours on this forum, but for some reason, the timing and necessity of these motions based on non affidavit items eludes me. The three exhibits should be easy to beat... I just need to figure out how and when.

I see where lheart wrote on this tread to wait until discovery deadline and then motion to strike these items... Is that after the JDB's 28 days or after the judges deadline on discovery? The judges deadline for discovery is the same deadline for dispositive motions... so my understanding is that I can not motion to dismiss after that....

I believe that the JDB will dismiss this case before trial, but I am not counting on it and I am preparing as much as possible. What is my next move and when do I do it? Your thoughts are appreciated.

Edited December 14, 2010 by ThankfullOne

[ThankfullOne]

So one week left before the Judges ordered time line for Discovery to be complete... (Again, this is 4 weeks past the allowed 28 days to respond to my discovery requests)... I get a plaintiff's witnesses list that contians a handful of names on it. Nothing other than names. I have no idea who these people are and no way to prepare any kind of questioning at trial based on just a name on a list. This list was also sent to the court.

It is still my understanding that the ordered time for discovery to be complete that went beyond the 28 days was for any discovery disputes that may have been there. No disputes though, I answered their discovery, but they never answered my requests... at least until now and this plaintiff's witnesses is only a small part of what I requested in discovery nearly 60 days ago.

Now I need to figure out what to do with the plaintiff's witnesses list. They spring it on me one week before dispositive motions and discovery deadline and three weeks before trial.

Is this plaintiff's witnesses just a scare tactic? How do I deal with it based on being so late and the fact it only has plaintiff's witnesses names on it? I cant imagine they would bring these people in from out of state for such a low dollar amount suit, but who knows, maybe they will. I cant imagine that a list of names is enough because there is no way for me to prepare for examination of them in court.

Edited December 28, 2010 by ThankfullOne

[saint al]

I believe you're on the right track, i'm no lawyer but just based on my experience alone I would request in discovery statement(s) showing an accounting of charges, fees and payments as well as a legal assignment given legal standing to even pursue this lawsuit, if not sufficiently answered send a good faith letter to answer (cert. Mail), if still not answered sufficiently file a motion to compell. If time runs out at least you have a legitimate papertrial of your good faith efforts to resolve this amicablely (LOL). Hope that helps! Be Bless! SA

[ThankfullOne]

I choose not to compel discovery. Hope it don't come back negativly on me. I sent them production of docs that asked for a lot of stuff, but they never responded. First response from them is this witness list... How do I deal with that witness list? Also, they have not include any affidavits at any time during the case.

[BV80]

Carefully read you court's rules for civil procedure. The fact that the JDB has not answered your discovery requests is a negative against them, but will the judge wonder why you didn't file a Motion to Compel? The rules should also state what is required as far as affidavits are concerned.

In my opnion, if a case makes it to court, we need to show the judge that we followed the rules to the letter as best we could. Now, I know JDBs usually don't have a leg to stand on, but you never know what kind of judge you're going to get. If he's debtor or pro se friendly, no Motion to Compel might not be a biggie. If he's a stickler for the rules, it might be a biggie depending on what the rules require.

See if your rules require a Motion to Compel before you can move to strike evidence.

I'm not saying you must file a Motion to Compel. Just make sure it's not absolutely necessary. Like you said:

Hope it don't come back negativly on me.

Yes, the witness list might be a scare tactic. They could be waiting to see how you respond.

Edited December 28, 2010 by BV80

[ThankfullOne]

The local court follows ORCP. http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

I have read the ORCP and continue to review it. There is a learning curve as I am sure all are aware. I just looked at it again and it is unclear if I have to compel discovery. I am also still trying to figure out how I am supposed to prepare for trial based on a list of Witnesses... name only... and if they are waiting to see how I respond the the witness list, what response options do I have? I did read on the rules of the court that "Be prepared to discuss the possibility of settlement. Furnish a list of all witnesses whom they intend to call along with a statement of the general nature of their testimony"

Pretrial was several weeks ago and they did not provide any witness list.

Edited December 28, 2010 by ThankfullOne

[BV80]

I didn't see anything that said you are required to compel discovery. I suppose it will be up to the judge. He might ask why you didn't compel. Or he might order the Plaintiff to produce documents.

The judge put some deadlines on the case after rescheduling the trial...

**** Discovery and dispositive motions to be complete in 4 weeks.

I'm not sure if that means the judge required the JDB to complete your discovery requests in 4 weeks, or if he limited a Motion to Compel to 4 weeks.

If it were me, I'd contact a consumer attorney just to ask a few questions. Most attorneys give free consultations of about 30 minutes or so. That would give you time to get answers to your questions.

[Xcalibar]

I am in Ohio and have a bit of experience with Ohio rulings s they relate to Credit Card Cases...what county are you in...I am in Cuyahoga the 8th Appellate District...let me know what county you are in and i will attempt to provide you with some cases that can be used to win your case...i wish that I could have gotten to you before you filed your answer, because then you could have file a Civ. Rule 12(E0 Motion for more Definite Statement as to the Plaintiff's violation of Civ. R. 10(D) which requires the plaintiff to attach the account (An accounting of how they derived the balance claimed to be owing) to the Complaint.

As it is now, you need to be very careful in answering the Plaintiff's Discovery...Did you serve your discovery before or after the Plaintiff served theirs...if you served your first, then you may be able to object to the Plaintiff's discovery on the basis that you need information from the Plaintiff in order to formulate an answer to their discovery.

I don't know how to keep track of this post, but i will try in the event that you respond and need further guidance.

As long as you do not inadvertently make any admissions, you will be able to get the plaintiff when they file for summary judgment without any admissible evidence...everything that they present will be hearsay and thus inadmissible for summary judgment purposes.

[Credithis]

Did the JDB file this suit on an acccount stated charge? Look carefully. There is Ohio Supreme Court Appeals case law stating that an account stated Must have an exact accounting of it from a balance from inception at zero to the present day with all interest, charges, etc. I posted this here about two years ago. You will have to search the forums for it.

[Credithis]

Ahhh, here it is: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=294893

The link to the Pdf is broken but, I found another:

http://www.sconet.state.oh.us/rod/docs/pdf/4/2004/2004-ohio-623.pdf

This Really should be copied to the Ohio section of this board. It really is a knockout blow for account stated actions and possibly other states.

[ThankfullOne]

Thank you credithis. I have seen that case and the complaint does read account stated. I have read and researched all the reasons why the JDB should not win, but I am struggling with understanding the rules of when all the motions can be filed. I do not know if I can file a motion to dismiss based on Discovery being complete and they have provided nothing or do I need to file a motion for summary judgment.. or is it to the point where I just show up in court and plead my case. All the cases I looked at in the local court have motions to dismiss before they even file an answer to the complaint.

We each severed discovery on each other 8 weeks ago. I answered their but they did not answer mine. Discovery and dispositive motions deadline from the court states it shall conclude in about a week and trial in about three weeks.