Ohio: Motion for More Definite Statement Inquiry - Track my CC Suit (LVNV vs. et al.)

[NationalizetheBanks]

Hello,

I am being sued in Ohio for a credit card debt by LVNV Funding LLC of Greenville, SC, who it appears has "through purchase" acquired a credit card debt portfolio of HSBC/Menards.

Here is what has transpired so far in chronological order:

1. They filed a Complaint that did not include the actual credit card agreement. It did include the application and one statement - both of which are irrelevant.

2. I filed for a Motion of Extension of Time to Respond - which was granted.

3. I filed a Motion for Discovery requesting the Plaintiff (the debt collector) produce the actual credit card agreement which their whole complaint is based on. The judge has not yet ruled on this.

4. They (the debt collector) filed a Motion for Extension of Time to Respond to my Motion for Discovery ...asking for such extension of time to start only AFTER I have filed an Answer to their Complaint - the judge has not yet ruled on this motion.

5. They (the debt collector) filed a Plaintiff's Combined Interrogatories Request for Admissions and Request for Production of Documents - which I have not yet responded to.

Ok.........so I am on Monday (in 2 days) doing the following:

A. Filing a Motion for Dismissal (based on Rule 10(D)) or a More Definite Statement (based on Rule 12(E)) - this will be filed as one document...Motion for A or B, etc.....; and

B. Filing a Defendant's Combined Interrogatories, Request for Admissions and Request for Production of Documents - this document is ready to go.

Questions:

1. In Ohio it is clear YOU MUST file a MOTION FOR A MORE DEFINITE STATEMENT BEFORE you file your Answer if you intend to seek a MOTION FOR DISMISSAL based on Rule 10(D). More here:

***Plaintiff complied with Civ. R. 10(D) by attaching final monthly statement to its complaint. Furthermore, Defendant's concerns needed to be addressed through a Motion for More Definite Statement. (Point Rental Company v. Posani, 53 Ohio App.2d 183, 368 N.E.2d 1267 (1957). A defendant who fails to file for a more definite statement before filing his answers has waved his right to to assert Civ. R. 10(D) as a basis for dismissing the Plaintiff's complaint. State Farm Mut. Auto Ins v Loken, 2004 Ohio 5074.***

My questions:

Question 1.

Once I have filed my Motion for a More Definite Statement....can I ..like the very next day....file my Answer? Thus my Answer would be filed AFTER my Motion for a More Definite Statement was......OR....do I have to wait UNTIL AFTER the Judge has ruled on my Motion for a More Definite Statement/Motion for Dismissal?

Question 2.

Can you file two Motions in one document as I am planning to do? I have seen others do this and I believe it is procedurally ok to do so. Basically I am asking the Judge to either Dismiss or compel them to show me the Agreement so I may then tear that apart.

Question 3.

I have not yet responded to THEIR Interrogatories Request.....I plan NOT to respond within the 28 day period and further have been told that I do not technically need to respond...in that if I do not...they will need to request the Judge to compel me to do so at which time I would need to.....but for now I need not and that it technically does not hurt me that I am not going to respond. Anyone have confirmation of this?

Question 4.

When I file my Interrogatories Request of them....also going out Monday....when I file the Notice of Service with the Clerk of Court about such.......do I need to attach a full copy of the Interrogatories Request for the Clerk......or only the Notice of Service document......I believe the later....but not sure. ???

Question 5.

Can I file a Motion or other action (?) with the Judge immediately asking him to DENY their Motion for an Extension of Time to Respond to My Motion For Discovery requesting the credit card agreement?

Ok...glad to have found this forum. Look forward to your answers. I will be posting all of my documents in scrubbed form on here for others in Ohio to do once this is all settled.

I must say....the ONLY way to save our nation from these evil beings...and evil they are....is via Nationalization of the Banks....pure and simple.

All help MOST APPRECIATED!

Thanks.

(PS. For efficiencies sake...PLEASE DO NOT RESPOND UNLESS YOU KNOW OHIO LAW! THANK YOU.)

Edited March 24, 2012 by NationalizetheBanks

[NationalizetheBanks]

up

[legaleagle]

Question 1.

Wait until the court makes a ruling. You would be contradicting yourself by answering. Do you know what a MMDS is for? Looks like you may not. Generally speaking, it means the complaint is defective to the point where you cannot understand all or part of it. Very hard to win these.

Question 3.

You need to respond, otherwise they may get these deemed admitted. You need to read the rules further, this is a big mistake and will make you look bad.

Question 4.

Most states do not require copies of discovery for the court. Rogs are a plaintiff's tactic, almost worthless to you. What are you asking them? All you need in a good POD.

Question 5

No, I would say not, first extensions are automatically granted by the clerk. Some of what you are suggesting here violates court rules and will make you appear to be confrontational to the judge.

You want to nationalize the banks? Seen the national debt lately? I wouldn't trust these idiots with a ten dollar savings account.

[NationalizetheBanks]

@legaleagle....thanks for your input.

Got on the MMDS...makes sense.

Regarding responding to their interrogatories...i was specifically told by lawyers here in town...that I do not have to respond within the 28 days unless compelled to do so by the Judge...but u think its a bad idea from a perception point of view. ...do you know about this specifically related to Ohio rules? Will research further.

My interrogatories are actually useful to me - at least I believe they will be if we have to go further down the road. I want them to state some issues around the economics and also their line of business. What is a POD?

Love to see the banks nationalized! Yep! ...take the profit making factor out of the beast...

Edited March 25, 2012 by NationalizetheBanks

[Seadragon]

I would be wary of them not sending you a copy of their requet for admissions and then they try to get them deemed admitted.

and for the record nationalization of banks under the corruption of the us government is a bad idea. while banks are bad now under the corruption of the us government, we would all be homeless within 4 years.

Just look at Fannie and freddie.

Anyways your discovery may payoff but I see them making objections to the requests for all the stuff.

[NationalizetheBanks]

@legaleagle....here is how I am planning to respond to Plaintiff's Interrogatories.....

Any changes or other....please advise...thanks!

---------------

Defendant Responses

INTERROGATORY

1. State your full name.

Answer:

Name Here

INTERROGATORY

2. State any other names which you have used or been known by.

Answer:

NONE

INTERROGATORY

3. State your current residential address and telephone number.

Answer:

Residential Address

Objection – Defendant has not refused or avoided service of this court. Plaintiff’s request for Defendant’s home residential address is immaterial to this proceeding and invades his personal privacy. The address that Plaintiff has for Defendant, 123 Main St. Akron, OH, is a good mailing address for Defendant.

Residential Telephone:

Objection – Defendant has not refused or avoided service of this court. Plaintiff’s request for Defendant’s residential telephone is immaterial to this proceeding and invades his personal privacy. The telephone that Plaintiff has for Defendant, 922-349-0410, is a good telephone number for Defendant.

INTERROGATORY

4. State the period of time, which you have lived at your current residential address.

Answer:

Objection – the amount of time Defendant has lived at his residential address is immaterial to this proceeding and invades his personal privacy.

INTERROGATORY

5. (A) If you have resided at any other address during the past ten (10) years, state said previous residential address(es).

( State the period of time during which you lived at each previous address listed above.

Answer:

(A) NOT APPLICABLE.

( NOT APPLICABLE.

INTERROGATORY

6. State your date of birth.

Answer: July 15th, 1937 – I am age seventy-four years old (74).

INTERROGATORY

7. State your social security number.

Answer: Objection – Defendant’s social security number is immaterial to this proceeding and invades his privacy.

INTERROGATORY

8. State the names and addresses of your present employer and all former employers for the past five (5) years. With request to each Answer, state your position and amount of salary.

Answer: Objection – Defendant’s employment history is immaterial to this proceeding and invades his privacy.

INTERROGATORY

9. State whether or not you have ever applied for the credit card account, account number 64444300108726537, which is the subject matter of this lawsuit, and if so, give the date of said application.

Answer:

Defendant has no recollection if he applied for credit card account number 6444300108726537.

REQUEST FOR ADMISSION

10. Admit that you made application for the credit card account, account number 6444300108726537 which is the subject matter of this lawsuit.

Answer:

Defendant has no recollection if he applied for credit card account number 6444300108726537.

REQUEST FOR ADMISSION

11. Admit that you received the charge card and cardholder's agreement which are the subject matter of this lawsuit.

Answer:

I have never received, nor seen, nor read a copy of an actual specific CREDIT CARD AGREEMENT under which account number 644300108726537 would be governed if all that Plaintiff claims is true.

INTERROGATORY

12. With respect to each charge card issued on the account, which is the subject matter of this lawsuit, state whether or not you have destroyed the charge card(s) and give the date(s) of said destruction.

Answer:

I have no possession of any physical charge card issued from Plaintiff or Plaintiff’s claimed predecessor interests.

REQUEST FOR ADMISSION

13. Admit that Plaintiff is the owner of this credit account through purchase.

Answer:

Until Defendant has received a copy of the CREDIT CARD AGREEMENT, which Defendant believes is the subject matter of this lawsuit, Defendant does not have enough information to make an admission of any kind.

INTERROGATORY

14. With respect to each charge card issued on the account which is the subject matter of this lawsuit, state whether or not you have returned the charge card(s) to the Plaintiff and give the date(s) of said return.

Answer:

As noted in Interrogatory 12 there are no charge cards in Defendant’s possession.

INTERROGATORY

15. State the names of all persons authorized by you to make purchases on said account.

Answer:

Defendant has no record of any authorizations of any kind, of himself or others.

REQUEST FOR ADMISSION

16. Admit that no unauthorized purchases were made on said account.

Answer:

Defendant has no record of any authorizations or unauthorizations of any kind, of himself or others.

INTERROGATORY

17. If your answer to the preceding Request for Admission is in the form of a denial, list the amounts and dates of each unauthorized purchase and give the date that you notified Plaintiff of said unauthorized purchase(s).

Answer: NONE.

REQUEST FOR ADMISSION

18. Admit that you received periodic statements of said account.

Answer: I did receive periodic statements of credit extended from HSBC/Menards.

REQUEST FOR PRODUCTION OF DOCUMENTS

19. You are hereby requested to produce, at the time and place set forth in the instructions, all written documents relative to the account in question currently in the possession of the Defendant(s) and/or agent. The term "written documents" includes, but is not limited to, letters, notes of telephone calls, or any other written correspondence.

Answer:

Please find attached copies of all documents related to the CREDIT CARD AGREEMENT in my possession.

REQUEST FOR ADMISSION

20. Admit that the balance due and owing on the account, which is the subject matter of this lawsuit, is the amount set forth in Plaintiff's Complaint.

Answer:

Defendant denies any knowledge as to the amount equal to the balance due and owning on said account as claimed by Plaintiff.

INTERROGATORY

21. If your answer to the preceding Request for Admission is in the form of a denial, state the amount which you admit is currently due and owing on said account, and fully explain your reason(s) why this amount is due and owing instead of the amount set forth in Plaintiff's Complaint.

Answer:

Based on the available information related to Plaintiff’s complaint Defendant admits that $00.00 (ZERO) is due and owing. It is Defendant’s belief that any amounts that would be due and owing would be calculated and governed according to the terms, conditions, and in this case, exact mathematical formulas, that make up and are contained with the CREDIT CARD AGREEMENT, which is the subject matter of this lawsuit.

REQUEST FOR PRODUCTION OF DOCUMENTS

22. You are hereby requested to produce, at the time and place set forth in the instructions, all application, charge cards, cardholder's agreement, charge slips, monthly statements and receipts for payments currently in the possession of Defendant(s) and/or agent relative to the account in question.

Answer:

Please find attached copies of all documents related to the CREDIT CARD AGREEMENT in my possession.

REQUEST FOR ADMISSION

23. Admit that the payments required by the cardholder's agreement were not made in a timely manner.

Answer:

Based on the available information, including the lack of the cardholder’s agreement, related to Plaintiff’s complaint, Defendant denies any knowledge of payments required.

REQUEST FOR ADMISSION

24. Admit that the Plaintiff properly accelerated the time for payment of the entire balance due and owing on the account which is the subject matter of lawsuit.

Answer:

Defendant denies any knowledge or understanding as to whether the Plaintiff has properly acted in accordance with their rights, obligations and covenants under the alleged CREDIT CARD AGREEMENT, which is the subject matter of this lawsuit, and to which Plaintiff has presumably agreed.

INTERROGATORY

25. State with particularity the basis of any denials stated in your Answer to Plaintiff's Complaint.

Answer:

Having not received a copy of the specific CREDIT CARD AGREEMENT to which Plaintiff and Defendant have allegedly agreed to, Defendant is unable to deny or confirm any of Plaintiff’s claims.

INTERROGATORY

26. State with particularity the basis of any affirmative defenses stated in your Answer to Plaintiff's Complaint.

Answer:

Having not received a copy of the specific CREDIT CARD AGREEMENT to which Plaintiff and Defendant have allegedly agreed to, Defendant is unable to deny or confirm any of Plaintiff’s claims.

REQUEST FOR ADMISSION

27. Admit that you have no valid affirmative defenses to Plaintiff's Complaint.

Answer:

Defendant reserves all his rights and makes no admissions of any kind.

[legaleagle]

13. Admit that Plaintiff is the owner of this credit account through purchase.

Object. you have no possible way to verify the business dealings of midland.

18. Admit that you received periodic statements of said account.

Deny. they cannot prove this.

19. You are hereby requested to produce, at the time and place set forth in the instructions, all written documents relative to the account in question currently in the possession of the Defendant(s) and/or agent. The term "written documents" includes, but is not limited to, letters, notes of telephone calls, or any other written correspondence.

Bad idea to send them anything, they'll just use it against you.

26. State with particularity the basis of any affirmative defenses stated in your Answer to Plaintiff's Complaint.

That isn't what they asked. If you listed no defenses, say so. if you did, you have to explain them

[nobk4me]

I would ask, as part of the relief in the MMDS, that my obligation to answer the complaint and their discovery be deferred until after the court has ruled on the motion.

Be careful they don't try to play a gotcha game with you. You are within your rights to file the motion in lieu of an answer, but the plaintiff and the courts aren't used to pro se defendants using this strategy, and might try to claim you defaulted because you did not file an answer.

[Xcalibar]

You should not have filed for Discovery as you have not yet filed an answer...

The Plaintiff is aware that the filing of Discovery prior to the Defendant answering the Compliant is premature at best and an abuse of process at worst, but...

Because you filed your discovery request, you may now be foreclosed from filing a Motion for More Definite Statement...

Based upon your litigation thus far I would recommend...

Filing a Motion for More Definite Statement

Filing a Motion to Strike Plaintiff's Discovery Request (based upon being pre-mature)

Filing a MOtion to Withdraw Defendant's Discovery Request (stipulating the withdrawal is made pending Defendant's Answer to the Complaint)...

You have made errors in the process of litigating your case, errors which can be used agains your adversary...

Right now they probably have formed the opinion that you are ignorant of the Rules of Civil Procedure and will treat you badly according to their belief...

In all likelihood, you will not prevail on the Motion for More Definite Statement, therefore your time woud be better spent on developing GOOD Discovery Requests and preparing for their Motion for Summary Judgment...

[NationalizetheBanks]

@legaleagle - thank you - all changes have been made in my response to their interrogatories.

@nobk4me - thank you - the request for a waiver from the obligation to answer until such time the Court has ruled on the motion has been incorporated.

@Xcalibar - comment & questions:

1. I will file the MMDS and related requested dismissal based on Rule 10(D).

2. I will contemporaneously file a Motion to Withdraw Defendant's Discovery Request (stipulating the withdrawal is made pending Defendant's Answer to the Complaint) as recommended, however......................can you explain what is meant by "pending Defendant's Answer to the Complaint."? If understood I am saying I will withdrawl the discovery request now ......but will come back with this later AFTER I have filed an Answer should we get that far?

Here is the Withdrawal Motion language I intend to use...please advise of any recommended changes:

1. Defendant herein files Motion for Withdrawal of Defendant’s Discovery Request entered into the record at March 2, 2012 at 11:54pm.

2. Such withdrawal request is being made pending Defendant’s Answer to Plaintiff’s complaint should such be required at future date.

Respectfully submitted,

Edited March 25, 2012 by NationalizetheBanks

[Xcalibar]

What does MMDS stand for (what is the xtra M for?

Be certain to also include in your motion (Which can be a combined motion to withdraw your Discovery Request and a motion to deem Plaintiff's Discovery Request to be Pre-Mature)..

[rikkivs]

I would just add to something a poster said above about the admissions. Make sure to admit or deny on each request. Yes you can even object, but preface the objection with a DENIAL. Otherwise if you don't use the right language, they will try to get the admissions admitted. Best Wishes to you.

[legaleagle]

MMDS

Motion for a More Definitive Satement

[NationalizetheBanks]

@Xcalibur - The Plaintiff has not filed a Motion for Discovery. They have filed/sent me a "Plaintiff's Combined Interrogatories Request for Admissions and Request for Production of Documents" - is this what your referring to?

[legaleagle]

Yes you can even object, but preface the objection with a DENIAL.

I wish you'd stop telling people this, it is incorrect in all 50 states. There are three options; admit, deny, or object. No combinations.

[NationalizetheBanks]

@legaleagle - thanks for clarifying this...i will revert to my other version as I had updated mine to include both an object and denial.

Regarding my question to Xcalbur....is he wanting me to Strike their Interrogatories Request? The Plaintiff has not filed for a Motion for Discovery....but did file a Plaintiff's Interrogatories......are they both construed as "Disovery"? I do not mind answering their Interrogatories as I don't have much if anything to say that is damaging to me.

Thanks.

[rikkivs]

Yes you can even object, but preface the objection with a DENIAL.

I wish you'd stop telling people this, it is incorrect in all 50 states. There are three options; admit, deny, or object. No combinations.

There are situations where somone can partially object to a question and then admit or deny. See here:

''2033.230. (a) If only a part of a request for admission is

objectionable, the remainder of the request shall be answered.

2033.220. (a) Each answer in a response to requests for admission

shall be as complete and straightforward as the information

reasonably available to the responding party permits.

( Each answer shall:

(1) Admit so much of the matter involved in the request as is

true, either as expressed in the request itself or as reasonably and

clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is

untrue.

(3) Specify so much of the matter involved in the request as to

the truth of which the responding party lacks sufficient information

or knowledge.

© If a responding party gives lack of information or knowledge

as a reason for a failure to admit all or part of a request for

admission, that party shall state in the answer that a reasonable

inquiry concerning the matter in the particular request has been

made, and that the information known or readily obtainable is

insufficient to enable that party to admit the matter.

In California, a party who doesn't have sufficient knowledge of the allegations against him can answer like © OR can do a combination of objecting to part of a question then admitting, denying or saying not enough knowledge.

Other states seem to have similar rules.

[rikkivs]

The poster is from Ohio. In Ohio, just like in California you can submit mixed statements depending upon what is asked. Bthe over arching theme seems to be that they want explicit answers and you cannot just object they ask you to admit an issue of material fact. In that case you need to either ADMIT or DENY. This is what the Ohio RCP states! There are some cases where part of a statement is true but the other part is incorrect or objectionable. See below for OHIO rules of civil procedure on answering admissions:

'(2) If objection is made, the reasons therefore shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer, or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Civ. R. 37©, deny the matter or set forth reasons why the party cannot admit or deny it.'

[legaleagle]

'(2) If objection is made, the reasons therefore shall be stated.

This confirms what I told you. Yes, you can admit in part and deny in part and must state why. The rest of the rule you posted never mentions the word objection again. The entire request I responded to was improper and objectionable. There was no "part" to admit or deny. Ohio is not California. You're reading way too much into the rules, considering who the opponent is.

[BV80]

Perhaps this will help. Here's Nascar's suggested response to an admission:

OBJECTION: The plaintiff has not specifically identified the subject Capital One card with sufficient detail as allow the defendant to properly admit or deny. The request is DENIED.

Nascar's response is in post #14 of the following thread:

http://www.creditinfocenter.com/forums/there-lawyer-house/289560-please-review-my-responses.html#post970835

[NationalizetheBanks]

Question: Ohio Rules specifically state that a Motion for a More Definite Statement should be filed FIRST before an Answer to a Complaint is filed. Ok..that is easy to understand.

So... why... once I have filed my Motion for a More Definite Statement....should I WAIT to file my Answer as is being recommended here and risk my Answer being filed after the current due date which is April 7, 2012?

I can file my Answer the very next day and thus my Answer would be filed AFTER my Motion for a More Definite Statement but before the Judge has probably ruled on said Motion. I have not seen in the Rules or other a reason why this should not be done......can anyone Cite where this is a bad idea in Ohio?

And...if should wait...is simply adding the request for a waiver to Answer pending the Judges decisions on the Motion at the end of my Motion for a More Definite Statement sufficient? Seems like it should be its own seperate Motion. Here is the ending language of my Motion:

"WHEREFORE, Defendant prays that the Court should grant Defendant’s Motion for a More Definite Statement or grant Defendant’s Motion for Dismissal dismissing Plaintiff’s complaint. Pending the Courts ruling on these herein Motions Defendant humbly requests a waiver of Defendant’s obligation to answer Plaintiff’s complaint."

Please advise if you know Ohio - thank you.

[rikkivs]

to support my contention that you can both object and admit or deny part of a statement in a request for admissions. And you didn't look at what I posted from Ohio RCP, your attitude is poor for some odd reason there is no need for you to get nasty.

Perhaps this will help. Here's Nascar's suggested response to an admission:

OBJECTION: The plaintiff has not specifically identified the subject Capital One card with sufficient detail as allow the defendant to properly admit or deny. The request is DENIED.

This statement above mirrors what I told the poster above that he can object but will need to admit, deny or state he doesn't have sufficient knowledge to do either. OHIO RCP says this explicitly, what part of that did YOU not see?

If objection is made, the reasons therefore shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.

[rikkivs]

The concept of 'vagueness' is a bit elusive from a legal perspective, however, so doing the MDS and filing your answer later (but before the deadline) makes sense because if the judge denies the MDS, you'll have your answer on file! I also don't know how it is in your state, but in CA if you don't attach affirmative defenses to your answer you waive your ability to use them later. So you could put together a few affirmative defenses on your answer so that all bases are covered. You can always end your answer with a verification stating that everything you've written is true and correct and that you have the right to amend your answer pending receipt of a MDS. That way bases are covered and you don't have to worry even if th MDS getting denied; you filed an answer. The more I consider it, it seems like you are simply covering your tail because the deadline is near and you don't want to get screwed.

Best wishes!

Edited March 27, 2012 by rikkivs

[rikkivs]

http://schmidtvkrikorian.com/sites/default/files/Motion%20for%20more%20definte%20statement.pdf

[NationalizetheBanks]

@rikkivs - here is my proposed Answer. Could you please add some Affirmative Defenses that make sense? I know them not having the Agreement I believe it one.

Answer

1. As Defendant does not have sufficient information to respond to Plaintiff’s complaint, Defendant reserves all his rights and denies all allegations in Plaintiff’s complaint.

2. Specifically, regarding Paragraph 1 of Plaintiff’s complaint, Defendant has no knowledge as to whether Plaintiff is in fact the rightful duly vested owner of the claimed credit card account, and derived assets and liabilities, through Purchase as claimed by Plaintiff.

3. Specifically, regarding Paragraph 2 of Plaintiff’s complaint, Defendant has no knowledge as to whether Defendant became bound by the terms of a CREDIT CARD AGREEMENT as claimed by Plaintiff.

4. Specifically, regarding Paragraph 3 of Plaintiff’s complaint, Defendant has no knowledge as to whether Defendant has defaulted under the terms of a CREDIT CARD AGREEMENT as claimed by Plaintiff.

5. Specifically, regarding Paragraph 4 of Plaintiff’s complaint, Defendant has no knowledge as to whether $8447.90 is justly due Plaintiff as claimed by Plaintiff.

6. Specifically, regarding Paragraph 5 of Plaintiff’s complaint, Defendant has no knowledge as to Plaintiff’s demands, and categorically denies, as claimed by Plaintiff, that Defendant has failed to liquidate a claimed balance due and owing as claimed by Plaintiff.

Respectfully submitted,