byegone

Can both parties Motion for Summary Judgment

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What about the affidavits???

Do I bring up the affidavits in the request for docs or admissions?

Can I send admissions and rogs addressed to plaintiff but directed to the affiant.... I need to defeat the account stated claim....

Once they MSJ (and of course I'll object, but if the motion is granted) if I dont have this info I'd be so screwed.

For each document listed below that Plaintiff contends was delivered and retained without objection to the defendant, please produce all documents indicating the date the document was delivered and the manner in which it was delivered, including, if the document was delivered by the Postal Service, other courier, or electronically and state the location to which it was addressed and whether the document was returned undelivered:

a. The original account agreement for the account.

b. Any amendment to the agreement for the account.

c. Any notice of a change in any term of the account,

including but not limited to a change in the rate of interest

or amount of any fee applicable to the account.

d. Any schedule of interest rates or fees applicable to the

account.

e. Any credit card issued in connection with the account.

f. Any statement of payments, charges, fees or interest for

the account.

Please identify the OC procedure for returned undelivered mail

Please identify the OC procedure for disputing charges

Please answer!!!

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Yeah you send it to the Plaintiff's attorney but you ask of the affiant what you want, you just ask it to the Plaintiff's attorney. That is the way it works, you don't serve them on the affiant directly.

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"I need to defeat the account stated claim."

No you don't !!!!! You have to raise a material fact in dispute, not defeat the argument. A junk debt buyer can't have an account stated due to the very definition of an account stated.

The JDB did not send you statements. Argue a trial is needed to determine if this is an account stated and you want to cross the only party that can truly establish and account stated, the original creditor.

Again, you don't have to win the argument in your reply. Focus on the dispute being if this is an account stated or not. Argue a trial is needed to determine before you ever get into the issue of if you owe the debt.

Does the JDB know the business procedures of the OC in establishing an account stated or have they just been told (you know that answer). Stop trying to win your case in summary judgement, unless you decide to file for summary judgement. Don't fall for the trap they are setting by trying to draw you into an argument over the facts. Stick to who really knows who is right or wrong but there is no way it's so clear cut, either way, there is no need for a trial.

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And another thing you should wear out in your reply is the fact that court HAS to give you the benefit of the doubt (non-moving party) and MUST look at the motion and reply in the light most favorable to you (non-moving party).

You know around here how we wear out the least sophsiciated consumer standard? Well you need to wear out the fact you have the benefit of the doubt. Basically you've won and instead of the judge being neutral at the beginning of the hearing or in reviewing the pleadings, you are already ahead and the other side must not just catch up but pass you.

Don't know if you watched the Olympics. But there were several qualifying rounds and then there were the medal rounds. Well some guy that held like a million world records for the 5K or something like that was in a qualifying round. The top six moved to the next qualifying round. There was like 8 of them pulling away toward the finish. He speed up and got in the middle of the pack and just put it in cruise control finishing fourth or fifth (pre-trial stages).

He did the same thing the next round (summary judgement) and then when it counted just demolished the competition in world record time when it was actually time to run for a medal time (actual trial) and actually time to flip the switch to beat the dog crap out of everybody else.

Don't argue so little you lose, but this is not the medal round. All you need to do at this stage is qualify for the medal round and you don't have to win your arguments you use in the summary judgement motion. You do just enough to move on, like the track and field race.

Sports again, sorry, it seems like good examples. A football coach will have the other side beat in the fourth quarter. He will then sit his starters down and let the scrubs play. The other team might out score the scrubs and draw a little closer and make the final score look a little more respectable, but the coach pulled his players because he knew the real battles were ahead and he had already done enough to win and move one step closer to a championship, so no need to use all the gas in the tank when not necessary.

It's the reason I posted about the duel motions in a case of mine. The judge said denied to their motion. So I immedialtely just withdrew my motion. I was not going to win my motion and my reply had served it's purpose, defeating their motion. So it was time to shut it down and move on, so I told the judge I withdrew my motion instead of giving them a sneak peak at how I was going to argue orally at the next hearing or at trial.

Overkill would have served no purpose for me so I just backed off and was happy to finish in the middle of the pack, but good enough to move on.

Edited by Coltfan1972

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a. The original account agreement for the account.

b. Any amendment to the agreement for the account.

c. Any notice of a change in any term of the account,

including but not limited to a change in the rate of interest

or amount of any fee applicable to the account.

d. Any schedule of interest rates or fees applicable to the

account.

e. Any credit card issued in connection with the account.

f. Any statement of payments, charges, fees or interest for

the account.

All of the above documents and / or cards were sent to the defendant by the original creditor in the normal course of business and are assumedly already in the defendant's possession as they were not returned undeliverable.

Please identify the OC procedure for returned undelivered mail

The question is unclear; the postal authorities handle undeliverable mail and return it to the sender. No documents were returned per the instant action or the account sued upon.

Please identify the OC procedure for disputing charges

The procedure is described in the cardholder agreement that was provided to the defendant with the credit card. It is additionally printed on every billing statement sent.

As for the affiant, you can ask general questions about them, but you probably won't get much from the plaintiff, they'll just object. See if New York has deposition by written question, I think they do, haven't looked in a while. You can depose the affiant that way.

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The common law elements of a cause of action for an account stated are: the existence of a debtor-creditor relationship, a mutual examination of the claims of the respective parties, the striking of a balance, and an agreement, express or implied, that the party against whom the balance is struck will pay the debt. (Bank of New York v. Santarelli, 128 Misc2d 1003 [County. Ct., Greene, 1985]). The rationale for permitting a recovery on an account stated theory is that the parties have, by their conduct, evidenced an agreement upon the balance of an indebtedness. (Interman v. R. S. M. Electron Power, 37 NY2d 151, 153-154 (1975)). In Newburger-Morris Co. v. Talcott (219 N.Y. 505, 512 (1916) Judge Cardozo wrote;

"There is no doubt that an account stated may sometimes result from the retention of accounts current without objection (citations omitted). But the result does not always follow. It varies with the circumstances that surround the submission of the statements (citations omitted) and those circumstances include, of course the relation between the parties."

Among the circumstances to be considered is whether an objection has been made to the account within a reasonable time. (Interman v. R. S. M. Electron Power, supra at 154; see, Corr v. Hoffman, 256 N.Y. 254, 267 (1931)).

However, the deposition of Seymour J. Reisman on behalf of plaintiff gave rise to some doubt as to the accuracy of the proffered statements and whether they were the statements actually sent to defendant.

elements of account stated - Google Scholar

elements of account stated - Google Scholar

Erdman Anthony & Associates, Inc. v. Barkstrom, 298 AD 2d 981 - NY: Appellate Div., 4th Dept

Supreme Court properly denied plaintiff's motion for summary judgment on the cause of action for an account stated and granted defendants' cross motion for summary judgment dismissing that cause of action. "An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869, lv denied 82 NY2d 660; see Sisters of Charity Hosp. of Buffalo v Riley, 231 AD2d 272, 282; Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d 429, 431). An essential element of an account stated is an agreement with respect to the amount of the balance due (see Interman Indus. 982*982 Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Sisters of Charity Hosp. of Buffalo, 231 AD2d at 282). "An account stated assumes the existence of some indebtedness between the parties, or an express agreement to treat the statement as an account stated. It cannot be used to create liability where none otherwise exists" (M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515, 516; see Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996; Bauman Assoc. v H & M Intl. Transp., 171 AD2d 479, 485).

Edited by racecar

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"I need to defeat the account stated claim."

No you don't !!!!! You have to raise a material fact in dispute, not defeat the argument. A junk debt buyer can't have an account stated due to the very definition of an account stated.

The JDB did not send you statements. Argue a trial is needed to determine if this is an account stated and you want to cross the only party that can truly establish and account stated, the original creditor.

Again, you don't have to win the argument in your reply. Focus on the dispute being if this is an account stated or not. Argue a trial is needed to determine before you ever get into the issue of if you owe the debt.

Does the JDB know the business procedures of the OC in establishing an account stated or have they just been told (you know that answer). (OF COURSE NOT BUT THEY WILL SUBMIT A FALSE AFFIDAVIT attesting to the business procedures) Stop trying to win your case in summary judgement, unless you decide to file for summary judgement. Don't fall for the trap they are setting by trying to draw you into an argument over the facts. (I see what your saying) Stick to who really knows who is right or wrong but there is no way it's so clear cut, either way, there is no need for a trial.

Thanks Coltfan:) I think I see what your saying ... Standing 1st ... if no standing - No account stated, No breach AND MSJ granted there is NO TRIAL because there is NO CASE (it shouldn't even get to the point of arguing the account stated or breech claim. JDB wont be able to prove ownership ((in admissable form showing my specific account in the "pool" of accounts they purchased)) if JDB cant prove ownership by assignment they havn't proved Standing and they cant be permitted to submit business records for their account stated claim or breach claim ... and so on and so forth

"There are several issues of material facts in dispute that a trial is needed to determine". Hopefully it will stop right here and their MSJ should be denied. But I need to have a game plan in case it doesn't

So lets say the senario pan's out like this - the Judge considers their (phoney) Bill of Sale and their (bogus) "Data Sheet" enough to grant them to move forward with their Motion for SJ .... EVEN THOUGH I OBJECT OBJECT OBJECT RIGHT ON THROUGH!!! .... I'm then at the point (once again) where I will have to argue on paper via my Opposition. JDB provides FAKE AFFIDAVIT from BIG BANK (by someone claiming to have personal knowledge of the debt.... blah blah blah) .... It's then there word against mine , (I think the Judge is lazy and will let the False Affi slip right on by and not care) ........ :shock::shock::evil:

I'm going to try and see if i can pull some closed case files to see how this Judge has ruled in MSJ in (JDB) cases... and look at the affidavits & docs submitted.

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JDBs can use account stated, they assume all the rights of the original creditor, which is to use any theory of litigation they want. There must be 10,000 cases on Google Scholar where JDBs sue under account stated. No case has ever been dismissed for failure to state a valid cause of action. They don't have to have sent you statements, obviously they couldn't have done so, but they can use the statements the OC sent as if they were their own. That is, if they can get them admitted as evidence under the rules in your state. Ownership of the account is what you need to concentrate on.....without this, it doesn't matter who sent what.

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Yes, JDB have every right to assert the account stated. However, they face an almost impossible task of proving an account stated since they are not the OC, if they are challenged.

And I was not talking about standing, although that is a great argument of course. I'm talking about using is this an account stated or not as a material fact (one of many of course) to argue a trial is needed. Not arguing it is or it is not an account stated, but it's not so clear cut on the issue summary judgement is proper. That is what I'm trying to get across.

To beat summary judgement you can have a 100% losing argument but if you can show that a trial is needed, even if you were to lose, that beats summary judgement.

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And you don't argue they have no standing, you argue that a trial is needed to determine if they have standing, as reasonable minds would surley differ on the issue of standing and that means a trail is needed and summary judgement is defeated.

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Yes, JDB have every right to assert the account stated. However, they face an almost impossible task of proving an account stated since they are not the OC, if they are challenged.

I have to disagree, although it pains me to do so. I am sure that my learned opponent would do the same, and has done so, and I greatly respect him for doing so. That's how we learn. Bruno is not always right.

This is a common area of argument here. If the JDB assumes all the rights of the OC, he inherits the rights (not even needed) to proceed under any theory of litigation he wants, account stated included. Causes of action are not "rights." They are simply statutory or other non-statutory legally accepted claims based upon commonly accepted theories of litigation. You'll be hard pressed to find account stated in any state statute, altho it does exist in a few. Even so, no court disallows the cause of action.

The thing you want to look at in account stated would be the elements. There are several. We had prior transactions, we sent you statements, you retained them without dispute, which constituted an agreement to the balance. You made payments, which constitutes acceptance of the balance and a liability on your part and a promise to pay. None of these elements can be defeated by claiming that the JDB did not send statements, etc. Since they inherit the account and all the rights, they inherit the argument as well.

The area in which Coltfan and I disagree is that the JDB has to prove the elements absent the fact that he is not the OC. The law clearly and unambiguously relieves the JDB of this obligation, as painful as that may be to all of us. If the obligation is not present as a matter of law, then how can it be used as a defense to summary judgment? Without case law to support the argument, and I contend that there is none, the argument MUST fail as a matter of law. See Flair vs. Steamboat, Wrestlewar 1989 et seq.

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Your 100% right and we are saying the same thing. The JDB has an absolute to aruge account stated, because as you correctly stated they step in the shoes of the OC. However, they also step into the obligations of the original creditor.

No, you can't use the argument the JDB did not meet the elements of the account stated. However, you can force the JDB to prove the OC established an account stated which the JDB stepped into the shoes to assume, just as you can force them to prove their standing which they allegedly obtained from the OC.

It's not an argument that they don't have the right to aruge it or you can hold it against them for not sending the statements, anymore than you can hold it against them they did not enter into the original contract.

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Personally, I'd submit that plaintiff failed to demonstrate its prima facie entitlement to summary judgment by attacking the affiant's specific knowledge regarding plaintiff's books, records and more importantly, type of program used to ensure data cannot be tampered with (in the normal course of business).

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Personally, I'd submit that plaintiff failed to demonstrate its prima facie entitlement to summary judgment by attacking the affiant's specific knowledge regarding plaintiff's books, records and more importantly, type of program used to ensure data cannot be tampered with (in the normal course of business).

More good material facts in dispute to argue and I agree.

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a. The original account agreement for the account.

b. Any amendment to the agreement for the account.

c. Any notice of a change in any term of the account,

including but not limited to a change in the rate of interest

or amount of any fee applicable to the account.

d. Any schedule of interest rates or fees applicable to the

account.

e. Any credit card issued in connection with the account.

f. Any statement of payments, charges, fees or interest for

the account.

All of the above documents and / or cards were sent to the defendant by the original creditor in the normal course of business and are assumedly already in the defendant's possession as they were not returned undeliverable.

Please identify the OC procedure for returned undelivered mail

The question is unclear; the postal authorities handle undeliverable mail and return it to the sender. No documents were returned per the instant action or the account sued upon.

Please identify the OC procedure for disputing charges

The procedure is described in the cardholder agreement that was provided to the defendant with the credit card. It is additionally printed on every billing statement sent.

As for the affiant, you can ask general questions about them, but you probably won't get much from the plaintiff, they'll just object. See if New York has deposition by written question, I think they do, haven't looked in a while. You can depose the affiant that way.

YEP see where you are going with these Bruno , they will turn it around on me. However I'm being sued by them - they have to prove their case - wouldn't they have to provide the cardholder agreement/ contract they are claiming I breached. Sorry I didn't see anything printed on the back of any account statements sent because

A) i didn't recieve the account statements

B) and even if I had received the account statements I wouldn't have looked at them and read them simply because I cannot read the fine print and cant afford to buy myself glasses)

C) and if I did make any payments, which I do not recall doing, I would have most likely followed the same procedure I do with paying all my bills at this time because of my hardship - just guesstimate on the minimum amount due and send a payment - online....

Gag me with a spoon !!

OK - I need some clear cut, to the point Rogs and Admissions

For JDB - Account Stated and Breach of Contract Claims

I feel like I'm damed if I do and damned if I dont.

Do I send out a request for Rogs & Add before my next court appearance in 2 months ...

they will most likely MSJ - OF COURSE I will OBJECT "Defendant denies allegations, defendant denies owing any debt to Plaintiff , triable issues of material fact do exisit and are in dispute, standing is still undetermined ........MSJ would not be just and proper in this situation"

... but just in case things shouldn't go my way (because honestly I'm losing trust in the justice system). I will need something to work with and cover my a$$ to argue in my opposition - and that something would be their responses to my requests for discovery .... even if they dont respond that would be "something".

So I never get to see the affidavit unless they MSJ and submit it with the MSJ? .... this isn't really fair now is it???? Considering all the crap going on with robosigning, false affidavits , inaccurate OC records .... Plaintiff should be required to include Affi with the S&C when they bring suit. Afterall I need time to research their affiant and shred the affidavit apart word by word - now don't I :mrgreen:

:idea: We should set up a mock trial -- hmmmm .... who should it be?

Colt, Bruno, Legal

-against-

My~Cousin~Vinny, BV80, Racecar & Byegone (what the heck i'll throw myself in for some hoots and holla's) :lolsign:

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Personally, I'd submit that plaintiff failed to demonstrate its prima facie entitlement to summary judgment by attacking the affiant's specific knowledge regarding plaintiff's books, records and more importantly, type of program used to ensure data cannot be tampered with (in the normal course of business).

Yep Uh HUH ... this is exactly the route I recently went when up against an Original Creditor and I even one upt it ....

a reproduction created by any process which stores an image of any writing, entry, print or representation and which does not permit additions, deletions or changes without leaving a record of such additions, deletions, or changes, when authenticated by competent testimoney or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented, shall be admissable in evidence as the original.

"THE CHANGE IN TECHNOLOGY REQUIRES THE PROPONENT OF SUBMISSIONS TO AFFIRMATIVELY STATE WHETHER THEIR KNOWLEDGE IS BASED ON ACTUAL HARD COPIES OR ELECTRONICALLY GENERATED INFORMATION. IF ELECTRONIC INFORMATION IS USED, THEN THE SECOND REQUIREMENT IS INCLUSION IN AN AFFIDAVIT OF IMFORMATION ESTABLISHING THAT THE DOCUMENTS ARE FREE FROM TAMPERING OR DEGRADATION AND THE BASIS OF THAT BELIEF." Midland Funding, LLC v. Loreto, NY Slip Op 50338 (2012), American Express Bank v. Dalbis, NY Slip Op 50366 (2011).

Sad to report I lost my argument in the end with OC when I really thought i had a good chance of winning with the argument. The boilerplate affidavit was so conclusory it was a joke. And if the burden of proof is on the Plaintiff and the Defandant gets the benefit of doubt and must be viewed in light most favorable then I really do feel cheated!!!:LolPointUp:

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Did you even get an affidavit? Usually they send one attached to the bill of sale. If not, they committed a fatal error and personally I would let it go until it becomes an issue. Their lack of an affidavit kills their standing to sue you.

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Did you even get an affidavit? Usually they send one attached to the bill of sale. If not, they committed a fatal error and personally I would let it go until it becomes an issue. Their lack of an affidavit kills their standing to sue you.

NO!! I did not get an Affidavit (I did request it in My Request for Documents) ....

Midland - "purchased a pool of charged off accounts from BIG BANK".

They did send me Statements, Bill of Sale (that doesn't have my name or account #) and a "false" Seller Data Sheet (purported to be a copy provided to them from Big Bank Records) .... with a letter stating they will provide the rest of my requests in 60 days. But no Affdavit

Note: they were two weeks late with the items that they did send me and now expect me to wait 60 days for the rest of the docs while they assemble them!!! Whats up with this? CPLR 3120 States - 20 days from receipt of notice.

You would let it go until it becomes an issue? I guess it would become a REAL BIG issue when they MSJ at my next court appearance then????

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I think you're going to find the court a lot more receptive to your arguments when facing Midland, a junk debt buyer than when facing an original creditor. Honestly, I don't see any way you're going to lose by summary judgement, just with what you are posting here, and I think a ton of it your going at it a way I do different, but still think you will defeat summary judgment easily. That's just my opinion of course, but I'm right about 99.999% of the time. Humble and right, a deadly combination.

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I would, but you put them on notice with that discovery request. Who gave them 60 days?

THEY GAVE THEMSELVES 60 DAYS!!!!!!!!!!!!!!!!!!!!!!!!

I GUESS THEY DON'T THINK THAT 60 DAYS IS UNREASONABLE FOR ME TO WAIT..... HOWEVER IT'S MUCH TO UNREASONABLE FOR ME TO WAIT 60 DAYS!

I REQUESTED THESE DOCS BACK IN IN AUGUST - THEY WERE SUPPOSE TO HAVE THEM TO ME BY MID SEPT. NEXT COURT DATE IS IN DEC... I HIGHLY SUSPECT THEY WILL MSJ... AND THEY ARE PLAYING ME BY NOT PROVIDING ME THE DOCS I REQUESTED & NEED TO DEFEND MY CASE.

AS IT STANDS NOW THEY HAVE NOT PROVED STANDING BY WAY OF THIER CONCLUSORY BILL OF SALE.

THEY ARE REQUESTING ME TO WAIT 60 DAYS SO THEY CAN PROVIDE ME WITH THE MOST APPROPIATE RESPONSES TO MY REQUESTS .... BUT IF I WAIT IT WILL BRING ME ONLY DAYS AWAY FROM MY 2ND APPEARANCE IN WHICH I KNOW THEY WILL MSJ .... AM I BEING CLEAR DO YOU UNDERTAND WHAT I'M SAYING?? I TEND TO TALK IN CIRCLES.

NOW I HAVE MORE REQUESTS READY TO GO .... 2ND REQUEST FOR DOCS ADMISSIONS AND POSSIBLY SOME ROGS.... I SUSPECT THEY WONT RESPOND TO THESE EITHER??? OR SHOULD I HOLD OFF ON SENDING THESE??

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I would simply hit them with a motion to preclude. They did not respond in the proper time, and they don't have the authority to grant themselves extensions of time.

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NOW THAT I'M GETTING OVER MY FEAR OF ACTUALLY BEING IN COURT IN FRONT OF THE JUDGE AND DEALING WITH THESE SCUM ....

"I OBJECT YOUR HONOR, FRANKLY I DONT GIVE A HOOT WHAT THE PURPORTED STATEMENTS PLAINTIFF HAS PROVIDED CLAIMS TO SHOW. PLAINTIFF SHOULD NOT BE PERMITTED TO SUBMIT THESE THESE STATEMENTS AS EVIDENCE BECAUSE PLAINTIFF HAS FAILED TO PROVE THEY EVEN HAVE STANDING TO BRING THIS SUIT IN THE FIRST PLACE...... THIS BILL OF SALE DOES NOT SHOW ANY ACCOUNTS PLAINTIFF CLAIMS TO HAVE PURCHASED FROM OC LET ALONE THE SPECIFIC ACCOUNT SUBJECT TO THIS SUIT. THIS DATA SHEET PLAINTIFF HAS PROVIDED WAS NOT CREATED BY THE OC AS PLAINTIFF CONTENDS IT WAS. I COULD HAVE PRINTED THIS OUT ON MY COMPTER. THERE ARE MANY ISSUES OF MATERIAL FACTS IN DISPUTE YOUR HONOR, A TRIAL WILL BE NEEDED TO DETERMINE THESE FACTS. DEFENDANT REQUESTS PLAINTIFFS MSJ BE DENIED. DEFENDANT REQUESTS THE COURT TO COMPEL PLAINTIFF TO PROVIDE DEFENDANT WITH DISCOVERY DEMANDS OR TO PRECLUDE THEM" 8-)8-)

just practicing up a little bit ..... i need get over my fright and be able to spew this out of my mouth without so much a single pause for christ sakes, i need to get with the program!!! :twisted::twisted:

Edited by byegone

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I don't understand how the attorney for Midland can give themselves an extension to answer the requests.

Should Byegone send a letter to the attorney stating that it's been well 20 days and they have xx amount of days to respond to the rest of the requests or a Motion to Compel will be filed. I say Motion to Compel because I don't know if that's required before filing a Motion to Preclude.

The letter would show the court that Byegone attempted to resolve the issue without involving the court.

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