Standard Admissions opinions?? Help.

[Jimmy E]

Thank you to everyone in advance for my 'newbie' question. I have read, learned, and laughed (in a good way) to many of the comments from 'Legaleagle' to those seeking opinions. I've learned that an "objection" (where appropriate) is better than just responding via the "amnesia defense" as Legaleagle pointed out. Also, if Coltfan1972 sees this, I hope to get your opinion since we are from the same state. Anyway, to the matter at hand...

I just received a 'Request for Admissions' from the attorney representing MIDLAND FUNDING LLC., and wanted to find out if anyone could offer an "objection" or how to respond to these statements:

ADMIT that monthly statements/bills in regard to this account were sent to and received by you.

ADMIT that you never notified Plaintiff in writing of any dispute in regard to account.

ADMIT that you never notified Plaintiff in writing of any complaints or requests to stop credit on account.

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

My concern is this attorney hired by MIDLAND FUNDING LLC is, of course, trying to trick me into admitting things before there has been PROOF that I "own" this account.

By the way, if it means anything, they refer to my "credit account" not a credit CARD or line of credit, and have not as of yet provided any kind of account numbers.

Any advice on this would be greatly appreciated.

[legaleagle]

ADMIT that monthly statements/bills in regard to this account were sent to and received by you.

DENIED (they can't prove it, so why not)

ADMIT that you never notified Plaintiff in writing of any dispute in regard to account.

ADMITTED in part. Defendant never notified Plaintiff of any dispute because Plaintiff is not the original creditor. Therefore defendant would have no reason to do so.

ADMIT that you never notified Plaintiff in writing of any complaints or requests to stop credit on account.

ADMITTED in part. Defendant never notified Plaintiff of any complints because Plaintiff is not the original creditor. Therefore defendant would have no reason to do so.

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

OBJECTION Immaterial to the extent that plaintiff has not established standing to sue. Therefore, any such amount is merely an unsupported claim.

[rikkivs]

ADMITTED in part. Defendant never notified Plaintiff of any dispute because Plaintiff is not the original creditor. Therefore defendant would have no reason to do so.

WAIT, doing this would admit that some debt is owed. Without an account number or anything else, why not ask or do a motion for more definite statement? That way they have to prove up their claims.

Instead the poster could say, Denied provisionally as plaintiff has not furnished Defendant with enough information, e.g. an account number to substantiate or deny any of its claims. Defendant reserves the right to amend these answers after receipt of a more definite statement.

I believe this response may make more sense if the original poster denied in his or her answer. Then, since the complaint is so vague and doesn't even list account numbers you need to do a MOTION FOR A MORE DEFINITE STATEMENT. It functions the same as a Bill of Particulars in California and can really help you because it is supposed to elucidate the pleadings. See Arkansas civil procedure and rules on the matter below:

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion is directed or make such order as it deems just.

Although you already submitted your answer, it makes sense to consider doing such a motion. Because realistically, how can you answer such questions if you don't even know the account number which they are referencing?

[Jimmy E]

Thank you legaleagle for taking time to respond. This attorney simply sent the 'Request for Admissions.' In other threads I have read, an attorney seems to send such request along with discovery and interrogatories. This attorney did not. I will send my own 'Request for Admissions,' but do you think I should go ahead and ask for discovery and/or anything else I can (following the Arkansas Rules for Civil Procedure of course)? Or, wait for his next move? Thanks again!

Thanks you too Rikkivs. I did deny every thing in the original complaint. Plus, my original post listed just a few 'Request for Admissions' from Plaintiff's attorney. There were a couple of 'softball' statements, like "ADMIT you are a resident of 'X' county." Clearly an admit. I will fully read the link you kindly posted, but does the motion you say allow me to cherry pick the requests that Plaintiff needs to "make clear?" Or, must the motion pertain to ALL of requests? Sorry for my poor sentence structure, I hope you get what I'm saying.

Edited March 26, 2012 by jimmy1967
Additional Comments

[BV80]

Hold the fort for a minute. In the Complaint, what was stated about the account? For instance, did they give the name of the OC and the account number, etc? What evidence did they include?

[Jimmy E]

Sorry for lack of info. I see so many people cut and paste large quantities of info and expect the "PROS" of the discussion board sift through and hand over answers on a silver platter. That is not my intention; but if more info is needed, I am VERY happy to provide it....

The original complaint from "MIDLAND FUNDING LLC AS SUCCESSOR IN INTEREST TO HSBC BANK NEVADA, NA METRIS" (through a local attorney) contained four items, all of which were "answered" by denial with properly worded sentences. Also attached to the complaint was an 'Affidavit' from a 'legal spe******t' at Midland Credit Management swearing he has knowledge of account, etc etc. NO account number of any kind was given; not even saying it was a credit CARD but only a credit 'account.' I presented some 'Affirmative Defenses.' Within days I received a 'Consent Judgement' document from the attorney (haha) followed a few days by the 'Request for Admissions' to which I'm speaking of now.

Thanks to all.

Edited March 26, 2012 by jimmy1967

[rikkivs]

Ask coltfan about this as well because he is a bulldog from your state. BUT if you get a complaint with nothing that identifies where the alleged debt came from, like an account number. It is basicallylike a tattle telling toddler saying 'Mommy he owes me money!' with absolutely nothing to substantiate it. How can you even prepare an adequate answer, short of denying everything, if you are put in this position? That is why the motion makes sense to me. The pleading is vague and the only information they provided is that they are a successor in interest to HSBC and nothing more? You need to get on that! Good luck!

[BV80]

I would insert the word "alleged" in front of the words "original creditor" in the 2nd and 3rd responses.

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

OBJECTION Immaterial to the extent that plaintiff has not established standing to sue. Therefore, any such amount is merely an unsupported claim.

Better be careful with that response. From the AR rules for admissions:

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; he may, subject to the provisions of Rule 37©, deny the matter or set forth reasons why he cannot admit or deny it.

Lack of standing is a genuine issue for trial. You can't object on that basis alone.

[legaleagle]

WAIT, doing this would admit that some debt is owed. Without an account number or anything else, why not ask or do a motion for more definite statement? That way they have to prove up their claims

Wrong wrong wrong. Did you even read the request? It has nothing to do with admitting any debt. You do not seem to realize the strategy employed here or the reason for it. Account numbers have no relation to a more definite statement. That is evidentiary. You need to stop giving people advice, most of it is provably wrong.

[rikkivs]

Hey we all make mistakes but some posters here have used getting a more definite statement to their advantage. The poster said:

By the way, if it means anything, they refer to my "credit account" not a credit CARD or line of credit, and have not as of yet provided any kind of account numbers.

So on the admissions, where he or she has to admit or deny, they can deny but still say something to the effect that they have incomplete information at this time etc... Besides that, I told the poster to look over their rcp and ask Coltfan who is from their state about motion for more definite statement. But the account numbers missing from the complaint is a small matter compared to the fact that they likely didn't include any accounting of this alleged debt either, which a motion for a more definite statement would get. A more definite statement is supposed to elucidate vague pleadings. And if the time has passed for the poster to do such a motion, they can easily conduct discovery.

[Jimmy E]

I still have a couple of weeks to answer the Request for Admissions. I just get a strange feeling for some reason that this attorney is purposely withholding an account number in hopes that through, what I will call the 'collective' process, I will answer/argue/respond that an account number has not been presented. Then when he injects an account number into the mix, it will seem as though it is some kind of admission that I "own" the account. Maybe I'm wrong, paranoid, or both! I just want to try to stay ahead of the ball on this and do sincerely appreciate everyone's advice/comments thusfar.

By the way, I cannot contact 'Coltfan1972' for comment since I do not have enough postings. It was recommended that I reach out for him since we are both in the same state. Thanks to anyone who can direct him to this thread.

Edited March 26, 2012 by jimmy1967
Reaching "Coltfan1972"

[legaleagle]

But the account numbers missing from the complaint is a small matter compared to the fact that they likely didn't include any accounting of this alleged debt either, which a motion for a more definite statement would get.

We are not here to be "nice," we're here to be correct. This is not. What troubles me is that you don't even know why. Look at the red part and tell me how a motion for a more definite statement applies. Cite the AR rule you rely upon. Then we'll get independent opinions as to who is correct. You are giving newbies advice that is mostly wrong. They may not know any better and may lose their cases if they do what you say.

[Jimmy E]

Thank you again to all who responded to my questions. Finally though, when I answer the 'Request for Admissions' and send my own, should I also request Discovery and/or Interrogatories as well? Or, should I wait for the Plaintiff's next move?

Any advice appreciated!

[legaleagle]

All you need to win these is production of documents. (They never have any) Rogs and admissions are a plaintiff's tool, not very useful for a defendant. Try these.

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."

[rikkivs]

But the account numbers missing from the complaint is a small matter compared to the fact that they likely didn't include any accounting of this alleged debt either, which a motion for a more definite statement would get.

We are not here to be "nice," we're here to be correct. This is not. What troubles me is that you don't even know why. Look at the red part and tell me how a motion for a more definite statement applies. Cite the AR rule you rely upon. Then we'll get independent opinions as to who is correct. You are giving newbies advice that is mostly wrong. They may not know any better and may lose their cases if they do what you say.

I think you are just trying to be oppositional. If I'm wrong that is something that I freely admit to and I'm not afraid to ask questions. I've been on the board for three years and due to the strategy of using motion for more definite statement or in our state demand for bill of particulars, plaintiffs lose a lot of steam because they generally turn in something that is woefully deficient, and not within the proper timeframe.

Usually these complaints say nothing other than the Defendant owes somebody some money and list causes of action. These types of complaints are deficient and although they are standard, they are not legally sufficient which is why there exists a demurrer process in CA or something similar to rule 12e federal rules of civil procedure in almost all the states. Many states have something where you can do a motion to dismiss for insufficient pleadings but most judges prefer for a person to ask for a clarification or amended pleading so the case can be decided on its merits. Again that is why a motion for a more definite statement makes sense.

I don't know why you are opposed to this,especially if the Defendant files an answer to cover their bases.

BTW you were incorrect about using compound ADMIT and DENY statements with OBJECTIONS in ADMISSIONS and I posted the rule from AR RCP and other posters agreed with the concept from previous postings. You haven't argued with that now you've moved on to be oppositional about something else. I already posted the rule from AR RCP so what is your problem?

Edited March 27, 2012 by rikkivs

[Jimmy E]

Thanks again for everyone who has given me ammunition against Midland. I know Coltfan is from my state and would like to find out if there are any landmines to watch out for with Midland's "Affidavit" from their 'spe******t?' I know they will admit it as evidence as that is all they have and want to 'argue' this properly using Arkansas Rules of Civil Procedure. I have read through it MANY times, but admit I am not the brightest. Is there one or two example arguments I can use to defend against "Reg Z" and "hearsay" that will put the stake in their heart(less)?

By the way, I don't have enough posts to contact Coltfan1972 so if a kind member could have him look at this thread, I would greatly appreciate it!

Edited April 2, 2012 by jimmy1967
Need member to contact Coltfan1972

[legaleagle]

I don't know why you are opposed to this,especially if the Defendant files an answer to cover their bases.

A motion for a more definite statement means the complaint is so poorly worded and vague that you can't understand what the plaintiff is alleging. It does not have any relation to a discovery issue, which is what you included in your post. (alleged accounting of the debt) It makes no sense to answer a complaint, then file a motion that says you can't understand what you just answered.

BTW you were incorrect about using compound ADMIT and DENY statements with OBJECTIONS in ADMISSIONS

I disagree. The request we were discussing was very sinmple as I recall, it involved only one element. If it had two distinct separate elements, it would be objectionable anyway as to form. In this case, the objection was proper. Combining a denial with an objection makes no sense. The rules generally state admit, deny, or object. If the question is compounded, you can admit in part or deny in part, explaining each. If it is so compounded that you feel like you have to object to part of it etc., then object to the form and force them to separate it into two or three requests.

Usually these complaints say nothing other than the Defendant owes somebody some money and list causes of action.

That is all a complaint is required to do.

motion for more definite statement or in our state demand for bill of particulars...

Again, your post is confusing. An MDS is procedural for the complaint. The BOP is a discovery tool.

I already posted the rule from AR RCP so what is your problem?

My problem is seeing people get bad advice, nothing more, nothing less. I've noticed a pattern in your posts that makes the little bell go off.....they ramble, mix up laws and procedure, misinterpret what other posters put up here, and generally tell people to do things that make no sense.

[Jimmy E]

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

OBJECTION Immaterial to the extent that plaintiff has not established standing to sue. Therefore, any such amount is merely an unsupported claim.

I would insert the word "alleged" in front of the words "original creditor" in the 2nd and 3rd responses.

Better be careful with that response. From the AR rules for admissions:

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; he may, subject to the provisions of Rule 37©, deny the matter or set forth reasons why he cannot admit or deny it.

Lack of standing is a genuine issue for trial. You can't object on that basis alone.

Newbie with maybe a dumb question, but, would a 'Deny' contain the same answer that legaleagle suggested? Would the wording just be different?... such as "DENY (or cannot admit or deny) as Plaintiff has not established it even owns alleged account." Perhaps some other wording?

[legaleagle]

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

Let's try another way:

Admitted in part, to the extent that defendant does not have any documents in his possession that would serve to establish the accuracy of any balance the plaintiff seeks, one way or the other. Such documentation will be requested in discovery. Therefore, defendant denies any implied admission that the balance is accurate or owed.

[BV80]

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

Let's try another way:

Admitted in part, to the extent that defendant does not have any documents in his possession that would serve to establish the accuracy of any balance the plaintiff seeks, one way or the other. Such documentation will be requested in discovery. Therefore, defendant denies any implied admission that the balance is accurate or owed.

I like that one.

[Jimmy E]

Wow, you make this look easy. Thanks a bunch!

[Coltfan1972]

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

Admitted 1,000,000,000 times over and from the courthouse steps I'll yell at anybody that will listen. ADMITTED !!!!!!!!

Jimmy- Admit you do not have any documentation indicating the balance of my checking accounting is one million dollars. So if you admit you have nothing disputing my balance is one million dollars, I have one million dollars in the bank?

Of course you have nothing indicating the balance is less than whatever, why would you? They are making the claim, they need documents. If those documents prove their case, by the burden of proof established by law, then your records are irrelevant.

This is a common trick question. It sounds if you admit you are saying something wrong, like you are admitting you owe the debt. Hell no, you're just admitting you don't have any evidence to dispute their claims. That's fine, they sued you.

Unless you went affirmative defense crazy on them, they have to prove their claims.

Here is another one. Jimmy- Admit you have no proof I am not the President of The United States. You have no proof? Then I'm President of The United States?

And I disagree with Legal (), on denying any implied admission. In my opinion, that needs no explanation. We are dealing with the letter of the law, not speculation and what this might imply.

It's just all psychological. You have a natural tendency to deny because it sounds like you should. There question is basically irrelevant, unless the account was admitted and the only dispute is over how much is owed. When there is a denial of pretty much everything on the front end, admit away.

So let's say they have records showing the amount is dead on correct. Okay, fine, now prove I owe it, and not one of the other 350 million people in America.

[BV80]

I think both Colt's and Legal's answer would work. Coltfan's is direct and to the point. It's also the truth. Legal's answer is also true, but offers an explanation.

I like simple and to the point, but there are times when an explanation is necessary. I don't know if this is one of those times, but you must do what makes you comfortable.

[Coltfan1972]

There are times when an explanation is necessary.

Agreed 100%, and it's when the judge says Mr. Coltfan would you like to cross-examine the witness?

[Jimmy E]

ADMIT that you do not have any documentation indicating the balance of this account to less than $XXXX.

Admitted 1,000,000,000 times over and from the courthouse steps I'll yell at anybody that will listen. ADMITTED !!!!!!!!

Jimmy- Admit you do not have any documentation indicating the balance of my checking accounting is one million dollars. So if you admit you have nothing disputing my balance is one million dollars, I have one million dollars in the bank?

Of course you have nothing indicating the balance is less than whatever, why would you? They are making the claim, they need documents. If those documents prove their case, by the burden of proof established by law, then your records are irrelevant.

This is a common trick question. It sounds if you admit you are saying something wrong, like you are admitting you owe the debt. Hell no, you're just admitting you don't have any evidence to dispute their claims. That's fine, they sued you.

Unless you went affirmative defense crazy on them, they have to prove their claims.

Here is another one. Jimmy- Admit you have no proof I am not the President of The United States. You have no proof? Then I'm President of The United States?

And I disagree with Legal (), on denying any implied admission. In my opinion, that needs no explanation. We are dealing with the letter of the law, not speculation and what this might imply.

It's just all psychological. You have a natural tendency to deny because it sounds like you should. There question is basically irrelevant, unless the account was admitted and the only dispute is over how much is owed. When there is a denial of pretty much everything on the front end, admit away.

So let's say they have records showing the amount is dead on correct. Okay, fine, now prove I owe it, and not one of the other 350 million people in America.

Thanks Coltfan, BV80, and legaleagle. Remember, there are TWO separate Midland complaints on TWO different accounts; one around $1000 (District Court), the other just over $10k (Circuit).

The ANSWERS to both complaints were the same. Don't laugh, but keep in mind these were submitted before I found this incredible website):

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

1. DENY. Defendant objects to the Nature of the claim on the grounds that it is vague, ambiguous and unintelligible in that the Defendant has to speculate as to the meaning of “Suit on an Account.”

2. DENY. This request calls for admission of matter Defendant has denied and thus it is improper. Defendant notes that this denial is due, among other things, to multiple allegations within a single paragraph of the Complaint.

3. DENY. Defendant objects to this request on the grounds that Defendant lacks knowledge about the truth of alleged claim and has to speculate as to the meaning of “credit account” and “the account.” Further, there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff, and Defendant denies any alleged obligation and puts the Plaintiff to its strictest proof thereof.

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted and reserves Defendant’s rights to later object to jurisdiction, venue, sufficiency of process, sufficiency of service, failure to state facts upon which relief can be granted or failure to join a party after Defendant’s filing of Answer: Rule 12((h).

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

Notes about the above as I do not have complaints in front of me, but #1 Just said 'Suit on Account.' The other two, claimed amounts owed.

I did not go 'Affirmative Defense' crazy (I don't think). In the complaint, there were only the three above statements. 'Affirmative Defenses' submitted in BOTH of the complaints:

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

II. AFFIRMITIVE DEFENSES

1. Plaintiff’s Complaint is time-barred Pursuant to Statute of Limitations § 4-3-118.

2. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

3. Plaintiff has not proven the alleged debt is valid or the amount of the debt is accurate. Plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in the Defendant’s alleged Defendant’s contract, and lawfully charged. Defendant also insists that Plaintiff produce a contract, account statements, and purchase receipts to prove amount of alleged debt.

4. Plaintiff’s damages are limited to real or actual damages only on alleged debt.

5. The court would unjustly enrich Plaintiff by granting the relief sought herein.

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

That's it, then the Request for Admissions came for BOTH complaints as follows:

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

.....Said Plaintiff reserves the right to proceed under ARCP Rule 36; regarding those Requests for Admissions that should be denied by the Defendant.

Request No.1: ADMIT that you are a resident of 'x' county, Arkansas

I will admit of course

Request No. 2: ADMIT that you charged on the account, which is the subject of this lawsuit.

Request No. 3: ADMIT that the principal amount past due on account, which has not been paid, and has been owed for a long period of time is $XX,XXX.

Request No. 4: ADMIT that monthly statements/bills in regard to this account were sent to and received by you.

Request No. 5: Admit that you never notified Plaintiff in writing of any dispute in regard to this account.

Request No. 6: ADMIT that you never notified Plaintiff in writing of any complaints or requests to stop credit on this account.

Request No. 7: Admit that you do not have any documentation indicating the balance of this account to be less than $XX,XXX.

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

I'm sorry for all the info, but read on one of the threads that those whose opinions I seek like to see it ALL in one entry. I hope I got that right!

Thanks for any additional comments/opinions/concerns. I greatly appreciate it. I believe I will move forward to 'Production of Documents' as legaleagle pointed out that Admissions and Rogs are for the Plaintiff's benefit. Thanks again!

Edited April 3, 2012 by jimmy1967
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