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Interrogatories, Discovery or Both?


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What's the correct process here? Ive already completed my 26.1 Disclosure, as has a$$. I have my discovery ready to go, but should I be doing a list of Interrogatories first? What's the correct order I should be following here? I have a rather nice list of Interrogatories from ColtFan, just not sure when to send them out. :-)

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I like interrogatories because they allow you to gather information about affiants. Production of documents is a great way to start. See what they have.

 

After they object or say "we don't have that but we'll try", hit them with a request for admissions.

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I like interrogatories because they allow you to gather information about affiants. Production of documents is a great way to start. See what they have.

 

After they object or say "we don't have that but we'll try", hit them with a request for admissions.

Ok, So Ill send discovery and see what they have...or dont have. Then Ill send the interrogatories. 

 

Thanks!!

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Just for clarification, Interrogatories, Request for Production of Documents and Request for Admissions are ALL forms of discovery.

 

So first you would send the Request for Production of Documents. When they respond, send them a Request for Admissions and make them admit everything they did not send.

 

You can send them Interrogatories at anytime as well. Just save the admissions til last.

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Actually you should not send anything until you see what they send you in their 26.1. That may be all you need to win. I wouldn't ask for anything further, you're just begging them to produce stuff that will beat you in court. Let them try to sneak it in later (they' don't have anything, but what the heck, they may get lucky) If they do, you file a motion to preclude since it was not properly provided when required.

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Actually you should not send anything until you see what they send you in their 26.1. That may be all you need to win. I wouldn't ask for anything further, you're just begging them to produce stuff that will beat you in court. Let them try to sneak it in later (they' don't have anything, but what the heck, they may get lucky) If they do, you file a motion to preclude since it was not properly provided when required.

As Spikey said, already done.....check out what they provided in  the link below (please)......There's a comment in their disclosure about providing more documents as they come available. But they still have to provide to me before just whipping them out at trial, correct? How should I start challenging what they sent?

 

Thanks, Spikey! :-)

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You are correct. They cannot spring them on you at trial IF you object when they try to admit them as evidence. Very important. You must object or they will be admissible.

 

You challenge them by sending admissions. That is your first step. When they contradict themselves, you have them.

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You are correct. They cannot spring them on you at trial IF you object when they try to admit them as evidence. Very important. You must object or they will be admissible.

 

You challenge them by sending admissions. That is your first step. When they contradict themselves, you have them.

What about motions to proclude/strike? Also, by admissions, do you mean interrogatories?

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What about motions to proclude/strike? Also, by admissions, do you mean interrogatories?

 

He's talking about actual admissions. i.e. Admit that your evidence is crap. (By the way, don't ask them this, even if it is likely true)

 

You'll need to check your local rules to see if there's a limit on how many are allowed as well as the proper time frame they have to answer in.

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What about motions to proclude/strike? Also, by admissions, do you mean interrogatories?

 

Interrogatories are questions you can ask the Plaintiff. Request for Admissions is a statement that you want them to admit or deny. Both are considered "Discovery" but they are not the same thing.

 

Here is discovery and their uses:

 

Interrogatories:  Questions to the Plaintiff to ascertain information. Most consider useless but I do like the fact that (check your rules of civil procedure) they can be used to get information about the affiants of their affidavits. Where they work, how long they've been there, job title, location, etc. They will object but you will compel because they are required to give you that info.

 

Request For Production Of Documents:  Just like it sounds. You can request documents from them. You really don't want them. They would help them prove their case, right? You request them to make them produce them if they have them and if/when they don't we move to...

 

Request For Admissions:  You make them admit or deny statements. You requested the terms and conditions as part of your request for production of documents and they objected? Make them admit that they don't have it. The deny they don't have it? Well then let's see it. You have them.

What makes these great is if they don't answer, you can motion to have them deemed admitted. What's that? Every admission you sent them that they didn't answer is admitted. Therefore, phrase them so that by admitting, they are proving your case not theirs. For example don't say "Admit that you bought this debt from OC". OK, they didn't respond. Do you want that deemed admitted? No. You want something more like "Admit that you are not the rightful owner of the alleged debt". They didn't answer that one? Great. It is now admitted. They admitted (by not answering) that they are not the rightful owner of the debt. Pretty powerful stuff.

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Sorry, I missed that, didn't know he got the disclosure. Looking back at it, there isn't anything very impressive that they intend to use. Attacking what they did provide would be a good next step rather than asking for more documents. Think of it this way....do you really want them to come up with this stuff? It will only make you lose your case. If they spring more documents on you at trial, object. They had their chance, no surprises. They rarely get away with this, although they are allowed to amend their responses up to a point. They have to do it in a way that gives you a chance to respond.

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Sorry, I missed that, didn't know he got the disclosure. Looking back at it, there isn't anything very impressive that they intend to use. Attacking what they did provide would be a good next step rather than asking for more documents. Think of it this way....do you really want them to come up with this stuff? It will only make you lose your case. If they spring more documents on you at trial, object. They had their chance, no surprises. They rarely get away with this, although they are allowed to amend their responses up to a point. They have to do it in a way that gives you a chance to respond.

 

I have seen and experienced judges who, when you claim they don't have proof in a certain capacity, come back at you with "Well did you ask for it in discovery?".  

 

You - "Your honor, this affidavit is insufficient and the witness should be here to testify."

 

Judge - "Well did you supoena the witness?"

 

I agree totally with Bruno that you don't want them to come up with this stuff but when you at least ask for it, it helps your objection in my opinion.

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I guess we need 1stStep here, I'm not sure what force of law the 26.1 actually has. Is it similar to the CA CCP96? What he does next depends on whether they can add evidence at a later time when they failed to produce it initially. Probably a moot point, they usually don't have anything, as we have seen many times.

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Interrogatories are questions you can ask the Plaintiff. Request for Admissions is a statement that you want them to admit or deny. Both are considered "Discovery" but they are not the same thing.

 

Here is discovery and their uses:

 

Interrogatories:  Questions to the Plaintiff to ascertain information. Most consider useless but I do like the fact that (check your rules of civil procedure) they can be used to get information about the affiants of their affidavits. Where they work, how long they've been there, job title, location, etc. They will object but you will compel because they are required to give you that info.

 

Request For Production Of Documents:  Just like it sounds. You can request documents from them. You really don't want them. They would help them prove their case, right? You request them to make them produce them if they have them and if/when they don't we move to...

 

Request For Admissions:  You make them admit or deny statements. You requested the terms and conditions as part of your request for production of documents and they objected? Make them admit that they don't have it. The deny they don't have it? Well then let's see it. You have them.

What makes these great is if they don't answer, you can motion to have them deemed admitted. What's that? Every admission you sent them that they didn't answer is admitted. Therefore, phrase them so that by admitting, they are proving your case not theirs. For example don't say "Admit that you bought this debt from OC". OK, they didn't respond. Do you want that deemed admitted? No. You want something more like "Admit that you are not the rightful owner of the alleged debt". They didn't answer that one? Great. It is now admitted. They admitted (by not answering) that they are not the rightful owner of the debt. Pretty powerful stuff.

So with the 26.1, they're supposed to provide me with what they have an what they plan on presenting at trial. You can see what the provided, which is pretty weak. Hell, the check they send isnt even legible! And what's with the privacy statement? lol! As far as the admissions, since I haven't asked for the terms and conditions and they didn't provide it in their 26.1 disclosure, is the admissions the way to go? My thought process was to ask for documents, then throw them admissions when they don't provide them.  But then again, since they didn't provide them, maybe going with the admissions is the way to go!

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So with the 26.1, they're supposed to provide me with what they have an what they plan on presenting at trial. You can see what the provided, which is pretty weak. Hell, the check they send isnt even legible! And what's with the privacy statement? lol! As far as the admissions, since I haven't asked for the terms and conditions and they didn't provide it in their 26.1 disclosure, is the admissions the way to go? My thought process was to ask for documents, then throw them admissions when they don't provide them.  But then again, since they didn't provide them, maybe going with the admissions is the way to go!

So whats my attack plan here? Do I go with the admissions or motions to strike/preclude what they've provided? ;-)

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I saw they gave you a bill of sale, ask for them to admit that they don't have all the sub-documents listed in that document. Like a Forward Flow agreement. 

 

After that, ColtFan's admission list is post #54 in this thread: http://www.creditinfocenter.com/community/topic/319526-more-trouble-from-asset-acceptance-all-help-appreciated/page-3#entry1234097

 

The one's questioning the affiant are really useful. You can see what I sent in my thread and I got answers yesterday: http://www.creditinfocenter.com/community/topic/318410-asset-acceptance-vs-me-in-illinois/page-5

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Actually, the bill of sale should have what you need. the forward flow agreement is usually a contract between the JDB and the OC that details how they will handle the sale of bulk purchases, how much, etc. It does not address any specific accounts, so it would be protected and irrelevant. The bill of sale usually contains the disclaimer, that's what you want, where they refuse to guarantee the accuracy of the balances of the accounts sold.

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Actually, the bill of sale should have what you need. the forward flow agreement is usually a contract between the JDB and the OC that details how they will handle the sale of bulk purchases, how much, etc. It does not address any specific accounts, so it would be protected and irrelevant. The bill of sale usually contains the disclaimer, that's what you want, where they refuse to guarantee the accuracy of the balances of the accounts sold.

 

Although I have seen bills of sale read something to the effect of "offer no warranty except as otherwise stated in the Credit Card Account Purchase Agreement". If that is the case, that document becomes very relevant. It will lay out what degree of accuracy these were sold with. It also usually states that the bill of sale is an exhibit to that document. Now you have an incomplete document to object to as such. Great way to get that BOS thrown out in addition to the fact that it doesn't specify your account.

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The one for mine didn't have that language, it only said "without recourse and without representations or warranties of any type, kind, character or nature, express or implied". And I don't know the language on the one the OP has.

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The one for mine didn't have that language, it only said "without recourse and without representations or warranties of any type, kind, character or nature, express or implied". And I don't know the language on the one the OP has.

 

If that is the case with the OP then I agree with Bruno entirely. If, however, it alludes to or states that the warranties are spelled out in another document that they did not submit, the OP needs to request it. They won't give it to him (privilaged) but it does need to be requested so he has more ammo to object to the bill of sale.

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