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Please critique my Production of Documents


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This may be a little strong but from everything I've read, the way to attack Midland is their documents and since I'm doing that I might as well attack the affidivant and affiant.

IN THE CIRCUIT COURT OF GREENE COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

MIDLAND FUNDING LLC. ) Case Number: xxxxxxx )

Plaintiff, ) FIRST REQUEST FOR PRODUCTION

) OF DOCUMENTS AND THINGS

vs. )

)

Simpleaim )

)

Defendant )

)

)

REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO

PLAINTIFF MIDLAND FUNDING LLC

COMES NOW, Defendant, Simpleaim, pursuant to Civil Rule 58.01, and requests Plaintiff, Midland Funding LLC to produce the following documents for inspection and copying at the law offices of Plaintiff’s attorney, within thirty (30) days or as counsel may mutually agree.

DEFINITIONS

The following definitions are to be used.

1. “Plaintiff,” means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

2. “Defendant” means, Simpleaim an individual.

3. “Document” means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.

4. “Original Petition” means all documents included in received summons dated on 1-5-12.

5. “Affidavit” means all documents referred to by the AFFIDAVIT OF KATE OSTMOE included in Original Petition.

DOCUMENTS TO BE PRODUCED

1. ALL documents evidencing any communication between Plaintiff and Defendant in connection with the Agreement described in Original Petition, including letters and correspondence.

2. The alleged contract from Plaintiff and CHASE BANK USA NA bearing the defendant’s signature;

3. Itemized monthly statements or credit card statements from CHASE BANK USA NA to Plaintiff that demonstrate the alleged debt and amount of debt is true and correct;

4. All documents evidencing any contract, agreement, assignment, or other means from CHASE BANK USA NA demonstrating that Plaintiff has the authority and standing, and is legally entitled to collect on the alleged debt from Defendant;

5. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the Original Petition;

6. Any and all credit report(s) Plaintiff and/or Plaintiff’s attorney obtained from any credit reporting agency concerning the Defendant;

7. Any and all communications from Plaintiff and/or Plaintiff’s attorney to the Defendant explaining why Plaintiff and/or Plaintiff’s attorney may have reported the alleged debt to any credit reporting agency;

8. ALL documents that define “Legal Spe******t” title as per the employment term used in the Affidavit;

9. ALL documents that define the job description of “Legal Spe******t” as defined by Plaintiff;

10. ALL documents that define the education, training qualifications and generic personal employment history (hereinafter referred to as “Job Qualifications”) in order to be employed as a “Legal Spe******t” by Plaintiff as defined by Plaintiff;

11. ALL documents that establish Job Qualifications for Kate Ostmoe as a “Legal Spe******t”;

12. ALL documents that detail any and all disciplinary actions commenced upon Kate Ostmoe in the course of her employment with Plaintiff;

13. ALL documents used at or near the time of event of the sworn Affidavit to formulate an opinion that all statements in Affidavit are true and correct.

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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."

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I would wait, since you have already propounded requests, most of which will be objected to. These are more specific, although they may still objected to because some of them are repetitive of what you propounded. Title this as your second requests for production of documents. A lot of what you sent is too general in nature and cannot be reasonably responded to.

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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."

why ask for

1. The original signed application establishing the account

when we know there is no such thing, that legally its not needed because the contract is started by use of the card?

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why ask for

1. The original signed application establishing the account

when we know there is no such thing, that legally its not needed because the contract is started by use of the card?

Because there is zero bad that can come out of the answer. Like you said it's basically irrelevant. Anytime they are putting something in writing, you have a better chance of them screwing up than you do if they are sitting silent.

Watch "real" law shows like 48 HRS where they get the suspect in an interview. They sit back and just let them talk. Generally speaking, they put their foot in their mouth.

and the same reason you ask this admission:

Please admit (junk debt buyer name here) violated the FDCPA.

Please admit Defendant owes Plaintiff no sum of money.

You don't expect them to admit it, but if they don't answer you can move to have the admissions admitted, therefore, ending the case right there.

Now if your limited on discovery and are picking which ones to send, then I would agree to not ask the question and waste a discovery request.

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why ask for

1. The original signed application establishing the account

when we know there is no such thing, that legally its not needed because the contract is started by use of the card?

Go read Regulation Z section 226.12. Some states have a mirror statute. This is foundational. My requests are deisgned for one creditor, not this one, altho federal law applies to all. You need to do some research to see if Delaware has "use and acceptance" for credit cards. Also do the same for your state. You find it, you post it here, then I'll show you how to argue against it. Read up on 12 USC 85 and supporting case law. I posted a lot of this stuff.

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  • 2 months later...

It's been almost 90 days since I requested POD. Plaintiff has gotten 2 extensions. This last one is until 6/1. My next court date is 6/11. If they do manage to get me these documents (Big If) I should get them by 6/6 in the mail. But if I don't, my thinking is to file In Limine to Preclude and then request trial at the court appearance.

Am I on the right path here?

Thank you,

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This is out of the MO RCP:

(d) Failure to Produce Documents, and Things or to Permit Inspection. If a party fails to respond that inspection will be permitted as requested, fails to permit inspection, or fails to produce documents and tangible things as requested under Rule 58.01, or timely files objections thereto that are thereafter overruled and the documents and things are not timely produced or inspection thereafter is not timely permitted, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:

(1) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibit the disobedient party from introducing designated matters in evidence.

(2) An order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or, rendering a judgment by default against the disobedient party.

(3) An order treating as a contempt of court the failure to obey.

(4) An order requiring the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Any thoughts?

Thank you,

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