notlawyer

Contemplating Next Move, After Receiving JDB Response to POD

Recommended Posts

Received a typical response to the POD:

• a 2-page generic-looking card agreement (presumably from the OC—but the print is so small that it’s essentially illegible)

• a redacted Bill of Sale that does not include a name or alleged account number (the Bill of Sale refers to itself as an exhibit in some other agreement, which of course was not provided)

• an affidavit (also does not mention defendant name or alleged account number)

• account statements allegedly from OC going back 2 years—but of course not back to the beginning of the alleged account, so they cannot possibly reconstruct or verify the alleged balance due from these statements

I plan to now send a set of RFAs (and perhaps a few rogs that ask them to explain any denials in some of the RFAs). I’m not sure if there is much purpose to submitting a “supplemental document request” to request that they address their inadequate response to the request for POD.

Does this seem like a reasonable approach?

I am considering the following RFAs:

1) Admit that Plaintiff’s Exhibit 4, which contains the alleged initial communication from Plaintiff to Defendant, is a 1692g notice, allegedly sent by Plaintiff to Defendant, which states that defendant may request verification of the alleged debt.

[the idea here is that a “1692g notice”, stating that the consumer may request DV, may not be used as the basis for account stated, which is the sole cause of action in the complaint…]

2) Admit that Plaintiff does not have a bill of sale from the OC with the alleged acct number or defendant name proving that Plaintiff owns the alleged debt.

3) Admit that Plaintiff does not have an affidavit from the OC with the alleged acct number or defendant name attesting to the accuracy of the alleged assignment of the alleged debt to the Plaintiff.

4) Admit that Plaintiff cannot provide a complete accounting of the alleged debt starting with a balance of -0- and showing all charges, payments, and fees throughout the history of the alleged account which resulted in the balance claimed in the Complaint.

5) Admit that Plaintiff has no documents establishing any written agreement or contract between Plaintiff and the Defendant

6) Admit that Plaintiff has no document in their possession bearing Defendant's signature.

7) Admit that Plaintiff is aware that simply taking OC’s alleged business records, in which Plaintiff had no personal first-hand knowledge of their creation and their authenticity, and then putting those alleged business records into a file maintained by Plaintiff, and then referencing those records as Plaintiff business records, does not overcome the business records exception to hearsay.

8) Admit that Plaintiff does not have access to the original credit card agreement for the alleged account.

9) Admit that Plaintiff does not have any documents establishing previous transactions between plaintiff and defendant, which establish a debtor-creditor relationship.

10) Admit that Plaintiff does not have any documents establishing an express or implied agreement between the parties as to the alleged amount due.

11) Admit that Plaintiff does not have any documents establishing an express or implied promise from the defendant to pay the alleged amount due (or any other amount).

12) Admit that Plaintiff has been fined numerous times by the Federal Trade Commission for alleged illegal collection practices in the attempted collection of defaulted debts, alleged to be due and owed to XXXX. (use this if it's Midland or any other one that has been fined. They will object and you counter it goes to credibility and they are wanting the court to rely on an affidavit that they have been subjected to fines for using in the past).

13) Admit that Plaintiff at any point and time in the last five years, has been found by a court of competent jurisdiction, to have falsified affidavit(s), specifically, submitting affidavits in which the affiant had not conducted a review of the account as alleged in the affidavit.

14) Admit that Plaintiff, at any point and time in the last five years, has been found, by a court of competent jurisdiction, to have used a robo signer to sign affidavits, the definition of “robo-signer” meaning auto signing and or simply stamping a name to the affidavit.

15) Admit that Plaintiff had to have a court of law, in a written order, order Plaintiff to no longer submit falsified affidavits.

16) Admit that Plaintiff routinely enters into settlement agreements, in which to pay fines to different state and and federal agencies, not limited to state attorney generals and the Federal Trade Commission, for alleged illegal debt collection practices.

17) Admit the Defendant is not in debited to Plaintiff in any sum of money.

18) Admit the Defendant has no liability, at all, to Plaintiff

19) Admit that all of Plaintiff’s records, which allegedly show an obligation of the Defendant to Plaintiff, are inadmissible hearsay.

And a few Interrogatories, of the form:

If your response to Request for Admission No. N served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial [and so on with some of the other RFAs].

Link to post
Share on other sites
You can do as I did and wait till pre-trial and verbally request a dismissal based on lack of standing/no evidence to move forward OR go to trial and laugh if they think they can win with that "evidence"

The only thing that is now on the calendar is the trial date--forgive my ignorance, but what is "pre-trial"? In CA, they typically schedule something called a Case Management Conference (CMC) sometime before the trial--but I thought the CMC was essentially a meaningless event.

Link to post
Share on other sites

When is the trial date?

Look at the written response to the RFP. Does plaintiff say the "magic words" (Nothwithstanding the foregoing objections plaintiff will produce "all documents in its possession, custody or control"). My guess is that such a statement is not found in your response. But that is what the code requires. If plaintiff is really telling you that it is giving you some docs now, and will produce more later if it so desires, you have not received a code-compliant response:

2031.220. A statement that the party to whom a demand for

inspection, copying, testing, or sampling has been directed will

comply with the particular demand shall state that the production,

inspection, copying, testing, or sampling, and related activity

demanded, will be allowed either in whole or in part, and that all

documents or things in the demanded category that are in the

possession, custody, or control of that party and to which no

objection is being made will be included in the production.

This is especially important with a JDB because they often must purchase documents from the OC and don't want to do that until shortly before trial.

You should consider writing a meet and confer letter stating that it is difficult to believe that plaintiff has produced all responsive documents. But if it has, it must supplement its response to include the "magic language."

Link to post
Share on other sites

Thanks very much for your response, calawyer, and for pointing out their lack of code-compliance, and mentioning the specific code they violated. This seems to be an important observation. I will follow your suggestion of sending a meet and confer letter (citing a violation of 2031.220). I’m also inclined to send them some RFAs (and rogs) along with the M&C letter…or perhaps I should wait to see if they respond to the M&C letter (do JDBs typically respond to such a M&C letter or just blow it off?)? What do you think?

The trial is in 4 months.

No, I do not see those magic words. Yes, they are saying that they are providing some docs now, and will produce more later if it desires…so I think you are right that they are not code-compliant.

The plaintiff gave a long “preliminary statement” that said (among other things) that they have not completed discovery or preparation for trial and that they may produce at the time of trial subsequently discovered evidence. They also assume no obligation to voluntarily supplement or amend these responses to reflect witnesses, facts and evidence discovered following the service of these responses!

They go on to say that except for the facts explicitly admitted herein, no admissions of any nature are to be implied or inferred…

Then there is list of 6 General Objections.

Link to post
Share on other sites
When is the trial date?

Look at the written response to the RFP. Does plaintiff say the "magic words" (Nothwithstanding the foregoing objections plaintiff will produce "all documents in its possession, custody or control"). My guess is that such a statement is not found in your response. But that is what the code requires. If plaintiff is really telling you that it is giving you some docs now, and will produce more later if it so desires, you have not received a code-compliant response:

2031.220. A statement that the party to whom a demand for

inspection, copying, testing, or sampling has been directed will

comply with the particular demand shall state that the production,

inspection, copying, testing, or sampling, and related activity

demanded, will be allowed either in whole or in part, and that all

documents or things in the demanded category that are in the

possession, custody, or control of that party and to which no

objection is being made will be included in the production.

This is especially important with a JDB because they often must purchase documents from the OC and don't want to do that until shortly before trial.

You should consider writing a meet and confer letter stating that it is difficult to believe that plaintiff has produced all responsive documents. But if it has, it must supplement its response to include the "magic language."

Translation- Shove it right back up their a$$.

Link to post
Share on other sites

How is this for a M&C letter?

Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, on XXXXX, 2012, Defendant served upon Plaintiff, a Demand for Production of Documents. Unfortunately, the response served by Plaintiff, however is entirely deficient, as it violates the California Code of Civil Procedure § 2031.220 (A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production).

Furthermore, Plaintiff has not provided an itemization of the alleged account (or any authenticated records) showing how the alleged balance was calculated. It has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment (that either names the Defendant or the alleged account number) of the claim at issue in this litigation, without which Plaintiff lacks standing to submit a complaint on this matter. Nor has Plaintiff provided any proof that a meeting of minds, mutual agreement, or a prior business relationship had existed between Plaintiff and Defendant. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit.

It is my sincere intention to resolve this matter amicably without the need for judicial intervention. However, as I am entitled to Plaintiff’s verified discovery responses, in the event I do not receive Plaintiff’s verified responses, without objections, within 10 days from the date of this letter, I will have no choice but to move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.

Edited by notlawyer
Link to post
Share on other sites

Hi Calawyer, don't mean to hijack this thread but I would like to ask for advise regarding my court date next wk. My details is in the post titled "Warrant In Debt receive Chesapeake, VA". I have been trying to research but I don't know which way to go arbitration or bop. Can I do BOP and put in a note regarding a future Arbitration? I do know I don't need to make an answer but if I can it may be late since it is already for next wk. But I just want to know if it is better to make an answer anyway or have one ready. Also what is the step by step procedure. This is all new to me. Can you give me a step by step procedure for arb and or if I go to court? I really appreciate your help. Too much going on in my life I am totally confuse. :( I want to fight it but I don't want to go to court and don't know what to say exactly..

When is the trial date?

Look at the written response to the RFP. Does plaintiff say the "magic words" (Nothwithstanding the foregoing objections plaintiff will produce "all documents in its possession, custody or control"). My guess is that such a statement is not found in your response. But that is what the code requires. If plaintiff is really telling you that it is giving you some docs now, and will produce more later if it so desires, you have not received a code-compliant response:

2031.220. A statement that the party to whom a demand for

inspection, copying, testing, or sampling has been directed will

comply with the particular demand shall state that the production,

inspection, copying, testing, or sampling, and related activity

demanded, will be allowed either in whole or in part, and that all

documents or things in the demanded category that are in the

possession, custody, or control of that party and to which no

objection is being made will be included in the production.

This is especially important with a JDB because they often must purchase documents from the OC and don't want to do that until shortly before trial.

You should consider writing a meet and confer letter stating that it is difficult to believe that plaintiff has produced all responsive documents. But if it has, it must supplement its response to include the "magic language."

Link to post
Share on other sites

Translation- Shove it right back up their a$$.

Never any doubt as to what he's thinking, is there? In latin, which is the basis for most court documents and statutes, it would be:

QUATIO eam sursum eorum asinus

In my native language of Italian, it would be:

eorum TRUDO eam sursum asinus

Link to post
Share on other sites

Look at the written response to the RFP. Does plaintiff say the "magic words" (Nothwithstanding the foregoing objections plaintiff will produce "all documents in its possession, custody or control").

This is an example of why I love federal court. An objection followed by a response is nonresponsive.

Link to post
Share on other sites
But you did.... You have a greater chance of getting a response if you start your own thread.

:) I know, that always cracks me up so much. When you sit down and put I don't mean to and then write out a long question, how can you not mean to.

You just said you knew what you were doing (hijacking the thread) then you did it anyway and then had to hit the submit button. How did you not mean to?

Start your own thread and don't hijack, you meant to because you did it.

Link to post
Share on other sites

I’m wondering if there any value to initiating additional discovery (such as RFAs) at this point?

Or is it better to just focus on challenging the adequacy of their response to the RFP, and writing a meet and confer letter, as calawyer suggested (along the lines of post #11 above?)?

Thanks calawyer for all the great help you offer on this site!

Link to post
Share on other sites
How is this for a M&C letter?

Read post 18 of the following thread for the format I prefer and why: http://www.creditinfocenter.com/forums/there-lawyer-house/315520-lawsuit-midland-funding-california.html

As far as your wording is concerned, I have the following suggestions. Please check for accuracy and include quote in brackets. You may also wish to respond to plaintiff's objections as in the above post.

I write to meet and confer concerning Plaintiff’s Response to Defendant’s First Request For Production of Documents. For the reasons set forth below, plaintiff’s response is deficient and must be supplemented immediately.

As a preliminary matter, plaintiff has produced very few documents in response to this demand. Plaintiff has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment (that either names the Defendant or the alleged account number) at issue in this litigation. Finally, plaintiff has not produced every statement relating to the account, from inception to alleged default. I am surprised that plaintiff saw fit to file this action if it only had such limited documents in its files.

Worse yet, the response served by Plaintiff is entirely deficient. In response to each request, plaintiff has responded

Such a response does not comply with California Code of Civil Procedure § 2031.220. Pursuant to that section, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Trial in this matter is a mere 4 months away. Defendant may wish to serve follow up discovery after receiving all documents in Plaintiff’s possession, custody, or control. Please serve a code-compliant, verified supplement response (and produce any further responsive documents) within 10 days from the date of this letter. Otherwise, I will have no choice but to move the Court for an order requiring a further response .

Link to post
Share on other sites

Thanks calawyer so much for your response!

In response to each request, plaintiff has responded

I guess I should insert the following 2 sentences here?

“Consequently, the following responses are given without prejudice to the Responding Party’s right to produce at the time of trial subsequently discovered evidence relating to the proof of any material facts, and to produce all evidence, whenever discovered, relating to the proof of facts subsequently discovered to be material.” and “Responding Party assumes no obligation to voluntarily supplement or amend these responses to reflect witnesses, facts and evidence discovered following the service of these responses.”

It actually makes my head spin to look at the language in their response. I have copied the key paragraphs from their response below. They make a point of being still in the preparation and discovery phase, and claim the right to produce stuff at trial that they later discover. They claim their responses are complete to the extent possible based on the information reasonably available at this time, and they reserve the right to amend or supplement their responses later (or apparently, surprise at trial).

“This Responding Party and its experts have not yet completed the investigation of the facts relating to this action, have not yet completed discovery in this action and have not yet completed preparation for trial. Consequently, the following responses are given without prejudice to the Responding Party’s right to produce at the time of trial subsequently discovered evidence relating to the proof of any material facts, and to produce all evidence, whenever discovered, relating to the proof of facts subsequently discovered to be material.

Investigation and discovery by the responding party herein are continuing and the responses are forth below are complete to the extent possible based on the information reasonably available at this time. Responding Party reserves the right to amend or supplement these responses based on subsequently discovered facts. Responding Party reserves all rights to refer to, conduct discovery with reference to, or offer into evidence at the time of trial, any and all such witnesses, facts and evidence notwithstanding the evidence or reference to such witnesses, facts and evidence in these responses. In addition, Responding Party assumes no obligation to voluntarily supplement or amend these responses to reflect witnesses, facts and evidence discovered following the service of these responses.”

Please serve a code-compliant, verified supplement response (and produce any further responsive documents) within 10 days from the date of this letter. Otherwise, I will have no choice but to move the Court for an order requiring a further response .

Another question: since they mentioned attorney-client privilege in their response, would there be any value in adding a sentence like this at the end:

"Furthermore, if plaintiff is withholding any documents based upon the attorney client privilege, it must provide a log of all documents withheld. CCP 2031.240(B)(1)."

Thanks again!

Edited by notlawyer
Link to post
Share on other sites
:) I know, that always cracks me up so much. When you sit down and put I don't mean to and then write out a long question, how can you not mean to.

You just said you knew what you were doing (hijacking the thread) then you did it anyway and then had to hit the submit button. How did you not mean to?

Start your own thread and don't hijack, you meant to because you did it.

Hi Coltfan1972 and Nascar.. I did make a thread and that I actually had put it in the post I had to CALawyer above. The title is "Warrant in Debt receive in CHesapeake".. Everything is there. I posted last questions on how to go about it but unfortunately there is no answer and I cannot PM since I only have less than 10 before I posted above. I just don't know how to start... I wasn't apologizing for posting but I am for how it may look. Thank you so much.

Link to post
Share on other sites

Below is the revised Meet and Confer letter (thanks to calawyer's input!).

I write to meet and confer about Plaintiff's insufficient responses to Defendant's First Request For Production of Documents. For your convenience, I set forth below each request, Plaintiff's response, and the reason a further response must be provided. Unless Plaintiff agrees in writing to supplement each response and grants defendant an extension of time to move to compel, Defendant will be forced to file a motion to compel further responses.

Request No. 1:

ALL DOCUMENTS relating to or constituting ANY agreement between Defendant and OC.

Response to Request No. 1:

Plaintiff objects to this request on the basis because it is vague, ambiguous and overbroad. Plaintiff further objects to this request on the basis that the documents sought are equally available or are already within the possession and control of the Defendant. Plaintiff also objects to this request in that by asking for “all documents”, it requests documents that are protected by attorney-client privilege and attorney work product doctrine and may be proprietary and trade secret in nature. Plaintiff additionally objects to this request on the basis that the account originated more than two years ago and a creditor is not required to retain copies of the application for that many years per Regulation Z. In accordance with Regulation Z, Truth in Lending, a creditor is required to keep applications on open-ended accounts for a period of 24 months. After that, the applications may be destroyed. Without waiving the aforementioned objections, and subject thereto, Plaintiff responds as follows: Plaintiff has conducted a reasonable search of its records. Attached hereto as EXHIBIT 1 AND 2 are non-privileged documents responsive to this demand. Discovery and investigation are ongoing. Plaintiff reserves the right to supplement this response.

Reason Why Further Response Must Be Provided:

This request seeks any agreements between Defendant and OC. That request is not vague. Nor is it ambiguous or overbroad. These objections, without any explanation, are without merit.

Plaintiff’s objection to the phrase “all documents” on the ground that it might include attorney-client communications is not well taken. If Plaintiff has withheld any documents based upon this objection, please comply with Code of Civil Procedure section 2031.240 and prepare a privilege log that identifies “with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”

Plaintiff also objects to this Request on the ground that, pursuant to Regulation Z, an original creditor need not retain a copy of any application for more than two years. Whether or not that assertion is true, it is beside the point. This response very carefully does not state whether the original creditor has done so. If the document is not within Plaintiff’s possession, custody or control because it has been destroyed, please say so in a verified response as is required by Code of Civil Procedure section 2031.230. If it exists, please produce it.

Finally, Plaintiff has agreed to produce Exhibits 1 and 2 but does not state that such documents constitute all documents responsive to the request. Such a response does not comply with California Code of Civil Procedure § 2031.220. Pursuant to that section, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Request No. 2:

ALL DOCUMENTS relating to or constituting ANY assignment to Plaintiff of the account referred to in the complaint.

Response to Request No. 2:

Plaintiff objects to this request in that by asking for “all documents”, it seeks documents that may be privileged and that are protected by attorney work product doctrine. Plaintiff further objects to this request because it seeks documents that may be proprietary and trade secret in nature. Without waiving these objections, and subject thereto, Plaintiff responds as follows: Plaintiff has conducted a reasonable search of its records. Attached hereto as EXHIBIT 3 are non-privileged documents responsive to this demand.

Reason Why Further Response Must Be Provided:

Plaintiff’s objection to the phrase “all documents” on the ground that it might include attorney-client communications is not well taken. If Plaintiff has withheld any documents based upon this objection, please comply with Code of Civil Procedure section 2031.240 and prepare a privilege log that identifies “with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”

Furthermore, Plaintiff has agreed to produce Exhibit 3 but does not state that such documents constitute all documents responsive to the request. Such a response does not comply with California Code of Civil Procedure § 2031.220. Pursuant to that section, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Request No. 3:

ALL DOCUMENTS relating to or constituting ANY agreement between Defendant and Plaintiff.

Response to Request No. 3:

Plaintiff objects to this request in that by asking for “all documents”, it seeks documents that may be privileged and that are protected by attorney work product doctrine. Plaintiff further objects to this request on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence and because it is vague, ambiguous and overbroad. Without waiving these objections, and subject thereto, Plaintiff responds as follows: No contract is required between Plaintiff and Defendant. Defendant entered into a contract with the original lender. Plaintiff was assigned all rights, title and interest and stepped into the shoes of the original creditor after Defendant defaulted on the account and the original creditor charged off the same. See attached EXHIBITS 1, 2, 3 and 4.

Reason Why Further Response Must Be Provided:

Plaintiff’s objection to the phrase “all documents” on the ground that it might include attorney-client communications is not well taken. If Plaintiff has withheld any documents based upon this objection, please comply with Code of Civil Procedure section 2031.240 and prepare a privilege log that identifies “with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”

This request seeks any agreements between Defendant and Plaintiff. That request is not vague. Nor is it ambiguous or overbroad. These objections, without any explanation, are without merit.

Furthermore, this request is directly relevant to the cause of action stated in Plaintiff’s complaint.

Finally, Plaintiff has agreed to produce Exhibits 1, 2, 3 and 4 but does not state that such documents constitute all documents responsive to the request. Such a response does not comply with California Code of Civil Procedure § 2031.220. Pursuant to that section, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Link to post
Share on other sites

Request No. 4:

A complete history of the account referred to in the complaint from day one, establishing the legitimacy of the balance sought.

Response to Request No. 4:

Plaintiff objects to this request on the basis that it is overbroad in that it is not limited in time and scope and burdensome. Plaintiff further objects to this request on the basis that it does not need to produce every billing statement generated on the account in order to prove its cause of action. Plaintiff further objects to this request on the basis that it requests documents that may be or are already in the possession and control of the Defendant and is therefore burdensome. Without waiving this objection, and subject thereto, Plaintiff responds as follows: Attached hereto as EXHIBIT 2 are non-privileged documents responsive to this request that are within Plaintiff’s possession and control. Discovery and investigation are ongoing and Plaintiff reserves the right to supplement this response.

Reason Why Further Response Must Be Provided:

This request seeks a complete history of the account referred to in the complaint. That request is not overbroad. These objections, without any explanation, are without merit.

Furthermore, Plaintiff has agreed to produce Exhibit 2 but does not state that such documents constitute all documents responsive to the request. Such a response does not comply with California Code of Civil Procedure § 2031.220. Pursuant to that section, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Trial in this matter is a mere 4 months away. Defendant may wish to serve follow-up discovery after receiving all documents in Plaintiff’s possession, custody, or control. Please confirm that you will serve a code-compliant, verified, supplemental response (and produce any further responsive documents) within 10 days from the date of this letter. If you need further time, please let me know and I will consider a brief extension of time with a corresponding extension of time to move to compel a further response. Otherwise, I will have no choice but to move the Court for an order requiring a further response.

Link to post
Share on other sites

Why not just send RFAs, "Admit Plaintiff does not have (each item you asked for but did not get)"

How can they deny? If they do, they contradicted themselves. They do have a point, you have to know how to write these. ALL DOCUMENTS relating to or constituting ANY agreement between Defendant and OC. is overly broad and non specific. A better approach would be "Produce the written agreement between Defendant and bank X establishing the terms of the account sued upon." Using the words any and all just invites an objection.

Link to post
Share on other sites
Why not just send RFAs, "Admit Plaintiff does not have (each item you asked for but did not get)"

How can they deny? If they do, they contradicted themselves. They do have a point, you have to know how to write these. ALL DOCUMENTS relating to or constituting ANY agreement between Defendant and OC. is overly broad and non specific. A better approach would be "Produce the written agreement between Defendant and bank X establishing the terms of the account sued upon." Using the words any and all just invites an objection.

Doesn't make sense to do discovery on discovery. You just lose time and end up filing another motion. They will deny having them but say that the original creditor may have them and they are working ever so hard to get them and you will be given any such documents on the morning of trial.

Much better to move to compel. If their assignor has them, then they are within plaintiff's possession, custody or control. The judge will give them 20 days to produce them. If they don't, good luck trying to come up with them at the last minute.

Link to post
Share on other sites

In anticipation of more stonewalling (or simply no response) from the plaintiff, I’m trying to get up to speed regarding what’s required to file a motion to compel (MTC). As I understand it, the last day to calendar a MTC is 50 days (since it was served by mail) after the plaintiff’s response to discovery, unless an extension is agreed to by the plaintiff.

Some questions:

1) What does the defendant actually need to do at the hearing where the judge hears and rules on the MTC—does the defendant need to be prepared to verbally argue the merits of the MTC in front of the judge, or does the MTC filing speak for itself?

I understand that calawyer suggested a particular format for the meet and confer letter, so that the meet and confer letter essentially becomes the “separate statement” of the MTC.

2) I believe the MTC also includes a declaration indicating that a good faith effort was made to meet and confer with the opposing party.

Does one simply attach the meet and confer letter to satisfy this "declaration" requirement?

I’m also hazy on the other elements of the MTC:

* how to write the memorandum of points and authorities

* how to write the notice of motion

* how to actually get the MTC hearing posted on the calendar

Link to post
Share on other sites
Guest
This topic is now closed to further replies.