unemployednomore

CACH LLC vs. Me (update: dismissed w/o prejudice)

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Well, I'm looking to obtain more documents from them through my Meet and Confer (doubt they'll have them or they'll probably toss out some privileged bullcrap) so that I can confirm their ownership so my likely responses will include "defendant is still undergoing discovery and cannot confirm at this time."

Although my defense is that they lack standing to sue on this particular [alleged] debt, so it wouldn't matter either way if I was to admit or deny their allegations regarding my [supposed] owing of this debt. They don't have standing to sue me on this debt in the first place as they have not proven ownership of the debt.

Also, I'm fairly certain that it doesn't matter that the [alleged] account started out as Providian, was bought by WaMu and was eventually rebranded Chase. By not mattering, I mean that it's not a defense to suggest that "well this wasn't even a WaMu card when I opened it!"

Although I'm still scratching my head as to how they could include instructions for 13 interrogatories and yet only ask me 12 questions. Such noobs.

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Although my defense is that they lack standing to sue on this particular [alleged] debt, so it wouldn't matter either way if I was to admit or deny their allegations regarding my [supposed] owing of this debt. They don't have standing to sue me on this debt in the first place as they have not proven ownership of the debt.

The point is that that there are certain requests that you can deny. There are others for which you truly don't have sufficient information. Take advantage of that fact.

Also, I'm fairly certain that it doesn't matter that the [alleged] account started out as Providian, was bought by WaMu and was eventually rebranded Chase. By not mattering, I mean that it's not a defense to suggest that "well this wasn't even a WaMu card when I opened it!"

If the account was opened with Providian, you're still able to honestly deny that you opened the account with WAMU. Again, use it.

Does the JDB claim to be an assignee of WAMU or Chase? (I'm hoping they claimed to be an assignee of WAMU)

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The point is that that there are certain requests that you can deny. There are others for which you truly don't have sufficient information. Take advantage of that fact.

If the account was opened with Providian, you're still able to honestly deny that you opened the account with WAMU. Again, use it.

Does the JDB claim to be an assignee of WAMU or Chase? (I'm hoping they claimed to be an assignee of WAMU)

I'll definitely look into denying everything I can within reason.

They say I opened it with WaMu and they bought it from Chase (the illegible Bill of Sale has Chase info on it).

One part of the Requests for Admission that I don't understand is why they want admission of my receipt of a copy of the card agreement from 2005.

If I want to be particularly terse, there are multiple ways of reading the following statements:

"You received a copy of the Cardmember Agreement attached to this Request for Admissions as Exhibit 1."

Now, are they asking that I got a copy of that agreement outside of their having sent it to me within the BOP response and the Admissions packet? As in 2005? Or are they asking if I received the agreement that they themselves sent inside the actual Admissions packet? (and if it is the latter - why would the ask for my admission that they sent along a Cardmember Agreement within their own materials? What difference does my admit or denial make here?)

Additionally, the statement:

"You received the letter attached to this Request for Admissions as Exhibit 2."

Okay, so does this mean they want me to admit that they stuck a copy of this letter attached to the Admissions packet today? Like.... who cares? I don't see how their confirmation that I received this letter inside my packet today has anything to do with their case.

Or are they asking whether I received this letter in the past at some point? Because they're not specifying that.

Badly worded. Is that a defense? I wonder who wrote these. I can interpret them many ways.

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The best thing to do with an unintelligible question is to give an unintelligible response, which is more fun than objecting. They want to establish that you got the cardholder agreement when you got the card so they can hang you out to dry with all the garbage in the agreement. However, they didn't specify when.

"You received a copy of the Cardmember Agreement attached to this Request for Admissions as Exhibit 1."

Admitted to the extent that there was indeed a copy of the Cardmember Agreement attached to this Request for Admissions as Exhibit 1.

Same answer for ther stupid letter. Too bad if they don't like your answer, they wrote the question, not you. That WAMU / Chase fiasco was a real mess, they lost hundreds of thousands of mortgage notes trucking them to their storage depot in Mexico. I've heard they lost a lot of the credit card records too. You should hit them with discovery, that may win this for you.

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 subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

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I doubt you could call her as a witness, she has no connection to this case. It would be a stretch to even try to use her as an expert witness, that probably would not fly either. Her case was about wrongful termination. You could go to the court where the case was heard and request copies of her affidavit etc., but I doubt it would be admitted as evidence. You would have to specifically charge the creditor with the offenses she stated in her affidavit. You'd have a hard time using this as evidence. You have to prove your own charges, not somebody else's.

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All right. These would be the answers I devised. Going with the idea that they do not have the correct name of the original bank with whom I opened the [alleged] account.

1. You received a credit card from WASHINGTON MUTUAL BANK on or about 8/15/2001.

Denied.

2. You used the credit card received for extensions of credit such as merchandise purchases and cash advances.

Denied. Preceeding answer precludes an affirmation of this statement.

3. You received statements periodically from WASHINGTON MUTUAL BANK showing activity on the Account such as charges made to the Account and payments credited to the Account.

Same as above.

4. You were charged interest on any balance which remained owing on the Account after your payments.

Same as above.

5. You did not dispute in writing any of the charges on the Account.

Same as above.

6. You made your last payment on the Account on or about 10/18/2010.

Same as above.

7. After you made your last payment on the Account there was still a balance owing on the Account in the sum of $11,XXX.XX.

Same as above.

8. You did not pay the remaining balance of $11,XXX.XX on the Account.

Same as above.

9. You are not entitled to a credit against the balance due on the Account.

Same as above.

10. You are the only person responsible for payment of the balance due on the Account.

Same as above.

11. You received a copy of the Cardmember Agreement attached to this Request for Admissions as Exhibit 1.

ADMIT. Plaintiff sent above referenced Cardmember Agreement attached to this Request for Admissions, received by Defendant on 14-July-2012. Second copy was also received previously as part of Plaintiff's response to Defendant's Bill of Particulars received 13-July-2012.

12. You received the letter attached to this Request for Admissions as Exhibit 2.

ADMIT. Plaintiff sent above referenced Letter attached to this Request for Admissions, received by Defendant on 14-July-2012.

For the Requests for Documents, they are asking for documentary support regarding my affirmative defenses. Given I would ostensibly obtain such evidence from the Plaintiff as they are the ones in possession of the documents which would prove their standing (I am arguing lack of standing alongside a general denial), such documents would not be in the Defendant's possession.

So there are two Requests for Documents - one for proof of my general denial and another for proof of my affirmation of the Plaintiff's lack of standing.

As an aside, I am absolutely sure I don't have any documents (I have a rather Spartan lifestyle and it's not as if they would ever become available). Therefore I constructed this response:

Defendant is not in possession of materials requested and is reasonably certain such documents do not reside in her possession. However, should such documents become available, Defendant will furnish copies appropriately.

The only issue I see is that I'm not "supporting" my General Denial and Lack of Standing defenses with any documents. Any suggestions here? Do I need to go on with a bit about "such documentary support regarding Defendant's affirmative defenses exists in fact from the lack of such documents currently in the Plaintiff's possession. Discovery is ongoing regarding Plaintiff's alleged possession of such documents."

Seems to go on a bit. But I can make things excessively snooty if necessary.

Also, is this idea regarding my denial of each of their RFA based on the fact that the [alleged] account was not a Washington Mutual account when it was opened going to fly with the court?

I really don't want to sound as though I'm being purposefully snarky, although I could argue their questions are either vague and/or obstruse and/or evidence of their lack of evidence regarding ownership of [alleged] account.

Edited to add: I'm reasonable certain they have a specific date regarding the application of the [alleged] account only through their inspection of my credit report.

Edited again to add: Also, considering my responses further: would the admittance or denial even matter without the Plaintiff's proof of standing anyway?

Edited by unemployednomore

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All of your answers are predicated on one issue, whether or not WAMU issued you a credit card. I seem to recall this being Providian. WAMU bought them in 2005 and operated them as a subsidiary. Technically, your answers are correct. However, I don't know how the court will view such a technicality. Especially if replacement cards said WAMU or eventually Chase. It's curable, they'll just resend the discovery with the correct name.

As for special defenses, you just learned what they are about. You have to prove them. The only thing you can do in response to their question is to say that you have no documentation at this time, but will provide it as it becomes available through discovery.

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All of your answers are predicated on one issue, whether or not WAMU issued you a credit card. I seem to recall this being Providian. WAMU bought them in 2005 and operated them as a subsidiary. Technically, your answers are correct. However, I don't know how the court will view such a technicality. Especially if replacement cards said WAMU or eventually Chase. It's curable, they'll just resend the discovery with the correct name.

Yes, I'm just not certain I can realistically take such a stance even though it seems tempting to do so. It just seems as though this is a minor technicality that doesn't mean a lot in the scheme of things.

I'm still thinking that it won't matter whether I admit if the account is mine since they have to prove that they do indeed own it.

As for special defenses, you just learned what they are about. You have to prove them. The only thing you can do in response to their question is to say that you have no documentation at this time, but will provide it as it becomes available through discovery.

Yes, I'll utilize this, thank you.

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Considering this is a JDB, I would say go for it and torture them. You are on solid legal grounds, albeit technical. Then again, technicalities win cases.

From Drazen Lumber Co. v. Casner, 156 Conn. 401 - Conn: Supreme Court 1968 “A fact is not admitted or undisputed merely because it has not been contradicted. The question of credibility is for the trier." Taylor v. Taylor, 154 Conn. 340, 341, 225 A.2d 196; Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430.

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An odd question:

I'm working my way through the POD for them and was looking at the POD I was sent by the plaintiff and they have "August 17, 2012" printed in the time description on the front page (within the general information about the case).

I didn't notice this before, but are you supposed to put the date a month out (like the due date?) I thought it should be dated when you sent it off, but that doesn't seem to be what they did here.

The date they have listed is 17-August-2012.

Should I date my POD a month in advance as well?

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in my case they made errors like this ALL the time. Keep documenting them, they may come in handy later!

They also put instructions for 13 interrogatories and only asked 12.

lols.

But am I correct in assuming the present date (the date I send off the POD) is the date I should include on the front of the pleading paper? And not a month in advance?

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Put the correct date on your papers. They probably made a typo, this is irrelevant. Try these on them, they'll love you for this.

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 subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

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Response to their Request for Production of Documents:

Defendant, Unemployednomore ("Defendant") has not yet completed investigation of the facts relating to this case, has not completed discovery and has not completed its preparation for trial. Accordingly, the following responses are based upon information known at this time and are given without prejudice to Defendant's rights to produce subsequently discovered evidence and facts, and to add to, modify or otherwise change or amend the responses herein.

Continued on Page 2.

Request No. 1:

Every document which supports the general denial alleged in your Answer.

Response to Request No. 1:

After a diligent search and reasonable inquiry, defendant has none of the requested documents. Per the rules of procedure, defendant reserves the right to amend should such documents become available.

Request No. 2:

Every document which supports the affirmative defenses alleged in your Answer.

Response to Request No. 2:

After a diligent search and reasonable inquiry, defendant has none of the requested Documents. Per the rules of procedure, defendant reserves the right to amend should such documents become available.

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Response to their Requests for Admission

Request No. 1: Your received a credit card from WASHINGTON MUTUAL BANK on or about [Date].

Response to Request No. 1: DENIED. Defendant lacks sufficient information and belief in order to admit or deny this request and on that basis denies same.

Request No. 2: You used the credit card received for extensions of credit such as merchandise purchase and cash advances.

Response to Request No. 2: DENIED. Defendant lacks sufficient information and belief in order to admit or deny this request and on that basis denies same.

etc etc, same on the rest.

Edited by unemployednomore

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My Requests for Admission to Plaintiff:

ADMIT THAT EACH OF THE FOLLOWING FACTS IS TRUE:

1. Admit that Plaintiff has not provided Defendant with a copy of a contract signed by Defendant.

2. Admit that the Plaintiff has not provided Defendant with copies of Bills of Sale establishing its ownership of the Account at the center of its Complaint.

3. Admit that Plaintiff has not provided a complete accounting of the amount it is claiming.

4. Admit that there were no prior transactions between Plaintiff and Defendant.

5. Admit that Plaintiff is not a proper party to this action.

Edited by unemployednomore

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Responses to their Special Interrogatories:

(no idea if these are proper. Struggling with what to say for these)

Pursuant to California Code of Civil Procedure § 2033.010 et seq., Defendant UNEMPLOYEDNOMORE, hereby responds to Plaintiff CACH, LLC., in the above case regarding Plaintiff's Special Interrogatories Set One (1).

Continued on Page 2.

RESPONSES TO SPECIAL INTERROGATORIES

Special Interrogatory No. 1: If YOUR response to Request for admission No. 1 served concurrently with these Special Interrogatories was anything other than a complete admissions state each fact upon which you base YOUR denial.

Response to Special Interrogatory No. 1: OBJECTION. This discovery request as phrased is argumentative. It requires the adoption of an assumption, which is improper.

Special Interrogatory No. 2: If YOUR response to Request for admission No. 2 served concurrently with these Special Interrogatories was anything other than a complete admissions state each fact upon which you base YOUR denial.

Response to Special Interrogatory No. 2: OBJECTION. This discovery request as phrased is argumentative. It requires the adoption of an assumption, which is improper.

etc. etc. etc.

Edited by unemployednomore

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RESPONSES TO INTERROGATORIES SET ONE (1)

Interrogatory No. 1: State your name, any other names by which you have been known, and your ADDRESS.

Response to Interrogatory No. 1: OBJECTION. This interrogatory seeks information which is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Further objection is made on the grounds that this interrogatory invades Responding Party's right of privacy.

Interrogatory No. 2: State each residence ADDRESS for the last five years and the dates you lived at each ADDRESS.

Response to Interrogatory No. 2: OBJECTION. This interrogatory seeks information which is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Further objection is made on the grounds that this interrogatory invades Responding Party's right of privacy.

Interrogatory No. 3: State the name, ADDRESS, and telephone number of each employer you have had over the past five years and the dates you worked for each.

Response to Interrogatory No. 3: OBJECTION. Irrelevant. This interrogatory is irrelevant to the subject matter of this matter and the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Further objection is made on the grounds that this interrogatory invades Responding Party's right of privacy.

Interrogatory No. 4: State in detail the facts upon which you base your contention that you are not responsible, in whole or in part, for Plaintiff's damages.

Response to Interrogatory No. 4: OBJECTION. Argumentative and immaterial. No such contention has been made at this time and therefore Plaintiff's request is improper and lacks foundation.

Interrogatory No. 5: Identify each agreement excused and state why performance was excused.

Response to Interrogatory No. 5: OBJECTION. Defendant objects generally to the overly broad, non specific nature of this request.

Interrogatory No. 6: Identify each unenforceable agreement and state the facts upon which your answer is based.

Response to Interrogatory No. 6: OBJECTION. Defendant objects generally to the overly broad, non specific nature of this request.

I would like to raise some sort of objection due to standing regarding Interrogatory No. 4, but I'm not sure whether any such official language exists.

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Assuming the JDB doesn't reply to my M&C (they have until tomorrow), I wonder if it would be better to send a second along (just to make it appear as though I'm really trying to find a resolution) or go straight to filing something to preclude additional evidence from coming in?

I'd like to see what they give me for discovery before I hit the court up for stuff.

Also, does anyone know if there's a proper type of response I can make to this Interrogatory:

Interrogatory No. 4: State in detail the facts upon which you base your contention that you are not responsible, in whole or in part, for Plaintiff's damages.

It seems like a repetitive question since I already declared in my General Denial that they "lacked standing," but is this something upon which I need to expand? Is my response (listed in the post above) sufficient?

I'm approaching it from the idea that: it's *their* contention that I owe them money. I've simply responded to it and so their assumption it's my contention isn't proper.

Or am I going too far with this reasoning?

Also, looking at all my responses to their various efforts at discovery, anyone have any comment on the validity of my answers? I spent a few days really thinking about the proper responses and although it looks like I just typed up the same thing over and over, it did take some consideration as to which type of objection or denial I was going for.

Would like some critiques on these answers if anyone has the inclination. :???:

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The denials don't look very good. You deny, then you explain yourself, which isn't necessary. The explanation just muddies the waters. Also, your denials and explanations don't address the substance of the requests. You are denying number 8, which is the same as saying you paid the remaining balance. I think you'll get a bunch of objections to these responses. I don't think you can convince a judge that giving your name and address constitutes an invasion of privacy. They are just trying to establish where you lived as proof that you received billing statements.

The problem with the way you answered is that they next ask you to explain all the denials. You said you don't have enough information, so how did you make the denial?

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The denials don't look very good. You deny, then you explain yourself, which isn't necessary. The explanation just muddies the waters. Also, your denials and explanations don't address the substance of the requests. You are denying number 8, which is the same as saying you paid the remaining balance. I think you'll get a bunch of objections to these responses. I don't think you can convince a judge that giving your name and address constitutes an invasion of privacy. They are just trying to establish where you lived as proof that you received billing statements.

The problem with the way you answered is that they next ask you to explain all the denials. You said you don't have enough information, so how did you make the denial?

I was under the impression that if you state a denial, you had to explain why.

(e) If the defendant has no information or belief upon the subject

sufficient to enable him or her to answer an allegation of the

complaint, he or she may so state in his or her answer and place his

or her denial on that ground.

I don't think I can simply state "denied." But someone correct me if I'm wrong.

I can see what you mean about #8 though.

What else would I say regarding the special interrogatories?

From what I've read on this board, any sort of admission AT ALL leads to swift judgment. Hence, my answers to these various pieces of discovery.

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I guess my basic question would be: how do I complete questions where the answers rely on the evidence that may or may not be in the possession of the Plaintiff?

I understand that you have to "defend" affirmative defenses, but my affirmative defense is based on the Plaintiff's standing and not what I have in my personal possession.

It's not like I have a documentary evidence of such a defense. The entire lack of actual documentation *is* my defense.

/confused

I am out-right denying the first RFA - "You received a credit card from WASHINGTON MUTUAL BANK on or about [date]." and all my answers after that are essentially based on this premise. Continued questions on a faulty premise can't be answered.

Is there any reason why I shouldn't explain the denials with specifics?

Like, "Plaintiff has not provided evidence of ownership of such debt and as a consequence, such questions are improper" or something?

It just seems like a catch-22.

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All right, I've done some thinking here and have come up with an alternate strategy. (sorry for the post spam here)

Within their definitions section, they suggest:

1. "Account" refers to Account Number XXXXXXXXXXXXXXXX with WASHINGTON MUTUAL BANK which changed after account was charged off to account Number XXXXXXXXXXXXXXXX

(the account numbers are the same, I simply redacted them for the purposes of this post)

Now, all of their questions stem from their first Request for Admission to me:

1. You received a credit card from WASHINGTON MUTUAL BANK on or about [DATE].

So, could I object to the relevancy of this statement on the basis that it calls for an answer based on facts not in evidence?

The thing is: I literally did not receive a card from Washington Mutual in 2001. If they had the full history of the account, they would know this.

This is all very circular to me, really. Trying to find some sort of legal response here that isn't going to be bad for me is a real pain.

/kicks pebble

I wonder if this would fly (based on their horridly written Definitions):

Request No. 1:

You received a credit card from WASHINGTON MUTUAL BANK on or about 8/15/2001.

Response to Request No. 1:

OBJECTION. Irrelevant. Plaintiff is not WASHINGTON MUTUAL.

Or am I to assume based on other documents sent during the case that the Plaintiff is the assignee of the alleged debt?

I mean, Washington Mutual didn't even charge off the account. It was Chase...

Maybe I could say something about confusing Definitions? Does anything like that even exist?

It seems as though they're asking me questions based off of their unproven statements. Meaning my responses would be based on facts not in evidence.

Then the rest of my statements would be something like:

Request No. 2:

You used the credit card received for extensions of credit such as merchandise purchase and cash advances.

Response to Request No. 2:

Objection. Based on Defense Response to Request No. 1, Defendant objects to this Request for Admission as irrelevant. In addition, further Objection is made as Request calls for an Admission or Denial based upon speculation. Furthermore, Defense Objects as Request lacks foundation and assumes facts not in evidence.

Edited by unemployednomore

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