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RFA-Would I Be Shooting Myself In The Foot If:


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This is my second JDB lawsuit in nine months.  Have yet to be served. The first lawsuit (with another JDB) was dismissed w/o preJ.  thanks to all of the sage help I got here. That previous JDB objected to all RFAs. 

 

This time around I want to try and avoid such b.s. and have started work on "better" RFAs.  Rather than asking are you a debt collector and  don't have first hand knowledge of the books and records of the OC I thought maybe a better strategy would be to get them to admit that one of the six billing statements that they sent me, when I dvd them, was prepared by the O.C. and not the JDB and does not prove I owe the JDB anything.

 

Background: I dved both the JDB and the law firm that they subsequently sent my case to after failing to respond to my debt validation letter.  Eventually after several letters back and forth over a four month period of time, their lawyers sent me 6 months of credit card statements prepared by the OC.  I asked for a copy of any agreements assigning the debt to them but they never produce it-no big surprise and a full accounting of how they arrived at the amount they purported that I owed the JDB.

 

Would I be shooting myself in the foot if I asked them questions with respect to the lawyers final dv letter and a copy of one of the six billing statements or would I be shooting myself in the foot.  Here is what I've written so far.

 

Admit that the following documents listed below, the best copies of which are attached as Appendix A


1.  Is a true copy of a letter sent by Plaintiff's attorneys to Defendant on Jan .3, 2013.

2.  Is a true copy of a billing statement that Plaintiff's lawyer,     , sent to Defendant on
     Jan. 3, 2013.

3.  That this billing statement was not prepared in the regular course of business by
     the JDB.

4.  That this billing statement was prepared by the O.C.

 

Thoughts-welcome all.

 

Carol-Lynn

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This is my second JDB lawsuit in nine months.  Have yet to be served. The first lawsuit (with another JDB) was dismissed w/o preJ.  thanks to all of the sage help I got here. That previous JDB objected to all RFAs. 

 

This time around I want to try and avoid such b.s. and have started work on "better" RFAs.  Rather than asking are you a debt collector and  don't have first hand knowledge of the books and records of the OC I thought maybe a better strategy would be to get them to admit that one of the six billing statements that they sent me, when I dvd them, was prepared by the O.C. and not the JDB and does not prove I owe the JDB anything.

I think you are coming up with a better idea on strategy, but I personally would change the theory a bit. They are better off if the statements etc. are from the OC, and true copies of originals. You don't owe them anything because they don't have proper assignment, and you have to help them prove that. You want to try to get the documents inadmissible because they are not originals or true copies of (assuming the original will be available for trial). You would be better off if you can prove that THEY did prepare the docs, and NOT the OC. The reason you don't owe them is that they do not have standing to sue you, and you are attacking proof of ownership and assignment to the alleged debt. 

 

 

Background: I dved both the JDB and the law firm that they subsequently sent my case to after failing to respond to my debt validation letter.  Eventually after several letters back and forth over a four month period of time, their lawyers sent me 6 months of credit card statements prepared by the OC.  I asked for a copy of any agreements assigning the debt to them but they never produce it-no big surprise and a full accounting of how they arrived at the amount they purported that I owed the JDB.

This is some of the things you would ask for in discovery  Request for production of documents.

 

Would I be shooting myself in the foot if I asked them questions with respect to the lawyers final dv letter and a copy of one of the six billing statements or would I be shooting myself in the foot.  Here is what I've written so far.

 

I would do the RFP's and maybe some RFA's later regarding what was finally produced.

Admit that the following documents listed below, the best copies of which are attached as Appendix A

1.  Is a true copy of a letter sent by Plaintiff's attorneys to Defendant on Jan .3, 2013.

2.  Is NOT a true copy of a billing statement that Plaintiff's lawyer,     , sent to Defendant on

     Jan. 3, 2013.

3.  That this billing statement was not prepared in the regular course of business by

     the OC

4.  That this billing statement was  NOT prepared by the O.C.

 

Thoughts-welcome all.

 

Carol-Lynn

You want to show that the records are not the originals or true copies made by the OC. And press them for complete records. 7 alleged monthly statements does not show ALL the charges and payments to show an accounting for  the amount due.

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1.  Is a true copy of a letter sent by Plaintiff's attorneys to Defendant on Jan .3, 2013.

 

Sure it is. So what?

 

 

2.  Is a true copy of a billing statement that Plaintiff's lawyer,   sent to Defendant on
     Jan. 3, 2013.

 

Sure it is. So what?

 

3.  That this billing statement was not prepared in the regular course of business by
     the JDB.

 

No, it was not. So what?

 

 

4.  That this billing statement was prepared by the O.C.

 

Yes, it was. What's your point?

 

 

See what you'll get? This is not strategy designed to accomplish anything other than help the JDB point out to the court that you do not understand the law.

 

get them to admit that one of the six billing statements that they sent me, when I dvd them, was prepared by the O.C. and not the JDB 

 

Right here you lose. Of course the OC made the billing statements. Come on, we taught you better than to do this. JDBs assume all rights of the OC.

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I thought maybe a better strategy would be to get them to admit that one of the six billing statements that they sent me, when I dvd them, was prepared by the O.C. and not the JDB and does not prove I owe the JDB anything.

 

I would not ask this.  Of course, they're going to admit the billings statements were prepared by the OC.  That's part of their claim that they own the account.  They will claim that the fact that the statements were created by the OC proves the OC sold them the account.  Otherwise, how could they possibly have those billing statements? 

 

I would not infer in any way that I believe those billing statements were prepared by the OC.  I would not refer to the OC if I didn't have to do so.  In fact, if you have to refer to the OC, you might state "another business entity".  Something like that.

 

Here's a couple of suggestions.  If it were me, I might request.

 

Admit the credit card billing statements provided by Plaintiff were not created by ________(JDB).  If there's an Exhibit # with the statements, include "Exhibit #" in parentheses after "billing statements". 

 

If the cc statements show charges and payments, I might request an admission that the JDB wasn't involved in the input of that data.  Hopefully, someone has an idea how that should be worded.  The point is to show NOT ONLY that the JDB is not the entity that received that data in order to create the statements, but also that the JDB has no idea how the billing statements were created and that the information on the billing statements is accurate.

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 Of course the OC made the billing statements. Come on, we taught you better than to do this. JDBs assume all rights of the OC.

How can you say that without even seeing the docs? Let alone the original docs, or even true copies of. I would try to teach people the "best evidence rule" and to question  the evidence they receive, I think they would be far better served.

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Admit the credit card billing statements provided by Plaintiff were not created by ________(JDB).  If there's an Exhibit # with the statements, include "Exhibit #" in parentheses after "billing statements". 

 

 Their answer would be:   Admit. The cc statements were created by the OC.

 

How would this be of any use to the defendant?

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How can you say that without even seeing the docs? Let alone the original docs, or even true copies of. I would try to teach people the "best evidence rule" and to question  the evidence they receive, I think they would be far better served.

 

My point is that the line of questioning has no value whatsoever. Asking them to admit that  billing statements were prepared by the OC makes no sense. Of course they were. This is like asking them to admit that they are suing you. There are no "original" documents where billing statements are concerned, other than the nice color copy the OC mailed every month, which they printed from the same computerized record these so called copies came from. Only difference is that the new copies are black and white on cheap paper to save money. Now if he had all the originals they mailed and could compare them to the "copies" and could find differences, then he'd have something.

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I hate to say it that going down this road is gonna show your hand on the defense and they may tighten it up. I think unless you are going to file a MSJ then these admissions will not really help alot towards trial. Better would be to MIL and base it on the fact that they are not their business records and have no authentication from the OC than to point out where they are going wrong in the case early. Maybe admissions about the fact that they did not receive anything prior to discovery is a better admission.

 

The theory you are trying to advance is better played nearer to trial after the witness is negated via attempted subpoena. You see the admissions will be answered because they know a response is required best to lull them into thinking you don't have a clue and let them impale themselves on your pungi stick trap at trial.

 

That admission track would also go against you saying you do not know what is going on. If the court thinks you have some information and are using discovery you did not send them then the court can say"hey you know alot about this for someone who denied knowledge."

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 Their answer would be:   Admit. The cc statements were created by the OC.

 

How would this be of any use to the defendant?

 

They would be admitting they didn't create the billing statements.  If they include the claim that the statements were created by the OC, it would be just that...a claim, nothing else.  The admission request made no reference to the OC.  The JDB has to prove the claim.

 

It could be used against the JDB's affidavit.  Most affiants only admit knowledge of the JDB's records.  As a result, depending upon how one's courts have ruled, it could possibly be used to show that the billing statements have not been authenticated.

 

That was my only point with the admission request.  If one wants to include such a request, don't mention the OC and imply that YOU believe that the OC created the billing statements.  You don't want the JDB to be able to say that in the admission request you were the one who pointed out that the statements were created by the OC.

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 There are no "original" documents where billing statements are concerned, other than the nice color copy the OC mailed every month, which they printed from the same computerized record these so called copies came from.

 

My point is that the statements don't always come from the same computer record of the OC. The OC should be printing them off of their computer and sending them to the jdb. They don't always do that. B of A will often send CACH a spreadsheet showing the account info, and then CACH "reproduces" the statements to send to the defendant. All the info may be correct, and they may look the similar, but they are not true copies of the original or duplicates. Its kind of like a Ferrari kit car, looks legit going down the road, but under close examination; it is just an over glorified Volkswagen, and inadmissible.

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 There are no "original" documents where billing statements are concerned, other than the nice color copy the OC mailed every month, which they printed from the same computerized record these so called copies came from.

 

My point is that the statements don't always come from the same computer record of the OC. The OC should be printing them off of their computer and sending them to the jdb. They don't always do that. B of A will often send CACH a spreadsheet showing the account info, and then CACH "reproduces" the statements to send to the defendant. All the info may be correct, and they may look the similar, but they are not true copies of the original or duplicates. Its kind of like a Ferrari kit car, looks legit going down the road, but under close examination; it is just an over glorified Volkswagon, and inadmissable.

I saw this when presented with many months statements.  Little details, like a 2009 statement with an 'ad' copyrighted in 2012.

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I saw this when presented with many months statements.  Little details, like a 2009 statement with an 'ad' copyrighted in 2012.

Exactly. There are plenty of times when defendants just except that documents are true copies of, or actually came from the OC, and just submit to it.Those statements you received could have been produced by anyone, and are probably 12-15 months worth of bogus statements created for the sake of a trial. Not only that, but, sooner or later, in a motion , brief or memorandum; they are going to say that those very statements were sent to you, and were not disputed.

 

The best evidence rule and the rule of completeness, combined with the willingness to question all the docs you receive from the jdb can defeat them. Or, we could just stick our heads in the sand and say they must have come from the OC.

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Those statements you received could have been produced by anyone, and are probably 12-15 months worth of bogus statements created for the sake of a trial. Not only that, but, sooner or later, in a motion , brief or memorandum; they are going to say that those very statements were sent to you, and were not disputed.

 

 

Yes, but asking them to admit that they did not create the billing statements doesn't accomplish what you are referring to. if the defendant thinks the statements are faked or contain innacurate information, they have to prove it. This may involve issuing a subpoena to the OC for authentic copies of the same statements for comparison. This can get expensive and may not really lead to anything. I agree that evidence has to be challenged, but it has to be done in a way that produces the desired results.

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1.  Is a true copy of a letter sent by Plaintiff's attorneys to Defendant on Jan .3, 2013.

 

Sure it is. So what?

 

 

2.  Is a true copy of a billing statement that Plaintiff's lawyer,   sent to Defendant on

     Jan. 3, 2013.

 

Sure it is. So what?

 

3.  That this billing statement was not prepared in the regular course of business by

     the JDB.

 

No, it was not. So what?

 

 

4.  That this billing statement was prepared by the O.C.

 

Yes, it was. What's your point?

 

 

See what you'll get? This is not strategy designed to accomplish anything other than help the JDB point out to the court that you do not understand the law.

 

get them to admit that one of the six billing statements that they sent me, when I dvd them, was prepared by the O.C. and not the JDB 

 

Right here you lose. Of course the OC made the billing statements. Come on, we taught you better than to do this. JDBs assume all rights of the OC.

Yes you did-thanks for snapping me back into reality.

 

Anyway, after reading all of the helpful posts I have decided to forget this line of attack. 

 

Instead I am going this route:

 

Step 1:  On the day I get served. I serve them with:

1.  BOP-itemized accounting for open book (money lent and paid.

2.  Send a POD for original signed credit card agreement and proof of assignment.

     1.  Save the rest of discovery until later.  Maybe send a couple of ROGs but no

          RFAs until after I get the docs and ROG responses.

 

Step 2:

1.  File an Answer or a General Demurrer.  Up in the air.

     a.  I have written both while waiting to be served.

          (1)  Never did a General Demurrer before and I know for limited civil they are tricky. 

                (a)  I know that the Complaint is regarded as true so don't question right to sue etc.

                       know that in limited civil that everything is out except for things like they left out essential

                      elements of the contract (breach of contract claim) if refer to Defendant violating the

                      the terms and conditions of a written agreement that they fail to attach and fail to

                      explain-recitation of terms & conditions.

                      [1] Pulled a General Demurrer and the JDBs Opposition Docs from San Mateo and

                           the poor sap essentially wrote both a general and a specific demurrer that also

                           contained a slew of affirmative defenses which of course the JDB lawyers ripped

                           but good.  The only good thing is the hearing bought the guy five months. In

                           the meantime no court date, no mediation sessions, and no CM conference.

                           Come May the Judge will not sustain his "hybrid" demurrer and he'll gave 10

                           days to submit his answer.  I could live with that too.

 

I read one lawyers advice on line that filing a demurrer, instead of immediately filing an answer (while having the answer in your back pocket) may work to your advantage if you also serve them with discovery requests (defendant can any time after being served) soon thereafter.

 

He explained while waiting for the hearing on your demurrer, you have ample time to examine their discovery responses and look to see if any of them "counter" the Plaintiff's claims in their Complaint.  If I get five months like the guy in San Mateo, that would be plenty of time to get a "smoking gun"  even if you have to file a Motion to Compel. And, if you find one, which you often will,  then if and when the Plaintiff's files an Objection to the demurrer, you file a Reply with Plaintiff's own sworn Discovery responses to shoot them in the foot.  Sure Plaintiff will be eventually be given the opportunity to amend their complaint even if it is sustained but if the blunder is serious enough then it "often will enable you to win outright without ever having to file an answer."

 

The draw-back is I'd  be tipping my hand but I already did that when I dved them so they know I'm wise to their game.  No contract, no proof of assignment that isn't rubbish and complete hearsay.  Bring suit to strong-arm defendant into "settling."

 

As I stated in my first post just looking to up my game.

 

Again comments welcome.

 

Thanks Bruno for setting me straight!  I know I can count on you! ::punk::

 

Carol-Lynn

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original signed credit card agreement 

 

Leave this out, there is no such thing. Nobody signs an agreement with a credit card company. Application, yes. But not an agreement. Just leave out the "signed" part. I believe the demurrer for a civil case is the equivalent of asking for a more definite statement. Is there something in the complaint you do not understand? They are usually fairly standard and meet the specs in most courts. You don't want to get a reputation with the court for stalling or filing frivolous motions.

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original signed credit card agreement 

 

Leave this out, there is no such thing. Nobody signs an agreement with a credit card company. Application, yes. But not an agreement. Just leave out the "signed" part. I believe the demurrer for a civil case is the equivalent of asking for a more definite statement. Is there something in the complaint you do not understand? They are usually fairly standard and meet the specs in most courts. You don't want to get a reputation with the court for stalling or filing frivolous motions.

 

Thanks Bruno.  Will do.  Makes sense.

 

As for the demurrer-once again you're probably right.  I don't really need the time just trying to fine tune my game plan.  I do not want the judge mad at me.  Let's face it the judge isn't stupid.  

 

Carol-Lynn

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