Answers from 'rogs/prod of docs and follow up questions

[wanger]

Hi all..

Just found this site and looking around there are many interesting and insightful helpful posters. great site.!

Here is my issue.

I sent out my Defendant First set of "rogs and production of documents. The Plaintiff (First Resolution Management) dated August 16. they sent back the forms answered dated November 1. I dont think I can argue anything since they still answered. They objected to most questions (not uncommon from what I research). They also sent an Affidavit, bills of sale, couple of statements and an unsigned CC agreement.

the OC is Chase. the bills of sale are from Chase to Unifund and one from Unifund to First Resolution. The affidavit is from Unifund saying that they sold 5990 accounts to First Res.

There is nothing signed, there is no affidavit from First Res saying that they got the accounts.

Just wondering what the next step might be. I do not think I want to send a Motion to Compel to get better answeres/forms form the Production of Docs, since I dont want to help their case.

Would a Motion to Strike affidavit be the step? argue that Unifund has no knowlegdge of Chase or First Res. or suponea the person who signed the affidavit ? How does one stike a bill of sale as they seem correct.

The statements they included were all from differnent months in 2005. there wasnt a list of payments/cancelled checks or anything like that.

If I submit a motion, I have to get that signed by a judge, but all of these papers have been only sent with a docket number. I dont think a judge has seen anything yet. Does that make a diffference.?

Sorry for the long/windy post.

Thanks for reading and offering help in advance.

I am willing to post the pages in question of there is a way to attach things to this post..

Edited December 14, 2010 by wanger

[wanger]

Hi all... I have a rough draft of my motion to strike affidavit. How does it look? any critique is welcome.

thanks for reading and helping..

Pursuant to the South Dakota Rules of Civil Procedure 19-16-37, Defendant submits this Motion to Strike Affidavit which was submitted by Plaintiff in the Response to Defendants First Set of Interrogatories and Production of Documents. Affidavit is included with this motion for review.

1. Affiant has no knowledge of record keeping of the Original Creditor, which for this case is Chase bank.

Affiant has been deposed as an employee of Unifund Group

2. Affiant has no knowledge of record keeping of the Plaintiff, First Resolution Investment Corp.

Affiant has been deposed as an employee of Unifund Group

3. Affiant has no knowledge if the alleged debt was actually sold to the Plaintiff.

Affiant has no knowledge if Defendants alleged account was part of the

portfolio of 5990 accounts sold to First Resolution Investment Corp.

[nascar]

Lots of hands in this one. How old is the debt? When was the last time you paid on it?

[hopefulscambeater.]

IMO (NOT a lawyer-don't pretend to be) you need to research your RCP and see what the rules of hearsay are, ....they're trying to use the "business records exemption" so using YOUR states RCP cite that RCP and show that since they cannot possibly have personal knowledge of the records, calculations, methods et cetera of the OC, they cannot qualify for this exception therefor the Affidavit must be stricken as hearsay (again IMO) others may have much better advice..

[wanger]

thanks for the replies.

I think they are trying to use the "business exemption" also, the stupid RCP are very confusing..(cripes) it seems by reading multiple "chapters" that I cant find a good one to cite. so I chose the one I cited in my Motion:

here is the wording:

(Rule 806) Evidence of credibility of hearsay declarant. When a hearsay statement, or a statement defined in subdivision § 19-16-3(3), (4), or (5), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.

the dates on the generated statements are from 2005. the SOL in South Dakota are 6 yrs. It says a payment was made on 3/05, but we do not remember making a payment on the acct. but shouldnt First Res have to produce payments and more than 4 statements for acct ? we will be checking to get a copy of the check.

[beatcapital1&lrlo]

Hi all..

Just found this site and looking around there are many interesting and insightful helpful posters. great site.!

Here is my issue.

I sent out my Defendant First set of "rogs and production of documents. The Plaintiff (First Resolution Management) dated August 16. they sent back the forms answered dated November 1. I dont think I can argue anything since they still answered. They objected to most questions (not uncommon from what I research). They also sent an Affidavit, bills of sale, couple of statements and an unsigned CC agreement.

the OC is Chase. the bills of sale are from Chase to Unifund and one from Unifund to First Resolution. The affidavit is from Unifund saying that they sold 5990 accounts to First Res.

There is nothing signed, there is no affidavit from First Res saying that they got the accounts.

Just wondering what the next step might be. I do not think I want to send a Motion to Compel to get better answeres/forms form the Production of Docs, since I dont want to help their case.

Would a Motion to Strike affidavit be the step? argue that Unifund has no knowlegdge of Chase or First Res. or suponea the person who signed the affidavit ? How does one stike a bill of sale as they seem correct.

The statements they included were all from differnent months in 2005. there wasnt a list of payments/cancelled checks or anything like that.

If I submit a motion, I have to get that signed by a judge, but all of these papers have been only sent with a docket number. I dont think a judge has seen anything yet. Does that make a diffference.?

Sorry for the long/windy post.

Thanks for reading and offering help in advance.

I am willing to post the pages in question of there is a way to attach things to this post..

Might want to check out National Check Bureau v. Pamela Ruth-sounds like yours. Here is an excerpt:Generally, this Court reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. No. 24150, 2008 Ohio 5232, at P9. "When a court's judgment is based on an erroneous interpretation of law, [however,] an abuse-of-discretion standard is not appropriate." Medical Mutual of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009 Ohio 2496, 909 N.E.2d 1237, at P13. Instead, a de novo standard of review applies. Id. In this case, this Court must determine whether, as a matter of law, NCBI's evidence established a chain of title so as to indicate NCBI's interest in Ruth's account.

Good luck--Not an attorney. Not legal advice. For legal advice, seek a competent attorney. Give blood. Sue a junk debt buyer.