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Roadie

Help with tactfully answering midlands' Discovery set, please?

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Just say your defense is that you are not legally liable to the Plaintiff.   In other words you plead not guilty, not innocent, but not guilty as in they can meet their burden of proof.   You are not saying you do owe the money or not and to whom, you're saying that your position is the Plaintiff can't meet their burden with admissible evidence.   It's premature to speculate on what that evidence might be that you have to attack but it's not pre-mature to state that any evidence won't meet their burden of proof.

 

It's like if the U.S.A. tells a country, go to war with us and you will lose because our military is the best in the world.  The U.S.A. is not going to describe all the ways we are going to annhiliate you if you go to war with us because it's irrelevant because any strategy you use will lose because we are more powerful.  

 

In this case, you need to only get across that whatever the evidence or strategy you don't see any way the other side can meet their legal burden so you don't care what strategy they use.  

 

It's like a told a collection attorney once when they approached me an offer to settle.  I said  not interested.  They said, but you have not even heard what we have to say.   I said, it's irrelevant because I'm going to win no matter what so whatever your offer is, even if it's one cent is rejected because I'm going to win.   

 

I'm not saying you need to be that arrorgant but I'd just get it across to them that you don't have some fancy defense, you're just going to be the old fashioned way, making them actually meet their legal burden of proof, something you're betting they can't do no matter what strategy they try. 

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I think it will be easier to take out anything that sounds snarky.

as for #2 denied will do. as a matter of fact if you don't specifically deny something the court could make it an admission. such as cannot admit or deny. without an answer that will become an admission unless you deny some things. I would also make a section in the beginning that all allegations are denied unless specifically admitted.

 

 

as for your affirmative defenses snafu I would tell them about your affirmatives because if you don't a motion for summary judgment will be soon.  so from your amended responses the lack of information needa a therefore defendant denies the allegationon the end to close the statement.

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Here's a few suggestions:

 

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

 

 

 

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.

 

 

 

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.

 

 

 

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

Hi, BV...

 

(a) Fixed #3...

 

regarding 'rog-2'..."premature speculation"... this question is being asked prior to completion of discovery so isn't that grounds for "premature speculation" until Midland's lawyers answer my Rogs\Admissions\RFPD's?

 

[c] regarding "rog-4".... so I just use the same paragraphs Ive employed in the Admissions section? and leave it at that? 

 

I thought the rog-4 wanted me to explain to them my "show me the evidence " position [ Why? Cuz my OC is still reporting a balance instead of $0" ] and Midland states they bought the account almost a year ago so me thinks the OC had time enough to zero out the balance. 

 

Knowing  you've got keener senses, Im taking another look at revising rog-4... its kind of like walking in a minefield with Rog-4 :(

 

[d] oops... for rog-5, ... that one was an error, I shouldn't have said "client", I meant the Plaintiff's lawyers that is to say, If the two [Midland and Midland's Lawyers, Love, Beal and Nixon ] aren't communicating, then Im treating that Rog-5 query as duplicative.

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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.

Spikey, I appreciate you pointing this out for "rog-6", at the moment, Im gonna stick my neck out and say "yes" but having legal inexperiences and sometimes a tired mind is grounds for double checking my Oklahoma Discovery code procedures.

 

I'll doublecheck on this and get back to you.

 

Again, appreciate pointing this out, as I said, I don't want to be shooting myself in the foot! ... and besides each critical query can only motivate me do a better job!

 

roadie

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" Just say your defense is that you are not legally liable to the Plaintiff.   In other words you plead not guilty, not innocent, but not guilty as in they can meet their burden of proof.   You are not saying you do owe the money or not and to whom, you're saying that your position is the Plaintiff can't meet their burden with admissible evidence.   It's premature to speculate on what that evidence might be that you have to attack but it's not pre-mature to state that any evidence won't meet their burden of proof.".......

 

Coltfan, ya referring to "rog-2" when I mentioned premature speculation? Or to "rog-6" where theyre asking me about my defense plans at trial to be raised? ".... eh, "Im not legally liable to the Plaintiff"... short and sweet.... I'll consider adding those to ongoing

revisions!

 

roadie

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I think it will be easier to take out anything that sounds snarky.

as for #2 denied will do. as a matter of fact if you don't specifically deny something the court could make it an admission. such as cannot admit or deny. without an answer that will become an admission unless you deny some things. I would also make a section in the beginning that all allegations are denied unless specifically admitted.

 

 

as for your affirmative defenses snafu I would tell them about your affirmatives because if you don't a motion for summary judgment will be soon.  so from your amended responses the lack of information needa a therefore defendant denies the allegationon the end to close the statement.

Seadragon, that makes sense, from the perspective of "any vague answer" = the equivalent of "admitted". Ok, I fixed admission #2 to "denied", and Im thinking perhaps admission #4 should also be "denied" ?

 

All those 4 denials then led to "rog-4", wanting me to "write the actual truth of the matter". Well, Coltfan's "I don't owe you a legal penny" makes sense (not in those words, I know, ha)

 

About those "affirmatives" your mentioning, are you talking about "rog-6"?... if yes, then okay, makes sense not to let them have a reason to file an MSJ...  I'll work on its revision, not sure how I'll word my affirmative defenses into this section but I have been put on notice and I'll fix it. Thanks for pointing this aspect out.

 

roadie

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regarding 'rog-2'..."premature speculation"... this question is being asked prior to completion of discovery so isn't that grounds for "premature speculation" until Midland's lawyers answer my Rogs\Admissions\RFPD's?

 

I misread the rog.  I apologize.   What evidence did they provide?  If they haven't provided any cc statements, I might object to the rog as assuming facts not in evidence.  If they haven't shown the existence of the account, they're asking you to state whether or not you obtained credit on an account that hasn't yet been proven to exist.  

 

Regarding #4, if you want to leave in the part about ownership, you can.  None of the admissions were related to ownership, and I thought that perhaps you'd be showing your hand too soon.  But again, if they feel they don't have a good case, it might cause them to back off. 

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You have to be careful when making the statement that you cannot legally admit or deny, some times courts will take that as admitted.

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I misread the rog.  I apologize.   What evidence did they provide?  If they haven't provided any cc statements, I might object to the rog as assuming facts not in evidence.  If they haven't shown the existence of the account, they're asking you to state whether or not you obtained credit on an account that hasn't yet been proven to exist.  

 

Regarding #4, if you want to leave in the part about ownership, you can.  None of the admissions were related to ownership, and I thought that perhaps you'd be showing your hand too soon.  But again, if they feel they don't have a good case, it might cause them to back off. 

Evidence? Nada. The only thing that came with the summons, originally, was the confounded "affidavit" which I attacked in the 'rogs submitted to Plaintiff.... I like the phrase "yet proven to exist". and will also add "denial" to make it a confirmed denial so it wont be inadvertently switched to an "admission".

 

Im learning, everyone's making sure I don't play with those "cant confirm\cant deny" lines.

 

Ive changed rog-2 to read as: (effective 4-5-2013)

...." Defendant states that Plaintiff's interrogatory #2 is of premature speculation in that it requests defendant, prior to completion of discovery to assume facts not in evidence and on an account that hasn't yet been proven to exist. Therefore Defendant Denies. "

 

(I think that ones more helpful!.... thank you!)

 

roadie

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You have to be careful when making the statement that you cannot legally admit or deny, some times courts will take that as admitted.

 :).... been getting that hammered into me lately! :)    Helpful criticism certainly is well taken :)

 

roadie

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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 has not provided the defendant enough substantial proof that he/she owes the debt. At this point in litigation it would call on the defendant to speculate. Until plaintiff provides proof of the debt and that the plaintiff has legal standing to initiate a suit then the defendant must deny. Defendant also retains the right to amend any answers as evidence becomes available.

 

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

Plaints question is ambiguous, until plaintiff can provide a contract agreement that governs  the responsibilities that the plaintiff alleges, it would leave the defendant and the court to have to speculate as to any terms that the defendant allegedly agreed to. To avoid speculation or a legal conclusion the defendant must deny, defendant also retains the right to amend answers as evidence becomes available.

 

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. Until plaintiff provides proof of the alleged debt the defndant must deny. Defendant retains the right to amend his answers as evidence becomes available.

 

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. Burden of proof rests with the plaintiff.

 

 

'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

 

Calls for speculation, defendant requires strict proof of the alleged amounts. Burden of proof rests with the plaintiff to demonstrate that any alleged balance is correct. Information asked for is equally obtainable to the plaintiff and the defendant is under no obligation to help prove the plaintiffs case.

 

'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 has documentation, or any other evidence been submitted by the plaintiff to establish a course of business dealings between the parties.  The plaintiff offered an affidavit the shows the date of first delinquency, even if the alleged debt is true and accurate, the affidavit itself shows that the debt is timed barred.

 

 

 '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. It is not the defendants duty to prove the plaintiffs case for them.

 

 

'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 even remotely 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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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 has not provided the defendant enough substantial proof that he/she owes the debt. At this point in litigation it would call on the defendant to speculate. Until plaintiff provides proof of the debt and that the plaintiff has legal standing to initiate a suit then the defendant must deny. Defendant also retains the right to amend any answers as evidence becomes available.

 

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

Plaints question is ambiguous, until plaintiff can provide a contract agreement that governs  the responsibilities that the plaintiff alleges, it would leave the defendant and the court to have to speculate as to any terms that the defendant allegedly agreed to. To avoid speculation or a legal conclusion the defendant must deny, defendant also retains the right to amend answers as evidence becomes available.

 

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. Until plaintiff provides proof of the alleged debt the defndant must deny. Defendant retains the right to amend his answers as evidence becomes available.

 

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. Burden of proof rests with the plaintiff.

 

 

'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

 

Calls for speculation, defendant requires strict proof of the alleged amounts. Burden of proof rests with the plaintiff to demonstrate that any alleged balance is correct. Information asked for is equally obtainable to the plaintiff and the defendant is under no obligation to help prove the plaintiffs case.

 

'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 has documentation, or any other evidence been submitted by the plaintiff to establish a course of business dealings between the parties.  The plaintiff offered an affidavit the shows the date of first delinquency, even if the alleged debt is true and accurate, the affidavit itself shows that the debt is timed barred.

 

 

 '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. It is not the defendants duty to prove the plaintiffs case for them.

 

 

'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 even remotely 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.

 

Changes incorporated!.   Thank you for pointing that out.

 

Roadie

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It is not the defendants duty to prove the plaintiffs case for them.

 

 

I would leave this out. They are lawyers, they know this.

 

 

defendant must respectfully decline showing his hands prematurely.

 

I'd leave out the poker reference, too. Also, it's a legit question. If you have any defenses you intend to use, tell them. Also check your rules, some states have a "use it or lose it" provision for defenses.

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It is not the defendants duty to prove the plaintiffs case for them.

 

 

I would leave this out. They are lawyers, they know this.

 

 

defendant must respectfully decline showing his hands prematurely.

 

I'd leave out the poker reference, too. Also, it's a legit question. If you have any defenses you intend to use, tell them. Also check your rules, some states have a "use it or lose it" provision for defenses.

(a) taking the first one out, is beginning to make the responses less "snarkier" (ha). Nevertheless, paragraph has been modified.

 

Several of you CIC'ers have pointed the same thing out, So Im taking the whole paragraph out instead of just that singular line, and now working on replacing placed it with another paragraph, fleshing it out with affirmative defenses listed in the "Answer-to-the-petition".

 

This has been a valuable learning tool for "writing clearly, and writing well" with an eye to supporting my answers with either a citation or other document intended to be submitted into court.

 

Roadie

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The bottom line is you need to make them prove their case.   Yes, if you have a true affirmative defense then of course you raise, if not, you sued me, I don't think you can meet your burden on each element of proof required.   That's a legit defense.   It's saying, prove your case without any help from me.  

 

When somebody sues you there are certain elements of proof they must prove.  That's just the way it is on any case and it goes without saying and it also does not require the other party to point out the elements pre-trial and how they will attack them.   Any party suing has elements of proof they must meet and they are unspoken.   For example, if they sue you for 5K then one of the elements of proof is proving 5K is the balance due.   You don't have to tell the other side, I don't think you can prove I owe 5K as the balance.   It's unspoken, it's just what they have to do.   Let's say they prove 5K is the amount owed.   They have met that element of proof. 

 

Then they have to prove standing (you owe it to the party suing you).  If they do that they have met another element of  proof.  If they can't, then their element they did prove, 5K owed, is now useless because they lose because they could not met the standing element of proof.    Again, it's unspoken that the party suing you has to prove they are the party that should be awarded the judgement.   

 

Works that same in criminal court.   If you're charged with DWI, well an element of proof is proving you were driving.   If the state can't prove you were driving, then you blowing triple the legal limit is useless.  Yes, that proves the intoxication element but without the driving element there can be no DWI.   This is all unspoken also.  

 

So don't get carried away with trying to be fancy with what you tell them.   There are only certain defenses they are entitled to know prior to trial.   All the other stuff are common elements of proof they have to meet and if they can't meet those elements of proof, they don't somehow get a free pass because you did not tell them you were going to dispute and fight them when they argued those elements.   They have to prove those elements because they are the Plaintiff.  

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The bottom line is you need to make them prove their case.   Yes, if you have a true affirmative defense then of course you raise, if not, you sued me, I don't think you can meet your burden on each element of proof required.   That's a legit defense.   It's saying, prove your case without any help from me.  

 

When somebody sues you there are certain elements of proof they must prove.  That's just the way it is on any case and it goes without saying and it also does not require the other party to point out the elements pre-trial and how they will attack them.   Any party suing has elements of proof they must meet and they are unspoken.   For example, if they sue you for 5K then one of the elements of proof is proving 5K is the balance due.   You don't have to tell the other side, I don't think you can prove I owe 5K as the balance.   It's unspoken, it's just what they have to do.   Let's say they prove 5K is the amount owed.   They have met that element of proof. 

 

Then they have to prove standing (you owe it to the party suing you).  If they do that they have met another element of  proof.  If they can't, then their element they did prove, 5K owed, is now useless because they lose because they could not met the standing element of proof.    Again, it's unspoken that the party suing you has to prove they are the party that should be awarded the judgement.   

 

Works that same in criminal court.   If you're charged with DWI, well an element of proof is proving you were driving.   If the state can't prove you were driving, then you blowing triple the legal limit is useless.  Yes, that proves the intoxication element but without the driving element there can be no DWI.   This is all unspoken also.  

 

So don't get carried away with trying to be fancy with what you tell them.   There are only certain defenses they are entitled to know prior to trial.   All the other stuff are common elements of proof they have to meet and if they can't meet those elements of proof, they don't somehow get a free pass because you did not tell them you were going to dispute and fight them when they argued those elements.   They have to prove those elements because they are the Plaintiff.  

I do hear ya on this matter, Coltfan, and my inexperience in this legal landmine doesn't want to get them enough rope to move for MSJ.   Now I see  if I do give them enough rope, the MSJ might be moved to the backburner, technically allowing me enough time to get in my arguments for SOL.  This is counter-intuitive, where one, like myself,  is taught to hold your cards close to your vest.

 

Gonna work on those opening statements when I get my affirmative defense "ducks lined up " first. Will post that "revision" on this forum, here  when draft is completed and its ready for further critical reviews.

 

Roadie

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