LVNV Funding Discovery Responses

[SkippieB]

Just got Hunt & Henriques response to my Request For Admissions-just under the wire. I guess they figured I'd file another motion to compel if they didn't.

Long story short they only admit one out of the ten-that they had no personal knowledge that I received any billing statements from CITIBANK. But they admitted with reservation that the admission was "irrelevant and not reasonably calculated to lead to the discovery of admissible evidence."

Here are my Requests and their responses:

Admit:

1. That Plaintiff is a debt collector as defined by the Fair Debt Collection Practices Act.

Response: Objection, request calls for legal conclusion.

2. That Plaintiff as a regular course of business, purchases portfolios containing large numbers of defaulted consumer debts.

Response: Objection-it is compound, conjunctive or disjunctive in violation of CCP 2033.060 (f). Further objects to this request on the ground that is is vague and ambiguous. Plaintiff further objects to this request on the grounds that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

3. That Plaintiff purchases defaulted consumer debts at a small percentage of the charged-off balance.

Response:same as #2 except also adds that Plaintiff further objects to this request on the grounds that it includes information which is privileged and protected under attorney client privilege and attorney work product blah! blah!blah!

4. That Plaintiff purchases charged-off debts without any warranties as to the collectibility of the account receivables purchased.

Response: same as #2.

5. That Plaintiff does not have personal knowledge of the books and records of CITIBANK.

Response same as #2 except: Objects on the grounds that it is vague and ambiguous as to what is meant by "personal knowledge of the books and records." Without waving such objection, Plaintiff does have knowledge of the books and records of Defendant's account assigned from Citibank therefore, DENY.

6. That Plaintiff does not create or maintain records for CITIBANK.

Response: Objects-same as #2 except: Plaintiff does maintain records for Defendant's account assigned from Citibank-therefore DENY.

7. That Plaintiff does not have personal knowledge of the monthly billing practice of CITIBANK.

Response: Same as #2 & #5-"personal knowledge is vague-Except-Plaintiff does have knowledge of some payments of her monthly bills to Plaintiff's predecessor CITIBANK therefore-DENY.

8. That Plaintiff does not have personal knowledge that CITIBANK mailed any billing statements to the DEFENDANT.

Response: Same as #2 Except: Plaintiff does have knowledge that billing statements were sent to defendant on a regular basis Therefore-DENY.

9. That Plaintiff does not have personal knowledge that DEFENDANT actually received any billing statements from CITIBANK.

Response: Same as # 2 Except they ADMIT!

10. That Plaintiff never transacted any business with the DEFENDANT.

Response: Same as # 2 Except Vague as to what is meant by "transacted any business" Without waiving such objections, Plaintiff is in privity with Defendant. Therefore DENY

So CalLawyer and Bruno, et al-what say yea? Was I vague and ambiguous? I know I did not use any compound sentences but not sure what they mean by the "conjunctive and disjunctive violating CCP section 2033.060 (f).

It also seems as if a lot of their denials contained arguments such as:

"Well we may not know what you mean by personal knowledge of what CITBANK does or doesn't do with respect to billing practices, etc. but we can say Plaintiff does have knowledge of the books and records, etc of LVNV's records." Soo! Who cares about LVNV-I'm asking about CITIBANK-and also without saying it SEARS. Let them bring that one up.

I still have 8 discovery requests left. Should I send more or wait and see what they send in the next several days in response to my other discovery requests for: Production of Documents and Special Interrogatories.

Thanks in Advance.

Carol-Lynn

[BrunoTheJDBkiller]

A few of their objections are justified, like 2-3 and perhaps 10. The rest of their answers are typical nonsense and ducking the issue. Maybe a motion to deem them all admitted would get their attention. The terminology you used is common in their profession, they use it all the time themselves. How can they claim they don't understand it?

[BV80]

I assume this is the LVNV case?

Look at #1. Calls for a legal conclusion? They know good and well that they are bound by the FDCPA. Either they're a debt collector, or they're not.

6. That Plaintiff does not create or maintain records for CITIBANK.

Response: Objects-same as #2 except: Plaintiff does maintain records for Defendant's account assigned from Citibank-therefore DENY.

They pointed out that they maintain the records for Defendant's account assigned from Citibank. That wasn't the request. The request was to admit that they don't create the records and that they don't maintain them FOR CITIBANK.

They denied the request. In my opinion, they denied that they didn't create the records and that they maintained them FOR Citibank. In other words, that's like admitting they did create the records and that they maintained those records for Citibank. That's a lie.

[SkippieB]

Bruno & BV80-Thanks!

My thoughts exactly.

Here is the real kicker-they actually have no right to object 8-)as they served their responses 7 days late-they were served on September 14th and they should have served me by Oct. 19th but they didn't serve me until Oct. 26th. Sooooo-I'm sending them a M&C letter today asking them to revise their responses sans objections. Got to give the old M&C a go-round before compelling which I plan to do-thanks Bruno! I guess they think I'm dumb. Also someone wrote the response without proof reading it one objection doesn't make sense and it is an obvious cut & paste job. Couple of spelling errors too!

They have a court trial schedule for another defendant in my local court this Friday and I plan to attend just to see how it goes. This is the first and only case LVNV has filed in my county where they actually went to court.

Carol-Lynn

Edited October 31, 2012 by SkippieB

[helpme]

make sure this is in your m&c letter:

Pursuant to CCP section 2030.290, because Plaintiff has failed to serve a timely response, it has waived 'any objections to the interrogatories including one based on privileged or on protection for work product'.

and make sure you bold....good job8-)

[rte]

Don't you just love sloppy plaintiffs?

[SkippieB]

make sure this is in your m&c letter:

Pursuant to CCP section 2030.290, because Plaintiff has failed to serve a timely response, it has waived 'any objections to the interrogatories including one based on privileged or on protection for work product'.

and make sure you bold....good job8-)

Thanks and yes I did. Here are the major paragraphs from the letter which I sent yesterday as planned.

You have failed to respond, in the statutory time period mandated by law, pursuant to C.C.P. § 2033(h) [Thirty days plus five days for mailing or October 19, 2012] to the discovery propounded on you by Defendant on September 14, 2012 (See Attachments #1-2) that included:

1) Requests for Admissions, Set Number One;

2) Production of Documents, Set Number One;

3) Defendant's Special Interrogatories, Set Number One.

Yesterday, October 30, 2012, I received Plaintiff's verified, but untimely, responses to Defendant's Request for Admissions, Set Number One, served by Plaintiff on October 26, 2012 and not on October 19, 2012 (See Attachment # 3). Plaintiff needs to reserve and revise its RFA responses of October 26, 2012 to exclude all objections, including those "based on privilege or on the protection for work product," since Plaintiff waived its right to object when it served Defendant with an untimely response pursuant to C.C.P. § 2033(k):

"If a party to whom requests for admission have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Section 2018."

Carol-Lynn

[SkippieB]

Don't you just love sloppy plaintiffs?

I know! Makes you wonder if they even bother proof reading their docs. I think someone realized the deadline had already passed and so they threw a response together and got it out post haste figuring I didn't know the law.

Luckily, I followed advice here on the forum and mailed everything CCMRRR so they can't say they didn't get it on time. Boom!

I did a google search on the LVNV agent from Resurgent Capital who verified the lawyers' response and he's nothing but a glorified gofer. Her are some of his reported duties according to his Linkedin resume:

Track inventory of all office supplies and equipment

Transportation of clients and attorneys when necessary to firm activities

Deliver documents to corresponding attorneys and Judges

Track inventory of all offices supplies and equipment

Also says he's taken a bunch of para-legal courses at some tech school including get this: Discovery and Legal Writing. I'll bet you dollars to donuts he wrote the responses and H&H had one of their lawyers sign it because I can't believe a lawyer would be so sloppy and not at least proof read the thing first.

Seriously, this is the best employee they could find to verify!

Carol-Lynn

Edited November 1, 2012 by SkippieB

[Flyerfan]

I looked up the "legal spe******t" who signed my affidavit from MF and she is still in school. My guess is she is an intern. Maybe I've been interpreting "special" in regards to these people all wrong.

[BTO429]

Here are my Requests and their responses:

Admit:

1. That Plaintiff is a debt collector as defined by the Fair Debt Collection Practices Act.

Response: Objection, request calls for legal conclusion.

Objection: It does not call for a legal conclusion, the definition under the FDCPA is spelled out in plain English. They either meet the criteria or they do not. Plaintiff is stalling and attempting to avoid being bound to a Federal law.

2. That Plaintiff as a regular course of business, purchases portfolios containing large numbers of defaulted consumer debts.

Response: Objection-it is compound, conjunctive or disjunctive in violation of CCP 2033.060 (f). Further objects to this request on the ground that is is vague and ambiguous. Plaintiff further objects to this request on the grounds that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

Objection, the question is straight forward. A compound question is a question that touches upon more than one issue, yet allows only for one answer. This question asks one simple question. The Plaintiff is stalling and trying to avoid admitting that they fall under a Federal law.It will lead to discovery of admissible evidence as set forth in the FDCPA.

3. That Plaintiff purchases defaulted consumer debts at a small percentage of the charged-off balance.

Response:same as #2 except also adds that Plaintiff further objects to this request on the grounds that it includes information which is privileged and protected under attorney client privilege and attorney work product blah! blah!blah!

Objection, it does not fall under attorney client privileged. It may fall under their business practice model but it is not privileged information, and it will lead to admissible evidence. The Plaintiff is stalling in a attempt not to be placed under a Federal law,FDCPA.

4. That Plaintiff purchases charged-off debts without any warranties as to the collectibility of the account receivables purchased.

Response: same as #2.

Objection, same as No1

5. That Plaintiff does not have personal knowledge of the books and records of CITIBANK.

Response same as #2 except: Objects on the grounds that it is vague and ambiguous as to what is meant by "personal knowledge of the books and records." Without waving such objection, Plaintiff does have knowledge of the books and records of Defendant's account assigned from Citibank therefore, DENY.

Objection, personal knowledge is a straight forward legal concept, the Plaintiff is stalling again.

6. That Plaintiff does not create or maintain records for CITIBANK.

Response: Objects-same as #2 except: Plaintiff does maintain records for Defendant's account assigned from Citibank-therefore DENY.

Objection, the Plaintiff has answered the question in a manner that attempt to misguide the court.

7. That Plaintiff does not have personal knowledge of the monthly billing practice of CITIBANK.

Response: Same as #2 & #5-"personal knowledge is vague-Except-Plaintiff does have knowledge of some payments of her monthly bills to Plaintiff's predecessor CITIBANK therefore-DENY.

Objection same as no 6

8. That Plaintiff does not have personal knowledge that CITIBANK mailed any billing statements to the DEFENDANT.

Response: Same as #2 Except: Plaintiff does have knowledge that billing statements were sent to defendant on a regular basis Therefore-DENY.

This one could fly

9. That Plaintiff does not have personal knowledge that DEFENDANT actually received any billing statements from CITIBANK.

Response: Same as # 2 Except they ADMIT!

ok

10. That Plaintiff never transacted any business with the DEFENDANT.

Response: Same as # 2 Except Vague as to what is meant by "transacted any business" Without waiving such objections, Plaintiff is in privity with Defendant. Therefore DENY

Objection, privity is a legal concept that the court will have to determine. The Plaintiff is speculating, has answered the question in a manner that attempts to misguide the court.

Edited November 1, 2012 by BTO429

[rte]

Wow, you hit paydirt on that one!

[1stStep]

If it's not too late, you may have an FDCPA/Rosenthal counterclaim to file...

[BrunoTheJDBkiller]

That Plaintiff is a debt collector as defined by the Fair Debt Collection Practices Act.

Response: Objection, request calls for legal conclusion.

Objection: It does not call for a legal conclusion, the definition under the FDCPA is spelled out in plain English. They either meet the criteria or they do not. Plaintiff is stalling and attempting to avoid being bound to a Federal law.

I think this is a justified objection. It asks the plaintiff to read and interpret a specific law and then render an opinion as to whether a specific entity is bound by that law, which is a legal conclusion. Even if the plaintiff is bound by that law, it isn't up to him to make the determination of whether or not it applies, that's the court's job. Citizens of the US are bound by literally tens of millions of laws; are we obligated to read them all and tell somebody in a law suit which ones apply and which ones don't? Besides, it really is irrelevant to whether or not the plaintiff owes the money.

2. That Plaintiff as a regular course of business, purchases portfolios containing large numbers of defaulted consumer debts.

Objection, the question is straight forward. A compound question is a question that touches upon more than one issue, yet allows only for one answer. This question asks one simple question. The Plaintiff is stalling and trying to avoid admitting that they fall under a Federal law. It will lead to discovery of admissible evidence as set forth in the FDCPA.

Nowhere in the request is there any mention of "falling under a Federal law." All it asks is whether or not they buy junk debt, which is a given and a total waste of time on the part of the propounder. Again, completely irrelevant as a discovery tool unless the request is related to an FDCPA counterclaim.

3. That Plaintiff purchases defaulted consumer debts at a small percentage of the charged-off balance.

Response:same as #2 except also adds that Plaintiff further objects to this request on the grounds that it includes information which is privileged and protected under attorney client privilege and attorney work product blah! blah!blah!

Objection, it does not fall under attorney client privileged. It may fall under their business practice model but it is not privileged information, and it will lead to admissible evidence. The Plaintiff is stalling in a attempt not to be placed under a Federal law,FDCPA.

This clearly is confidential, no court has ever forced a JDB to reveal what they paid for an account. It is also irrelevant to the matter at hand. It will not lead to admissible evidence because there is no basis for the question and the information sought would be completely useless. The law says they can collect the amount. Nothing in the law tiesw this to the price paid. Another waste of time question.

4. That Plaintiff purchases charged-off debts without any warranties as to the collectibility of the account receivables purchased.

Response: same as #2.

Objection, same as No1

Wrong again, the objection to 1 was a legal conclusion, not relevance as in no 2.

That Plaintiff does not create or maintain records for CITIBANK.

Response: Objects-same as #2 except: Plaintiff does maintain records for Defendant's account assigned from Citibank-therefore DENY.

Objection, the Plaintiff has answered the question in a manner that attempt to misguide the court.

How so? The court doesn't see discovery unless there is a conflict.

[BV80]

That Plaintiff is a debt collector as defined by the Fair Debt Collection Practices Act.

Response: Objection, request calls for legal conclusion.

Objection: It does not call for a legal conclusion, the definition under the FDCPA is spelled out in plain English. They either meet the criteria or they do not. Plaintiff is stalling and attempting to avoid being bound to a Federal law.

I think this is a justified objection. It asks the plaintiff to read and interpret a specific law and then render an opinion as to whether a specific entity is bound by that law, which is a legal conclusion. Even if the plaintiff is bound by that law, it isn't up to him to make the determination of whether or not it applies, that's the court's job. Citizens of the US are bound by literally tens of millions of laws; are we obligated to read them all and tell somebody in a law suit which ones apply and which ones don't? Besides, it really is irrelevant to whether or not the plaintiff owes the money.

I agree in part and disagree in part. (Did that sound like an attorney, or what? )

I can see both sides. Yes, the FDCPA is a law. BUT, the Plainiff knows full well whether they are bound by the FDCPA or not.

In my state, collection agencies are not required to be licensed. LVNV might be able to try to use that response. But if a particular state requires a collection agency is required to be licensed, there's no argument that they are a collection agency bound by the FDCPA.

In my humble opinion, even though the request was not a biggie in regard to this suit, the response is still ridiculous. LVNV knows that they are bound by the FDCPA.

3. That Plaintiff purchases defaulted consumer debts at a small percentage of the charged-off balance.

Response:same as #2 except also adds that Plaintiff further objects to this request on the grounds that it includes information which is privileged and protected under attorney client privilege and attorney work product blah! blah!blah!

Objection, it does not fall under attorney client privileged. It may fall under their business practice model but it is not privileged information, and it will lead to admissible evidence. The Plaintiff is stalling in a attempt not to be placed under a Federal law,FDCPA.

This clearly is confidential, no court has ever forced a JDB to reveal what they paid for an account. It is also irrelevant to the matter at hand. It will not lead to admissible evidence because there is no basis for the question and the information sought would be completely useless. The law says they can collect the amount. Nothing in the law tiesw this to the price paid. Another waste of time question.

The Plaintiff was not asked how much they paid for the debt. No specifics were required. They were only asked to admit that they didn't pay the full amount.

That Plaintiff does not create or maintain records for CITIBANK.

Response: Objects-same as #2 except: Plaintiff does maintain records for Defendant's account assigned from Citibank-therefore DENY.

Objection, the Plaintiff has answered the question in a manner that attempt to misguide the court.

How so? The court doesn't see discovery unless there is a conflict.

I don't know if the response was an attempt to misguide the court, but look at the request and that response.

The request was to admit that the Plaintiff does not create or maintain records FOR Citibank.

The response states that the Plaintiff maintains records for the assigned account. The account was allegedly assigned to LVNV. Therefore, LVNV maintains the records for LVNV.

That wasn't the admission request.

Then there's the word "create". LVNV denied the request. It might be argued that they're claiming they CREATE records for Citibank and maintain those records FOR Citibank.

They simply did not respond to the specific request about creation and maintenance FOR Citibank.

[SkippieB]

Wow!

To Bruno, BV80, and BT0420

xangelxxangelxxangelxxangelxxangelxxangelxxangelxxangelxxangelx

I can't thank you enough! Going to use your posts to write my motion to compel that's for sure.

Got the rest of my discovery requests yesterday sent-and not served-:roll:October 30th. Again not only were they untimely sent but they were again riddled with boilerplate objections about my requests being vague, privileged info, etc. And, of course I fired off two more letters (one for POD and the other for Interrogs) stating the same thing-revise and eliminate the objections as you have no right and quoted the applicable law. Gave them seven days and also told them you need to serve them this time.

They also sent the same 12 unverified credit card statements they sent for my request for a BOP!

Their idea of producing documents to prove an unbroken chain of assignment (from Sears Bank to LVNV) was the same old same old:

1) Generic Bill of Sale-between CITIBANK and Sherman Originator III LLC titled "Assignment and Assumption Agreement" which refers to another document "Purchase and Sales Agreement dated December 11, 2008 that is not attached. Also no mention at all of my account. Just states that they sold "Accounts described in section 1.2 of the Agreement" which they do not include! Surprise!

2) Transfer Docs from Sherman Originator III to Sherman Originator to LVNV titled "Affidavit of Transfer" and "Declaration of Account Transfer" that refers a transfer of "receivables" and "assets" and an "Exhibit A" and notes the files "Assets include electronically stored business records" which we all know can be torn apart-I found a great depo on-line where an attorney attacks electronically transfer docs.

3) Exhibit A- single sheet of paper with no real identifying info including who created the document, my name, the credit card account Number, balance, payments, credits, fees, etc. It was obviously something they printed off from some computer file (which they do not identify) that says:

Receivables File

02.04.10 Transfer Group 147991 Portfolio 14264 Transfer Batch N/A

4) Sworn Affidavit from the infamous "Tina Weedin" an employee of Citibank that is hogwash and includes the evasive #4 I've seen elsewhere for Sears/Citibank accounts lawsuits here in Cali:

#4. That the records of Citibank indicate that account ending xxxxx-1234 was opened on, or acquired by Citibank on 2/1/1996.

Question: So which was it? Did LVNV acquire the account on 2/1/1996 or did you LVNV open an account for me on 2/1/1996. T

Real Answer: The Account was opened by Sears National Bank NA of Tempe Arizona on 2/1/1996 as a store card. In March of 2001 Sears upgraded the card to a Sears Gold MasterCard and Citibank purchased Sears National Bank financial services n November or October of 2003. But of course they don't say that.

I haven't read through their responses yet as I have better things to do as they are, as stated above so riddled with objections that they are worthless.

I did see where they admit the original agreement was lost, destroyed-etc which doesn't matter since they are claiming "Account Stated" which again they offer no proof of just a bunch of unverified credit card statements that do not start with a zero balance and do not come near justifying the amount sued upon.

I did catch one lie-if you can call it that. What say you to this Bruno, BV80, and BT0420:

In their complaint LVNV says they acquired the account on Jan. 29, 2009 and even want pre-judgment interest back to that date. All their proof of sales, assignment and transfers of the debt state the account was purchased on Feb. 3 and transferred on Feb 4th. Any violations there?

Lastly, I'm going to my local courthouse in a couple of hours for a scheduled trial for another LVNV defendant to see if anyone shows. The on-line court records for that defendant makes no mention of any trial briefs being filed which I thought must be done x days before the actual trial which is still a go. My county updates things in real-time btw.

Carol-Lynn

2)

Edited November 2, 2012 by SkippieB

[SkippieB]

Read through the junk they sent me and have a couple of questions:

Interrogatories:

#2. On September 7, 2012 did the PLAINTIFF or its counsel posses any written credit application signed by the DEFENDANT or any written contract signed by the DEFENDANT. If your answer is yes, please identify any such DOCUMENT by date, sender, recipient, location and custodian.

Response Same BS about vague, conjunctive, etc and then this one:

"The account originated on or about Feb. 1, 1996, Plaintiff's predecessor in interest is no (their spelling error not mine) required to retain copies of the application for that many years per regulation Z. In accordance with Regulation Z, thruth (their spelling errors not mine)in lending, Plaintiff's predecessor in interest is required to kepp (their spelling error not mine-again!) applications on openended(their error not mine) accounts for a period of 24 months. Plaintiff does not have the credit application, as it was either lost or destroyed under Regulation Z. Discovery and investigation are continuing.

All this for a yes or no response Talk about over-kill and someone should proof read the garbage they churn out! Gawd!

#3 Asked them when the last payment was made etc. and they made a mistake with the date of last purchase: They said it was 7/15/2009 and the last purchase was actually 5/25/2009 according to the credit card statements they themselves sent me. Nothing posted for July 15, 2009-period.

Also asked them when CITIBANK opened the account and they tried an end-run by saying: Origination Date-2/1/1996 with no mention of CITIBANK in the statement or any other original creditor-like SEARS for that matter.

This is their attempt to substantiate the CITIBANK affiant's, Tina Weedin's statement under item #4 of her affidavit they also sent me:

"That the records of Citibank indicate that the account ending in 1234 was opened on, or acquired by Citibank on, 2/1/1996.

In essences they are trying to mislead the court into believing that CITIBANK and not SEARS was the original creditor despite (or maybe in spite of) the fact that all the billing statements that they ponied up are entitled "Sears Premier MasterCard" prepared by Sears Card Services. Egad!

This is something we've talked about before on the board-Don't they have to at least acknowledge that SEARS was the O.C.? As I pointed out before Sears Bank NA issued me a store card 2/1/1996 which was converted to a Sears MasterCard in March 2001 and sold to CITIBANK in October 2003 (when they bought Sears Financial Services, so their statement is intentionally misleading-Right?

Well anyway, as stated in my last post I fired off a m&c letter saying you lost the right to object when you failed to respond within 35 days and you didn't serve them you sent them so REDO or I'll file oceans of motions. I mean I do have that right seeing they were sent on Oct. 30th instead of served by Oct. 19th (30 days plus five for mailing)-correct. I didn't shoot myself in the foot did I?

One last question for Bruno, et al.

Since they sent me a sworn affidavit from a Citibank employee-and not a LVNV moron-that stated she has access to Citibank records and all that mumbo-jumbo should I worry?

It's a form affidavit that I've seen submitted for a default cases here in California by JDBs from CITIBANK that consists of seven items that tries to imply that the JDB has does have an unbroken chain of custody (is entitled to sue) and the amount charged-off substantiates LVNV's account stated claim.

Essentially what I'm asking is will this hold-up to the business rule exception to hearsay? Lastly, is all lost or can I defuse this ticking time bomb by issuing a subpoena (when the time comes) and require her to come to court so that I can ask her point blank what she really knows?

Thanks,

Carol-Lynn

Edited November 3, 2012 by SkippieB

[antiquedave]

I did what Gunny was suggesting, sent back my objections and why what I was requesting was important to my case and should be answered and then incorporated all of that information including the responses into the motion to compel,

I even dropped a couple that were in the original discovey and accepted their answer on a couple so I could focus the motion to compel on what was really important to me.

[BrunoTheJDBkiller]

Also asked them when CITIBANK opened the account and they tried an end-run by saying: Origination Date-2/1/1996 with no mention of CITIBANK in the statement or any other original creditor-like SEARS for that matter.

That's because Citibank did not buy out Sears Bank NA until 2003. This puts Citi in a semi JDB position.....did they verify the accuracy of all the accounts? Request all the sale / merger / whatever documents to find out. Or, hold them to their 1996 answer and make them prove it. They can't.

Plaintiff does not have the credit application, as it was either lost or destroyed under Regulation Z.

If they don't have it, how do they know it was lost or destroyed, or for that matter, that it ever existed? Could be an unsolicited credit card, which violates REG Z 226.12a, they like to quote Reg Z, let's see how they like it when it is used properly. By the way, that part they mentioned is for TILA compliance. There is no language that suggests they cannot keep records for a longer period of time, this is not mandatory destruction.

In Newgard ex rel. Newgard v. Bank of America, 735 NW 2d 578 - Wis: Court of Appeals 2007, the Court stated: “¶ 15 Finally, the Banks argue the Estate's interpretation is absurd because it allows the Banks' customers — especially longstanding customers with higher balances — to escape their obligations when the Banks purge old records. However, this interpretation is no less absurd than the Banks' proposition that they must retain almost no records at all. We also note that the length of time the Banks retain records is within the Banks' control, as is the Banks' method of payment allocation.[4] We see nothing absurd about requiring the Banks to retain the records of charges for which they wish to collect payment. On remand, the court shall disallow all claims by the Banks based on transactions not shown on the records submitted by the Banks.

The 2 year retention argument loses:

Capital One Bank (USA), NA v. Denboer, 791 NW 2d 264 - Iowa: Court of Appeals 2010: “Capital One argues that under Regulations of the Truth in Lending Act, it is only required to maintain credit card statements for two years. 12 C.F.R. § 226.25. However, there is no suggestion this law preempts more stringent record retention requirements that may arise in other contexts.” In Citibank (South Dakota), NA v. Mincks, 135 SW 3d 545 - Mo: Court of Appeals, Southern Dist., 2nd Div. 2004, the Court stated: “As a remedial act, the Truth-in-Lending-Act must be strictly construed against creditors and liberally construed in favor of consumers. Stein v. JP Morgan Chase Bank, 279 F.Supp.2d 286, 291 (S.D.N.Y. 2003); In re Derienzo, 254 B.R. 334, 340 (Bkrtcy.M.D.Pa.2000); Dillard Department Stores, Inc. v. Owens, 951 S.W.2d 915, 917 (Tex.App.1997); Super Chief Credit Union v. Gilchrist, 232 Kan. 40, 653 P.2d 117, 122 (Kan.1982); Pearson v. Easy Living, Inc., 534 F.Supp. 884, 890 (S.D.Ohio 1981)….”Truth-in-Lending-Act and its implementing regulations specify both the nature and timing of required disclosures that must be made to the consumer before such a plan can be established. See 15 U.S.C. § 1637(a) (identifying the required disclosures which the creditor must make "efore opening any account under an open end consumer credit plan"); 12 C.F.R. § 226.5((1) (requiring the creditor to "furnish the initial disclosure statement required by § 226.6 before the first transaction is made under the plan"); 12 C.F.R. § 226.6 (identifying what must be included in the creditor's initial disclosure statement).”

Your account was not "acquired" in 1996.

You can attack the affiant, prob Teri Ryning or Ramona Aragon, these are interested witnesses who never find against their employer, and sign what, 300 of these per day? And they have specific personal knowledge of your account? Bull. Ask them what you bought on a certain date and see them lock up. All they know is what their boss tells them they know. Otherwise they are out of a job.

[BV80]

"That the records of Citibank indicate that the account ending in 1234 was opened on, or acquired by Citibank on, 2/1/1996.

In essences they are trying to mislead the court into believing that CITIBANK and not SEARS was the original creditor despite (or maybe in spite of) the fact that all the billing statements that they ponied up are entitled "Sears Premier MasterCard" prepared by Sears Card Services. Egad!

I would definitely use this. Citibank didn't open the account or acquire it on that date. It's possible you could use that to cast doubt on Tina Weedin's testimony. In her affidavit, did she claim to have reviewed records? If so:

1. Who wrote the affidavit? Was it Tina Weedin or someone else? Upon what records did that person rely to make the statements in the affidavit?

2. There's no record that could possibly indicate that Citi opened or acquired the account on 2/1/1996 because Citi could not have done either of those things on that date. If Citi has a record that indicates they opened or acquired the account on that date, it's a false record.

3. If Tina Weedin didn't write the affidavit, what records did she review to make that statement? Was she reviewing a false record created by Citi? If there is no record created by Citibank, then that means she could not have reviewed any record at all that would support that statement.

Therefore, her claim that she reviewed records is untruthful. I would argue that this casts doubt on the entire affidavit.

1. Since her statement that the account was opened or acquired by Citi on 2/1/1996 has been proven false because Citi could not possibly have a record that supports that statement, it's obvious she did not review any records at all before signing the affidavit.

2. Citi included a false statement in their affidavit.

Edited November 3, 2012 by BV80

[BrunoTheJDBkiller]

HAH! BV80 just killed your affiant for you. I would pay good money to see Tina on the stand. Live or die by what you put in your papers. There is no crying in baseball, and there are no "permissible errors" in responses to discovery. Affidavit made in bad faith anyone? CALawyer will know the rules for this.

[calawyer]

Any inaccuracy of the affidavit will be nice impeachment at trial.

The objection based upon any "legal conclusion" called for in the discovery is baseless. Here is the code itself:

2033.010. Any party may obtain discovery within the scope delimited

by Chapters 2 (commencing with Section 2017.010) and 3 (commencing

with Section 2017.710), and subject to the restrictions set forth in

Chapter 5 (commencing with Section 2019.010), by a written request

that any other party to the action admit the genuineness of specified

documents, or the truth of specified matters of fact, opinion

relating to fact, or application of law to fact. A request for

admission may relate to a matter that is in controversy between the

parties.

That is exactly what you have done. You are trying to narrow issues at trial. Would plaintiff prefer discovery on how many lawsuits it files/ how many collection calls it makes in a given day/month/year in California?

[SkippieB]

HAH! BV80 just killed your affiant for you. I would pay good money to see Tina on the stand. Live or die by what you put in your papers. There is no crying in baseball, and there are no "permissible errors" in responses to discovery. Affidavit made in bad faith anyone? CALawyer will know the rules for this.

He sure did! Many thanks to the both of you and Calawyer!

It keeps getting better and better.

Spent a couple hours yesterday preparing my 2nd Meet & Confer letter in response to their non-responsive objection laden boilerplate ROGS.

Guess what-another violation. Why? They responded to 11 ROGS and I only had 10. Oh yeah baby! Mindless cut and pasting is a violation of the discovery process! Here is what I told them.

#11 Plaintiff's ResponsePlaintiff objects to this interrogatory on the grounds that it is compound, conjunctive or disjunctive in violation of C.C.P. section 2030.060(f). Plaintiff further objects to this interrogatory on the grounds that it includes information which is privileged and protected from discovery under the attorney client privilege and attorney work product privilege.Plaintiff still needs to:No need to answer unfortunately there was no interrogatory #11. Perhaps someone got cut and paste happy here! Hope not as that is an abuse of the discovery process-i.e., mindlessly cutting and pasting boilerplate objections in an attempt to circumvent answering the question.

Was that over-kill? Anyway I'll take the snarky stuff out if you guys think it is. It just felt so good to show them what morons they are.

I included the stuff about Regulation Z too guys-thanks. Stating Reg Z is no defense for destroying the credit application and is for compliance purposes for audits only. Plaintiff can not issue a card without an application and it it did so it was in violation of Reg Z Part 226.12.

I've printed off all nineteen pages of this thread to use to compile the rest of my second M&C and to use in my MTC. We have a trial setting hearing scheduled for Nov. 21st and also my MTC further BOP the day before-Nov. 20th. Their response to that is due on Tuesday-if they don't respond in time do I need to even make a reply? I've already submitted a proposed order so I'm thinking the answer is no-let me know guys! You're the best.

Carol-Lynn

Edited November 4, 2012 by SkippieB

[SkippieB]

Any inaccuracy of the affidavit will be nice impeachment at trial.

Thanks. I've already started picking apart her answers. Stuff like I have knowledge of the books and records-so big woop! and know they are "true and accurate"-really creditors never make make a mistake on people's accounts. I Facebooked the lady and here is her education-went to some strip-mall new-age school with the term aesthetic in its title that she dropped out of last year. And the Notary's signature was robo-signed. Not that that may impress a judge but I pulled three other affidavit's the guy signed from Cali court records and even a fourth grader could tell they were forgeries. Please spare me.

The objection based upon any "legal conclusion" called for in the discovery is baseless. Here is the code itself:

2033.010. Any party may obtain discovery within the scope delimited

by Chapters 2 (commencing with Section 2017.010) and 3 (commencing

with Section 2017.710), and subject to the restrictions set forth in

Chapter 5 (commencing with Section 2019.010), by a written request

that any other party to the action admit the genuineness of specified

documents, or the truth of specified matters of fact, opinion

relating to fact, or application of law to fact. A request for

admission may relate to a matter that is in controversy between the

parties.

That is exactly what you have done. You are trying to narrow issues at trial. Would plaintiff prefer discovery on how many lawsuits it files/ how many collection calls it makes in a given day/month/year in California?

Or how they use the courts to strong-arm people into paying a debt they can't prove the own and paid maybe three percent of the amount being sued upon (not that I'm against Capitalism but come on!

Thanks CalLawer-that's what I thought too.

Will use your response verbatim in my second meet and confer letter and in my memorandum in my motion to compel. I'm sure the judge won't be overly impressed with LVNV's moronic objections either.

Carol-Lynn

Edited November 4, 2012 by SkippieB

[calawyer]

I know you are fired up, but remember that the Judge will read this letter and you are really writing it for her. The following is too cute:

#11 Plaintiff still needs to:No need to answer unfortunately there was no interrogatory #11. Perhaps someone got cut and paste happy here! Hope not as that is an abuse of the discovery process-i.e., mindlessly cutting and pasting boilerplate objections in an attempt to circumvent answering the question.

I would say: "Although plaintiff has objected to Interrogatory number 11, there was no such interrogatory. Defendant believes that this response exemplifies the lack of care that plaintiff exhibited in responding as well as its determination to object rather than to provide a good faith response."

[BV80]

I included the stuff about Regulation Z too guys-thanks. Stating Reg Z is no defense for destroying the credit application and is for compliance purposes for audits only. Plaintiff can not issue a card without an application and it it did so it was in violation of Reg Z Part 226.12.

I have to disagree with this. First, the Plaintiff didn't issue the credit card.

Second, I know that Bruno stated," There is no language that suggests they cannot keep records for a longer period of time, this is not mandatory destruction" and I agree with that. It's true. BUT, there's nothing in Reg. Z that states the records must be kept longer than 2 years. There is no mandatory destruction, but there's requirement to keep the records longer than 2 years either. So far, I've found no case law that states records must kept longer than that.

Third, they have no control over what the OC did with an application.

Therefore they are not in violation of Reg. Z.

Also, if the judge were to ask you if you filled out an application, could you truthfully state "yes"? If you didnt' fill out an application, there wasn't one for the OC to retain in the first place.

Edited November 4, 2012 by BV80