Boostagusta

Pocket-docket finally filed

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no if they sent it to you with their other stuff, it suffices.  The court does not need duplicate paperwork.

 

I actually received the Exhibit A - Terms & Conditions with the response to my request for Production of Docs, which arrived after (by a few days) their rogs/admissions.  So, had I responded immediately, I would not have had this other Exhibit A to reference.

 

Not sure if that means anything or adds clarity.

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Exhibit C: Bill of Sale between Chase Bank USA, N.A. and Hilco Receivables (struck-through with 'EAF, LLC' handwritten above.  This doc is 1 page and is an Exhibit to a Credit Card Account Purchase Agreement (rest of said agmt was not included). 

 

@Boostagusta

 

EAF was formerly Hilco.  If I'm not mistaken, that change occurred in 2010, but don't quote me.   The point is that the change occurred before 2011, and the bill of sale should not have contained Hilco's name.

 

Don't forget to let us know exactly what's stated in the bill of sale.

 

 

Another question/thought: How can the JDB object to #6 when the allegded default was part of the Complaint (#3 of complaint).?

 

Who knows why the attorney made such an objection?  One possible explanation:  You're not dealing with rocket scientists.

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The Bill of Sale:

 

CHASE

BILL OF SALE

 

Chase Bank USA, N.A. ("Seller"), for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated November 20, 2009 between Seller and Hilco Receivables, LLC ("Purchaser"), its successors and assigns ("Credit Card Account Purchase Agreement"), hereby assigns effective as of the File Creation Date January 6, 2011 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in Exhibit 1 attached hereto and made part hereof for all purposes.  The name(s) of the Borrower(s), the Account Number assigned by Seller to the Borrower(s)' Account, the Unpaid Balance as of the File Creation Date referenced in the Credit Card Purchase Agreement for each and every Account, the Borrower(s)' Social Security Number, the Borrower(s)' Home Address, the Borrower(s)' Phone Number and other information related to the Borrowers and Accounts as kept and maintained in the business records of the Seller in the course of business is contained in the File referenced in Exhibit C hereto and Exhibit D of the Credit Card Purchase Agreement and transferred to Purchaser herewith.  Furthermore, Seller attests and affies that documents (as the term is used in Section 6 of the Credit Card Purchase Agreement) as maintained in the ordinary course of its business are available to Purchaser upon request as set forth in Section 6 of this Credit Card Purchase Agreement, including but not limited to applications by Borrower(s) whose Accounts are being transferred hereby as well as statements reflecting or related to the Unpaid Balance as of the File Creation Date as reflected in the Seller's business records.

 

Number of Accounts                                          30,396

Total Unpaid Balances                                                  

Premium                                                                           

Due Seller                                                                         

 

Amounts due to Seller by Purchaser in hereunder shall be paid U.S. Dollars by wire transfer to be received by Seller no later than January 12, 2011 (the "Closing Date") ny 2:00 p.m. Seller's time, as follows:

Chase Bank USA, N.A

ABA                               

Beneficiary Name:      

Beneficiary Account:   

 

This Bill of Sale is executed without recourse except as stated in the Credit Card Purchase Agreement to which this is an Exhibit.  No other representation of or warranty of title or enforceablility is expressed or implied.

 

               Chase Bank USA, N.A.                                                                                      Hilco Receivables, LLC   EAF, LLC (handwritten)

By:      (unlegible signature)                                                                                                                     By:     (unlegible signature)

Date: January 7, 2011                                                                                                                               Date:   1/21/11

Title:  Team Leader                                                                                                                                   Title:     COO

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Please critique the admissions I have compiled so far:

  1.  Admit that the Plaintiff does not have the alleged credit application from account number XXXXXXXXXXXX bearing the defendant’s signature.
  2.  Admit that the Plaintiff does not have a complete history of the account from day one, establishing the legitimacy of the balance sought.
  3. Admit that the Plaintiff does not have any documents evidencing the exact date of the alleged default.
  4. Admit that the Plaintiff does not have a description of every charge included in the alleged balance.
  5. Admit that the Plaintiff’s alleged purchase of the subject account did not assign all rights and obligations of the original creditor to Plaintiff.
  6. Admit that the Plaintiff is not the legal owner of the account that is the subject of this lawsuit.
  7. Admit that the Plaintiff does not have documents establishing the chain of custody of the alleged debt, as requested in Defendant’s request for production of documents dated xxxxxx.
  8. Admit that Plaintiff does not have or any document setting forth any guarantees or warrantees from the original creditor attesting to the accuracy of the account balance.
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1. Admit that Plaintiff did not provide any goods or services to The Defendant.

2. Admit that Plaintiff is not the Original Creditor on the account at issue.

3. Admit that Plaintiff did not enter into any contract with The Defendant

4. Admit that Plaintiff obtained rights to the alleged account at issue through an assignment.

5. Admit that no employee, agent, or representative of Plaintiff is a custodian of records for the Original Creditor on the account at issue.

6. Admit that Plaintiff is not a bank or financial institution.

7. Admit that no employee, agent, or representative of Plaintiff has personal knowledge of Original Creditor's record keeping of any records pertaining to The Defendant.

8. Admit that the last payment received on this account was received before <date of four years before lawsuit was filed*>.

9. Admit that the alleged breach of contract that is the basis of this lawsuit occurred before <date of four years before lawsuit was filed*>.

10. Admit that the Original Creditor sold or assigned the debt to you with no warranties or representations as to the validity of the debt.

If they have shown you an attachment with their bill of sale that appears to be an excerpt from a spread sheet (probably labeled "Exhibit A") bearing your name, address, the name of the original creditor and an account number etc. then include the following in the list of admissions:

11. Admit that the document attached hereto as "Exhibit A" was not created by the Original Creditor.

12. Admit that the document attached hereto as "Exhibit A" is not an original exhibit to the Bill of Sale.

13. Admit that the defendant's name and alleged account number were not included in any attachments or exhibits to this bill of sale.


Be sure to include a copy of the bill of sale and their "Exhibit A" with the request for admissions.

They will most likely object on the grounds that this is privileged attorney-client information so then you file a motion to compel. Check your court's rules and procedures- you may have to schedule a hearing on the motion yourself.
 

 

I would recommend not mentioning the fact that Hilco became Equable Ascent long before this bill of sale was printed.  That could be an ace-in-the-hole if this ever makes it to trial.  It is always good to reserve something to spring on them.

 

 

* "Four years" may not apply to your state- it is the statute of limitations here in Texas. You will need to work out the date according to the statute of limitations in your state.

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Thanks texasrocker! MN sol is 6 yrs, but I will add the others.

I'm wondering if there is a 'best' sequence to send all this back. i.e. should I send my admissions first or respond to theirs first? Or is it irrelevant? And should I send them rogs &, if so, to what specific end?

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Now the real confusing part of the Request for Admissions: no Exhibit A (the aforementioned Terms & Conditions) was attached!  WTF!  Also, Admission #5 really says 'compromise' though I think JDB meant 'comprise'.

 

Thanks in advance for the help!!!

 

 

I also have this question:

 

JDB's response to my request for Production of Docs contained Terms & Conditions as an Exhibit A.  Does this mean this exhibit is suppose to be assumed to be attached to their rogs/admissions as well?

 

I want to make sure I do not screw anything up when I respond to the admissions with objections aboot the lack of the referenced attached 'exh A'.

 

 

no if they sent it to you with their other stuff, it suffices.  The court does not need duplicate paperwork.

 

 

I actually received the Exhibit A - Terms & Conditions with the response to my request for Production of Docs, which arrived after (by a few days) their rogs/admissions.  So, had I responded immediately, I would not have had this other Exhibit A to reference.

 

Not sure if that means anything or adds clarity.

I would really like some further input on this specific aspect.  It does not seem logical to me that an Exhibit A from a discovery response should be assumed to also be the Exhibit A from an earlier discovery request.  This type of assumption does not seem inline with the process of court rules/civil procedures.  I would really like to respond to the Admissions with a 'nanny-nanny boo-boo, you messed-up your request' and make the JDB dump more man hours into correcting their mistake.  But I may be looking at this from a very one-sided perspective.

 

Let me hear some other thoughts!

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If they are referencing exhibit A, remember they have not filied this stuff with the court.  When they do so, if they have 2 documents referencing exhibit A, then they will only submit exhibit A once. 

When you have things you submit to the court, you will never have 2 different documents named exhibit A, you would have exhibit A exhibit B etc.  Does that help?

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Now the Request for Admissions.

     1.  That you applied for and received the credit card from Chase Bank USA, N.A. (WAMU) that is the subject of this lawsuit. 

RESPONSE: Deny.

 

      2.  That the Terms and Conditions for the credit card are genuine.  A true and correct copy of which is attached as Exhibit A.

RESPONSE: Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit or deny.  Therefore denied.

 

     3.  In the event you deny Request for Admission No. 1, state the name, address, age, occupation and employer of every person whom you will call to testify to dispute the genuineness of the Terms and Conditions.

RESPONSE: None. Discovery is continuing and Defendant reserves the right to supplant its response if other documents become available.

 

     4.  That you accepted the Terms and Conditions and agreed to be bound by them when you charged on the account.

RESPONSE: Deny.

 

     5.  That you or an authorized user made all the charges or took the cash advances which compromise the current balance outstanding with Plaintiff.

RESPONSE: Defendant objects as this request is vague and contains the undefined term “compromise.” 

 

     6.  That you defaulted under the Terms and Conditions of the card by failing to make the required monthly payments due under the Terms and Conditions.

RESPONSE: Deny.

 

     7.  There remains unpaid a principal amount owing to Plaintiff of $xxxxxxxx under the Terms and Conditions for the credit card from Chase Bank USA, N.A. (WAMU) that is the subject of this lawsuit.

RESPONSE: Deny.

 

     8.  In the event you deny Request for Admission No. 6, state the name, address, age, occupation and employer of every person whom you will call to testify to dispute the genuineness of the Terms and Conditions. 

RESPONSE: None. Discovery is continuing and Defendant reserves the right to supplant its response if other documents become available.

 

     9.  That you agreed to be responsible for all costs of collection including reasonable attorneys fees and court costs if you defaulted on the credit card agreement from Chase Bank USA, N.A. (WAMU) that is the subject of this lawsuit.

RESPONSE: Deny.

 

     10.  That there are no documents which you rely on as a basis of or in support of a defense in this matter.

RESPONSE: Deny.  Defendant reserves the right to present any documents as they become available to him.

 

     11.  That you made payments on the credit card from Chase Bank USA, N.A. (WAMU) that is the subject of this lawsuit.

RESPONSE: Defendant states that after reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit or deny. 

 

 

 

I have my response to JDB's RFAs drafted above.  Please review and provide feedback.

Thanks.

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JDB has now filed a Motion for Summary Judgment.  Thankfully, helpme's thread seems like it will be very useful.  If anyone has any info on MN specifics and/or other well done threads, please let me know.

 

An immediate question I now have: I was planning on mailing my responses to discovery as well as requests for admissions today- SHOULD I PROCEED AS PLANNED OR DOES THIS MSJ CHANGE THIS?

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Unlike helpme's case vs EAF, they listed Plaintiff as Equable Ascent Financial LLC ASSIGNEE of Chase Bank USA, N.A. (WAMU) and in the affidavit attached to the MSJ their affiant (Jeff Hasenmiller) states he is an authorized agent of Plaintiff & is familiar with Plaintiff's Assignor's business records, maintains books and records of regularly conducted business activities, and that affiant is a custodian of those books and records.

 

Am I reading that right- Jeff Hasenmiller is claiming to be custodian of Chase's books & records??

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I sent off my responses to RFA and ROGS, as well as the RFA for them.  Should I send ROGS to undermine affiant?  I am also planning on filing a motion to amend answer to include counterclaim.

 

I would like some feedback and suggestions on what comes next and/or what is recommended.  This site & all my research has me feeling confident; my lack of experience is my greatest weakness now.

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here are some requests for documents and admissions on this thread- I would redact alot of them to fit your needs.  Look at the admissions for plaintiff, there anre many that are directed to affiant.

http://www.creditinfocenter.com/community/topic/319824-help-being-sued-and-need-help-with-my-answer/page-4

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A little update and request for more help:

 

JDB filed an MSJ and I filed my opposition.  Hearing is scheduled for July 11.

 

Yesterday I received JDB's response to my 2nd RPD and RFA.  They pretty much objected to everything as 'not likely to lead to admissible evidence', 'protected info' or 'vague and undefined terms like "personal knowledge"'.

 

Is my next move to send the Meet & Confer request saying I will file a motion to compel if they do not produce?  How is this impacted by the upcoming MSJ hearing and/or what issues might I run into?

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Haven't read everything, but did you file a motion to oppose the MSJ?  If you did (and you need to) it is impacted because it brings material issues of fact into the case.  They should not prevail in the MSJ and matter should be set for trial.

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Here is the letter I am going to mail to JDB's attorney.  I am assume I do not need an affidavit of service and can just send it CMRRR.  Also, I do not see anything in the court rules about '10 days' for them to answer- I just copied that deadline from other posts.  Can I get some feedback please!!!!


 


  On May 6, 2013, I served upon you, on behalf of your client, Equable Ascent Financial LLC, requests for Production of Documents, specifically documents establishing the chain of custody of the alleged account.  Plaintiff objected to these requests as “irrelevant and not reasonably calculated to the discovery of admissible evidence” and provided a section of a document titled ‘Credit Card Account Purchase Agreement dated November 20, 2009’.  The provided section is Plaintiff’s Exhibit C.


 


        On May 30, 2013, I served upon you, on behalf of your client, Equable Ascent Financial LLC, further requests for Production of Documents, specifically this aforementioned Credit Card Account Purchase Agreement.  Plaintiff objected to these requests as “neither relevant to the subject matter of the pending litigation, nor reasonably calculated to lead to the discovery of admissible evidence” and further objected that the information sought is privileged and/or protected.


 


        Plaintiff claims to be the owner of the account in question, as stated in the Complaint.  Plaintiff further claims that it is the owner of all rights and obligations of the original creditor for the alleged account, as stated in Plaintiff’s response to Request for Admissions.  Plaintiff has continually objected to producing evidence of such allegations.  Such basic information is required to prove Plaintiff’s claim and Plaintiff should have such information readily at hand.  If not, it is difficult to understand how Plaintiff acquired a good faith basis to file this lawsuit.


 


        Be advised that Minn. R. Civ. 37.01 states that a party may apply for an order compelling discovery.  Accordingly, I request that you client submit the Credit Card Purchase Agreement within 10 days from the date of this letter.


 


        It is my sincere intention to settle this matter amicably without the need for judicial intervention.  However, in the event I do not receive your client’s verified responses within 10 days from the date of this letter, I will have no choice but to file a motion to compel with the Court or, in the alternative, an order precluding Plaintiff from offering any evidence related to such documents at trial.

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Here is the letter I am going to mail to JDB's attorney.  I am assume I do not need an affidavit of service and can just send it CMRRR.  Also, I do not see anything in the court rules about '10 days' for them to answer- I just copied that deadline from other posts.  Can I get some feedback please!!!!

 

  On May 6, 2013, I served upon you, on behalf of your client, Equable Ascent Financial LLC, requests for Production of Documents, specifically documents establishing the chain of custody of the alleged account.  Plaintiff objected to these requests as “irrelevant and not reasonably calculated to the discovery of admissible evidence” and provided a section of a document titled ‘Credit Card Account Purchase Agreement dated November 20, 2009’.  The provided section is Plaintiff’s Exhibit C.

 

        On May 30, 2013, I served upon you, on behalf of your client, Equable Ascent Financial LLC, further requests for Production of Documents, specifically this aforementioned Credit Card Account Purchase Agreement.  Plaintiff objected to these requests as “neither relevant to the subject matter of the pending litigation, nor reasonably calculated to lead to the discovery of admissible evidence” and further objected that the information sought is privileged and/or protected.

 

        Plaintiff claims to be the owner of the account in question, as stated in the Complaint.  Plaintiff further claims that it is the owner of all rights and obligations of the original creditor for the alleged account, as stated in Plaintiff’s response to Request for Admissions.  Plaintiff has continually objected to producing evidence of such allegations.  Such basic information is required to prove Plaintiff’s claim and Plaintiff should have such information readily at hand.  If not, it is difficult to understand how Plaintiff acquired a good faith basis to file this lawsuit.

 

        Be advised that Minn. R. Civ. 37.01 states that a party may apply for an order compelling discovery.  Accordingly, I request that you client submit the Credit Card Purchase Agreement within 10 days from the date of this letter.

 

        It is my sincere intention to settle this matter amicably without the need for judicial intervention.  However, in the event I do not receive your client’s verified responses within 10 days from the date of this letter, I will have no choice but to file a motion to compel with the Court or, in the alternative, an order precluding Plaintiff from offering any evidence related to such documents at trial.

 

So I went ahead & mailed this letter last Friday.  I have the MSJ hearing on the 11th; JDB has yet to get me their required Reply to my Opposition.  I really do not want to lose the MSJ and, assuming I do not, my intent is to file a MTC the Credit Card Purchase Agmt or a MIL against their exhibits.  Wondering if anyone had some insight/feedback for where I'm at.

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