Jump to content

Sued by Gamache & Myers on 3 Counts. HELP PLEASE


Recommended Posts

The Junk Buyer here is Cach, LLC via BofA

I am being sued by Gamache & Myers PC on the following

1) Suit of Contract

2) Money Had and Received

3) Account Stated

for $9,900.00 with a court date of 11/22/11.

When I look through the paperwork, they originally filed on 9/29/11 and got process of server appointed on 10/19/11. I was served yesterday 11/5/11 at my house. I am in Missouri.

Thanks to the information I came across in this website, I intend to fight this case. That stated I have an outline on what it is I will be doing this week and I want to make sure that I haven't missed anything and any tips/advise on dealing with this group would be greatly appreciated.

My to do list is as follows:

1) Prepare Notice of my intent to defend

2) Request Debt Validation

3) File Sworn Denial and include counter suit (to maintain control)

4) Ask for Discovery

5) Prepare motion to Strike Affidavit of Debt

I know to send everything to court of DJB Attn but the big questions is do I file all of this at the same time? Again any tips/advise/success stories against these guys would be greatly appreciated

Edited by ArtieRay
Needed to remove certain items and add other items
Link to comment
Share on other sites

I am being sued by Gamache & Myers PC on the following

1) Suit of Contract

2) Money Had and Received

3) Account Stated

for $9,924.36 with a court date of 11/22/11.

When I look through the paperwork, they originally filed on 9/29/11 and got process of server appointed on 10/19/11. I was served yesterday 11/5/11 at my house. I am in Missouri.

Thanks to the information I came across in this website, I intend to fight this case. That stated I have an outline on what it is I will be doing this week and I want to make sure that I haven't missed anything and any tips/advise on dealing with this group would be greatly appreciated.

My to do list is as follows:

1) Prepare Notice of my intent to defend

2) Request Debt Validation

3) File Sworn Denial and include counter suit (to maintain control)

4) Ask for Discovery

5) Prepare motion to Strike Affidavit of Debt

I know to send everything to court of DJB Attn but the big questions is do I file all of this at the same time? Again any tips/advise/success stories against these guys would be greatly appreciated

It's too late for debt validation. That's done before a lawsuit. You must answer the Complaint within the allotted time. Read and study your court's Rules of Civil Procedure. Make sure you follow the court's rules for answering the Complaint.

Link to comment
Share on other sites

My to do list is as follows:

1) Prepare Notice of my intent to defend

No such thing. You must file an appearance with the court, stating that you are defending this pro se. The form should be on line, see your state judicial web site.

2) Request Debt Validation

Too late. You'll have to incorporate the elements into your defense.

3) File Sworn Denial and include counter suit (to maintain control)

The answer to the complaint can contain a general denial. Don't start fooling about with counterclaims unless you really know your legal stuff. You may not have any grounds for one.

4) Ask for Discovery

By all means, production of documents is what I recommend. We'll help you with that later.

5) Prepare motion to Strike Affidavit of Debt

Not quite yet. I want you to go through my posts from the last couple of days. You'll find a link to an article an attorney wrote, in which he shows how to attack an affidavit.

You left out the most important fact; who is the plaintiff suing you? Is it the original lender or someone who bought the account? We call these guys "junk debt buyers" or JDBs. Also, when you study your rules of procedure, see if you can file for an extension of time in which to answer the complaint. If so, do so. That gives you the time you'll need to study. Also, post the complaint here word for word, and any discovery they send you. Contact the other side and ask the attorney to provide everything to you in pdf form so you don't have to type this stuff. Don't use your name or the name of the law firm, don't use exact amounts, round everything off. Big brother is watching. Go back and edit your post, take that stuff out.

Link to comment
Share on other sites

  • 2 weeks later...

Here is where I am at..

I was served on 11/5 to appear in court on 11/22

Based on the on the information from this site I have

1) Sent back my answers - filed with the court (11/09) and sent certified mail to G&M

2) Sent 1st request for documents (faxed and certified mail) to G&M (11/11)

3) Sent 2nd request for documents (faxed and certified mail) to G&M (11/14)

4) Filed Document to Compel for discoverty with court and cent certified mail to G&M (11/16)

Through all of this I have not received any correspondence from G&M to my request for information.

Is there anything else I should be doing? What can I expect in court on 11/22 given the lack of correspondence to this point and how do I prepare? ANY AND ALL ADVISE IS WELCOME. Remember I am in Missouri.

Link to comment
Share on other sites

Mr. XXXX:

This communication is a Request for Production of Documents and Things for civil case no. XXXX-XXXX which was served upon your office by means of certified mail. As a reminder I, as a Defendant, am entitled to request this documentation per Missouri Civil Rule 58.01.

This communication is my effort to receive the cooperation of your office in this matter to inspect and copy the requested documents so that both parties may proceed forward in this case before the court. Should you fail to comply with this request, I will be forced to exercise my rights as a Defendant under Missouri Rule 61.01(d) & file a motion to compel with the court to receive your compliance with the rules of Discovery. I look forward to hearing from your office.

Link to comment
Share on other sites

IN THE CIRCUIT COURT OF JACKSON COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

November 16th , 2011

Case No: XXXX-XXXX

MOTION TO COMPEL DISCOVERY

CACH LLC A LIMITED LIABILITY COMPANY

PLAINTIFF,

Vs. CAUSE NO.

Div/Team XXX

SELF

DEFENDANT(s)

COMES Now Defendant, ME , and files this MOTION TO COMPEL DISCOVERY, and requests the Court to grant such Motion based on facts stated below:

1. Defendant served Discovery Requests by certified U.S. Mail to Plaintiff's attorney, XXXXXX , on November 10th and again on November 14th 2011. A copy of the certified mail receipt is attached hereto as Exhibit "A” and “B.”

2. Defendant faxed a Good Faith letter to Plaintiff's attorney XXXXXX on November 10th and November 14th 2011, requesting Discovery answers and documents, or for Plaintiff to request an enlargement of time to answer Discovery. A copy of the faxed letter is attached as Exhibit "C" and “D.”

Respectively, 12 O.S. Section 3237 E.:

"FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWER TO INTERROGATORIES OR RESPOND TO REQUEST FOR INSPECTION. If a party fails: 2. To serve answers or objections to interrogatories submitted under Section 3233 of this title, after proper service of the interrogatories;

The court, in which the action is pending on motion, may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs a, b and c of paragraph 2 of subsection B of this section."

CONCLUSION

Defendant has made good faith efforts to remind the Plaintiff of his responsibilities to answer Discovery, and as of this date, no documents are forth coming nor has he communicated any request for extention. Plaintiff's lawsuit and Motion for Summary Judgement is based on documents and facts that they allegedly possess. Defendant has repeatedly requested these documents and proofs of facts, but has been denied.

Respectfully submitted this 16th day of November, 2011

DEFENDANT

Appearing for himself

Link to comment
Share on other sites

CACH LLC A LIMITED LIABILITY COMPANY

PLAINTIFF,

Vs. CAUSE NO.

Div/Team XX

SELF

DEFENDANT(s)

Comes now SELF, Defendant, appearing pro se, herein and submits his Answer and Affirmative defenses to the allegations of the complaint filed against him herein. All Answers correspond to the specific sections and numbered paragraphs of the Complaint. Defendant hereby denies any claims or allegations not specifically admitted.

ANSWERS: COUNT I – SUIT ON CONTRACT

And now answering the allegations of the complaint paragraph by paragraph, Defendant would show the following:

Paragraph 1. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 2. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 3. ADMIT

Paragraph 4. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 5. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 6. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 7. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 8. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 9. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 10. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 11. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

ANSWERS: COUNT II – MONEY HAD AND RECEIVED

Paragraph 1. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 2. DENIED – This request calls for admission of matter defendant has denied and thus it is improper.

Paragraph 3. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

ANSWERS: COUNT III – ACCOUNT STATED

Paragraph 1. DENIED – This request calls for admission of matter defendant has denied and thus it is improper.

Paragraph 2. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 3. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 4. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 5. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 6. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 7. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

DEFENSES

1. CACH LLC has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

2. CACH LLC has not proven that they were retained by BANK OF AMERICA NA as it’s representative in this matter.

3. CACH LLC has not proven that BANK OF AMERICA NA is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of BANK OF AMERICA NA with all of the original creditor’s rights and privileges intact.

4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. CACH LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

7. Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

8. Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

9. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

10. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

11. Plaintiff's alleged damages are limited to real or actual damages only.

12. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

13. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

14. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, now having fully answered said Complaint, Defendant requests that said Complaint be Dismissed with prejudice, and that Defendant be awarded costs of this suit against Plaintiff.

Link to comment
Share on other sites

1) We can't tell what you are responding to. You need to post what the complaint stated, with all identifying information redacted.

2) It is my understanding that CACH LLC is a JDB, meaning that BofA is not the real party of interest, and nothing that you have posted shows that CACH LLC is making any such claims. There will be more critiquing from people on this site, but this is major, unless they made claims in the complaint that you have not posted.

Link to comment
Share on other sites

You are making some serious procedural errors. Did you read Rule 57.01?

(1) When the Response is Due. Responses shall be served within 30 days after the service of the interrogatories. A defendant, however, shall not be required to respond to interrogatories before the expiration of 45 days after the earlier of:

(A) The date the defendant enters an appearance, or

(B) The date the defendant is served with process.

The court may allow a shorter or longer time.

You filed a motion to compel after ten days. You need to stop doing things like this. Your motion is improper and will be denied. It will also get you a bad reputation with the judge as a pro se wannabe who doesn't know or follow the rules.

Link to comment
Share on other sites

PETITION

COUNT1 - SUIT ON CONTRACT

Comes now, Plantiff, CACH LLC, and for its cause of action against Defendant(s), states as follows:

1. All times pertinent therein, Plantiff was at times relevant herin a LIMITED LIABILITY COMPANY, duly organized and existing under the law

2. Plantiff is the holder of a valid assignment of account which originated with Bank of America NA

3. Defendant(s) is/are residents of Jackson COunty, MO

4. BANK OF AMERICA and Defendant(s) entered into a contract, where by BOFA extended credit pursuant to the terms and conditions of a credit agreement (hereinafter referred to as "agreement")and Defendant(s), in exchange for the use of the credit extended, agreed to pay BOFA for all amounts due resulting from the authorized use pursuant to the Agreement, including any finance charges and any other charges due under the terms of the agreement

5. BOFA fully abided by the terms and conditions as set forth in said agreement

6. Defendant(s) has/have not made all payments to BOFA pursuant to the argreement

7. BOFA sent monthly statements to the defendants

8. Defendants breached the agreement by failing to paythe amount owed

9. As a direct and aproximate result of the defendants breach of the agreement, BOFA has sustained damages in the sumof $10,000

10. BOFA has fully performed,pursuant to the terms of the agreement or its performance has been due to the defendants breach

11. BOFA and subsequently, plantiff, have made demand for payment of the outstanding sum of $10000 but the defendant has/have failed and refused to pay. Plaintiff seeks interest from Aug 31 2010, which is the date of demand or subsequent to the date when the demand payment was made

Wherefore, plantiff, CACH LLC prays for judgement in Count 1 against the Defendant(s), in a sum for $10000 plus interest and for all costs expended herein and forany other further releif this court deems just and proper

COUNT II - Money had and received

Comes now Plantiff, and for its alternative cause of action against Defendants states as follows:

1. Plantiff restates and re-alleges each annd every paragraph of COUNT I as if fully set fourth herein

2. Defendants received and used (or authorized the use of) the credit knowing the BOFA expected to be repaid for all monies advanced together with interest thereon. With each use of the credit BOFA paid money on Defendants behalf to the merchant with who the credit was used. Defendant accepted said funds for the purchase of goods, wares, merchandise or services and has been unjustly enriched by failing to repay such sums

3. Plaintiff is the assignee of the Issuer's rights to be repaid by the defendant for such moneyhad and received and it is entitled to recover from the defendant the sum of $10000 that being the balance due through August 31 2010.

Wherefore, plantiff, CACH LLC, prays for judgement in COUNT II agains the defendant in the sum of $10000 together with interest as provided by thelaw from Aug 31 2010, all costs expended herein and for any other and further releif this Court deems just and proper

COUNT III - Acount stated

Comes now, Plaintiff, and for its alternative cause of action against defendant states as follows:

1. Plaintiff restates and re-alleges each and every paragraph of COUNTS I and II as if fullly set forth herein

2. Defendant and BOFA had previous financial transactions related to the agreement issued to the Defendant by BOFA at the defendants insistence and request

3. Pursuant to said transactions BOFA sent defendant statements to which the defendant did not object

4. Pursuant to the terms and conditions sent to the defendants in the agreement and governing its use the defendant made an unconditional promise to pay the amount due with the use of said card

5. The balance agreed to by the parties is $10000

6. The defendant has failed to keep his promise to pay said balance despite demand for same having been made

7. Plaintiff is the assignee of BOFA to be repaid by the DEFENDANT on the account and it is entitled to recover from the defendant the sum of $10000 that being the balance due through Aug 31 2010

Wherefore plaintiff CACH LLC prays for judgement in COUNT III against the defendant in the sum of $10000 together withinterest as provided by law from Aug 31 2010, all costs expended herein and for any other and further releif this court deems just and proper

Link to comment
Share on other sites

I suggest an amended answer. Check your rules of procedure, usually you have 30 days to make a new answer without getting anybody's permission. This thing you wrote up is too boilerplate. That means you repeat the same thing over and over without attacking the factual basis of the complaint. It looks like copy and paste stuff. NONE of the affirmative defenses you list have any merit. Some of them are completely incorrect factually, some are based upon faulty legal conclusions, and some of them are not even defenses. They aren't really necessary in a credit card case, unless you know the law and how to attack certain aspects of the complaint. I suggest you delete all of them.

Here is what a special defense does: It tells the court this: "Yes, every word of the complaint is true. However, for this reason or based upon this set of facts, the plaintiff is not entitled to prevail under the law." The best ones are statute of limitations, fraud, or mistake. Best thing to do is let these people hang themselves because they will never be able to provide the docs they need to win. Like Coltfan will tell you, cases are made in discovery.

They brought suit, it is their responsibility to present all the evidence needed to win. They will serve you with discovery, post it here BEFORE you answer. Don't file any more motions, please! Not until you run them by us. There needs to be a good legal basis for a motion. Serve them with requests for production of documents, no interrogatories or anything else for now. And by all means, take some time and read the rules of procedure for your state. The mistakes you are making can be fatal to your case.

I am not a member of any bar, but I do enjoy drinking in one occasionally. Any information I provide should be taken for what it is, my personal opinion. Take from it what you may.

Link to comment
Share on other sites

First, big thanks @ leagleeagle

To anyone, I'd like to get an idea of what I should expect this first day of court and also what my goal is when I go in on this first day. I have an idea (outlined as follows) but I'd like to get some feedback

Here is what I think my goal is...

1) I believe that my goal here is to get the case to go to trial

2) Get the judge to compel discovery

I guess my confusion here is because I've had such a short period to get ready for the court date and give the fact that I havent received anything back from G&M for discovery I'm sort of at an impasse here

Link to comment
Share on other sites

To anyone, I'd like to get an idea of what I should expect this first day of court

Not to sound too obvious, but it will depend on what the hearing is for. They don't just set a court date and not tell you what it's for. For example, is it to hear motions, set future court dates, discuss discovery, have an actual trial, a required mediation hearing of sorts, ect... You don't just show up to court and say hey Judge what's up, what are we here for.

Your in for a ticked off judge if you start asking the court to do something that is clearly laid out in the rules on how to do it. It appears you've already filed a way pre-mature motion to compel (not good).

You've also already painted yourself into a corner that is going to be next to impossible to get out of with those crazy affirmative defenses. Do you even know what you argued in those affirmative defenses? Also, do you realize an affirmative defense is like saying yeah their right but here is why they should not win anyway. Are you aware those defenses you have to prove, you have the burden. The other side does not have to prove your affirmative defenses are not valid. You just flipped the burden of proof to yourself.

For example, the statute of frauds. If you can find even one case in the whole country, that stood up on appeal, where a party won a credit card case arguing statute of frauds, it will be the first I've ever seen.

I'm not trying to beat you up. I've posted hours and hours on affirmative defenses. If you care you can check my posts. I was going to stay out of this thread and I'm no expert, but in my opinion, your getting ready to have your rear handed to you. You might get a little help from the judge. However, they are under zero requirement to do so.

Of course your goal is to get this to trial. However, at this point all you have done is set yourself up for an interrogatory that asks you to state in detail your legal theory for each and every defense you have pled. You will have none, then motion to strike, motion granted, then motion for summary judgement as there is no trialble issues as there is no defense to the allegations.

Here is how my first pre-trail hearing went.

Judge- Are the parties ready

Us- Yes Your Honor

Judge- Good morning Mr. Coltfan you may address the court.

Me- Good morning Your Honor and if it pleases the court we are here on A,B,C,D and I would like to start with A if that pleases the court.

I also have a copy of the motion with brief I will be referencing if Your Honor wishes to be provided with a copy. I will also be referencing case(s) XXXXX and have those cases with pertinent parts of the decision, which I will be making numerous references, highlighted. I also have copies of those cases if you wish to have for quick reference.

Judge- I'll take a look at your cases, but I have your pleadings in front of me.

Me- May I approach the bench.

Judge- You may.

Me- Thank you Your Honor and let the record reflect I am also providing opposing council with exact copies of what is being given to Your Honor.

Judge- So noted, thank you, you may proceed.

What you don't want is this.

You- Your Honor why are we here. Also I would like your honor to compel discovery in this case.

Judge- What? compel what?

You- Discovery

Judge- Your motion is not ripe. Your motion is denied. Let's move on, next matter is XXXX

Now which way sounds better?

Once again, it sounds rude but not meant to be that way. It appears your getting ready to walk into a gunfight carrying a butter knife. Your walking on to the other sides home court. The way they look at it is, you have not paid your dues, gone to law school, run up a ton of school loan debt, working 60 hours of grunt work to try and get ahead in five years, and here you are trying to argue and win against us, attorney's at law. If you don't think they want to destroy you and not only beat you but make you look like a idiot, your fooling yourself.

I'd be trying to un-ring the pre-mature motion bell by filing a motion to voluntarily withdraw the motion to compel. In the motion I would apoligize to the court and the other side for your misintereprtation of the rules and assure the court you will only file motions that are ripe from this point forward.

Good luck, but I cringe at the thought of walking into court and not really knowing exactly what your there for.

Link to comment
Share on other sites

I have heard your feedback here loud and clear. Again, I apologize for my ignorance in the situation and if I have offended anyone here. Please continue to give me your feedback (in its most uneddited form if needed) and I will continue to make changes based on your input. That stated. Here is the new Answer I will file tomorrow. I have removed the Affirmative defenses and tried to me a little more "answer specific" to not look so cookie cutter. Given the original petition as I have it here, if there are better responses for me to use, please provide an example. In the meantime, let me know your thoughts on my new answer as follows:

ANSWERS: COUNT I – SUIT ON CONTRACT

And now answering the allegations of the complaint paragraph by paragraph, Defendant would show the following:

Paragraph 1. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 2. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 3. ADMIT

Paragraph 4. ADMIT in part. I did have an account with Bank of America. DENY in part, I have been presented no evidence that the account I had with Bank of America NA is the same account as the agreement alleged in this complaint.

Paragraph 5. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 6. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 7. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 8. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 9. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 10. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 11. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

ANSWERS: COUNT II – MONEY HAD AND RECEIVED

Paragraph 1. DENIED – This request calls for admission of matter defendant has denied and is thus improper.

Paragraph 2. ADMIT in part. I did have an account with Bank of America. DENY in part, I have been presented no evidence that the account I had with Bank of America NA is the same account as the credit usage alleged in this complaint.

Paragraph 3. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

ANSWERS: COUNT III – ACCOUNT STATED

Paragraph 1. DENIED – This request calls for admission of matter defendant has denied and thus it is improper.

Paragraph 2. ADMIT in part. I did have an account with Bank of America. DENY in part, I have been presented no evidence that the account I had with Bank of America NA is the same account as the financial transactions alleged in this complaint.

Paragraph 3. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 4. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 5. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 6. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

Paragraph 7. DENIED – Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof .

DEFENSES

Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, now having fully answered said Complaint, Defendant requests that said Complaint be Dismissed with prejudice, and that Defendant be awarded costs of this suit against Plaintiff.

Link to comment
Share on other sites

I understand now that I must try and reverse the error in my ways by attempting to get the Motion to compel discovery withdrawn: Here is what I plan to file tomorrow. If I can improve upon it or you have some advise please let me know.

MOTION TO VOLUNTARILY WITHDRAW

COMPEL FOR DISCOVERY

CACH LLC A LIMITED LIABILITY COMPANY

PLAINTIFF,

Vs. CAUSE NO.

Div/Team XX

ARTIERAY

DEFENDANT(s)

COMES Now Defendant, ARTIERAY, and files this MOTION TO VOLUNTARILY WITHDRAW COMPEL FOR DISCOVERY, and requests the Court to grant such Motion based on facts stated below:

I would like to express my deepest apologizes to not only the court but also to GAMACHE & MYERS PC for misinterpretation of the rules of the court. I assure the court that any motions filed from this point forward will be ripe.

Respectfully submitted this 21st day of November, 2011

Link to comment
Share on other sites

I apologize for my ignorance in the situation and if I have offended anyone here.

No reason to apologize and I can't imagine you even remotely offended anybody. I know I was not for sure.

There are a few attys on here but for the most part nobody is an expert. It's just advice based on experience, which I offer.

Link to comment
Share on other sites

Personally, I would not admit to an account with Bank of America. Based on your own answers you don't have enough information at this time. Don't read into their pleading. Answer it just as it is presented. You just stated you don't know if it was under this agreement. They state it's the account with the attached agreement. I would not have enough info to answer so I would have to deny. Proving you ever had an account with Bank of America is critical. I would not give them a free pass on this.

In my opinion, your motion to correct your motion to compel is actually a little too over the top. Your intent is good though.

Personally, I would say.

Comes now the Defendant, XXX, and voluntarily withdraws his motion to compel discovery. The Defendant in error filed this motion, which was untimely. The Defendant now withdraws his motion.

Defendant apologizes to the court and to opposing council for any confusion. The Defendant will refile his motion if the need dictates, after opposing council has been given proper time to respond.

Respectfully submitted,

You

You want to apologize but at the same time leave the door open to refile.

Link to comment
Share on other sites

No reason to apologize and I can't imagine you even remotely offended anybody. I know I was not for sure.

There are a few attys on here but for the most part nobody is an expert. It's just advice based on experience, which I offer.

I can't imagine it either. You took a beating with people telling you about why that motion was a bad idea and are still willing to engage in discussion. That is a good thing. You have too much at stake here to be offended when somebody tells you that something is a bad idea or that you made a stupid move. Learn from your mistake, try to fix it, then move on.

Link to comment
Share on other sites

I received this in the mail today from G&Min response to my discovery request.

PLANTIFF'S GENERAL OBJECTION TO DEFENBDANTS DISCOVERY REQUESTS:

COMES NOW Plaintiff, by counsel, and objectsto Defendant's discovery requests sent to PLaintiff on or about November 9, 2011.The discovery requests do not conform to Missouri Supreme Court Rule 57.01, whereby all discovery requests sent after January 1, 2006 must be sent in "an electronic copy in a commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher." Plaintiff, in an effort to reduce the waste of paper and resources prefers discovery requests to be forwarded to them in electronic medium so answers and or specific objections may be placed neatly on Defendant's request and only the final copy is printed and returned. As the Rule now requires that discovery be sent in this format, Plaintiff is within their reight to request that Defendant provide a propery discovery request.

I just received this today. Let me know your thoughts on my actions here:

1) Get email address from them and forward it to them via email

2) Put copy of discovery request on disc and overnight to them in the mail to be received by tomorrow.

This time before I act, please provide some input and thoughts here

Link to comment
Share on other sites

I received this in the mail today from G&Min response to my discovery request.

PLANTIFF'S GENERAL OBJECTION TO DEFENBDANTS DISCOVERY REQUESTS:

COMES NOW Plaintiff, by counsel, and objectsto Defendant's discovery requests sent to PLaintiff on or about November 9, 2011.The discovery requests do not conform to Missouri Supreme Court Rule 57.01, whereby all discovery requests sent after January 1, 2006 must be sent in "an electronic copy in a commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher." Plaintiff, in an effort to reduce the waste of paper and resources prefers discovery requests to be forwarded to them in electronic medium so answers and or specific objections may be placed neatly on Defendant's request and only the final copy is printed and returned. As the Rule now requires that discovery be sent in this format, Plaintiff is within their reight to request that Defendant provide a propery discovery request.

I just received this today. Let me know your thoughts on my actions here:

1) Get email address from them and forward it to them via email

2) Put copy of discovery request on disc and overnight to them in the mail to be received by tomorrow.

This time before I act, please provide some input and thoughts here

First, check the rules that they are quoting and make sure you understand them.

Assuming that they are correct, use whatever method is most convenient for you. If you are worried about them having your normal email address, but want to use email, there are many places where you can get a free email address to use specifically for these purposes.

Link to comment
Share on other sites

I have emailed this to them, have faxed it to them (with fax receipt on the header) and have put disc in the mail in response to the objection. Let me know your input here please:

November 21st, 2011

EDWARD J. MYERS

GAMACHE & MYERS PC

Attn: CACH LLC A LIMITED LIABILITY COMPANY

Cause No. Div/Team 25

1000 CAMERA AVE – STE A

SAINT LOUIS, MO 63126

Mr. EDWARD J. MYERS:

This communication is a Request for Production of Documents and Things for civil case no. XXXX which was served upon your office by means of certified mail. As a reminder I, as a Defendant, am entitled to request this documentation per Missouri Civil Rule 58.01.

I have faxed this request to your office multiple times. Pursuant to Missouri Rule 57.01, as of 11/21/2011 I have not only emailed this request for discovery to the email donhorowitz at gmcollects.com as an email attachment but I have also sent a CD-ROM as well.

This communication is my effort to receive the cooperation of your office in this matter to inspect and copy the requested documents so that both parties may proceed forward in this case before the court. Should you fail to comply with this request, I will be forced to exercise my rights as a Defendant under Missouri Rule 61.01(d) & file a motion to compel with the court to receive your compliance with the rules of Discovery. I look forward to hearing from your office

Link to comment
Share on other sites

Please note that I am in Missouri.

Thanks to advise I've received thus far in this process. I know I'm no where but feel like today helped me if not for anything more except to get comfortable in a court room setting.

Today when I went to court

1) the court accepted my motion to remove my pre-mature motion to compel discovery

2) I'm due back in court to "see where we are at with discovery" on Dec 20th

That said If you read my previous post I received a letter "PLAINTIFF's GENERAL OBJECTION TO DEFENDANT's DISCOVERY REQUESTS" which basically in reply to my request for documentation from the plaintiff I sent to them on the 11/9/2011 after being served on 11/5/11. They state that they are rejecting that 11/9th discovery request as it was not in the proper format pursuant to rule 57.01.

I'd like to know if my ideas of next steps are correct. I have been studying the rules of the court and I did send another request for documentation in the correct format as of 11/21. I'd like to know if I should/need file a motion to strike the "PLAINTIFFS GENERAL OBJECTION TO DEFENDANT'S DISCOVERY REQUESTS" or will the fact that I have now requested the production of documents in the correct be enough.

I have another 13 days to continue to request production of information, before, assuming I dont receive a response to my request for information, I will then file the motion to compel for discovery. Besides continuing to study civil procedure, what else canI be doing to proactively and not reactively get ready for my next date in court?

Any and all advise is welcome.

Happy Thanks Giving to everyone as well.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.