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Messed up on discovery requests


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Back in November, I received a lot of great advice on a suit filed by Gamache & Myers out of St. Louis, representing Equable Ascent Financial. When I filed my responses to the summons, I included a First Request for POD on October 31; I filed a Second Request for POD on December 1. I sent a follow-up reminder with an intent to file a Motion to Compel to them on January 18. No response was received from Gamache & Meyers within thirty days of the first or second requests for POD. Nor within the ten days following the reminder. On February 14, they sent an objection to Defendant's discovery requests sent to Plaintiff on or about October 31, 2011 and December 1, 2011, citing the fact that the discovery requests did not conform to Missouri Supreme Rule 57.01, whereby all discovery requests sent after January 1, 2006 must be sent in "an electronic copy in commonly used medium, such as a diskette, CD-ROM or as an email attachment in a format that can be read by most commonly used word processing programs....". First, this objection was not filed until after the court notified them that I had filed the Motion to Compel.

The judge had already placed my earlier Motion to Dismiss Affidavit on hold, saying he couldn't make a decision on it because their legality was currently being scrutinized by the Supreme Court. I searched Missouri and United States Supreme courts, and all the latest news reports I could find, and never found anything about this. Anyway, when I went to court on February 14 (the same day the objection was filed by Gamache & Myers), the local attorney representing Gamache & Myers asked for a continuance. The judge set this for trial on March 19, and said he would rule on the Motion to Strike Affidavit at that time. I reminded him that I had also filed a Motion to Compel. He said since I filed that the week before, he could not rule on that until then. I told him about the objection I received that day from Gamache & Myers, and told him that their objection was not filed in the required time frame, and he said he would rule on everything the 19th. (I also filed compliance to their objection and sent them discovery requests on CD-ROM in Word format.)

They provided their 1st request for discovery on floppy disc that I had to take to the local library to access (who has a floppy drive anymore?), but did not provide electronic media on their 2nd request. Does this give me any leverage?

If he accepts their objection, does it start discovery all over again?

Also, am I considered judgement proof since the only income I have is Disability, and only asset is our home. Do I file a motion or something with the court so they and the JDB are aware of this?

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The judge was talking about CACH vs Askew. Supreme Court ruled on the admissability of business records as hearsay. Basically, the chain of custody must be rock solid.

Thank you Simpleaim! I searched for days every which way I could think of, and couldn't find this.

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Generally speaking, discovery screw ups, unless really bad are allowed to be "cured."

You don't file anything with the court about being judgement proof or having no money. It's irrelevant. You can live in a 600 million dollar palace or under a six dollar box and it's all the same.

If the other side spends thousands getting a judgement they can never enforce, that is their own stupid fault. The court won't care either way, nor should they. The court simply rules on who is right and who is wrong and who owes whom what sum of money.

I remember sitting in court one time and there was a criminal defendant that was refusing to sign up as a registered sex offender. All he had to do was sign a piece of paper the prosecutor put in front of him but he refused. The prosecutor asked the judge to make him sign it. The judge just simply said, Mr. Defendant, it's a class D felony not to sign that paper, and walked off the bench. The judge could care less if he signed it or not.

Same thing here, the judge will just rule on the facts and won't care about your personal siutation or what you want or don't want to do.

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and only asset is our home.

Look into this, judgments can be enforced as property liens in most states. If the equity in the home is enough to satisfy the exemption AND the lien, they can try to foreclose. Each state is different, but you need to investigate this.

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However in Missouri, if you are married and the debt is only yours, you can not be forced to sell property to settle the debt. This is Tenancy By Entireties and Missouri is one of those states. They can put a lien on your home but can ony collect if you sell or refinance. Now if your spouse dies then that's a different story.

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I also found out that there is a statute of limitations on judgements. An open judgement is 5 years, and a contract judgement is 10 years. I am absolutely sure I will still be in this home in 5 years, since I've already been here for 17 years! Thanks everybody.

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I'm about 90 miles south of there and does get cold, cold, cold in the winter.

Does it ever. In basic training, which was from October to December, we walked around in our uniforms as it was 50-60 every day. We came back after Xmas vacation, and I thought they took us to Alaska by mistake. The wind chill was minus 29 and it never got any better until March. Awful place. There was a little town outside the gate called Waynesville, it consisted of a few mobile homes and a couple of bars. That was it. We took one look and went back to the post.

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Generally speaking, discovery screw ups, unless really bad are allowed to be "cured."

You don't file anything with the court about being judgement proof or having no money. It's irrelevant. You can live in a 600 million dollar palace or under a six dollar box and it's all the same.

If the other side spends thousands getting a judgement they can never enforce, that is their own stupid fault. The court won't care either way, nor should they. The court simply rules on who is right and who is wrong and who owes whom what sum of money.

I remember sitting in court one time and there was a criminal defendant that was refusing to sign up as a registered sex offender. All he had to do was sign a piece of paper the prosecutor put in front of him but he refused. The prosecutor asked the judge to make him sign it. The judge just simply said, Mr. Defendant, it's a class D felony not to sign that paper, and walked off the bench. The judge could care less if he signed it or not.

Same thing here, the judge will just rule on the facts and won't care about your personal situation or what you want or don't want to do.

Monday, I have the motions hearing , when the judge said he would rule on all pending motions. I have the Motion to Strike Affidavit and a Motion to Compel Discovery. Do I need to be prepared to defend these motions, or will the judge rule by what is presented in the motions? He's also supposed to rule on Plaintiff's Objection to Defendant's Request for Discovery because I didn't send them the discovery requests on electronic media. I've already corrected that by sending it to them on CD the same day they filed the objection, so I'm good on that one right?

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Usually the judge has a few questions, nothing to worry about. He'll probably ask the other side why they didn't complete discovery. I'd say the CD fixed that other problem. Aren't these the guys who gave you a floppy? Mention that, computers don't even come with A drives any more. You'd have to buy a plug and play drive. Ask the judge for an order to exchange all documents by email in a format that both of you have, like pdf or Word. Pdf is Adobe, it's free if you don't already have it.

Edited by legaleagle
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Usually the judge has a few questions, nothing to worry about. He'll probably ask the other side why they didn't complete discovery. I'd say the CD fixed that other problem. Aren't these the guys who gave you a floppy? Mention that, computers don't even come with A drives any more. You'd have to buy a plug and play drive. Ask the judge for an order to exchange all documents by emai in a format that both of you have, like pdf or Word. Pdf is Adobe, it's free if you don't already have it.

Yes, they sent a floppy.

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Here we are, two days before the judge is supposed to rule on all motions (including my Motion to Compel), and I receive in the mail, an objection to discovery requests that they received on October 31st and December 2nd! Anyway I need some advice on how to reply to these objections is court, PLEASE!

1. All business records of Jane Doe, including, but not limited to, signed contracts, credit agreements, itemized account statements showing all charges incurred including interest and fees imposed on the account, and all purchase and monetary receipts applied to the alleged account.

OBJECTION: Overbroad, vague, and unduly burdensome. Objection as to the signature as it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the objection, Plaintiff states: CITIBANK (South Dakota), N.A. v. Wilson, 160 SW 3d 810, 813 (Mo. 2005). Acceptance of an offer need not be made by spoken or written word. Id. It is acceptance and use of a credit card offered by a credit card company which creates a contract. Further objecting, this request is overly broad and unduly burdensome to the extent that charge slips or their equivalent are not and never were the property of the Plaintiff. Charge receipts are records of the individual merchants and often a copy is given to the debtor upon purchase. Charge slips may not be signed by the debtor and copies may not be retained by the merchant. Examples of these purchases may include paying for gas at the pump, online purchases, telephone purchases and small amount purchases at many merchants. Account statements were mailed to the Cardholder/debtor each month. These represent a true and accurate record of the transactions occurring for that account during each statement period. Also, it is important to remember that pursuant to the Truth in Lending Act, 15 U.S.C. Sec 1666and Regulation Z Subsection 226-13(B)(1)-1 of the Truth in Lending Act, a debtor has sixty (60) days from receipt of disputed charges to notify the creditor in writing of billing errors to preserve the debtor's rights. If the defendant fails to object in writing pursuant to the right, s/he has waived the right to dispute the balance due. Minskoff v. American Express, 98 F.3d 703 (2nd Cir. 1996). Subject to said objection, see statement of account attached.

2. A contract, agreement, assignment, or other means demonstrating that EQUABLE ASCENT FINANCIAL has the authority and capacity, and is legally entitled to collect on the alleged debt.

RESPONSE: Plaintiff will timely supplement.

3. Any further documentation, beyond what has been previously requested, that clearly establishes defendant's liability and/or responsibility to the alleged debt.

OBJECTION: Overbroad, vague, unduly burdensome and seeks information protected by the attorney client privilege and the attorney work product doctrine. Subject to said objection, see statement of account attached.

The statement of account they are referring to is the same statement they attached to the Affidavit. It has an account number on it, my name and address, and a total balance of $1864.05, but nothing to show how they arrived at this figure. It has the CHASE logo about halfway down the page. They also included what looks like a generic credit card agreement, that has no name or signature on it.

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What was there cause of action? Breach of contract? Account stated? In #1, they're claiming that the final statement is enough to prove the amount.

Their petition is for Suit on Contract, Money Had and Received, and Account Stated.

They haven't provided any credit card statements other than the final one, and nothing to show how they arrived at the total amount.

I also have a problem with them waiting almost 5 months to raise the objection.

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OBJECTION: Overbroad, vague, and unduly burdensome. Objection as to the signature as it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the objection, Plaintiff states: CITIBANK (South Dakota), N.A. v. Wilson, 160 SW 3d 810, 813 (Mo. 2005). Acceptance of an offer need not be made by spoken or written word. Id. It is acceptance and use of a credit card offered by a credit card company which creates a contract.

Absolutely, completely misplaced and untrue. The court ruled against Citibank in the Wilson case but then ruled against the defendant because MO has use and acceptance. The court was essentially wrong. NO banking law or state department overseeing lending has any authority over national banks. Therefore, any state law concerning use of a credit card does not apply. Also, 12 USC 85 and the OCC have ruled and stated that national banks may only export their interest rate, not the rest of their laws. The use and acceptance statute they cite is contract law and is not exportable.

The interest rates applied to the account in question exceed the allowable rate under South Dakota Law. Since Citibank is a national bank located in South Dakota, they export South Dakota interest law pursuant to USC 12 85, the National Bank Act of 1864.

In Jack Tully, Appellant, v. Citibank (South Dakota), N.A., Appellee.No. 06-05-00027-CV.Court of Appeals of Texas, Texarkana, the court stated: “Even if no other maximum rate is established elsewhere in the laws of South Dakota, Citibank has failed to show that the interest rate is authorized. When no interest rate is provided in the agreement, South Dakota law limits the maximum interest rate to considerably less than the rates charged by Citibank. See S.D. CODIFIED LAWS §§ 51A-12-13, 54-3-4, 54-3-5 (2005). We note that a credit card issuer may change the terms of the card agreement on sufficient written notice to the cardholder. S.D. CODIFIED LAWS § 54-11-10 (2005). The summary judgment evidence, though, contains no written notices specifying the interest rates other than the copies of the statements. There are genuine issues of material fact concerning whether the interest rates Citibank charged Tully are authorized by South Dakota law.” (emphasis added)

Additionally, the South Dakota Supreme Court made note of this in Mattson v. Rachetto, 591 NW 2d 814 - SD: Supreme Court 1999591 N.W.2d 814 (1999), in which they noted: “Interest on moneys after they become due — Express contracts excepted. Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the Category F rate of interest as established in § 54-3-16 after they become due on any instrument of writing, and on moneys lent, or due on any settlement of accounts, from the day on which the balance is ascertained, and on money received to the use of another and detained from that other. Under SDCL 54-3-16, the statutory interest rate under Category F is 15% per year.” (emphasis added)

In Owens v. Moyes, 530 NW 2d 663 - SD: Supreme Court 1995 the Court stated: “Here, we are asked to review the trial court's ruling on Owens' claim that there existed a contract with Moyes for the lending and repayment of money. The case of Werner v. Norwest Bank, 499 N.W.2d 138 (S.D. 1993), controls this issue. The existence of a valid express contract is a question of law to be determined by the court, not a jury; an express contract exists only when the parties mutually express an intent to be bound by specific terms and conditions. Id. Where there is no showing that the terms of an alleged oral agreement were ever settled or agreed upon, it is proper for the trial court to make a summary finding against the existence of a contract. Id. Thus, in Werner, "[w]here there was no understanding as to the exact amount of money, interest rate, time and method of repayment, and no exchange of documents, no enforceable contract can be said to exist." Id. at 142 (emphasis added by the Court).” By their own admission, Citibank failed to exchange any documents with Defendant. Therefore, the written agreement required under SD law supporting a higher interest rate does not exist.

NO charge slips? Here:

In Discover Bank v. Stanley, 2008 SD 111 - SD: Supreme Court 2008, the Court stated: “[¶31.] Discover offered nothing further to show the nonexistence of a genuine issue of material fact other than its original claim that the balance on the June 15, 1998, billing statement, the earliest statement Discover was able to produce, was owed by Stanley. Without some type of substantiation that the original 1997 charge(s) was "incurred by [stanley] or anyone [stanley] authorize[d] or permit[ted] to use [the] Account or [ ] Card[,]" Discover could not prevail on its motion for summary judgment.”

.

In Bank of NY v. Santarelli, 128 Misc. 2d 1003 - NY: County Court 1985128 Misc.2d 1003 (1985), the Defendant requested in discovery “names and addresses of persons who allegedly signed for the orders which make up the account, names and addresses of the suppliers of the goods or services allegedly ordered, as well as copies of each credit card receipt alleged to be a part of the account.” Plaintiff moved to strike, and was denied and ordered to produce the documentation.

In Portfolio Acquisitions, LLC v. Feltman, 909 NE 2d 876 - Ill: Appellate Court, 1st Dist., 3rd Div. 2009 the Court noted: “The merchants participating in the system agree to honor the bank's credit cards. The bank irrevocably agrees to honor and pay the sales slips presented by the merchant if the merchant performs his undertakings, such as checking the list of revoked cards before accepting the card. * * *

These slips are forwarded to the member bank which originally issued the card…”

MORE

No language in the National Bank Act (12 USC 85) gives effect to any claim that South Dakota contract law applies as Citibank impliedly claims by invoking South Dakota’s “use and acceptance” statute. In Citibank (South Dakota), NA v. Wilson, 160 SW 3d 810 – MO. Court of Appeals, the Court stated: “Citibank argues that the United States Supreme Court has held that South Dakota law applies to contracts entered into by a credit card issuer, citing Marquette National Bank v. First of Omaha Service Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), and Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), in support of this proposition. However, Citibank misconstrues these two cases. First, Marquette dealt with whether a national bank could charge an out-of-state credit card holder an interest rate that was valid in the bank's home state when such rate was not permitted by the laws of the cardholder's state. 439 U.S. at 301, 99 S.Ct. 540. Smiley dealt with whether late fees were properly considered interest. 517 U.S. at 737, 116 S.Ct. 1730. Further, the National Bank Act, 12 U.S.C. § 85, which was at issue in both Marquette and Smiley, only addresses the interest rate that a bank may charge. Nowhere in the cases cited by Citibank, nor in the statute interpreted by those cases, is there any language that mentions the application of the laws of the credit card issuer's home state in relation to the enforcement of contracts, let alone mandating the application of such laws.”

Citibank is obligated to use South Dakota’s interest rate law. In Farmers' and Mechanics' Nat. Bank v. Dearing, 91 US 29 - Supreme Court 1875, the Court stated: “No searching analysis is necessary to eliminate the several provisions of the section to be considered to develop the true meaning of each, and to draw the proper conclusions from all of them taken together.

(1.) The rate of interest chargeable by each bank is to be that allowed by the law of the State or Territory where the bank is situated….These clauses, examined by their own light, seem to us too clear to admit of doubt as to anything to which they relate. They form a system of regulations. All the parts are in harmony with each other, and cover the entire subject.”

In the landmark case governing this subject, Marquette Nat. Bank v. First of Omaha Corp., 439 US 299 - Supreme Court 1978, the Court stated: "Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, . . . and no more.” This decision was repeated in Fisher v. First Nat. Bank of Omaha, 548 F. 2d 255 - Court of Appeals, 8th Circuit 1977.

Additionally, the FDIC Opinion Letter FDIC-81-7, further states the same thing.

Further objecting, this request is overly broad and unduly burdensome to the extent that charge slips or their equivalent are not and never were the property of the Plaintiff. Charge receipts are records of the individual merchants and often a copy is given to the debtor upon purchase. Charge slips may not be signed by the debtor and copies may not be retained by the merchant.

Also, it is important to remember that pursuant to the Truth in Lending Act, 15 U.S.C. Sec 1666and Regulation Z Subsection 226-13(B)(1)-1 of the Truth in Lending Act, a debtor has sixty (60) days from receipt of disputed charges to notify the creditor in writing of billing errors to preserve the debtor's rights.

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NO banking law or state department overseeing lending has any authority over national banks. Therefore, any state law concerning use of a credit card does not apply. The court was essentially wrong.

The problem with your statement might be that because the defendant is being sued in state court, state laws do apply.

Also, 12 USC 85 and the OCC have ruled and stated that national banks may only export their interest rate, not the rest of their laws.

I'm not sure it's in a defendant's best interest to argue that point. If you state that they can only export their interest rates and not the rest of their laws, they may argue that the "governing state" in the agreement doesn't apply. There goes the choice of law argument.

In case you haven't noticed, I like to debate. :)

Edited by BV80
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Cach LLC v. askew for some of these objections and tee up the standing issue. The judge would love for you to cite askew it seems. read up on it and crush them.

I would love to cite CACH v. Askew since this is the case the judge was waiting on before ruling on my Motion to Strike Affidavit, but I'm afraid of sounding like a complete moron. I have read and read and read the ruling, but I don't understand legalese, so it doesn't make sense to me.

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I would love to cite CACH v. Askew since this is the case the judge was waiting on before ruling on my Motion to Strike Affidavit, but I'm afraid of sounding like a complete moron. I have read and read and read the ruling, but I don't understand legalese, so it doesn't make sense to me.

Cach v. Askew had to do with business records and hearsay. Cach had presented 2 bills of sale as evidence of their ownership of Askew's account. One was from Washington Mutual to Worldwide Asset Purchasing and the other was from Worldwide Asset to Cach. Neither bill of sale referenced Askew's name or account number.

Cach had a witness, Diana Eakins. She was the records custodian for Square Two Financial which owns Cach. Hearsay can be admitted as evidence if a custodian or other qualified witness can testify that the records are what they appear to be, the mode of preparation, and that they were prepared in the regular course of that business.

Askew objected to Cach's documents, especially the bill of sale from WAMU to Worldwide (Exhibit 7). He claimed Exhibit 7 was inadmissible hearsay because Eakins was not a qualified witness who could testify as to the preparation of the document or that it was prepared in the normal course of business. He said the lower court erred in allowing the bill of sale from WAMU to Worldwide to be admitted because Eakins had never worked for WAMU. She had no way of knowing how WAMU prepared documents and could not testify that a WAMU document was made in the regular course of business.

Eakins stated that she had training with most of the major banks with whom Cach had business. (What she meant by "training" is not explained). However, she had never had any training with Providian, the bank with whom the card originated, or with WAMU.

When Eakins was asked how the WAMU document was prepared, she answered by saying "in the normal and ordinary course of business". In other words, she had no idea.

The court stated: "To be a "qualified witness" who can lay the foundation for a business record pursuant to § 490.680, Eakins must have "sufficient knowledge of the business operation and methods of keeping records of the business to give the records probity."

"Eakins' testimony was insufficient to meet this burden. As in C & W Asset, Eakins lacked sufficient knowledge of when or how Exhibit 7 was prepared."

In other words, she had to know something about WAMU's business operations in order to be able to offer testimony about a WAMU record (the bill of sale). Since she had no knowledge of how the exhibit was prepared, she couldn't offer testimony as to the validity, accuracy, or anything else regarding the bill of sale.

The court then ruled that the lower court erred in allowing the admission of the bill of sale into evidence.

Without a bill of sale from WAMU to Worldwide, the chain of custody was broken. Since there was no longer an admissible bill of sale from WAMU to Worldwide, there was no proof Worldwide bought the account from WAMU. As a result, the bill of sale from Worldwide to Cach was worthless. Cach couldn't prove they owned Askew's account. Therefore, they had no standing to sue.

This argument works for any document a JDB offers that was not created by them. If the JDB tries to submit cc statements into evidence, this argument applies. The JDB's records custodian doesn't work for the bank, so he/she has no knowledge of the bank's business operations and can't testify as to the mode of preparation of the cc statements. If the cc statements are inadmissible, the JDB can't prove the amount claimed in the Complaint.

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