Circe

Newb: Sent DV letter, got Request for Admissions in reply. What next?

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I searched around a bit but there's a lot of info. Long & short here:

I am dealing with a JDB (a Midland rep in Oregon). From the non-forums creditinfocenter.com site here, I took the DV sample letter 9 (I can't post links yet, sorry), modified it to be between that and the 'simple DV request', and sent it in response to a questionable looking summons that was mailed via certified mail and then served by a process server to me more than a month later (photocopied, crooked, non-original docs that I figured was probably as stated here a 'threat' document, not a real court case - the first, certified mailed copy was also sent a few weeks after the supposed court date had passed).

Of course they're asking for total debt plus 9% interest, etc. I successfully settled directly with 3 other Chase cards and 3 BoA cards in the same time frame, but this one got sold off faster than the others for some odd reason.

My goal is to stall them as long as possible and also NOT pay them what they're asking for since they are JDBs.

I did not receive the information I request and instead received, via non-certified mail, a cleaner looking court doc entitled "Plaintiff's First Request for Admissions and Request for Productions".

Should I have filed my DV with the court as well?

Should I do so now or just answer the RA? Or do both?

Also, the court case numbers match and this time there's a cover letter that shows it was, possibly, submitted to the court.

I've seen the pat denial answers to this Request for Admissions (again, can't post links yet) in another thread and can use those but I just need to know if I'm going the right route.

Thanks in advance for any help.

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Can the DV, you've been sued so It's gloves off and game on. DV is for pre-suit. If you sent them the everything but the kitchen sink request and it was prior to getting sued, it could be a reason you got sued. They don't have to respond to all that nonsense in those ask for everything DV letters. If you sent it after your sued then it is of little to no use.

The good news is you can still get most of what you likely requested. However, you do this via discovery. Start making your requests that will attack their standing. Also make sure you comply 100% with the rules of procedure. Keep in mind the courts and rules determine what is and is not required. Simply putting it in a letter as a demand does not work.

Midland is very beatable !!!!

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Thanks for the quick reply!

So, simple answer is:

1. Answer the RV with denials (i.e. "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.")

and

2. Find info on how to file my own discovery, what to say, etc.

Or, is my denial essentially asking for discovery?

If I've missed something else I need to do, let me know please. Y'all rock.

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NO your denial is not asking for discovery. Don't make that mistake. Your rules of procedure will tell you, but generally speaking, you can serve discovery on the other party after you have been served and just about all the time the court does not get involved. They will get involved if there is a dispute, but not on the front end.

Make sure your discovery is right by the book. They will look for any reason to not answer. Of course you should return that favor.

Your dealing with Midland. That is a good thing. They are one of the ones that members have the most fun destroying.

Concentrate on their lack of standing. Don't get caught up in a bunch of affirmative defenses and request production of documents from Midland. I bet you will find what they provide you is a ton of documents they either can't authenticate or they are from the original creditor and they try to pass them off as their business records.

Make sure you don't let something slip by or be deemed admitted or admissible due to a lack of objection on your end. You want to ask for their witness list, their documents or other things they will use or attempt to use at trial, and hit them with admission request(s) that center around no first hand knowledge.

For example, Admit that Midland Funding did not enter into the original alleged contract or agreement with the Defendant.

Admit, Midland Funding did not originate any of the records or documents (put whatever they sent you here).

Admit, Midland Funding is not the alleged original creditor.

Admit, Midland Funding employee (list a name here you get in discovery or on an affidavit) has no personal first hand knowlege of the records received by (list O.C. here).

Admit, Midland Funding employee (list a name here you get in discovery or on an affidavit) is not or has never been an employee of (list O.C. here).

You get the point. Attack them on their knowledge. Use the old my check register balance says I have ten million dollars in the bank. Does that mean I have ten million dollars in the bank because it's written in my check register. They always love that one. :twisted:

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I just realized I'm actually dealing with Equable Ascent, not Midland. This CA used to or maybe still does do stuff for Midland but I'm being sued by Equable. Don't know that it makes any difference; they both seem to have as many complaints listed against them as JDBs.

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Can the DV, you've been sued so It's gloves off and game on. DV is for pre-suit. [...] If you sent it after your sued then it is of little to no use.

While this is true, I did a DV during one of my past lawsuits, and they did respond (they sued first and asked questions later so there was no "first letter"). I guess they just did it as a safe harbor. It was fundamentally useless, of course. After I demanded they show standing, they MTD'd and got w/oP (never served me with the MTD). I kind of wished I had MTR'd the w/oP to get a w/P but I'm not sure that would have gotten me anywhere. Moot now, since past SOL.

The good news is you can still get most of what you likely requested. However, you do this via discovery. Start making your requests that will attack their standing. Also make sure you comply 100% with the rules of procedure. Keep in mind the courts and rules determine what is and is not required. Simply putting it in a letter as a demand does not work.

It's too bad cases end up being lost on procedure rather than merit. That's one of the things seriously wrong with our court system. Procedures should be to ensure merit and failure to follow them by either party should have other penalties instead of ignoring merit. Attorneys should be hit harder than pro-se, depending on the impact of the error (because Attorneys should know better).

People are tempted to overkill on the DV. That does no good. But in court, go for everything you can justify. Ask every question relevant to the account. Demand they show every piece of proof. For example in standing, ask for a copy of every bill of sale of the debt all the way from OC to Plaintiff, showing the OC, account, and your name, buyer, and seller, in the list of sold accounts (others will be redacted) on each one.

They will ask for things, too. Be truthful, but find proper ways to give them the least. They usually ask for documents YOU have to prove THEIR case (because either they don't have them, or it costs too much to go get them from the past creditors). Not having the document is a perfectly acceptable answer (if it's not your account at all, how could you have anything for it).

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1. Who is the named plaintiff in the suit?

Equable Ascent Financial, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Daniel N. Gordon, PC

3. How much are you being sued for?

$12,400 + 9% interest since end of 2009

4. Who is the original creditor? (if not the Plaintiff)

Chase/WAMU

5. How do you know you are being sued? (You were served, right?)

Yes

6. How were you served? (Mail, In person, Notice on door)

Mail (certified) & in person

7. Was the service legal as required by your state?

As far as I know – Oregon – though I’m not sure it was a ‘true copy of the summones’ as stated in the Oregon state requirements.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None.

9. What state and county do you live in?

Clackamas, OR

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

June 2009.

11. What is the SOL on the debt? To find out:

6 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Request for Admission filed 11/16/11. Also just received notice of intent to Apply for a Default Order anytime after 12/13.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No. On my credit report it shows it as of January 2010 & purchased by another lender.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

I did when I received the summons on 11/3 but they didn’t file the suit until 11/16 and did not answer my DV, sent Request for Admission instead.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Within 30 days after service is stated on the RfA - they did not serve the RfA, just mailed via regular mail. Original summons was dated August 9th but not given to me until October and not filed until 11/16.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

None. With intent to file for default judgement they just sent, they included a credit card statement from January 2010.

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I am assembling my answers to the Request for Admission today. I don't know what other action to take at this point but brace for the court date.

If all they have is the statement copy and I don't have a contract with them, only that my debt was definitely sold, what do my chances look like?

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Within 30 days after service is stated on the RfA - they did not serve the RfA, just mailed via regular mail. Original summons was dated August 9th but not given to me until October and not filed until 11/16.

When did you file your Answer to the Complaint?

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I am writing it up right now. I received it in mid-November via US Mail. They mailed it 11/11.

You'd better hurry.

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If you post the allegations in the Complaint, members can offer some suggestions. You can post the admissions as well, if you choose.

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A little more digging found this thread which is with the same "Law Firm" in my state though representing Equable instead of Midland.

It's called "Midland Attorney co-mingled Doc Requests with Admission Questions"

(Sorry, still can't link).

I have produced the same simple answers suggested by "legaleagle" except I changed 'no clue' to 'no knowledge of'.

I will be turning them in tomorrow AM to the court, then mailing the copy to JDB by end of day. I do have until 30 days after they were 'filed' right? Not when they mailed them to me or the date they 'wrote-in' on them?

Edited by Circe

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Rule 7 C(2) states:

C(2) Time for response. If the summons is served by any manner other than publication, the defendant shall appear and defend within 30 days from the date of service.

NOTICE TO DEFENDANT:

READ THESE PAPERS CAREFULLY!

You must “appear” in this case or the other side will win automatically. To “appear” you must file with the court a legal document called a “motion” or “answer.” The “motion” or “answer” must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the plaintiff’s attorney or, if the plaintiff does not have an attorney, proof of service on the plaintiff.

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Okay, I 'received' the Requests on 11/29 but I have no idea how long they were in my PO Box. They also have no way to know when I received it because they didn't send them via Registered or Certified mail. They filed their copy on 11/16. So, am I mistaken in thinking I have until 12/15 or is there no way for them to claim that I received them until I answer?

They are claiming to be filing for a summary judgement on or after 12/13.

Or am I getting this all wrong? Sorry but this is my first time at the dance.

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I've posted a further question about filing times above. I still want to file a request for discovery for their documentation, unless you advise against it.

Here, as requested, is the text of my reply to the Request for Admission & Request for Production

Page 1 of 3

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF CLACKAMAS

EQUABLE ASCENT FINANCIAL, LLC,

vs.

CYNTHIA I. HARMON

Case No.: Case # CV11080379

DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST

REQUEST FOR ADMISSIONS

TO: Plaintiff and DANIEL N GORDON, PC, Attorney for Plaintiff

4023 W 1ST AVE/P.O. BOX 22338

EUGENE, OR 97402

DEFENDANT’S RESPONSE TO ADMISSION REQUESTS

Defendant, CYNTHIA I. HARMON, in response to the plaintiff's Request for Admissions

propounded by the Plaintiff on 8th day of December, 2011, states the follows:

ADMISSIONS:

1. Defendant entered into agreement with Chase Bank USA, N.A./WAMU for a credit card.

RESPONSE:

DENY No such written agreement has been appended to the request, therefore defendant must deny.

2. Defendant used Chase Bank USA, N.A./WAMU's credit card account services pursuant to the credit card agreement ("Agreement") described in Plaintiff's Complaint to purchase or lease goods or services, obtain cash advances, or transfer balances from other credit card accounts.

RESPONSE:

DENY No such written agreement has been appended to the request, therefore defendant must deny. Defendant cannot speculate as to the terms of a document which has not been provided.

3. Defendant received one or more copies of the Agreement.

RESPONSE:

DENIED

4. Pursuant to the Agreement, Defendant promised and agreed to pay to Chase Bank USA, N.A. its court costs and collection costs in the event of default as permitted by law.

RESPONSE:

DENY No such written agreement has been appended to the request, therefore defendant must deny.

5. Chase Bank USA, N.A./WAMU has performed all of its duties and obligations pursuant to

the Agreement.

RESPONSE:

DENY The request calls for a legal conclusion as to the activities of an entity which is not a party to the instant action.

6. Defendant received each and every monthly billing statement described in the Agreement.

RESPONSE:

DENY-Receipt of statements or any other documents connected to the instant action is a matter for plaintiff to prove at trial. Defendant denies receipt of any such statements.

7. Defendant did not notify Chase Bank USA, N.A./WAMU of any duties or obligations which Defendant believed Chase Bank USA, N.A. failed to perform pursuant to the Agreement.

RESPONSE:

DENY "Duties or obligations" are not defined. "Beliefs of the defendant" calls for speculation unsupported by admissible evidence and is therefore improper. Defendant has no obligation to inform Chase Bank as to their legal obligations under the law. The "Agreement" was not appended hereto, therefore defendant cannot respond.

[Request for Production No.1 was inserted here]

8. Defendant did not provide Chase Bank USA, N.A. with notice of any objection relating to the accuracy, quality, delivery, fitness, or merchantability of such goods, services, cash advances or transfers acquired with the subject credit card in a timely or in any other manner.

RESPONSE:

DENY

[Request for Production No.2 was inserted here ]

9. Defendant did not reject goods, services, cash advances, or transfers, or any portion thereof, acquired with the subject credit card, in a timely or in any other manner.

RESPONSE:

DENY to the extent that the request assumes facts not in evidence, specifically that any such card was used by defendant

10. Defendant never notified Chase Bank USA, N.A. by telephone, in writing, or in any other manner that any account credit card(s) had been lost, stolen or was being used without Defendant's permission.

RESPONSE:

DENIED to the extent that no evidence of the account was appended hereto for evaluation.

[Request for Production No. 3 was inserted here]

11. Defendant did not object or protest, in writing or otherwise, to the amount billed in any invoice or billing statement sent, to the Defendant after each monthly billing period pursuant to the Agreement.

RESPONSE:

OBJECTION Repetitive of a previous request

[Request for Production No. 4 was inserted here]

12. As a result of Defendant's breach of the Agreement, Chase Bank USA, N.A. has

been damaged in the sum of $12,356.07, together with interest thereon at the

statutory rate of 9.0000% per annum from December 31, 2009 until paid.

RESPONSE:

OBJECTION Calls for a legal conclusion, the purvey of which is best left to the trier of fact. Additionally, Chase is not a party to this action.

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Page 2 of 3

13. On or about November 9, 2011 Defendant was and remains indebted to Equable Ascent Financial, LLC in the sum of $12,356.07 for the balance of credit card account as

described in Plaintiff's Complaint.

RESPONSE:

DENY - Equable Ascent Financial, LLC has produced no admissible evidence establishing ownership of any account which may have been held by Chase Bank in defendant's name.

14. Although duly demanded by Chase Bank USA, N.A./WAMU, no part of the $12,356.07

which Defendant owes to Plaintiff has been paid.

RESPONSE:

DENY No liability has been established, therefore no payment is required.

15. Although duly demanded by Equable Ascent, LLC, no part of the $12,356.07

which Defendant owes has been paid.

RESPONSE:

OBJECTION See above response to 14.

16. Although duly demanded by Chase Bank USA, N.A./WAMU and Equable Ascent, LLC, no

part of the $12,356.07which Defendant owes has been paid for which credit has

not been given.

RESPONSE:

OBJECTION See above response to 14.

17. Defendant has not made any other payments, or caused other payments to be

made, on its indebtedness for which credit has not heretofore been given.

RESPONSE:

OBJECTION See above response to 14. Requests 14-17 are improper to the extent that Equable Ascent, LLC has not established that it is entitled to collect any monies from defendant under the law.

18. The interest rate prior to any judgment awarded on whatever amount Defendant is adjudicated to be liable for is at the statutory rate of 9.0000% from the date of charge off until paid.

RESPONSE:

OBJECTION: Calls for a legal conclusion.

19. Plaintiff has been required to retain the services of legal counsel to represent it in these proceedings.

RESPONSE:

OBJECTION Defendant has no knowledge as to what Plaintiff feels they are "required" to do.

20. Plaintiff has declared the full indebtedness under the Agreement due, owing, and unpaid.

RESPONSE:

ADMITTED to the extent that plaintiff has indeed made a wholly unsupported claim for money.

21. Plaintiff is an entity as described in Plaintiff's Complaint.

RESPONSE:

ADMITTED that plaintiff is an "entity." Any other inference contained therein is denied.

22. Plaintiff is entitled to a judgment in its favor pursuant to its prayer(s) for relief, as a matter of law.

RESPONSE:

OBJECTION - Calls for a legal conclusion, not a request for admission of fact.

23. Plaintiff is entitled to be paid for its reasonable attorney fees pursuant to the

Agreement.

RESPONSE:

DENY to the extent that no such agreement has been produced or proven to have any legally binding effect.

24. The documents and exhibits attached to or described in Plaintiff's Complaint are

genuine and accurate.

RESPONSE:

OBJECTION No Documents were attached to Plaintiff's Complaint or request. Therefore, no response can be made.

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Part 3 of 3

25. Chase Bank USA, N.A./WAMU assigned its rights under the terms of the Agreement to

Plaintiff.

RESPONSE:

OBJECTION defendant has no knowledge as to the business transactions Chase undertakes with junk debt buyers.

26. The last four digits of Defendant CIRCE Social Security number are

***-**-xxx

ADMITTED to the extent that the numbers set forth are part of defendant's social security number. Any inference that said number constitutes an obligation is denied.

REQUEST FOR PRODUCTION OF DOCUMENTS:

The four requests for production below were inserted above between the numbered requests for admissions. I've market the place holders to their original locations.

Request for Production No. 1

If Defendant did notify Chase Bank USA, N.A. that it failed to perform pursuant to

the agreement, produce any written notice that Defendant sent notifying creditor of Defendant's belief.

OBJECTION The request is compounded, conditional, and predicated upon speculation and conclusions which are beyond defendant's scope of knowledge.

Request for Production No. 2

If request for admission number 8 is denied, provide a copy of any written

correspondence Defendant sent to Chase Bank USA, N.A. to object to the

accuracy, quality, delivery, fitness, or merchantability of such goods, services, cash advances, or transfers.

Defendant has no such documents at this time.

Request for Production No. 3

If request for admission number 10 is denied, produce any written notice that

Defendant sent to Chase Bank USA, N.A. notifying the creditor that the credit

card(s) was lost, stolen, or being used without Defendant's permission.

Defendant has no such documents at this time.

Request for Production No. 4

If request for admission number 11 is denied, provide a copy of any written

objection or protest to an amount billed on any invoice or billing statement sent by

the Defendant to Chase Bank USA, N.A..

Defendant has no such documents at this time.

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Read your court rules. Unless the rules for admissions require an explanation, I would simply answer "Denied". If you object, then include a reason for the objection, but also deny. You don't want to take a chance that a mere objection would be considered an admission.

Regarding the production requests, I might state something like this for #1:

Defendant has denied knowledge of the account and would have no such documentation. After a reasonable search of his records, Defendant has failed to locate any such documents.

I would send out my own discovery requests as well.

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Thanks for your feed back. I am planning to do my own discovery requests.

Unfortunately I felt I had to file these this morning as I won't make it near the end of the day today to make sure I was under my 30 days. The answer/objections were taken from another final set on this forum for the same jurisdiction that had been looked over by others here. Hopefully it works in my favor.

So, we shall see. Thanks for your help!

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Just admit or deny. No explanation needed.

But before you do, are you saying they served a Notice for Admissions BEFORE you answered the complaint? You can't do that. I think you can aask teh court fo rsanctions

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Timeline:

I received a summons (via Certified mail & server).

I sent DV request to JDB.

They ignored it & sent via mail Request for Admissions integrated with Request for Production about the same time they filed the suit officially.

Yesterday I filed my answers to their Requests.

Feeling a bit sick to my stomach right now that I filed that when I did, but I didn't want to miss filing my answers in time.

They also notified me by mail that they are filing for a summary judgement against me next week.

Now I need to find out what actions to take against the summary judgement request - and you thing as well that their actions could allow me to file sanctions? Is this still true if I filed my answers?

Thanks.

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Is what still true?

For summary judgement, in my opinion (and I'm not an atty), where people mess up, is they try too hard to win their case. Summary judgement is simply to show and argue there is no issue for a trial. In other words, no use for a trial as it is so obvious. This usually happens when one side can say even if the other side is 100% correct they still lose.

For example, if somebody sues for 10K for ten FDCPA violations and not the statuatory max of 1K per action. The collector can say even if I did violated the FDCPA ten times the damages are capped at 1K. The collector does not argue they did not violate the FDCPA.

You want to show a genuine dispute of a material fact(s) that requires the trier of the facts (judge or jury) to listen to the case and settle the dispute. So in my opinion, you want to file your own affidavits in opposition to any affidavit they file. I might be wrong but I'm of the belief that you simply need to just put all matters in dispute and not really hammer your side home like you would in a trial. In other words you can defeat summary judgment and not tip your whole hand.

A good rule, again in my opinion, is to raise your level of proof or in opposition to that of your opponent. For example, if they provide affidavits, you don't want to just write in an reply you deny what they said. You want to rise to their level and enter your own affidavits.

If you asked in discovery for how they got to the amount they allege and they did not give you or objected as too burdlesome to provide, you can then attach that interrogatory to your reply. You can show the Judge (without admitting liability) the other side is not providing an accounting on how they arrived at their figure. That is a material dispute as it pertains to damages. Now if you did not ask how they got to that figure and you just say don't owe them that much, then you pretty much just gave them a partial summary judgement award and then the court will just decide damages. So be careful.

The bottom line is you want to show a "true" dispute, not a he said she said. As you get their evidence you need to be replying with objections and/or disputes to that evidence. That way, in your reply for summary judgement, you can show an ongoing dispute and not an oh crap they filed for summary judgment so I guess I better deny and dispute.

On a side note, if they don't file for summary judgement against you next week or whatever time they put in their letter to you, I'd sue the atty for FDCPA violations. Yes, sue them for not filing for summary judgment. I've never had one go to trial but there is something funny about suing an atty for not suing you. That's why when you get letters they very rarely give a definate time frame for an action. They will just say we will consider all other legal actions and proceed in the best interest of our client, which might include XXXXX.

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Let me rephrase "is it true".

If I have already filed my answers to their requests, can I file sanctions for them not actually filing their requests?

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