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Pre-Trial with Cap 1


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I'm scheduled to go to pre trial with cap 1 in a few days. In my response to 1st set of interrogs they claim that they are too overbroad, irrelevant and unduly burdensome. They request that I narrow down the requests for information. They also request an electronic copy.

I'll edit my interogs and post them here in a few but in the mean time any suggestions as to how to proceed?

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Here's a copy of the interogs

Date

Name & address

Name & address of Atorney

Case #

Please find:

Defendant's First Set of Interrogatories - Request for Production of Documents

DEFINITIONS

1. "Plaintiff", or "you" or "your" or "yours" shall refer to and include Plaintiff, as well as agents, servants, employees, associates, investigators, attorneys, representatives, shareholders, directors, officers and all others who may have obtained information for or on behalf of those named above.

2. "Identify" or "state the identity of":

2.1. When used in reference to a natural person means: that person's full name, present or last known business and residence address, present or last known business and residence telephone number, present or last known occupation, employer, and position and that person's occupation or position during the time relevant to the particular interrogatory.

2.2. When used in reference to an entity means: its full and complete name, its type of entity (i.e., corporation, partnership, unincorporated association, trade name, etc.), the location of its principal place of business, its mailing address, and its telephone number.

2.3. When used in reference to a document means: a description of the type of document, the identity of the person or persons who authored, prepared, signed, and received the document, the date, title, and general description of the subject matter of the document, present location or custodian of the original and each copy of the document, the identity of any persons who can identify the document, and if a privilege is claimed, the specific basis for such claim, in addition to the information set forth above.

3. The word "document" is used herein in its broader sense to mean every book, document or other tangible thing, including without limitation the following items, whether printed, typed, recorded, photographed, filmed or reproduced by any process, namely: agreements, communications, letters, memoranda, magnetic tapes, computer readable material, business records, notes, reports, photographs, and/or summaries of investigations, drawings, corporate records, desk calendars, appointment books, and any other information containing papers, writings or physical things.

4. The word "describe", used in connection with any act, occurrence, or physical facts, shall include but not be limited to the following: the identity of every person known to have been involved in or to have witnessed the act or occurrence, the date or dates of any such act or occurrence, and a description of any documents, records, or things documenting or involved in such act, occurrence, or fact.

5. The word “Incident” shall mean the facts and circumstances set forth in the Complaint giving rise to this action.

INTERROGATORIES

These interrogatories are continuing and if at any time after you have answered these interrogatories, new or additional information responsive to any of these interrogatories comes to your attention, you are required to furnish such new or additional information to this propounding party and serve upon all counsel for all parties supplemental answers to these interrogatories in accordance with the provisions of Ohio Civil Rules.

These interrogatories, and answers hereto, are to include and are to be based upon, information in the possession of or gathered by you, your agents, servants, representatives, investigators, attorneys, and all other persons who have investigated or gathered information at your request or on your behalf.

You are advised that the propounding party understands the attorney client privilege and the attorney work product privilege. The propounding party is not seeking information which is truly attorney client or attorney work product privileged. However, your response will be considered insufficient and a motion to compel will be filed if you respond generally that the information sought is attorney client or attorney work product privileged.

If in response to a particular interrogatory or request there is some information which is privileged and some information which is not privileged a general objection is not acceptable. The propounding party is seeking only non-privileged information and documents.

You are requested to respond to the following interrogatories:

Identify the individual executing the Verification of the responses to these interrogatories and identify all individuals who assisted in providing any information concerning or relating to your answers to these interrogatories.

Objections to all or any portion of an interrogatory shall be set forth with specificity sufficient to allow the party propounding these interrogatories to understand the exact scope of and reason for the objection. Where an objection relates to only a portion of the information requested in interrogatory, all other information not within the scope of said objection shall be provided.

Interrogatory

Affiant Interrogatories

1. Please explain and define the term “Authorized Agent” Please identify the scope of the authority and responsibilities conveyed by this title?

2. Please identify your function as the person signing the documents, and identify the basis of your personal knowledge. Do you use any other titles in the course of signing documents? If yes please identify the titles and purpose of using multiple titles.

3. Please identify your employer of record as evidenced by the entity that issues your paycheck. Please explain who has authorized you to make the affidavit and who has requested the affidavit that was provided and the dates of those requests.

4. Do you personally enter information into the fields in the software to generate the affidavit or do you simply pick up the pre printed affidavits to sign. Please explain the process in detail.

5. How many affidavits do you prepare and sign in a normal workday? How many Affidavits did you sign on Month Date Year?

6. Do you have authorized access to original documents within Capital One Bank (USA) , N.A.? Identify the person(s) who conferred that authorization upon you.

7. Did you as the Affiant physically retrieve the records which you have provided as evidence? Please explain how you access documents used in verification and preparation of the affidavit.

8. For each agreement you contend was offered to and accepted by the defendant, including but not limited to the original account agreement, any amendment to the agreement, any notice of a change in any term of the agreement, or any schedule of interest rates or fees applicable to the account, explain how the agreement was offered to and accepted by the defendant.

9. Explain how each document containing the terms of any agreement for the account or reflecting any amount due on the account was delivered to the defendant, including but not limited to, the original account agreement, any amendment to the agreement, any notice of a change in a term of the agreement, any schedule of interest rates or fees applicable to the account, any credit card issued in connection with the account, and any statement of payments, charges, fees or interest for the account. Include in your explanation the date the document was delivered and a description of the manner in which it was delivered, including, if the document was delivered by the Postal Service or other courier, the location to which it was addressed and whether the document was returned undelivered.

10. For each document you have produced that you contend applies to the account that does not contain the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, and that was created by someone other than you, identify the source of the document by stating the date you obtained the document and identifying the person from whom you obtained the document.

11. Please identify what documents were provided directly by you in addition to the affidavit and the dates those documents were provided. Did you attach the aforementioned documents to the complaint?

12. Please identify how the affiant came to know the facts included in the affidavit, how the affiant knows the documents attached to the affidavit are authentic and/or admissible under the business records rule.

13. Please explain the process and procedure to access the records used to verify the accounts you provide affidavits for. Where are these documents kept in relation to the location of your office? Are files brought to you or do you have to retrieve them yourself?

14. How often have you discovered errors while reviewing records and do you correct errors when discovered? If you do not correct them please identify the process for the correction of errors.

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Here is the remainder:

15. Have you been disciplined in the workplace for deficiencies related to carrying out the duties of your job signing affidavits or charged, or convicted of perjury? What training is provided to you in order to be a designated affiant?

16. Is you work governed by internal rules or procedures? Please explain in detail the rules/procedures required to carry out your duties as a signor of affidavits.

17. Please identify the percentage of your time in a normal work week that you are signing affidavits. Please explain the training you received to carry out the duties of your job and provide the job description.

18. Are you required to be licensed? Please identify the nature of the license? Please identify the overseeing authority or supervisor.

19. In the course of preparing the affidavit what records were reviewed? Please identify what documents constitute the "record" or "records"? Please identify where these documents were obtained, or who/what is the source of these documents?

Where were the documents actually reviewed at the time that they were allegedly reviewed or was information simply entered into fields on a computer screen?

20. Please identify the average time expended in reviewing a single file and preparing the affidavit.

21. Where are the documents now that you personally reviewed? In what form were these documents kept? (Digital, print, electronic, etc) What documents were reviewed or relied on prior to signing the affidavit? Who else has access to these documents besides you? What safeguards are in place to prevent tampering or unauthorized access to the records?

22. Does Capital One Bank (USA) , N.A. give you original documents to maintain or do you retain copies of the original? Please identify who is responsible for making the copies available?

For each agreement, amendment to an agreement, or notice of change to the terms of the account you contend was offered to and accepted by the defendant, please produce every document that evidences such offer or acceptance.

23. For each document listed below that was delivered to the defendant, please produce all documents indicating the date the document was delivered and the manner in which it was delivered, including, if the document was delivered by the Postal

Service or other courier, the location to which it was addressed and whether the document was returned undelivered:

a. The original account agreement for the account.

b. Any amendment to the agreement for the account.

c. Any notice of a change in any term of the account, including but not limited to a change in the rate of interest

or amount of any fee applicable to the account.

d. Any schedule of interest rates or fees applicable to the account.

e. Any credit card issued in connection with the account.

f. Any statement of payments, charges, fees or interest for the account.

24. For each document you have produced that you contend applies to the account and that does not contain some piece of the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, please produce every document containing information from which it may be determined whether the document applies to the account.

25. Please identify how long are the records kept? Please identify when was the account opened? Please identify what address was the account/card sent to?

Please identify on what date was the card/account accepted? Please identify when was the card activated?

26. Please identify whether or not there are other signers or authorized users on the account Please identify the date the account went into default. Please identify the dates and amounts of payments made on this account and the account that the payments were made from.

27. Please identify the date of charge off? Please identify the date of first major delinquency? Please identify who is the card issuer? Please identify the dates that the receivables were sold to, and the compensation received in the sale for the sale of the receivables subject to this action.

28. What does the choice of law provision say with regard to disputes on the alleged account? Which state governs Ohio or Virginia?

29. Please identify the process of notarizing the affidavits, do you physically take the affidavits to the notary and wait while they are signed?

Thank you for your attention to this matter.

Signed

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I would remind them of their responsiblity to respond and that their answers constitute a failure to answer,

If it were me I'd ask for a meet and confer to let them know that you will give them time if they need it and would agree to set another date for the pre-trial to give them the opportunity to reposnd correctly and fully

I would prepare a motion to compel and have it ready to go, basically what you also want to do is go through your request, their answer and then the rationale behind why you asked, why its important to your defense and why they need to respond, you'll need to document your attempts to get them to comply and provide answers in discovery in your request for court intervention.

but thats just me

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The problem I see here is that you are not allowed to send ROGs to non-parties. You must depose them or question them on the witness stand. You may have to subpoena them, or the creditor who used their affidavit may have to produce the person in court, since you cannot cross examine an affidavit. I'm surprised the JDB attorney didn't pick up on this. Then again, most of them are idiots.

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  • 2 months later...
These are good questions..just be prepared when they put up blanket objections to your requests as being overly-burdensome.

They will not send this to the affiant, the attorney will answer them. Be ready to file a motion to compel.

Well, that's exactly what happened. They put up blanket objections. I'm scheduled for pre-trial in a week.

Do I need to file a motion to compel before then?

Thanks.

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Maybe I am a little confused here, but it appears you posted your request of docs and interrogs, but not their response. I do not think you need to file a MTC. Your best defense is to continue to make them jump through hoops. Send out a second set of production of documents and interrogatories. Be sure to check your RCP's for any limits. Best rule be specific in what you ask for.

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Affiant Interrogatories

If they objected, drop the matter. You never should have sent these in the first place. The JDB lawyer may be too stupid to realize this, but a judge won't. Check your discovery rules and see if you can conduct a deposition by written question, that would be the proper way to question the affiant.

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Affiant Interrogatories

If they objected, drop the matter. You never should have sent these in the first place. The JDB lawyer may be too stupid to realize this, but a judge won't. Check your discovery rules and see if you can conduct a deposition by written question, that would be the proper way to question the affiant.

Capital One is not a JDB and would not have a JDB lawyer representing them.

I am curious though - a question to the original poster, have you elected arbitration with the attorney and Capital One and also filed a motion to compel arbitration with your court?

It will be hard to defend yourself against an original creditor, but electing arbitration could change things for you and give you a new avenue/strategy with this alleged debt. :)++

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Depends on what you mean by a "JDB lawyer". The same law firm that sued me for C1 also represents Midland, Portfolio, et al. Got 'em to fold by pushing discovery.

Any attorney can represent an original creditor or a JDB.

What I'm meaning is that "this" is an original creditor. It is not a JDB. The attorney representing Capital One will have the goods to prove the debt more than likely - about 99.9% positive.

However, that same attorney representing a JDB won't have the same proof as he would have had with the original creditor.

In this instance, facing an original creditor who probably has all the proof they need to defeat the consumer, but yet has a wonderful arbitration provision in their agreement - the consumer might find that arbitration is a better strategy versus trying to face off with them in court.

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Thanks for your responses everybody.

I'm feeling my way through the dark here as this is my first time with a creditor problem. I've learned as much as can from here or maybe I should say that all I know about credit law I learned from here. :)

They objected to every question on the Interrogatories I posted. We have had one pre-trial and they objected verbally. We didn't go before a judge and they asked for a second pre-trial to be scheduled.

They then sent written objections to every question, some account statements and the cardholder agreement.

In preparation I've found some case law that indicates they have not provided sufficient proof that it is a valid debt.

I don't know what my options are in regards to arbitration.

So far they have not put much effort into the case. From what I've read they typically don't. If they do start putting some effort into the case I'll have to find a plan B.

Thanks.

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Capital One is not a JDB and would not have a JDB lawyer representing them.

I am curious though - a question to the original poster, have you elected arbitration with the attorney and Capital One and also filed a motion to compel arbitration with your court?

It will be hard to defend yourself against an original creditor, but electing arbitration could change things for you and give you a new avenue/strategy with this alleged debt. :)++

I'm not sure if I can elect arbitration. I went through the cardholder agreement again and it is not mentioned as an option. I am assuming if this were an option it would be mentioned there?

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Capital One is not a JDB and would not have a JDB lawyer representing them

That's my generic term for a collections attorney. They all use the same firms, OC or JDB. Either way, you don't conduct discovery against non parties. This is the way to do this:

RULE 31. Depositions of Witnesses Upon Written Questions(A) Serving questions; notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided by Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

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I'm not sure if I can elect arbitration. I went through the cardholder agreement again and it is not mentioned as an option. I am assuming if this were an option it would be mentioned there?

You don't have to go by their agreement if its not the correct one. When was the alleged account opened?

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This is from Ohio civil procedure, rule 26

"Parties may obtain discovery by one or more of the following methods: deposition upon oral examination or written questions; written interrogatories; production of documents, electronically stored information, or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, the frequency of use of these methods is not limited."

I think I've satisfied that requirement with the written interrogatories. They seem to be not complying.

Am I missing something?

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2005 I think. They sent me one from 2010

Are you saying that it opened in 2005 and it defaulted in 2010?

Just wondering too - why you haven't elected arbitration with JAMS?

I think we can do better than a 2010 agreement - just let me know for certain about the dates.

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They gave you the 2010 agreement as they had taken out arbitration that year.

However, if you had the account opened earlier - and you did, then you could use one of the other agreements that have the arbitration provision as the agreement has a survivability clause.

Only they don't want you to know that. :rolleyes:

Let me know for sure about the default date and I'll show you an agreement that would cover your account.

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They gave you the 2010 agreement as they had taken out arbitration that year.

However, if you had the account opened earlier - and you did, then you could use one of the other agreements that have the arbitration provision as the agreement has a survivability clause.

Only they don't want you to know that. :rolleyes:

Let me know for sure about the default date and I'll show you an agreement that would cover your account.

The default date was Feb of 2010. They don't say when the account was opened.

They originally filed saying it was a consumer account with almost a $3000 balance and then they refiled saying it was a commercial account with a balance of a little over $2000.

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Are you saying that it opened in 2005 and it defaulted in 2010?

Just wondering too - why you haven't elected arbitration with JAMS?

I think we can do better than a 2010 agreement - just let me know for certain about the dates.

I;m going to have to research JAMS to discover what it is. I am unaware of any abritration options I might have.

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What year was the alleged account opened and what year was the default?

They will often not attach an agreement, give the wrong agreement or leave the part about arbitration out. :rolleyes:

Where do you find when the alleged account was opened and what year it supposedy went into default? If you aren't clear what the account even is is the JDB suing you supposed to send this to you? My thanks.

I see a lot about SOL on here but can't figure out how you can determine if the account they allege is within an SOL.

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