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Incorrect / Incomplete Discovery Response


STgw6r
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Hi all,

State: California

Plaintiff: Asset Acceptance LLC

I’m in the process of fighting a suit filed against me by Asset Acceptance LLC. I’ve sent Form Interrogatories and a Request for Production of Documents. I received a ‘Bill of Sale’, and a ‘Claim Summary’, which included dollar amounts and a [failed] call log. They answered question 150.1 as follows:

150.1 Identify all DOCUMENTS that are part of the agreement and for each state the name, ADDRESS, and the telephone number of the PERSON who has each DOCUMENT.

ANSWER: Plaintiff is without knowledge as to the existence of any non-written part of the agreement.

Questions

Q1: I’m guessing the attorney made a mistake, I didn’t check box 150.3; does it look that way to all of you? If so, how should I object? Informally, by sending a letter stating the issues and demanding compliance, or formally with a Motion to Compel Further Responses?

Q2: Is it too much to expect a copy of the signed contract? If not, I have the same question as Q1, how should I object?

I'd greatly appreciate any help I can get

Edited by STgw6r
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Q2: Is it too much to expect a copy of the signed contract? If not, I have the same question as Q1, how should I object?

With an OC, a signed contract is not needed in a CC case. Keep that in mind. If they claim that there's a signed contract, make them produce it, but they don't need it. Same follows for a JDB. The use of the card constitutes agreement to the terms. Don't object to the idea that they can't produce a signed agreement.

You're in Cali, right? Have you sent a BoP yet? If not, send the EmmEffers a BoP.

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A signed contract is not needed and do not make the mistake of focusing on that. HOWEVER, they better have terms and conditions, a full accounting, etc which should amount to a big pile of documents to prove their case. Before you can pursue a motion you really need to send a meet and confer letter.

But since you are in CA, send them a BOP.

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The use of the card constitutes agreement to the terms.

Depends on where you live and how tricky you want to get. It goes like this.....you ask for the agreement. They can't produce it for one reason or another. They then try this use and acceptance crap, telling you that you agreed to the terms. Where are the terms? In the agreement we didn't give you. Oh, I see. I agreed to something I never saw. Cute. What if you have the death penalty for unpaid credit card bills in your state?

Each state is different. Some states do not have use and acceptance, others have it under the banking commission rules, which do not apply to national banks. States cannot regulate national banks, so the statute is meaningless in my opinion even if it exists. It would help if we knew who the OC was, their state laws are not exportable, only the interest rate. If CAL does not have this use and acceptance, it makes the argument stronger.

Lots of these cards were unsolicited in violation of Regulation Z. A JDB will NEVER be able to come up with an application or any proof that the card was applied for. The lack of the agreement is key here.

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The use of the card constitutes agreement to the terms.

Depends on where you live and how tricky you want to get. It goes like this.....you ask for the agreement. They can't produce it for one reason or another. They then try this use and acceptance crap, telling you that you agreed to the terms. Where are the terms? In the agreement we didn't give you. Oh, I see. I agreed to something I never saw. Cute. What if you have the death penalty for unpaid credit card bills in your state?

Each state is different. Some states do not have use and acceptance, others have it under the banking commission rules, which do not apply to national banks. States cannot regulate national banks, so the statute is meaningless in my opinion even if it exists. It would help if we knew who the OC was, their state laws are not exportable, only the interest rate. If CAL does not have this use and acceptance, it makes the argument stronger.

Lots of these cards were unsolicited in violation of Regulation Z. A JDB will NEVER be able to come up with an application or any proof that the card was applied for. The lack of the agreement is key here.

Oh, I absolutely agree that the terms and conditions need to be clearly spelled out, just not in a signed contract. I also agree that they need to prove that you did apply for the card, even if you used it.

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Thank you all! I never expected to see so many replies!

@usagi555

I have not filed a BoP yet, I’ll look into this today.

@KentWA

I will look into getting a meet and confer letter sent.

@antiquedave

Edited

@ 1stStep

Will do

@legaleagle

The OC is Citibank/AT&T Universal. I will look into what role Use and Acceptance plays in California for this creditor.

@admin

This should go along with the request for the original terms, right? Is this a discovery request that needs to be made separate from the BoP?

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Q1: I’m guessing the attorney made a mistake, I didn’t check box 150.3; does it look that way to all of you? If so, how should I object? Informally, by sending a letter stating the issues and demanding compliance, or formally with a Motion to Compel Further Responses?

I agree with your interpretation. The plaintiff answered 150.3 instead of the interrogatory you actually propounded.

You will need to send a meet and confer letter pointing out the error and demanding a verified supplemental response. You only have 45 days from service of the response to file a motion to compel. CCP 2030.300 ©. So you will want to demand that plaintiff supplement well before that deadline or get plaintiff's agreement to extend the deadline to compel. If plaintiff agrees, you must confirm the agreement in writing (or make them do so).

Good luck.

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@calawyer

It's been 37 days! It looks like I have less than 8 days before I will no longer have the ability to file a motion to compel. How should I proceed? I can draft a meet and confer letter and have it at their doorstep by Thu/Fri. But that doesn't leave them much time to get back to me with an agreement to extend the deadline. Should I skip the meet and confer, file the motion to compel, and take my chances with the judge at the hearing?

Also, should I send a BoP now, or after I get the discovery issue above resolved?

Thank you for your helpful comment!

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The OC is Citibank/AT&T Universal. I will look into what role Use and Acceptance plays in California for this creditor.

Good. Use and acceptance can be argued against. I suggest my document production list, I posted it today. Hopefully they will mention use and acceptance when they answer, then you have a good argument. Case law and the OCC support the fact that national banks can only export their interest rate, not the rest of their laws. Citi is in SD, the statute for use and acceptance mentions how a contract can be formed. It has nothing to do with interest. SD law, SDCL 54-3-1.1 mandates a written agreement, otherwise they cannot charge more than 15% interest. You can drive a JDB crazy with this stuff, I guarantee none of them know these laws. They cannot use CAL banking law against you, CA has no authority over national banks where interest is concerned. No state does. Only the laws of the home state of the lender and federal statutes apply. That's what it always says in the agreement they didn't give you. Don't let them get away with citing any TILA or Regulation Z statutes. TILA regulates lenders, not consumers.

Edited by legaleagle
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@calawyer

It's been 37 days! It looks like I have less than 8 days before I will no longer have the ability to file a motion to compel. How should I proceed? I can draft a meet and confer letter and have it at their doorstep by Thu/Fri. But that doesn't leave them much time to get back to me with an agreement to extend the deadline. Should I skip the meet and confer, file the motion to compel, and take my chances with the judge at the hearing?

Also, should I send a BoP now, or after I get the discovery issue above resolved?

Thank you for your helpful comment!

Call them up. Tell them they responded to the wrong Rog. You won't file a motion if they agree to answer the correct rog and extend the time to move to compel. Tell them you will confirm in writing.

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Some more background on the amounts of $ involved in the case:

1. Principle: $4,400

2. Interest: 10% since Jan of 2008

3. Attorney fees: $900

4. Other costs incurred

5. Further relief as deemed proper by the court

Their lawyer says they are seeking ~ $7,300 total

I called their attorney a little while ago. He agreed that an error had been made, and he said that he would get the paralegal that prepared the document to look into it.

He asked if I would consider settling. I said that I don't believe they could prove I owe the debt. I wanted to leave it at that, but I was curious to know what they were thinking so I asked if they had a number in mind (a couple of months back, I had offered them $750 to settle, they said $3,500 and wouldn’t negotiate further). He started by saying that they were willing to accept the principle amount @ $70/month till it’s paid off. I said there was no way they would ever see the principle in full, and that I preferred to settle in one lump sum. $2,500 was offered; I said I could come up with no more than $1500. He thought about it for a minute or two and said he would get back to me on Monday with an answer from Asset Acceptance, saying that they would probably accept.

It's not in writing yet; I just wanted an idea of where they stand on settling. I’m working on sending a BoP, and I’m also looking into the use and acceptance argument.

It’s hard to find the time to do all the research that’s necessary to pull this off successfully. I’m willing to stick it out, but what are your thoughts on settling?

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