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Motion to Compel or Limine **Help Please See CA Reponse**


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*** Question 1): Do I have enough ground to file Motion to Compel or Limine base upon the current situation ***

*** I requested these four items in discovery ***

1. Original application for credit.

2. Documents of alleged payments (checks, etc...).

3. Document complete accounting of the amount claimed due.

4. Documents with copies of charges slips showing defendant use account.

*** CA responded with the following answers ****

1) Plaintiff objects to this request on the grounds that it is vague and ambiguous. The account originated on or about April 11, 2009. Plaintiff is not required to retain copies of the application for that many years per Regulation Z. In accordance with Regulation Z, Truth in Lending, Plaintiff is required to keep applications on open ended accounts for a period of 24 After that, the applications may be destroyed.

2) Plaintiff objects to this demand on the grounds that it is overbroad and unduly burdensome. Plaintiff further objects to this request on the grounds

that it is vague and ambiguous in that it alleges an assignment. Without waiving such objections, Plaintiff will comply by producing copies of available payments for the subject account as can be located after a reasonable and diligent search. Discovery and investigation are continuing and Plaintiff reserves the right to supplement this response.

3) Response to Demand No.6: Plaintiff objects to this request on the grounds that it is overbroad and unduly burdensome and oppressive. Plaintiff further objects to this request to the extent that it seeks confidential, proprietary and/or trade secret information. Plaintiff further objects to this request on the grounds that it seeks information that is privileged and protected from discovery under the attorney client privilege and attorney work product privilege. Plaintiff further objects to this request on the grounds that Plaintiff has not requested attorney's fees. Without waiving such objections, plaintiff will comply by presently available monthly statements as may be located after a reasonable and diligent search. Discovery and investigation are continuing and plaintiff reserves the right to

supplement this response.

4) Plaintiff objects to this request on the grounds that it is overbroad and unduly burdensome and oppressive. Without waiving such objections,

Plaintiff is unable to comply with this request, as charge slips are not in Plaintiffs possession, custody, or control. Those are generally maintained by the individual merchants. Discovery and investigation are continuing.

*** I follow up with this Meet & Confer Letter ***

On April 2nd, 2012, I am in receipt of your responses and objections to my requests for discovery. Although some of your objections are well grounded in the law, the remainder as set forth herein is, in my opinion, insufficient to the extent that they do not adequately address the requests. Specifically, I would request more definitive answers to request for production of documents numbered 1, 2, 6, and 13.

Furthermore, your frequent use of Regulation Z as an objection is affirmative misrepresentations. This regulation covers disclosures under Truth in Lending. This statute is for compliance with Truth in Lending. All it says is that Citibank have to maintain apps for 2 years for compliance through audits. There is no mandatory destruction, Citibank or any lender can keep records as long as they want.

It is my sincere intention to settle this matter amicably without the need for judicial intervention. In the event I do not receive your the responses, without objections, within 10 days from the date of this letter I will have no choice but to file motions to compel with the Court and ask for attorney fees and sanctions for your failure to comply.

*** And then today, CA responded with this letter ***

I am in receipt of your letter dated May 7, 2012 regarding our client's discovery responses. Thank you for taking the time to respond.

You state that some of our objections are well grounded, but that in your opinion, the remainder are insufficient. Since you do not allege which objections may be insufficient, we are not able to examine the sufficiency or appropriateness of any objection stated. And all objections were made timely, so we are under no obligation, statutory or otherwise, to waive any objection.

Next, you state that our responses to Demand for Production Numbers 1, 2, 6, and 13 are deficient. But you do not assert any reason, legal or factual, why the responses are defective. Once again, we cannot begin to examine the sufficiency of the subject responses without any specific input from you regarding our responses. Thus, we cannot provide further responses until

we receive a further meet and confer letter from you. Further, you state that our reference to Regulation Z is an affirmative misrepresentation.

Nowhere in our response do we ever state that Citibank is required to destroy any documents, but we state that after 24 months, "the applications may be destroyed." Please explain further your position so that I may better respond as to how we have made affirmative representations.

Thank you for reading and suggestions

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*** Are they trying to buy some time to get the document needed for trial and not answering these simple discovery request. ***

*** I thought Meet & Confer letter follow up to Discovery request was suppose to be short and simple, complete my request for document A, B, C, and D or else motion to compel. Am I suppose to explain detail with case law??? ***

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*** I am sorry for asking too many questions at once, but I just want to proceed with cautions, I know it an up hill battle against OC. I know everyone else in the forum kind of give up on me already, I appreciate you reallyyyy....I already spend hours hours reading up the material in the forum, getting clear and clear and what going on with my situation...

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*** YES, AND THEY COMPLETELY IGNORE THE BOP REQUEST AND DEADLINE

ALL I GOT FROM DISCOVERY SO FAR AND IT BEEN 45 DAYS ALREADY ARE CC STATEMENT FROM ZERO TO $XXXX AMOUNT IN LAWSUIT ***

I was going to suggest that you write another meet and confer letter because the one you sent was not clear. Then I saw the above post saying it has been 45 days. Do you mean 45 days since the plaintiff served its written response to your discovery? The deadline to move to compel is 45 days after service of the response. It is extended by 5 days if served by mail.

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Its been 45 days since first discovery serve to them. Trial date is July 30, 2012. I still have time to file motion right? Is there a link or template to following, I thought it was suppose to be simple, since I am asking them to fullfill request for document, not answer any question. And what about the BOP Request ignored.

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Its been 45 days since first discovery serve to them. Trial date is July 30, 2012. I still have time to file motion right? Is there a link or template to following, I thought it was suppose to be simple, since I am asking them to fullfill request for document, not answer any question. And what about the BOP Request ignored.

BOP is much easier to move to compel. And there is no time limit. You should write them a letter about their BOP before filing a motion, even though it is not required. Judges like to see that you tried to get the plaintiff to comply before filing a motion.

Here is a link that explains about motions to compel BOPs: http://www.creditinfocenter.com/forums/there-lawyer-house/310833-anyone-california-know-what-pos-use-when-serving-answer-complaint.html#post1135453

And here is one that explains the difference between a motion to compel BOP and a motion to compel written discovery: http://www.creditinfocenter.com/forums/there-lawyer-house/309078-motions-compel-bop-vs-written-discovery-cal.html

Look at the proof of service on plaintiff's responses to your discovery. THat will tell you the deadline to file a motion to compel per the time limits I gave you above.

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Dial,

I have been where you are in the big discovery game, and for me it isn't worth the time and effort to propound discovery on any of the larger CA's.

I do belive the BOP is a good strategy early on, and as Calawyer posted, you can apparently still use it now.

For me with a trial date approaching you are just now arriving in the Motion for Summary Judgement window. I belive by Civil Procedure 75 days prior to trial date a party can file for Summary Judgement.

I would expect this to happen. These motions are very difficult to respond to, so I would start preparing for this, versus spending any additional time on discovery.

If/when they file for SJ they will attach a good number of statements as proof of the debt.

Best of Luck

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*** You probably right I will prepare for SJ, I think they are just waiting for my responses to their discovery which is due June 2, 2012, then hit me with SJ. Can you take a look at my discovery responses from my thread I posted today to see if I am missing anything. ***

*** This is like cat and mouse battle, I know OC is hard to beat, please correct me if I am wrong that the following plaintiff burden of proofs:

1) I applied the account with them

2) I use the account with them

3) I received statements from them

4) I make payments to them

5) I did not object to the statements

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Plaintiff's response to item no. 1 is nonresponsive. If item no. 1 was made in a request for produciton of documents and Plaintiff does NOT comply, then Plaintiff must state whether the requested document never existed, has been destroyed, has been lost, misplace, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. See CCP 2031.230.

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*** Are they trying to buy some time to get the document needed for trial and not answering these simple discovery request. ***

*** I thought Meet & Confer letter follow up to Discovery request was suppose to be short and simple, complete my request for document A, B, C, and D or else motion to compel. Am I suppose to explain detail with case law??? ***

most "records are stored in legacy(old azz reel tape) formats and takes a lot of time and money for them to get. They don't waste the time to get it unless you press for it.

on the down side, if you press too hard you just might get what you ask for a bunch of inadmissible stuff that the court will use as overwhelming proof that yes an account existed, that it is yours and establishes their prima facie case.

It is best in this situation to give them enough rope to hang themselves. They did not respond to your BOP. you can set them up for evidence exclusion. If you conduct other discovery RFPD you basically circumvent all the good things the BOP does for you.

If they have account stated COA then the discovery you have done now is sufficient enough to show the court you tried your Pro per best. Pushing for more paper will only weaken your case at this point.

Now is the time for form or special interrogatories and admissions. They cannot bring at trial any thing they haven't given you so pressing them will just get you a bunch of paper you have to deal with because it will be you who has to get it excluded.

If you have diligently persued discovery then you will be covered at trial when you say that you gave them the oppurtunity to produce and they didn't because they cannot.

Hope that breaks it down for everyone. If you are pusuing discovery to cause them pain you may be shooting your own foot.

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Plaintiff's response to item no. 1 is nonresponsive. If item no. 1 was made in a request for produciton of documents and Plaintiff does NOT comply, then Plaintiff must state whether the requested document never existed, has been destroyed, has been lost, misplace, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. See CCP 2031.230.

If they "step into the shoes" of the big bank they would have to have all the documents if a sueable contriversy arose way back when

that is an avenue you can take to inflict pain.

Here is some info about the spoilation issue.

http://california-discovery-law.com/spoliation.pdf

lets discuss how the OP can use this at trial or in a Motion in Limine. This could be a thing that makes the P tuck tail and run.

Edited by Seadragon
adding spoilation info
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Keep in mind just because there is a regulation that "allows" somebody to destroy something or no longer retain, does not give them a free pass in court to not produce the document.

The law says they can or may, not that they shall.

Not apples to apples but you can change the facts and use the same arguments. This is how I argued it in a lawsuit.

) Under the FDCPA, there is not a “requirement” or a “right” for a debt collector to leave answering machine messages, mail letters to alleged debtors, validate the alleged debt or even attempt any method of debt collection against a consumer that allegedly owes a debt. The FDCPA “allows” such conduct but does not grant any such “right.” Conducting the business of a debt collector and/or a collection agency is a one-hundred percent voluntary action.

A debt collector whose conduct causes uncertainty is an assumption of risk that falls on the shoulders of whose voluntary conduct created the uncertainty.

If they try to use the excuse that there is a law or regulation that lets them destroy or not keep some piece of evidence, I'd use the above arguments. There is not much they can counter when they take a voluntary action and then complain because it puts them in a bind.

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*** After reading your post, should I hold off this next meet & confer letter? I am confused, because I am trying to proved that they don't have the application with my signature for this account because I never apply for it. Furthermore, who ever making the payments that is on the statement is sure not me and that is why I want to see these payments. ***

*** Now if I leave it alone and accept their run around answer, can they supplement these documents right before trial and make it admissible evidence, which leave me no time to challenge it ***

On May 17th 2012, I am in receipt of your rdesponses and objections to provide Demand for Production Set Number One: Numbers 1 and 2. Once again, I will make it as clear as possible. Please provide me with the following documents requested or specify that you do not have it so that we can preclude them from being heard at the trial.

1. Demand for Production Number 1: The original application for credit submitted by Defendant in connection with the creation of the Original Charge Account ending xxxx.

2. Demand for Production Number 2: Please produce ANY and ALL copies of checks made out to Plaintiff or original creditor for payment on alleged “Account” ending xxxx.

Answer to number 1, Plaintiff stated reference to Regulation Z which said Citibank had to maintain apps for 2 years for compliance through audits. My take is Citibank or any lender can keep records as long as they want. Please provide me with the documents requested or specify that you do not have it so that we can preclude them from being heard at the trial.

Answer to number 2, Plaintiff stated “Plaintiff will comply by producing copies of available payments for the subject account as can be located after a reasonable and diligent search”. I have given you 30 days to search already and another 10 days after that. That’s more than reasonable, now please provide me with the documents requested or specify that you do not have it so that we can preclude them from being heard at the trial.

In the event I do not receive your the responses within 7 days from the date of this letter I will have no choice but to file motions to compel with the Court and ask for attorney fees and sanctions for your failure to comply.

*** Thank you all for helping out, this forum is the best ... ***

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dial001, take a look at calawyer's question to you again regarding plaintiff's responses proof of service date to determine whether there is still time to file a motion to compel. You may not have time to send another meet and confer letter. If the deadline is approaching, you can request an extension from opposing counsel. They may not grant you an extension. Again, take a look at the exact deadline date.

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I serve discovery April 1, 2012, they responded May 1, 2012 with proof of service. The first letter sent out May 7, 2012 and they responded to first letter May 17, 2012. So I think there still time left, but the question is:

A) Should I Motion to Compel Now or

B) Sent another letter detail my request with 7 days deadline, then Motion to Compel or

C) Just wait until 30 prior to trial then Motion to Preclude all the questions and items requested with no responses or insufficient responses or

D) Do nothing and prepare for MSJ and trial which is July 30, 2012.

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*** My request for BOP was responded with 6 months statement from zero balance to the current balance they are suing for. So I read in the forum that is sufficient enough for judge in regard to BOP request. ***

*** The question I have now is why they still sending me settlement letter but the balance amount is like $500 more than the amount they are suing for? Is that legal for them to do that and they violating some kind of rules, seem like they keep raising the balance amount with every settlement offer. ***

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*** The question I have now is why they still sending me settlement letter but the balance amount is like $500 more than the amount they are suing for? Is that legal for them to do that and they violating some kind of rules, seem like they keep raising the balance amount with every settlement offer. ***

The balance changes due to the fact that interest continues to accrue on the alleged debt...@ 25-30%, it adds up fast.

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I suggest doing choice B) send letter and then file motion to compel.

Also, pay attention to discovery cutoff date (30 days before initial trial date) and last date of when motions can be heard by the court (15 days before initial trial date). See CCP 2024.020. Pay attention to the service dates for the motion (16 court days plus additional days based on method of service). The court may not have available hearing dates for the motion to compel.

If you plan on filing a motion to compel, then I suggest you to contact the court and reserve a hearing date and then work the dates backwards to find out when the last day to serve and file the motion. Make sure it is before the motion to compel deadline.

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