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SUED BY ZWICKER FOR DISCOVER, PLEASE REVIEW


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1. Who is the named plaintiff in the suit?

DISCOVER BANK

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

ZWICKER

3. How much are you being sued for?

$9K

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

PLAINTIFF

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

SERVED

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

NOTICE ON DOOR

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?

DUNNING LETTER

9. What state and county do you live in?

TEXAS

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

NOT SOL

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

NOT SOL

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

DISCOVERY PHASE

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?

SUMMONS ANSWERED, CURRENTLY IN DISCOVERY PHASE

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

GENERIC CC AGREEMENT

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

INTERROGATORIES.

1. Identify the person answering these interrogatories:

ME, MYSELF AND I

2. Identify any address at which you resided or received mail for the twenty-four (24) months prior to august 31, 2011.

HERE AND THERE

3. Identify any checking or other banking account from which you made payments regarding the account at issue in this litigation for the twenty-four (24) months prior to august 31, 2011.

OBJECTION.

4. If you have denied or failed to admit any of the requests for admissions propounded to you by plaintiff, state with regard to each request for admission, every reason, cause, or defense you have or claim for denying for failing to admit the genuiness of the request for admission.

OBJECTION. OVERLY BURDENSOME. (?)

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

ADMISSIONS.

1. You are a resident of XXX County, Texas.

ADMIT

2. You resided in XXX County, Texas at the time of the filing of the suit.

ADMIT

3. You and Plaintiff entered into the Agreement.

DENY

4. Plaintiff extended you credit.

DENY

5. Using the credit exeded by Plaintiff, you made purchases from third parties.

DENY

6. Under the Agreement, you became bound to pay Plaintiff the amounts of any

purchases you made, plus additional charges.

DENY

7. The Agreement provides that you may obeject, in writing and withing sixty(60) days of notice of the charge, to any disputed charges under the Agreement.

DENY

8. Failure to object in writing results in a presumption that the debt is valid.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

9. You have failed to repay Plaintiff.

DENY

10. The unpaid balance under the Agreement became due on or before August 31, 2011.

DENY

11. The current balance due, owing, and unpaid under the Agreement, after allowing all just and lawful payments, credits and offsets, totaled not less than $9K.

DENY

12. The terms of the Agreement control the accrual of additional charges, interest, and other amounts.

DENY

13. Plaintiff has made demand upon you for payment of the balance due under the Agreement, but you have failed and refused to pay the balance.

DENY

14. Plaintiff has retained the undersigned law firm to collect the balance owing under the Agreement, and has agreed to pay it a reasonable fee for its services.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

15. Plaintiff is entitled to recover its attorney fees in accordance with the terms of the Agreement.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

16. All conditions precedent to Plaintiff's right to bring suit on its claims have been performed or have occurred.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

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

REQUEST FOR PRODUCTION.

(This area confuses me. they are asking me to produce documents that helps them with their case? isn't the burden of proof on them??)

1. Any account statement from a banking account identified in response to interrogatory number 3 for the twenty-four (24) months prior to august 31, 2011.

OBJECTION (?)

2. Any document reflecting any payments made to plaintiff for the twenty-fourt (24) months prior to august 31, 2011.

3. Any receipt from any third-party from which you purchased goods or services using the credit card account at issue in this litigation.

4. All documents and tangible things that discuss, relate to, or refer to the account(s) that is the subject matter of this litigation.

5. All documents and tangible things that discuss, relate to, or refer to any communication between you and plaintiff regarding the account(s) that is the subject matter of this litigation.

6. All documents and tangible things that discuss, relate to, or refer to any meeting, telephonic or otherwise, between you and plaintiff regarding the account(s) that is the subject matter of this litigation.

7. All contracts or agreements entered into between you and plaintiff pertaining to the claims assereted in this litigation.

8. All documents and tangible things that discuss, relate to, or refer to communications, including but not limited to correspondence, sent by you to plaintiff or any nonprivileged third party that discuss, relate to, or refer to account(s) that is the subject matter of this litigation.

9. All documents and tangible things that discuss, relate to, or refer to any and all cliams, countercliams, allegations, and defenses you may have against plaintiff.

10. All documents and tangible things written or reviewed by any testifying expert or by any consulting expert whose mental impressions or opinons have been reviewed by a testifying expert, in connection with this case.

11. Any statements obtained from any person pertaining to the claims, counterclaims, allegations, and defenses asserted in this lawsuit.

12. Any documents and tangible things describing, summarizing, or recording a history of payments, credits, deductions, interest charged, interest paid, principal paid, and charges pertaining to plaintiff's account(s) with you.

13. Any documents and tangible things that discuss, relate to, or refer to each and every fact, reason, allegation, or theory under which you deny that you are liable to plaintiff for the cliams that are the subject of this litigation.

14. All documents and tangible things that discuss, relate to, or refer to the specific dollar amounts that you cliam to be indebted to plaintiff and the method of calculating those amounts.

15. All documents and tangible things that discuss, relate to, or refer to any basis for asserting that the amounts charges for items purchased from plaintiff were not the usual and customary prices.

16. All documents that discuss, relate to, or refer to any basis for asserting that the amounts charged for items purchased from plaintiff were not the reasonable prices.

17. If you are claiming damges, produce all documents and tangible things that you relied on or used to support each element of your claim, including the source of your figures for arriving at the amount and how you arrived at that amount.

18. All documents that discuss, relate to, or refer to any credit insurance program, if any, and the terms of such program.

19. All documents relating to the parties' performance of the written contract between defendant and plaintiff.

20. Any electronic data, data compilations, or printed reports thereof that pertain to your account(s) balance, or that otherwise indicate or reflect use of the account(s) that is the subject of this litigation, including payments.

21. Any electronic data, data complations, or printed reports thereof that pertain to any software utilized by defendant that contains information pertaining to the account(s).

22. Any audio recording between defendant and plaintiff.

23. Any audio recordings between defendant and any third-party pertaining to the subject matter of this litigation.

Thanks

Edited by gottago
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You need to check Texas's rules of civil procedure regarding discovery to make sure that any advice in this thread is on the mark.

Your objections on the requests for admissions are not right.

For admission 8, they are asking you for a legal conclusion. I would either object based on that, then "without waiving said objection" deny, or I would simply just deny.

For admissions 14, 15 and 16, you don't object when you don't have the knowledge to truthfully admit or deny, you state that you don't have the knowledge and therefore must deny. "Defendant has insufficient knowledge to truthfully admit or deny, and therefore must deny" is the canned form of this. Seriously though, you are not privy to Discover's business dealings with other parties, and you really can't have knowledge of what they are asking.

Now then, the document requests are a huge cluster. I'm having a hard time even figuring out where to begin. Many of the requests are duplicitave, they're asking for a lot of stuff that they should have in their records, and they're also asking for stuff that your average person simply does not keep. Many of the requests are so overly broad as to put an undue burden on the defendant.

Your requests for admissions to them are way off base. Discover is not a debt collector nor is it a JDB. Those admissions are geared towards beating a JDB in a case where you have counterclaims, which is a far cry from being sued by an OC. If you send those, they are going to have a field day with you.

Edited by usagi555
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1. Who is the named plaintiff in the suit?

DISCOVER BANK

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

ZWICKER

3. How much are you being sued for?

$9K

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

PLAINTIFF

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

SERVED

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

NOTICE ON DOOR

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?

DUNNING LETTER

9. What state and county do you live in?

TEXAS

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

NOT SOL

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

NOT SOL

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

DISCOVERY PHASE

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?

SUMMONS ANSWERED, CURRENTLY IN DISCOVERY PHASE

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

GENERIC CC AGREEMENT

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

INTERROGATORIES.

1. Identify the person answering these interrogatories:

ME, MYSELF AND I

2. Identify any address at which you resided or received mail for the twenty-four (24) months prior to august 31, 2011.

HERE AND THERE

3. Identify any checking or other banking account from which you made payments regarding the account at issue in this litigation for the twenty-four (24) months prior to august 31, 2011.

OBJECTION.

4. If you have denied or failed to admit any of the requests for admissions propounded to you by plaintiff, state with regard to each request for admission, every reason, cause, or defense you have or claim for denying for failing to admit the genuiness of the request for admission.

OBJECTION. OVERLY BURDENSOME. (?)

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

ADMISSIONS.

1. You are a resident of XXX County, Texas.

ADMIT

2. You resided in XXX County, Texas at the time of the filing of the suit.

ADMIT

3. You and Plaintiff entered into the Agreement.

DENY

4. Plaintiff extended you credit.

DENY

5. Using the credit exeded by Plaintiff, you made purchases from third parties.

DENY

6. Under the Agreement, you became bound to pay Plaintiff the amounts of any

purchases you made, plus additional charges.

DENY

7. The Agreement provides that you may obeject, in writing and withing sixty(60) days of notice of the charge, to any disputed charges under the Agreement.

DENY

8. Failure to object in writing results in a presumption that the debt is valid.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

9. You have failed to repay Plaintiff.

DENY

10. The unpaid balance under the Agreement became due on or before August 31, 2011.

DENY

11. The current balance due, owing, and unpaid under the Agreement, after allowing all just and lawful payments, credits and offsets, totaled not less than $9K.

DENY

12. The terms of the Agreement control the accrual of additional charges, interest, and other amounts.

DENY

13. Plaintiff has made demand upon you for payment of the balance due under the Agreement, but you have failed and refused to pay the balance.

DENY

14. Plaintiff has retained the undersigned law firm to collect the balance owing under the Agreement, and has agreed to pay it a reasonable fee for its services.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

15. Plaintiff is entitled to recover its attorney fees in accordance with the terms of the Agreement.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

16. All conditions precedent to Plaintiff's right to bring suit on its claims have been performed or have occurred.

OBJECTION. DO NOT HAVE SUFFICIENT KNOWLEDGE IF THIS STATEMENT IS VALID

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

REQUEST FOR PRODUCTION.

(This area confuses me. they are asking me to produce documents that helps them with their case? isn't the burden of proof on them??)

1. Any account statement from a banking account identified in response to interrogatory number 3 for the twenty-four (24) months prior to august 31, 2011.

OBJECTION (?)

2. Any document reflecting any payments made to plaintiff for the twenty-fourt (24) months prior to august 31, 2011.

3. Any receipt from any third-party from which you purchased goods or services using the credit card account at issue in this litigation.

4. All documents and tangible things that discuss, relate to, or refer to the account(s) that is the subject matter of this litigation.

5. All documents and tangible things that discuss, relate to, or refer to any communication between you and plaintiff regarding the account(s) that is the subject matter of this litigation.

6. All documents and tangible things that discuss, relate to, or refer to any meeting, telephonic or otherwise, between you and plaintiff regarding the account(s) that is the subject matter of this litigation.

7. All contracts or agreements entered into between you and plaintiff pertaining to the claims assereted in this litigation.

8. All documents and tangible things that discuss, relate to, or refer to communications, including but not limited to correspondence, sent by you to plaintiff or any nonprivileged third party that discuss, relate to, or refer to account(s) that is the subject matter of this litigation.

9. All documents and tangible things that discuss, relate to, or refer to any and all cliams, countercliams, allegations, and defenses you may have against plaintiff.

10. All documents and tangible things written or reviewed by any testifying expert or by any consulting expert whose mental impressions or opinons have been reviewed by a testifying expert, in connection with this case.

11. Any statements obtained from any person pertaining to the claims, counterclaims, allegations, and defenses asserted in this lawsuit.

12. Any documents and tangible things describing, summarizing, or recording a history of payments, credits, deductions, interest charged, interest paid, principal paid, and charges pertaining to plaintiff's account(s) with you.

13. Any documents and tangible things that discuss, relate to, or refer to each and every fact, reason, allegation, or theory under which you deny that you are liable to plaintiff for the cliams that are the subject of this litigation.

14. All documents and tangible things that discuss, relate to, or refer to the specific dollar amounts that you cliam to be indebted to plaintiff and the method of calculating those amounts.

15. All documents and tangible things that discuss, relate to, or refer to any basis for asserting that the amounts charges for items purchased from plaintiff were not the usual and customary prices.

16. All documents that discuss, relate to, or refer to any basis for asserting that the amounts charged for items purchased from plaintiff were not the reasonable prices.

17. If you are claiming damges, produce all documents and tangible things that you relied on or used to support each element of your claim, including the source of your figures for arriving at the amount and how you arrived at that amount.

18. All documents that discuss, relate to, or refer to any credit insurance program, if any, and the terms of such program.

19. All documents relating to the parties' performance of the written contract between defendant and plaintiff.

20. Any electronic data, data compilations, or printed reports thereof that pertain to your account(s) balance, or that otherwise indicate or reflect use of the account(s) that is the subject of this litigation, including payments.

21. Any electronic data, data complations, or printed reports thereof that pertain to any software utilized by defendant that contains information pertaining to the account(s).

22. Any audio recording between defendant and plaintiff.

23. Any audio recordings between defendant and any third-party pertaining to the subject matter of this litigation.

Thanks

In terms of their Requests for admissions propounded to you, other than your name and residency, I would respond to all others with; Defendant states that after a reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit or deny this request. As to their requests for production, I would simply state I have no available records, if records do exist they should be in the custody of the Plaintiff. It is their job to (1) prove they currently own the debt if challenged, (2) provide evidence that a debt is due and owing, (3) provide evidence of a signed written agreement with evidence that all updates to the agreement were mailed to your residence, (4) provide evidence that they suffered damages.

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I would not send those admissions. You should send production of documents first. Then, if they fail to produce what you ask for, draft admissions for each document not produced. That way they have to admit or else contradict their own production of douments. Try these for production, yours won't fly.

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."

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Thanks for the replies, guys.

Actually for my answer to plaintiff's admission,

8. Failure to object in writing results in a presumption that the debt is valid.

Shouldn't this be ADMIT?

Because A) According to the Texas Rules of Civil Procedure, this statement is true. and B) If I blankly DENY this admission, don't I violate Texas Rules of Civil Procedure? and therefore waive my rights/break some laws?

Thanks.

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Nevermind, found it :

..."The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a

proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party

to admit or deny..."

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I think you are using requests that are more for a 3rd party or junk debt buyer. You are being sued by an original creditor. I would not ask a ton of those admissions. I would ask for the documents but not ask them to admit they don't have them, because they probably do.

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8. Failure to object in writing results in a presumption that the debt is valid.

Shouldn't this be ADMIT?

Only if the credit card agreement (the right one) attached as an exhibit clearly states this. You can always say you objected in writing, let them try to prove otherwise. Proof of delivery is the issue. They say they mailed statements and you received them because the post office didn't return them as undeliverable. You can make the same claim.

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ok to respond to the Plaintiff's Request for admissions, I am going to respond with:

OBJECTION. DEFENDANT HAS NO AVAILABLE RECORDS. FURTHER, IF RECORDS DO EXIST, THEY SHOULD BE IN THE CUSTODY OF THE PLAINTIFF. THE INFORMATION SOUGHT IS OVERBROAD AND UNDULY BURDENSOME.

on all but one of the requests.

"1. Any account statement from a banking account identified in response to interrogatory number 3 for the twenty-four (24) months prior to august 31, 2011.

with:

OBJECTION. PLAINTIFF ASKS FOR PERSONAL AND PRIVATE INFORMATION.

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Your objection to bank statements is improper. You should frame it as an objection based upon the fact that the plaintiff is requesting information which is only proper in post judgment proceedings. Since Plaintiff has obtained no such jugment, the request is improper. I know what they're going for, but they didn't state it in the request. Proof of payment. One element of account stated. Your admissions are way off base considering this is the OC. Denials are improper for most of these. Admissions are very tough with an OC. This is where they can get you. Some of these are objectionable, but in the long run they are not good for your case. They'll have enough evidence to make you look bad in court.

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The banking info is for account stated argument and just asking for past 24 months they will get.

As legal stated, admissions are tough for an OC. You could just deny if you wanted without comment, on the ones that ask about documents or records that you don't have.

Honestly, I think you are way over thinking this. They either have enough evidence to just destroy you in court or are so lacking in evidence they stand no chance. That is usually the way it goes with an OC. It's one extreme or another.

A JDB is just a whole different animal all together. A lot of your responses and requests are better suited for a JDB.

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