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have answered complaint in indiana, need help with request for discovery.


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I have been served complaint and have answered. Now they have sent me discovery. I would like help and am willing to post all documentation so everyone can get a good look(certain personal info redacted). I am in Indiana and am wondering when I should send my request for discovery and also how to answer my interrogatories.

Please Help and Thanks in Advance.

Thanks

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I have been served complaint and have answered. Now they have sent me discovery. I would like help and am willing to post all documentation so everyone can get a good look(certain personal info redacted). I am in Indiana and am wondering when I should send my request for discovery and also how to answer my interrogatories.

Please Help and Thanks in Advance.

Thanks

You can post whatever you choose, and the members here will be glad to offer suggestions.

I'd also suggest providing the link to your court rules.

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Below is the answer I have sent to the complaint. My exhibit is a dispute form I originally sent the OC months ago. They did not respond. Everything has been sent certified mail. Below is the answer. My next post will have the dispute form I sent months ago.

Thanks in advance.

STATE OF INDIANA ) IN THE xxxxx COUNTY SUPERIOR COURT

) SS:

xxxxx COUNTY, INDIANA CAUSE NO. xxxxxxxxxxxxxx

Citibank, N.A. )

Successor To Citibank (South Dakota), N. ).

701 East 60th Street North )

Sioux Falls, SD 57117- )

)

Plaintiff )

)

Vs. )

)

xxxxx xxxxxxxx )

xxxxxxx xxxxxxx )

xxxxxx, IN xxxxx )

)

Defendant )

I.ANSWER

Now comes Defendant, xxxxx xxxx, Pro Se, who denies the following paragraphs of Plaintiff's Complaint:

1.Defendant denies the allegations contained in Paragraph 1 of the Complaint.

2.Defendant denies the allegations contained in Paragraph 2 of the Complaint.

3.Defendant denies the allegations contained in Paragraph 3 of the Complaint.

4.Defendant denies the allegations contained in Paragraph 4 of the Complaint.

II.AFFIRMATIVE DEFENSES

1.Attached hereto as Exhibit “A” is a Billing Error Dispute Form which was sent by Defendant to Plaintiff on March 11, 2011 by Certified Mail with return receipt signed on March 14, 2011. Plaintiff has failed to respond pursuant to 15 USC Sec. 1666(a)(3)(A); and 15 USC Sec. 1666(a)(3)(B)(ii); and also 15 USC Sec. 1666(d).

2.Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

WHEREFORE, Defendant prays that this court take nothing of the Plaintiff’s Complaint and dismisses this complaint without prejudice

Respectfully Submitted,

September 28, 2011

_______________________________

xxxx xxxxxx

xxxx x xxxxxxx

xxxxx, IN xxxxx.

Certificate of Service

The undersigned hereby certifies that, on September 28, 2011 a copy of the foregoing Answer to Complaint with Cause No. xxxx-xxxx-xxxx was deposited in the United States Mail, postage paid, addressed to:

xxxx xxxxxx xxxxxx

Attorney for Plaintiff

xxxxx xxxxxxxx xxxxx

xxxxxx x x x xxxxxxxx

xxxxxxxxxxxxxxx, IN xxxxx-

_______________________________

xxxxx xxxx

xxxxx xxxxxxx xxxx

xxxxxxx, IN xxxxx

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Since i got way behind in my bills due to economy, i disputed the fact that they loaned any of their money, that it was in fact money they received from the federal reserve using my signature as promissory note

In your affirmative defenses, you claimed you sent an error dispute based upon 15 USC Sec. 1666(a)(3)(A). That section is in regard to billing errors. Your dispute was not based upon an error they made in regard to any statement they sent you. From what you've stated, you simply disputed that you owe any money because they didn't loan anything.

Unless you can find a statute or case law to support such a claim, it's not going to be considered valid dispute, nor will the affirmative defense hold up.

Original Creditors are difficult to defeat. It has been done, but those cases were won because the OC had no records, or there had been disputes in the past, etc.

It appears you defaulted fairly recently, therefore you can't claim the Statute of Limitations.

You can answer the Complaint and send a request for production of documents. If the default is fairly recent, Citi is probably going to have credit card statements they can offer as evidence. Unless you have a valid defense, Citi has a strong case.

I'm not trying to be difficult, but those are things you need to consider, especially if your state allows garnishment of wages.

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My understanding of the Truth in Lending and Fair Credit Billing Act is that Citi had 30 days to acknowledge the dispute. They did not. In the FCBA after 90 days it states they relinquish their right to collect. I am including below the Billing Error/Dispute Form.

Thanks

VERIFIED CARDHOLDER BILLING ERROR DISPUTE FORM

xxxx xxxxxx Date: 03/03/2011

xxxxx xxxxxxxx Street

xxxxxxxx, IN xxxxx

CERTIFIED MAILING NUMBER: xxxx-xxxx-xxxx-xxxx-xxxx

Citicards

PO Box 6000

The Lakes, NV 89163-6000

ACCOUNT NUMBER: xxxx-xxxx-xxxx-xxxx AMOUNT IN DISPUTE: $xxxx.xx

This Verified Billing Error Dispute Notice establishes prima facie evidence as to the assertions made herein, and is taken pursuant to the Truth in Lending Act & Fair Credit Billing Act, 15 USC Sec. 1666 et seq. and Public Law 93-495 – October 28, 1974, and 12 CFR 226.13, et seq.

IMPORTANT NOTICE

THIS IS NOT A REQUEST FOR COPIES OF MONTHLY STATEMENTS, A COPY OF A SIGNED APPLICATION, OR A COPY OF THE CURRENT CARDHOLDER AGREEMENT. THIS IS A REQUEST THAT YOU MAKE APPROPRIATE CORRECTIONS TO THE ACCOUNT, OR IN THE ALTERNATIVE, THAT YOU PROVIDE A COMPLETE WRITTEN EXPLANATION REPORT AS TO WHY YOU BELIEVE THAT THE STATED BILLING ERROR IS INCORRECT (INCLUDING THE PRODUCTION OF DOCUMENTATION EVIDENCE COMMENSURATE WITH THE DISPUTE).

I, xxxxx xxxxx, declare and state:

I am writing concerning a billing error on my account. The monthly statements are inaccurate because they should reflect a bank liability (money owed to me), and not a debt. I am requesting that the error be corrected, and that any finance and other charges related to the disputed amount be credited to properly reflect the transactions that occurred. This Billing Error is limited to your failure to credit my account for credits received, as explained herein, and is not to be construed as alleging anything else.

POINTS & AUTHORITIES

1.Federal Reserve Bank of Chicago’s publication – Modern Money Mechanics, Page 6:

“Of course, they (the banks) do not really pay out loans from the money they receive as deposits. If they did this, no additional money would be created. What they do when they make loans is to accept promissory notes in exchange for credits to the borrower’s transaction accounts.”

2.Account Ledger:

Citicards accepted my signed promises to pay, receipts, notes or other similar instruments as bank money, creating and issuing new credits to my account that resulted in a bank liability (money owed to me).

3.Payments to merchants and other financial institutions.

Citicards used my new credits to pay merchants or other financial institutions for charges to the account.

4.Monthly Statements:

Citicards failed to enter the new credits on my monthly statements.

5.Additional payments:

Citicards received additional payments, interest and other finance fees, which should have been posted as additional credits to the account, resulting in a bank liability.

The error was not apparent in the monthly statements or otherwise disclosed to me, thus no notice was given. However, the statements are a reflection of an underlying in-house error and thus subject to correction.

6.12 CFR 226.13(a):

[X] The Billing Error stated herein represents: “(4) A reflection on a periodic statement of the creditor’s failure to credit properly a payment or other credit issued to the consumer’s account; (5) A reflection on a periodic statement of a computational or similar error of an accounting nature that is made by the creditor; (6) A reflection on a periodic statement of an extension of credit for which the consumer requests additional clarification, including documentation evidence.”

7.POSTING DATE(S);

[X] All dates listed on the statements.

8.TRANSACTION DATE(S):

[X] All dates listed on the statements.

9.TRANSACTION(S):

[X] All transactions listed on the statements.

10.NAME OF MERCHANT(S):

[ ] This Billing Error Dispute does not involve any merchant(s).

THIS BILLING ERROR DISPUTE DOES NOT INVOLVE:

A complaint about unauthorized charges on the credit card.

A complaint about undelivered goods and services or an overcharge by a merchant.

A dispute with a merchant or a dispute about a specific item of goods or services.

A complaint about the quality of the goods or services.

A complaint about alleged fraudulent and deceptive banking practices.

A complaint about alleged claims regarding perpetration of fraud.

A complaint about an unlawful extension of credit or creating credit instead of money.

A complaint about my legal obligation to pay back money owed.

A complaint about fraudulent creation of the account or an invalid agreement.

A refusal to pay, or if I made charges to the account.

A complaint about whether I accepted the terms and conditions and benefited.

A preconditioning of my obligation to repay the party that funded the capital for money loaned.

ANY RESPONSE REGARDING THIS BILLING ERROR SHALL BE LIMITED TO THE ERROR ASSERTED AND MAY NOT EXTEND TO MATTERS WHICH THIS DISPUTE DOES NOT INVOLVE.

FAIR CREDIT BILLING ACT. Requirements:

1.An acknowledgment of the dispute within thirty (30) days. 15 USC Sec. 1666(a)(3)(A);

2.If the error is not corrected, a written explanation report following a reasonable investigation, including the production of documentation evidence, within ninety (90) days. 15 USC Sec. 1666(a)(3)(B)(ii); and

3.No restrictions or adverse actions on the account, pending resolution. 15 USC Sec. 1666(d).

FAIR CREDIT BILLING ACT VIOLATIONS. Failure to follow the rules pending resolution:

1.Relinquishment of the right to collect any alleged debt on the account. 12 CFR 226.13(d)(1);

2.Exposure to liability for actual damages plus twice the amount of the finance charges. 15 USC Se. 1640(a)(1)&(2); and

3.Potential criminal liability for willful and knowing violation of the FCBA and other Truth in Lending provisions. 15 USC Sec. 1611(1)&(3).

CONDITION FOR WITHDRAWAL OF THE DISPUTE:

I hereby state that this Billing Error Dispute will be withdrawn if Citicards verifies the following statements under oath:

1.That they do not follow General Accepted Accounting Principles (hereinafter “GAAP”) or the Federal Reserve Bank’s policies and procedures;

2.That they did not create any new credits from my signed promises to pay, receipts, notes or other similar instruments, and use said new credit to pay for the charges to the account;

3.That they used their own assets or other depositor’s money to fund the charges on the account;

4.That I am not entitled to have the account credited for any form of payment that they accept as money and/or assets under GAAP, or otherwise; and

5.That the foregoing was disclosed to me on a specified date in a document that is attached and incorporated into the affidavit.

Failure to verify the above five (5) statements under oath shall constitute additional proof that the stated Billing Error is correct.

THIS NOTICE CONSTITUTES A NOTICE TO CEASE TELEPHONE COMMUNICATION

Notice to the Principal is Notice to the Agent, and Notice to the Agent is Notice to the Principal.

Date:________________ Signature_________________________________

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Did you make payments that were not reflected on the statements? Did they fail to subtract the payments from the balance?

Here's the problem with your argument. The statement from the Federal Reserve is:

"What they do when they make loans is to accept promissory notes in exchange for credits to the borrower’s transaction accounts.”

That statement says "in exchange for credits to the borrower's transaction accounts.:

You had an account and used the account for purchases or cash advances. You made payments based on those transactions (charges). Those payments were in exchange for the charges you made. The payments are deducted from your balance (credited to your account).

The credits to which you refer is not money owed to you. It's money that's subtracted from the balance of your charges.

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I don't know if you knew it or not, but credit card banks upon your signature receives 10x the amount of your credit line and actually uses that money based on your signature.

I'm not sure that matters to a judge.

I am hoping that after sending them requests for discovery it won't be worth the time to pursue. Also, the credit card banks assert that they have loaned money from their own depository which is untrue.

Please give me feedback

Thanks

That's a possibility. They could decide not to pursue the case and drop it. If it were me, I'd send requests. But just be prepared in the event they don't drop the case. Some attorneys will answer your requests, then immediately file for summary judgment.

It's not going to matter to a judge where the cc company got the money. The judge will be focusing on whether or not the cc company has proven you had an account with them and made charges to the account.

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I have seen cases that have been won, when asking (in discovery) for agreement that they generally cannot produce the correct agreement or a signed contract. Any thoughts?

Thanks

That could depend upon case law in your courts and on the judge. CC companies can usually provide the correct cardmember agreement.

Most of the time, there's not a signed contract. Most cardmember agreements state that use of the card indicates your acceptance of the terms and conditions. That's an implied contract. You would need to find case law from your state or circuit court of appeals that states a signed contract is required in a credit card account.

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what about the fact they have not answered the dispute letter within the time frame.

That's something you'd need to ask an attorney. Considering your dispute was not based upon a billing error, you'd need to find out if it would be considered a valid dispute to which they must have replied.

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Thanks for your reply.

The billing error stems from the fact that my signature was used as promissory note with federal reserve which created account credits in my account but this was never conveyed to me through any statement creating a billing error. The bank has never loaned their money or their depositor's money to me at all.

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Thanks for your reply.

The billing error stems from the fact that my signature was used as promissory note with federal reserve which created account credits in my account but this was never conveyed to me through any statement creating a billing error. The bank has never loaned their money or their depositor's money to me at all.

Good luck explaining and proving it a judge. If that defense worked, every person in this country could max out their credit cards and never have to pay a penny back.

A judge is going to look at the fact that you used the card. By using the card, you accepted the terms and conditions of the agreement. Unless you can show the account is not yours due to ID theft or a mistake in the name of the cardholder, the judge is going to assume it's your account and that you used the card to make purchases.

If you can't prove the cc company charged extras you didn't authorize, or they didn't subtract your payments from the balance, you won't be able to dispute the amount claimed.

As I stated before, the judge is going to focus on whether or not the account is yours and if you used the card to make purchases.

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These are the discovery interrogatories and my intended answers. Feedback would be greatly appreciated.

Thanks

INTERROGATORY NO. 1:

State your name, Social Security number, address, phone number and place of employment.

ANSWER: My Name, My address Town, IN Zip

The answer as to the remainder of INTERROGARTOY NO. 1.:

OBJECTION: - Plaintiff's request seeks information that is not relevant to the subject matter of this litigation, not reasonably calculated to lead to discovery of admissible evidence and is an invasion of Defendant’s privacy.

REQUEST FOR ADMISSION NO. 1:

Admit that you had a Credit Card with Citibank, N.A., referenced in the complaint.

ANSWER: OBJECTION: Defendant has stated for his Answer that he is without information to form a belief as to the truth or falsity of the Credit Card referenced in the Complaint. After reasonable efforts to ascertain relevant information the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions and therefore denies the same.

REQUEST FOR ADMISSION NO. 2:

Admit that you borrowed money from Citibank, N.A. based upon terms and conditions required by Citibank, N.A..

ANSWER: Plaintiff’s Complaint does not assert that Defendant borrowed any money from the Plaintiff. Defendant is unaware of having ever borrowed any money from Citibank, N.A. After reasonable efforts to ascertain relevant information, the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions and therefore DENIES the same.

REQUEST FOR ADMISSION NO. 3:

Admit that you received monthly statements and agreed to pay the contract interest and late fees at the rate and amounts contained in the monthly statements.

ANSWER: OBJECTION: Defendant for his answer has stated that he is without knowledge to form a belief as to the truth or falsity of the allegations contained in REQUEST FOR ADMISSION NO. 3. After reasonable efforts to ascertain relevant information, the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions and therefore DENIES the same.

REQUEST FOR ADMISSION NO. 4:

Admit that you received a demand for payment from Citibank, N.A., which you have not paid.

ANSWER: DENY

REQUEST FOR ADMISSION NO. 5:

Admit that you defaulted under the terms and conditions by failing to pay the amount due on the account.

ANSWER: OBJECTION: The REQUEST is vague and unclear as to what terms and conditions are being referenced.

REQUEST FOR ADMISSION NO. 6:

Admit that you are not a minor, incompetent or have any affirmative defense

to avoid payment of this debt.

ANSWER: OBJECTION: Defendant for his ANSWER has stated that he is without knowledge to form a belief as to the truth or falsity of the debt alleged in Plaintiff’s Complaint. After reasonable efforts to ascertain relevant information, the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions and therefore DENIES the same.

REQUEST FOR AOMISSION NO. 7;

Admit that your current balance is $x,xxx.xx.

ANSWER: OBJECTION: Defendant for his Answer has denied knowledge sufficient to ascertain the truth or falsity of the Plaintiff assertions. After reasonable efforts to ascertain relevant information, the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions and therefore DENIES the same.

INTERROGATORY NO. 2:

Provide a brief explanation why you have not paid the monies identified in Plaintiff's Complaint.

ANSWER: OBJECTION: The term “monies” is not defined for purposes of these Interrogatories and after careful scrutiny of Plaintiff’s Complaint, the Defendant is unable to discern any allegation as to “monies” identified in Plaintiff’s Complaint. After reasonable efforts to ascertain relevant information, the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions.

REQUEST FOR PRODUCTION NO. 1:

Provide all letters, emails, notes, statements, receipts, cancelled checks, and other documents related to payments made on this debt.

ANSWER: OBJECTION: After reasonable efforts to ascertain relevant information, the Defendant states that he does not have any of the items detailed in the REQUEST FOR PRODCUTION NO. 1. Further, if such items exists, they would not be in the Defendant’s possession and would therefore be best accessed from Plaintiff’s records.

REQUEST FOR PRODUCTION NO. 2:

Provide all letters, emails, notes, statements, receipts, cancelled checks, and other documents related to any reason for non-payment or any dispute related with this debt.

ANSWER: OBJECTION Defendant has maintained that he is without knowledge to ascertain the truth or falsity the allegations in Plaintiff’s Complaint. After reasonable efforts to ascertain relevant information, the Defendant remains without knowledge as to the truth or falsity of the Plaintiff’s assertions and therefore DENIES the same.

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Also,

Below is my request for discovery I intend to send to plaintiff. Again feedback is greatly appreciated.

Thanks

Defendants request for discovery to plaintiff:

Interrogatory No. 1

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. 2

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. 3

Describe Citibank’s 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. 4

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. 5

On what date did the defendant become indebted to the plaintiff for $x,xxx.xx?

Interrogatory No. 6

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

Interrogatory No. 7

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

Interrogatory No. 8

Please identify and describe each exhibit you will use in the trial of Cause No. xxxxx-xxx-xxx-xx-xxxx

Interrogatory No. 9

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. 10

As to each defense set out in response to Interrogatory Nine (9), above, state the following as to

notification to Defendant of such defenses; (a) the date or dates when notification was given; (B) the

manner in which notification was given; and © the specific party or parties to whom notification was

given.

Interrogatory No. 11

Do you have the Actual Contract between the Defendant and Citibank N.A.?

DOCUMENTS TO BE PRODUCED

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

2. Please evidence proof 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.

3. 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.

4. Please provide copies of the amount paid and/or the consideration due for the alleged contract/

account.

5. Please Provide an Itemized account of all transactions mentioned in Interrogatory Number Seven (7).

6. 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.

7. 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 Indiana.

8. Please provide proof that Plaintiff loaned it's own money or it's depositor's money to defendant.

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 the 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’sdebt 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 xxxxxx xxxxxxx #xxxxxxx

Attorney(s) the authority to collect this alleged debt.

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