bambi

being sued, what's next?

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OK, I'm in the process of writing up a motion to compel discovery. I called our local court to ask a few questions, (didn't get very far), and this is a sample of a generic notice of hearing and motion. Do you think this is sufficient or do I need to be more detailed? Also, do I have to attend the courts for the motion?

NOTICE OF HEARING

  • Motion title: ______________________________________
  • Moving party: _______________________________________
  • This matter has been placed on the motion calendar for:

NOTICE OF HEARING

Judge Bar no.

Date

Time

Hearing location

Court address above

  • If you require special accommodations to use the court because of disabilities, please contact the court immediately to make arrangements.

MOTION

Date Signature

I certify that on this date I served a copy of this notice of hearing and motion on the parties or their attorneys by first-class mail addressed to their last-known addresses as defined by MCR 2.107©(3).

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If it makes you feel better, it is my firm belief that filing the motion in and of itself gets the plaintiff thinking about how hard they really want to fight. They have templates out the wazoo for filing motions. Responding takes time.

 

Plus, when you file a motion, if it is heard in court (sometimes the judge rules on the pleadings alone and no oral arguments are heard), you control the tempo as it is your motion. You are the moving party. 

So very true. I recently responded to a document from one of these JDBs. For research I looked for examples of the same document in other cases. San Diego's court website makes you pay $7.50 minimum to review case files, but I found that San Mateo county allows free access to case files, website below...

 

https://www.sanmateocourt.org/online_services/online_case_access.php

 

...anyhow, low and behold there is my same JDB with countless claims filed way upstate in California. I click and start looking at the paperwork they filed that matches my document...it was exactly the same thing, word for word, and check-box for chech-box! Checked another case > same thing. Not only that, but the same specific firm here in San Diego was handling these cases in San Mateo. Same lawyer names, same signatures. Can you imagine what they are doing in other counties? ...the case loads they try to keep up with?

 

So they need to use templates, cut and paste, just to keep up. In my opinion, anything we can do to make them work is bad news for them. Can they have a template for everything? I wouldn't think so. I myself, as I progress in my case, if I have an opportunity to file something unique I absolutely will & I'll cross my fingers they don't have a template and they'll have to break their routines in order to address it.

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OK, I'm in the process of writing up a motion to compel discovery. I called our local court to ask a few questions, (didn't get very far), and this is a sample of a generic notice of hearing and motion. Do you think this is sufficient or do I need to be more detailed? Also, do I have to attend the courts for the motion?

 

Court clerks are not allowed to give legal advice so, it's no wonder you didn't get very far.

 

Obviousily, you will have to fill in the details (and I would get very specific as to plaintiff's deficiencies to your requests) and then craft your motion. 

 

In Michigan, most motions are scheduled for oral argument unless the pleading does not require a response.

This type of motion will require a response and so, to answer your question, yes, you will most likely be required to go to the hearing to argue your motion.

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Thanks for getting back to me. I just didn't know if this form was too simple. I will fill it in and then post again in a day or so with the first draft. I think I'm beginning to freak out about all of this. I'm not sure if I'll be able to go thru with all of this. I was going through the papers the attorney filed with the court and on one of them it listed the exhibits for court, and he had:

1. All pleadings

2. Account statements

3. Any exhibits introduced by me

4. Reserved the right to amend

Under witness list he had the keeper of records for FIA.

So does this mean he has docs to prove his case or is he bluffing?

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The form you posted is a very basic example of what you need to file.

You should have a fleshed out Motion, Memorandum of Law, Points and Authorities and argument.

The notice of hearing notifies the plaintiff that you have scheduled a hearing with the courts for your motion.

File the motion with the court and send it to plaintiff (CMRRR) along with the notice of hearing.Please note that the hearing on your motion may not be scheduled according to your demand but, will be scheduled as the court sees fit. They should notify you and the plaintiff of the available date.

 

1.  All pleadings = filings with the court

2.  Account statements = any statements that are authenticated by an affidavit from the OC or by testimony from a witness from the OC

3.  Exhibits introduced by  me = nothing, unless you sent them any incriminating admissions.

 

Witness list: Did they name the witness? Did this witness attest that he/she has personal knowledge of your specific account?

Will he/she actually appear to testify? Probably not.

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How do you know if the affidavit is actually from the OC or just anybody? And no, they did not name a witness.  And I am totally confused by this motion, but I will take a stab at it, and then post it.

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You could research the affiant. Google or LinkedIn are good places to start. But, this has already been suggested to you.

 

This is an original creditor, and it's for a lot of money so, there is a chance that a witness will show or, submit an affidavit in lieu of testimony.

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I did research the affiant for the the affidavit that was attached to the original complaint. But what I was wondering about was at court. Wll they just use the same one or will it be a new affidavit? And this is part of the POD that they should send me after I file this motion? So then I should be able to research this new one before court right? I guess what I'm wondering is any affidavit that would be submitted in court (in place of a witness) should be made available to me ahead of time, or else how do I know it's truly a person from the OC and has direct knowledge of my account?

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I did research the affiant for the the affidavit that was attached to the original complaint. But what I was wondering about was at court. Wll they just use the same one or will it be a new affidavit? And this is part of the POD that they should send me after I file this motion? So then I should be able to research this new one before court right? I guess what I'm wondering is any affidavit that would be submitted in court (in place of a witness) should be made available to me ahead of time, or else how do I know it's truly a person from the OC and has direct knowledge of my account?

 

What did you find out about the original affiant?

Does he/she work for the OC?

Did he/she claim personal knowledge of your account in the affidavit?

Did the affidavit seek to authenticate any documents or evidence?

 

It's hard to say what they will present in court. If you asked for any and all documents and / or witnesses that they will use at trial in your discovery requests, they should not be allowed to produce any further documents / witnesses other than the ones that they have already provided. If they try to produce anything not provided in discovery, you will need to object to it as being prejudicial.

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OK, this is a really dumb question.  Do I sign the paper I'm sending out for RFA?  I know I sign the letter I'm sending along with it, but do I actually sign the paper with the RFA?

 

See MCR 2.302 (G) (1)

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I was not able to find out much about the affiant.  From what I found via searching google, etc, she does not work for FIA, but. . . . in the affidavit it states that she is a custodian of record and authorized officer of FIA for purposes of this affidavit.  I am duly authorized to make this affidavit, and because of the scope of my job responsibilities, I am familiar with the manner and method by which plaintiff maintains its normal business books and records, including computer records of defaulted accounts.

 

2.  These books and records are made in the course of regularly conducted business activity:  (1) at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and events, or (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs.  The contents of this affidavit are believed to be true and correct based upon my personal knowledge of the processes by which Plaintiff maintains its business books and records.

 

The rest of the affidavit is in a previous post.

 

Below is a copy of the first draft of my motion.  Thanks for all of your help, I need all of the help I can get, this is so foreign to me.

 

 

The Defendant moves the Court to order the Plaintiff to answer the Defendant’s Discovery completely. In support of this motion, the Defendant states:

  1. Defendant mailed the Plaintiff by certified mail, return receipt requested, a Request for Production of Documents on May 29, 2013. 
  2. The Plaintiff failed to respond. 
  3. Defendant mailed the Plaintiff a second request by certified mail, return receipt requested for Production of Documents on July 3, 2013.
  4. The Plaintiff failed to respond.
  5. Exhibit “A” lists the specific documents requested that remain outstanding. 
  6. The items listed in Exhibit “A” are requested again by this motion. 

The Defendant moves the Court to order the Plaintiff to fully answer the Defendant’s Discovery requests within 10 days of this motion date.

 

Respectfully submitted by the Defendant,

Signed:_____________________________ 

 

 

 

Notice of Hearing

After calling the court to verify an open motion date, this motion has been marked for hearing on Date: _______________________at __________________________o’clock.

 

Certificate of Service

I hereby certify that a true copy of the above document was served upon the attorney of record for the Plaintiff by certified mail, return receipt requested, at this address: 

 

 

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That is pretty good. Right to the point.

 

Through Interrogatories you are allowed to request information about anyone who has personal knowledge of the debt in question. I would send them ROGS asking about the employment of said affiant. That'll give 'em the hint that you're on to them.

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You can also draft a good MIL motion in limine and find out how many days before trial you have to file a motion. Wait until right before and file MIL to strike the affadavit, BOS, and any CC statements. The judge will rule before trial and could have all their evidence stricken.

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Thanks for looking this over, now I'll make work of filing it.  Although if anyone can tell me anything I need to know about filing it, that would be appreciated.  I've been searching on line, and have not really been able to find any info about the process to file.

 

Flyerfan, I did have this listed as one of my POD, do you think that is sufficient of should I send another one to them?

 

 

 Copies of all reports and documents utilized by an expert which plaintiff  proposes to call at trial, including the name, address, and job title as well as what they will be testifying about.

 

Thanks hot in az, that's a good tip I'll look into for MI.

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Thanks for looking this over, now I'll make work of filing it.  Although if anyone can tell me anything I need to know about filing it, that would be appreciated.  I've been searching on line, and have not really been able to find any info about the process to file.

 

Filing a motion consists of taking 3  (or at least 2) copies of your motion to the civil court clerk and having them stamped. The clerk will keep one, you send the other stamped copy to the plaintiff (CMRRR) including a proof of service certificate. You keep one copy ( the unstamped one) for your own records.

 

Make sure to schedule a hearing date with the clerk.

 

Filing a civil motion in MI costs $20.

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Thanks, Savoir.  Do I need to get anything notorized?  Will I actually have to do anything at the hearing?  Isn't the motion enough to speak for itself?  

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  1. Nothing needs to be notarized unless you are filing an affidavit with your motion.

You may be asked to explain the necessity of your requests and why you feel plaintiff's answers or production are deficient.

Depends on how effective your written motion is.

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Well, the plaintiff has completely ignored everything I've sent, I've heard nothing from him.

Thank you for the info, I'm sure you can tell I'm extremely nervous, this is way beyond my comfort zone.

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Thanks for looking this over, now I'll make work of filing it.  Although if anyone can tell me anything I need to know about filing it, that would be appreciated.  I've been searching on line, and have not really been able to find any info about the process to file.

 

Flyerfan, I did have this listed as one of my POD, do you think that is sufficient of should I send another one to them?

 

 

 Copies of all reports and documents utilized by an expert which plaintiff  proposes to call at trial, including the name, address, and job title as well as what they will be testifying about.

 

Thanks hot in az, that's a good tip I'll look into for MI.

 

That's pretty good but did they give it to you?

 

If it were me I would send them ONE ROG. Asking for all employment information about the affiant you don't think works there. You are entitled to it so with only one line, I would be interested in seeing how they could possibly object.

 

Double check your court rules. In my court ROGS the rules specifically state that the defendant is entitled to this through ROGS. If so, it would be an easy motion to compel if they refuse to get the info for you.

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No, of course they didn't give it to me.  So if I write one sentence stating:

 

1.  Copy of all employment information regarding the affiant on the affidavit sent with the summons and complaint, listed as Exhibit #1.

 

I'm getting close to 30 days before the pre trail hearing.  I'm going to check to see when is the last day I can file a motion.  

 

This seems like such a farce to me because they don't send out any info at all, even with multiple request, but if I don't answer their stuff with in the first time period, I get slapped with a default judgement.  Now if they don't answer my first set of admits, I don't need to file a motion for that right?  I can just use it in court as them admitting by default of not answering, correct?

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Now if they don't answer my first set of admits, I don't need to file a motion for that right?  I can just use it in court as them admitting by default of not answering, correct?

 

You'll have to check your court's rules on admissions for that. Every court is different. In mine I would need to file a motion to have them deemed admitted.

 

@bmc100 would know for sure.

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You only need to get the MIL's ready to go before trial not pre-trial .  Mine was 4 minutes. Do you want to settle  I said no your cliant lacks standing to sue me and that was it.

 

I would check Michigan Rules of Civil Procedure.  That should give you a frame of how this all works. I would also find out in your state how soon before trial they can file SJ on you.  And how soon before TRIAL do you have to file a motion.

 

Most JDB's will file MSJ but some not within the right time frame. If I were you I'd  print those rules out so you familiarize yourseld and MI rules of evidence as well. Believe me on this when it comes to defending yourself you better know the law.

And we can help you here but not in court.

And thank goodness LOL the Plaintiff called me as a witness and not my hubby who had no clue.

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Found this:

 

Rule 2.312 Request for Admission
(A) Availability; Scope. Within the time for completion of discovery, a party may 
serve on another party a written request for the admission of the truth of a matter 
within the scope of MCR 2.302(B) stated in the request that relates to statements 
or opinions of fact or the application of law to fact, including the genuineness of 
documents described in the request. Copies of the documents must be served with 
the request unless they have been or are otherwise furnished or made available for 
inspection and copying. Each matter of which an admission is requested must be 
stated separately.
(B) Answer; Objection.
(1) Each matter as to which a request is made is deemed admitted unless, 
within 28 days after service of the request, or within a shorter or longer time as 
the court may allow, the party to whom the request is directed serves on the 
party requesting the admission a written answer or objection addressed to the 
matter. 

 

It appears that their admissions are admitted. Double check with bmc100 but it looks like, if you have good admissions requests, they're done like dinner. bmc100 will know if you have to motion to deem them so or what procedure you should follow here.

 

:)%

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