alioop4282

Received Discovery Requests from Plaintiff...need some help PLEASE!

Recommended Posts

Ok, so I just received a letter from Cavalry responding to my requests for document production and I need some serious help. Please help me, guys!

The first thing I asked for was the original signed contract with states interest rate, grace period, terms of repayment..their response was:

Plaintiff objects to Defendants first response to Demand for discovery and Inspection to the extent that it requests information gathered in anticipation of litigation in violation of the Work Product Doctrine.

UM what the hell does that mean??

It also states "it requests information not reasonably calculated to lead to the discovery of admissible evidence

Another objection was "it seeks information in violation of the attorney-client privilege.

In my discovery request, I asked for a bill of sale. They responded with a copy of a letter from bank of americas Vice President dated January 27th 2012 with a generic bill of sale letter and then the next page is something that looks like it was printed from a spreadsheet that has my name and account number and the purcahse date and the balance. (The Plaintiff wrote that this is a true and accurate copy of the bill of sale..doesnt BOA have to authenticate this though??)

They also sent two credit card statements from bank of america, one from 4/2009 and another from 12/2009. Neither show the amount they are claiming I owe. Attached to those statements is the "important information about this account" page.

They wrote in their response that these are true and accurate copies of monthly statements (Dont they have to be authenticated by BOA, NOT Cavalry??)

I asked for a notarized statement from a person with original knowledge of the debt who can testify at trial and they responded "Plaintiff can provide list of potential witnesses if requested. (didnt I ask them for that lol??)

Ok..so I need help. Am I screwed here? They still have not provided a contract and they use breach of contract as a caue of action.

I go back to court in a few weeks. What do I do until then? What are my defenses? The bill of sale is toally generic but how can I prove that?

HELP!! THANKS!! :)

Link to post
Share on other sites

Step one: calm down. You can beat them at their own game.

Their response is so typical, many of us on here could have told you what their response would have been before you received it. Their answer means, "We really don't have anything with which we can beat her in court, but if we give her a bunch of heresay and a bunch of mumbo jumbo, maybe she will panic and want to pay up instead of going to court!"

We know this, because we've been there, too.

Step two: Read Coltfan's thread on standing. He uses Midland in his thread, but it all stands with any JDB. Also read his thread on "Standing When Dealing with JDB."

At least you don't have one of the bigger scum bags like Midland or Asset Acceptance!

Happy reading! You will find a lot of great info and ammo there. Coltfan loves machine guns, and he gives out the ammo at no charge!

Edited by ladyhunter
Link to post
Share on other sites

Thank you. They actually sent me exactly what I expected they would. I'm just not sure what my next step would be. Do I file a motion to dismiss based on the fact that they are suing me for breach of contract without a contract? Do I just ask for a tria and then bring up my points?

Link to post
Share on other sites

We can sit here all day giving you what to do next, but Coltfan has already done such a great job in his threads. No need for us to rehash it.

Go to those 2 threads, as I suggested, and read. It will help you formulate your plan of attack.

Link to post
Share on other sites

Thank you again for your response. I have read those threads many times before. I guess Im just not sure what proper procedure is. Should I be filing motions? Should I just do nothing until the pre trial and then argue my points verbally? Thats really the advice Im looking for.

Link to post
Share on other sites

You could ask them for a more responsive answer within x amount of days or you will file the apropriate motion with the court. (i dont know ny rules).

The thing is if they do get you what you want. will that hurt or help you? If they can even get it....

I beleive you should respond to everythign they send. bomb them with mail, file motions or objections.

If they say they can provide a list of witnesses, make them.

Plaintiff objects to Defendants first response to Demand for discovery and Inspection to the extent that it requests information gathered in anticipation of litigation in violation of the Work Product Doctrine.

UM what the hell does that mean??

It also states "it requests information not reasonably calculated to lead to the discovery of admissible evidence

Another objection was "it seeks information in violation of the attorney-client privilege.

It means we dont have it, I would persue this ask them for a mroe responsive answer or youwill file the apropriate motion with the court, if you dont like the answe, file it and aks for oral agrument.

Link to post
Share on other sites

Thank you for your response. Thats the help Im looking for. I want to make sure Im filing the appropriate motions and objections at the appropriate times. Reading the rules and laws is confusing me. I dont want to show up at my next hearing and have the judge tell me "you shoulod have done this or that."

Link to post
Share on other sites

I dont want to show up at my next hearing and have the judge tell me "you shoulod have done this or that."

Judges don't give legal advice. They do tell you that what you filed was crap and you should learn the rules of procedure. Signed contracts are not issued or needed in credit card cases. Did you sign one with them? If not, why are you asking for it? At most you'll get a copy of the cardholder agreement they supposedly sent when you got the account.

The good part of this is that they answered the way they did. No contract or agreement means no validation of the interest rate, default terms, etc. They basically refused to provide you with any type of agreement / contract with this response. They could have, but chose not to. Big mistake. If the agreement with the terms is not calculated to lead to admissible evidence, then they can't introduce it as evidence and they have no case. The rest is hearsay, but it will probably never get that far. I would file a motion to preclude the stuff they say isn't calculated to lead to admissible evidence. Let their own answer bury them.

Link to post
Share on other sites

Thank you do much Bruno. They are Objecting to providing a contract, claiming that it's not reasonably calculated to lead to the discovery of admissible evidence. So basically you are suggesting that I file action to preclude the contract to ever be admitted into evidence should this case go to trial? Would you happen to be able to assist me in what the motion should say exactly? Thank you again, :)

Link to post
Share on other sites
The first thing I asked for was the original signed contract with states interest rate, grace period, terms of repayment..their response was:

Plaintiff objects to Defendants first response to Demand for discovery and Inspection to the extent that it requests information gathered in anticipation of litigation in violation of the Work Product Doctrine.

I assume you were requesting a copy of the contract you signed with the OC. While their answer is a bunch of bull, chances are you didn't sign a contract with the OC, so it doesn't exist. Therefore it can't be provided.

In my discovery request, I asked for a bill of sale. They responded with a copy of a letter from bank of americas Vice President dated January 27th 2012 with a generic bill of sale letter and then the next page is something that looks like it was printed from a spreadsheet that has my name and account number and the purcahse date and the balance. (The Plaintiff wrote that this is a true and accurate copy of the bill of sale..doesnt BOA have to authenticate this though??)

They also sent two credit card statements from bank of america, one from 4/2009 and another from 12/2009. Neither show the amount they are claiming I owe. Attached to those statements is the "important information about this account" page.

They wrote in their response that these are true and accurate copies of monthly statements (Dont they have to be authenticated by BOA, NOT Cavalry??)

It depends on the judge. Some judges will allow a JDB to authenticate other business's documents.

That being said, the letter from the vice-president may or may not help them depending upon what was stated in the letter.

I asked for a notarized statement from a person with original knowledge of the debt who can testify at trial and they responded "Plaintiff can provide list of potential witnesses if requested. (didnt I ask them for that lol??)

They stated that they'd provide witnesses in lieu of an affidavit. However, who are the alleged witness? Will they really produce them at a hearing? Do they really have personal knowledge?

Check out the following 2 cases from your state.

Palisades Collection, LLC v. Kedik - Google Scholar

Unifund CCR Partners v. Youngman - Google Scholar

Link to post
Share on other sites
I assume you were requesting a copy of the contract you signed with the OC. While their answer is a bunch of bull, chances are you didn't sign a contract with the OC, so it doesn't exist. Therefore it can't be provided.

It depends on the judge. Some judges will allow a JDB to authenticate other business's documents.

That being said, the letter from the vice-president may or may not help them depending upon what was stated in the letter.

They stated that they'd provide witnesses in lieu of an affidavit. However, who are the alleged witness? Will they really produce them at a hearing? Do they really have personal knowledge?

Check out the following 2 cases from your state.

Palisades Collection, LLC v. Kedik - Google Scholar

Unifund CCR Partners v. Youngman - Google Scholar

This is what the letter from the vice president said. Its a copy of a letter. Looks like its been photocopied 5000 times.) Its on Bank of America Letterhead. Please give me your thoughts:

Exhibet C

Bill of Sale and Assignments of Loans

The undersigned Assignor ('Assignor") on as of the date hereof hereby absolutely sells, transfers, assigns, sets-over, quitclaims and conveys to Cavalry SPV, I, LLC a limited liability company organized under the laws of Delaware ("Assignee") without recourse and without representations or warranties of any type, kind character, or nature, express, or implied subject to Buywers repurchase rights as set forth in Section 8.1 and 8.2, all of Assignors right, title and interest in and to cach of the loand identified in the loan schedule ("Loan Schedule") attached hereto (the "Loans"), together with the right to all principal, interest, or other proceeds of any kind with respect to the Loans remaining due and owing as of the cut-off date applicable to such loans as set forth in the Loan Sale Agreement pursuant to which the Loans are being sold (including but not limited to proceess derived from the conversion, voluntary or involuntary, of any of the Loans into cash or other liquidated property)

its dated january 27th 2012 and says Assignor FIA Card Serviced and is signed by the vice predisent.

Then there is another piece of paper that has a my name and account number, contact date, last payment date, and the balance which is about $2000 less than Im being sued for. This is not on any letterhead..just a blank piece of paper with the info typed.

What do you think??

Regarding their answers about the contract. They gave 3 objections.

1. Plaintiff objects to the defendants first response to demand for discovery and production to the extent that it requests information gathered in anticipation of litigation in violation of the Work Product Doctrine (WHAT DOES THIS MEAN???)

2. Plaintiff objects to the defendants first response to demand for discovery and production to the extent that it requests information not reasonably calculated to lead to the discovery of admissible evidence.

3. Plaintiff objects to the defendants first response to demand for discovery and production to the extent that it seeks information in violation of the Attorney-Client privlilege. (I dont understand this. Its MY contract supposedly...dont I have a right to see it??)

Any clarification is greatly appreciated. Im really confused as what I should be doing.

Should I send them Interrogatories asking for names of witnesses? I havent sent any Interrogatries at all. Should I be doing this?? Thanks so much. :)

Link to post
Share on other sites

without recourse and without representations or warranties of any type, kind character, or nature, express, or implied

In other words, even the OC won't guarantee that any of these accounts are accurate. How can a jdb affiant swear they are accurate when the originator refuses to do the same?

Work Product Doctrine

Usually this means the thoughts and impression of the attorney, their strategy, anything confidential. Evidence required to prove a case does not fall under this exception. Were these general objections to the discovery or were they listed separately under each request? This is important.

Link to post
Share on other sites
without recourse and without representations or warranties of any type, kind character, or nature, express, or implied

In other words, even the OC won't guarantee that any of these accounts are accurate. How can a jdb affiant swear they are accurate when the originator refuses to do the same?

Work Product Doctrine

Usually this means the thoughts and impression of the attorney, their strategy, anything confidential. Evidence required to prove a case does not fall under this exception. Were these general objections to the discovery or were they listed separately under each request? This is important.

They were general objections. What does this mean for me?

Link to post
Share on other sites

It gives them a little wiggle room, but not much. They objected, let them try to tell a judge that their general objection doesn't apply to each and every request. That's what theyll try to do if you call them on it. Me, I'd file a motion to preclude anything they objected to, so they can't introduce it later.

Link to post
Share on other sites
It gives them a little wiggle room, but not much. They objected, let them try to tell a judge that their general objection doesn't apply to each and every request. That's what theyll try to do if you call them on it. Me, I'd file a motion to preclude anything they objected to, so they can't introduce it later.

Thanks again, Bruno. During my next hearing Im going to do that. I believe I can verbally ask the judge. Do you know if thats the case?

Link to post
Share on other sites

I just went to court for my first hearing (case management) and I got a chance to tell the judge that would be hearing my case about the Plaintiff's insufficient response to my request for documents...I'm sure you have to do the same thing I have to do which is send a Meet and Confer letter asking the Plaintiff for a code-compliant response to your request for production. Once you've done that twice or three times (giving them 10 days to respond each time) then you can file a motion to compel the documentation that you are seeking.

My little back & forth with the judge is in post # 52 (page 3) of my thread - he concurred that this is exactly what I needed to do. You'll just need to read your local rules for your courthouse to find the "proper" way to do this in your area.

P.S. I also received the same general objections (Preamble BS) in my Plaintiff response to production - another very good sign - by the way, these mean absolutely nothing so don't worry about it. Trial will be all about what can be proven, not what one wishes could be proven. And my Assignment (Bill of Sale) is a generic piece of paper with Citibanks VP and Asset Acceptances' CFO signatures too - and a "Schedule A" page "we made this in Excel with a bunch of XXXXXXX's and your name - see how you owe us?" - piece of garbage, be very happy about this - this is great stuff for trial!! Your Honor, I could make one of those too if you'll just give a minute & Microsoft Excel, thank you! 8]

One last thing that I hope will relieve your stress a little - know what you are being sued for & then find what must be proven for each cause they are suing you for. Focus your attention on either disproving their case or proving your case. For instance, I'm being sued for Account Stated and the Plaintiff must prove ALL of the following, if they fail to prove just one of these I WIN:

1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions; (I've never had a transaction with JDB)

2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff]; (I've never agreed or spoken to JDB)

3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff]; (I've never promised anything to JDB)

4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; (Why would I pay someone I don't know?) and

5. The amount of money [name of defendant] owes [name of plaintiff]. (How did they get to this amount? And who's going to pay this huge bill, cause I'm not!)

You can find the above for your cause of action by searching google "jury instructions, account stated" or whatever your causes are, open account, breach of contract, etc.

The Plaintiff wants you to freak out & use your limited amount of discovery questions in a way that is not helpful to your case, don't do that, focus on only what's important to YOU & you'll win!

Sounds like you're well on your way & doing great too, good luck! :)++

Edited by ReadytoWininCA
Link to post
Share on other sites
I just went to court for my first hearing (case management) and I got a chance to tell the judge that would be hearing my case about the Plaintiff's insufficient response to my request for documents...I'm sure you have to do the same thing I have to do which is send a Meet and Confer letter asking the Plaintiff for a code-compliant response to your request for production. Once you've done that twice or three times (giving them 10 days to respond each time) then you can file a motion to compel the documentation that you are seeking.

My little back & forth with the judge is in post # 52 (page 3) of my thread - he concurred that this is exactly what I needed to do. You'll just need to read your local rules for your courthouse to find the "proper" way to do this in your area.

P.S. I also received the same general objections (Preamble BS) in my Plaintiff response to production - another very good sign - by the way, these mean absolutely nothing so don't worry about it. Trial will be all about what can be proven, not what one wishes could be proven. And my Assignment (Bill of Sale) is a generic piece of paper with Citibanks VP and Asset Acceptances' CFO signatures too - and a "Schedule A" page "we made this in Excel with a bunch of XXXXXXX's and your name - see how you owe us?" - piece of garbage, be very happy about this - this is great stuff for trial!! Your Honor, I could make one of those too if you'll just give a minute & Microsoft Excel, thank you! 8]

Sounds like you're doing great too, good luck! :)++

.

I actually read through your thread last night and it helped me a lot! I'm going to review it again today. I seriously cannot even believe these people have the balls to send us these bill of sales that dont even mention our name and then attach something they clearly typed up on their own in excel! Wtf! You would fall over if you saw the affidavit attached to the summons they served me with. Doesn't have my name or account number or even say who the affiantbis employed by..just states he is an authorized agent or the plaintiff. It doesn't even state the amount owed lol!!!

Link to post
Share on other sites

I added a little to my earlier comment just on what to focus on. Cool, I'm glad you got something out of my thread, thanks for telling me! Also, it really helped me to have a "cheat sheet" I called it. I just typed up real simply what I wanted to say to the judge and then memorized it. Hopefully you'll have a chance to speak with your judge as well, but who knows. There weren't that many people at my hearing, lol!

Oh, BTW, if you hadn't answered your summons, those BS pieces of paper would have been all the JDB needed to get a summary judgement against you for the full amount they are asking for, that's what's really sad (and wrong in my opinion)!

I should have read your entire thread before posting, so if I over-stepped, please forgive me! I'm working on my M & C letter today too, it makes me tired! 88-)

Edited by ReadytoWininCA
Link to post
Share on other sites
I added a little to my earlier comment just on what to focus on. Cool, I'm glad you got something out of my thread, thanks for telling me! Also, it really helped me to have a "cheat sheet" I called it. I just typed up real simply what I wanted to say to the judge and then memorized it. Hopefully you'll have a chance to speak with your judge as well, but who knows. There weren't that many people at my hearing, lol!

Oh, BTW, if you hadn't answered your summons, those BS pieces of paper would have been all the JDB needed to get a summary judgement against you for the full amount they are asking for, that's what's really sad (and wrong in my opinion)!

I should have read your entire thread before posting, so if I over-stepped, please forgive me! I'm working on my M & C letter today too, it makes me tired! 88-)

You haven't over stepped at all! I'm glad you reached out to me..your advice is very helpful and it sounds like our cases have some similarities.im definitely going to have to make a cheat sheet . I feel like I know what I want to say but may forget. At my last hearing I did get to speak to the judge and he was really nice and told rent-a-lawyer that he needed to comply with all of my discovery requests. Since then, they did respond but sent me a bunch of crap! I honestly don't even know why I care so much about this..i don't have anything they can actually take from me..unless they put a lien on my 2005 car that's not even paid off lol! I just don't like losing!! Thank you again for your help and suggestions!! I really appreciate it! :)

Link to post
Share on other sites

Hi again,

Good that you already have been in to see the Judge, so you won't have nerves. This whole process is pretty crazy, but I have to say I finally understand why there are so many lawyers & courts - it would take a lot of people to keep track of all of this paperwork right? I must be burnt out from all of my memorizing because I can't focus at all on trying to type up the M & C letter, lol. So I decided to give myself the deadline to have it done Sunday afternoon, so it can be mailed Monday. Learning how to be a lawyer makes me exhausted!

And no, you're good to care. If you win, they can't ever come after you for this debt again & you're free. Plus, if we all are ever sued again for ANY reason we'll know exactly what to do & how to research remedies - it could save us tons of money in the future, LOL!

I'll keep an eye on your thread, I like watching good things happen to good people! xdancex

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