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Is there a good thread about what documents to ask for with a JDB?


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Antiquedave's thread on discovery requests is pretty good. It's a sticky, so you shouldn't have any problems finding it. It's for an OC, but a lot of the stuff applies to JDBs too. You'll get a generalized set of docs to ask for, then you can tweak it to fit a JDB and your case.

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Check my posts, you'll find good ROGs and production of documet requests. Admissions are a waste of time, they'll never admit to anything. Get them with the documents, that's how you win. They never have the documents.

thanks. started looking through your posts. what do you think of antiquedaves sticky with his doc requests?

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1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

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

Change to your creditor if it is different

1. State with specificity the choice of law provision in the alleged cardholder agreement.

2. State whether or not Citibank is bound by the statutes of the choice of law provision Citibank chooses in their cardholder agreement.

3. State whether or not the alleged cardholder agreement fully explains the statutes by which the cardholder is allegedly bound

4. If the response to 3 was in the negative, explain why Citibank refuses to divulge to the consumer the statutes under which they are allegedly bound

5. If the response to 3 was in the affirmative, state the specific statutes that apply.

6. If the response to 2 was in the negative, state why Citibank is not bound by the choice of law their customers are supposedly bound by.

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I am confused over 11 and 12. why are they important?

Goes towards establishing 2 elements of account stated. Do some research on account stated. There are 4 elements. Just Google it. They will NEVER produce these docs, that's what you want. They don't exist, never have. So how are you supposed to know what constitutes the basis of their claim if they never told you? See? Concentrate on strategy, not canned answers from the internet. Think like the opposition. Then you'll know how to defeat them.

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I am confused over 11 and 12. why are they important?

Goes towards establishing 2 elements of account stated. Do some research on account stated. There are 4 elements. Just Google it. They will NEVER produce these docs, that's what you want. They don't exist, never have. So how are you supposed to know what constitutes the basis of their claim if they never told you? See? Concentrate on strategy, not canned answers from the internet. Think like the opposition. Then you'll know how to defeat them.

The elements of account stated are:

(1) prior transactions between the parties which establish a debtor-creditor relationship;

(2)an express or implied agreement between the parties as to the amount due; and

(3) an express or implied promise from the debtor to pay the amount due.

[4]When a creditor sues for account stated, this sets both the debtor's liability and the exact amount the debtor must pay, which on its surface is less complicated than claiming a debt is due and payable. An account stated may carry a longer statute of limitations (time to file suit) than some other forms of debt, depending on the state.

In other states, such as Washington state, "account stated" is generally asserted as a defense in a contract action. See Northwest Motors, Ltd. v. James, 118 Wash.2d 294, 304, 822 P.2d 280 (1992), citing Goodwin v. Northwestern Mut. Life Ins. Co., 196 Wash. 391, 410, 83 P.2d 231 (1938). Courts in those states characterize "account stated" as being merely a defense or a "doctrine" that prevents parties from raising issues that have already been dealt with, compromised and/or settled by the parties.

“An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance.”

“An account stated is merely a form of proving damages for the breach of a promise to pay on a contract.”

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I am confused over 11 and 12. why are they important?

Goes towards establishing 2 elements of account stated. Do some research on account stated. There are 4 elements. Just Google it. They will NEVER produce these docs, that's what you want. They don't exist, never have. So how are you supposed to know what constitutes the basis of their claim if they never told you? See? Concentrate on strategy, not canned answers from the internet. Think like the opposition. Then you'll know how to defeat them.

:) yep thats why i asked... I try not to use anything I dont understand and cant adequately explain.

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There are literally thousands of cases on Google Scholar involving account stated. I hate the cause of action, it's just an excuse for attorneys who can't prove their case. There is no state statute I am aware of that clearly states that after X number of days, the time is unreasonable. I'm sure there is one, can anybody post it? It may be state specific. No TILA or REG Z laws, please. Those are designed to regulate lenders, not consumers. Interesting that when they sue you THREE YEARS after default with all that interest piling up, that's not unreasonable. You? You got 30 days, dude. Thus sayeth the cardholder agreement we never sent you.

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...but my favorite thread on what to ask for is below:

http://www.creditinfocenter.com/forums/there-lawyer-house/303360-strategy-pros-chime.html

While jackson212 may not be in the same state (as me or you) I appreciated this thread and his "less is more" strategy. I thought this was awesome and such great advice. Also pay attention to Debtor's Husband's link in post #2.

When dealing with arrogant, lazy, greedy, jdb's--They aren't expecting pro-se's to know what they need to prove their case in court. I think it's kind of cool to play their arrogance against them, and not share w/them just how much you know, UNTIL you have to (at trial). ;) But that's just my opinion, and your mileage may vary. Every case is different and ultimately, you have to try your case the way you see fit.

Hope this is helpful!

:)++ take care

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Each creditor is different as well, but they all use the same law firms. That's their mistake. You can hold off on discovery, but then you run the risk of them getting postponements, etc when you challenge their lack of evidence at trial. "He never asked us for that," will be their response. "Maybe the defendant never read the rules concerning discovery." It isn't like it's some great mystery, eventually somebody has to challenge the other side to produce something of value. If they think you know your stuff, they may just throw in the towel.

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Each creditor is different as well, but they all use the same law firms. That's their mistake. You can hold off on discovery, but then you run the risk of them getting postponements, etc when you challenge their lack of evidence at trial. "He never asked us for that," will be their response. "Maybe the defendant never read the rules concerning discovery." It isn't like it's some great mystery, eventually somebody has to challenge the other side to produce something of value. If they think you know your stuff, they may just throw in the towel.

Where do the threads/links I reference, say anything about holding off on discovery?

:confused:

Sorry, but that is not what the threads/links say. Not at all.

Edited by tigger
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production and longer time line. In my state you only get a few 35 total. So the couple requests for production, the couple form interrogatories, and then a couple of admissions, seperated by 4-5 days equals not only a PITA for them but locks them into their legal position.

as for POD there are hundreds of requests, but there are hundreds of objections also. You want information that they are going to admit at trial. work towards that.

you later want the information for an affiant.

I was asking about something a year or so ago about written depositions and whether we could do it. I bring this up again because you can use these in court to gut the witness.

2028.010. Any party may obtain discovery by taking a deposition by

written questions instead of by oral examination. Except as modified

in this chapter, the procedures for taking oral depositions set forth

in Chapters 9 (commencing with Section 2025.010) and 10 (commencing

with Section 2026.010) apply to written depositions.

2028.020. The notice of a written deposition shall comply with

Sections 2025.220 and 2025.230, and with subdivision © of Section

2020.240, except as follows:

(a) The name or descriptive title, as well as the address, of the

deposition officer shall be stated.

(B) The date, time, and place for commencement of the deposition

may be left to future determination by the deposition officer.

2028.030. (a) The questions to be propounded to the deponent by

direct examination shall accompany the notice of a written

deposition.

(B) Within 30 days after the deposition notice and questions are

served, a party shall serve any cross questions on all other parties

entitled to notice of the deposition.

© Within 15 days after being served with cross questions, a

party shall serve any redirect questions on all other parties

entitled to notice of the deposition.

(d) Within 15 days after being served with redirect questions, a

party shall serve any recross questions on all other parties entitled

to notice of the deposition.

(e) The court may, for good cause shown, extend or shorten the

time periods for the interchange of cross, redirect, and recross

questions.

2028.040. (a) A party who objects to the form of any question shall

serve a specific objection to that question on all parties entitled

to notice of the deposition within 15 days after service of the

question. A party who fails to timely serve an objection to the form

of a question waives it.

(B) The objecting party shall promptly move the court to sustain

the objection. This motion shall be accompanied by a meet and confer

declaration under Section 2016.040. Unless the court has sustained

that objection, the deposition officer shall propound to the deponent

that question subject to that objection as to its form.

© The court shall impose a monetary sanction under Chapter 7

(commencing with Section 2023.010) against any party, person, or

attorney who unsuccessfully makes or opposes a motion to sustain an

objection, unless it finds that the one subject to the sanction acted

with substantial justification or that other circumstances make the

imposition of the sanction unjust.

2028.050. (a) A party who objects to any question on the ground

that it calls for information that is privileged or is protected work

product under Chapter 4 (commencing with Section 2018.010) shall

serve a specific objection to that question on all parties entitled

to notice of the deposition within 15 days after service of the

question. A party who fails to timely serve that objection waives it.

(B) The party propounding any question to which an objection is

made on those grounds may then move the court for an order overruling

that objection. This motion shall be accompanied by a meet and

confer declaration under Section 2016.040. The deposition officer

shall not propound to the deponent any question to which a written

objection on those grounds has been served unless the court has

overruled that objection.

© The court shall impose a monetary sanction under Chapter 7

(commencing with Section 2023.010) against any party, person, or

attorney who unsuccessfully makes or opposes a motion to overrule an

objection, unless it finds that the one subject to the sanction acted

with substantial justification or that other circumstances make the

imposition of the sanction unjust.

2028.060. (a) The party taking a written deposition may forward to

the deponent a copy of the questions on direct examination for study

prior to the deposition.

(B) No party or attorney shall permit the deponent to preview the

form or the substance of any cross, redirect, or recross questions.

2028.070. In addition to any appropriate order listed in Section

2025.420, the court may order any of the following:

(a) That the deponent's testimony be taken by oral, instead of

written, examination.

(B) That one or more of the parties receiving notice of the

written deposition be permitted to attend in person or by attorney

and to propound questions to the deponent by oral examination.

© That objections under Sections 2028.040 and 2028.050 be

sustained or overruled.

(d) That the deposition be taken before an officer other than the

one named or described in the deposition notice.

2028.080. The party taking a written deposition shall deliver to

the officer designated in the deposition notice a copy of that notice

and of all questions served under Section 2028.030. The deposition

officer shall proceed promptly to propound the questions and to take

and record the testimony of the deponent in response to the

questions.

Should we work on these? will they be helpful at trial? It seems worthwhile and a good discussion and developement of written deposition strategies can help us to uncover info about the JDB, The OC, and definitely about the affiants.

The RFPD's and the other stuff is fine but these seem to allow you to gut the affiant and allow you to gut the hearsay statements.

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I think it's kind of cool to play their arrogance against them, and not share w/them just how much you know, UNTIL you have to (at trial).

One common strategy litigants utilize to do what you suggest is to limit or "hold off" on discovery. The link you posted suggests this tactic by limiting what you ask for to a general request which does not reveal strategy. However, general requests are much more likely to be objected to. Some litigants don't even bother to conduct discovery, they just let the JDB show up in court with whatever he has, and attack it then. These are rare cases.

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I think it's kind of cool to play their arrogance against them, and not share w/them just how much you know, UNTIL you have to (at trial).

One common strategy litigants utilize to do what you suggest is to limit or "hold off" on discovery. The link you posted suggests this tactic by limiting what you ask for to a general request which does not reveal strategy. However, general requests are much more likely to be objected to. Some litigants don't even bother to conduct discovery, they just let the JDB show up in court with whatever he has, and attack it then. These are rare cases.

Given that I answered the op's question, with a link to a post (from a more experienced member) --that I found to be helpful, how about allowing the op to decide if he likes the links provided (or not), before you reject them...? It's his case, after all (...and his thread, question, etc.). He's entitled to consider varying perspectives.

Neither of us seems to reside in his state, and can only offer "opinions" of what may or may not be helpful for his situation, anyway. ;) Ultimately, it's up to the op to decide what will be best for his situation.

Edited by tigger
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