Midland Funding - Need Opinion on My Answers

[writeratheart]

EDITED 09/01/2012 to update answers.

Hey everyone,

I thought I would do this in a new thread, since it might be confusing trying to wade through everything in my last thread.

In a nutshell, I received a Summons from Midland. I got some help on here and responded - I sent my answers and discovery. When I arrived at court, the judge asked if they wanted an extra 30 days for the discovery request, and they said yes.

About two weeks later, they sent me a request for an additional 30 days to respond to discovery. A few days after that, I received from them Requests For Admissions, First Interrogatories, and Request for Production of Documents.

I am preparing my responses, and have used examples from these forums (as well as suggested answers in direct response to my search for answers).

I need a good pair of eyes to see if my answers are satisfactory, and/or if I need to make any changes. Also, I need to know if this is when I should send a Counterclaim and/or Affirmative Defenses.

Any help is great!

To start, here are the Requests for Admissions, along with my answers:

DEFENDANT’S ANSWERS TO PLAINTIFF’S REQUEST FOR ADMISSIONS

1. At all times pertinent herein, Plaintiff was and is a LIMITED LIABILITY COMPANY organized and existing under and by virtue of law.

RESPONSE: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment; therefore, denied.

2. Plaintiff is the holder of a valid assignment of an account, originating with FIRST BANK OF DELAWARE with an account number ending in XXXXX9163.

RESPONSE: DENY.

3. That the Defendant(s) is/are a resident of CALLAWAY COUNTY, Missouri.

RESPONSE: ADMIT.

4. FIRST BANK OF DELAWARE and Defendant(s) entered into a contract, whereby FIRST BANK OF DELAWARE extended credit pursuant to the terms and conditions of Credit Card Agreement (hereinafter referred to as “Agreement”).

RESPONSE: DENY.

5. Defendant(s), in exchange for the use of the credit extended, agreed to pay FIRST BANK OF DELAWARE for all amounts due resulting from the authorized use of Defendant’s credit card, including any finance charges and any other charges due under the terms of the Agreement.

RESPONSE: DENY.

6. Defendant(s) has/have not made all payments to FIRST BANK OF DELAWARE pursuant to the Agreement.

RESPONSE: OBJECT. Assumes facts not in evidence, namely that there was an agreement between Defendant and First Bank of Delaware for which payments needed to be made. Objection as to “all” payments, as vague. There is no specific time frame, making the request broad and overly burdensome.

7. FIRST BANK OF DELAWARE sent monthly statements to Defendant(s).

RESPONSE: DENY.

8. Defendant(s) breached the Agreement by failing to pay the $713.68 amount owed.

RESPONSE: OBJECT. Assumes there was an agreement to breach. However, without waiving said objection, denied.

9. As a direct and proximate result of the Defendant’s breach of the Agreement, FIRST BANK OF DELAWARE has sustained damages in the sum of $713.68.

RESPONSE: DENY.

10. FIRST BANK OF DELAWARE has fully performed, pursuant to the terms of the Agreement or its performance has been excused due to Defendant’s breach.

RESPONSE: OBJECT. First, “terms of agreement” is overly broad. Second, request calls for a legal conclusion as to “performance has been excused due to Defendant’s breach”. Third, request is a compound request asking Defendant to admit/deny multiple requests in the body of the same request. However, without waiving said objection, as to “Defendant’s breach”, denied. Furthermore, without waiving said objections, Defendant denies every allegation, express or implied, in admission request 10.

11. FIRST BANK OF DELAWARE, and subsequently, Plaintiff, have made demand for payment of the outstanding sum of $713.68, but Defendant(s) has/have failed and refused to pay. Plaintiff seeks interest from April 30, 2012, which is the date of demand or subsequent to the date when demand for payment was made.

RESPONSE: OBJECT. First, “and, subsequently, Plaintiff” calls for legal conclusion. Second, assumes facts not in evidence that Plaintiff is the legal owner of the alleged account and debt. Third, Defendant objects to “Plaintiff seeks interest from April 30, 2012, which is the date of demand or subsequent to the date when demand for payment was made.” The Plaintiff brings this suit before the court. If Plaintiff is unaware of what they seek in reference to the specific relief prayed for in Plaintiff’s own complaint, Defendant should not be asked to explain Plaintiff’s complaint which they filed. In suing Defendant for a certain alleged sum Plaintiff alleges is owed by Defendant, Plaintiff should be aware of the answer to this request.

12. Defendant(s) and FIRST BANK OF DELAWARE have had previous financial transactions related to the credit card issued to Defendant(s) by FIRST BANK OF DELAWARE, at Defendant’s insistence and request.

RESPONSE: DENY.

13. Defendant(s) received and used (or authorized the use of) the credit knowing that FIRST BANK OF DELAWARE expected to be repaid for all monies advanced, together with interest thereon.

RESPONSE: OBJECT to “FIRST BANK OF DELAWARE expected to be repaid”. Request asks Defendant to speculate what another party, that is not a natural person, thought.

14. With each use of the credit FIRST BANK OF DELAWARE paid money on Defendant’s behalf to the merchant with whom the credit was used.

RESPONSE: OBJECT. First, assumes facts not in evidence, specifically “with each use”, as no use has been proven. Second, “paid money on Defendant’s behalf to the merchant” calls for speculation. Plaintiff’s request in this instant should be directed to FIRST BANK OF DELAWARE, as Defendant is not privy to FIRST BANK OF DELAWARE’s records or payments to merchants made or not made. However, without waiving said objection, denied.

15. Defendant(s) accepted said funds for the purchase of goods, wares, merchandise, or services and has been unjustly enriched by failing to repay such sums.

RESPONSE: OBJECT. First, no “said funds” as mentioned in “accepted said funds” are in evidence. Second, “said funds” is broad and vague. However, without waiving said objection, denied.

16. Plaintiff is the assignee of the Issuer’s right to be repaid by Defendant(s) for such money had and received, and it is entitled to recover from Defendant(s) the sum of $713.68, that being the balance due through April 30, 2012.

RESPONSE: DENY.

17. Defendant(s) and FIRST BANK OF DELAWARE had previous financial transactions related to the Agreement issued to Defendant(s) by FIRST BANK OF DELAWARE, at Defendant’s insistence and request.

RESPONSE: OBJECT. First, “previous financial transactions” and “Agreement issued to Defendant(s)” assume facts not in evidence. Second, “at Defendant’s insistence and request” is speculative. However, without waiving said objection, denied.

18. Pursuant to said transactions, FIRST BANK OF DELAWARE sent Defendant(s) statements of account, to which Defendant(s) did not object.

RESPONSE: OBJECT. “statements of account” assumes facts not in evidence. However, without waiving said objection, denied.

19. Defendant(s) did not object in writing to any of these statements of account, or monthly statements concerning this account.

RESPONSE: OBJECT, as “statements of account, or monthly statements concerning this account” assume facts not in evidence. However, without waiving said objection, denied.

20. Pursuant to the terms and conditions sent to Defendant(s) along with the credit card, and governing its use, the Defendant(s) made an unconditional promise to pay the amount due with the use of said credit card.

RESPONSE: OBJECT, as “terms and conditions sent to Defendant(s)”, “the credit card”, and “Defendant(s) made an unconditional promise to pay” assumes facts not in evidence. However, without waiving said objection, denied.

21. The resulting balance agreed to by the parties is $713.68.

RESPONSE: DENY.

22. The Defendant(s) has/have failed to keep his/her/their promise to pay said balance, despite demand for same having been made.

RESPONSE: OBJECT. First, “demand for same having been made” assumes facts not in evidence. Second, to the Defendant’s knowledge, no demand for payment was made. Therefore, and without waiving said objection, denied.

23. Plaintiff is the assignee of FIRST BANK OF DELAWARE to be repaid by Defendant(s) on the account, and it is entitled to recover from Defendant(s) the sum of $713.68, that being the balance due through April 30, 2012.

RESPONSE: OBJECT. Assumes facts not in evidence; furthermore, calls for legal conclusion as to Plaintiff’s standing in this instant action. Any alleged standing on any alleged account are matters for trial as the Plaintiff has provided no admissible evidence. However, without waiving said objection, denied.

Edited September 2, 2012 by writeratheart

[writeratheart]

Here are my answers to their Interrogatories and Request for Production:

COMES NOW Plaintiff and pursuant to Rule 57.01 of the Missouri Rules of Civil Procedure propound the following Interrogatories to be answered within 30 days after service hereof.

1. If you denied any of the facts as set forth in Plaintiff’s Request for Admissions, state each and every fact upon which you rely to support your denial.

RESPONSE: First, Defendant has been presented with no evidence which verifies that the Plaintiff is the holder of the account in question. Second, Defendant’s relationship (or lack thereof) with FIRST BANK OF DELAWARE is not the subject of these proceedings. Third, Any relationship between Defendant and FIRST BANK OF DELAWARE is irrelevant to any money owed (or not owed) to Plaintiff by Defendant.

2. To the extent not already answered, if you denied Request No. 9, state each and every fact upon which you base your denial of the amount owed.

RESPONSE: Defendant avers she owes nothing to the Plaintiff. The Plaintiff, although claiming a legal right to collect the alleged debt, has lent no money to Defendant and therefore has suffered no actual damages other than the pittance he/they paid for the alleged defaulted account.

3. Identify each and every person who answered, or who aids in answering, these Requests for Admissions and Interrogatories, or who was consulted or supplied information upon which answers to these Requests for Admissions and Interrogatories are based.

RESPONSE: Defendant alone.

4. Identify each and every expert witness Defendant(s) intend(s) to call at trial, and for each such expert state the subject matter on which the expert is expected to testify and the expert’s hourly deposition fee, address, occupation, place of employment, and qualifications to give an opinion.

RESPONSE: None at this time.

__________________________

Defendant, appearing pro se, for its reply to Plaintiff’s First Request for Production of Documents.

1. If Defendant(s) denied Request for Admissions No. 19, provide copies of all correspondence sent to the Plaintiff disputing any statement of account, or monthly statement.

RESPONSE: Defendant, after a diligent search, has none of the documents Plaintiff seeks.

2. If Defendant(s) made payments on this account, provide copies of canceled checks or other documents to verify payments made.

RESPONSE: Defendant, after a diligent search, has no responsive documents to this request.

3. If Defendant(s) is/are claiming that there was some form of credit insurance, or claiming some other party is responsible for payment on this account, provide copies of all insurance claims filed, or other documents to support this claim.

RESPONSE: Defendant makes no such claim.

4. Provide copies of any documents or things that Defendant(s) would intend to introduce as evidence at trial.

RESPONSE: At this time, Defendant does not intend to introduce any documents or things as evidence.

Edited August 31, 2012 by writeratheart

[BV80]

Read your court rules regarding responses to admissions. In my state, you have to admit or deny the admissions, or they can be deemed admitted. See what your rules state about objections. Even if you object, you may also need to state something like "Notwithstanding the foregoing objection, Defendant denies."

#3 and #16 is a flat out denial. I would also deny #9. First Bank of Delaware isn't suing.

For some of them, you can state "Defendant has insufficient information to admit or deny and, therefore, denies."

[writeratheart]

Read your court rules regarding responses to admissions. In my state, you have to admit or deny the admissions, or they can be deemed admitted. See what your rules state about objections. Even if you object, you may also need to state something like "Notwithstanding the foregoing objection, Defendant denies."

#3 and #16 is a flat out denial. I would also deny #9. First Bank of Delaware isn't suing.

For some of them, you can state "Defendant has insufficient information to admit or deny and, therefore, denies."

Why is #3 (the county in which I reside) a denial?

For #9, I know First Bank of Delaware isn't suing, which is why I referenced paragraphs 2, 4, and 5, which all basically say that any relationship (or lack thereof) between the Defendant and First Bank of Delaware have nothing to do with these proceedings. I probably should add the statement you suggested.

[BV80]

Why is #3 (the county in which I reside) a denial?

For #9, I know First Bank of Delaware isn't suing, which is why I referenced paragraphs 2, 4, and 5, which all basically say that any relationship (or lack thereof) between the Defendant and First Bank of Delaware have nothing to do with these proceedings. I probably should add the statement you suggested.

Sorry about that. I meant #2. And I'd deny it with no explanation.

Edited August 31, 2012 by BV80

[writeratheart]

Sorry about that. I meant #2. And I'd deny it with no explanation.

I wondered if that was a typo. LOL Okay, I'll change that one.

[writeratheart]

Just a quick bump to see if anyone else has an opinion on my answers. If not, I guess these are the ones I'll be sending off.

And I need an answer to my main question - Should I send a Counterclaim and/or Affirmative Defenses with these?

Thanks!

[BV80]

Just a quick bump to see if anyone else has an opinion on my answers. If not, I guess these are the ones I'll be sending off.

And I need an answer to my main question - Should I send a Counterclaim and/or Affirmative Defenses with these?

Thanks!

If the account is yours and is still within the SOL, your best defense is lack of standing. If it were me, I'd use that defense. Some will argue against it, though.

Read your court rules regarding affirmative defenses. See which ones are waived if not raised in your answer. If standing to sue is not waived, you can use it now or raise it later.

[writeratheart]

All right, I'll check up on that. Thanks!

[BrunoTheJDBkiller]

I don't like your responses, they are evasive and not well grounded in the law. Your objections are based upon the relationhsip between yourself and the OC, which is flawed. The JDB, for purposes of this litigation, has all the rights of the OC and therefore it is material whether or not you paid, breached, etc. That aside, is there an arbitration clause in the original agreement? For 700 bucks, that would do away with this. I don't know why they are even doing this, they probably spent more than 700 in legal fees already. However, if you want to fight, we'll show you how to make them rack up a legal bill that will make the national debt clock blush with envy. Do you have any more defaulted debts out there? Usually they won't pursue a small amount like this unless they are testing the waters for a bigger fish. Something about this isn't right.

[writeratheart]

I don't like your responses, they are evasive and not well grounded in the law. Your objections are based upon the relationhsip between yourself and the OC, which is flawed. The JDB, for purposes of this litigation, has all the rights of the OC and therefore it is material whether or not you paid, breached, etc. That aside, is there an arbitration clause in the original agreement? For 700 bucks, that would do away with this. I don't know why they are even doing this, they probably spent more than 700 in legal fees already. However, if you want to fight, we'll show you how to make them rack up a legal bill that will make the national debt clock blush with envy. Do you have any more defaulted debts out there? Usually they won't pursue a small amount like this unless they are testing the waters for a bigger fish. Something about this isn't right.

This is exactly why I've been asking for help, and why I posted a new thread with just my answers on it. I NEED some serious help here so I don't flush myself down the toilet.

I have no idea if there is an arbitration clause in the original agreement. Yes, I want to fight it. I do not want any of my money going to a junk debt collector.

And yes, I have other defaulted debts out there. In fact, I just got a piece in the mail yesterday from Portfolio Recovery Associates, LLC (for $624.04).

I've been looking in the Credit Repair forums so I can start working on cleaning up my credit report after I get this Midland mess taken care of.

So, ANY help I can get here would be REALLY appreciated! I know my answers aren't what they should be. Midland sent me these requests on the 20th. I need to get my answers/response together SOON. I wanted to have them sent out already, but I can't seem to get a straight answer on what I need to do.

I'm just about on my knees begging for help here. Please help me figure out what my responses need to be and what I need to do at this point.

Thank you for all the suggestions so far! I really do appreciate any help!

[Coltfan1972]

1. Denied or the without knowledge blah, blah, and then denied at the end.

2. Denied

3. Admit

4. Denied

5. Denied

6. Objection assumes facts not in evidence that there was an agreement between First Bank of DE and Defendant where payments needed to be made.

Objection as to "all" payments as vague as there is no specific time frame making the request broad and overly burdlesome.

7. Denied

8. Objection as assumes there was an agreement to breech. However, without waiving said objection, the Defendant denies.

9. Denied

10. Object as to "terms of the agreement" as overly broad. Objection as request calls for a legal conclusion as to "performace has been excused due to Defendant's breech" objection as the request is a compound request asking Defendant to admit/deny multiple reqests in the body of the same request. However, without waiving said objection, as to "Defendant's breech" the Defendant denies. Furthermore, without waiving said objections, the Defendant denies every allegation, express or implied, in admission request 10.

11. Objection as the request is a compound request asking Defendant to admit/deny multiple reqests in the body of the same request.

Objection as calls for a legal conclusion as to "and, subsequently, Plaintiff" assumes facts not in evidence that Plaintiff is the legal owner of the alleged account and debt.

Objection as to "Plaintiff seeks interest from April 30, 2012, which is the date of demand or subsequent to the date when demand for payment was made." The Plaintiff sued the Defendant. If the Plaintiff does not know what they seek in reference to the specific relief prayed for in their own complaint, the defendant should not be asked to explain the Plaintiff's complaint which they filed. The Plaintiff should know the answer to this question if they are suing the Defendant for a certain sum allegedly owed by the Defendant.

In other words, why is the Plaintiff asking the Defendant what their own complaint alleges. The Plaintiff filed the complaint, they should ask themselves.

12. Denied

13. Objection as to First Bank of Delware expected to be repaid. Request asks the Defendant to speculate what another party, that is not even a natural person, thought.

However, without out waiving said objection the Defendant denies.

14. Ojbection as assumes facts not in evidnece, specifically, "with each use" no use has been proven. Objection as to "paid money on Defendant’s behalf to the merchant." Calls for speculation. The Plaintiff would need to ask First Bank of Delaware this question.

The Defendant is not privy to First Bank of Delware's records or payments to merchants made or not made. However, without waiving said objection the Defendant denies.

15. Objection as to "accepted said funds" no "said funds" are in evidence. Objection as to "said funds" being broad and vage.

However, without waiving said objection the Defendant denies.

16. Denied

You get the point and just answer the rest in a similar way. If you don't want to get fancy just deny, but no way I'm not taking the opportunity to just annhiliate them with my answer in request 11. That is them just throwing a 65 MPH fastball right down the middle and telling me the pitch is coming. Actually, I would even pile on more, probably three pages worth, but I also would gladly stand in court and explain myself if they wanted to get mad and push me.

And Bruno is right about them stepping in the shoes of the OC so those objections are not proper. They have a right to step in the shoes of the OC and you have a right to then just assisinate that allegation.

Edited September 1, 2012 by Coltfan1972

[Seadragon]

they are asking for you to admit that they cannot prove then flat out deny those.

The one about for a mere pittance, that one has to go that will open a whole can of worms for you.

the rest are a close but think of it this way denying in discovery, then at court "i can't recall" the burden stays where it rightly belongs on them.

So make sure they give you your discovery. If not get issue sanctions.

just saying anything they can get you deemed admitted or sanction for actual cash is a win for them. They will make money if they can get sanctions of 350 dollars or more than their expendatures to date.

That is why you must press on your own discovery.

[writeratheart]

Thank you, thank you, THANK YOU!!!! I will work on my answers this afternoon, and then post the changes for review.

As for discovery, they did ask for an extension up to and including September 21, so I'll give them until then. I don't know how to do sanctions, so I will need some help with that too.

[BrunoTheJDBkiller]

Sanctions for discovery are pretty much unheard of, those are usually reserved for motions filed with the court. Not giving a jdb the answers they want is not grounds for sanctions. Again, this is really weird. This amount of money makes no sense, this should be in small claims. Another 600 is just as weird if they do this again.

[writeratheart]

Would I also be able to mention multiple requests for number 11 like I did in number 10?

[writeratheart]

Okay, I have updated my answers in the first post. Please have a look and let me know if these are better, especially numbers 11 and 23.

Also, are my answers for Interrogatories and Production okay? Should I send them anything else with my answers?

[writeratheart]

Bumping this up. I need opinions on if these answers can be my final answers. I'd like to get these sent out as soon as possible.

Should I include any Affirmative Defenses and/or a Counter Claim?

Thanks so much for all the help, everyone.

[writeratheart]

Hm. That last post didn't seem to bump. Trying this again.

[BV80]

The answers look fine to me.

If you choose to use an affirmative defense, I'd use Lack of Standing. You'd have a counterclaim if you already paid them or if they violated the FDCPA, FCRA, or TCPA. If that's not the case, then I can't think of a basis for a counterclaim.

[writeratheart]

The answers look fine to me.

If you choose to use an affirmative defense, I'd use Lack of Standing. You'd have a counterclaim if you already paid them or if they violated the FDCPA, FCRA, or TCPA. If that's not the case, then I can't think of a basis for a counterclaim.

Awesome, thank you! I'd have to take a closer look at those to see if they've violated anything, but I'm finally ready to prepare this paperwork to send out. Here goes!

[Coltfan1972]

A shocking answer that you could never see coming. I now like your responses.

[writeratheart]

A shocking answer that you could never see coming. I now like your responses.

I have you to thank, so THANK YOU!

I'm sending them the paperwork on a CD also. You know, when they sent me all this paperwork, they also sent me a diskette. Yes, a DISKETTE. Those things from the 90's that no one uses anymore and that I can't access because I have a laptop with no diskette slot.