stormie

JDB attempts to answer my demand for discovery:

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Basically, after the court asked Midland to produce discovery on my behalf, all Midland did was send me a few copies of statements of credit cards, and a copy of a supposed bill of sale, which we have already discussed is not enough proof of evidence.

Anyway, here is the letter they wrote back after I had filed a motion to compel (for discovery) with sanctions:

~~~

Eric, Esq. an attorney duly admitted to the practice of law in all the Courts of the States of New York, hereby affirms pursuant to CPLR 2106 and under penalties of perjury that:

1. I am an associate attorney with the Law Offices of Cohen & Slamowitz, LLP, attorneys for MIDLAND FUNDING LLC, (hereinafter the "Plaintiff") herein, and as such I am fully familiar with the facts and circumstances of this case, and the proceedings heretofore had herein.

2. Plaintiff submits this Affirmation in Opposition to the Motion to Compel of Stormie (hereinafter the "Defendant") returnable June 1, 2012, which seeks to compel Defendant to answer the court's Discovery Conference Order dated March 7, 2012 and impose sanctions on the Plaintiff.

3. This Court should not grant the instant Motion because Plaintiff has already replied to the court's discovery order on April 1, 2012 see Exhibit "A". (Exhibit A is a bunch of alleged credit card statements that do not show how the balance was acquired. They don't even show my making payments on them, nor anything with my signature)

4. Plaintiff in response to discovery demands sent Defendant all documents in its possession. Any requested information that was not sent, is not in the possession of the Plaintiff. Further, a Plaintiff cannot be compelled to produce documents which are not in its possession. Euro-Central Corp. v. Dalsimer, Inc., 22A.D.3d 793 (2d Dept. 2005). (Where upon review of the moving papers and the responses to the discovery demands, the Court finds that plaintiff substantially complied with the discovery requests. The responses provided were adequate for the defendant to prepare a defense). Striking the pleading and dismissing the case would be inappropriate.

5. Penalties for refusing to comply with an order to disclose is governed by 3126 of the Civil Practice Law and Rules. If any party, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, then the court may make such orders with regard to the failure or refusal as are just. At the outset, the drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith. Harris v. Cit of New York, 211 A.D.2d 662 (2d Dept 2005). Presently, the Defendant has failed to demonstrate the foregoing. Plaintiff is not failing to comply by a willful action or in bad faith.

Wherefore, Plaintiff respectfully requests that: 1) the Defendant's Motion to Compel discovery be denied on the grounds the the Plaintiff has properly answered the court's discovery order by sending all the documents in it's possession, and 2) the costs and expenses of defending against said Notice of Motion be awarded Plaintiff; and 3) the Plaintiff be granted such other, further and different relief as this Court may deem just and proper.

Dated: July 3 (funny how they sent this to me a day before our third pretrial conference, which will take place this Wednesday)

~~~

thoughts?

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Thoughts?

Yeah, you just won your motion to compel.

4. Plaintiff in response to discovery demands sent Defendant all documents in its possession. Any requested information that was not sent, is not in the possession of the Plaintiff. Further, a Plaintiff cannot be compelled to produce documents which are not in its possession. Euro-Central Corp. v. Dalsimer, Inc., 22A.D.3d 793 (2d Dept. 2005).

They are right. Yes, your motion should be denied because they can't be compelled to produce something they don't have. They just flat out said you have all they have.

They even saved you the motion to preclude, because they just went on record they don't have the documents.

Congratulations on losing your motion to compel.

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Yeah, you just won your motion to compel.

Congratulations on losing your motion to compel.

I'm sorry, I don't understand ... is this a good thing or a bad thing? Or a typo? :(

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If the judge denies your MTC, it may be because they've admitted they don't have anymore documents. If they try to file an MSJ, you have it in their own words that they have no more evidence.

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Would you rather win your motion to compel and they come up with more evidence to use against you at trial, or would you rather lose your motion to compel because they are going on record as not having evidence that would help them in court.

You will technically lose, but did you really lose?

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Plaintiff in response to discovery demands sent Defendant all documents in its possession

I'd pay to have this written on a sheet of plywood, then have two bikini models wheel it into court the day of trial, just in case they try to spring new evidence. Your motion was probably procedurally incorrect as well as strategically incorrect, unless the order the judge made gave them a specific list of what to produce. Strategically, you should stop asking after the first failure to produce. Like we always say, this is evidence that will make you lose your case, not a good idea to push them to produce it. Be careful what you ask for, you might just get it. It's like a dog chasing a car and the car stops, now he tries to figure out what he's going to do with a car.

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Plaintiff in response to discovery demands sent Defendant all documents in its possession

I'd pay to have this written on a sheet of plywood, then have two bikini models wheel it into court the day of trial, just in case they try to spring new evidence. Your motion was probably procedurally incorrect as well as strategically incorrect, unless the order the judge made gave them a specific list of what to produce. Strategically, you should stop asking after the first failure to produce. Like we always say, this is evidence that will make you lose your case, not a good idea to push them to produce it. Be careful what you ask for, you might just get it. It's like a dog chasing a car and the car stops, now he tries to figure out what he's going to do with a car.

Ok, I got you. But yeah, the judge did ask for a list of things. Here is the link to what happened, as to why I filed the motion to compel with sanctions:

http://www.creditinfocenter.com/forums/there-lawyer-house/314090-jdb-discovery-part-iii-you-wont-believe-bs.html#post1168959

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UPDATE:

My motion to precluse the bill of sale was "granted" because:

"to the extent that any document that produced in compliance with Judge Hon. XX, March 2012 discovery order is hereby precluded from submitted any document not previously precluded. This case is marked final for trial on xxx.

My motion to compel with sanctions was "denied" because:

"defendant alleges that plaintiff has not complied with the March discovery order of the Honorable, Judge XX. In opposition, plaintiff submits the discovery produced in response to this order. Additionally, defendant acknowledged in court that she received the documents"

When I questioned the fact that the documents that were submitted were not anything that can be used in discovery, the attorney to the court basically said that I can argue that in front of the judge at the trial... :rolleyes:

thoughts....:?:

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Sounds like you won again but can't make heads or tails of your post. Guess show up to court and see what happens.

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If the Bill of Sale was precluded, they can't prove they bought a paper clip from the OC much less a portfolio of accounts that allegedly included your account.

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If the Bill of Sale was precluded, they can't prove they bought a paper clip from the OC much less a portfolio of accounts that allegedly included your account.

What he said. There goes their case for lack of standing. Bet they dismiss this.

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If I need to send a Demand for Discovery to a company, what department do I send it to? HR? Accounts Payable? Legal? Or to a person directly if I can get a name? Please help! I need to send a Demand to a company.

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If I need to send a Demand for Discovery to a company, what department do I send it to? HR? Accounts Payable? Legal? Or to a person directly if I can get a name? Please help! I need to send a Demand to a company.

You need to start your own thread because a lot of regular posters don't read old threads like this one.

However, you would need subpoenas for what you are asking about, not a discovery demand. You serve discovery on the other parties attorney. I can only assume the other parties attorney does not represent whoever you are wanting to serve discovery. Therefore you are talking about subpoenas and not discovery demands.

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Well, tomorrow I have this court date, please wish me the best!

Since I already have my motion to preclude the bill of sale granted, I am going to use the lack of standing to sue argument. :neutral:

If anyone has any last words of encouragement, please proceed! :p

Edited by stormie

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Don't forget that in #3 of their opposition in your first post, they admitted they've provided all the documentation they have. No bill of sale, no other documentation, and no proof of ownership of the account. Therefore, no proof of standing to sue. 8-)

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BV80 is right, if the bill of sale is out, so is every other document associated with it. Even so, no bill of sale means they can't prove their case. When they send you out to discuss, tell the other side you intend to file an FDCPA law suit for attempting to collect on an unproven debt. They'll love you for that.

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Well, tomorrow I have this court date, please wish me the best!

Since I already have my motion to preclude the bill of sale granted, I am going to use the lack of standing to sue argument. :neutral:

If anyone has any last words of encouragement, please proceed! :p

verbally ask for a continuance to file a motion for summary judgement. Do not let them dismiss they can refile, your msj should state that they have no legal standing and judgment should be entered for the defendant,, that way they can't file again.

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