Common Cause vs. Breach of Contract

[phoenixfighter]

Citibank responded to my first discovery requests and in response to several of the requests, they have cited that the suit was initiated on common cause versus breach of contract.

Can any of the experts please offer input as to next steps and help me understand the difference?

Thank You!

[calawyer]

Citibank responded to my first discovery requests and in response to several of the requests, they have cited that the suit was initiated on common cause versus breach of contract.

Can any of the experts please offer input as to next steps and help me understand the difference?

Thank You!

Is CITI objecting to a request on this ground? If so, please give us the objection so we can help you respond.

[legaleagle]

Sure you don't mean common law? Common Cause is a lobbyist group. They have to state a recognized cause of action, otherwise you can't formulate a defense. What does the complaint say? That's what counts.

[phoenixfighter]

In several responses, this paragraph is included:

Responding party objects to this request on the grounds that the Propounding Party has sent Form Requests which are not tailored in any way to the allegations in the Complaint - specifically , Plaintiff sued on the basis of common counts not a formal breach of contract action. Responding party further objects to this request on the grounds that it is overbroad as to scope, uncertain and compound, burdensome and oppressive.

Thank you for your help!

[calawyer]

In several responses, this paragraph is included:

Responding party objects to this request on the grounds that the Propounding Party has sent Form Requests which are not tailored in any way to the allegations in the Complaint - specifically , Plaintiff sued on the basis of common counts not a formal breach of contract action. Responding party further objects to this request on the grounds that it is overbroad as to scope, uncertain and compound, burdensome and oppressive.

Thank you for your help!

The real question is whether, after asserting this objection, plaintiff responded to your request (interrogatory?) or whether it relied on its objection in refusing to respond.

[phoenixfighter]

OK, the paragraph referenced above was included in the response s to the following discovery requests.

Interrogatory 3: Identify all witnesses with evidence in support of your Complaint that the Defendant entered into a contact and is indebted to the Plaintiff.

In addition to the previously reported paragraph, the following was also included in response:

Responding party further objects as monthly statements on the Account, which make up the account as stated sued upon, were provided to the Defendant. Therefore Defendant presumably has knowledge and custody and control of the “evidence” and is a “witness” as sought by the request.

Without waiving the foregoing objections and qualifications, Plaintiff’s designated agents have knowledge of the account from business records. At this time, that includes without limitation the following persons qualified as the plaintiff’s Custodian of Records who have knowledge from business records: (several names listed) and the person verifying these responses. All CITIBANK personnel should be contacted through the undersigned legal counsel. Defendant presumably has knowledge. Discovery and investigation are continuing.

(they did not include all statements since the inception of the account, but did provide several years)

Request for Admission 5: Admit that you are barred under the Fair Credit Collection Practices Act 1692f(1) from collecting interest on any amount not authorized by the agreement creating the debt or permitted by law.

In addition to the previously reported paragraph, the following was also included in the response:

In addition to the foregoing objections and qualifications, Responding Party objects as the request is vague and ambiguous as to the terms “collecting interest on any amount not authorized in by the agreement” and “agreement”. Responding Party further objects as the request calls for a legal conclusion. For the foregoing reasons, Responding Party can neither admit or deny this request as written.

Request for Documents 2: The alleged credit agreement that states interest rate, grace period, finance charge, assignment and specifically the State Laws that the agreement and account are governed.

In addition to the previously reported paragraph, the following was also included in the response:

Furthermore, Responding Party objects to this request on the grounds that the burden, expense and intrusiveness of this request clearly outweighs the likelihood that the information sought will lead to relevant and admissible evidence. Responding Party objects on the grounds that any documents sent to the Defendant are presumably in the custody and control of the Defendant.

Without waiving the foregoing objections, Responding Party will comply be referring you to a copy of the current card member agreement. Responding Party will further comply by referring you to a copy of the notice of change of terms. Discovery and investigation are continuing; Plaintiff reserves the right to supplement this response if more documents become available.

Request for Documents 8: Please evidence proof of eh Defendant’s alleged debt to the Plaintiff, including specifically the alleged contract, between the Plaintiff and the Defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing the Defendant’s signature and/or please produce the contract the legally requires the Defendant to pay the amount entered into the complaint.

In addition to the previously reported paragraph, the following was also included in the response:

In addition to the foregoing objections and qualifications, Responding Party objects as the request is vague and unintelligible as to the term “instrument constructed solely for the purpose of creating a loan agreement.”. Responding Party further objects as the request is irrelevant to the matter sued upon as the causes for action were for common counts or account stated, open book and money lent – this is not a formal breach of contract action.

Responding Party objects to this request on the grounds that it is overbroad as to time and scope, vague and uncertain, compound, burdensome and oppressive. Responding Party further objects ont eh gounds that the burden, expense, and intrusiveness of the request clearly outweighs the likelihood that the information sought will lead to the discovery of relevant or admissible evidence.

Without waiving the foregoing objections and qualifications, Responding Party will comply by referring you copies of available monthly statements as are located after a reasonable and diligent search. The copies of available monthly statements speak for themselves as to dates and amounts of all payments, credits, charges, fees and interest relating to or applied to Defendant’s account. The copies of available monthly statements make up the amount stated as sued upon.

[legaleagle]

Your rogs are pretty bad. I suggest resending them and use these for Citi:

Requests for Production of Documents

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."

Interrogatories

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.

Also post the complaint, you may have grounds for a request for a more definite statement. No specific cause of action is too generic, we have to see this.

[phoenixfighter]

Thank you LeagleEagle!

Question - Am I allowed to resubmit in California where there are limits on the total number of requests that you can submit?

One more if I may - do you a recommendation for how to format a Mediation Statement?

Again, thank you!

[legaleagle]

I have zero knowledge of CA law, sorry. Calawyer and Seadragon are your guys there.

[johnbing75]

My understanding for California is that there is no "resubmitting" of discovery requests. You will have to propound additional discovery requests in a form of another set, i.e., "set 2." Be careful as to duplicative requests.

If your case is in limited jurisdiction (less than $25,000), then the limit of discovery requests is 35 total (combination of interrogatories, request for production of documents, request for admission, 1 deposition, etc.). See Civil Code of Procedure section 94.

[legaleagle]

Since they classified your stuff as "vague and unintelligible," I wouldn't worry about them coming back with the duplication argument. How can you duplicate something they claimed not to be able to understand?

[calawyer]

You can't "reissue" discovery (except for a supplemental request which I will discuss below). If you are in limited, the discovery limits referred to above do apply.

In my view, despite the objections, you have ben given substantive responses to most of the discovery listed. THe only one I would quibble with is:

Request for Documents 2: The alleged credit agreement that states interest rate, grace period, finance charge, assignment and specifically the State Laws that the agreement and account are governed.

In addition to the previously reported paragraph, the following was also included in the response:

Furthermore, Responding Party objects to this request on the grounds that the burden, expense and intrusiveness of this request clearly outweighs the likelihood that the information sought will lead to relevant and admissible evidence. Responding Party objects on the grounds that any documents sent to the Defendant are presumably in the custody and control of the Defendant.

Without waiving the foregoing objections, Responding Party will comply be referring you to a copy of the current card member agreement. Responding Party will further comply by referring you to a copy of the notice of change of terms. Discovery and investigation are continuing; Plaintiff reserves the right to supplement this response if more documents become available.

* * * *

You don't want a copy of the a copy of the current card member agreement. You want the agreement that governs the alleged debt (i.e. the agreement in existence at the time this account was allegedly opened. I would send a meet and confer letter ignoring the other responses and asking for the appropriate agreement.

In addition, you should send a supplemental interogatory and document demand before trial. Here is a good explanation and form: Supplemental interrogatory in California civil litigation « California Freelance Paralegal

[legaleagle]

I like doing this with Citibank because the agreement is critical under SD law. I would ask them specifically for the "written agreement." Not the "cardholder agreement." Their response was double talk garbage. Intrusive how? You sue me under a theory of breach of an agreement, then you refuse to produce the agreement? Instead you tell me I have it because you sent it to me, another unprovable fact? Me, I'd download one and change all the terms, then print it out and take it to court. Fact is, most of the cards Citibank sent out years ago were unsolicited and were not accompanied by any written agreement. This violates SD law and Reg Z. SD interest rate is 15% by Schedule F. Any higher rate is required to have a written agreement between parties. See SDCL 54-3-1.1. Their "use and acceptance" statute (you used the card, therefore you agreed to the terms we never gave you) cannot be exported under 12 USC 85, only their interest rate can. Even if they produce a cardholder agreement, it doesn't tell you what SD laws you are agreeing to. Great. Now I have to study SD law to get a stupid credit card. Very prejudicial to any consumer.