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Help with tactfully answering midlands' Discovery set, please?


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Update: 4-3-2013:   Ive taken out the old version which contained a lot of "objections".

This is the revised set of Discovery answers for Midland's lawyers.  Please help with assessing the answers, I really don't want to shoot myself in the foot. Thanks again, so much!

 

Request for Admissions:

 

1. Admit that defendant is properly identified in the style of this case. If denied, then an appropriate response to Interrogatory No. 4 will be required.

 

Admit

 

 

2. Admit that you owe the obligation which is alleged in plaintiffs petition. If denied, then an appropriate response to Interrogatory No.4 will be required.

 

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the information and to draw a conclusion based on hearsay or speculation, therefore the defendant cannot admit or deny

 

3. Admit plaintiff fully performed its responsibilities as to the obligation referenced in plaintiffs petition.

 

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the information and therefore denies.

 

4. Admit that you are in default on the obligation, that same is due, past due, owing and remains unpaid and that you owe plaintiff the amounts alleged in its petition. If denied, then an appropriate response to Interrogatory No. 4 will be required.

 

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the information and to draw a conclusion based on hearsay or speculation, therefore the defendant cannot admit or deny.

 

Interrogatories:

 

'ROG:-1. State your full and complete name, your full and complete residence address, occupation and job title, and each and every residence address maintained by the defendant since the time of the contract sued upon in this case, indicating the specific date the defendant resided at each address.

 

Roadie Roadrunner.          Current Occupation\Job title: retired roadrunner

Address "a"

City, state, zip

 

November, 2003: Address: "B" - rental house with Wile E. Coyote & 3 little pigs

                            City, state, zip

               

 

 

'ROG:2. Did you obtain credit on the account referenced in plaintiffs petition?

 

Defendant states that Plaintiff's interrogatory #2 is of premature speculation in that it requests defendant, prior to completion of discovery to state all the facts supporting its present contentions and to speculate as to its future contentions and therefore, defendant cannot venture a premature admission or denial.

 

 

'ROG:3. Is the present balance on the account, which is the subject of this action, the sum of $50K? If not, state the following:

     (a) The date of each payment you contend was made

      The amount of each payment you contend was made

     [c]The address you mailed each payment to

     (d) Defendants calculations as to how any other amount was arrived at if it is other than the stated above as to the balance

 

Plaintiff's statement is conclusory and offered without admissible evidence as no application nor actual billing statement has been offered in evidence. Defendant has never contended anything to plaintiff and protests that mischaracterization, further, request calls for defendant to draw a conclusion based on hearsay and\or speculation, before completion of discovery facts, therefore the defendant cannot admit or deny.

 

 

'ROG:4. If denial of any of the above RFA, state specifically and in detail, and be reasonable in doing so, the actual truth of the matter.

 

As stated in Admissions #1 thru #4, Plaintiff's statement is conclusory and offered without providing defendant benefit of any admissible evidence.

 

Plaintiff has not demonstrated a complete accounting or Chain of Assignments indicating how they came to own this alleged account, nor have they produced a bill of sale with the contract showing the alleged account being sold from Sears to MIDLAND FUNDING LLC. 

 

Further, the Plaintiff has not established that a debtor/creditor relationship exists with the defendant or it's purported Assignors, nor were documental evidence submitted to establish a course of business dealings between the parties and Plaintiff. As this Claim is time barred by Plaintiff's own affidavit showing date of first delinquency attached to this complaint, and without benefit of any admissible evidence being documented by Plaintiff, Defendant therefore cannot admit or deny.

 

 

 'ROG:5. In regard to all communications defendant had regarding the acct referenced in plaintiffs petition, state the following:

     (a) the date of all letters, phone calls, memos, notes, notices, etc that the defendant received

      The nature and subject matter of any and all such communications

     [c] Defendants response or reply to the communication, if any.

 

 Defendant concurs with the outlined objectives of Interrogatory #5 and reminds plaintiff that it is seeking duplicate information that is equally available or should already be available to both parties. If Plaintiff is not communicating with plaintiffs' client, then defendant shall treat this query as duplicative.

 

 

'ROG:6. State each and every defense not specifically pled thus far which the defendant intends to raise at the trial of this case and list all proof, evidence and what defendants contentions are in regard to each such defense

 

As this information is protected by the "work product" privilege, defendant must respectfully decline showing his hands prematurely.

 

 

'ROG:7. State name, address and phone number of each person who has any knowledge of the facts pertaining to the subject matter of this litigation and with respect to each person, state:

     (a) subject matter of which such person has knowledge

      substance of the facts & opinions which of such opinion is expected to testify

     [c] Summary of grounds for such opinion.

 

Defendant is a natural person, as defined by Plaintiff's discovery letter's definitions, therefore, in conjunction with the Americans with Disabilities Act, The Defendant does reserve the right to produce a future collaborator at time of trial to assist with his deafness condition.

 

 

Doc's to Produce:

     (1) All canceled checks, money orders, cashiers checks, receipts or other records of payment to support your answers to 'Rogs.

 

Defendant is unaware of any such documents and therefore cannot produce said documents.

 

 

     [2] All written and tangible evidence of any communication between plaintiff or its transferor to support your answers to 'rogs.

 

Defendant states plaintiff fails to define whom the term "transferor" represents and to this end, cannot be answered in its current state of ambiguous query.

 

 

     [3] Produce the contract which the defendant contends was execute, if the defendant contends a different contract was executed, than is the subject of the action upon which plaintiff has brought this suit.

 

Contractual documents proving plaintiff's case are incumbent upon plaintiff to produce, and plaintiff has provided not one admissible shred of evidence of any tangible indebtedness.

 

Defendant contends that Plaintiff's Complaint does not meet the burden of proof for ownership of a debt where indebtedness is evidenced by or founded upon a contract in writing,as envisioned under O.S. 12-95(a).

 

In response to Plaintiff's contention that revolving charge account allegedly assigned to and allegedly owned by Plaintiff is evidenced by or founded upon a contract in writing and governed by O.S. 12-95(a);

 

Yet Plaintiff has not submitted a sufficiently complete and signed written document for purposes of applying the five (5) year statute of limitations.  Defendant contends that open ended accounts are governed by O.S. 12-95(B) and O.S. 14A-2-108 respectively. 

 

   

     (4) Produce any and all documentary or tangible evidence which defendant either expects to use or may use as evidence at trial of this case.

 

If the dates listed on the alleged affidavit submitted by Midland Funding LLC are remotedly correct, the last payment made on the alleged "Piggy Bank" is 10/6/2009, making this claim  " Time Barred" in state of Oklahoma . Oklahoma Statute §12-3-95(2) ,v. "Within three (3) years: An action upon a contract express or implied not in writing";

 

The Date of the purported last payment according to Plaintiff's own affadavit's  listing a DOFD of October 6, 2009 to highlight the 3-year Statute of Limitations for revolving charge accounts in Oklahoma  makes this Claim "Time Barred" under the laws of Oklahoma.  The SOL becomes effective 11-6-2012. Plaintiff has a copy of their own affidavit and submitting another copy to be produced is duplicative.

 

 

     (5) Produce all documents defendant has to support addit'l defenses mentioned in your answers to 'rogs.

 

Defendant will avail itself to the Oklahoma Statutes, specifically Title 12 which introduces the 3-year statute of limitations for a "contract not in writing" and Title 14A,  the Oklahoma Uniform Consumer Code which defines the revolving charge account and introduce his personal credit bureau report showing the account type reported as "revolving account",  beyond that, Defendant is unaware of any such extraneous documents and therefore cannot be produced at this time, Defendant reserves the right to amend his responses per the rules of civil procedure if such alternative documents ever surface in the future.

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This forum is full of good ideas, and I put together mine by just digging in it.  You can use mine, lots of the questions are the same type questions.  The trick is, they need to prove you owe the debt, and you shouldn't have to prove their case for them.  Answer without lying, but without giving them what they ask.  Here is my thread if you want to look at mine.  Mine did me no good, as the judge denied their request for discovery, but I had already sent their answers, and my discovery to the plaintiff.  So judge denied discovery, and now they know my plan of attack lol.  Ayway, good luck. http://www.creditinfocenter.com/community/topic/319656-328-court-denied-discovery-this-is-giving-me-a-headache-not-sure-on-how-to-file-a-motion-for-discovery/

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This forum is full of good ideas, and I put together mine by just digging in it.  You can use mine, lots of the questions are the same type questions.  The trick is, they need to prove you owe the debt, and you shouldn't have to prove their case for them.  Answer without lying, but without giving them what they ask.  Here is my thread if you want to look at mine.  Mine did me no good, as the judge denied their request for discovery, but I had already sent their answers, and my discovery to the plaintiff.  So judge denied discovery, and now they know my plan of attack lol.  Ayway, good luck. http://www.creditinfocenter.com/community/topic/319656-328-court-denied-discovery-this-is-giving-me-a-headache-not-sure-on-how-to-file-a-motion-for-discovery/

Thank  you for giving me a headstart in my mulling about for a good answer.

 

roadie

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Have you guys read Coltfans thread on how to beat Midland from start to finish? Just do a forum search for it or his post.

Yep, sure did, TomnTex, but no two discovery "answers" are ever a perfect fit because the questions asked may vary a tad bit, and seeing how Ive completed the "answering" part to plaintiffs discovery set, I just wanted to be careful and allow other fresh eyeballs to point out potential weakness or rethink a written phrase.

 

Working with a fresh mentality to point out if Im getting too wordy certainly will help me, I know :)

 

roadie

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You've lodged a lot of objections, based on a lot of different reasons (some of them not so good).

 

Here's what you might do: 

 

Assume you send your answers, as is, to Plaintiff. They claim your answers are non-responsive and move to compel. Other than your own interpretation, what authority will you use to support the adequacy of your answers? 

 

For instance, in interrogatory no. 1, do you have any case law to support your contention that listing your previous address constitutes a violation of your privacy rights? Or, interrogatory no. 2, where you claim you don't have to respond because you haven't been shown satisfactory proof of ownership. In interrogatory no. 4, do  you have any case law to support your contention that you don't have to respond because it is your position that the statute of limitations has expired? And on and on.

 

If you cannot support your objections/responses with decent legal authority, perhaps you should consider revising.

 

Finally, if plaintiff has filed suit on a time barred debt (as you seem to indicate), why haven't you filed your own lawsuit?

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You've lodged a lot of objections, based on a lot of different reasons (some of them not so good).

 

Here's what you might do: 

 

Assume you send your answers, as is, to Plaintiff. They claim your answers are non-responsive and move to compel. Other than your own interpretation, what authority will you use to support the adequacy of your answers? 

 

For instance, in interrogatory no. 1, do you have any case law to support your contention that listing your previous address constitutes a violation of your privacy rights? Or, interrogatory no. 2, where you claim you don't have to respond because you haven't been shown satisfactory proof of ownership. In interrogatory no. 4, do  you have any case law to support your contention that you don't have to respond because it is your position that the statute of limitations has expired? And on and on.

 

If you cannot support your objections/responses with decent legal authority, perhaps you should consider revising.

 

Finally, if plaintiff has filed suit on a time barred debt (as you seem to indicate), why haven't you filed your own lawsuit?

Thanks, Nascar, that's exacty what I need a pair of fresh eyeballs to point out and make me re-think.

 

Rog-2 calls for premature conclusion, since the discovery set is still ongoing, right? That'd be better?

 

On the issue of ROG-4, I don't have caselaw, but are you saying the response is inadequate? Didn't know, or at least I wasn't aware I needed caselaw to point out the SOL given the affidavit pointing its DOFD, and the Okla. Statutes' own standings.

 

Just to play safe due to my inexperiences with this legal field, Im going to start digging to see if theres any caselaw.. I do seem to recall someone having done the same "digging" already, and only was able to dredge up caselaw on a business with an SOL issue, not a consumer debt SOL.

 

Still, doesn't hurt to dig and come to a conclusion on the necessity of revising my statement on ROG-4 as written....

 

roadie

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1. Within five (5) years: An action upon any contract, agreement, or promise in writing;

 

 

2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgment;

 

I think you may lose this argument. "Express or implied and not in writing" is where you will have trouble. This generally refers to an oral agreement where there is no document whatsoever to rely upon.  Implied agreements are those which are based upon the actions of the parties; again, no document to rely upon. The 5 year SOL specifies something in writing. A cardholder agreement is in writing, and supposedly the consumer assents to the terms when he or she uses the card that came with it. All they have to do is produce a cardholder agreement that was in effect at the time. Notice that the statute does not require that the agreement be signed or notarized. All it states is that it must be in writing. What you could bring up is the length of time they waited to sue you just so they could get 9-10% interest for all those years.

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1. Within five (5) years: An action upon any contract, agreement, or promise in writing;

 

 

2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgment;

 

I think you may lose this argument. "Express or implied and not in writing" is where you will have trouble. This generally refers to an oral agreement where there is no document whatsoever to rely upon.  Implied agreements are those which are based upon the actions of the parties; again, no document to rely upon. The 5 year SOL specifies something in writing. A cardholder agreement is in writing, and supposedly the consumer assents to the terms when he or she uses the card that came with it. All they have to do is produce a cardholder agreement that was in effect at the time. Notice that the statute does not require that the agreement be signed or notarized. All it states is that it must be in writing. What you could bring up is the length of time they waited to sue you just so they could get 9-10% interest for all those years.

Hmmmm, that is certainly food for thought and I'll take your experience under advisement..... on the flip side, suppose they don't produce a cardholder agreement????

 

with respect to the last line, where would one bring up that "usurious interest compounding over the years" objection?

....With my limited experience I guess I don't see how that one is beneficial to stipulate to???? No offense intended Bruno, its just that my limited insight makes me balk a bit until the lightbulb in my head can see how it registers with the overall picture.

 

roadie

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Not a problem, we all went through this. If they don't provide a cardholder agreement, that makes their claim a bit harder to prove. However, they aren't quite as stupid as they sometimes appear, and these agreements are easily accessible. However, you already have them on the record as not producing it and I would stop there.

 

As for the interest, that would be a countersuit based upon a violation of federal law, specifically 12 USC 85, The National Bank Act of 1864, which specifies that National banks can charge the interest rate of their home state. The OCC specified in an opinion letter that they MUST use their home state's interest law. Therefore, Citibank MUST use the statute I gave you, which REQUIRES a written agreement. Otherwise, they are not allowed to charge more than 15% interest. Once these idiots say they don't have it, you have them. They inherit this from Citibank. They can dismiss their suit, but the countersuit goes forward. Imagine all those years of probably double interest......you may get a nice refund. This may also be an unfair trade practice and a TILA violation.

 

What I referred to in the last line is different.....this is failure to mitigate damages. You know, your kitchen is on fire and you are standing there with a hose in your hand but let it burn, then you want all new stuff from the insurance company. They'll claim you could have done something to stop the injury you now claim....a form of contributory negligence. In this case, they waited what, 2-3 years to sue. Why? They could have sued the day the account went into default, but they didn't. That's because the state allows them to collect 9-10% on this debt until the case is over. Where else can they get that kind of interest? What are you, their personal investment portfolio?

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Roadie,

 

You might have seen some of my posts so you know I love to fight and give the other side a very, very hard time.   In fact, I preach it as a winning strategy, which I think it is.   However, I'm not a big fan of objecting during discovery unless it's a slam dunk objection.  For example if a junk debt buyer continues to call themselves the owner (or other legal jargon) I have no problem objecting as facts not in evidence or other proper objection to them just acting like their ownership has been conceded by me.

 

However, you can usually answer discovery without objecting and actually do more damage.   When you object you open a door.   You give the other side an opportunity to debate with you.   You say to the other side let's have an argument and let a judge decide this issue.   That has it's time and place and I've done a lot of that, trust me.   I've defended a motion to compel and filed a motion to compel.  In fact I filed three motions to compel over the same interrogatory.   When the judge went off on the other side it helped bring the case to a close in my favor so playing hardball in discovery has it's place.

 

But, if you can answer there questions and give them nothing to work with I would do that.   You have then answered and slammed the door.   Yes, they can re-ask a different way or they can still challenge your answer, but you've slammed a very big door when you just answer.   Now they no can argue you are not answering but challenge your answer which is a lot tougher to do, espically if you don't read into the requests or help them at all.   Also, it's not against the law to not remember or be a horrible record keeper.

 

For example, what does it hurt to tell them where you have lived.  Just tell them.   You look like you are cooperating and it's no big deal.   It's not like they can't really find out even if there was some legal reason to not tell them.   Save your objections for when they count, like where you work before there is a judgement.  That type of objection is legit as the day is long. 

 

If they ask for documents, don't be afraid to say after a careful and dilligent search the Defendant has no such documents requested.   Note you did not say the request was a proper request, you just said you don't have what they asked for.   In fact, you never say you would never not have what they asked for you just said you looked and did not find what they requested.  

 

Also you never said you would not object giving it to them if you did have it.  See you slam a door by cooperating by not objecting but you really give them nothing to work with.   Now in my state discovery is ongoing, which means I have a duty to supplement.  Well that still leaves me the opportunity to find what they asked for, review it, research my options, and THEN object giving it to them.   So then I've wasted a ton of their time, left them in limbo and then still objected.   But I waited to object until it would do maximum damage and cause as much problems for the other side as possible.   I left doors and options open without really telling them anything or helping them.  

 

Don't give them commentary or arguments unless required.   Try to cooperate while giving them nothing or giving them irrelevant things.  If they ask for something irrelevant and you have it handy, act like you can't wait to turn it over and be cooperative.  Trust me, I drive the other side crazy and am a nightmare and I've never been compelled to ever supplement an answer or have lost a motion to compel against me.     I've had them filed, I've amended and supplemented on my own where I might have lost if a judge ruled, but I drug it out and made it as painful as possible and then when I did answer I made my answer just enough that they did not want to risk going forward with the motion. 

 

I highly encourage being a pain to deal with but make sure you can cash the checks you write or if the checks are even worth writing.  Remember, if you 100% comply with a discovery request and it does not help the other side, it's not like you lost.  They did not win in discovery because they made a request that you 100% complied with.  

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Coltfan is correct. (Now where have we heard that before) You pick your battles. Objections usually have to be filed with the court with a cover sheet, which invites an objection and oral argument. If you are not well versed in the law, you'll just get run over doing this. Most of the objections people make have no basis in law, because they picked them off the internet and they sound good. Most or all of them are legally insufficient and will be successfully challenged in court. Most people never read the rules of discovery, and do not know what to object to, or how, or when. They just throw out an objection when they have no idea what they are really arguing. There are only a few objections you can raise and hope to prevail upon. Otherwise, you can roll the dice and try to trap them if you are skilled enough to do this, but most are not. If you can argue irrelevancy, facts assumed not in evidence, immateriality, information already assumedly known to the propounding party through their business records, attorney-client privilege, (yes, this applies to you) disclosure of legal strategy, and a few more, then  object. If not, just craft your answers as a general denial and state the reason. That puts the ball in their court, and they generally do not piursue cases in this manner. It isn't in their business plan.

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Thanks, Nascar, that's exacty what I need a pair of fresh eyeballs to point out and make me re-think.

 

Rog-2 calls for premature conclusion, since the discovery set is still ongoing, right? That'd be better?

 

On the issue of ROG-4, I don't have caselaw, but are you saying the response is inadequate? Didn't know, or at least I wasn't aware I needed caselaw to point out the SOL given the affidavit pointing its DOFD, and the Okla. Statutes' own standings.

 

Just to play safe due to my inexperiences with this legal field, Im going to start digging to see if theres any caselaw.. I do seem to recall someone having done the same "digging" already, and only was able to dredge up caselaw on a business with an SOL issue, not a consumer debt SOL.

 

Still, doesn't hurt to dig and come to a conclusion on the necessity of revising my statement on ROG-4 as written....

 

roadie

Addendum to Nascar:

 

I need your help... please?  With your connections, can you point me to the right resource in finding the proper caselaw for SOL's in Oklahoma.  The "FindLaw" website wasn't of much help when I put in keywords like "debt collection" and "statute of limitations" and "Oklahoma" (and a couple of other queries didn't pan out either)  I appreciate your suggestions make me learn to develop a "prove it" mentality.  Sometimes tough to do coming from the consumer end of the spectrum.

 

I have no plans to "hurry up" the answering-to-discovery-set process this week, although I am mindful of the judge's deadline to complete the discovery process by April 15th.

 

When Im done with my answers, can I pm you to do a proofreading prior to responding back to Midland's Lawyers in Oklahoma City?

 

Thanks so much.

 

Roadie

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Not a problem, we all went through this. If they don't provide a cardholder agreement, that makes their claim a bit harder to prove. However, they aren't quite as stupid as they sometimes appear, and these agreements are easily accessible. However, you already have them on the record as not producing it and I would stop there.

 

As for the interest, that would be a countersuit based upon a violation of federal law, specifically 12 USC 85, The National Bank Act of 1864, which specifies that National banks can charge the interest rate of their home state. The OCC specified in an opinion letter that they MUST use their home state's interest law. Therefore, Citibank MUST use the statute I gave you, which REQUIRES a written agreement. Otherwise, they are not allowed to charge more than 15% interest. Once these idiots say they don't have it, you have them. They inherit this from Citibank. They can dismiss their suit, but the countersuit goes forward. Imagine all those years of probably double interest......you may get a nice refund. This may also be an unfair trade practice and a TILA violation.

 

What I referred to in the last line is different.....this is failure to mitigate damages. You know, your kitchen is on fire and you are standing there with a hose in your hand but let it burn, then you want all new stuff from the insurance company. They'll claim you could have done something to stop the injury you now claim....a form of contributory negligence. In this case, they waited what, 2-3 years to sue. Why? They could have sued the day the account went into default, but they didn't. That's because the state allows them to collect 9-10% on this debt until the case is over. Where else can they get that kind of interest? What are you, their personal investment portfolio?

Boing!.... Now that analogy certainly helps register matters over the bigger picture.  Ive printed this to refer to at least until I get better on understanding these legal landmines Im walking on... Thank you, Thank you!

 

Roadie

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Roadie,

 

You might have seen some of my posts so you know I love to fight and give the other side a very, very hard time.   In fact, I preach it as a winning strategy, which I think it is.   However, I'm not a big fan of objecting during discovery unless it's a slam dunk objection.  For example if a junk debt buyer continues to call themselves the owner (or other legal jargon) I have no problem objecting as facts not in evidence or other proper objection to them just acting like their ownership has been conceded by me.

 

However, you can usually answer discovery without objecting and actually do more damage.   When you object you open a door.   You give the other side an opportunity to debate with you.   You say to the other side let's have an argument and let a judge decide this issue.   That has it's time and place and I've done a lot of that, trust me.   I've defended a motion to compel and filed a motion to compel.  In fact I filed three motions to compel over the same interrogatory.   When the judge went off on the other side it helped bring the case to a close in my favor so playing hardball in discovery has it's place.

 

But, if you can answer there questions and give them nothing to work with I would do that.   You have then answered and slammed the door.   Yes, they can re-ask a different way or they can still challenge your answer, but you've slammed a very big door when you just answer.   Now they no can argue you are not answering but challenge your answer which is a lot tougher to do, espically if you don't read into the requests or help them at all.   Also, it's not against the law to not remember or be a horrible record keeper.

 

For example, what does it hurt to tell them where you have lived.  Just tell them.   You look like you are cooperating and it's no big deal.   It's not like they can't really find out even if there was some legal reason to not tell them.   Save your objections for when they count, like where you work before there is a judgement.  That type of objection is legit as the day is long. 

 

If they ask for documents, don't be afraid to say after a careful and dilligent search the Defendant has no such documents requested.   Note you did not say the request was a proper request, you just said you don't have what they asked for.   In fact, you never say you would never not have what they asked for you just said you looked and did not find what they requested.  

 

Also you never said you would not object giving it to them if you did have it.  See you slam a door by cooperating by not objecting but you really give them nothing to work with.   Now in my state discovery is ongoing, which means I have a duty to supplement.  Well that still leaves me the opportunity to find what they asked for, review it, research my options, and THEN object giving it to them.   So then I've wasted a ton of their time, left them in limbo and then still objected.   But I waited to object until it would do maximum damage and cause as much problems for the other side as possible.   I left doors and options open without really telling them anything or helping them.  

 

Don't give them commentary or arguments unless required.   Try to cooperate while giving them nothing or giving them irrelevant things.  If they ask for something irrelevant and you have it handy, act like you can't wait to turn it over and be cooperative.  Trust me, I drive the other side crazy and am a nightmare and I've never been compelled to ever supplement an answer or have lost a motion to compel against me.     I've had them filed, I've amended and supplemented on my own where I might have lost if a judge ruled, but I drug it out and made it as painful as possible and then when I did answer I made my answer just enough that they did not want to risk going forward with the motion. 

 

I highly encourage being a pain to deal with but make sure you can cash the checks you write or if the checks are even worth writing.  Remember, if you 100% comply with a discovery request and it does not help the other side, it's not like you lost.  They did not win in discovery because they made a request that you 100% complied with.  

Coltfan, hi there, your skirmish is legendary, among us "wanna-be-a-winner-too" newbies.  Funny thing, I kept hearing the phrase "Im not a big fan of objections" time and again, and I kept pondering to myself "why?-whats-so-bad-about-objections"... well between you, Nascar and Bruno hammering this into my newbie brain.... I think I finally got it!!!!....  ..."minimize those objections, only do it if necessary" ...

 

Tonight, Im taking another shot at revising those answers, and take out those objections....didn't realize they work against me and yes indeed, using them sure did sound good, I guess that's because Ive never experienced the consequences of objections.

 

Thank you for preventing me from making a big mistake You, Nascar, Bruno, TomnTex sure did drill this into me!

 

Roadie

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Regarding whether 12-95(A)(1) or 12-95(A)(2) applies in your situation, it is my understanding that the courts are all over the place on this. I would recommend that you contact a NACA attorney in Oklahoma and pose the question to one of them. I believe Victor Wandres is pretty active in the area of collection lawsuit defense. He should know for sure.

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Regarding whether 12-95(A)(1) or 12-95(A)(2) applies in your situation, it is my understanding that the courts are all over the place on this. I would recommend that you contact a NACA attorney in Oklahoma and pose the question to one of them. I believe Victor Wandres is pretty active in the area of collection lawsuit defense. He should know for sure.

Thank you, Nascar, Tulsa, Okla is two hours north of me. Im keeping this reference. I have sent him an email to this effect.

 

Roadie

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I think some of your discovery responses are in a nature that the court or a jury can construe that you in fact have knowledge of the debt. to claim SoL defense you have to admit that you are in privity of the agreement. the answers to admissions are fine but you are holding tight to some information that is valid request under the discovery act and will turn an already hostile court against you. If this is indeed a time barred debt then witholding information they can already get will possible result in sanctions and the elimination of a defense as a discovery sanction so you have to ballance whether witholding info they can already get with skip tracing will be in your best interest.

 

Don't get me wrong I am a fighter but wouldn't it be F'ed if your good defense was thrown out because you didn't want to give an address from 5 years ago, and is probably listed in credit files somewhere?

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I think some of your discovery responses are in a nature that the court or a jury can construe that you in fact have knowledge of the debt. to claim SoL defense you have to admit that you are in privity of the agreement. the answers to admissions are fine but you are holding tight to some information that is valid request under the discovery act and will turn an already hostile court against you. If this is indeed a time barred debt then witholding information they can already get will possible result in sanctions and the elimination of a defense as a discovery sanction so you have to ballance whether witholding info they can already get with skip tracing will be in your best interest.

 

Don't get me wrong I am a fighter but wouldn't it be F'ed if your good defense was thrown out because you didn't want to give an address from 5 years ago, and is probably listed in credit files somewhere?

Hi SeaDragon, point taken... I was playing it close to the vest as you pointed out, but that's because the law office of L.B.N. are equally dirty (my consumer perception speaking out)

 

But more to the point, IM letting everyone know IM spending today (Easter Sunday, ha) taking out the objections, and revising my answers (while maintaining the truth, of course)

 

I can already see I have a few sticky points, example: How to answer the question "did you obtain credit on the account referenced in petition"....petition is referencing "Dell's" account number  Hmmmm.  Im sure I'll come across something similar,  somewhere here to provide the law office of LBN an answer.

 

When I come across some sticking points, I'll bring those in one at a time to this forum's readers before releasing the final revision for interested parties to chime in. Speaking of which, how do I "delete" the original discovery set and replace it with the revised version? This way, the version with objections in it, wont inadvertently mislead future readers who are ending up in the same boat I am in?

 

roadie

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Go back to your post and click on edit. I do not see any harm in admitting that you obtained credit from Dell, unless you intend to try to convince the court that this is not your account, which is a rather hopeless defense. The judge simply won't believe you, unless you have evidence of ID theft or mistake. Amnesia about the account does not work.

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Go back to your post and click on edit. I do not see any harm in admitting that you obtained credit from Dell, unless you intend to try to convince the court that this is not your account, which is a rather hopeless defense. The judge simply won't believe you, unless you have evidence of ID theft or mistake. Amnesia about the account does not work.

Common sense would speak to that fact, indeedy :-)

 

Note: Today, Wednesday, April 3, 2013, I went back into page one to take out the "old" answers of the discovery set intended to be sent to Plaintiff (Midland)... the new "answers" are now online for evaluation and assessment, will you guys please see if Im shooting myself in the foot?

 

By the way, Discovery has to be completed by April 15 according to scheduling orders, so I presume I'll send out this weekend if assessment here goes well.  Thanks, everyone.

 

Roadie

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Here's a few suggestions:

 

3.  Denied.  (What responsibilities did the plaintiff have?  To send you collection letters?)
 

 

'ROG:2. Did you obtain credit on the account referenced in plaintiffs petition?

Defendant states that Plaintiff's interrogatory #2 is of premature speculation in that it requests defendant, prior to completion of discovery to state all the facts supporting its present contentions and to speculate as to its future contentions and therefore, defendant cannot venture a premature admission or denial.

 


What premature speculation?  They've asked a simple question.  Don't get me wrong.  I'm not supporting the JDB.  But it is a simple question.  You can admit, deny, or state that you don't have sufficient information to admit or deny.
 

 

'ROG:4. If denial of any of the above RFA, state specifically and in detail, and be reasonable in doing so, the actual truth of the matter.

 

As stated in Admissions #1 thru #4, Plaintiff's statement is conclusory and offered without providing defendant benefit of any admissible evidence.

 

Plaintiff has not demonstrated a complete accounting or Chain of Assignments indicating how they came to own this alleged account, nor have they produced a bill of sale with the contract showing the alleged account being sold from Sears to MIDLAND FUNDING LLC.

 

Further, the Plaintiff has not established that a debtor/creditor relationship exists with the defendant or it's purported Assignors, nor were documental evidence submitted to establish a course of business dealings between the parties and Plaintiff. As this Claim is time barred by Plaintiff's own affidavit showing date of first delinquency attached to this complaint, and without benefit of any admissible evidence being documented by Plaintiff, Defendant therefore cannot admit or deny.

 


In my opinion, bringing up ownerhip of the account is not appropriate in response to this rog.  The rog has nothing to do with whether or not Midland owns the account.  It's strictly about the amount of the debt.  If it were me, I'd limit my responses to the context of the request.
 

 

If Plaintiff is not communicating with plaintiffs' client, then defendant shall treat this query as duplicative.

 

The Plaintiff is the JDB.  The JDB cannot be their own client.

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'ROG:6. State each and every defense not specifically pled thus far which the defendant intends to raise at the trial of this case and list all proof, evidence and what defendants contentions are in regard to each such defense

 

As this information is protected by the "work product" privilege, defendant must respectfully decline showing his hands prematurely.

 

Is this correct per your state and local code? As far as I'm aware defenses are not "work product" privilege and have to be disclosed to the other side. A judge could throw those defenses out if you don't share them with the other side at the appropriate time.

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