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Fed. Lawsuit Phase two!


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The Joint sheduling order is now a thing of the pass, all parties have been assign a temp. judge to handle settlement discussions and discovery disputes.

So on with the show!

Here's a question? All defendants have stated in their answer "Immunity" or "Qualified immunity" I know they will use theses as affirmative defenses against my Stale law claim of defamation [libel]. I have some caselaw that show 1681h(e) as qualified immunity except false info published with malice or willful intent to injure. All defendants are claiming everything they did was based on truth [of course they would] but the facts are just the opposite, and then there is the complete immunity section in 1681t [which I know they're use].

Mostly all of my caselaw are from 1998 Cushman v. Trans Union for example and which explain the immunity question in favorable term in my case, however, I find that the courts are split on this issue where some favor the consumer while others seem to favor furnishers, CRAs, and users with complete immunity.

Any thoughts for a good argument with accompaning caselaw in this area would be greatly appreciated. Be Blessed! S.A.

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I just got the order which is set for mid 2012. I quess they want us to first duke it out then see who's left standing make their offer of some type of settlement. i sent some of my discovery request today to all the defendants, can't wait to see their responses. Meanwhile I'll do some research, some chilln, and a lot of prayering as things progress. Let me hear from you for ideas not thought of. Be Blessed! S.A.

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Got a notice of rule (a)(1) initial disclosure from CRA. however, when it comes to exchange of documents this is what I get:

B. Documents and Electronically Stored Information CRA may use to support its Defenses

The non-privileged, non-confidential documents in the possession, custody or control of CRA, that it may support its defenses, include the CRA consumer disclosures for Plaintiff [got nothing but but a Corporate Disclosure Statment], any correspondence between CRA and Plaintiff, and any correspondence between CRA and any relevant furnisherof information. Thats it nothing else was provided. Here's the relevant part of that rule:

(1) Initial disclosures.

(ii) a copy-or a description by catagory and location - of all documents, electronically stored information, and tangible things that the disclosing has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

It seems to me that what the CRA has provide is not consistant with this rule. What do you think? Be Blessed! S.A.

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A little help here! Anybody know what is required to be provided by each litigant under Federal Rules of Civil Procedures 26 (a) (1) (ii)? The Jdb just provided theirs without revealing any documentation to support its defenses only a description of activities between us that never happen, A demand that I provide certain phone records [never spoke with them] so am I reading the rules in the wrong way or are they ignoring the rules. Your input is greatly appreciated. Be Blessed! S.A.

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  • 3 weeks later...

Got called today jdb left message asking would i be willing to settle and that it's investigation is not complete and it needs more time to answer my discovery requests, if it doesn't here from me it will file for an extention. They claim to need an additional 15 days.

I served summons and they had time to answer it which they did through pacer but they never sent me by mail they're answer yet said that they did. We've had our joint scheduling conference with the judge and soon after I fired off my discovery, they still have a few days left.

I have no intention of agreeing to an extention as the have alreay had plenty of time and I feel that this is just a stall tactic especially with mention of settlement before even getting to mediation.

What do you think. Be Blessed. S.A.

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I would gran the extension. If they have to motion for it, they will still get it and you will not look good in the eyes of the Judge. But you can likely get some advantage out of it as well.

i suppose you're right, I'm just in combat mode and not into the dilly dallying, I feel if you got something on me bring it and lets dance, but I see your point, I'll contact them on Monday morning, Thanks for your inpute. Be Blessed! S.A.

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The jdb attorney that left the message is not the attorney that answered the complaint, in fact this attorney has not filed a motion of appearance as the bank has done when it introduce a defferent attorney from the same law firm. That seem to tell me that before I make any arraigement with another attorney even from the same law firm that they must first notify the court of his appeareance in this case, after all I could be making agreements to someone not authorize to make them and can also deny ever making them.

I don't mean to sound parinoid, but I have dealt with for to many so called "officers of the court" who lie, cheat, and shows to integrity no respect for the law. What do you think? S.A.

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Oh, Oh, I have been here. Is this the same defendant that answered through ECF and never properly served you? I filed a motion for a protective order in that they were violating the rules by not serving me as a non-electronic filer asking the court to order them to properly serve me. Then brought up the other violation which was local rule 83 which required notice of appearance before undertaking any form of representation (including negotiation on an open case). Check your local rules for this.

I did not ask for, but suggested the court entertain sanctions. They settled real fast before they even had to answer my motion. I am not sure if it was just that motion since I had another motion I filed at the same time for remand due to improper removal to federal court, they blew that one by not following the rules as well.

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Here's my States local rule:

RULE 11.1 ATTORNEYS

(d) Appearance by Attorney.

(1) The filing of any pleading shall, unless otherwise specified, constitute an appearance by the person who signs such pleading.

I'm thinking this is the attorney that filed the initial answer.

(2) An attorney representing a witness in any civil action or criminal proceeding, including a grand jury proceeding, or representing a defendant in a grand jury proceeding, shall file a notice of appearance, with consent of the client endorsed thereon, with the Clerk of the Court on a form to be prescribed and furnished by the Court, except that the notice need not be filed when such appearance has previously been evidenced by the filing of pleadings in the action or proceeding. The notice shall be filed by the attorney promptly upon undertaking the representation and prior to the attorney’s appearance on behalf of the attorney’s client at any hearing or grand jury session. When the appearance is in connection with a grand jury session, the notice of appearance shall be filed with the Clerk of the Court in such manner as to maintain the secrecy requirements of grand jury proceedings.

(6) No agreement between parties or their attorneys, the existence of which is not conceded, in relation to the proceedings or evidence in an action, will be considered by the Court unless the same is made before the Court and noted in the record or is reduced to writing and subscribed by the party or attorney against whom it is asserted.

So I'm thinking that unless this new attorney filed with the Court a notice of appearance, anything we discuss may have no validity and it may benefit them more so than it would me.

Even without my consent, the initial attorney must file the motion of which there has been no communication between us. He would either have to admit to another attorney from the firm tried to contact me and left a message or he would have to lie and say that he tried to contact me.

I'm now incline to let them file their motion without my consent. S.A.

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I received CRA responses to my discovery request, almost all the answers were either Attorney/Client privilege, Work product doctrine or Trade Secrets. i knew a majority would be answered this way but not 99% of the answers.

It is my understanding that Attorney/Client privileges is basically restricted to communication, Theories or trial stradagies and oppinions otherwise they don't have to answer any question by claiming this privilege, I know I certainly cannot claim it. So how does a pro se litigant overcome this barrier.

My thinking based on some research is that if the information relevant to the case and there's an need to prove one's case then other than communication between lawyer and client can be exempt such as documents. Need a little help figuring this out.

Another question I beleive I ask this before but since more than a few answers were not answered based their claim of statute of limitation under 1681p. My complaint is based in part on unreasonable investigation as well as inaccurate information that resulted in denial of credit in 2008. The dispute process has been more than a couple of years, however, 1681p states 1) 2 years from the discovery of the liability or5 years from the liability that is the cause of this action. There's an exemption to this rule if misrepresentation or ommission of material fact that plaintiff was not given and should have based on the duty of the FCRA to the plaintiff.

Would not then the statute of limitation of 5 years be applicable since liability commence when the CRA investigation was unreasonable or never happen upon my dispute. Whats your thoughts. Be Blessed! S.A.

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It seems the bank don't want to answer either as it claim 2 year statute of limitation[knew that would happen], Attorney/Client priviledge[knew that too] and work-product[knew that was coming also] so I ask who's clogging up the legal system, funny thing though is they chose not to provide the admission request and due date is over.

Jdb seems desperate to settle and delay answering discovery request. Tried to slip a motion for ext. through the pacer system but got it struck down because they didn't follow procedures referred to in the Judge's order. Re-did their discovery motion to the magistrate judge, got a hearing in a few days. I thought I'd flex my muscle a little by mentioning to the judge the attorney has not file notice of appearance, discoveries requested were very similar to discoveries asked in small claims court, and that all information sought should already be in Defendant's custody and control. Even if their request for a 15 day ext. is granted, they would still be unable to answer or answer insuficiently. Whereby a motion to compel will loom after a little back and forth[in good faith] then compel and introduce FRCP 11 sanction, then if necessary SJ.

Your response would be greatly appreciated. Be Blessed! S.A.

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All defendants responded to all my discovery request and none have answered suficently. Here are the roll-calls:

1. Jdb given 15 more days to answer Production of Documents and Interrogatories. Admissions answers with vague, unduly burdensome, client/attorney work-product, not relevant or will lead to discoverable evidence, ect...

2. Bank answered all with much the same answers

3. CRA #1 & #2 answered all the questions the same way.

Total information or documents recieved 0.

Welcome to the United States legal system.

I've done some more research and found out that all should submit a privilege-log of precieved protective from discovery so that the court may due a camero view to evaluate the legitmacy of the claim for privilege and oh yeah! Trade secret privilege, which I forgot was also claimed.

But I know that all those case laws that show cras, jdbs, and banks losing and paying where also given the same kinds of answers in their discoveries and prevailed. How about your input! S.A.

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I know there's a way to defeat the privilege claim. A new one as come up called the joint defense privilege. Am I on target to believe any claim of privilege is confined to communication between lawyers and clients and even work product is confine to communication between lawyer and client even trial prepraration materials are not exempt from the underlying material facts in the case, in other words privilege only covers confidential communications between a lawyer and his/her client, or legal theories in conteplation of trial but not the underlying facts of the pending case or all an attorney has to do to not provide information or documents is to claim privilege. So what is the solution against that claim?

If everybody is watching football then give me your input on Monday 12/19/11, before Monday night football. Be Blessed! S.A.

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have you started your journey into FRCP Rule 26?

(5) Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

at the bare minimum, the statute itself is two-fold. they cant just say its protected and use that as carte blanche to avoid discovery.

you should also dive into Rule 34 and how it relates to privilege. i cant answer your question right at this moment, but when i have an issue i usually dive into the statute and do some research when i have time.

if you want i can send you an analysis of Rule 26, a lexisnexis document which you can read up and try to find some ammo.

you gotta ask yourself:

1) what are you asking for exactly?

2) how is it relevant to your case?

ive been away, im back. wassup!!! :)++

Edited by jackson212
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  • 5 weeks later...

Well Christmas vacation is over and back to business. Good news not only do the jdb wants to settle but just a few days ago one of the CRAs want to talk about settlement. Believe me folks, they have no evidence. They've all use the privilege claim which is no good if the court didn't grant it to them and the court can't grant what you don't file and I just found this out they have 30 days to file that privilege claim or consider it waived, unless they can give a good excuse for the delay.

God is so good that He's the One that is opening these doors. Let me hear from you guys. Be Blessed! S.A.

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  • 2 weeks later...

CRA have me scratching my head a bit emailing me to review a second draft for a unified protective order after some 40 days of their response to my discovery request. This lawyer is for the CRA's national branch and is not from the State of Florida, she has been allowed to participate in this case.

Here's why I'm scratching my head. In her response to my Production request it states "CRA will not prepare a privilege-Log for such privilege work product. HuH! That being the case why does she want my consent to a late protective order, something they should have done when they first recieved my request so that the court can do an in-camera view of what is and is not privilege.

Because of their late response to my discovery rebuttal I was forced to schedule a discovery hearing with all the unanswered or defective request due to claims of attorney-client, work product privileges stated but not granted by the court. They also want to change some of the answers they didn't say which or what only that they will mail it to me in a few days. [can't wait] anyway i told them I won't be signing a joint agreement for a protective order nor will I call off the hearing until i see what it is they want to change. Be Blessed! Lets hear from you. S.A.

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  • 2 weeks later...

Hello everybody, I'm a little bit excited. One of the Defendants blinked and amended its Admission [the bank]. I ask at first that it admit it was not the original creditor, it denied it, after sending it a whole bunch of documents [which I believed in incorporated as its own] anyway long story short it has amended it response to admitted after all these years as reporting as the OC, after answering my complaint that it provided no inaccurate information. I beleive I know what's coming next is a settlement offer with confidentiality and no admission of guilt. Tell me what you think! Be Blessed! S.A.

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  • 1 month later...

Another Defendant wants to settle. That makes three with bank being the only holdout.

I have to do a depo soon all the big guns are sniping at the bit to get a piece of me. All three defendants want to depos me at one time. They all have produce nothing material that will show favorably on their part. I've had a dispute hearing where the Judge compel the Defendant to answer. Defendant requested more time to answer and still didn't answer. [stalling] Now it could be in contempt of court.

Another Defendant didn't like my answer because I didn't see the relevance to my Complaint or its defense. FRCP 26 (B)(1) so we'll have to go before the Judge and they'll have to tell me why it is relevant, in the meantime I invited CRA Defendant to this hearing also to explain why its not in compliance with the Judge's Order.

Praise God so far the butterflys are gone, now its down to business. What do you think? Be Blessed! S.A.

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