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How to fight the objections on my petition for documents


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I have just today received the answers to my petition for documents, and the attorney for midland objected to all of the items on the list. The only info that they provided was as follows:

2 statements (the statements that say I'm 6 and 7 months late)

a card holder agreement with arbitration agreement

an affidavit of sale from capital one (no account number on it)

a bill of sale from capital one (they blocked the amount paid, and it had no account number on it, but it said that they purchased all of the accounts that are within a text document, which was not provided)

a verification as to responses

a certificate of conformity

that was all that was received form them. below is the original document that I sent for petition for documents

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IN THE LICKING COUNTY MUNICIPAL COURT

LICKING COUNTY, OHIO

MIDLAND FUNDING, LLC.

dba: MIDLAND FUNDING DE, LLC.

PlaIntiff

Case No:blah

Judge

V.

xxx

aka: joe defender

Defendant.

REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

COMES NOW Defendant xxx, in accordance with Rules 34 and 37 of the Ohio Rules of Civil Procedure , requests Plaintiff, Midland Funding LLC to produce the following documents for inspection and copying at the law offices of Plaintiff’s attorney, JAVITCH, BLOCK & RATHBONE LLC, 140 East Town Street, Suite 1250, Columbus, Ohio within twenty-eight (28) days or as counsel may mutually agree.

DEFINITIONS

The following definitions are to be used in responding to the following interrogatories.

A. “Plaintiff,” means MIDLAND FUNDING LLC, dba: MIDLAND FUNDING DE, LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. “Defendant” means, xxx an individual.

C. “Document,” means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.

D. “Credit Application”, means the Original Signed Application bearing Defendant’s signature for any contract between Plaintiff and Defendant or Defendant and Capital One Bank [uSA], N.A..

DOCUMENTS TO BE PRODUCED

1. ALL documents evidencing any communication between Plaintiff and Defendant in connection with the Agreement described in Plaintiff’s Petition, including letters and correspondence.

2. The alleged credit application from Account Numbers (Capital One Bank [uSA], N.A. Acct#) xxxx bearing the defendant’s signature;

3. The alleged credit agreement from Account Numbers (Capital One Bank [uSA], N.A. Acct#) xxxx that states interest rate, grace period, terms of repayment, et cetera;

4. Itemized statements or credit card statements from Account Numbers (Capital One Bank [uSA], N.A. Acct#) xxxx that demonstrate how the alleged amount of $2513.11 was calculated;

5. A contract, agreement, assignment, or other means demonstrating that Midland Funding LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number (Capital One Bank [uSA], N.A. Acct#) xxxx;

6. Letter(s) sent to defendant by Midland Funding LLC, demonstrating an attempt to collect on the alleged debt, Account Numbers (Capital One Bank [uSA], N.A. Acct#) xxxx;

7. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

8. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Numbers (Capital One Bank [uSA], N.A. Acct#) xxxx;

9. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

10. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).

11. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

12. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;

13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Numbers (Capital One Bank [uSA], N.A. Acct#) xxxx;

xxxx

By: _______________________________

xxxx, Defendant

23 main st.

anywhere, Ohio 43055

(740) xxx-xxxx

Edited by thefinz
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IN THE LICKING COUNTY MUNICIPAL COURT

LICKING COUNTY, OHIO

MIDLAND FUNDING, LLC,

Plaintiff,

v. Case No.: blah

Judge Michael F. Higgins

xxxx,

AKA: joe defender,

Defendant,

PLAINTIFF’S RESPONSES TO DEFENDANT’S

FIRST REQUEST FOR DOCUMENTS

1. All documents evidencing any communication between Plaintiff and Defendant in connection with the Agreement described in Plaintiffs Petition, including letters and correspondence.

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is vague, overly broad and unduly burdensome. Further, some of the information responsive to this request is not likely to lead to the discovery of admissible evidence or may not be subject to disclosure as attorney/client privileged or trade secrets.

2. The alleged credit application from Account Numbers (Capital One Bank USA, N.A. Acct# XXXX) bearing the defendant’s signature.

RESPONSE:

OBJECTION, The credit application bearing Defendant’s signature is not in the immediate possession, custody, or con1rol of the Plaintiff and, therefore, are not subject to discovery under Civ, R. 34.

Plaintiff further objects to this request as the request calls for and is based upon an

incorrect legal conclusion about the type of evidence necessary to recover on an unpaid

credit card debt. It is the issuance (offer) and subsequent use of a credit card

(manifesting an acceptance) that creates a legally binding agreement. Thus, to be

enforceable, a written contract need not be presented. Citibank v. Kovach (2010), 157

Ohio Misc.2d 24, 20l0—Ohio-3055; Chase ·Bank USA v. Lopes (8th Dist. 2008), No. 91480, 2008-Ohio—6000; Asset Acceptance L.L.C. v, Davis (5th Dist. 2004), No. 2004-CA-00054, 2004-Ohio-6967; Calvary SPV L LLC v. Furtado (10th Dist. 2005), No-05AP-361, 2005_-Ohio-6884; Bank One, Columbus, N A. v. Palmer (1989), 63 Ohio App.3d 491, 579 N.E.2d 284; Manufacturers & Traders Trust Cor v. Lindauer (1987), 135 Misc.2d 132, 513 N.Y.S.2d 629); Bank qfzimerica v. Jarczyk, (2001) 268 B.R. 17; Am. Express Travel Related Servs. v. Silverman (10th Dist. 2006), No. 06AP-338, 2006-

_ " Ohio-6374; W0U' Automotive v. Rally Auto Parts, Inc. (1994), 95 Ohio App.3d 130, 641 N.E.2d 1 195

3. The alleged credit agreement from Account Numbers (Capital One Bank [uSA] N.A., Acct#) XXXX that states interest rate, grace period, terms of repayment, etcetera;

RESPONSE:

Please see the attached Cardholder Agreement pertaining to said account.

4. Itemized statements or credit card statements from Account Numbers (Capital One Bank [uSA], N.A. Acct#) XXXX that demonstrate how the alleged amount of $2513.11 was calculated;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is vague, overly broad and unduly burdensome. Plaintiff further objects to this request to the extent that some of the documents sought are not in the immediate possession, custody, or control of the Plaintiff and, therefore, are not subject to discovery under Civ. R. 34.

Without waiving the objection, please see attached billing statements. Additional statements have been requested from the original creditor and will be supplemented upon receipt.

5. A contract, agreement, assigiment, or other means demonstrating that Midland Funding LLC had the authority and capacity, and was legally entitled to collect on the alleged debt From Account Number (Capital One Bank [uSA], N.A. Acct·#) XXXX;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is vague, overly broad and unduly burdensome as the terms "authority", “capacity" and "legal1y entitled” are not defined and call for a legal conclusion.

Without waiving the objection, please see attached copy of the bill of sale/assignment.

6, Letter(s) sent to Defendant by Midland Funding LLC, demonstrating an attempt to collect

on the alleged debt, Account Numbers (Capital One Bank [uSA], N.A. Acct#)XXXX;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it not reasonably calculated to lead to the discovery of admissible evidence.

7. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that alleged debt was incurred legally;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is overly broad, vague and unduly burdensome. Plaintiff further objects to this request to the extent that the document sought is not in the immediate possession, custody, or control of the Plaintiff and, therefore, is not subject to discovery under Civ. R. 34.

8. Any and all further documents that you believe establish that Plaintiff had an outstanding account or debt related to Account Numbers (Capital One Bank [uSA], N.A. Acct#)XXXX;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is overly broad, vague and unduly burdensome. Plaintiff further objects to this request to the extent that some of the documents sought are not in the immediate possession, custody, or control of the Plaintiff and, therefore, are not subject to discovery under Civ. R. 34.

9. Any further documentation, beyond what has been previously requested, that clearly establishes Defendant’s liability and! or responsibility to the alleged debt;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is overly broad, vague and unduly burdensome.

I0. · Any and all written communication, received by the Plaintiff and/or Plaintiffs attorney from the Defendant, regarding the reporting of the alleged account _to any credit reporting agency, as well as Plaintiffs and/or Plaintiff s attorney accessing of Defendant’s creditreport(s).

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is not reasonably calculated to lead to the discovery of admissible evidence.

11. Any and all communications from Plaintiff and/or Plaintiffs attorney to the Defendant explaining why Plaintiff and/or Plaintiffs attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining Defendar1t’s credit report(s);

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is not reasonably calculated to lead to the discovery of admissible evidence.

12. Any and all credit report(s) Plaintiff and/or Plaintiffs attorney obtained from any credit reporting agency concerning the Defendant;

RESPONSE:

Please see attached.

13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the Defendant or/or Account Numbers (Capital One Bank [uSA], N.A. Acct#)XXXX;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is vague, overly broad and unduly

burdensome.

As to each objection,

Michael E. Joseph (0083100)

Sean M Winters (0084612)

.

Respectfully submitted,

Michael E. Joseph (0083100)

Sean M Winters (0084612)

Attorney for Plaintiff

Javitch, Block & Rathbone, LLC

140 East Town Street, Suite 1250

Columbus, Ohio 43215

Phone: (614) 228-9550, ext. 5213

Fax: (614) 228-2818 .

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Are you countersuing them for anything? I agree with a lot of their objections if you are not countersuing them.

Even if your not, #6 you can get them on. You can argue it's relevant as it could lead to evidence that shows differing amounts being demanded and that in turn could lead to evidence that would challenge the record keeping and true amount of the alleged debt.

That evidence could then be used to impeach any witness that Midland had testify at trial. You could ask which amount being is alleged is correct? The one in the letter or the one in your lawsuit. Or the good ole criminal court answer, goes to credibility your honor.

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What I am asking now is for help, what can I do. How do I fight their objections and what else is needed to force them to provide the documents. please help

If you believe there is no basis for the objections, you need to write a letter to opposing counsel explaining why you believe you're entitled to the documents and why their objections are meritless ("Golden Rule Letter")

Then, if you don't get what you're asking for and you still want the documents, file a motion to compel. Describe in detail, in your supporting brief, why you need the documents, what you believe they will tend to show, and why the plaintiff's objections should be overruled. Include supporting caselaw.

9. Any further documentation, beyond what has been previously requested, that clearly establishes Defendant’s liability and! or responsibility to the alleged debt;

RESPONSE:

OBJECTION, Plaintiff objects to this request as it is overly broad, vague and unduly burdensome.

Addressing directly your requests for production (using #9 as an example), imagine that you first sent a request for admission asking plaintiff to admit that he is in possession, custody or control of no document or documents which he believes shows or tends to show that defendant is indebted to plaintiff in amount of $xxxx.xx.

What do you think the response would have been? What could you, or should you have done next?

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Number 2 is interesting; you asked for the application and they give you a bunch of case law that says they don't have to provide the contract.

Plaintiff further objects to this request as the request calls for and is based upon an

incorrect legal conclusion about the type of evidence necessary to recover on an unpaid

credit card debt. It is the issuance (offer) and subsequent use of a credit card

(manifesting an acceptance) that creates a legally binding agreement. Thus, to be

enforceable, a written contract need not be presented.

Use and acceptance is contract law, they may not export contract law as a national bank, only interest rate statutes. I believe their cardholder agreement states VA choice of law, check the VA code to see if "use and acceptance" is VA law. Some states do not have this law, but credit card companies try to sneak one over on you and say that it is in fact true when it may not be. The "contract" they refer to is usually the cardholder agreement. Does it say anything about use and acceptance?

As for number 4,

Plaintiff objects to this request as it is vague, overly broad and unduly burdensome. Plaintiff further objects to this request to the extent that some of the documents sought are not in the immediate possession, custody, or control of the Plaintiff and, therefore, are not subject to discovery under Civ. R. 34.

They sue you, then claim that it is burdensome to produce evidence to support their claim? They just admitted they don't have the documents you requested. Why not? They should be under their custody and control if they bought the account. Problem is, they don't want to pay for all the documents, that doesn't fit their business model.

7 is interesting too;

Plaintiff further objects to this request to the extent that the document sought is not in the immediate possession, custody, or control of the Plaintiff and, therefore, is not subject to discovery under Civ. R. 34.

Basically you asked for an affidavit. That should have been included anyway, but again, they say they don't have one. This goes toward validation of the amount sought. They don't feel like proving their case? Good for you. Overall, your requests are a bit vague. You should be more specific, requests that ask for "everything and anything you have" usually are objected to.

The part I don't like about their responses is when they say they do not have possession of critical documents which would prove their case, therefore they are not obligated to produce them. They should have this stuff if they're going to sue people. "Take our word for it" doesn't cut it. You can do that too, and see what happens. You can claim you paid the debt in full, but it is just too burdensome to produce the cancelled check. See what they say.

Edited by legaleagle
typo
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They sue you, then claim that it is burdensome to produce evidence to support their claim?

Exactly,!!! and almost makes me jealous I'm not in that courtroom arguing that to the judge and watching their faces turn red. It's positions like this, from the other side, where you put your foot on their throat and don't let up until you're cutoff of by the judge or the other side throws their hands up in disgust. :twisted:

Throw your hands up, shrug your shoulders, look at the other side in disgust and ask, "Then why in the world are we in court wasting this courts valuable time if it's too burdensome to obtain the evidence you need to prove your case."

Your Honor, why are we here? I'm confused, they sue me, then object to providing me their evidence they clearly need for trial? I'm not an attorney but my understanding of the law, after careful research, is the other side must disclose to me their evidence if I ask properly for it.

Then clear the courtroom for the mushroom cloud as the other sides head explodes, much to your delight.

Edited by Coltfan1972
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Remember, if they refuse to produce evidence to you in discovery, and then try to enter it at trial, you can OBJECT!

You can object, but your objection may be overruled. Just because a party refused to produce "evidence" in discovery, does not always

mean it is inadmissible at trial. If your request was defective or you failed to contest an objection, the evidence may still find its way into the courtroom.

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Nascar is correct. (damn it) You must present a good legal argument as to why your objection should be sustained. You cannot just say "I object" and expect the ruling to go your way. You have to give the judge a reason to rule in your favor. You should cite all your authorities in your brief.....rules of procedure, legal statutory authority, and then case law. Preferably your case law should be from your own state, even better, your own court and your own judges. Just a couple, don't overdo it. You have to pick apart their responses and tell the judge why those responses are insufficient. I gave you one example....they talked about a contract when you requested the application. Attack the way they characterized your requests as vague and then provided vague answers in response, or answers that have no relation to the question asked. Also, I would attack their argument that they do not have the documents needed to prove their case. Make them explain why not, and what justification they have for bringing suit when they are obviously unprepared to make their case.

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So just to get this straight, I need to fight the objections I don't agree with and cite case law. Then after that do I mail the letter stating I wish to file to compel discovery of documents if judge overturns objections of the plaintiff. Is this correct.

Also did read over the customer agreement and saw that it states that Virginia is the state of governing law for the cardholder agreement. Thus through a small amount of research I found under title 11-2

11-2. When written evidence required to maintain action.

Unless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent, no action shall be brought in any of the following cases:

1. To charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, to the intent or purpose that such other may obtain thereby, credit, money, or goods;

2. To charge any person upon a promise made after attaining the age of majority, to pay a debt contracted during infancy, or upon a ratification after attaining the age of majority, of a promise or simple contract made during infancy;

What I was wanting to know as well is if this would be a good argument to get the contract

4. To charg

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Those don't apply. The only thing about VA law that may help in CC cases is statute of limitations or contract law / interest law. Forget interest law, there is virtually none. Before you file anything with the court, you should have some sort of meet and confer with the opposition. Send them a letter stating your reasons why numbers 2-3-4- whatever are insufficient answers. Ask for REAL answers and give them a timeframe. Your rules may have this, generally 2 weeks or more is enough. If they won't answer, then you file a motion to compel with the court. Include a sworn affidavit that states you attempted to resolve this with lawyer X on such a date but he refused. You won't need case law for this at this point, just cite the discovery rule that applies. Also, in my state, a "cover sheet" must be filed with the court whenever objections are made. This is a simple document that tells the court which questions were objected to and why. See if your rules require this. All of this is under the discovery section.

Edited by legaleagle
typo
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