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Affidavit and Memorandum in Opposition to Motion to Strike, SJ


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Could someone please give me a critique, or mere thumbs up or thumbs down to below.....thank you. I have already answered the 16 questions in my other post, but if I should re-post please let me know. In brief sum, I am the defendant in a consumer credit action in Suffolk, County, NY, for app $11,500. Thank you in advance.

 

 

Affidavit in Opposition to Motion to Strike, Summary Judgment

1.       Defendant asks that the court not grant the plaintiff’s motion to strike defendant’s answers; defendant additionally asks the court to deny summary judgment, as plaintiff lacks standing and there are material facts in dispute. Plaintiff has failed to establish that it had standing to commence this action. Plaintiff has failed to produce any assignment of this debt.

Plaintiff has not yet, at this time, provided any proof of standing in the matter. Until such proof is provided, plaintiff is assumed to be abusing the rules of procedure to obtain private, personal, and confidential information, that once provided cannot later be undone to correct the error. Proof of standing was previously demanded and has not been received in proper form and content.

Plaintiff should have included proof of the assignment of debt along with the original complaint and summons, as prescribed by law. Attached as Exhibit A is plaintiff’s own summons and complaint in its entirety, which shows that plaintiff failed to establish assignment of debt and the right to collect upon this debt.

Defendant has since attempted to complete discovery to no avail. In a letter dated 2-28-2013, and attached hereto as Exhibit B, along with several phone call attempts, defendant has attempted to complete discovery, and plaintiff has still failed to meet its obligation to prove ownership of debt.

2.       Plaintiff has not made any attempt to resolve the discovery dispute. Plaintiff should never have commenced this lawsuit and requested judicial intervention knowing that they did not have even the minimal requirements of proof to validate their right to collect upon this alleged debt.

Defendant further alleges that plaintiff has abused the court process as well as fair debt collection practices by 1) failing to investigate whether the defendant had been given notice of the assignment before the plaintiff commenced suit against the defendant as an alleged assignee; 2) filing a “verified complaint” without investigating whether Citibank has duly and properly assigned all right, title and interest in the account to the plaintiff New Century Financial Services, prior to the commencement of the action; and 3) filing a “verified complaint” without investigating the factual basis for its claims that Citibank extended credit to the defendant, that the defendant failed to make required payments, and that the balance was duly demanded by New Century Financial Services was then due and owing.

 

3.       Defendant never received the alleged “good faith” letter, supposedly dated 4/22/2013. The first time defendant received this was on 5-16-2013.

 

4.       Defendant’s refusal to answer the interrogatories demanded by plaintiff is not due to “willful” contempt, but rather due to the fact that plaintiff has never established it’s standing to collect this alleged debt. Nor was defendant’s refusal to provide evidence repetitive. Had plaintiff followed the law themselves, as defendant has asked them to do, defendant would and will provide any and all evidence which plaintiff is able to establish it is rightfully due.

 

 

 

Memorandum supporting Affidavit in Opposition to Motion to Strike and Summary Judgment

 

1.       Proof of standing is a necessary prerequisite for obtaining any form of relief from this Court. See Midland Funding v. Haye, index no. 09377/09, decision dated November 5, 2009; see also Option One Mortg. Corp. v. Duke, 2009 NY Slip Op 51773(U) (Sup Ct Kings Co. 2009) (denying order of reference in mortgage foreclosure case upon sua sponte inquiry into plaintiff's standing); LVNV Funding v. Delgado, 2009 NY Slip Op 51677(U) (Dist Ct Nassau Co. 2009)(requiring proof of assignment before Court will entertain application for extending time to serve alleged debtor).

A third-party debt collector must present proof of its status as an assignee to the person sued for credit card debt (see Palisades Collection, LLC v Kedick, 67 AD3d 1329, NY Slip Op 08259 [4th Dept 2009], Rushmore Recoveries X, LLC v Skolnick, 15 Misc 3d 1139 [A], 2007 NY Slip Op 5104 , Citibank, N.A. v Martin, 11 Misc 3d 219 [Civ Ct, NY County] and Palisades Collection, LLC v Gonzales, 10 Misc 3d 1058 [A], 2005 NY Slip Op 52015 [Civ Ct, NY County]). The third-party debt collector also must submit proof that the debtor was given notice of the assignment (see Caprara v Charles Court Assoc., 216 AD2d 722, 723 [3d Dept 1995]), proof that the assignment was not acquired for an improper or illegal purpose (cf MVB Collision, Inc. v Allstate Ins. Co., 25 Misc 3d 168 [Nassau Dist Ct 2009]), and proof that the plaintiff is not engaging in usurious conduct when initiating credit card lawsuits (see Citibank [south Dakota], N.A. v Mahmoud, 19 Misc 3d 1141 [A], 1008 NY Slip Op 51091 [Civ Ct, Richmond County]).

It cannot prove that the defendant owed a valid debt to the original creditor simply by submitting its own business records. See Rushmore Recoveries X, LLC v. Skolnick, 15 Misc 3d 1139(A), 2007 NY Slip Op 51041(U) (Dist Ct Nassau Co. 2007).

New York permits electronic records properly maintained to be admitted into evidence [New York State Technology Law §306] if compliance is made with Civil Practice Law and Rule [CPLR] §4539. There is no statement in the complaint, nor in the affidavits submitted in support of this motion as to whether anyone has reviewed hard copies of the defendant's account or if everyone's knowledge is based solely on electronically kept and generated files.

New York does not recognize "certification" as a means of authenticating the truth of the contents of a document [see McKinney's Practice Commentary by Patrick Connors after CPLR §3020 in regard to verification of pleadings].

 

2.       The remedy for the lack of response from interrogatories would be a motion to compelling the production of discovery items, not summary judgment. Plaintiff’s counsel seeks to circumvent the judicial processes for which it is likely aware. Plaintiff attempts to invoke CPLR 3126 versus CPLR 3124.

Although a Notice to Admit is clearly permitted under the CPLR in consumer credit situations [Midland Funding LLC v Goldberg, 29 Misc 3d 1214(A), (2010)], it cannot be used by a third-party debt buyer to build its prima facie case against the debtor because the debt buyer never acquires any real documentation from the credit card issuer. Any questions in the Notice directing the defendant to admit to the opening of the account, the charging of purchases, and calculation of the amount due and owing cannot become admissible evidence as the truth of that assertion in the Notice to Admit unless the consumer credit purchaser actually has the documentation in its possession to prove its case when the demand is made. In fact, applications, all monthly statements, and the like should be attached to the Notice in order for it to be effective.

In the matter of Erin Servs. Co., LLC v Bohnet, 2010 NY Slip Op 50327(U), a Nassau County District Court case, plaintiffs were sanctioned and fined due to their having violated Part 130 of the Uniform Court Rules; many of the same rules found to be broken in this case are broken in this case, as well.

 

3.       Plaintiff violates Uniform Rule 202.7(a) by not correctly serving papers.

 

4.       A court may strike an answer as a sanction if a defendant refuses to obey a disclosure order or wilfully fails to disclose information that the court determines should have been disclosed (see CPLR 3126; Hoi Wah Lai v Mack, 89 AD3d 990, 933 NYS2d 712 [2d Dept 2011]; Thompson v Dallas BBQ, 84 AD3d 1221, 923 NYS2d 357 [2d Dept 2011]; Mazza v Seneca, 72 AD3d 754, 899 NYS2d 294 [2d Dept 2010]). The drastic remedy of striking an answer is inappropriate unless there is a clear showing that defendant's failure to comply with discovery demands was willful or contumacious (see Hoi Wah Lai v Mack, 89 AD3d 990, supra; Polsky v Tuckman, 85 AD3d 750, 924 NYS2d 830 [2d Dept 2011]; Moray v City of Yonkers, 76 AD3d 618, 906 NYS2d 508 [2d Dept 2010]). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery together with inadequate explanations for the failures to comply or failure to comply with court-ordered discovery over an extended period of time (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 938 NYS2d 131 [2d Dept 2012], lv denied 19 NY3d 803, 946 NYS2d 106 [2012]; Commisso v Orshan, 85 AD3d 845, 925 NYS2d 612 [2d Dept 2011]; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 920 NYS2d 394 [2d Dept 2011]; Friedman, Harfenist, Langer & Kraut v Richard Bruce Rosenthal, 79 AD3d 798, 914 NYS2d 196 [2d Dept 2010]).  To date, there has been no court-ordered discovery, and plaintiff has failed to prove its own standing to collect on this alleged debt, which should occur when the summons and complaint are filed; certainly, plaintiff should meet this requirement prior to demanding personal information from defendant.

 

 

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You write like me. The information is good, but I think there needs to be some paragraph breaks n there.

Also, keep all your info in one thread, makes it easier to help if its all together. You can change he title for updates by citing the first post.

Maybe someone from NY can weigh in, but info looks good. :)

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may I also ask for a general opinion: I really tried to go in and narrow down what I wanted to bring up in my affidavit, and tried my best to match up those facts with the many examples of applicable case law for my memo....now that I am getting close to serving it--I am nervous because I see many that are much more voluminous (some snore snore worthy lengthy). My thinking in trying to condense it was to not make it too long and irritate the judge-I wanted to be concise enough to make sure they'd actually read it, not be irritated with me, while still making the main points and backing them up. What is the consensus? Should I make it longer, or is short sweeter (I picture the poor judges sitting in their chambers yawning and cursing people who write these 5 page affidavits). 

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...this thinking of keeping things concise was also how I approached my original letter to them, asking for verification. Here it is. I didn't want to make it 30 questions and have them constantly saying it was too broad, etc.--I wanted the questions to be concise so that NOT answering them (which I felt they would do), would be a clear violation of my rights. Here it is:

 

 
This letter follows a phone conversation with your firm, regarding the matter of New Century Financial Services, Inc. (plaintiff, and your client), versus XXXXXXXXX (myself). This letter confirms that I, XXXXXXXX as defendant in the above referenced matter, am seeking to initiate the discovery process on my own behalf. I am disputing this debt in its entirety. 
 
I note that I have never received contact prior to the summons and complaint, and therefore was unable to invoke my rights under the FDCPA to receive verification of this debt within thirty (30) days. 
 
However, at this stage please provide:
1. How you calculated what I owe, copies of documents that will show I ever agreed to pay what you say is owed, including any schedule of interest rates or fees applicable to the account
2. Dates constituting proof that the statute of limitations on this debt has not expired
3. Proof that you know that New Century Financial, Inc. owns the debt or has been assigned the debt that you say I owe, including chain of title from original creditor and every entity who has owned the debt since, forming a complete chain of title
4. Complete payment history, all statements in your possession, and including the last statement and charge-off
5. Identify the individual executing the Verification of the responses to these interrogatories and identify all individuals who assisted in providing any information concerning or relating to your answers to these interrogatories
 

_________________so was it too short? I guess not if they couldn't answer any of the questions....

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well after working on it some more last night--eyes wide shut, people, no sleep, here is what I now have:

 

 

Affidavit in Opposition to Motion to Strike, Summary Judgment

1.       Defendant asks that the court not grant the plaintiff’s motion to strike defendant’s answers; defendant additionally asks the court to deny summary judgment, as plaintiff lacks standing and there are material facts in dispute. Plaintiff has failed to establish that it had standing to commence this action. Plaintiff has failed to produce any assignment of this debt. Defendant has repeatedly attempted to have plaintiff verify this debt, with no success.

Plaintiff has not yet, at this time, provided any proof of standing in the matter. Until such proof is provided, plaintiff is assumed to be abusing the rules of procedure to obtain private, personal, and confidential information, that once provided cannot later be undone to correct the error. Proof of standing was previously demanded and has not been received in proper form and content.

Plaintiff should have included proof of the assignment of debt along with the original complaint and summons, as prescribed by law. Attached as Exhibit A is plaintiff’s own summons and complaint in its entirety, which shows that plaintiff failed to establish assignment of debt and the right to collect upon this debt.

Defendant has since attempted to complete discovery to no avail. In a letter dated 2-28-2013, and attached hereto as Exhibit B, along with several phone call attempts, defendant has attempted to complete discovery, and plaintiff has still failed to meet its obligation to prove ownership of debt.

In the event the original paperwork was not available, plaintiff could have and should have submitted along with the complaint, electronic records and a statement from knowledgeable affiant, however plaintiff neglected to file any paperwork proving assignment of alleged debt.

 

2.       Plaintiff has not made any attempt to resolve the discovery dispute. Plaintiff attempts to use Notice to Admit to obtain evidence to build its own case. Plaintiff should never have commenced this lawsuit nor requested judicial intervention knowing that they did not have even the minimal requirements of proof to validate their right to collect upon this alleged debt.

Defendant further alleges that plaintiff has abused the court process as well as fair debt collection practices by 1) failing to investigate whether the defendant had been given notice of the assignment before the plaintiff commenced suit against the defendant as an alleged assignee; 2) filing a “verified complaint” without investigating whether Citibank has duly and properly assigned all right, title and interest in the account to the plaintiff New Century Financial Services, prior to the commencement of the action; and 3) filing a “verified complaint” without investigating the factual basis for its claims that Citibank extended credit to the defendant, that the defendant failed to make required payments, and that the balance was duly demanded by New Century Financial Services was then due and owing.

 

3.       Plaintiff attempts to circumvent the judicial process, asking for answers to be stricken and summary judgment too be had, prior to following protocol and obtaining a motion to compel.

 

4.       Defendant never received the alleged “good faith” letter, supposedly dated 4/22/2013. The first time defendant received this was on 5-16-2013.

 

5.       Defendant’s refusal to answer the interrogatories demanded by plaintiff is not due to “willful” contempt, nor is it the result of failing to comply with a court order. Rather it is due to the fact that plaintiff has never established it’s standing to collect this alleged debt. Nor was defendant’s refusal to provide evidence repetitive. Had plaintiff followed the law themselves, as defendant has asked them to do, defendant would and will provide any and all evidence which plaintiff is able to establish it is rightfully due.

 

 

 

Memorandum supporting Affidavit in Opposition to Motion to Strike and Summary Judgment

 

1.       Defendant asks the court to consider N.Y. CVP. LAW § 3022 , wherin:

 “A defectively verified pleading shall be treated as an unverified pleading.  

Where a  pleading is  served without a sufficient verification in a case where the adverse

party is entitled to a verified pleading, he may treat it as a  nullity, provided  he  gives  notice  with  due  diligence to the attorney of the adverse party that he elects so to do”. Not only did plaintiff fail to verify pleadings upon service of complaint, defendant has asked for verification in writing, and has additionally made five (5) phone calls, over a three (3) month period repeatedly asking for verification, and has advised plaintiff that their pleading would be considered null and void, should they fail to verify their pleadings. To date, no such verification has occurred.

Proof of standing is a necessary prerequisite for obtaining any form of relief from this Court. See Midland Funding v. Haye, index no. 09377/09, decision dated November 5, 2009; see also Option One Mortg. Corp. v. Duke, 2009 NY Slip Op 51773(U) (Sup Ct Kings Co. 2009) (denying order of reference in mortgage foreclosure case upon sua sponte inquiry into plaintiff's standing); LVNV Funding v. Delgado, 2009 NY Slip Op 51677(U) (Dist Ct Nassau Co. 2009)(requiring proof of assignment before Court will entertain application for extending time to serve alleged debtor).

A third-party debt collector must present proof of its status as an assignee to the person sued for credit card debt (see Palisades Collection, LLC v Kedick, 67 AD3d 1329, NY Slip Op 08259 [4th Dept 2009], Rushmore Recoveries X, LLC v Skolnick, 15 Misc 3d 1139 [A], 2007 NY Slip Op 5104 , Citibank, N.A. v Martin, 11 Misc 3d 219 [Civ Ct, NY County] and Palisades Collection, LLC v Gonzales, 10 Misc 3d 1058 [A], 2005 NY Slip Op 52015 [Civ Ct, NY County]). The third-party debt collector also must submit proof that the debtor was given notice of the assignment (see Caprara v Charles Court Assoc., 216 AD2d 722, 723 [3d Dept 1995]), proof that the assignment was not acquired for an improper or illegal purpose (cf MVB Collision, Inc. v Allstate Ins. Co., 25 Misc 3d 168 [Nassau Dist Ct 2009]), and proof that the plaintiff is not engaging in usurious conduct when initiating credit card lawsuits (see Citibank [south Dakota], N.A. v Mahmoud, 19 Misc 3d 1141 [A], 1008 NY Slip Op 51091 [Civ Ct, Richmond County]).It cannot prove that the defendant owed a valid debt to the original creditor simply by submitting its own business records. See Rushmore Recoveries X, LLC v. Skolnick, 15 Misc 3d 1139(A), 2007 NY Slip Op 51041(U) (Dist Ct Nassau Co. 2007).

New York permits electronic records properly maintained to be admitted into evidence [New York State Technology Law §306] if compliance is made with Civil Practice Law and Rule [CPLR] §4539. There is no statement in the complaint, nor in the affidavits submitted in support of this motion as to whether anyone has reviewed hard copies of the defendant's account or if everyone's knowledge is based solely on electronically kept and generated files.

New York does not recognize "certification" as a means of authenticating the truth of the contents of a document [see McKinney's Practice Commentary by Patrick Connors after CPLR §3020 in regard to verification of pleadings].

 

2.       Although a Notice to Admit is clearly permitted under the CPLR in consumer credit situations [Midland Funding LLC v Goldberg, 29 Misc 3d 1214(A), (2010)], it cannot be used by a third-party debt buyer to build its prima facie case against the debtor because the debt buyer never acquires any real documentation from the credit card issuer. Any questions in the Notice directing the defendant to admit to the opening of the account, the charging of purchases, and calculation of the amount due and owing cannot become admissible evidence as the truth of that assertion in the Notice to Admit unless the consumer credit purchaser actually has the documentation in its possession to prove its case when the demand is made. In fact, applications, all monthly statements, and the like should be attached to the Notice in order for it to be effective.

In the matter of Erin Servs. Co., LLC v Bohnet, 2010 NY Slip Op 50327(U), a Nassau County District Court case, plaintiffs were sanctioned and fined due to their having violated Part 130 of the Uniform Court Rules; many of the same rules found to be broken in the above referenced case case are broken in this case, as well.

 

3.       The remedy for the lack of response from interrogatories would be a motion to compelling the production of discovery items, not summary judgment. Plaintiff’s counsel seeks to circumvent the judicial processes for which it is likely aware. Plaintiff attempts to invoke N.Y. CVP. LAW § 3126 versus N.Y. CVP. LAW § 3124. Plaintiff is likely and should be aware that CPLR 3126 should be used in instances where a party refuses to comply with an order to disclose; wherin no such order has been granted, it is improper for plaintiff to seek relief through this method.

 

4.       Plaintiff violates Uniform Rule 202.7(a) by not correctly serving papers. Plaintiff failed to actuate proper service with regard to service of the answer and complaint, as noted in Defendants Answer, and once again plaintiff has failed to actuate proper service. In this instance, the notice of “good faith” was never received by defendant.

 

5.       A court may strike an answer as a sanction if a defendant refuses to obey a disclosure order or wilfully fails to disclose information that the court determines should have been disclosed (see CPLR 3126; Hoi Wah Lai v Mack, 89 AD3d 990, 933 NYS2d 712 [2d Dept 2011]; Thompson v Dallas BBQ, 84 AD3d 1221, 923 NYS2d 357 [2d Dept 2011]; Mazza v Seneca, 72 AD3d 754, 899 NYS2d 294 [2d Dept 2010]). The drastic remedy of striking an answer is inappropriate unless there is a clear showing that defendant's failure to comply with discovery demands was willful or contumacious (see Hoi Wah Lai v Mack, 89 AD3d 990, supra; Polsky v Tuckman, 85 AD3d 750, 924 NYS2d 830 [2d Dept 2011]; Moray v City of Yonkers, 76 AD3d 618, 906 NYS2d 508 [2d Dept 2010]). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery together with inadequate explanations for the failures to comply or failure to comply with court-ordered discovery over an extended period of time (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 938 NYS2d 131 [2d Dept 2012], lv denied 19 NY3d 803, 946 NYS2d 106 [2012]; Commisso v Orshan, 85 AD3d 845, 925 NYS2d 612 [2d Dept 2011]; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 920 NYS2d 394 [2d Dept 2011]; Friedman, Harfenist, Langer & Kraut v Richard Bruce Rosenthal, 79 AD3d 798, 914 NYS2d 196 [2d Dept 2010]).  To date, there has been no court-ordered discovery, and plaintiff has failed to prove its own standing to collect on this alleged debt, which should occur when the summons and complaint are filed; certainly, plaintiff should meet this requirement prior to demanding personal information from defendant.

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I don't know your rules, but it looks good to me. I do know that there are courts in NY that are not bottom feeder friendly, hopefully yours is one of them. You are right about keeping motions and affidavits short. When they are long and drawn out page after page, is usually when they don't really have much of an argument. It's just a bunch of fluff that they hope you will not object to. When you have a good argument you can keep it short and sweet, like you did here. Good Luck.

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It is a dangerous gambit not to answer discovery, based on not answering the court could grant the motion to strike. It would be best if you posted the discovery and answered it before the hearing. Because failure to give the discovery is a reason for the court to strike your pleading post the discovery requests ASAP.

 

This is pretty serious and needs to be resolved pronto. Because they asked for it and they had a good reason, the court would have to grant it if it thinks you are being snotty and petulant.

 

I will go over your opposition and post something by like 2:30 but you must get the requests posted so answers can be drafted and ready to fax to plaintiff and the court. I am not kidding this is potentially disastrous for your case. 

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Thank you for taking the time to read my posts, Seadragon.

 I have not gotten ANY PROOF they own this debt...therefor I think the points I raise do not make me "snotty and petulant", rather someone who is informed. Other than having a legal team behind them, they have done nothing more than if, for example, a random person whom I've never met nor made any contract with, nor been furnished proof that they purchased a debt that is mine asks for me to give them my bank account info, etc. etc. They've met the same burden of proof as the school bully trying to rough me up for lunch money.

I appreciate your concern, and if I had to do the whole thing over, I would respond to them with statements alluding to the fact that their questions are too broad, or too personal and they haven't substantiated their right to have the answers.

However, I didn't answer them. And since then, I have spent probably 40 hours reading case law, uniform court rules, slip ops, etc., and have seen many, many, many cases where judges are sympathetic to people such as myself, who have not been given proof of assignment.

I see you are in CA, so I know virtually nothing about the law in your state. But here in New York, assignment of debt is required to be submitted WITH the answer and complaint.

I'm not sure why you chose the terms "snotty and petulant"--?--however regardless of the courts opinion of my demeanor (which is hard to ascertain, I think, by my writing as it is fairly matter-of-fact and straightforward), I really don't care what the judge thinks about my manner. They are not my therapist, lover, etc. :-) What I care about is that they are fair, just, rational, and willing to rely on case law and protocol. 

Also, I don't know what the law is in CA, but the law in NY is quite clear that a judge cannot strike answers UNLESS the responding party has failed to comply to a court-ordered motion to compel. Not before. Not ever. Worst-case scenario they compel me to produce responses, at which point I will, though this will be another battle regarding what I provide. And I might add, judges (from the appx 10 cases I read in their entirety) in NY often given the movant a prescribed period of time to prove ownership of debt, and postpone decisions until such proof is sufficiently furnished.

I take issue with your statement that they had "good reason". Their reason is that they want to stuff their pockets, and their burden of proof so far has been a "because we said so" attitude--which is really where the snottiness and petulance come in. I don't know where you infer they had "good reason"?

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I did not notice where it said you received and did not answer discovery (interrogatories), I agree that this can be a big deal. They may not strike your answer for it, but if (for a hypothetical example) one of the interrogatories said something like "you applied for and used the cc card from 00-00-09 to 00-00-13" the court may accept that as true. This is something that happens more often with request for admissions, but I would never expect any good to come from not answering discovery (unless it is them not answering your discovery).

When you are presented with discovery that you should not answer, the best way not to answer is to object to it. You have to RESPOND to discovery, not necessarily ANSWER it. You may not like this idea, but if it was mine; I would just RESPOND (with answers to what does no damage, and object to the rest) even though it is late. The reason it is late could be the fact that you were giving the plaintiff time to "resolve the discovery issue".

Just my opinion. Good Luck.

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thanks.....they haven't responded to my discovery request either...i have printed out and attached as exhibit my letter asking for it....dated 2-28. thanks for the heads up...

 

That's good, it should work in your favor. If you sent them a letter asking for it (that could be considered your meet and confer letter). It is possible to file a motion with the court to compel them. That may work better for you if you answered their discovery, but it is possible to do some damage control (responding to their discovery even tough it is late).

The reason I say this is because if (for example) you sent them some request for admissions that would be very damaging to them if admitted, by not responding (and if you filed a motion to deem them admitted) the court may deem them admitted.

So for example if you had a RFA of something like "admit that bottom feeder filed a frivolous lawsuit" or something to that effect, and it was deemed admitted, it is very possible they would dismiss your case.

Just a thought, and possible way to attack them. Good luck.

 

 

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