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Please critique my first Discovery draft....help please?


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Were their discovery limits from the court.

http://philipstern.com/resources.html

Initial Interrogatories and Admission Requests we have used in debt buyer credit card collection cases

He is in new jersey but he has great discovery you might use.

Hi racecar,

 

In Oklahoma, Im aware that the discovery limits are set to 30. Im aware I'll have to cut down on a number of "Admissions", but I think its doable, weeding out the few that seem to duplicate.

 

Thanks for the helpful links, Im heading over there now, am refreshed enough to tackle another "all nighter" episode (grin)

 

roadie

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I believe you're going to get an awful lot of objections.

I agree.  However, did you send a lot of these knowing you would get objections with the intent to show that you will fight and are a loose cannon?  It's not a bad strategy when you're dealing with slime like Midland, and I've used it many times.  Yes, there might be an objection but if they see the road you're going down they may not want to travel that road even if they know they object now and possibly win the objections.

 

You might not want to reveal it but knowing your strategy might help give you better advice.   In other words do you know what you're doing and are playing the I might lose certain battles but it's the war I want to win and I'm wiling to go to a trial, or do you think these are legally solid and can survive objections.    What's your mind set right now. 

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I agree.  However, did you send a lot of these knowing you would get objections with the intent to show that you will fight and are a loose cannon?  It's not a bad strategy when you're dealing with slime like Midland, and I've used it many times.  Yes, there might be an objection but if they see the road you're going down they may not want to travel that road even if they know they object now and possibly win the objections.

 

You might not want to reveal it but knowing your strategy might help give you better advice.   In other words do you know what you're doing and are playing the I might lose certain battles but it's the war I want to win and I'm wiling to go to a trial, or do you think these are legally solid and can survive objections.    What's your mind set right now. 

Coltfan,

 

I haven't sent anything off yet, yet my mindset wants to scream to the judge, that midland funding has a history of submitting these false affidavits. Part of my mental strategy was to cast a cloud over their affadivats using a two pronged approach, (a) painting midlands affiant as less than reliable, and (2) painting midlands' bad boy image from 2009 to current (re: affidavit fraud and robo-signing problems)

 

Speaking of midlands affiants, I noticed a few names online regarding past midland affiants... and each of those affiants worked at the "Taco Bell" place prior to finishing up schooling (some kind of vocational technical law classes, I believe) and thought to my self... "what gives"??? is Taco Bell the new coursework for legal specialist placement? .... I think not, I think the number of midland affiant names mentioned among us online here (mine is "Amy S.") who also lives in "St. Cloud, Mn" is one and the same person, but was necessary to avoid giving the appearance of of robo-signing...

 

I guess the only way to nail this down, is to create a working list from everyone who got a falsified affidavit from midland ... am sure midland knew the psychological effect it has on uninformed consumers.

 

Note to NASCAR: objections are usually from vague writing. (my opinion) ... Im too close to my writing, why don't you point out the ones youd object to, from the mindset of a debt collector if can, then I'll see if I can improve or shorten the paragraph if necessary?

 

My thanks to both of you for your two cents shared!

 

Roadie

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In your rogs, they're going to object to 4, 5, 6, 7, and 21.  #9 is an admission request, not a rog.

 

#31 & #32 are examples of admissions to which they'll object.  They'll simply deny 33 - 36 and 42. 

 

You can make those requests but just be prepared for objections.

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In your rogs, they're going to object to 4, 5, 6, 7, and 21.  #9 is an admission request, not a rog.

 

#31 & #32 are examples of admissions to which they'll object.  They'll simply deny 33 - 36 and 42. 

 

You can make those requests but just be prepared for objections.

Eh, now I know I was tired! :) .... fixing #9 after I log off this board. ... funny, I liked 33-36, was trying to lay the groundwork for showing "habitual violations of an ongoing nature" so that the judge sees my point when calling into question the "2013 " affidavit attached to my summons. and its reliability.... but I think your right, theyd object.

 

Do you, or anyone on this board know how objections are handled? Is there a consequence to be aware in the nature of objections?

 

Thanks, BV for sharing your insights.

 

Roadie

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When a request is objected to, sometimes they'll go ahead and include a response after the objection.  They just want they're objection known.  Other times they'll object and include nothing else.   How you use that could depend upon the request.  For instance, if you request a bill of sale from a JDB, and they object by saying it's not relevant and refuse to provide one, you use that against them.

 

A strategy that some have used is to first send Interrogatories and Requests for Production of Documents.  After they respond, you then send a Request for Admissions based upon the responses.   Let's say that you requested account statements showing how they arrived at the amount claimed in the complaint.  All they send is a few statements that show no charges or payments.  You could then include a request that plaintiff admit they cannot provide an accounting of the debt.   Another request might be that they admit they cannot prove the amount claimed is accurate.

 

Chances are they'd deny those requests.  You then hold them to it.  When they responded to your doc requests, they didn't provide any account statements that showed charges or payments, so how can they provide an accounting of the debt?  By denying the admission, they claim they can...so how?    How can they prove the amount claimed is accurate?  Unless they have an affidavit from the OC, the only "proof" of the accuracy of the amount is the JDB's claim.

 

By sending admission requests after you receive their responses to your other requests, some of their admission responses might contradict their other responses.   But you have to know what your court rules allow.  Some courts require that all requests be sent at the same time.  Other courts will allow you to send requests separately.

 

BTW, if this debt is outside the SOL, filing suit on a time-barred debt is a violation of the FDCPA (15 USC § 1692e(2)).

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Note to NASCAR: objections are usually from vague writing. (my opinion) ... Im too close to my writing, why don't you point out the ones youd object to, from the mindset of a debt collector if can, then I'll see if I can improve or shorten the paragraph if necessary?

 

Speaking from the perspective of the debt collector, Midland will probably object to nearly all of them (or not answer altogether). Quickly, however, you've included a lot of definitions that, themselves, will form the basis for objection. Asking questions of the law firm are beyond the scope of litigation (they aren't a party). Asking them to admit to false affidavits and the like is a waste of time and borders on harassment. Any question that asks the party to admit or deny that the content of a certain statute or to admit that a certain statute means what it means is waste of time (even if they respond, it doesn't change the meaning of the law). 

 

 

I have little use for written discovery for the sake of written discovery. And, I will rarely draft a discovery request that I don't reasonably believe the court would compel the other side to answer if it came to that. Keep in mind, the scope of discovery extends only to information reasonably believed to lead to the discovery of admissible evidence. Evidence is admissible if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more ... probable than it would be without the evidence." If you honestly and objectively compare your requests to that standard, you'll be further along (and opposing counsel will be less likely to view you as a crackpot, no offense intended).

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Speaking from the perspective of the debt collector, Midland will probably object to nearly all of them (or not answer altogether). Quickly, however, you've included a lot of definitions that, themselves, will form the basis for objection. Asking questions of the law firm are beyond the scope of litigation (they aren't a party). Asking them to admit to false affidavits and the like is a waste of time and borders on harassment. Any question that asks the party to admit or deny that the content of a certain statute or to admit that a certain statute means what it means is waste of time (even if they respond, it doesn't change the meaning of the law). 

 

 

I have little use for written discovery for the sake of written discovery. And, I will rarely draft a discovery request that I don't reasonably believe the court would compel the other side to answer if it came to that. Keep in mind, the scope of discovery extends only to information reasonably believed to lead to the discovery of admissible evidence. Evidence is admissible if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more ... probable than it would be without the evidence." If you honestly and objectively compare your requests to that standard, you'll be further along (and opposing counsel will be less likely to view you as a crackpot, no offense intended).

Somehow, from my perspective as a "retired consumer", this makes perfect sense, Nascar.  I'll take those "law firm" inquiries out of the equation. Oklahoma has a 3 year SOL, for "unwritten open end accounts, but midland wants this described as a written contract for the likely purpose of sticking a 5 year SOL onto it. I borrowed this from WhyChats listing and researched the Oklahoma Code of Civil Procedure myself ...

 

I guess the judge wants me to argue the SOL rather than automatically granting the issue be solved immediately? Seems to me, laying the groundwork to get the affidavit admitted as an unreliable, questionable instrument would be a good strategy? No?

 

Roadie

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When a request is objected to, sometimes they'll go ahead and include a response after the objection.  They just want they're objection known.  Other times they'll object and include nothing else.   How you use that could depend upon the request.  For instance, if you request a bill of sale from a JDB, and they object by saying it's not relevant and refuse to provide one, you use that against them.

 

A strategy that some have used is to first send Interrogatories and Requests for Production of Documents.  After they respond, you then send a Request for Admissions based upon the responses.   Let's say that you requested account statements showing how they arrived at the amount claimed in the complaint.  All they send is a few statements that show no charges or payments.  You could then include a request that plaintiff admit they cannot provide an accounting of the debt.   Another request might be that they admit they cannot prove the amount claimed is accurate.

 

Chances are they'd deny those requests.  You then hold them to it.  When they responded to your doc requests, they didn't provide any account statements that showed charges or payments, so how can they provide an accounting of the debt?  By denying the admission, they claim they can...so how?    How can they prove the amount claimed is accurate?  Unless they have an affidavit from the OC, the only "proof" of the accuracy of the amount is the JDB's claim.

 

By sending admission requests after you receive their responses to your other requests, some of their admission responses might contradict their other responses.   But you have to know what your court rules allow.  Some courts require that all requests be sent at the same time.  Other courts will allow you to send requests separately.

 

BTW, if this debt is outside the SOL, filing suit on a time-barred debt is a violation of the FDCPA (15 USC § 1692e(2)).

BV, Oklahoma has a 3 year SOL, for "unwritten open end accounts", but midland wants this described as a written contract for the likely purpose of sticking a 5 year SOL onto it. I borrowed this info from WhyChats listing and researched the Oklahoma Code of Civil Procedure myself, fortunately, I did put in as one of my affirmative defenses, that the alleged debt is time-barred and should be dismissed.  Then a week later, I got the local Courts scheduling order in the mail to have discovery done by April 20th so I rolled up my sleeve and started pulling in copies from successful Pro Se members here, online....

 

Plaintiffs have not yet sent in their discovery to me, should I wait til I get theirs or go ahead and send my discovery set, after Ive worked out the kinks, language and strategy altogether? ( I imagine they'd follow their strategy of sending their discovery requests in at the 11th hour, and then file for msj, so Im not sitting back!)

 

Cheers!

 

Roadie

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By the way, Im pondering whether or not to revise one more statement in my ROG'...

 

"Identify previous assignees if alleged debt has been sold and resold prior to Midland Funding purchasing debt from another debt collection company. "

 

My problem is, midland appears to be claiming they purchased this debt directly from Dell.... problem is, Ive got other dunning notices from other debt collectors claiming Dell turned over to them and they own it...

 

My desire was to get them to "deny" they purchased from another debt collection company... and then I submit those dunning notices from other companies to bolster my case the likelihood of them purchasing from a debt collecting company rather than Dell directly, after all Im pretty sure they are going to admit theyre a debt collector by FDCPA definition.

 

Anyone see something wrong here, and how to improve communicating this particular issue?

 

Roadie

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I searched some case and located some definitions of various contracts as defined by Black's Law Dictionary.

 

 A written contract is defined as one "whose terms have been reduced to writing." Black's Law Dictionary 327 (Bryan A. Garner ed., 7th ed., West 1999).

 

An express contract has been defined as "an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing." Black's Law Dictionary 323 (6th ed.1990).

An implied contract is defined as:  one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding. BLACK'S LAW DICTIONARY 292-93 (5th ed.1979).

 

 

Since OK appears to separate written from express and implied, I would think that Midland would have to provide an actual written contract in order to claim the 5 year SOL.   If they can't do that, they can't prove a written contract.   An implied contract can be evidenced by the actions of the parties (charges, payments).  It's going to depend upon what Midland can or can't provide.

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I searched some case and located some definitions of various contracts as defined by Black's Law Dictionary.

 

 A written contract is defined as one "whose terms have been reduced to writing." Black's Law Dictionary 327 (Bryan A. Garner ed., 7th ed., West 1999).

 

An express contract has been defined as "an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing." Black's Law Dictionary 323 (6th ed.1990).

An implied contract is defined as:  one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding. BLACK'S LAW DICTIONARY 292-93 (5th ed.1979).

 

 

Since OK appears to separate written from express and implied, I would think that Midland would have to provide an actual written contract in order to claim the 5 year SOL.   If they can't do that, they can't prove a written contract.   An implied contract can be evidenced by the actions of the parties (charges, payments).  It's going to depend upon what Midland can or can't provide.

Thank you, BV, I'll keep this in mind when restructuring my ROGS and Admissions, in hammering away for a written contract with my signature on it as well, as arguing for the 3 year SOL.  Ive printed this, one never knows when its coming in handy,... now Im focusing attention back to the ROG (Identifying previous assignee.....)

 

Thank you, again.

 

Roadie

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Check your credit report.  If the OC is reporting, compare the last date that the OC updated their entry with the date Midland with the date Midland claims to have purchased the account.  If those dates are similar or close, Midland is the only purchaser.

 

Other CAs may have claimed to have been assigned the account, but assigned does not always mean "sold".

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Roadie,

 

My strategy is a little more complex.  I apprach it somewhat like you (throw the kitchen sink at them) and Nascar (solid requests if asked they dang sure better answer). 

 

I want them to think I'm a crackpot, drop their guard, and then pepper them with relevant question and demands that they will think I either got lucky by asking or will think they don't have to answer properly because of my overall crackpot format.   I'm in Arkansas where I also have unlimited discovery so I can go numerous rounds and I can fill the requests with more crackpot questions while continuing to pepper relevant requests around them only asking the same releveant requests a slightly different way.

 

I do this for a very specific reason.  I want them to contridict themselves or I want them to paint themselves more and more into a corner.   Let's use the example of standing.   I might ask them to produce a laundry list of ovrly broad things that will lead to standing, knowing they will object.  Then a few requests later really home in on a specific request that is dead on and relevant.  What I'm hoping here for is the same overly broad objection (which now it's not in this request) or the royal flush irrelevant.   If I can get them to argue something is irrlevant and it's not, I have them.  

 

So let's assume they argue a bill of sale is irrelevant (how dumb, but they do it all the time).   Then I'll do another round of discovery around the bill of sale.  Let's say ten requests.  I'll make some crack pot requests and then I'll ask specifically for the bill of sale again only a different way and hope to get them telling me they have it or will provide it, but they have already said it was too much trouble to get, or again argue it's irrelevant.   If they argue irrelevatn again and I've asked it another way then more ammo, now I have them telling me two different ways the bill of sale is irrelevant. 

 

I'm now laying the groundwork to win at trial or file a hell of a motoin to preclude and/or winning on summary judgement.   It's a slow drawn out strategy that works for me and works 100% of the time.   I go right to the harrasment line and don't cross it.  I embrace the I'm just a poor dumb pro-se stumbling through the system your honor so cut me some slack and then I take whatever the judge will give me and run with it until the judge reigns me in.  

 

At the end of the discvoery phase I might have a one foot pile of documents and I take out everything irrelevant and it cuts it by 3/4.   Then I start homing in on the 1/4 I have let and slowely tightening it up.   I take anything they have given me where they hang themselves and I totally change characters.  I now go Nascar style only.  My requests, my pleading, my actions are now that of only a twenty year veteran attorney and it's no none sense right to the point your screwed, and they are screwed.

 

I just had a depositon a few weeks ago.  The other side accused me of baiting their client with my childish requests and the format of the letters I sent.   I peppered the letters with the statutory language and they were horribly written letters (some have seen them and laughed) but they are legally solid, rock solid.  I was able to say, so what you're telling me is if I would have come across as a Harvard Law School graduate and tightened up my letters but left the same staturory language in the letters your client would have complied with the FDCPA but since they thought it was an uneducated hick they just tossed them and did whatever they wanted.   So you see what I did was I basically said yes I baited your client but it was your client that did not take me serious is the reason your now screwed.

 

So using my strategy the other side can't cry they got taken advantage of because your arugment is, "oh so you did not take your responsiblity to be a professional attorney serious because I did not matter and was just somebody you did not want to waste time with, but now that we are all serious you want a do over"  You see they are painted into a corner with their earlier respsones. 

 

It't the reason I was able at the beginning of a trial to first say, Your Honor I want to 100% stipulate I owe ever dime asked for by the other side, and when the judge how much are you stipulating you owe, I said I don't care whatever amount they say.  I did this because I had them on standing.  I had them aruging every one of their elements of proof were not overly broad to produce but more importantly IRRELEVANT and on some of them I had them arguing it different ways it was irrelevant.  I had the other side arguing their burden of proof to a key element was irrelevant.  

 

So now it was too late to go back all their evidence if I objected as irrelevant I used THEIR objections against them and that plie of useless crackpot garbage eight months prior that I had sent them? yep, that was left at home and all I had left to argue was the Nascar type apprach not the other approach.  

 

So it might not be all that complex, it is to me for a pro-se, who knows, it might just be the way it works for good lawyers out there, and if so, fine, but I guess I just don't come up against good lawyers because I don't just win with the strategy I usually turn it into an embarassing circus with the other side just standing there with a WTF look on their face and even the judge with a hidden smirk like "I saw this coming" 

 

What I'm trying to say is find your own style.  If you take the style I have and what a lot of people seem to like where I'm the tough guy that is arrorgant to the other side and tells them to shove it, but leaves off my style of actually having my stuff together and being legally sound in your arguments it won't be near as fun.  If you just use my style of smarting off and then none of your arugments are relevant then the other side will have the last laugh.  

 

I think what Nascar was saying is you might have taken your advice from somebody that sounded good (I don't know, never heard of them) but was short on substance.  

 

I personally suggest you look at many different styles and then adopt one for you, but you have to know your states rules of procedure.   My strategy does nobody any good if they are in a court of limited discovery.   What poor advice if you have twenty questions and you use nineteen of them on garbage designed to bait them on the one question that is good.   That is why state specific advice is so imporatant and you see me all the time saying "generally speaking"

 

Good luck

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Check your credit report.  If the OC is reporting, compare the last date that the OC updated their entry with the date Midland with the date Midland claims to have purchased the account.  If those dates are similar or close, Midland is the only purchaser.

 

Other CAs may have claimed to have been assigned the account, but assigned does not always mean "sold".

BV, I took another look at my credit bureau file, and IM including them here for your assessed opinion, I only changed the dollar amount to play safe....

 

I noticed midland put in a different dollar amount in my credit report than what was listed in the Summons, and from the looks of it, seems to give the appearance IM making payments each month, to which IM actually never paying a dime during those months they listed as "OK"... cheese...

 

Here's the actual credit report results sans the correct dollar amounts:

 

Dell\Webbank                        Experian         Equifax                        Transunion

Acct name:                                                                  DFS\webank

Acct#                                                                           87xxxxxxxxx  <note, 1st digit # missing>... mean anything?

Account Type:                                                            Revolving Account

Balance                                                                       $7

Past Due                                                                     0.00

Date opened                                                              9/2005

Account Status                                                           closed

Mo. pymt:                                                                   <space left blank>

Pymt Status                                                                charged off as bad debt

High balance                                                              $7

Limit                                                                            $2

Terms                                                                          <space left blank>

Comments                                                                  Profit and loss writeoff

 

24 mo. pymt history: <all square boxes left blank>

 

 

Midland Funding LLC             Experian         Equifax                        Transunion

Acct name:                              Midland

Acct#                                       857xxxxxxxxx

Account Type:                        Open Account

Balance                                   $20

Past Due                                 20.00

Date opened                          2-1-2012

Account Status                       closed

Mo. pymt:                               <space left blank>

Pymt Status                            at least 120 days or more than 4 payments past due

High balance                          $7

Limit                                        <space left blank>

Terms                                      <space left blank>

Comments                              collection account

 

24 mo. pymt history:             Feb, 2012 thru Jan, 2013 shows "OK" (Ive never paid a dime!)

 

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Roadie,

 

My strategy is a little more complex.  I apprach it somewhat like you (throw the kitchen sink at them) and Nascar (solid requests if asked they dang sure better answer). 

 

I want them to think I'm a crackpot, drop their guard, and then pepper them with relevant question and demands that they will think I either got lucky by asking or will think they don't have to answer properly because of my overall crackpot format.   I'm in Arkansas where I also have unlimited discovery so I can go numerous rounds and I can fill the requests with more crackpot questions while continuing to pepper relevant requests around them only asking the same releveant requests a slightly different way.

 

I do this for a very specific reason.  I want them to contridict themselves or I want them to paint themselves more and more into a corner.   Let's use the example of standing.   I might ask them to produce a laundry list of ovrly broad things that will lead to standing, knowing they will object.  Then a few requests later really home in on a specific request that is dead on and relevant.  What I'm hoping here for is the same overly broad objection (which now it's not in this request) or the royal flush irrelevant.   If I can get them to argue something is irrlevant and it's not, I have them.  

 

So let's assume they argue a bill of sale is irrelevant (how dumb, but they do it all the time).   Then I'll do another round of discovery around the bill of sale.  Let's say ten requests.  I'll make some crack pot requests and then I'll ask specifically for the bill of sale again only a different way and hope to get them telling me they have it or will provide it, but they have already said it was too much trouble to get, or again argue it's irrelevant.   If they argue irrelevatn again and I've asked it another way then more ammo, now I have them telling me two different ways the bill of sale is irrelevant. 

 

I'm now laying the groundwork to win at trial or file a hell of a motoin to preclude and/or winning on summary judgement.   It's a slow drawn out strategy that works for me and works 100% of the time.   I go right to the harrasment line and don't cross it.  I embrace the I'm just a poor dumb pro-se stumbling through the system your honor so cut me some slack and then I take whatever the judge will give me and run with it until the judge reigns me in.  

 

At the end of the discvoery phase I might have a one foot pile of documents and I take out everything irrelevant and it cuts it by 3/4.   Then I start homing in on the 1/4 I have let and slowely tightening it up.   I take anything they have given me where they hang themselves and I totally change characters.  I now go Nascar style only.  My requests, my pleading, my actions are now that of only a twenty year veteran attorney and it's no none sense right to the point your screwed, and they are screwed.

 

I just had a depositon a few weeks ago.  The other side accused me of baiting their client with my childish requests and the format of the letters I sent.   I peppered the letters with the statutory language and they were horribly written letters (some have seen them and laughed) but they are legally solid, rock solid.  I was able to say, so what you're telling me is if I would have come across as a Harvard Law School graduate and tightened up my letters but left the same staturory language in the letters your client would have complied with the FDCPA but since they thought it was an uneducated hick they just tossed them and did whatever they wanted.   So you see what I did was I basically said yes I baited your client but it was your client that did not take me serious is the reason your now screwed.

 

So using my strategy the other side can't cry they got taken advantage of because your arugment is, "oh so you did not take your responsiblity to be a professional attorney serious because I did not matter and was just somebody you did not want to waste time with, but now that we are all serious you want a do over"  You see they are painted into a corner with their earlier respsones. 

 

It't the reason I was able at the beginning of a trial to first say, Your Honor I want to 100% stipulate I owe ever dime asked for by the other side, and when the judge how much are you stipulating you owe, I said I don't care whatever amount they say.  I did this because I had them on standing.  I had them aruging every one of their elements of proof were not overly broad to produce but more importantly IRRELEVANT and on some of them I had them arguing it different ways it was irrelevant.  I had the other side arguing their burden of proof to a key element was irrelevant.  

 

So now it was too late to go back all their evidence if I objected as irrelevant I used THEIR objections against them and that plie of useless crackpot garbage eight months prior that I had sent them? yep, that was left at home and all I had left to argue was the Nascar type apprach not the other approach.  

 

So it might not be all that complex, it is to me for a pro-se, who knows, it might just be the way it works for good lawyers out there, and if so, fine, but I guess I just don't come up against good lawyers because I don't just win with the strategy I usually turn it into an embarassing circus with the other side just standing there with a WTF look on their face and even the judge with a hidden smirk like "I saw this coming" 

 

What I'm trying to say is find your own style.  If you take the style I have and what a lot of people seem to like where I'm the tough guy that is arrorgant to the other side and tells them to shove it, but leaves off my style of actually having my stuff together and being legally sound in your arguments it won't be near as fun.  If you just use my style of smarting off and then none of your arugments are relevant then the other side will have the last laugh.  

 

I think what Nascar was saying is you might have taken your advice from somebody that sounded good (I don't know, never heard of them) but was short on substance.  

 

I personally suggest you look at many different styles and then adopt one for you, but you have to know your states rules of procedure.   My strategy does nobody any good if they are in a court of limited discovery.   What poor advice if you have twenty questions and you use nineteen of them on garbage designed to bait them on the one question that is good.   That is why state specific advice is so imporatant and you see me all the time saying "generally speaking"

 

Good luck

Dang, Coltfan, Im in Oklahoma where limited discovery applies (30).. I was initially approaching from the idea of laying the groundwork attacking the fake affidavit and midlands penchant for continuing to submit them, thumbing their noses at the lastest court appeal that suspended the recent class action relevant to affidavits and their reliability. the Oklahoma Statutes and Oklahoma rules of evidence code have been a constant source of reference on my computer, but that doesn't always mean I pick up their legalese on the spot... I have to spend time reading definitions and how it applies to various motions, and evidence that Im assuming midland doesn't have in their possession... I know, I know, in the legal field, never assume. :) 

 

I have 21 days remaining to submit this to midland. so I might borrow from your experience, when your done with your discovery layout, do you send a certified copy directly to midland and their legal representatives, or just to midland itself? 

 

My local court I don't have to submit a copy of the discovery to them, ... all I need is to get a "certificate of service" statement and that's what they'll file. Hmmm?

 

roadie

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The OC is not reporting a "date updated"...something like that?   The last time they updated is the date you compare to date Midland claims to have purchased the account. 

 

Regarding the amount claimed vs. the amount on your CR, I would think that Midland has added interest and fees.  Now, whether they can legally do that is going to depend either upon the terms in the OC's agreement or your state laws.  1692f(1) of the FDCPA states:

 

Unfair practices

 

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

 

If they can't prove that they're allowed to collect interest and fees, you have an FDCPA violation. 

 

Regarding the history, it falls under both the FDCPA and the FCRA (Fair Credit Reporting Act).  The applicable FDCPA section would be 1692e(8):

 

False or misleading representations:

 

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

 

However, you'd have to dispute it first.  I'm not sure it's wise or appropriate to dispute information on your CR during a lawsuit, but it might be  possible.

 

Considering that it appears OK courts have not specified whether a credit card is a written or an implied contract for the purposes of the SOL, and considering you have possible FDPCA violations, I would speak to a consumer attorney.  

 

If they're suing you for a substantial amount, an FDCPA counterclaim would not make a dent in the amount for which they're suing you, but if Midland feels they don't have a rock solid case or that they might lose on the basis of the SOL and be held liable under the FDCPA, a good consumer attorney could make this go away.

 

http://www.naca.net/

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