Merk

Claiming additional affirmative defenses?

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In my original answer to the plaintiff, I put I "reserve the right to claim additional affirmative defensives that may become applicable and/or available at a later time. "

Given that I did my first admissions based on a 39 dollar "how to answer credit card summons" type of thing off of the internet before I found this site! Damn....

Anyways...is this possible? I was wondering if I should put up my original responses and see if I need to cover my rump any more with anything better or tighter???

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In my original answer to the plaintiff, I put I "reserve the right to claim additional affirmative defensives that may become applicable and/or available at a later time. "

Given that I did my first admissions based on a 39 dollar "how to answer credit card summons" type of thing off of the internet before I found this site! Damn....

Anyways...is this possible? I was wondering if I should put up my original responses and see if I need to cover my rump any more with anything better or tighter???

Why do you need more affirmative defenses? When you claim an affirmative defense, it's up to you to prove that defense.

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. . . I did my first admissions based on a 39 dollar "how to answer credit card summons" type of thing off of the internet before I found this site! . . . I was wondering if I should put up my original responses and see if I need to cover my rump any more with anything better or tighter???

I suspect that if you followed the instructions in your $39 e-book or whatever, you'll need a tarp to "cover your rump." I would be more concerned about the defenses you may have waived, rather than the ones you might want to add.

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Here is what you may be able to do. Read your rules of procedure under pleadings, and see if there is a time frame for filing an amended answer without having to ask for permission. Usually they give you 30 days. Then post everything here and we will help you. I warn you, though, disappear from the forum and you will get NO help. We have too much of this. Post the exact complaint word for word, redact names and round off the amounts. Tell us who the plaintiff is. Not the law firm representing the plaintiff. The disclaimer is okay, but affirmative defenses in CC cases are pretty much worthless, most of them sound good but do not apply. there is a new thread on defenses, I suggest you read it. Unless you have a deep understanding of theory of law, I suggest you not try them. Best to just sit back and defend the claim. They brought suit, make them prove their case.

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Here is what you may be able to do. Read your rules of procedure under pleadings, and see if there is a time frame for filing an amended answer without having to ask for permission. Usually they give you 30 days. Then post everything here and we will help you. I warn you, though, disappear from the forum and you will get NO help. We have too much of this. Post the exact complaint word for word, redact names and round off the amounts. Tell us who the plaintiff is. Not the law firm representing the plaintiff. The disclaimer is okay, but affirmative defenses in CC cases are pretty much worthless, most of them sound good but do not apply. there is a new thread on defenses, I suggest you read it. Unless you have a deep understanding of theory of law, I suggest you not try them. Best to just sit back and defend the claim. They brought suit, make them prove their case.

Nah I'm not going anywhere anytime soon. I've been under the weather the past day or so though. Plus I just got a notice from a third creditor that I am going to be DV'ing soon so who knows how that will go. I know I'm past 30 days since I sent the first answers. I'll have to see what I can find out. Both of my cases I'm in right now are Chase as the OC. I will check out the thread certainly. Thanks for all of your time I know it gets repetitive around here. I'm a moderator and mainstay on other forums of other subject matter and I know how it is.

Edited by Merk

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Comes now the plaintiff and complaining of the defendant, avers and says as follows:

1. Plaintiff is an entity authorized to prosecute this civil action pursuant to s.c. code ann33-15-101(B)(8). Plaintiff is the owner of the credit account, numbered 11111111111, forming the basis of this civil action, having purchased it from the original creditor Chase Bank USA, NASolutions, inc or the original creditors successor in interest.

2. Upon information and belief, each defendant is an adult citizen and resident of blahblah county, South Carolina, is under no legal disability of infancy or incompetency, and is not entitled to relief pursuant to service members Civil relief act of 2003

3. Defendant requested and received a credit account from Plaintiff's predecessor in interest. Each Defendant has defaulted upon the account by failing and refusing to make payments to plaintiff when due, and the default of each defendant continues to the date of this complaint. Plaintiff has sent to each defendant a notice of right to cure pursuant to SC cod 37-5-110 et seq (Which I didn't get. At least I don't recall and it sure didn't come certified unless that is the form that talks about Alternative Debt Solution??)

4. Defendant owes the plaintiff the original principal balance of 1xxx.00 together with interest at the contracted rate of 29.99% per annum from and after MOnth, 31, 2009. Interest continues to accrue upon the said account at the aforesaid rate until entry of judgement, and accrues thereafter at the statutory rate until the judgement is satisfied in full. The provisions of the account allow Plaintiff to recover the costs of court and a reasonable attorneys fee incurred in collecting upon the account.

5. Attached hereto and incorporated herein by the reference as though set forth verbatim are plaintiffs exhibits which together establish plaintiff's claim againt the defendant

Wherefore plaintiff respectfully prays the court for relief as follows:

That plaintiff have and recover judgement against the defendant for the original principal balance of 1xxx.00 together with interest thereon at 29.99% per annum from and after month 31, 2009 until entry of judgment, and at the legal rate thereafter until the judgement is satisfied in full; and, that the costs of this civil action to be taxed to the defendant, together with plaintiffs reasonable attorneys fees; and, for such other , further , and general relief as to which the plaintiff may be entitled in law or equity alike....

------------------------------------

Affidavit of defaulted account, Exhibit 1

my name and address

I, the undersigned, swear and depose that I am the custodian of records fo the creditor, and having personal knowledge of the information set forth herein, based upon my review of the business records of the creditor maintained by me and in my custody, certify as to the following:

1. Chase Bank USA, NA issued credit account 11111 to debtors. Creditor is current holder of this account through assignment from CHase Bank USA, NA

2. Debtor, my name, in this action has same account 11111 with creditor which is currently in default.

3. The outstanding principal balance as of the date of this affidavit is 1xxx.00. This amount remains due after credit for all sums paid on behalf of debtors, including all discounts and other credits, is applied to the account.

4. Interest is accruing at the rate of 29.99% per annum from the date interest began in month, 31 2009, pursuant to the agreement governing the account.

5. This document, together with all attached pages, is a true copy of a business record maintained in electronic format by the creditor, maintained by me and in my custody. This business record was made at or near the time of the occurrences or transactions, or in the alternative are made from information transmitted by persons having actual knowledge thereof. The business records are kept in the course of the creditors regularly conducted business activity, and it is the regular practice of the creditor to keep such records.

-------------------------

Bill of Sale

Chase bank usa, na ("Seller") for value received and pursuant to the terms and conditions of credit card account purchase agreement dated December,x 2009 between seller and turtle creek assets, ltd, by and through its general partner forward properties international, in, (purchaser), its successors and assigns (credit card account purchase agreement), hereby assigns effective as of the file creation date of january x, 2011 all rights, title and interest of seller in and to those certain receivables, judgements or evidence of debt described in exhibit 1 attached hereto and made hereof for all purposes

Number of accounts.....23,xxx

Total unpaid balances ...$120,990,xxx.00

Premium....(blank)

Due Seller...(blank)

Amounts due to seller by purchaser in hereunder shall be paid u.s. Dollars by a wired transfer to be received by seller no later than January xx, 2011 (the closing date) by x-pm seller's time, as follows: Chase bank usa, n.s. ABA #111111, Beneficiary name: Chase bank usa, N.A. , Beneficiary account #304-xxxxxx

This bill of sale is executed without recourse except as stated in the credit card account purchase agreement to which this is an exhibit. No other representation of or warranty of title or enforceability is expressed or implied.

Chase bank usa, na

(a personal signature)

date january xx, 2011

title Team leader

Turtle creek assets, ltd

(a personal signature)

date

title(president)

Exhibit A

Bill of Sale

Turle creek assts, Ltd, by and through its general partner, forward properties international, INC. ("seller"), for a value received and pursuant to the terms and conditions of the credit card account purchase agreement between seller and comprehensive legal solutions, inc. ("purchaser"), hereby sells, conveys, transfers and assigns to purchaser, effective as of the file creation date of February x, 2011, all rights title and interest of seller in and to those certain accounts, receivables, judgements or evidences of debt described in exhibit 1 attached hereto and made part hereof for all purposes (the accounts)

Number of accounts 1xx

Total unpaid balances 9hundred thousand and some change

The accounts sold hereby were purchased by Seller from Chase Bank USA, NA as evidenced by the Bill of sale from original creditor to seller attached as Exhibit 2 hereto and made part hereof for all purposes.

This Bill of sale is executed without recourse except as stated in the credit card account purchase agreement to which this is an exhibit. No other representation of or warranty of title or enforceability is expressed or implied.

---------------------------------

Then attached are some credit card statements with my name on them. Nowhere is there anything connecting alleged account to the any account they purchased.

Now my original answer(ugh)

1. Defendant denies the allegations contained in paragraphs 1-5 as there is not, nor has there ever been any written agreement with the plaintiff and defendant

2. Defendant denies the allegations contained in paragraphs 1-5 as there is not , nor has there ever been any oral or otherwise agreement with the plaintiff and defendant

Affirmative Defenses:

1. Defendant was not notified of any assignment or purchase of the debt that is the subject of the complaint

2. Plaintiffs complaint is time barred pursuant to title 34, section 34-11-2-7. (Which it actually isn't I don't think)

3. Defendant claims lack of privity as defendant has never entered into any contractual or debtor/creditor arrangements with plaintiff

4. Failure of consideration: No exchange of money or goods occurred between the plaintiff and the defendant.

Wherefore, defendant prays that the court take nothing of plaintiffs complaint by virtue and dismisses the complaint.

--------------------------

yea I know. But I'm in discovery now and I at least tried to answer. LIke I said this was from a 30 dollar online "how to answer a summons" deal, before I found this place.

Any and all advice is welcome. I need to send in my docs, answers to interrogs, etc., by Wednesday.

Edited by Merk

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What does the bill of sale from Chase to Turtle Creek Assets say?

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Did you see Rocky 3? Remember when Clubber Lang looked into Rocky's eyes and whispered "Dead meat." That's what I think when I read this. You should have come here earlier, everything you sent in is from the "What not to do when sued for Dummies" book. Don't take me the wrong way, I am here to help you, so are others. Sometimes we just have to give you the brutal, cold hard truth so you know where you are.

When did you submit these (ugh) answers? You should have time to file an amended answer.

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Merk, this reeks of Brock and Scott. There are several law firms who are beginning to advertise that they defend against Brock and Scott, and their multiple, twisted affiliate debt buying companies.

Start scanning the internet and make some phone calls.

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Did you see Rocky 3? Remember when Clubber Lang looked into Rocky's eyes and whispered "Dead meat." That's what I think when I read this. You should have come here earlier, everything you sent in is from the "What not to do when sued for Dummies" book. Don't take me the wrong way, I am here to help you, so are others. Sometimes we just have to give you the brutal, cold hard truth so you know where you are.

When did you submit these (ugh) answers? You should have time to file an amended answer. BV80 is your guy, he is from SC and knows the law. I can help you with theory and answers, but there is nobody better here than him when it comes to SC statutes.

september 30 was the file date for my answer. I'll post the bill of sale later... Im looking up bv80 now.Thanks. Yes as I stated I didn't know about this forum until a little while ago, and then not until a week or so ago did someone say "post your whole file" basically. I didn't think people would do that much review work for free. Plus I have another one from Global Acceptance that's about the same that I will post shortly. Rocky went on to win though! Really I wanted to read the reply before I got ready for the gym because I knew it would be bad and I could sweat off the nervous jeers at least. THanks for any help.

Edited by Merk

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What does the bill of sale from Chase to Turtle Creek Assets say?

I will post it shortly! Thanks everyone.

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What does the bill of sale from Chase to Turtle Creek Assets say?

I edited the above post and added it in.

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Rocky didn't have rules of procedure to deal with. He only had a timekeeper. Time is everything, they count on this for defaults. Keep posting. Bad mistakes make good litigants. I should know.

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Neither one of the bills of sale reference your name or account number. They haven't provided any evidence that any debt owed by you was purchased by Turtle Creek or by Comprehensive Legal Solutions. Therefore, they haven't proven ownership of the alleged account with standing to sue.

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Sorry folks I had to go out of town for some training. I should be able to respond more timely and everyday now if needbe.

Neither one of the bills of sale reference your name or account number. They haven't provided any evidence that any debt owed by you was purchased by Turtle Creek or by Comprehensive Legal Solutions. Therefore, they haven't proven ownership of the alleged account with standing to sue.

Yes this is the case with both of my cases so far which gave me some hope.

Rocky didn't have rules of procedure to deal with. He only had a timekeeper. Time is everything, they count on this for defaults. Keep posting. Bad mistakes make good litigants. I should know.

Indeed...

-------------

This is what they sent with their discover:

Interrogatories

1. give the names and addresses of persons known to the parties or counsel to be witnesses concerning the facts of this case and indicate whether or not written or recorded statements have been taken from the witness and indicate who has possession of such statements.

Reply:

2. Set forth a list of photographs, plats, sketches, or other prepared documents in possession of the party that relate to the claim or defense in the case.

Requests for production of documents

1. produce all documents which you contend contain information relevant to this civil action

reply

2. Produce all documents mentioned by you in your response to the foregoing interrogatories

reply

3. Produce a copy of all bank account statements concerning any account over which you now or formerly have had withdrawal authority, which statements reflect any credits or debits between (month, 2008 and another month, 2009), inclusive (((I really don't like this one)))

Requests for admissions

1. Admit that you are the defendant in this civil action

2. Admit that you were issued a credit account denominated by number a **************** by Chase Bank USA, NA

3 Admit the plaintiffs exhibit attached hereto is a true and complete copy of the card holder agreement, the terms of which govern the account forming the basis of this civil action.

4. Admit that you agreed to be bound by the aforesaid card holder agreement when the aforesaid account was opened by and/or used by you.

5. Admit that you used the aforesaid credit account.

6. admit that you received the benefit of the use of the aforesaid credit account

7. admit that you knew of the use of the aforesaid credit account in your name at the times of the such use.

8. Admit that you received regular statements from Chase Bank USA, NA reflecting all charges and credits upon the aforesaid account.

9 Admit that you did not dispute charges made or the amount owed on the aforesaid account at the time you received the aforesaid statements

10. Admit that the principal balance on the account is $1000 and some change remains unpaid

11. Admit the interest is accumulating upon the principal balance at the rate of 29.9%

12. admit that the interest is accumulating upon the principal balance from and after the date of (2 months after #3 in requests for docs)

13 admit that you are in default upon the aforesaid account.

14. admit that that the aforesaid agreement allows for the collection of reasonable attorneys fees and costs of court incurred int eh collection of the account.

15 admit thateach of the following documents attached hereto is genuine:

a. statement dated blah

b. statment dated blah blah

c.etc.-> the letter r or s or so.

last letter Chase cardholder agreement.

16. admit that you now or formerly received mail at the following addresses

a, b, c

17 admit that you have no evidences that the plaintiff is not the owner of the account.

18. admit that the plaintiff is the owner of the account

-------------

Thanks

Edited by Merk

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Production of Documents

Interrogatories

1. None at this time.

2. None at this time.

1. None at this time.

2. None at this time.

3. Not sure about this one. I'm not sure if they're asking you to provide bank statements that would prove you made payments to the account.

Regarding the admissions, you can can admit #1. For the others, if you don't remember receiving anything (my memory is terrible), simply deny.

#9. Objection. Defendant has denied knowledge of the account in question. Therefore, Plaintiff's request is improper.

In 15 - 18, they're trying to get you to authenticate the documents and prove ownership for them. For #17, you do have proof they don't own the debt. Their own bill of sale doesn't reference your name or the account number. I would simply state "Denied" for everything except #1 and #9.

Interrogatories are really necessary unless you need specific answers such names, addresses, dates, etc. If you want to, you could send an Interrogatory based upon their affidavit. The affiant states "This business record was made at or near the time of the occurrences or transactions, or in the alternative are made from information transmitted by persons having actual knowledge thereof."

They are not admitting the record was created at the time the transaction actually occurred. By stating "in the alternative", they're saying the record MIGHT HAVE BEEN MADE FROM THE INFORMATION transmitted by someone with actual knowledge. That's unclear as well. Are they stating it's a copy of the original OR is it a record someone made based upon the original?

I would send 1 Interrogatory:

1. State the name(s), title(s), and place of employment of the "person(s)" referenced in the affidavit who had actual knowledge of and transmitted the alleged business record.

If they name someone, it won't be anyone from Chase. They'll probably refuse to answer it, but, me being me...I'd do it just to irritate them. I'd also send a Request for Admissions.

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Interrogatories

1. give the names and addresses of persons known to the parties or counsel to be witnesses concerning the facts of this case and indicate whether or not written or recorded statements have been taken from the witness and indicate who has possession of such statements.

Reply:

Defendant has no such witnesses but reserves the right to produce same.

2. Set forth a list of photographs, plates, sketches, or other prepared documents in possession of the party that relate to the claim or defense in the case.

OBJECTION The request is clearly a request for documents and is therefore improper.

Requests for production of documents

1. produce all documents which you contend contain information relevant to this civil action

OBJECTION The blanket nature of the request makes it impossible to respond to. Not withstanding, defendant reserves the right to produce documents and amend his answer according to the rules of procedure.

2. Produce all documents mentioned by you in your response to the foregoing interrogatories

Asked and answered.

3. Produce a copy of all bank account statements concerning any account over which you now or formerly have had withdrawal authority, which statements reflect any credits or debits between (month, 2008 and another month, 2009), inclusive

OBJECTION The request is burdensome, vague, and entirely improper. The information sought, which is undefined concerning credits or debits, if indeed the request refers to the account which is the subject of the instant action, is assumedly already known to plaintiff through its business records.

Requests for admissions

1. Admit that you are the defendant in this civil action

Admitted

2. Admit that you were issued a credit account denominated by number a **************** by Chase Bank USA, NA

DENIED pending discovery

3 Admit the plaintiffs exhibit attached hereto is a true and complete copy of the card holder agreement, the terms of which govern the account forming the basis of this civil action.

DENIED to the extent that defendant has no legal bsis upon which to establsih the validity of documents produced by plaintiff. Such validaton is the burden of plaintiff, not defendant.

4. Admit that you agreed to be bound by the aforesaid card holder agreement when the aforesaid account was opened by and/or used by you.

DENIED No such agreement has been proven. Genric copies of "cardholder agreements' do not constitue a valid agreement between parties.

5. Admit that you used the aforesaid credit account.

DENIED pending discovery. Use of the account is incumbent upon plaintiff to prove.

6. admit that you received the benefit of the use of the aforesaid credit account

See response to 5

7. admit that you knew of the use of the aforesaid credit account in your name at the times of the such use.

OBJECTION Conclusory and compounded. What defendnt "knew" is clearly improper, speculative, and violative of the attorney client / work product privilege.

8. Admit that you received regular statements from Chase Bank USA, NA reflecting all charges and credits upon the aforesaid account.

DENIED pending discovery

9 Admit that you did not dispute charges made or the amount owed on the aforesaid account at the time you received the aforesaid statements

OBJECTION Argumentative, assumes facts not in evdience, specifically that defendant received any such statements.

10. Admit that the principal balance on the account is $1000 and some change remains unpaid

OBJECTION Calls for a legal conclusion best left to the trier of fact concerning liability. Defendant avers he owes not one penny to plaintiff.

11. Admit the interest is accumulating upon the principal balance at the rate of 29.9%

OBJECTION Calls for a legal conclusion. Interest on delinquent accounts is a matter of state law.

12. admit that the interest is accumulating upon the principal balance from and after the date of (2 months after #3 in requests for docs)

OBJECTION See above response

13 admit that you are in default upon the aforesaid account.

OBJECTION Calls for a legal conclusion

14. admit that that the aforesaid agreement allows for the collection of reasonable attorneys fees and costs of court incurred in the collection of the account.

OBJECTION Calls for a legal conclusion

15 admit that each of the following documents attached hereto is genuine:

a. statement dated blah

b. statment dated blah blah

c.etc.-> the letter r or s or so.

last letter Chase cardholder agreement.

OBJECTION defendant has no manner in which to validate documents produced by plaintiff. Validation is incumbent upon plaintiff.

16. admit that you now or formerly received mail at the following addresses

a, b, c

you answer this one

17 admit that you have no evidence that the plaintiff is not the owner of the account.

OBJECTION Ownership of the account is a matter for plaintiff to prove, not for defendant to disprove.

18. admit that the plaintiff is the owner of the account

OBJECTION see 17

Thanks

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2. Set forth a list of photographs, plates, sketches, or other prepared documents in possession of the party that relate to the claim or defense in the case.

OBJECTION The request is clearly a request for documents and is therefore improper.

The Plaintiff is asking for a list...not the actual documents.

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Ahhh thanks so much Legal and everyone for that matter! I figured I would be denying mostly everything except the obvious yes I'm the defendant. Oh the LIST of documents, I don't have anything that I know of.

I plan on going to sit on some cases perhaps tomorrow, Friday or next week. I really need to start reading the roc more. Thanks a ton though.

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I will be mailing these off in the morning. Anything else? to double check before hand?

And I've read various accounts of MTS affidavits and bill of sale like the ones I have above. Should I be looking into this, wait, or go ahead and serve them my own discovery requests?

Thanks a ton!

Edited by Merk

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I would say just start with discovery. Don't start filing motions until you have something to back them up with. I always suggest production of documents, that is what wins or loses these cases. Nothing else is needed. ROGs and admissions are a waste of time in my opinion unless there is something very specific you want which is critical to your case, or you want to try to trick them with reverse admissions.

What you might want to do is this......all that stuff they asked you for? Ask THEM for the same stuff, plus the application, agreement, charge slips, and a complete day one accounting.

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I will be mailing these off in the morning. Anything else? to double check before hand?

And I've read various accounts of MTS affidavits and bill of sale like the ones I have above. Should I be looking into this, wait, or go ahead and serve them my own discovery requests?

Thanks a ton!

I would go ahead and send discovery requests. They've already sent bills of sale, so you don't need to ask for those. I'd request copies of billing statements beginning with a balance of -0- and showing all charges, payments, interest, and fees.

I'd also include a Request for Admissions based upon their affidavit.

Admit Plaintiff, Comprehensive Legal Solutions, does not have access to the books and records of Chase Bank.

Admit Plaintiff was not involved in the creation and maintenance of any original records related to the alleged account.

Admit Plaintiff did not receive the alleged account statements from Chase Bank. (They didn't. Comprehensive received them from Turtle Creek)

Admit Affiant, _______, (name of person who signed the affidavit) is not an employee of Chase Bank.

Admit _______ does not have access to the books and records of Chase Bank.

Admit ______ is not an employee of Turtle Creek Assets.

South Carolina is sadly lacking in case law relating to the admission of business records. There is no affidavit from Turtle Creek stating that the records were obtained from Chase. You want to cast doubt on Comprehensive's affidavit by showing they have no way of knowing that the records are true copies of any records created by Chase.

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As a pro se do I need to do a certificate of service?

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