my3dogs

Need help received Motion to Stay Discovery and Schedule Discovery Conference

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Sorry fo making my first post so long time is of the essence and trying to give all info to get as much help as possible.

 

I am in the process of fighting FIA Card Services N.A. and sent out the courtesy letter reminding them they have exceeded the 30 day allowance for discovery that was requested on November 1st  and if not received within 10 days I will move forward to fie Motion to Compel Discovery. I am in the state of NH.

In respose I received from Plaintiff Motion to Stay Discovery and Schedule Discovery Conference!!!! What is this??

They had 6 points in the Motion and #4 states:

Based upon Defendant's objection to the motion for summary judgement and questions propounded in discovery, there appears to be a great disconnect about what this case is about. Such would and has created a disproportionate and inordinate amount of discovery, (and likely motions to compel, motions to extend time to respond to discovery requests, ect.) for the type of matter this is.

They also stated Plaintiff's counsel is unable to reach Defendant to discuss Discovery issues, as Plaintiffs counsel does not have a telephone number for Defendant.

 

I already responded to their Discovery.. 

 

Do I answer by filing an objection to the Motion to Stay Discovery and Schedule Discovery????

They have my telephone number from when I answered the Writ of Summons after they filed a Summary Judgement!!!!

How do I respond to this? 

 

I requested the following:

 

For the Production of Documents I asked for:

Provide validation of this debt to include but not be limited to:
1. Complete Chain of Custody / notice of Sale or Assignment
2. Original Credit Card Application
3. Original Credit Card Agreement Dated when alleged account was open
4. Complete Detailed History of the Alleged Account in question
5. Affidavit from Original Creditor that debt owed is correct
6. Authentication of all documents
7. Calculation of alleged debt
8. Copies of sales receipts signed by defendant with the original creditor from any purchases made
9. All monthly billing and statements for said alleged debt
10. Proof of last payment made to said alleged debt
11. Produce a copy of the initial communication sent by plaintiff to defendant regarding the debt she allegedly owes on the revolving account.
12. Produce all communications between the original creditor and each collection agency that attempted to collect the alleged debt.

13. All other evidence, not requested by the defendant, that plaintiff may use at trial, all phone records, information stored on hard drives or flash drives, and all information stored on: logs, note, tapes, fax, and any notes or witnesses who may be called.
14. Provide any and all credit report(s) plaintiff and/or plaintiff's attorney obtained from any credit reporting agency concerning the defendant.

FOR THE INTERROGS I ASKED:

Interrogatory No 1:
State the complete name and address of the original creditor for the alleged revolving account under which defendant allegedly owes the plaintiff (hereafter referred to as 'revolving account') as well as the date plaintiff purchased the account.

Interrogatory No.2:
Identify Affiant whom submitted the AFFIDAVIT within the WRIT OF SUMMONS by job title, job description what affiliation he has with the alleged debt, business address and telephone number:

Interrogatory No 3:
Was the revolving account opened via a written or verbal agreement?

Interrogatory No 4:
Do you have a written policy for the retention of documents, including but not limited to originally signed contracts, billing statements, and payment history records? If so,

A. Produce copies of any and all written policies, signed contracts, billing statements and payment history records for the retention of documents, for the alleged debt owed.

Interrogatory No. 5
Annex copies of all documents relative to this matter. This should include all documents upon which plaintiff intends to rely at trial or which in any way relate to the subject of this suit. The documents so produced should include: A. Any documents relating to the information of the obligation in question, including preliminary communications, credit applications, guarantees, acknowledgments, contracts and specifications. B. Any documents relating to the accounting of the balance including, invoices, statements, credit memoranda, accounting documents. C. Any documents relative to any communications between the parties including correspondence and other written communications.

Interrogatory No. 6
Provide detailed accounting of the interest, late fees, contractual obligations for the alleged revolving account:

Interrogatory No. 7
Provide a complete list of all witness you plan to call, name and address, position within the company and what evidence they might have or give.

Interrogatory No. 8
Provide a complete list of any expert witness you plan to call, their education, training and what evidence they can offer.

Interrogatory No. 9
Provide a complete detailed account history for this debt, from the original creditor until purchased by the plaintiff.

Interrogatory No. 10
How was this debt purchased?

Interrogatory No. 11
Provide canceled check (front & back) or electronic file transmissions corresponding to and in response to alleged payment made on 02/02/2012 for $157.00:.

And Request for Admissions I asked:

1) Please admit or deny that this account is a revolving account as defined under the Truth in Lending act 1602.

 
 

 

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File a an objection to plaintiffs motion, in it you claim that the plaintiff is stalling for time and can not meet the burden of discovery that you have asked for..

 

also file an order to show cause.in it you ask the plaintiff to show cause as to why a confence needs to be held and why they do not want to participate in your discovery as you answered theirs.

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First, I would lik to thank you for your time served....

 

When you say file an order to show cause, would this be a motion? 

 

Also, this is what I have put together for an objection. Should it be more lengthly?  Any other suggestions of wat may be added?

 

Also reason certified mail receipt is exhibit I is previous Objection I filed had exhibits all the way to H and wasn't sure if exhibits continue on or starte at A again!

 

 

OBJECTION TO: MOTION FOR SUMMARY JUDGMENT

Now comes the Defendant and files this OBJECTION TO PLANTIFF’S MOTION TO STAY DISCOVERY and SCHEDULE DISCOVERY:

 

1. Defendant received the Plaintiff's request for INTERROGATORIES on November 15, 2012 VIA U.S. REGULAR MAIL NON-CERTIFIED.

 

2. Defendant answered Plaintiff’s INTERROGATORIES and Plaintiff was in receipt of the INTERROGATORIES per certified mail receipt (hereinafter referred to as Exhibit I) on November 28, 2012.

 

3. Defendant believes plaintiff is stalling for time and is unable to meet the burden of discovery that Defendant has asked for.

 

4. Defendant also would like to bring the attention to the honorable court the APPEARANCE (hereinafter referred to as Exhibit A) filed by Defendant on October 31, 2012. The Defendant listed on the APPEARANCE contact information including address as well as telephone number. The Plaintiff states in Motion to Stay Discovery and Schedule Discovery "Plaintiff's counsel is unable to reach Defendant to discuss discovery issues, as Plaintiff's counsel does not have a telephone number for Defendant" Plaintiff per certified mail receipt (hereinafter referred to as Exhibit B) has had the Defendant's complete contact information in possession since November 2, 2012. 


WHEREFORE, Defendant, respectfully requests this Honorable Court deny the Plaintiffs Motion.

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Stay Discovery and Schedule Discovery?  You're asking to both stop Discovery and then schedule it?  That doesn't make sense to me.  

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Defendant believes plaintiff is stalling for time and is unable to meet the burden of discovery that Defendant has asked for.First, I would lik to thank you for your time served....

 

When you say file an order to show cause, would this be a motion? 

 

Also, this is what I have put together for an objection. Should it be more lengthly?  Any other suggestions of wat may be added?

 

Also reason certified mail receipt is exhibit I is previous Objection I filed had exhibits all the way to H and wasn't sure if exhibits continue on or starte at A again!

 

 

OBJECTION TO: MOTION FOR SUMMARY JUDGMENT

Now comes the Defendant and files this OBJECTION TO PLANTIFF’S MOTION TO STAY DISCOVERY and SCHEDULE DISCOVERY:

 

1. Defendant received the Plaintiff's request for INTERROGATORIES on November 15, 2012 VIA U.S. REGULAR MAIL NON-CERTIFIED.

 

2. Defendant answered Plaintiff’s INTERROGATORIES and Plaintiff was in receipt of the INTERROGATORIES per certified mail receipt (hereinafter referred to as Exhibit I) on November 28, 2012.

 

3. Defendant believes plaintiff is stalling for time and is unable to meet the burden of discovery that Defendant has asked for.

 

4. Defendant also would like to bring the attention to the honorable court the APPEARANCE (hereinafter referred to as Exhibit A) filed by Defendant on October 31, 2012. The Defendant listed on the APPEARANCE contact information including address as well as telephone number. The Plaintiff states in Motion to Stay Discovery and Schedule Discovery "Plaintiff's counsel is unable to reach Defendant to discuss discovery issues, as Plaintiff's counsel does not have a telephone number for Defendant" Plaintiff per certified mail receipt (hereinafter referred to as Exhibit B) has had the Defendant's complete contact information in possession since November 2, 2012. 

WHEREFORE, Defendant, respectfully requests this Honorable Court deny the Plaintiffs Motion.

I would change 3. Defendant believes plaintiff is willfully attempting to thwart discovery and is unable to meet the valid discovery requests that Defendant has asked for. Defendant objects as the stalling and motion is using up court resources better used for trial.

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IT should say Objection to Motion to Stay Discovery and Schedule Discovery not Summary Judgement. I apologize.

objection plaintiffs motion to stay and schedule

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i would also file a motion to compel discovery

I would also bring up the fact that the plaintiff is not following the rule of trial procedure.

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You have some fundamental problems here, you are messing this up and apparently nobody here has spotted why. I rarely agree with opposing counsel, but in this case I feel that they are correct in what they said about your understanding of this matter. Your first mistake is your contention that you are delaing with a junk debt buyer / assignee. You are not, according to what you posted. FIA Card Services is Bank of America's credit card division, they are the original creditor. Therefore most of your discovery is improper, irrelevant, and misguided. They probably want this conference so that they can embarrass you in front of the judge by telling him how little you know. By sending all this discovery, you are wasting the other side's time through a lack of knowledge, which the court will not like at all. You are filing motions and objections  inapposite to the subject at hand, also frowned upon. I suggest you do some more reading.

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I respect all opinions and suggestions.

 

However, How does one have to obide by the law and not the other. I returned the propounded Discovery request I received from the plaintiff back to the Plaintiff 13 days after I received it.  

Do I not have the same rt to receive the Discovery I requested???

 

At this point in time if I do not obejct to the motion and the judge grants the Motion Plaintiff filed the outcome would be the same as if he denies my Objection. Correct?

 

So why not give it a shot and file an Objection and Motion to Compel. They didn't file the Motioin until after their 30days for Discover was up. The Plaintiff had a whole month to fie this Motion before their deadline for Discovery and they didn't. Not to mention the fact the Plaintiff straight out lied in their Motion on #5. As little as it is it still has to say something to the court on the credibility.... When I have provided an Exhibit both the Plaintiff and the court received with my full contact info.

 

 

This is exactly what the Motion the Plaintiff filed says:

 

Motion to Stay Discovery and Schedule Discovery Conference

 

The Plaintiff hereby requests this Honorable Court stay discovery for both parties and schedule a discovery conference.

 

1. The Plaintiff filed suit against the defendant based upon a credit account.

 

2. Both parties have propoundd discovery.

 

3. The Plaintiff has filed a motion for summary judgement, which has been objected to by the defendant.

 

4. Based upon Defendant's objection to the motion for summary judgement and questions propounded in discovery, there appears to be a great disconnect about what this case is about.

Such would and has created a disproportionate and inordinate amount of discovery, (and likely motions to compel, motions to extend time to respond to discovery requests, ect.)

for the type of matter this is.

 

5. Plaintiff's councel is unable to reach Defendant to discuss Discovery issues, as Plaintiff's councel does not have a telephone number for Defendant.

 

6. Plaintiff's counsel believes granting this motion would be in the interest of judicial aconomy and could result in settlement.

 

Wherefore, Plaintiff requests this honorable court gant this motion

 

 

I have added to my Objection the suggestions BTO49 and SEADRAGON made and have the following:

 

OBJECTION TO: MOTION TO STAY AND SCHEDULE DISCOVERY

 

1. Defendant received the Plaintiff's request for INTERROGATORIES on November 15, 2012 VIA U.S. REGULAR MAIL NON-CERTIFIED.

 

2. Defendant answered Plaintiff’s INTERROGATORIES and Plaintiff was in receipt of the INTERROGATORIES per certified mail receipt (hereinafter referred to as Exhibit I) on November 28, 2012.

 

3. Defendant believes plaintiff is willfully attempting to thwart discovery and is unable to meet the valid discovery requests that Defendant has asked for. Defendant objects as the stalling and motion is using up court resources better used for trial.

 

4.The Defendant’s is in full understanding of this case and filed the objection to the motion for summary judgment as well as requested discovery specifically for the type of matter for the Plaintiff has not provided any proof this is even the defendants alleged debt.

 

5. Defendant would like to bring to the honorable courts attention the APPEARANCE (hereinafter referred to as Exhibit A) filed by Defendant on October 31, 2012. The Defendant listed on the APPEARANCE contact information including address as well as telephone number. The Plaintiff states in Motion to Stay and Schedule Discovery "Plaintiff's counsel is unable to reach Defendant to discuss discovery issues, as Plaintiff's counsel does not have a telephone number for Defendant. Plaintiff per certified mail receipt (hereinafter referred to as Exhibit B) has had the Defendant complete contact information in possession since November 2, 2012.

 

6. The Plaintiff is not following the Rule of Trial Procedure and is using up court resources better used for trial.

 

All opinions are greatly appreciated and never taken personal. 

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Bruno is right. You are asking for a chain of custody and bill of sale when your account has not been sold. That is why the opposition feels you don't have a grasp of the case. Is it the original creditor suing you? If so, why would you ask who the original creditor is?

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my3dogs  - I'm not the best person to listen to about this stuff, as I'm pretty new to it as well. But I've been stalking this forum for almost two months now reading over posts and trying to patch info together for my case. There's just a few little bits of adivice I can give you as a newbie though:

 

#1 - if someone tells you something that is not what you want to hear don't get defensive about it. The people here are genuinely trying to help. And from what I've seen Bruno generally seems to know what he's talking about. Getting defensive or argumentative because someone says you are doing something wrong will only make people less willing to help you. Listen to what he's saying and go back and look at your paperwork to see the point he's trying to make. it could save you a lot of agony and frustration in the end.

 

#2 - the best way people can help you is if you provide all info up front.  that's why they stickied that questions to answer when posting . I highly recomend that you quick fill that out and post it here, along with the initial complaint that you recieved so that people can see if you are being sued by the original creditor or a junk debt buyer like Midland. It makes a HUGE difference in your case how to proceed from what I've been seeing from other people. Again, this could keep your entire case from getting tossed and you getting embarrsed and losing for filing frivolus motions and wasting the court and the lawyers time that you might end up having to pay hard earned money for.

 

 

Other then that I can't contribute much other then to say good luck. I'm fighting my own fight right now so I know how frustrating this is. Remember to keep a cool head and you can get through this.

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I understand BofA is now FIA Card Services.

 

However, they have no accurate information on me.

 

They reported last payment to them was in February of 2012 for $157.00. They also stated this in their Affidavit and their Summary Judgment.

This is a complete lie.

 

Also, on the bottom of all documentation I have received states that the COMMUNICATION IS FROM A DEBT COLLECTOR!

 

They asked me in their interrogatories to provide them with a copy of the check I made the payment with to them in February, 2012. I never made this payment!

 

All the questions they have requested in their interrogatories looks like nothing more than a fishing expedition on their part.

 

The only thing thatwas ever provided to me from them and it was with the Motion for Summary Judgement was photo copies of BAnk of America Statement from 01/2010 to 01/2011.

 

No payments in any and the last statement shows CHARGE OFF ADJUSTMENT!

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Sorry Bruno!!!!

 

I apologize to all if anyone found any one of my responses as defensive... Absolutely 100% absorbing all advise. Not meaning to be or trying to be defensive to anyone in anyway!

 

I asked for the chain of custody because BofA states its a charg off and if FIA is BofA and it say This Communication is from a De bt Collector at the bottom of all the Mottions and Judgments ect...?

 

So confusing!

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Thank you ITSBACON for the stickie!!!

 

Sorry all for being backwards on this. Waited almost a month to be capable of posting and got a bit ahead...

 

1. plaintiff in the suit is FIA CARD SERVICES

2.  law firm handling the suit is LAW OFFICES HOWARD LEE SCHIFF P.C.


3. being sued for -- $8,416.28

4. Who is the original creditor? Bank of America

5. How do you know you are being sued? Summary Judgment Served

6. How were you served? Notice on Door

7. Was the service legal as required by your state? YES

8. What was your correspondence (if any) with the people suing you before you think you were being sued? No Correspondence FIA never tried contactin me

9. What state and county do you live in?  NH

10. When is the last time you paid on this account? April 2010

11. What is the SOL on the debt? 3 YEARS

12. What is the status of your case?

Returned plaintiffs request for Discovey. Plaintiff is overdue in returning their Discovery. Sent Courtesy reminder letter and received Motion for Stay and Schedule Discovery.

13. Have you disputed the debt with the credit bureaus? NO

14. Did you request debt validation before the suit was filed? NO

15. How long do you have to respond to the suit? N/A

16. What evidence did they send with the summons? Affidavit? One Statement fromBank of America dated 12/9/2010 and a Military Service Affidavit.


 

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I believe that technically speaking any bank or business that attempts to collect on a debt, being the original creditor or anyone else who takes it over is considered by definition a debt collector. Just as if you were behind in your mortgage and they called you there would be a message stating on the phone that "this is an attempt to collect a debt". I don't think that statement alone is enough to go off of as to if you can treat this as a JDB or an OC.

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WOW   the gunny must be getting old,, need my eyes check....We have a whole different animal here with FIA card services.....We are  dealing with the OC...that changes every thing.

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I believe that technically speaking any bank or business that attempts to collect on a debt, being the original creditor or anyone else who takes it over is considered by definition a debt collector. Just as if you were behind in your mortgage and they called you there would be a message stating on the phone that "this is an attempt to collect a debt". I don't think that statement alone is enough to go off of as to if you can treat this as a JDB or an OC.

No the OC is not considered a debt collector under the fdcpa, or any other laws,,,read the definitions in the fdcpa.

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Your forgiven gunny. I know that all of us that were around in the 60's and 70's basically learned to shoot them all and let the good lord sort it out later :clapper: .

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The law firm representing FIA the OC branch of BofA is the "debt collector".   But it appears FIA is BofA standing as original creditor via law firm that filed action.

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I understand BofA is now FIA Card Services.

 

However, they have no accurate information on me.

 

They reported last payment to them was in February of 2012 for $157.00. They also stated this in their Affidavit and their Summary Judgment.

This is a complete lie.

I don't know why they would do this, unless you were beyond the statute of limitations, which does not appear to be the case. This is a common trick some lawyers use to extend the SOL, although usually they'll do twenty bucks, not 157. The 157 actually reduces the balance on the account, that doesn't help them at all.

 

Also, on the bottom of all documentation I have received states that the COMMUNICATION IS FROM A DEBT COLLECTOR!

The OC is represented by counsel, that's who you're dealing with. The OC will not contact you. HLS is a collections firm, anything they send you must have the disclaimer, this is federal law. Means nothing.

 

They asked me in their interrogatories to provide them with a copy of the check I made the payment with to them in February, 2012. I never made this payment!

Ask THEM for a copy, since they claim you made the payment. They are trying to establish one element of account stated by proving you made a payment. It's the weakest element, everybody makes payments.

 

All the questions they have requested in their interrogatories looks like nothing more than a fishing expedition on their part.

That's what it is. They are hoping you'll give them something they can beat you with.

 

The only thing thatwas ever provided to me from them and it was with the Motion for Summary Judgement was photo copies of BAnk of America Statement from 01/2010 to 01/2011.

 

No payments in any and the last statement shows CHARGE OFF ADJUSTMENT!

Charge off is an accounting term. It means they wrote off the debt as uncollectible. In the event they ever do collect, the money they get will be taxable.

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I remember some discussion on whether FIA being an independent subsidary of BOA was a separate enity and thus a collections agency..............Can't remember the thread that was in. BOA cards are serviced by FIA, so is FIA the OC or is BOA the OC.

 

Heres an attorney in Pittsburg take on FIA.

 

http://www.gregartim.com/fia.htm

 

Since they claim to be a third party as such shoud be considered a collections agency.

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Since they issued the card, legally they are a creditor. They are not a third party debt collector under the FDCPA because they are collecting for themselves. Only their attorneys could fall into that category. I don't think anybody ever beat FIA by claiming that they did not have standing to sue.

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Since they issued the card, legally they are a creditor. They are not a third party debt collector under the FDCPA because they are collecting for themselves. Only their attorneys could fall into that category. I don't think anybody ever beat FIA by claiming that they did not have standing to sue.

 I'm thinking that is by design. BOA has come up with very create ways to screw there customers over the years. That's why I am no longer a customer and will never have anything to do with them or their enties again. As soon as I make some disposition of their card in my list of things to get rid of, the better off I'll feel. I dislike corporate crooks.

 

And your right, when they come after me I am going to attack them as an OC. Never underestimate these people.

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So ........ if one obtained a BofA credit card prior to June of 2006, before BofA (MBNA) changed it's name (merged) to FIA Card Services, would FIA still be considered the issuer of the card?

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