bambi

being sued, what's next?

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Thanks for the input, I appreciate it. I think I'm going to file a motion on mon. for the admits, tmw will be 30 days. And then go from there. I'm wondering if I still should reply to their plea/motion for leave because "there remains no material issue of fact for this Honorable Court to decide." Because I'm filing another motion, do I still respond then to theirs? All these motions are making my head spin.

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Do I have to write something up for each of the 8 admissions I requested, or is it just 1 motion, with the RFA as an attachment/exhibit?

You need to check your rules of civil procedure. I don't know your rules; but in mine you have to give them and additional 5 days beyond the 30 days they have to respond. You have to give the 5 additional days when you send the discovery thru the mail.

There is probably a very large section in the civil procedure rules pertaining to discovery, with a lot of information you will need to know.

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OK, so here is a very, and I mean very rough 1st draft.  Any input would be greatly appreciated, and yes, I'm checking into the extra 5 day rule.

 

 

MOTION TO DEEM FACTS ADMITTED AGAINST 

LOSER LAWYER

FOR FAILURE TO COMPLY WITH REQUESTS FOR ADMISSIONS 

 

 

Defendant Nervous Nellie, hereby moves this Court for an order finding that each request in the Defendant’s First Request for Admission of Facts to Plaintiff FIA Card Services, N.A.  (“RFA’s”) is deemed admitted as a matter of law.

 

 

FACTS

 

The Plaintiff filed a Complaint against Defendant on January 9, 2013, asserting that Defedant defaulted on a credit card loan.

 

On Febuary 22, 2013, the Defendant submitted an Answer to the Complaint.

 

On March 7, 2013 the Court issued an Order For Mediation without any results.

 

Discovery was granted.

 

On May 6, 2013 the Plaintiff propounded discovery on the Defendant in the form of Interrogatories, Request To Admit and Request For Documents.  The Defendant responded with a timely response.

 

On June 3, 2013 the Plaintiff was served with a Request For Production Of Documents, and did not respond within the 30 days.  On July 5, 2013 a second Request was sent for Production Of Documents to be received within 10 days, and again there was no response.

 

On July 26, 2013 the Defendant filed a Motion To Compel Discovery that included Defendant's Discovery completely.  A response was finally received on Aug. 1, 2013.

 

On July 18, 2013 the Plaintiff received a Request For Admissions, and this was not answered within the 30 days.

 

The Plaintiff has failed to respond to the RFA’s.

 

ARGUMENT

 

Michigan Court Rule 2.312 Request for Admission clearly sets forth the timeframe for responding to requests for admissions and the penalty for failing to do so - any matter not addressed within the thirty (30) day timeframe is deemed admitted.  

 

As set forth in the attached declaration, the Plaintiff failed to respond to the Defendant’s RFA’s.  Therefore, they should be deemed to have admitted each of the facts set forth in the Defendant’s RFA’s and those facts should be considered conclusively established for the remainder of this case, including for the purposed of any motions for summary judgment filed by the defendant.

 

CONCLUSION

 

For the foregoing reasons, the Defendant respectfully requests that the Court grant the Defendant’s Motion and enter and Order finding each request set forth in the Defendants First Request for Admissions of Fact to Plaintiff FIA Card Services, N.A.(as

attached as Exhibit 1) is deemed admitted by Plaintiff FIA Card Services, N.A. for all purposed, and grant to the Defendant any further and additional relief that the Court deems just and warranted.  

 

The Plaintiff and Plaintiff’s attorney’s are well aware of Michigan court rule 2.312 and should have submitted answers within the thirty day timeframe.

 

 

Respectfully submitted on August 19, 2013,  

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In looking over the dispositive motion, he states that the courts original dispositive motion cutoff date has passed prior to Plaintiff being able to compile the documents in support of this matter.  

 

And then at the end he requests this court to deny my notion to compel grant them leave to file a DM in this matter.

 

So, first of all, I'm wondering about the cutoff date.  I'm wondering if my RFA was too late, and is the motion to deem admitted a moot point?  

 

When I answered the original complaint mediation was ordered, which took place on 4/22.  On 4/24 pretrail and trial were set up, and discovery was granted for 42 days.  My RFA was received on 7/18.  Are they not required to answer it because it is over 42 days?

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Under the section "Argument," you might add.

 

In commenting on MCR 2.312, the MIchigan Supreme Court held in Radke v. Miller, Canfield, Paddock & Stone, 453 Mich. 413, 420-421. 551 N.W. 2d 698 (1996), that a request for admission is a "judicial admission," not an "evidentiary admission."  It has the effect of withdrawing a fact from issue and eliminating the need of further proof.   As the court said, "The judicial admission, unless allowed to by the court to be withdrawn, is conclusive in the case."  Id at 421

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Did you get it filed?? You need to work on your opposition to their motion for dismissal now.

 

 

????????????????.......... what motion for dismissal?

However, I will ask the same question........... at least, I think it's the same question .......... did you file your motion to deem admitted today?

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I'm going tmw to file it. I've been trying to find out if its a problem, because the actual admits were sent after 42 days. Discovery began on 4/24, and so that would make the 42 days 6/5, and I didn't send out RFA until mid July. I'm afraid I'm screwed?

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I read your MI rules and I think you should pursue your motion to oppose their SD. If they win on this they win the case. All along I did not know the dates you filed stuff but it seems to me and you as well they did not respond because it was out of the discovery time frame.

Here is a thought .The first thing they want is money and they are the OC.  At this stage of the process I am going to say I don't think you can win.  And not for lack of trying but it's OC and hard.

 

My thought is that you could call them and tell them you are going to go ahead and file BK because you can't afford  the high settlement offered. If they could reduce it to an amount that was reasonable without all the interest and no 1099 like maybe 4000  and payments you would consider not filing BK and paying ? My OC on home equity was Chase and they reduced my 130,000 to 20,000 and payments because they were not the first on my mortgage LOL. So I think at this point you have leverage to deal. Maybe ask what is the lowest they will accept to keep you from filing BK and they get nothing.  Oh by the way I did not accept their deal untill they come closer to $5000.  Because they write off the difference . They are a Bank  So I would try to negotiate a MUCH lower settlement $9000 was their first offer and you did not threaten BK. You were trying to deal with the pmt amy.  See??

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Thanks hot in az. I tend to agree. I'm really feeling like this OC is waaaaaaay ahead of me. I know I do owe some debt, so I think I would like to try to negotiate a settlement, and I know I'll need help with that process as well. I have learned a TON of info from this sight and all of the generous people here, and feel much more informed when the next one comes around. (And there will be a next one, this is not my only debt charged off.) so. . . . . . I'm going to think it over today, do a little more research, and make a decision by days end. From everything I've read, it looks to me like I was beyond the discovery period. That's another thing, I didn't know what that meant or that I was working within a time frame, so now I know, and again, next time I'll be better informed. I think the most stressful part has been not talking with ANYONE about this, not a friend, relative, or anyone, so I haven't been able to think things through with anyone, and it's been extremely stressful keeping this all in, working, carrying on a normal family life, and all the while with a smile that life is good. I will be relieved to put some of this behind me. Don't take me wrong, I'm not throwing in the towel, but sometimes you just gotta take your licks and move on. At least I have learned immensely from this sight, and will be well armed next time.

I'll let you know what happens and probably look for a little advice should I decide to settle.

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I think that is the smart thing to do because if they get the judgement you are on the hook for the whole amt.  You will beat the next one.  Also on the front page of this forum there is a catagory Debt Settlement at the top. You should get someone to help you negotiate it. And I don't look at it as throwing in the towel but making a smart decision.

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Yikes, I didn't realize that about a judgement. Well, I started at 5,000, so we'll see what they come back with. Thanks for the tips on debt settlement, some good stuff there. I did also look on line for some good samples and was able to put together a decent letter. Now we'll see what kind of negotiations we can work out. Thanks again for all of the help, it truly was a lifesaver, and I'll know where to come for the next time.

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Thanks hot in az. I tend to agree. I'm really feeling like this OC is waaaaaaay ahead of me. I know I do owe some debt, so I think I would like to try to negotiate a settlement, and I know I'll need help with that process as well. I have learned a TON of info from this sight and all of the generous people here, and feel much more informed when the next one comes around. (And there will be a next one, this is not my only debt charged off.) so. . . . . . I'm going to think it over today, do a little more research, and make a decision by days end. From everything I've read, it looks to me like I was beyond the discovery period. That's another thing, I didn't know what that meant or that I was working within a time frame, so now I know, and again, next time I'll be better informed. I think the most stressful part has been not talking with ANYONE about this, not a friend, relative, or anyone, so I haven't been able to think things through with anyone, and it's been extremely stressful keeping this all in, working, carrying on a normal family life, and all the while with a smile that life is good. I will be relieved to put some of this behind me. Don't take me wrong, I'm not throwing in the towel, but sometimes you just gotta take your licks and move on. At least I have learned immensely from this sight, and will be well armed next time.

I'll let you know what happens and probably look for a little advice should I decide to settle.

One thing about settling. If you decide to settle; you do not have to settle that very second. You can make the determination that it is best to settle, but you don't have to tell them right away. You could keep fighting it (with minimal effort) drag it out (while you come up with money to settle with). The more the fight the better the settlement.

Just change strategy. You know you will settle, they don't. Fight them right up until just before a trial date and they will settle for a lot less. It is possible they will even dismiss, you never know.

I always say to use time to your advantage. A lot of the stress will come off of you by just knowing you are going to settle and not have to go to a trial. No need to hurry and start making payments.

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Really damn good advice. Thank you all, I feel so much better already, and will now start to change gears. I'll keep you posted and I'll be sure to ask any questions that you all can help me with.

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Hi, I see you are  in here right now. Did you offer up that amt of 5??  What was the response? And if you stay to fight longer you have to prepare the motion to oppose their SD. If you don't they will win. Make sure you know what you are doing because everyone has advice but you have to know the ramifications  of that.  Are you still going to the hearing? And how long do you have to oppose their SD

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I offered up the 5,000, and I did it in writing CMRRR, so I haven't heard back yet. I'm hoping I won't have to go to the hearing, but I don't know yet. If I haven't heard from them by mon., I plan to fax over another copy of the letter, and see what happens. If I've made up the offer, and they don't respond, do I still have to reply to their motion?

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If they don't accept your offer of settlement ......... and you don't oppose their MSD ........ you will lose the case and end up owing the whole amount.

Have you looked at your case on line or at the court house to see if they actually filed a MSD?

Last I remember they had asked the court for permission to file one.

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