What to do during discovery?

[bhknight]

Hello all. Many thanks to those organizing and donating to this forum. For those of us out here that cant afford an attorney, it feels as if there is little to no hope in avoiding handing over what little money we have to survive to those wanting to make a quick buck by abusing the legal system.

I've been living in Indiana, but my original debt in questions (just over 4k) was accrued in California. A JDB (Asset Acceptance LLC) has supposedly purchased my debt from another JDB and is looking to cash in on me. Their attorneys based out of Kentucky have filed a complaint and I have since answered back as best as I have been informed by the information on this site. Well now their attorneys are firing back. I guess this is what is called the discovery phase, asking for all sorts of paperwork and records. I'm not exactly sure about how to handle all this. ITs a tad scary and I'm starting to feel like I'm in a little over my head.

But my issues with this whole suit are:

1. They have submitted absolutely nothing with the original complaint. They've shown no proof to me that they actually own said debt acquired.

2. In California the statute of limitations is 4 years, and I'm pretty sure its been over 4 years since I called the bank and told them I couldnt pay the bill anymore. So its possible the debt could be time-barred.

3. All the records the JDB's attorneys seem to be asking me for, seems to be the same records that might incriminate me. As if they didnt have it themselves. Which seems to be fairly common from what I've been reading.

4. plus its been so long, and i've moved a few times since I left California, that I'm not sure I have all the records they are requesting.

I'm just a little lost and hoping for some advice. No local attorney will help me for less than a $1500 retainer, and I just dont have that.

[usagi555]

Hello all. Many thanks to those organizing and donating to this forum. For those of us out here that cant afford an attorney, it feels as if there is little to no hope in avoiding handing over what little money we have to survive to those wanting to make a quick buck by abusing the legal system.

I've been living in Indiana, but my original debt in questions (just over 4k) was accrued in California. A JDB (Asset Acceptance LLC) has supposedly purchased my debt from another JDB and is looking to cash in on me. Their attorneys based out of Kentucky have filed a complaint and I have since answered back as best as I have been informed by the information on this site. Well now their attorneys are firing back. I guess this is what is called the discovery phase, asking for all sorts of paperwork and records. I'm not exactly sure about how to handle all this. ITs a tad scary and I'm starting to feel like I'm in a little over my head.

First, you do have to respond to the discovery requests they sent. If you fail to respond, you will lose. Notice that I said respond. I didn't say that you are going to have to provide them with every little thing that they ask for. On the other hand, you cannot just object to everything and expect no response (i.e. retribution) from them.

But my issues with this whole suit are:

1. They have submitted absolutely nothing with the original complaint. They've shown no proof to me that they actually own said debt acquired.

Sounds about right. There are going to be issues with their evidence even if they have it.

2. In California the statute of limitations is 4 years, and I'm pretty sure its been over 4 years since I called the bank and told them I couldnt pay the bill anymore. So its possible the debt could be time-barred.

Cali's SOL is not going to apply. You'll either have to go with Indiana's SOL, or if there is a choice of law provision in the cardholder agreement that specifies which state's laws apply, that state's SOL may apply.

3. All the records the JDB's attorneys seem to be asking me for, seems to be the same records that might incriminate me. As if they didnt have it themselves. Which seems to be fairly common from what I've been reading.

There have been many people on the board dealing with exactly that issue.

4. plus its been so long, and i've moved a few times since I left California, that I'm not sure I have all the records they are requesting.

Actually, they can ask for the records, but if you don't have them, they can't make you turn them over. That's a very simple response to their document requests: After a diligent search, Defendant has determined that he/she is not in the possession, control or custody of the documents in question.

They want you to prove the existence of the alleged (<- get used to using that word!) debt for them. It's a common tactic, and I expect that rules may get changed someday on what counts as prima facie evidence for debt buyers because of their business practice of suing with nothing more than a name, account number and dollar value in a spreadsheet.

I'm just a little lost and hoping for some advice. No local attorney will help me for less than a $1500 retainer, and I just dont have that.

Yup. This happens often. You might want to type out the discovery requests for review. Also, there is a bright shining light for you here: You can send them your own discovery requests and become a nightmare for them to deal with.

[bhknight]

Thats phenomenal. Thank you so much for the advice. You have no idea how much help like this means to some of us. Is there a place where I can find models or examples of how I should answer their discovery request?

Also, how would I go about sending them one?

You might want to type out the discovery requests for review.

If you mean type out their discovery request to me here on this post, absolutely! If it helps me get passed all this, I'll retype the bible! I'll be sure to post it within a few hours. I don't have it in hand at the moment.

[usagi555]

Thats phenomenal. Thank you so much for the advice. You have no idea how much help like this means to some of us. Is there a place where I can find models or examples of how I should answer their discovery request?

Also, how would I go about sending them one?

If you mean type out their discovery request to me here on this post, absolutely! If it helps me get passed all this, I'll retype the bible! I'll be sure to post it within a few hours. I don't have it in hand at the moment.

Actually, I know what its like to get sued by Citibank while not being able to afford an attorney. It feels like there is a freight train coming at you and your feet have been nailed to the tracks. (Hint: I'm not an attorney and you should verify everything that I tell you independently.)

Now then, you need your playbook:

Indiana Rules of Trial Procedure

In that link are the rules of civil procedure for Indiana. When it comes to discovery, the relevant rules are rules 26-37. Specifically, you're going to want to pay attention to rules 33, 34 and 36, as those deal with interrogatories, requests for the production of documents and requests for admissions respectively. Like pretty much all other states, these rules are patterned after the federal rules. While there are some slight differences between, say, IN and NM, the same general principles apply.

For discovery, you basically figure out what requests you want to send, make sure they are in a form approved by the court, and send them to the plaintiff's attorneys. I would also include a certificate of service, but whether or not you need to file that with the court is going to be dependent on IN. That's one of those issues that could differ from state to state. FYI, discovery is something that is, for the most part, conducted without direct participation of the court.

[Guest usctrojanalum]

JDB's are easier to beat, especially when the debt has been sold a few times. If you ask the right discovery questions and presents your arguments in a thought out manner I think you should be successful.

[legaleagle]

Who is the original creditor? A second JDB indicates absolute desperation. We need more info. How much, etc.

[bhknight]

Ok as far as the discovery request, I scanned it into a pdf and posted it in Google Docs. Hope everyone can read it ok. edit:Since I'm new to the forum, it wont let me post the link as a URL yet so I apologize, you'll have to copy&paste it.

https://docs.google.com/open?id=0B_e-xjtuGRlWYUpSRDJiQzJraHM

Who is the original creditor? A second JDB indicates absolute desperation. We need more info. How much, etc.

Yes I'm pretty sure this is the second JDB, I've heard Asset Acceptance is pretty sleazy too. The original creditor was Bank of America and the total the JDB is asking me for is $4290.02.

JDB's are easier to beat, especially when the debt has been sold a few times. If you ask the right discovery questions and presents your arguments in a thought out manner I think you should be successful.

Thats what I'm hoping for. The advice I get here will mean everything since I've never been through anything like this before.

Actually, I know what its like to get sued by Citibank while not being able to afford an attorney. It feels like there is a freight train coming at you and your feet have been nailed to the tracks. (Hint: I'm not an attorney and you should verify everything that I tell you independently.)

Now then, you need your playbook:

Indiana Rules of Trial Procedure

In that link are the rules of civil procedure for Indiana. When it comes to discovery, the relevant rules are rules 26-37. Specifically, you're going to want to pay attention to rules 33, 34 and 36, as those deal with interrogatories, requests for the production of documents and requests for admissions respectively. Like pretty much all other states, these rules are patterned after the federal rules. While there are some slight differences between, say, IN and NM, the same general principles apply.

For discovery, you basically figure out what requests you want to send, make sure they are in a form approved by the court, and send them to the plaintiff's attorneys. I would also include a certificate of service, but whether or not you need to file that with the court is going to be dependent on IN. That's one of those issues that could differ from state to state. FYI, discovery is something that is, for the most part, conducted without direct participation of the court.

Thank you so much Usagi. I'll be reading up on this today. However, what is a certificate of service? In case I find this out while reading from the link you sent, I apologize for asking in advance.

They are saying I have 30 days to get this to them from the date of their sending which is April 3rd apparently.

[usagi555]

Typically, with stuff like this, you are going to have to type it out anyway, and it is actually best to type it out on here. It makes it much easier for people to respond. That being said, those are going to be very easy for you to answer.

[legaleagle]

Discovery is between parties, it does not get filed with the court. Certification is usually only required when motions are filed or other court papers, or when there are multiple attorneys involved in the case. 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."

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to susequent assignees. These documents should show the account number and name of the account holder.

[bhknight]

I've spent the better part of the last few days gathering whatever old credit card statements and documentation I could find (which isnt much), and jotting answers to their questions. Is there any "special" way to do it since its going directly to the attorney and not through the court? Also, I'm going to try to fashion my own discovery to them based on what you have listed here. Should I just mimic the same style of letter they sent to me? What about official dates? I.E. When is this due by. Or any other information I need to include?

Thanks again for all the help and advice!

[legaleagle]

Yes, copy their format. even if it's worng, they won't be able to object to it. Don't give them ANY documents. NEVER surrender any information to the enemy that he can use to beat you in court. One wrong document, and you're all done.

"Defendant, after a diligent search, does not have any of the documents Plaintiff requests. Defendant will amend his response per the rules of civil procedure should such documents be found."

The send them the requests I gave you.

Edited April 20, 2012 by legaleagle

[bhknight]

Yes, copy their format. even if it's worng, they won't be able to object to it.

I'll be drafting this up later this evening. One quick question; What time frame do I give them? Is it a standard 30 days since that is what they gave me?

[debtorshusband]

I'm going to get up on my soapbox for a few moments.

(climbs onto soapbox)

"Debt collection attorneys have perverted the Discovery process. They have twisted it in an attempt to make pro se defendants incriminate themselves so that they, the plaintiffs, do not need to prove their case.

Requests for Admissions are supposed to be to agree to facts that are not in dispute. They are not supposed to be about the things that a plaintiff should have to prove.

So bear that in mind: Whether you admit or deny a RfA should be determined by what facts you are willing to admit to, and what items you want them to prove.

Discovery in general is about each party showing their evidence to the other. Then one side or the other may fold their hand, and settle or dismiss. So, when they ask for documents, you don't need to dig up anything you might have, especially items that they need to prove their case which they should obtain elsewhere. You only need to provide the documents you plan to introduce at trial as evidence. For most defendants, this means they will provide nothing. Exceptions might be proof you might have that the SOL has expired, documents showing you've paid the debt off, proof you never lived at a certain address, etc."

(climbs off soapbox)

So keep these things in mind as you formulate your responses.

Court rules dictate how long responding parties have to answer Discovery requests. 30 days is probably typical, so if that's the amount of time they told you that you had, that's probably the rules in your state, and that's how long they have to respond to you.

Good luck.

DH

[legaleagle]

Rule of thumb to answer is 30 days. Read your rules of procedure under discovery.

[legaleagle]

Requests for Admissions are supposed to be to agree to facts that are not in dispute. They are not supposed to be about the things that a plaintiff should have to prove.

Not exactly. Some of the things the plaintiff should have to prove can be dispelled with in admissions. That is the basic purpose of discovery, to get rid of issues that are not triable and preserve the ones that are. For instance, I ask you to admit that you applied for the account. You deny. I show up in court with a signed application, paper or online, and you are now officially a liar. People think they can just deny anything or claim amnesia. They then show up in court, shift back and forth on their feet with a dumb look on their face, and tell the judge they can't remember running up ten grand worth of stuff over a three year period on a credit card. There is a name for these people. Judgment debtors.

[BV80]

2. In California the statute of limitations is 4 years, and I'm pretty sure its been over 4 years since I called the bank and told them I couldnt pay the bill anymore. So its possible the debt could be time-barred.

Cali's SOL is not going to apply. You'll either have to go with Indiana's SOL, or if there is a choice of law provision in the cardholder agreement that specifies which state's laws apply, that state's SOL may apply.

If the OP defaulted on the debt while living in CA, would the CA SOL apply?

[usagi555]

If the OP defaulted on the debt while living in CA, would the CA SOL apply?

That's an excellent question. So excellent, in fact, that it is leaving me scratching my head.

[legaleagle]

BofA is Delaware, if the SOL applies, it would be theirs, since they insisted DE law applies. Why should CA set that aside? They have no interest.

[kittymamma]

Yes, copy their format. even if it's worng, they won't be able to object to it. Don't give them ANY documents. NEVER surrender any information to the enemy that he can use to beat you in court. One wrong document, and you're all done.

"Defendant, after a diligent search, does not have any of the documents Plaintiff requests. Defendant will amend his response per the rules of civil procedure should such documents be found."

The send them the requests I gave you.

Oh absolutely do NOT send them any information whatsoever!!!! ZIP ZILCH ZERO!!!! They have not proven they own your 'alleged' account or that this alleged account even has anything to do with you!! THEY have the burden of proof, not you, so give them nothing to help them along!!

I know you are feeling afraid and overwhelmed, but you came to the right place, there are people here who are so smart they scare me:mrgreen: Take a deep breath and take this one day/one step at a time and dont let them intimidate you...from all I hear Asset is even stupider than Midland

[BV80]

from all I hear Asset is even stupider than Midland

Plus, Asset was recently nailed by the FTC for their collection practices.

[bhknight]

Ok I'm finishing my responses to their discovery request and I had a couple of questions I was hoping to find some help on how to answer them.

Under the interrogatories they ask:

#13 Please identify and describe each exhibit you will use in the trial of the captioned matter.

#15 State fully, completely and at length the factual basis of each defense which you now assert or intend in this action.

#16 As to each defense set out in response to (#13), state the following as to notification to Plaintiff by Defendant of such defenses: (a) the date or dates when notification was given; ( the manner in which notification was given; and © the specific party or parties to whom notification was given.

And how should I handle answering these facts?

#1 Please admit that you applied to the original creditor, Bank of America, for the account number (blurred by attorney's office), in question.

#2 Please admit that you are indebted to the Plaintiff in the amount of $4,290.02, plus any accrued interest, as shown on Plaintiff's Complaint.

#3 Please admit that you made payment(s) on your account.

#4 Please admit that you owe the balance on the Account to the Plaintiff.

#5 Please admit the the correct balance is outlined in the Complaint.

#6 Written demand for payment of the charges subject of this action was made upon Defendant by Plaintiff or Plaintiff's counsel thirty (30) days or more prior to the filing of the Complaint in this action.

Once again, thank you everyone for the help. I'm hoping to shoot this off certified back to the attorney either later today or tomorrow to meet the deadline.

(edit)

They were also asking for me to verify the amount. Should I try to verify it from my credit report, or not acknowledge it. I'm not sure how much to answer.

Edited May 1, 2012 by bhknight

[legaleagle]

#13 Please identify and describe each exhibit you will use in the trial of the captioned matter.

None at this time. Defendant reserves the right to amend as information becomes available through discovery.

#15 State fully, completely and at length the factual basis of each defense which you now assert or intend in this action.

Defendant has not asserted any special defenses.

#16 As to each defense set out in response to (#13), state the following as to notification to Plaintiff by Defendant of such defenses: (a) the date or dates when notification was given; ( the manner in which notification was given; and © the specific party or parties to whom notification was given.

Does not apply

#1 Please admit that you applied to the original creditor, Bank of America, for the account number (blurred by attorney's office), in question.

Considering the fact that plaintiff redacted the account number, defendant cannot make an informed response.

#2 Please admit that you are indebted to the Plaintiff in the amount of $4,290.02, plus any accrued interest, as shown on Plaintiff's Complaint.

Denied

#3 Please admit that you made payment(s) on your account.

Considering the fact that plaintiff redacted the account number, defendant cannot make an informed response.

#4 Please admit that you owe the balance on the Account to the Plaintiff.

Denied. Defendant owes plaintiff nothing.

#5 Please admit the the correct balance is outlined in the Complaint.

OBJECTION Calls for a legal conclusion best left to the trier of fact. No admissible evidence supporting the claimed balance has been submitted.

#6 Written demand for payment of the charges subject of this action was made upon Defendant by Plaintiff or Plaintiff's counsel thirty (30) days or more prior to the filing of the Complaint in this action.

Admitted in part, that the plaintiff has made a wholly unsupported demand for money. Denied to the extent that defendant, after a diligent search, can find no such correspondence from plaintiff.

Edited May 1, 2012 by legaleagle

[bhknight]

Thank you so much LE, you have no idea the weight that feels lifted. Just got back from the post office. I sent them my own Request for the Production of Documents with everything you listed earlier. Feels great to put the ball back in their court and see what they do with it! I'll update as soon as I get any response from them.

#13 Please identify and describe each exhibit you will use in the trial of the captioned matter.

None at this time. Defendant reserves the right to amend as information becomes available through discovery.

#15 State fully, completely and at length the factual basis of each defense which you now assert or intend in this action.

Defendant has not asserted any special defenses.

#16 As to each defense set out in response to (#13), state the following as to notification to Plaintiff by Defendant of such defenses: (a) the date or dates when notification was given; ( the manner in which notification was given; and © the specific party or parties to whom notification was given.

Does not apply

#1 Please admit that you applied to the original creditor, Bank of America, for the account number (blurred by attorney's office), in question.

Considering the fact that plaintiff redacted the account number, defendant cannot make an informed response.

#2 Please admit that you are indebted to the Plaintiff in the amount of $4,290.02, plus any accrued interest, as shown on Plaintiff's Complaint.

Denied

#3 Please admit that you made payment(s) on your account.

Considering the fact that plaintiff redacted the account number, defendant cannot make an informed response.

#4 Please admit that you owe the balance on the Account to the Plaintiff.

Denied. Defendant owes plaintiff nothing.

#5 Please admit the the correct balance is outlined in the Complaint.

OBJECTION Calls for a legal conclusion best left to the trier of fact. No admissible evidence supporting the claimed balance has been submitted.

#6 Written demand for payment of the charges subject of this action was made upon Defendant by Plaintiff or Plaintiff's counsel thirty (30) days or more prior to the filing of the Complaint in this action.

Admitted in part, that the plaintiff has made a wholly unsupported demand for money. Denied to the extent that defendant, after a diligent search, can find no such correspondence from plaintiff.

[bhknight]

Well, its getting closer to the 30 days mark and I haven't heard anything from the attorney's office yet on the request for documents. What happens or what should I do if they don't get anything back to me by the deadline? Which would be June 2nd.

[legaleagle]

Give them a few days after the deadline, then send them a meet and confer letter. This is probably required by the court, it is every place else I've ever seen. They'll give you some jive about needing more time. Don't give it to them unless they give you an absolute chiseled in stone date when they will produce. Put this in the letter. When they don't produce, hit them with adnmissions for every item they did not produce. Make them admit they don't have it. Then you file MSJ and drag their worthless pus sucking cranial / gluteal flabby Moon Pie eating buttocks into court and make them convince the judge they have a case. Also ask for sanctions. Do this a few times and they'll get the picture.

"Do it not, and all of you will die today."

Mel Gibson, Braveheart.