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A draft of my responses to discovery


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First I want to give you some background on the case. My husband is being sued by F&S representing citi. Citi is the OC. We went to arbitration about a month ago and won because citi didn't have enough evidence. Citi admitted that the credit card application no longer exists in response to discovery. We submitted discovery requests before arbitration, but Citi did not. The statements were incomplete and didn't even show any charges to the account. There were a few payments shown on the statements but the account had been closed prior to any of the statements provided. Citi has appealed the arbitrator award and we will be having a trial de novo in front of a judge. Today, we received discovery requests. I have drafted some responses and would love some feedback.

My draft of the responses.

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REQUEST FOR ADMISSION NO. 1: Admit that an account with Citi, was opened in Defendants name, account number xxxxxxxx.

ANSWER: Defendant denies opening the account.

REQUEST FOR ADMISSION NO. 2: Admit the Defendant used the Account for purchases of goods and services.

ANSWER: Defendant objects to Request for Admission No. 2. No. 2 as phrased is argumentative. It requires the adoption of an assumption, which is improper. Defendant has already denied opening the Account in the answer to Request for Admission No. 1.

REQUEST FOR ADMISSION NO. 3: Admit the Defendant made some payments on the Account.

ANSWER: Defendant objects to Request for Admission No. 3. No. 3 as phrased is argumentative. It requires the adoption of an assumption, which is improper. Defendant has already denied opening the Account in the answer to Request for Admission No. 1.

REQUEST FOR ADMISSION NO. 4: Admit the Defendant failed to make all of the required monthly payments on the Account.

ANSWER: Defendant objects to Request for Admission No. 4. No. 4 as phrased is argumentative. It requires the adoption of an assumption, which is improper. Defendant has already denied opening the Account in the answer to Request for Admission No. 1.

REQUEST FOR ADMISSION NO. 5: Admit that Defendant received, on a monthly basis statements on account xxxxxxxx that indicated the Defendant’s purchases on the account, payments made on the account, balance due and that Defendant never filed a written protest concerning any of the charges which comprise the balance due to Plaintiff.

ANSWER: Defendant objects to Request for Admission No. 5. No. 5 as phrased is argumentative. It requires the adoption of an assumption, which is improper. Defendant has already denied opening the Account in the answer to Request for Admission No. 1.

REQUEST FOR ADMISSION NO. 6: Admit the Defendant owes a balance of $8,xxx.xx

ANSWER: Defendant objects to Request for Admission No. 6. No. 6 as phrased is argumentative. It requires the adoption of an assumption, which is improper. Defendant has already denied opening the Account in the answer to Request for Admission No. 1.

INTERROGATORY NO. 1: Please state the name, address and job title or official capacity of each person answering these Interrogatories and each person consulted with in answering these Interrogatories.

ANSWER: Defendant objects to answering “job title” as is it irrelevant and only seeks to invade the privacy of the Defendant. These interrogatories were answered by the Defendant, <husband's name>, <current address>.

INTERROGATORY NO. 2: Identify each and every document which you will or may seek to introduce as an exhibit in any trial and other hearing in this case. [Please provide any and all documentation.]

ANSWER: At this point, defendant does not anticipate introducing any document as an exhibit. Defendant reserves the right to supplement his answer.

INTERROGATORY NO. 3: If you have retained the services of any expert witness for use in this case, please state:

A. The name and address of the expert witness or witnesses;

B. The substance of his or her opinions;

C. The facts upon which the expert witness bases his or her opinion;

D. State whether or not the expert witness has prepared a written report; and

E. State the name and address of each person having possession of a copy of the report or reports.

ANSWER: Defendant has not retained the services of any expert witness. Defendant reserves the right to supplement his answer.

INTERROGATORY NO. 4: State the names, addresses, and telephone numbers of those individuals who prepared any reports, memoranda, publication, or investigation summaries regarding the dispute which is the subject matter of this litigation and please state the names, address and telephone numbers of those individuals who have custody of such reports, memoranda, publications or investigation summaries. [Please provide any and all documentation as prepared.]

ANSWER: Defendant is not aware of any of these except those produced by the Plaintiff or already in the Plaintiff’s custody. Defendant reserves the right to supplement his answer.

INTERROGATORY NO. 5: Please state the name, current address and telephone number, job title, and relationship to you of each person who may be your witness in this proceeding and include a summary of the witness’ anticipated testimony.

ANSWER: Defendant has already provided the Defendant’s Witness List to the Plaintiff by mail on October 24, 2011. Additionally, the Defendant does not anticipate any witnesses other than the Defendant. Defendant reserves the right to supplement his answer.

INTERROGATORY NO. 6: If you contend that the Defendant has valid defenses to the current balance owed and due, please set forth in complete factual detail the basis of your contention and any and all legal authority you believe supports your contention. [Please provide any and all documentation supporting your contention.]

ANSWER: Defendant denies opening an account with Citi. Plaintiff has not provided any proof that Defendant applied for the alleged account or that the Defendant is responsible for the alleged account. The Defendant denies responsibility for the alleged account. Additionally, the Plaintiff has also not provided a complete accounting of the alleged balance owed.

INTERROGATORY NO.7: If Defendant disputes the amount due on the Account, please set forth in complete factual detail the basis of this contention. Your explanation to include what amounts, charges, service charges, credit protection charges, fees or computations, if any, the Defendant argues is incorrect. [Please provide any and all documentation supporting your contention that the current balance is incorrect.]

ANSWER: Defendant has already denied opening the account. Plaintiff has not provided any proof that the Defendant is responsible for the account and the Defendant denies responsibility. Plaintiff has not provided any proof of any usage of the alleged account. Defendant denies using the alleged account because he denies opening the account. The Plaintiff has failed to provide proof of any principal balance due on the account that arose because of the Defendant’s alleged use of the account. Therefore, the Defendant disputes the entire amount due including service charges, interest, and fees as there is no basis for determining the computation of said items.

INTERROGATORY NO. 8: Have you made any payments which reflect the correct amount due and owed to Plaintiff? Please set forth in complete factual detail any and all payments made to the account which document the correct amount currently due on the account as asserted in Interrogatory No. 7. [Please provide any and all documentation supporting your contention that the current balance is not the correct amount owed and due to the plaintiff.]

ANSWER: Interrogatory No. 8 as phrased is argumentative. It requires the adoption of an assumption, which is improper. Defendant has already denied opening the account. Plaintiff has not provided a complete accounting of the amount due.

INTERROGATORY NO. 9: Please list all addresses used by the Defendant since, January, 2008, including all physical and mailing addresses.

ANSWER: My current address is <address> as already previously stated. I object to providing any other addresses as the Interrogatory No. 9 seeks to invade my privacy and seeks irrelevant information.

(Note: The current address is not the address shown on the statements. He moved to the current address in early 08. We don't want to give the old address. What other objections can you think of?)

INTERROGATORY NO. 10: If the Defendant denied any of the above Requests for Admissions, please set forth in complete factual detail the basis of your denial and please provide any and all documentation that supports your contention. [Please provide any and all documentation supporting your denials.]

ANSWER: Defendant denies opening an account with Citi. Based on that denial, all other requests for admission require the Defendant to adopt an assumption and are improper. Plaintiff has not provided any proof that Defendant applied for the account or that the Defendant is responsible for the account. Additionally, the Plaintiff has also not provided a complete accounting of the alleged balance owed. Production of any documents supporting Plaintiff's claim are the responsibility of the Plaintiff, not the Defendant.

*to be continued

Edited by needhelpnm
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*here is the rest

REQUEST FOR PRODUCTION NO. 1. Copies of any and all documentation as referred to in the Interrogatories as requested above.

RESPONSE: Defendant has only referenced documents provided to the Defendant by the Plaintiff. The Plaintiff already has these documents in its possession.

REQUEST FOR PRODUCTION NO. 2. Copies of any and all documentation, to include but is not limited to, copies of checks and bank statements for the time period of January, 2008 through January, 2010.

RESPONSE: Defendant objects to the Request for Production No. 2 as it seeks to invade the privacy of the Defendant, seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Additionally, No. 2 seeks “any and all documentation, to include but is not limited to, copies of checks and bank statements” as it is overly broad and unduly burdensome.

(note - seems that citi is trying to prove the origin of payments made on the account. F&S tried to argue that payments were made so this has to be his debt. What do you think the chance is that he would be ordered to provide this info?)

REQUEST FOR PRODUCTION NO. 3. Copies of any and all documentation Defendant sent to Citi in regards to any dispute made.

RESPONSE: Defendant objects to the Request for Production No. 3 as it is overly broad, unduly burdensome and harassing as the Plaintiff is already in possession of the requested documentation.

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Re the request for admissions, lose the objections, just deny. By objecting, you only open the door to the other side challenge the objections.

Re the interrogatories, many of them ask you to produce documents. That's improper. Document requests are limited to Rule 34, Request for Productions.

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First I want to give you some background on the case. My husband is being sued by F&S representing citi. Citi is the OC. We went to arbitration about a month ago and won because citi didn't have enough evidence. Citi admitted that the credit card application no longer exists in response to discovery. We submitted discovery requests before arbitration, but Citi did not. The statements were incomplete and didn't even show any charges to the account. There were a few payments shown on the statements but the account had been closed prior to any of the statements provided. Citi has appealed the arbitrator award and we will be having a trial de novo in front of a judge. Today, we received discovery requests. I have drafted some responses and would love some feedback.
Weren't these arbitration terms supposed to be "mandatory binding" or something like that, meaning there was no appeal?
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Weren't these arbitration terms supposed to be "mandatory binding" or something like that, meaning there was no appeal?

No, it's court annexed arbitration under LR2-603 NMRA. The NM District Court 2nd Judicial District's docket is overloaded so they shove as much off to arbitration as they can. It's a crapshoot as to what attorney is the arbitrator, but unless you lose by default, you get a trial de novo at no cost and with a few exceptions, the rules of civil procedure are the same as they would be if you were on the docket.

As for the discovery requests, F&S never sent me any on behalf of Citi.

PM inbound.

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As for the discovery requests, F&S never sent me any on behalf of Citi.

PM inbound.

Their requests are basically questions they asked at arbitration. Just trying to get admissions for an SJ.

I think its total crap the trial de novo. We basically had a trial where all arguments were outlined. Citi was ridiculously ill-prepared. Now, they know all of our defenses and can presumably cure their evidence problems (if anything else exists.) The credit application no longer exists. However, we were complimented by both arbitrator and F&S atty on how well written our response to SJ was, all thanks to this forum. They filed for SJ a week before the arbitration and were denied. I will look for your posts. I may email you also. Thanks.

Edited by needhelpnm
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Eh, the trial de novo works both ways. I know of another person who lost over some hearsay and has appealed. As you already know, the people you are dealing with are sloppy to the extreme. I suspect that you may have to survive another MSJ, but if you do that, I'm betting that they'll cut and run if you keep the pressure up. I did have evidence that I was going to bring in and they knew it, and some of that evidence is stuff that they do not want to see the light of day. Or the light of a court room.

BTW, some of the discovery requests that I sent are here:

http://www.creditinfocenter.com/forums/there-lawyer-house/310127-discovery-requests-citibank.html

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I would answer this way:

REQUEST FOR ADMISSION NO. 1: Admit that an account with Citi, was opened in Defendants name, account number xxxxxxxx.

ANSWER: Defendant does not deny that an account was opened in Defendant's name. Defendant denies initiating such account through an application pursuant to Regulation Z section 226.12, which statute requires an application, which plaintiff has not produced.

REQUEST FOR ADMISSION NO. 2: Admit the Defendant used the Account for purchases of goods and services.

ANSWER: OBJECTION Use of the account is a matter for plaintiff to prove through admissible evidence. Absent any such evidence which may or may not be provided in discovery, defendant must deny. Plaintiff must provide strict proof that defendant personally used the account.

REQUEST FOR ADMISSION NO. 3: Admit the Defendant made some payments on the Account.

ANSWER: OBJECTION Payments are a matter of record and are assumedly already known to plaintiff through its business records. Additionally, the request makes no sense as plaintiff's complaint avers that defendant did not make payments, not that he / she did.

REQUEST FOR ADMISSION NO. 4: Admit the Defendant failed to make all of the required monthly payments on the Account.

ANSWER: DENIED to the extent that liability for said payments has yet to be established by admissible evidence.

REQUEST FOR ADMISSION NO. 5: Admit that Defendant received, on a monthly basis statements on account xxxxxxxx that indicated the Defendant’s purchases on the account, payments made on the account, balance due and that Defendant never filed a written protest concerning any of the charges which comprise the balance due to Plaintiff.

ANSWER: DENIED to the extent that plaintiff has provided no admissible evidence connected to the mailing of or receipt of any such statements. Therefore, any such "protests" are moot. Additionally, plaintiff has provided no evidence that "protests" must be made in writing.

REQUEST FOR ADMISSION NO. 6: Admit the Defendant owes a balance of $8,xxx.xx

ANSWER: DENIED Defendant avers that he / she owes plaintiff not one penny.

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