Documents required by Plaintiff to sue.

[Rimmer]

Hello,

I am the defendant involved in a civil suit. What documents must the creditor/creditors attorney have when they file a suit? Ie credit card agreement, statements.

If they do not produce these in Discovery is that a FDCPA?

Thanks.

[kittymamma]

Who is suing you? Is it a junk debt buyer? Our resident experts will need some more information to help you.....I was sued by Midland Funding, they attached no documents to the summons, what they came up with in discovery wasnt worth the paper it was written on, I won against them, let us know your specifics:)

[Rimmer]

It is the credit represented by Zwicker. they did not attached the cc agreement or statement to the original complaint.

[Coltfan1972]

They need no documents to sue you, unless required by your states rule something be attached to the lawsuit.

Generally speaking, that might be a generic card agreement, maybe one account statement, or affidavit. In other words, nothing in a million years that would meet their burden at trial.

[WhoCares1000]

Nothing is needed to sue anyone but what I think you are asking is what documents are required for one side to prove their case and the answer is that your question is too generic to answer.

1) It depends are what basis you are being sued on, contract, open account, account states, etc.

2) It depends on who is suing you. A JDB will have an added requirement of proving they have the standing to sue.

3) It depends on the state. Each state is different on what shows standing and proof of case.

[legaleagle]

Post the complaint, we have no clue until we see this. Your rules are similar to my state's. Change the amount somewhat and redact names. Tell us who the named plaintiff is and the name of the law firm representing the plaintiff. Betcha it's HLS. Hope that it is, they are idiots.

[Rimmer]

The plaintiff is Discover being represented by Zwicker. I am curious what documents they have to provide when they initiate a civil suit. Any actual account documents? It will take me a while too attach the complaint as I will have to scan it and then redact material. I live in Massachusetts.

[usagi555]

Typically, and this will vary from state to state, they have to provide very little to file a suit. It is if they want to win a full on court battle that they have bring a lot of evidence.

[Coltfan1972]

The plaintiff is Discover being represented by Zwicker. I am curious what documents they have to provide when they initiate a civil suit. Any actual account documents?

See post 4 & 5.

[Rimmer]

Ok thanks. I will post more as the process goes along. I just want to stay ahead of things.

[Beergoggles]

Use this http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

Ok thanks. I will post more as the process goes along. I just want to stay ahead of things.

[legaleagle]

It would be better to type the complaint, images are hard to work with. We prefer to type our answers right into the document for you and cannot do this with a jpeg. All the complaint has to do is put you on notice as to what the plaintiff intends to prove. Evidence does not have to be attached as a rule. You will request their evidence in discovery, mainly production of documents. You need to start reading the rules of procedure, things will be more clear after that. You have a certain order of events with time limits for each step. The rules are on line.

Massachusetts Rules of Civil Procedure

[Rimmer]

Who is the named plaintiff in the suit?

Rimmer

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Zwicker and Associates representing Discover

3. How much are you being sued for?

<5000

4. Who is the original creditor? (if not the Plaintiff)

Discover

5. How do you know you are being sued? (You were served, right?)

Served, yes

6. How were you served? (Mail, In person, Notice on door)

Mail in mailbox

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

There was correspondence, but not for 2 years.

9. What state and county do you live in?

MA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

2007

11. What is the SOL on the debt? To find out:

6 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

In Discovery.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

NA

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Just summons with amount of alleged debt.

[Rimmer]

There is less than 2 weeks on the deadline for the Discovery I sent to them. If they don't produce anything I am preparing to dismiss. Any help with the motion would be appreciated.

Thanks

Rimmer

[Coltfan1972]

They will send at the last minute, that is just the way it works. If they don't send you anything you send a cooperation letter/meet and confer/whatever your state calls it.

Then if they don't answer you motion to preclude the evidence, not dismiss. The motion to dismiss is used at the very start of the case and usually involves some defect in the complaint.

You can't dismiss at this stage for lack of evidence. That is what summary judgment is for. Go for summary judgement, after you get a motion to preclude. It's basically a long and drawn out motion to dismiss. You have to do it all procedurally correct.

[Rimmer]

Based on their behavior thus far, I assume I will not get anything from them.

So cooperation letter -- not sure what that is in MA

So then motion to preclude

Then motion for summary judgement, with prejudice?

I just want to be prepared ahead of time.

Rimmer

[legaleagle]

Discover is in Delaware, they insisted that you agree to Deleware law in the cardholder agreement. You agreed. There is therefore no reason for any court to set aside this agreement, because there is no controversy involving the forum state. The contract and the terms of it are clear. Come on Coltfan, tell him the rest. I have to torture you with this, you missed the date he posted. LOL If you don't I will.

[Rimmer]

But the SOL is based on my state not DE?

If it was based on DE law, they would be out of the SOL.

[legaleagle]

Exactly. The cardholder agreement says DE law, right? Why should they be allowed to invoke a different SOL because they were too stupid to file the case in time? They wanted DE law, so did you, now they changed their mind? Why? How about we change the rest of the agreement, like the part that says you can charge me interest? Bet they won't like that.

[Coltfan1972]

Okay, you got me.

[kutuzov]

I didn't find any case law of credit card about the choice of law of Delaware, but I found this:

lex loci contractus - Google Scholar

3. Choice of law. The contract here in question was executed on Sunday in New Hampshire. It provided for an instalment sale of land in New Hampshire, and explicitly provided that it was governed by the laws of New Hampshire. Traditionally we have held that the law of the place 382*382 where a contract is made governs its validity. Dicker v. Klein, 360 Mass. 735, 736 (1972). See Fine, Mass. Contract Cases and Problems in the Choice of Law, 43 Mass. L.Q., No. 3 at 46, 52 (1958). We have applied that law to the validity of contracts made on Sunday in other States. Hazard v. Day, 14 Allen 487, 494-496 (1867) (Rhode Island law). Murphy v. Collins, 121 Mass. 6 (1876) (New York law). See Annot., 67 A.L.R.2d 694, 696 (1959). Almost any other rule would lead to the same result on the present facts. See Restatement (Second) of Conflict of Laws § 187 (law chosen by the parties), § 188 (State having most significant relationship to the transaction), § 189 (State where the land is situated), § 202 (effect of illegality) (1971); Davies & Rathke, Choice of Law based on the Seat of the Relationship, 10 Valparaiso L. Rev. 1, 11-12 (1975). We therefore apply the New Hampshire Sunday law, under which the contract is not illegal.

So someone more knowledgeble in searching case laws could help. Massachusets does adhere to the lex loci contractus, that what essentially is is that the laws of the other state applies unless they contradict a local law. If the SOL of Delaware is bye bye you got a good affirmative defense, and ground for dismissal.

[BV80]

I didn't find any case law of credit card about the choice of law of Delaware, but I found this:

lex loci contractus - Google Scholar

So someone more knowledgeble in searching case laws could help. Massachusets does adhere to the lex loci contractus, that what essentially is is that the laws of the other state applies unless they contradict a local law. If the SOL of Delaware is bye bye you got a good affirmative defense, and ground for dismissal.

It's not just about the contract. It's also determined by whether or not the SOL is considered procedural or substantive.

"We state for the future that this court's treatment of the application of statutes of limitations as procedural will no longer be continued. The certainty of the traditional answer as to which statute of limitations to apply does not justify a refusal to apply the statute of limitations of another jurisdiction in particular circumstances." NEW ENGLAND TELEPHONE & TEL. v. Gourdeau Constr. Co., 419 Mass. 658 - Mass: Supreme Judicial Court 1995.

The above states that the SOL is no longer just a procedural issue, which is good. However, the court also stated the statute of limitations of another jurisdiction would apply "in particular circumstances."

You have to find out if the SOL in relation to debt would be one of those circumstances. That's when the court could apply the "significant relationship" test, meaning which state has the greater relationship to the issue.

[kutuzov]

You're right I forgot that part. Anyway without a specific case law, you are basically on your own getting all the info together and put it on paper. Good news is that you got a better chance than the folks in AZ, New Hampshire is more open on this one.

[Rimmer]

The SOL issue I am saving for last I suppose.

I really doubt they will produce any Discovery, so I am preparing for that.

If they do produce Discovery, I have plenty of time to prepare for pre-trial.

Any assistance on dealing with no Discovery or limited Discovey response would be appreciated.

[Rimmer]

Should I send them a note asking when I should expect a response to Discovery?