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The OC after receiving additional requests to my discovery (mostly for written contract, signed agreement, etc.) has sent me their supplement to my discovery requests. Basically, the ROG's was either a reaffirmation of their objection or this:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached available copies of payment made by Defendant. Further, see attached copy of electronic/telephonic application and see attached available account statements from August 2007 to April 2009.

The so-called agreement is a photocopy of a 16 page agreement and the year 2007 on it. Look's very generic. The electronic/telephonic application is 4 pages of 4 columns on each page with all kinds of accounting type entries.

I don't recall ever applying for a card over the phone. Also the statements only go to April 2009, the account was still open in Sept. 2011

Has anyone worked with any electronic/telephonic applications?

How valid can they be, and how can they prove it was me without a signature?

Thanks in Advance

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Is it a certified photocopy of a 16 page agreement that applies to you.I would ask for the original to be produced.

The best evidence rule is a common law rule of evidence.

The general rule is that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability.

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How valid can they be, and how can they prove it was me without a signature?

When you recieved the statement did you deny the account was yours or object to the amount owed.On the back of the statement there is a place to dispute the charges or deny the charges.

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. Instantaneous Forms

1. When two parties are dealing in ways of communication that are instantaneous (face-to-face, telephone), as soon as the offeree says “I accept” or words to the same effect, a contract is created.

B. Noninstantaneous Forms

1. Some modes of communication are not instantaneous such as mail, fax, and email. This can create timing problems for both the offeror and offeree. Because of the many problems that arise, the Ellefson case helps demonstrate the Mailbox Rule.

a. Mailbox Rule

The Mailbox Rule is one of the most important, and confusing, rules dealing with acceptances. Normally, all acceptances take effect when received. Under the Mailbox Rule, properly addressed and dispatched acceptances (through fax, email, or mail) take effect when sent. Even if the acceptance is lost and never received by the offeror, it still takes effect when sent. Because of this rule, most offerors are more prone to distinguishing when an acceptance must be received by.

The UCC and most states today say that an offer can be accepted by any reasonable means of communication, and an acceptance that is properly sent within a reasonable period is effective upon being sent (even if the offer requires a different method of acceptance). Reasonable is defined by the circumstances in which the offer is made (i.e. speed and reliability of the means used by the offeree). If an acceptance is made in an unreasonable way under the circumstances, the UCC rejects the traditional rule that the acceptance takes effect when received. It states that an acceptance sent by unreasonable means is effective when sent IF it is received within the time that an acceptance by a reasonable means would have arrived.

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The courts have ruled that the conduct of the parties can establish a contract. They most likely don't need a signed contract. Where you will find some good ways to fight is with their own agreement. Generally speaking, they write them so one sided that they sometimes actually paint themselves into a corner.

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Right, I have some case law someplace that backs this up, it says that agreements of this type are narrowly construed against the drafter. In other words, Bank X wrote this and they wrote it to benefit them, not you. You never got a chance to hire an attorney and analyze this 16 pages of crap. Well you did, actually, but who would want to pay a lawyer to read a credit card agreement? There is also a doctrine somewhat along the lines of fair play....reasonable reliance on someone in a positon of superiority, fair dealing, something like that. Nobody expects to be pounced on and hosed by a freaking credit card company! But that's exactly what they do, because they figure that you, the average dummy, won't know any better. Welcome to our world, where the JDB and the OC take the BOHICA doctrine while we LOL as they go to court and are pronounced DOA after an intense proctoscopic exam because they are SOL. And I don't mean statute of limitations.

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That is a generic credit card agreement. Everybody supposedly gets one. You can push them to prove they ever gave it to you and that you agreed to it, some courts do not recognize these agreements. As for use and acceptance, you can argue against that as well. Considering this is my favorite lender, check my posts, I put up a lot of interesting information about them. ARB may work, this is very expensive for them and they usually won't do it for this kind of money. The newer accounts are harder to defend against as they usually have more records.

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Page 1 of 3

Citibank has sent me discovery which I have answered mostly with objections. They have answered my discovery with mostly objections. I have sent supplemental and they have sent back supplemental. I will try to show their latest without too much confusion. This is not the entire dialog but just the ones that we both have sent supplemental answers on.

My supplemental discovery letter opened like this:

Dear Mr. xxxxxx,

I am in receipt of your answers and objections to my requests for discovery. Although some of your objections are well grounded in the law, the remainder as set forth herein are, in my opinion, insufficient to the extent that they do not adequately address the requests. Specifically, I have responded to your answers and objections to Interrogatories numbered 1, 3, 4, 6, 11, and 12. Also Admissions numbered 1, 2, and 3. And also Request for Production numbered 1,2, and 3. I am requesting more definitive answers, and information connected to the cardholder agreement. Certainly Plaintiff can produce proof of delivery of such documents. I have also included Interrogatories regarding the Affiant deposed in your answers.

Below are my original ROG’s to Citibank with their answer, my response to their answer, and their most recent supplemental response to me.

INTERROGATORY NO. 1 from me to citibank

In regards to the contract or agreement alleged in this action, please state the following:

1. Terms of the Contract or Agreement:

2. Credit Limit Amount Financed in the Alleged Contract or Agreement:

3. Date and Monetary value of any valuable consideration received on the contract or agreement:

4. Date and Monetary value of any payments or credits alleged to be executed on the contract or

agreement:

THEIR ANSWER from citibank to me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. 3) Seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in this action. 4) Is not limited to a time period certain, 5) Seeks business or technical information which is confidential and proprietary to plaintiff. Subject to, and without waiving this objection, see attached available account statements. Plaintifff reserves the right to supplement its response to this request prior to Trial date.

My RESPONSE TO Citibanks ANSWER:

In your Discovery Request sent to the Defendant you referenced “terms and conditions” and “contract interest and late fees” in your Request for Admissions. It seems more than reasonable to ask for the “written agreement” that you refer to in your Discovery Request. Please provide this written agreement or provide the date that it was lost or destroyed.

Citibank's response to me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached available account statements from August 2007 to April 2009.

NOTES

Citibank has attached statements for those dates. I don’t know why they only went to April 2009 since I did not stop paying until October 2010. The dollar amount on the April statement does not match the amount in the complaint.

===============================================================

INTERROGATORY NO. 3 from me to Citibank

Describe Plaintiff’s procedure and policy with respect to the Maintenance, preservation,

and destruction of documents, stating in your Answer whether any documents or things relating to any information Requested in these interrogatories, or related in any way to this lawsuit, have ever been destroyed or are no longer in your custody. For each such document, please identify the document, how, when and why each document was destroyed or otherwise left your control, the identity of any person who participated in any way in the destruction and/or action for destroying the document or to transfer it out of your control or custody; and if the document still exists, identify the person now

having control or custody of the document.

THEIR ANSWER Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. 3) Seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in this action. 4) Seeks business or technical information which is confidential and proprietary to plaintiff. Subject to, and without waiving this objection, see attached available account statements. Plaintiff reserves the right to supplement its response to this request prior to Trial date.

My Response to Citibanks Answer

I am asking for you to produce the “written agreement,” “signed application,” or any other “original” and/or “authoritative document” that is relevant to this case. If you have destroyed or lost any of these documents, please acknowledge and state which documents you do not have.

Citibanks response to me

Plaintiff reaffirms its previous response and objections.

==============================================================

INTERROGATORY NO. 4 from me to Citibank

What document states in writing in support of your Complaint that the Defendant is indebted to pay the Plaintiff and when was this agreed statement in writing entered into?

THEIR ANSWER Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. Subject to, and without waiving this objection, see attached available account statements. Plaintiff reserves the right to supplement its response to this request prior to Trial date.

My Response to Citibanks Answer:

See above response to Interrogatory No. 3.

Citibanks response to me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached available copies of payment made by Defendant. Further, see attached copy of electronic/telephonic application and see attached available account statements from August 2007 to April 2009.

NOTES

I don’t know if the electronic/telephonic application is internet, telephone or what. Should they have to prove which? I’m sure I never did an application over the phone. I am posting the elctronic/telephonic application below these Rogs. Hopefully someone knows something about them.

===============================================================

INTERROGATORY NO. 6 from me to Citibank:

What is the date that the defendant allegedly defaulted on the original account?

THEIR ANSWER Citibank To Me:

See attached available account statements.

My Response to Citibanks Answer:

Please provide the “written agreement” which defines “account in default” or acknowledge you do not have the document(s).

Citibanks Response to Me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached available account statements from August 2007 to April 2009.

===============================================================

INTERROGATORY NO. 11 from me to Citibank:

Do you have the Actual Contract between the Defendant and Citibank N.A.?

THEIR ANSWER Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. Citibank objects to this request on the grounds that in accordance with Regulation Z, Truth in Lending, Citibank is required to maintain documentation on open-ended accounts for a period of 24 months. After that, the documentation may be destroyed. The account at issue in this case was opened on or about August 17, 2007. Subject to, and without waiving said objections, see attached available monthly account statements. Plaintiff reserves the right to supplement its response to this request prior to Trial date.

My Response to Citibanks Answer:

Your answer claims that the above Interrogatory is vague and ambiguous, fails to specify the type of information being sought, is overbroad, burdensome, and harassing. I am asking for the “written agreement” or “original contract” that is relevant to this Complaint. This does not appear to be vague, ambiguous, non-specific, overbroad, burdensome, or harassing. Please provide the written agreement between Plaintiff and Defendant or state when it was lost or destroyed and that you do not have the document.

Citibanks Response to Me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant .

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Page 2 of 3

INTERROGATORY NO. 12 from me to Citibank:

Do you have the original signed application.

THEIR ANSWER Citibank to Me:

See response to Interrogatory 11 above.

My Response to Citibanks Answer:

See response to your answer to Interrogatory No. 11

Citibanks Response to Me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached copy of electronic/telephonic application.

===============================================================

REQUEST FOR PRODUCTION

From me to Citibank

1. Please provide the actual credit card contract upon which your Complaint is based on.

THEIR RESPONSE Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. Citibank objects to this request on the grounds that in accordance with Regulation Z, Truth in Lending, Citibank is required to maintain documentation on open-ended accounts for a period of 24 months. After that, the documentation may be destroyed. The account at issue in this case was opened on or about August 17, 2007. Subject to, and without waiving said objections, see attached available monthly account statements. Plaintiff reserves the right to supplement its response to this request prior to Trial date.

My Response to Citibanks Answer:

Please provide “original contract” or “written agreement” you reference in your Discovery to Defendant or the date in which the document was destroyed or lost.

Citibanks Response to Me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached available account statements from August 2007 to April 2009.

===============================================================

REQUEST FOR PRODUCTION from Me to Citibank:

2. Please evidence proof of the Defendant’s alleged debt to Plaintiff, including specifically the alleged contract, between the plaintiff and defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing Defendants signature and/or Please Produce the contract that legally requires the Defendant to pay the amount entered into complaint.

THEIR RESPONSE:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. Citibank objects to this request on the grounds that in accordance with Regulation Z, Truth in Lending, Citibank is required to maintain documentation on open-ended accounts for a period of 24 months. After that, the documentation may be destroyed. The account at issue in this case was opened on or about August 17, 2007. Subject to, and without waiving said objections, see attached available monthly account statements. Plaintiff reserves the right to supplement its response to this request prior to Trial date.

My Response to Citibanks Answer:

Once again the “written agreement” or “original contract” that is relevant to this case should not be construed as vague, ambiguous, non-specific, overbroad, burdensome, or harassing. Please provide the “written agreement,” “original contract,” or any other “original document(s)” between the Plaintiff and Defendant or provide the date that the documents were destroyed or lost.

Citibanks Response to Me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached copy of electronic/telephonic application. Further, see attached available account statements from August 2007 to April 2009.

===============================================================

REQUEST FOR PRODUCTION from Me to Citibank:

3. Please provide the original or copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts.

THEIR RESPONSE Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. Citibank objects to this request on the grounds that in accordance with Regulation Z, Truth in Lending, Citibank is required to maintain documentation on open-ended accounts for a period of 24 months. After that, the documentation may be destroyed. The account at issue in this case was opened on or about August 17, 2007. Subject to, and without waiving said objections, see attached available monthly account statements. Plaintiff reserves the right to supplement its response to this request prior to Trial date.

My Response to Citibanks Answer:

Same as response above

Citibanks Response to Me:

Without waiving its prior objection, see attached available terms and conditions of the account agreement entered into between Plaintiff and Defendant and see attached available account statements from August 2007 to April 2009.

===============================================================

REQUEST FOR ADMISSION NO. 1 from me to Citibank

Admit Citibank N.A. loaned it's own money to defendant.

THEIR ANSWER Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. 3) Seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in this action. 4) Seeks business or technical information which is confidential and proprietary to plaintiff, and 5) The terms, “loaned,” “it’s,” “own,” “money,” are not defined. Subject to, and without waiving said objection, this request is denied.

My Response to Citibanks Answer:

Your answer is deficient. You requested admission in your discovery that Defendant borrowed money from Citibank, N.A. Please admit whether or not Citibank loaned Citibank’s money to Defendant, or that Citibank loaned Citibank’s Depositor’s money to Defendant.

Citibanks Response to Me:

Plaintiff reaffirms its previous rersponse and objections.

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REQUEST FOR ADMISSION NO. 2 from me to Citibank

Admit Citibank N.A. loaned it's own depositor's money to defendant.

THEIR ANSWER Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. 3) Seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in this action. 4) Seeks business or technical information which is confidential and proprietary to plaintiff, and 5) The terms, “loaned,” “it’s,” “depositor’s,” are not defined. Subject to, and without waiving said objection, this request is denied.

My Response to Citibanks Answer:

See Response to your answer to Request for Admission No. 1

Citibanks Response to Me:

Plaintiff reaffirms its previous rersponse and objections.

===============================================================

REQUEST FOR ADMISSION NO. 3 from me to Citibank

Admit Citibank N.A. endorsed credit card application and deposited credits into a transaction account using defendant's name.

THEIR ANSWER Citibank to Me:

Citibank objects to this request on the grounds, among others, that it 1) Is vague and ambiguous and that it fails to specify the type of information being sought. 2) Is overbroad, burdensome and harassing. 3) Seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in this action. 4) Seeks business or technical information which is confidential and proprietary to plaintiff, and 5) The terms, “endorsed,” “credits,” “transaction account,” are not defined. Subject to, and without waiving said objection, this request is denied.

My Response to Citibanks Answer:

Please provide “original application” signed by Defendant which allegedly created the account or state that you do not have the “original application” and provide the date that it was destroyed or lost.

Citibanks Response to Me:

Plaintiff reaffirms its previous response and objections.

=============================================================================================================================================================================================

I also sent them the following for the original Affiant in this case. This was not addressed in the supplemental.

Also please provide answers to Affiant Interrogatories:

INTERROGATORY NO. 1: Please explain and define the term “Authorized Agent.” Please identify the scope of the authority and responsibilities conveyed by this title?

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 5: How many affidavits do you prepare and sign in a normal workday? How many Affidavits did you sign on January 5, 2012.

ANSWER:

INTERROGATORY NO. 6: Do you have authorized access to original documents within Citibank N.A.? Identify the person(s) who conferred that authorization upon you.

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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 affidavit?

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

INTERROGATORY NO. 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?

ANSWER:

INTERROGATORY NO. 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.

ANSWER:

Respectfully Yours,

I will paste the electronic/telephonic application copy below.

I know this is long but I’m not sure how to respond to this.

All help is much appreciated.

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