SpudGirl

Need help answering admissions – discovery

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Hi all,

I was sued by an attorney allegedly on behalf of Cap One (in Idaho). I answered the summons and was sent a discovery with interrogations, request for docs and admissions along with two exhibits. Exhibit A consisted of two Cap One statements (late notices) and Exhibit B was a customer agreement (without any signature) copyrighted 2010. I think I can handle the interrogatories (with objections to where I work and my bank accounts for the past ten years!) but I need help with admissions and whether or not to try to strike the exhibits.

My concern is that Exhibit A has my name, acct number, interest rate of 29.4% and credit limit on it. The statements were from Aug-Sep and Sep-Oct. The account was written off in Aug. Exhibit B doesn’t show my signature, but I made my last payment in Feb 2010 so I think it may be applicable?? I don’t know if the attorney knows that or not. If Cap One gave him a copy of my credit report, he will have that info. I don’t think he really has access to Cap One, but I’m not sure. Cap One last pulled my credit in October 2010.

Other facts: The account was opened in 2006. I asked to have it closed in 2009, but they would not “close” it because I had a balance. They agreed to “restrict activity”.

Prior to receiving discovery, I didn’t think he would have my account number or any statements, so I denied the account. Now, I don’t know how to answer the following admissions:

1. Admit you entered into a contract with Plaintiff creating a credit account.

2. Admit you agreed to pay for the credit balance on the account.

3. Admit you used, or authorized the use of the Account (which he defined in the terms section of the discovery as the account number on the statements), to obtain goods, services or money.

4. Admit you received periodic written statements which reflected each transaction, including purchases and/or cash advances, finance charges, late charges and payments made on the Account which is the subject of this law suit.

5. Admit you did not dispute, in writing, any charges made on said Account or the application of any of the payments to said account within sixty (60) days.

6. Admit you failed to make the payments pursuant to the terms of the credit agreement.

7. Admit you are indebted to the Plaintiff for the full Account Balance stated above.

8. Admit you agreed to pay interest on the Account Balance at the rate of 29.4% per annum, plus any additional court costs, both pre and post judgment, and attorney fees incurred to enforce the agreement.

9. Admit you have no evidence to disprove or defend against Plaintiff’s claims in the Action.

As of today, I have sent the attorney a discovery request based on what I’ve learned from this site and a request to the judge to push out my due date for answering the attorney’s discovery by 2 months to obtain legal counsel. (May or may not do that – I just needed time to answer.)

My biggest concern right now is how to answer the admissions. My name is on those statements. I can’t deny them. I think I do have evidence against 7,8, and 9 because I tried to close the account in 2009 and Cap One sent me a letter saying they “restricted” my account as requested. (I closed it because I would not agree to the interest rate or fees).

Any help would be greatly appreciated!!

Edited by SpudGirl

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This is a really good thread on answering admissions.

So your name is on the statements. Big deal. Where is their proof they sent them to you and you received them? Hey, you have a really bad memory and you just don't recall.

Why should you do their work for them by admitting anything? The onus is on the plaintiff to prove their case.

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A couple of things you can think about. You probably have an arbitration clause since it is Cap1 and you may be able to be use it, (depending on the rulings in your area) as a last resort.

With the user agreement being copyrighted in 2010 I would think it should not be controlling in this case and may actually work aginst them if you argue they lack a valid agreement/contract. Also you my be able to do a Motion in Limine before the trial is to begin. If they MSJ file a MTS it.

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A couple of things you can think about. You probably have an arbitration clause since it is Cap1 and you may be able to be use it, (depending on the rulings in your area) as a last resort.

With the user agreement being copyrighted in 2010 I would think it should not be controlling in this case and may actually work aginst them if you argue they lack a valid agreement/contract. Also you my be able to do a Motion in Limine before the trial is to begin. If they MSJ file a MTS it.

What determines the use of a particularly dated agreement. Is it the date of default or last payment?

If an account is quite old and has had numerous successive agreements, would agreement as of opening date of the account have any bearing?

If agreement has arbitration clause, what is the last point in the time frame of a suit that it can be requested as the suit progresses (i.e. - if motions have been filed by plaintiff or yourself).

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What determines the use of a particularly dated agreement. Is it the date of default or last payment?

If an account is quite old and has had numerous successive agreements, would agreement as of opening date of the account have any bearing?

If agreement has arbitration clause, what is the last point in the time frame of a suit that it can be requested as the suit progresses (i.e. - if motions have been filed by plaintiff or yourself).

The user agreement should begin/dated with the opening of the account and any amendments/changes of the user agreement noted, showing when it was changed and given/mailed to account holder, stating the reason for the changes and the date of such changes. The Attorney/OC/JDB is trying to use the user agreement to make you abide by the terms, if it is dated so late it is invalid. The Courts have ruled on that issue before. All new user agreements from inception to close should be provided as evidence of a valid agreement.

Arbitration is a creature of jurisdiction. Depending on where you are the Courts have made many different determinations in when you must request it. Normally, I would suggest you make as an affirmative defense, Plaintiff Failed to Seek Alternative Dispute Resolution and just leave it at that. Don't even mention arbitration. Then if you feel you are not going to prevail and you have obtained the user agreement with a binding arbitration clause invoke it. You are entitled to relief that was discovered. They will have a hard time arguing you knew of the arbitration clause and waived it, because you did not mention the clause by name.

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Something I tell people when dealing with Cap1 look at the statements very closely. Cap1 is known for underbilling you so they can get over the limit fees once finance charges are applied. That in itself is unfair, false, deceptive and misleading and makes a very good defense to a OC/JDB Cap1 and why you refuse to pay them. If you show they are violating the law in their billing practices they will have a very hard time ever collecting the debt in Court.

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try to find people with your same name. Also start research on billing errors by OC. try to make the assumption that maybe this is someone elses account that has, due to data corruption been attributed, to you. It may work. I would also not try to be showing that this is your account at all.

hit them with discovery about their computer system, they will have to disclose any problems with the computers, computer files, affiants and such.

It is gonna be tough but if you start to conduct e-discovery on them then they may want to dish out. written depositions for their system analyst.

answer the discovery with the 5 star discovery responses on this board.

and get into them with your discovery. request information on the computer system of Cap 1 and the file structure and security. hit them where their weakspot is; minimum wage employees operating highly alterable computer equipment.

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Thanks for the replies everyone!

I sent the atty a discovery request on June 15 and also got an extension granted from the judge so that I don't have to respond to the atty for another 60 days.

Should I just wait to see if the atty responds with my requests for documentation and play it from there?

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