Speranza

They Responded to My Request for Production-Feeling Overwhelmed

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I am hoping I can get some advice here, still not completely sure how this whole process works. I am being sued in Arizona. In my county, my initial response did not require me to list affirmative defenses or go through the admit/deny stage right away. I responded, and also sent a request for production. I got a huge packet today that includes every statement of the account. The account has been sold 5 times. Included in their response are all of the bills of sale (my account not listed, just the total dollar value of the collection of accounts), an affifavit of indebtedness, all of the account statements (which includes an annotation that the account number was changed multiple times over the course of the account), and a blanked out Excel table with an account number- not sure what that goes to.  The statements are intimidating, I have to admit. It makes me feel as if the battle is already lost. I guess after reading through a lot of the forums, I honestly thought they wouldn't be able to produce these.

 

I have also received a Request for Admissions, however, these pages are literally just "admit" or "deny", and no room to write comments. Should I not use their form and re-type all of them with comments? The next set are Notice of Service of Plaintiff's Non-uniform Interrogatories. I was planning on using similar posts to figure out how to answer these.

 

Any thoughts/ideas would be much appreciated! Thank you in advance :-)

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Welcome to the forum! You'll find lots of good help here. To get started you should look at the thread linked below and copy/paste the questions of the first post into this thread (filling out your answers of course) so people can get a feel for your case. I prefer not to be specific when answering these (dollar amounts, names, etc) in case unwelcome eyes like to visit the site ;-) There are some people here from Arizona who can help you with the laws/rules/etc of AZ.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answ...

 

I'm going thru my first case myself, and I understand that initial feeling you have right now. You'll feel better once you've gotten some responses and definately check out other threads, do searches, etc. You'll get educated quickly :-) Lots of threads about responding to Request for Admissions, Interrogatories, etc.

 

Above all, don't get discouraged or feel like the battle is lost. Part of this is psychological warfare and collectors want you to feel overwhelmed and intimidated. That includes sending you a bunch of paperwork. What they sent, statements, affidavits, etc. may or may not have any value.

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Thank you for responding! I have filled out the form below, sorry I didn't know where to find it. I also will post their responses to my request for production and what they are asking of me separately below (hoping if I break this up it will be easier to follow).

1. Who is the Plaintiff?

 

2. What is the name of the law firm handling the suit?

 

3. How much are you being sued for?

Roughly $500 + $100 interest, not including "attorney fees"

4. Who is the original creditor?
US Bank

5. How do you know you are being sued?

Served

6. How were you served?

In person

7. Was the service legal as required by your state?

Yes
8. What was your correspondence (if any) with the people suing you before you thing you were being sued?

Never spoken to them or answered any phone calls. Received a few letters.

9. What state and county do you live in?

Arizona, Maricopa County

10. When is the last time you paid on this account?

May 2009

11. What is the SOL on the debt?

6 years

12. What is the status of your case?

Not sure how to answer this. Suit has been filed, my response has been filed, they answered request for production, and I just received "Plaintiff's First Requests for Admissions" and "Plaintiff's Request for Non-Uniform Interrogatories". Mediation date is set.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?

No.

14. Did you request a debt validation before the suit was filed?

No.

15. How long do you have to respond to the suit? We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I had 20 days, it is already done. I just received an interrogatory questionnaire (a month later). Here are the charges:

1. Plaintiff is either a corporation, a partnership, or sole proprieter; that the Defendan(s) is/are residents of or have their principal place of business in the State of Arizona; that the obligation or debt which is the subject of this complaint was an event caused by the Defendant(s); and that this Court is the proper venue for this case.

2. Plaintiff alleges that this Court has jurisdiction over this matter and that the Defendants, if married were acting on behalf of their marital community and for community purposes of benefit.

3. That the following creditors extended credit and provided financing to the Defendant(s) through credit card purchases:

US Bank Select Rewards Platinum

4. The Defendant(s) have failed, refused and/or neglected to make the payments owed.

5. That if applicable, Plaintidd has acquired the debt or the Plaintiff has been assigned to the account.

6. After all just and lawful set-offs, payments and/or credits, Defendant(s), and each of them owe to the Plaintiff:

Balance $ (listed above), Interest (above), Originally owed to: US Bank

7. The Plaintiff is entitled to accruing interest pursuant to the contract between the parties; or the Arizona interest statutes A.R.S. 44-1201  and/or A.R.S. 44-7805 on the remaining balance at the rate of 7.4% from (date they bought it)

8. The Plaintiff has performed all acts required which entitles the Plaintiff the amounts contained in this Complaint.

9. That after all just and lawful set-offs, payments and credits have been allowed, the above-designated syms are justly and truly due and unpaid from Defendant(s) to Plaintiff.

10. That Plaintiff and/or Plaintiff's attorney has made demand on the Defendant(s) to pay the amount due as set forth herein, but the Defendant(s) have failed, refused, or neglected to pay.

11. That pursuant to A.R.S. 12-341.01, Plaintiff is entitled to recover court costs and reasonable attorney's fees.

12. Pursuant of 15 U.S.C. 1692(e)(11) defendant is notified that this communication is from a debt collector.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence sent with the summons. But I just received all of their exhibits today, including:

-Affidavit of Indebtedness signed by their Custodian of Records

-Four JDB Bills of Sale (some of which have been blacked out, all of which are for millions of dollars)

-An Excel spreadsheet with my name, the account number, last 4 digits of my social, and address (with all other lines deleted)

-All of the credit card statements from US Bank

-A letter they sent me telling me they might file a lawsuit against me if I didn't pay

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Here is their response to my request for production:

 

1. Produce any credit application signed by the defendant.

Objection: Defendant's request is vague and overly burdensome as to "any credit application." Nevertheless, Plaintiff has disclosed every document in its possession that is not priveleged or protected. See Plaintiff's Initial disclosure. Plaintiff will supplement its disclosure if any additional documents come into its possession. Plaintiff also affirmatively alleges that is has requested all documentation from the original creditor whose obligation to maintain documentation is governed by the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R 226.25. Regulation Z requires creditors to maintian records for two years "after the date the disclosure are required to be made or action is required to be taken." Furthermore, the Equal Opportunity Act [Regulation B] 12 C.F.R. 202.12 [1] only requires the Original Creditor to retain a copy of credit applications for 25 months.

2. Produce a copy of the executed contract in Copper State Financial Management's possession setting forth the terms the Defendant is alleged to have agreed to in connection with the card at the beginning.

Plaintiff has disclosed every document it its possession that is not priveleged or protected. See Plaintiff's initial disclosure. Plaintiff will supplement its disclosure if any additional documents come into its possession. Plaintiff also affirmatively alleges that is has requested all documentation from the original creditor whose obligation to maintain documentation is governed by the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R 226.25. Regulation Z requires creditors to maintian records for two years "after the date the disclosure are required to be made or action is required to be taken." Furthermore, the Equal Opportunity Act [Regulation B] 12 C.F.R. 202.12 [1] only requires the Original Creditor to retain a copy of credit applications for 25 months.

3. Produce a copy of any modifications to those terms specifically agreed to by Defendant.

Plaintiff has disclosed every document it its possession that is not priveleged or protected. See Plaintiff's initial disclosure. Plaintiff will supplement its disclosure if any additional documents come into its possession. Plaintiff also affirmatively alleges that is has requested all documentation from the original creditor whose obligation to maintain documentation is governed by the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R 226.25. Regulation Z requires creditors to maintian records for two years "after the date the disclosure are required to be made or action is required to be taken." Furthermore, the Equal Opportunity Act [Regulation B] 12 C.F.R. 202.12 [1] only requires the Original Creditor to retain a copy of credit applications for 25 months.

4. Produce a copy of all statements from beginning of time to present.

Objection: Unduly burdensome and vague in scope. Plaintiff has disclosed every document it its possession that is not priveleged or protected. See Plaintiff's initial disclosure. Plaintiff will supplement its disclosure if any additional documents come into its possession. Plaintiff also affirmatively alleges that is has requested all documentation from the original creditor whose obligation to maintain documentation is governed by the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R 226.25. Regulation Z requires creditors to maintian records for two years "after the date the disclosure are required to be made or action is required to be taken." Furthermore, the Equal Opportunity Act [Regulation B] 12 C.F.R. 202.12 [1] only requires the Original Creditor to retain a copy of credit applications for 25 months.

Even though they objected, they did provide detailed statements.

5. Produce details regarding alleged charges by amount, type and date.

Objection: Unduly burdensome and vague in scope. Plaintiff has disclosed every document it its possession that is not priveleged or protected. See Plaintiff's initial disclosure. Plaintiff will supplement its disclosure if any additional documents come into its possession. Plaintiff also affirmatively alleges that is has requested all documentation from the original creditor whose obligation to maintain documentation is governed by the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R 226.25. Regulation Z requires creditors to maintian records for two years "after the date the disclosure are required to be made or action is required to be taken." Furthermore, the Equal Opportunity Act [Regulation B] 12 C.F.R. 202.12 [1] only requires the Original Creditor to retain a copy of credit applications for 25 months.

Even though they objected, they did provide detailed statements.

6. Produce evidence of all payments received.

Objection: Unduly burdensome and vague in scope. Plaintiff has disclosed every document it its possession that is not priveleged or protected. See Plaintiff's initial disclosure. Plaintiff will supplement its disclosure if any additional documents come into its possession. Plaintiff also affirmatively alleges that is has requested all documentation from the original creditor whose obligation to maintain documentation is governed by the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R 226.25. Regulation Z requires creditors to maintian records for two years "after the date the disclosure are required to be made or action is required to be taken." Furthermore, the Equal Opportunity Act [Regulation B] 12 C.F.R. 202.12 [1] only requires the Original Creditor to retain a copy of credit applications for 25 months.

 

 

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Okay the first thing I need to know is after you filed your answer did you file a disclosure form with the court within 40 days??

 

The second thing is that you need to find a copy of your cc agreement and see what state it is tied to,  For example Chase is tied to Delaware SOL which is three years  and our state law changed in 2011  and is grandfathered which would put you out of SOL.

So check your agreement for the state the sol is tied to.

 

If mediation is set it's kind of important I know if you filed your disclosure form with court and sent a copy to the Plaintiff

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Okay the first thing I need to know is after you filed your answer did you file a disclosure form with the court within 40 days??

 

The second thing is that you need to find a copy of your cc agreement and see what state it is tied to,  For example Chase is tied to Delaware SOL which is three years  and our state law changed in 2011  and is grandfathered which would put you out of SOL.

So check your agreement for the state the sol is tied to.

I don't have a copy of the credit card agreement. I was able to find another one for US Bank online and it looks like North Dakota, but their SOL is the same as AZ (6 years).

 

If mediation is set it's kind of important I know if you filed your disclosure form with court and sent a copy to the Plaintiff

Oh no! I didn't do that. It said I did not need to file the form with the court, just the other side. I didn't fill it out and totally forgot about it (can't even believe I missed that one) My mediation is this week! However, it states that I have to mail it w/in 40 days of when I (defendant) responded, so I am still in the clear with that one. I have absolutely no idea how to respond to these questions.

1. The following facts support my case.

2. If I am claiming that the other side should pay me money, the following facts support my claim: (I wasn't planning on that).

3. The following law supports my case

4. List of witnesses

5. Others with knowledge

6. Copies of Exhibits

7. Other information

 

Thank you!

 

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Okay glad you still have time.  And it says you have to bring a copy for the other party at the pre trial conference.

 I mailed everything in my correspondence cerified maill return reciep requested, Then when you win you can declare your costs.At the top of the disclosure form write big  DEFENDANT-DISCLOSURE

 

What are the facts supporting the claim?

The defense of (your name) asserted in this action are grounded on the following fact, The Plaintiff lacks standing to sue the defendant

 

2) I put N/A

 

3) I put N/A but if you want you can use "Bennett v. Napalitano, 81P. 3D 311- Az Supreme Court 2003.  I used that for lack of standing in my MOSJ

4) I listed the affiant from Midland as a witness but you can leave blank as there will be no witness at trial or you could if you wish

5) Defendants have no documents in their possesion

 

That's it

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Thanks for the reply. What did you base the lack of standing on? Was it for SOL? I have heard varying things with the change in AZ law, and that basically you'd better have a fall back plan because the SOL doesn't always hold. Also, was there something specific in that case that ties into this? I am unfamiliar with how to figure out which parts of these case laws are applicable. What is a good way to find these cases?

 

Also, the other party is in Tucson so they are participating by telephone for the mediation. I guess they won't be able to physically get this unless it's through the mail.

 

Also- now that I have these "exhibits" they produced (paricularly the affidavits and "Bills of Sale") when can I object to them as hearsay, or something?

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If your cc agreement's state was also a 6 yr sol forget about that.

 you have the case law i gave you to support lack of standing and the insufficient DV stuff they sent you.

Really just keep it simple because as long as you file everything on time you are good.

 

You have 30 days to respond to their Rogs and RFA.

When is your mediation??  I would object to them appearing telephonically. They are suing you and you are not comfortable tlaking on the phone to them.

If it's Bursey they have a Phoenix rep here.

As to the exhibits you will need to prepare Motions In Limine to strike them.

I will post mine this weekend for you to look at,

Just get that Disclosure statement done and filed with court and sent to them

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Yeah, they specifically said they were located in Pima County when they petitioned. If it goes to trial, I will absolutely object to telephone. It would be great if I can see your motions to strike. Is there any particular way I should specify I want them to pay my court costs?

 

Any recommendations for mediation? Is it just back-and-forth make a deal kind of thing? Does anyone know what percent they are usually willing to go with? My mediation is this week. I would honestly be willing to settle for a very low amount just to save myself the headache and time with this.

 

Thanks!

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I am sorry I am not very computer efficient. This mediation thing seems to be new. I only had a pre-trial conference.

If you PM (private message) Seadragon ask him to send you a link to Jedimama's MIL.  If you do what she did and get all the so called evidence stricken you will be good to go.

 

As for settling that's up to you but you already had to pay a fee to file right. If you win you recoup all your costs.

I can't even beleive they sued you for this amount . It makes me feel the Atty might have on his own as his fees will be as much as you owe.

Sometimes that happens. But PM Seadragon and get you MIL completed.

 

And forget about SOL . No bearing right now

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Thanks! I feel that it is a winnable case, I am just worried about time investment. I was wondering at what point this stops being worth it to them- I mean if their attorney has to show up in court, is $600 worth it to them?

 

Where might I find this case law as far as chain of custody? If I go to court, shouldn't I be able to refer to a ton of these cases? I have been going through the forums, but if anyone has an idea of several cases people have used for issues during trial in Arizona, please feel free to share the link.

 

Really appreciate the input :-)

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I guess regarding the time put in the question is do you want to pay a dime to someone you don't owe???? Also your disclosure form was different so here are the answers

1. The Plaintiff lacks standing to sue the defendant

2. If entitled to a judgement the Defendant will file a memorandum of Cost's

3. Bennett vs. Napalitano , 81P 3d. 311 Ariz Supreme Court 2003

4. I called the witness from midland's affadavit but you don't have to call any just put N/A

5.N/A

6.N/A

I don't know if you PM Seadragon for the motion in liminie to strike the bos, affadavits, and cc statements or not. I can type it out long hand if you didn't. Easier if he sends it as it is redacted. You just fill in your info. Easy

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I did PM Seadragon about an hour ago. As far as "lack of standing" I read on a post http://www.creditinfocenter.com/community/topic/311576-detailed-discussion-on-affirmative-defenses-including-standing/ (repost from BV80) that lack of standing is something you want to really wait to bring up until trial when you can question the Custodian of Records, and that you don't want them to know you are petitioning lack of standing and be prepared for it. Although, at least in my situation, it seems I have no choice.

 

Even though I have bills of sale, their affidavit, and old statements- I can still petition lack of standing, because....? I am thinking based on their bills of sale being ridiculously non-descriptive of my account, or...?

 

And, were you responsible for Midland's witness showing up?

 

Thanks!

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Okay I would attack standing from the very beginning to let them know you know what you are doing. By now these atty's know if you.ve gotten this far you know it and it show's the judge who reviews the paperwork you disputed standing from the beginning.

They called the same witness I called in disclosure. Anyone show up NOPE and they won't for you either

You deal with your costs in your answer(counterclaim) too late for that.  When you win you save all your costs in a seperate envelope and file a Memorandum of costs.

 

Make sure you file Disclosure at your mediation tommorrow and mail them a copy ccrrm.  They may not even show for the phone mediation as they missed two in LD-50  also from Az. and if they don't call in within 15 minutes ask the mediator to reschedule as your time is as valuable as theirs. Also request the next one for you to do a three way call. Who cares if they are in Tucson They sued you

 And I would object for the record  to the phone mediation on that ground.

 

In mediation just say you are in the initial stages of discovery  and deny anything they try to pull.

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Thanks so much for your response. You have encouraged me not to settle! I am working on my disclosure statement now.

 

A couple questions-

  • One huge concern I have is that there are copies of every one of the credit card statements with my name and address on this. If this gets brought up tomorrow, how should I address this?
  • I saw in another forum (of course I can't find it now) that the Defendant can send plaintiff a set of admissions as well (1. Admit Plaintiff is  a debt collector, 2. Admit that Plaintiff has no paperwork/agreements signed by Defendant, etc, etc.) Did you do this?
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Try not to take to much stock in other newbies cases. The other person's thread they did not do disclosure right and I will set them straight. Keep it simple. If you don't understand it you can't cite it.

So make sure you understand the process. Az Rules of Civil Procedure gives you that guideline and Az Rules of Evidence will help you win. So will we.

The CC statements are facimile copies not the originals. The affadavits have a bar code. Sure they are notorized but don't mean anything.I was never sent ROGS or RFA so I never sent any back Easy Breezy. If you want to make them work(which means you have to too) I will find a post where you can send them Request for Admissions.

At the mediation they will probably just want to settle and you won't. They could ask do you own the debt ? No Were Statements mailed NO Just pretty much deny everything but your name and address.

This mediation thing is new since the AZ laws changed in January because Justice Court is now mediating Supreme Court cases. Before that you just went to one pre-trial conference like I did.

No judge just rep for atty. Lasted 4 minutes She said do you want to settle I said no we went to clerk and signed a paper we both had attended.

We will get Seadragon to sent you the MIL stuff to strike all their evidence and move on to next step

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Thank you :)

 

So as far as witnesses, here's the thing- their "Bills of Sale" are completely shady and I know they have been clearly forged by the same person. None of them are notarized, all have the same handwriting. Should I just list their custodion of records or should I list every single one of these individuals on the bills of sale? The account was sold four times, sometimes less than a month later, and they all look completely doctored. Or is it okay just to list their custodian of records, because they have also listed them?

 

In addition to Bennett vs. Napolitano, this case also looks promissing: Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977 "To prove an assignment, a party must show “evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.”

Found it on this forum- http://www.creditinfocenter.com/community/topic/319137-disclosure-please-review/

 

I have printed a lot of the rules of evidence and civil proceedings, so I am definitely going to get to work to make sure I know what I am doing.

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Yes I used certified collectors in my MOSJ. You are not there yet and with your motions in limine to strike all their so called evidence you probably won't have to be. I can never tell which thread you are on so do this before tommorrow. Google nWhat to expect in mediation in Az justice court. Go to the 7th one down Az mediation-Squidoo. This should put you at ease as to what will happen . You do not need to stress about any case law yet.. This is the pre-lims Nite

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for the motion in limine you are gonna want to wait to just before trial to file that. Also these debt collectors like to use Motion for Summary judgement as a method to have a "Trial by affidavit" so you will have to bring up objections to their evidence. I would say maybe a document titled written objections to propounded discovery or wait until they file MSJ and oppose it within the 10 days with opposition to Motion for Summary Judgement.

 

I think that you are getting past the initial freak out everyone has at this stage of the case(mine involved hyperventilation, a bottle of Jim Beam, and some calming by my wife.). You have to think strategically, I think sending formal objections to the discovery tips the hand but takes the sj out of theirs. When is the trial date? If that is not set at the next hearing request trial within 45 days. When they say no, say that their are issues that only trial can solve, and other jurisdictions are resolving cases sooner than later.

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