Advice on next step?

[dlow11]

Received Summons a few months back from Howard Lee Schiff in Maine for Capital One.

Complaint Stated...1. Defendant owes the Plaintiff....(pursuant to attached Affidavit). 2. Defendant has paid a total of 0 from this date to this date.

3. Despite Demand the balance remains unpaid...etc.

I answered and denied everything with affirmative defenses. There was a Discovery deadline set which neither party did anything (wish I saw this site earlier)

I now received a pre trial hearing notice for next month. I also received a motion from the Plaintiff requesting to appear by telephone and a letter saying I could settle as well.

What should be my next step at this hearing? Discovery time has passed? Is there anything I can do going forward?

Thanks

[1stStep]

Probably not...you could move to dismiss at the hearing, but I will be they will probably go for summary judgment - and you have nothing to defeat it.

[dlow11]

Probably not...you could move to dismiss at the hearing, but I will be they will probably go for summary judgment - and you have nothing to defeat it.

Would they go for summary judgement at hearing? maybe I should try and settle right before hearing?

[1stStep]

You could settle... but Cap1 will probably not budge on the amount due since you have no leverage.

[dlow11]

You could settle... but Cap1 will probably not budge on the amount due since you have no leverage.

I have already received settlement letters for 50 %.

[legaleagle]

I looked at your rules, I don't see any timeline for discovery. Who set this deadline? You can try for a continuance, bu they may not grant it.

RULE 33. INTERROGATORIES TO PARTIES

(a) Availability; Procedures for Use. Any party may serve upon any other

party written interrogatories to be answered by the party served or, if the party

served is a public or private corporation or a partnership or association or

governmental agency, by any officer or agent, who shall furnish such information

as is available to the party. Interrogatories may, without leave of court, be served

upon the plaintiff after commencement of the action and upon any other party with

or after service of the summons and complaint upon that party. Unless otherwise

ordered by the court, more than one set of interrogatories may be served, but not

more than a total of 30 interrogatories may be served by a party on any other party.

Each distinct subpart in an interrogatory shall be deemed a separate interrogatory

for the purposes of this rule.

RULE 40. ASSIGNMENT OF CASES FOR TRIAL; CONTINUANCES

(d) Unavailable Witness or Evidence. The court need not entertain any

motion for a continuance based on the absence of a material witness unless

supported by an affidavit which shall state the name of the witness, and, if known,

that witness’ residence, a statement of that witness’ expected testimony and the

basis of such expectation, and the efforts which have been made to procure that

87

witness’ attendance or deposition. The party objecting to the continuance shall not

be allowed to contradict the statement of what the absent witness is expected to

testify but may disprove any other statement in such affidavit. Such motion may,

in the discretion of the court, be denied if the adverse party will admit that the

absent witness would, if present, testify as stated in the affidavit, and will agree in

writing, signed by that party or that party’s attorney, that the same shall be

received and considered as evidence at the trial as though the witness were present

and so testified. The same rule shall apply, with necessary changes, when the

motion is grounded on the want of any material document, thing or other evidence.

In all cases, the grant or denial of a continuance shall be discretionary whether the

foregoing provisions have been complied with or not.

[Coltfan1972]

What was your affirmative defense(s). Cap One is probably going to sit back and wait on you to prove that while you owe Cap One you have a legal defense on why Cap One should still not win.

I know that is what I'd do. I'd wait until the trial date and sit back and let you meet your burden of proof which you set when you argued an affirmative defense in a credit card case against an original creditor.

Once you could not meet the burden of the affirmative defense, I'd ask the judge for a judgement since you've already admitted to the debt and you have no valid affirmative defense why judgement should not be entered.

[dlow11]

What was your affirmative defense(s). Cap One is probably going to sit back and wait on you to prove that while you owe Cap One you have a legal defense on why Cap One should still not win.

I know that is what I'd do. I'd wait until the trial date and sit back and let you meet your burden of proof which you set when you argued an affirmative defense in a credit card case against an original creditor.

Once you could not meet the burden of the affirmative defense, I'd ask the judge for a judgement since you've already admitted to the debt and you have no valid affirmative defense why judgement should not be entered.

Thanks

My affirmative defense was: The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney fees are all correct, agreed to in the contract and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

[dlow11]

I looked at your rules, I don't see any timeline for discovery. Who set this deadline? You can try for a continuance, bu they may not grant it.

RULE 33. INTERROGATORIES TO PARTIES

(a) Availability; Procedures for Use. Any party may serve upon any other

party written interrogatories to be answered by the party served or, if the party

served is a public or private corporation or a partnership or association or

governmental agency, by any officer or agent, who shall furnish such information

as is available to the party. Interrogatories may, without leave of court, be served

upon the plaintiff after commencement of the action and upon any other party with

or after service of the summons and complaint upon that party. Unless otherwise

ordered by the court, more than one set of interrogatories may be served, but not

more than a total of 30 interrogatories may be served by a party on any other party.

Each distinct subpart in an interrogatory shall be deemed a separate interrogatory

for the purposes of this rule.

RULE 40. ASSIGNMENT OF CASES FOR TRIAL; CONTINUANCES

(d) Unavailable Witness or Evidence. The court need not entertain any

motion for a continuance based on the absence of a material witness unless

supported by an affidavit which shall state the name of the witness, and, if known,

that witness’ residence, a statement of that witness’ expected testimony and the

basis of such expectation, and the efforts which have been made to procure that

87

witness’ attendance or deposition. The party objecting to the continuance shall not

be allowed to contradict the statement of what the absent witness is expected to

testify but may disprove any other statement in such affidavit. Such motion may,

in the discretion of the court, be denied if the adverse party will admit that the

absent witness would, if present, testify as stated in the affidavit, and will agree in

writing, signed by that party or that party’s attorney, that the same shall be

received and considered as evidence at the trial as though the witness were present

and so testified. The same rule shall apply, with necessary changes, when the

motion is grounded on the want of any material document, thing or other evidence.

In all cases, the grant or denial of a continuance shall be discretionary whether the

foregoing provisions have been complied with or not.

The court scheduling order: Dicovery Deadline shall be completed by December 9 unless the court orders otherwise for good cause. No extensions of discovery shall be granted except on motion demonstarting that discovery was timely and diligently conducted in good faith and that there is good cause for the extension.

[Coltfan1972]

Okay, that's not an affirmative defense. That is the burden of proof any litigant has to prove when they sue another party. However, arguing it as an affirmative defense flips the burden of to you to prove their allegations are false. That's not what you want to do !!

They sued you, you make them prove their case, not you disprove their case.

[legaleagle]

You can try the extension, it will depend on how sympathetic the judge is to pro se people. Claiming that you didn't know the rules probably won't work. You could cite some other reason if you have one. Lost paperwork, holidays, whatever. Otherwise just beg a little. The worst that can happen is they'll say no. One thing, the law firm you are opposing is the biggest pack of idiots on the planet. Got the name of the attorney? Initials JD perhaps?

[dlow11]

You can try the extension, it will depend on how sympathetic the judge is to pro se people. Claiming that you didn't know the rules probably won't work. You could cite some other reason if you have one. Lost paperwork, holidays, whatever. Otherwise just beg a little. The worst that can happen is they'll say no. One thing, the law firm you are opposing is the biggest pack of idiots on the planet. Got the name of the attorney? Initials JD perhaps?

initials are MT....i assume if I dont get extension I dont have much of a chance. What goes on at the pre trial?

[legaleagle]

Don't know, I'm not that familiar with Maine law. usually a pre trial hearing gives the court an idea of how the case is progressing and what should be allowed next. If you have a substantial defense, you will be allowed to defend yourslef. Just kicked MT's butt in court today, he is a stuttering stammering lightweight. Be advised, even a lightweight can win a case if there is no opposition.