Interrogatories & Admissions?

[Claude]

Hello:

Last month I filed a response to a lawsuit from a credit card company and it is now entering the discovery phase. I have no idea how to answer (see below) so any advice would be greatly appreciated.

To summarize my original thread:

The plaintiff is the original creditor using an attorney, debt is within the sol, I am being sued in a county court in Nebraska, I'm disabled and unable to pay, I am acting pro se. I tried to settle but long ago but they refused and have run up the debt to nearly triple original debt. The oc has written of the debt as bad per my credit report. I guess my strategy is to make it as difficult for them as possible to get a judgment against me. How do best I proceed?

I received the following via regular postal mail - not certified.

To Defendant: You are hereby notified that you are required pursuant to Rule 33 of the Nebraska Rules of Discovery, to answer under oath the following the following Interrogatories within thirty (30) of service thereof.

lnterrogatories shall be answered separately and fully in writing. under oath. and shall contain the full knowledge of Defendant and that which is available through its representatives to its attorney, and shall be deemed to be continuing in nature so that as soon as possible prior to the trial of this case, the names and addresses of all additional persons and other information requested in the lnterrogatories shall be supplied to Plaintiffs attorney. Plaintiffs Request for Admissions filed herein are made part hereof by his reference as if fully set forth herein.

INTERROGATORIES

INTERROGATORY NO. 1: State your fuil name.

RESPONSE:

INTERROGATORY No. 2. What is the address of your place of residence?

RESPONSE:

INTERROGATORY NO. 3: Please state the name and address of any and all financial institutions, bank, credit unions, or delayed-deposit services utilized or patronized in the past five years by the Defendant including but not limited to instituttons holding checking, savings, money market or certificates of deposit accounts on behalf of the defendant.

RESPONSE.

INTERROGATORY No. 4: Did you make any payments to the plaintiff?

RESPONSE:

INTERROGATORY NO. S: lf so, as to each payment state:

a. The date;

b. The amount;

c. Manner of payment; i.e. check, money order, cash, etc.;

d. Whether you have a receipt thereof,

e. Wll you attach a true copy of same to your answers herein without the necessity

Response:

INTERROGATORY NO.6: lf you deny owing the balance Plaintiff claims due from you in its complaint, please state:

a- Your basis of denial:

b. The amount you admit owing to Plaintiff and the calculation you have used.

RESPONSE:

INTERROGATORY NO. 7: Did you respond in the negative to any part or portion of Plaintiffs Request for admissions herein? lf so, as to each negative response, set forth fully each and every fact on which you rely in support of your response based on your personal knowledge and experience the above matter and all records that you have material thereto.

RESPONSE:

DATED March 19, 2011

FEDERAL DISCLOSURE

This is an attempt to collect a debt. Any information obtained will be used for that purpose.

REQUEST FOR ADMISSIONS

COMES NOW the Plaintiff and propounds the following Request br Admissions upon the Defendant pursuant to the Nebraska Revised Statutes. Written, sworn answers must be filed by Defendant(s)within thirty days of the services hereof, or the facts, the truth of which is requested, shail be deemed admitted. ADMIT OR DENY:

REQUEST NO. 1: Plaintiff is a banking association existing under the laws of the United States.

REQUEST No. 2: Defendant is resident of xxxx county, Nebraska.

REQUEST NO. 3: That Defendant entered into a contract under the terms of which a credit card was issued to Defendant by Plaintiff and that Defendant was extended Credit by plaintiff.

REQUEST NO. 4: That Defendant did purchase goods and/or services on credit granted by the Plaintiff.

REQUEST NO. 5: That Defendant did obtain cash advances on credit granted by the plaintif

REOUEST NO 6, That there is a balance of $xxxx past due and owing to the plaintiff representing that both the charges and/or cash advances made by the defendant against the credit granted by the Plaintiff and other charges and fees as allowed by the contract. Plaintiff and other charges and fees as allowed by the contract.

REQUEST NO. 7: That plaintiff is entitled to interest accruing at the rate of ($1.05 per diem).

REQUEST NO. 8. That due demand has been made by the Plaintiff upon the Defendant more than ninety days (90) prior to the filing of plaintiffs original complaint.

REQUEST NO. 9. That the Defendant is not a member of the Armed Forces of the United States or its Allies.

REQUEST NO. 10. That the Defendant has no affirmative defenses to Plaintiffs comptaint.

REQUEST NO. 11. That Defendant admits all allegations contained in Plaintiffs complaint.

REQUEST NO. 12. lf you deny Request No. 10 set forth all affirmative defenses in detail.

DATED MARCH 19, 2011

FEDERAL DISCLOSURE

This is an attempt to collect a debt. Any information obtained will be used for that purpose.

[SingleDadJames]

I received the following via regular postal mail - not certified.

I'm pretty sure they don't have to send them certified mail. Most likely anything (other than an original complaint and summons) sent from the plaintiff will be via regular 1st Class Mail. At least that's how I received EVERYTHING in my case (even from the court itself).

INTERROGATORIES

INTERROGATORY NO. 1: State your fuil name.

RESPONSE:

INTERROGATORY No. 2. What is the address of your place of residence?

RESPONSE:

Personally I'd answer these w/o much of an objection b/c they likely have these already right?

INTERROGATORY NO. 3: Please state the name and address of any and all financial institutions, bank, credit unions, or delayed-deposit services utilized or patronized in the past five years by the Defendant including but not limited to instituttons holding checking, savings, money market or certificates of deposit accounts on behalf of the defendant.

RESPONSE.

Personally I would NOT answer this w/o an objection b/c it's none of their business, irrelevant, and would contain personal privileged information. They likely want this information to make garnishing your account that much easier should they get a judgment. If I were asked this I wouldn't answer it directly until the court ORDERED me to do so.

INTERROGATORY No. 4: Did you make any payments to the plaintiff?

RESPONSE:

INTERROGATORY NO. S: lf so, as to each payment state:

a. The date;

b. The amount;

c. Manner of payment; i.e. check, money order, cash, etc.;

d. Whether you have a receipt thereof,

e. Wll you attach a true copy of same to your answers herein without the necessity

Response:

INTERROGATORY NO.6: lf you deny owing the balance Plaintiff claims due from you in its complaint, please state:

a- Your basis of denial:

b. The amount you admit owing to Plaintiff and the calculation you have used.

RESPONSE:

INTERROGATORY NO. 7: Did you respond in the negative to any part or portion of Plaintiffs Request for admissions herein? lf so, as to each negative response, set forth fully each and every fact on which you rely in support of your response based on your personal knowledge and experience the above matter and all records that you have material thereto.

RESPONSE:

These are pretty straight forward. You either admit the debt and amount, admit the debt but that the amount isn't correct, deny it all, or lack sufficient information and knowledge at this point to admit or deny and deny generally and specifically on that basis.

REQUEST FOR ADMISSIONS

REQUEST NO. 1: Plaintiff is a banking association existing under the laws of the United States.

Do you have enough information to admit or deny this request? I doubt I would.

REQUEST No. 2: Defendant is resident of xxxx county, Nebraska.

Pretty straight forward. I would either answer whether or not I am.

REQUEST NO. 3: That Defendant entered into a contract under the terms of which a credit card was issued to Defendant by Plaintiff and that Defendant was extended Credit by plaintiff.

This depends on whether or not you are admitting or denying the debt. Personally this one seems a little vague to me. "a contract" "under the terms of which a cc was issued" What contract? Is there a copy of it that has been provided to you? Have the supplied the terms? If not I might argue I can't admit or deny this one even if I was admitting to the debt itself.

REQUEST NO. 4: That Defendant did purchase goods and/or services on credit granted by the Plaintiff.

REQUEST NO. 5: That Defendant did obtain cash advances on credit granted by the plaintif

These are pretty straight forward. If you are aware of the debt and admitting to it, and this is the OC then denying these might not be an option. However if you aren't totally sure and don't have past cc statements and don't recall using the card maybe you can't fully admit or deny? Also is there a possibility that someone else may have used the card w/o you authorization?

REOUEST NO 6, That there is a balance of $xxxx past due and owing to the plaintiff representing that both the charges and/or cash advances made by the defendant against the credit granted by the Plaintiff and other charges and fees as allowed by the contract. Plaintiff and other charges and fees as allowed by the contract.

Do you know if the balance is accurate? I would need to be sure I have all account statements and that I was personally responsible for all charges before I admit to the balance claimed. Also they refer to "The contract". Without a copy of the terms or contract they are referring to I would personally doubt whether I had enough information to admit or deny.

REQUEST NO. 7: That plaintiff is entitled to interest accruing at the rate of ($1.05 per diem).

I would not admit this and personally would highly doubt that I would have enough info to admit. Thus I'd deny unless I KNEW this to be true.

REQUEST NO. 8. That due demand has been made by the Plaintiff upon the Defendant more than ninety days (90) prior to the filing of plaintiffs original complaint.

Do you know this one? Did they mail you demands for payment? Can they prove they did? Do you recall receiving any?

REQUEST NO. 9. That the Defendant is not a member of the Armed Forces of the United States or its Allies.

Another straightforward one. You either are or you aren't. If you aren't it's simply an Admit.

REQUEST NO. 10. That the Defendant has no affirmative defenses to Plaintiffs comptaint.

Personally I would NOT admit to this one. Even if you failed to include them in your Answer (which would need to be fixed!) then I'd deny and mention you have affirmative defenses

REQUEST NO. 11. That Defendant admits all allegations contained in Plaintiffs complaint.

LOL! :ROFLMAO2:WTF. I have to remember this one. If I had answered the complaint with ANY kind of denial at all this one gets a big fat DENY. I LOVE how they tried to sneak it in between 10 and 12.

REQUEST NO. 12. lf you deny Request No. 10 set forth all affirmative defenses in detail.

Responding to this one may be overly burdensome. That being said IF you denied #10 then you could list your affirmative defenses here. If you actually DID include them in your answer to the complaint then I just might point out to the Plaintiff that they can find them there.

That's how I would approach some of those questions. I'm NOT a lawyer and can't/won't provide legal advice...but that's how I might look at some of these. Of course I'd need to make sure I followed the proper format and deadlines outlined by my applicable rules of civil procedure.

[Claude]

Thank you for your input James, perhaps I should have posted my response to the initial volley from their attorney:

1. Plaintiff is a banking association...

2. Defendant is resident of xxxx county.

3. Plaintiff and Defendant entered into a credit card relationship identified with account number ************8578.

4. Defendant used credit card account but failed to make payments and went into default.

5. As of February 6, 2011 there is presently due and owing from the defendant to the plaintiff the amount of $xxxx, plus accrued interest in the amount of $xxx, and interest continuing to accrue at the rate of 22.74% ($1.01 per diem) pursuant to Neb. Rev. Stat. 45-102 or contract, which ever is greater.

6.Defendant is not a member of the Armed Forces of the United States.

Wherefore, Plaintiff prays for judgment against the defendant in the amount of

$2,763.21 plus pre-judgment interest thereon as allowed by law, court costs, attorneys fees, and post judgment interest at the highest rate allowed by law.

Signed by Plaintiff's (Original Creditor) Attorney

My Response:

Allegation 1: Admit

Allegation 2: Admit

Allegation 3: Admit in part. I did have an account with XXXX BANK (USA) N.A. Denied in part, I have been presented no evidence that the account I had with XXXX BANK (USA) N.A. is the same account as the debt alleged in this complaint.

Allegation 4: Denied. Plaintiff has failed to provide any evidence in support of the allegation. Defendant demands strict proof.

Allegation 5: Denied. Plaintiff has failed to provide any evidence in support of the allegation. Defendant demands strict proof.

Allegation 6: Admit

Does any of the above alter your recommendations?

What I would like to do is construct my response after receiving as much input as I can and then post it here in hopes that helpful individuals like you will critique/refine it before I officially file it. I have 3 weeks to work with.

Thanks again for your guidance.

[Xcalibar]

Thank you for your input James, perhaps I should have posted my response to the initial volley from their attorney:

1. Plaintiff is a banking association...

2. Defendant is resident of xxxx county.

3. Plaintiff and Defendant entered into a credit card relationship identified with account number ************8578.

4. Defendant used credit card account but failed to make payments and went into default.

5. As of February 6, 2011 there is presently due and owing from the defendant to the plaintiff the amount of $xxxx, plus accrued interest in the amount of $xxx, and interest continuing to accrue at the rate of 22.74% ($1.01 per diem) pursuant to Neb. Rev. Stat. 45-102 or contract, which ever is greater.

6.Defendant is not a member of the Armed Forces of the United States.

Wherefore, Plaintiff prays for judgment against the defendant in the amount of

$2,763.21 plus pre-judgment interest thereon as allowed by law, court costs, attorneys fees, and post judgment interest at the highest rate allowed by law.

Signed by Plaintiff's (Original Creditor) Attorney

My Response:

Allegation 1: Admit

Allegation 2: Admit

Allegation 3: Admit in part. I did have an account with XXXX BANK (USA) N.A. Denied in part, I have been presented no evidence that the account I had with XXXX BANK (USA) N.A. is the same account as the debt alleged in this complaint.

Allegation 4: Denied. Plaintiff has failed to provide any evidence in support of the allegation. Defendant demands strict proof.

Allegation 5: Denied. Plaintiff has failed to provide any evidence in support of the allegation. Defendant demands strict proof.

Allegation 6: Admit

Does any of the above alter your recommendations?

What I would like to do is construct my response after receiving as much input as I can and then post it here in hopes that helpful individuals like you will critique/refine it before I officially file it. I have 3 weeks to work with.

Thanks again for your guidance.

Did you already submit your answers? If not I will check back on Sunday and I will then have some advice for you which will be different from the answers that you have provided above.

You will be much better off by giving the Plaintiff the impression that you are hapless individual lacking any knowledge whatsoever. If you come off like you have read some generic posting somewhere and use the vernacular that you have posted, it will simply give the Plaintiff an incentive to fight harder, better to be meek as a lamb and as sly as a fox in your particular case with your admitted lack of experience.

[Claude]

Did you already submit your answers? If not I will check back on Sunday and I will then have some advice for you which will be different from the answers that you have provided above.

You will be much better off by giving the Plaintiff the impression that you are hapless individual lacking any knowledge whatsoever. If you come off like you have read some generic posting somewhere and use the vernacular that you have posted, it will simply give the Plaintiff an incentive to fight harder, better to be meek as a lamb and as sly as a fox in your particular case with your admitted lack of experience.

Yes I have already submitted my response to their suit. We are now in the discovery phase. I don't anticipate winning on some technicality or whatever but I am not going to just roll over for them either. I want to make this as difficult as possible for them.

[HoppinMad]

Personally I would NOT answer this w/o an objection b/c it's none of their business, irrelevant, and would contain personal privileged information. They likely want this information to make garnishing your account that much easier should they get a judgment. If I were asked this I wouldn't answer it directly until the court ORDERED me to do so.

What would be the best way to word that then? I would never give them that info, but I am sure "get bent" would not be the best response.

[SingleDadJames]

What would be the best way to word that then? I would never give them that info, but I am sure "get bent" would not be the best response.

If I was responding to something like that I might try something like "Defendant objects to this interrogatory on the basis that it is irrelevant, overly broad and burdensome and not reasonably calculated to lead to the discovery of admissible evidence" (Or any combination thereof)

I'm not SURE objecting to this as containing confidential/privileged information would work because they didn't ask for account numbers.

I guess it all depends on how "technical" you want to word things. It also depends to a large degree on what the plaintiff and/or court will let you "get away with"

Maybe the plaintiff would object to your objections by saying your response was vague or evasive. I'm sure they could argue they "need" the information to correlate it to any payments shown on the account.

Personally I'd try something similar to what I mentioned above. I'd also be prepared to support my objection if questioned on it.

Let's look at the hypothetical interrogatory I was addressing:

INTERROGATORY NO. 3: Please state the name and address of any and all financial institutions, bank, credit unions, or delayed-deposit services utilized or patronized in the past five years by the Defendant including but not limited to instituttons holding checking, savings, money market or certificates of deposit accounts on behalf of the defendant.

Here is my uneducated (and possibly dead wrong opinion) on this interrogatory. That interrogatory asked for a lot of information and addresses that IF provided would likely have nothing to do with the case at hand.

If someone answering this particular question had MORE than one bank account, credit union account, money market account etc during this 5 year period then I'm sure answering the interrogatory as it was asked would be pretty useless. There is a great chance that some of the accounts listed would be totally irrelevant because they were NEVER used to make a payment on the alleged debt (even if the defendant is admitting the debt).

Thus these accounts would have absolutely nothing to do with the alleged debt the plaintiff is suing on. At this stage that makes providing those addresses irrelevant and a waste of everyone's time. Why would you give them the name and address of an account that was never used to make a payment? Why would that be relevant for anything other than making the plaintiff's garnishment procedures a little easier? That's how I would be prepared to argue things should someone push the issue.

IF the plaintiff had requested the defendant give the name and address of any financial institution used to make a payment on the alleged account it might be a more relevant request. That's not what they asked. Since the OP's original post shows the plaintiff asks for specific payment information later on in their discovery requests, there is even less of a reason to provide them with names and addresses of ALL the financial institutions over the past 5 yrs.

I'm sure that interrogatory is nothing more than intimidation and a fishing expedition to make garnishment proceedings much easier should things get to that point

I'd be prepared to argue in support objection(s) but I certainly wouldn't answer that unless the court ordered me to do so.

[SingleDadJames]

Does any of the above alter your recommendations?

Careful...those weren't my "recommendations", They were just my opinion of how I would approach things! That being said I don't think my opinion on how I might answer things would change much.

I took a minute to read your original thread where you posted about this. It sounds to me like you don't have the means or intention to pay on this..but that you aren't disputing much about the debt.

Generally speaking an original creditor would have the information they need, along with the resources to prove their case. It doesn't mean it's hopeless etc. but it means fighting back and winning might be a little more difficult.

I don't know what they've attached to the complaint. If you haven't been supplied with a copy of the credit card terms or any account statements to this point then you would certainly be wise to request them in Discovery. If you don't have records of this account then you may lack sufficient knowledge or information to admit anything at this point. I certainly don't admit to anything unless I am armed with all of the necessary information to know whether or not what is being claimed is true.

I see you may be considering bk etc. You can certainly buy yourself some time by responding to Discovery and making your own requests.

You may or may not be able to settle this for a manageable amount...only you know whether that is an option.

In the end if they get a judgment against you, you may be able to request a manageable payment plan. (In my time in court I saw a woman arrange $50 monthly payments on a $4000+ debt. That was a junk debt buyer plaintiff but you never know...)

I also wasn't shy about letting the plaintiff's attorney know that if I lost it would probably be more beneficial for me to save my pennies toward filing bankruptcy than it would be to put them toward voluntarily paying a judgment.

[Claude]

"I don't know what they've attached to the complaint. If you haven't been supplied with a copy of the credit card terms or any account statements to this point then you would certainly be wise to request them in Discovery. If you don't have records of this account then you may lack sufficient knowledge or information to admit anything at this point. I certainly don't admit to anything unless I am armed with all of the necessary information to know whether or not what is being claimed is true."

James I understand that you are just offering opinions - and I appreciate you taking the time to do so.

And no, there was nothing attached to the complaint. I you are correct, this will be a pyrrhic victory for them. How do go about telling them that?

I was thinking along the same line as you allude to regarding my responses - just deny everything except the obvious (name, address, etc.) or simply state I don't have enough knowledge to answer. What happens if I do that? Also, what does the "answer under oath" mean? I am not getting sworn in by anyone.

[SingleDadJames]

And no, there was nothing attached to the complaint. I you are correct, this will be a pyrrhic victory for them. How do go about telling them that?

It may be as simple as telling them/eluding to the fact that if you lose you'll be filing bk. Of course collectors and collection attorneys hear that all the time..so whether that is a deterrent is anybody's guess.

I was thinking along the same line as you allude to regarding my responses - just deny everything except the obvious (name, address, etc.) or simply state I don't have enough knowledge to answer. What happens if I do that?

Of course this varies greatly case to case and from court to court so that's a hard question.

I can tell you that's basically how I answered Discovery in my case, BUT that was with a junk debt buyer and I really had no records of the account. If it was something I didn't know and they didn't give me enough info to answer I recall using a lot of

"After a reasonable inquiry, the information known or readily obtainable by the Defendant at the present time is insufficient to enable him to admit or deny this request and on that basis the Defendant generally and specifically denies the same."

Since Discovery isn't even complete (I'm assuming you haven't sent any requests for admissions, interrogatories or requests for production of documents yet) you probably DON'T have enough information to fully admit/deny anything.

If I was in this situation I would answer something similar to what I've mentioned and then send off my own Discovery requests. This at least buys you some time to figure out your next move.

I struggled with the same decision. I was worried the court/plaintiff would give me a hard time with my responses. In some/many courts you don't even file Discovery with the court. I know its so easy to get overwhelmed and even frightened a little bit with this stuff. I THINK if you send off responses like you mention you are considering, the worst that would likely happen is the plaintiff would tell you they think your responses are vague/evasive and tell you under court rule you haven't actually responded as required. Attorneys use the same tactics all the time.

Ultimately it's up for the court to decide if they decide to push the issue and compel you to file more specific responses. In the end, the most likely "worst case scenario" would be they file a motion to compel/motion for more definitive responses. Then you'd whip up your objection or response and let the court decide. Then you'd need to answer everything the court orders you to answer. Not the end of the world...and it all buys you more time anyway. I'm certainly no attorney and it's only my opinion. If I'm WAY off base I'm sure someone will chime in and let us know!

Also, what does the "answer under oath" mean? I am not getting sworn in by anyone.

You'll need to check your rules of civil procedure but basically you need to include a statement at the end of your Discovery responses that you swear you answered them truthfully under oath.

I included a "Defendant's Sworn Statement" at the end of mine. Mine was something like:

The below-named person, being duly sworn on his/her oath, states that he/she has read the foregoing requests and certifies under penalty of perjury that the foregoing responses and statements given are true to the best of the affiant’s knowledge and belief.

I then took the sworn statement and had it notarized by signing in front of a notary public (my bank has one that does it for free). Although she may have technically been supposed to swear me in, she didn't do anything but have me sign it and then she notarized it.

Whether or not that was the RIGHT way to do it, I can't guarantee...but noone complained

Edited March 27, 2011 by SingleDadJames

[Claude]

Looking ahead, after I file my response to their interrogatories & admissions should I send them some interrogatories & admissions for them to answer - just to put up more resistance? If so, is there a template I could use?