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Feedback Needed: Interrogatories and RFAs to Plaintiff


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I really want to get these sent off tomorrow, so I would greatly appreciate feedback!

 

I only want to include ROGs and RFAs that are helpful - if any are unneccessary or duplicative, please let me know.  

 

I wanted to focus on:

 

1) The Affiant:  

 

        1) allegedly auditor for the OC;

        2) signed Affidavit of Debt more than a year after debt was sold according to date on BOS;

        3) only attested to alleged balance due on account, names on account,

             SS#'s on account, account number, and that the debt was sold.   

2) Bill of Sale

        1) references a "lot no." and sale of 1,000+ accounts

        2) not notarized 

        3) no defendant name or account number on document

 

If there are any other discovery questions that are a must - please let me know. 

 

Thanks!!

 

 

INTERROGATORIES TO PLAINTIFF

 

Interrogatory No. 1:

Identify all persons involved in the preparation of the answers to the interrogatories.  For each such person, provide their address and telephone number.  For each such person, also identify which interrogatory that person responded to.  Please also include their title with the Plaintiff and length of time of employment, if applicable to that person.

 

Interrogatory No. 2:

Identify each person who has knowledge or claims to have knowledge of information or events related to this lawsuit.  For each such person, give their name, address, telephone number, and a summary of that person’s knowledge or involvement in this matter.

 

Interrogatory No. 3:

Identify all documents or other tangible evidence that support your contention that the Defendant, for valuable consideration received, entered into a contract promising to pay the Plaintiff or the Plaintiff’s assignor.

 

Interrogatory No. 4:

Identify all documents showing the calculation or assessment of interest, finance charges, fees and charges on the alleged debt sued upon in this action, and all documents relating to the payment history of the account that contribute to the balance.

 

Interrogatory No. 5:

Identify the Bill of Sale demonstrating that Plaintiff has the authority and standing, and is legally entitled to collect on the alleged debt from Defendant.

 

Interrogatory No. 6:

Identify all documents and tangible things Plaintiff received from Issuer in connection with the account that is the subject of this lawsuit.

 

Interrogatory No. 7:

Identify all documents Plaintiff is in possession of bearing Defendant's signature.

 

Interrogatory No. 8:

Identify any cancelled checks or copies of cancelled checks, or other verified payments on the alleged account Plaintiff intends to introduce as evidence at trial.

 

Interrogatory No. 9:

Who signed the Affidavit of Debt? What is the Affiant’s name, job title, and work experience history?

 

Interrogatory No. 10:

State the number (or, if unknown, a reasonable estimate of the number) of affidavits, declarations and certifications made by the Affiant on the same date as the Affiant’s Sworn Statement.

 

Interrogatory No. 11:

Please describe the Affiant’s process or correction of errors while reviewing documents related to consumer debt.

 

Interrogatory No. 12:

How does the Affiant know that the documents provided to him/her for verification of a debt are accurate and authentic? How much time does the Affiant spend verifying a debt before signing an Affidavit of Debt?

 

Interrogatory No. 13:

List all procedures that the Affiant used to verify the accuracy of the alleged debt owed to Issuer.  What documents were given to the Affiant for verification of this alleged debt? Were these same documents sent to the Defendant with the Complaint?

 

Interrogatory No. 14:

Does the Affiant have authorized access to original signed documents at [bANK]?  If so, list the individuals who gave the Affiant such authorization.

 

Interrogatory No. 15:

Does the Affiant use a computer to fill out Affidavits of Debt? How did the Affiant obtain the name and amount of debt owed by the Defendant?  Describe this process in detail.

 

Interrogatory No. 16:

Does the Affiant have personal knowledge of the alleged debt, as it was constituted?

 

Interrogatory No. 17:

On what date was the Bill of Sale signed?

 

Interrogatory No. 18:

On what date did the Affiant sign the Affidavit of Debt?  Was this date before or after the alleged debt was sold to JDB?  

 

Interrogatory No. 19:

Does the Affiant have personal knowledge of the original alleged contract between the Defendant and Issuer?  If so, what amendment terms were written on the contract?

 

Interrogatory No. 20:

How do Affidavits of Debt get notarized by the Affiant?  Does the Affiant personally take the Affidavits of Debt to the Notary to be notarized?  Does the Affiant watch the Notary authenticate each affidavit?

 

Interrogatory No 21.

For each Sworn Statement, state whether you have the version which contains the Affiant’s original signature.

 

 

Interrogatory No. 22:

Identify each individual you expect to call at trial as an expert witness and include the subject matter on which each person is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

 

REQUESTS FOR ADMISSION OF FACTS TO PLAINTIFF

 

RFA No. 1:

Plaintiff has no personal knowledge as to the mailing by the Issuer to Defendant of any written agreement governing the Account.

 

___ADMIT ___DENY

 

RFA No. 2:

Plaintiff has no personal knowledge as to the mailing by the Issuer to Defendant of any billing statement for the Account.

 

___ADMIT ___DENY

 

RFA No. 3:

Plaintiff has no personal knowledge as to why the Issuer entered any transaction, debit, credit or charge on any billing statement for the Account.  

 

___ADMIT ___DENY

 

RFA No. 4:

Plaintiff’s right to acquire documents from the Issuer about the Account is governed by the written agreement under which Plaintiff acquired the Account.

 

___ADMIT ___DENY

 

 

RFA No. 5:

Plaintiff does not have a written agreement or contract, signed by Defendant, between the Defendant and the Issuer.

 

___ADMIT ___DENY

 

RFA No. 6:

Plaintiff cannot state which date the contract sued upon was entered into.
 

___ADMIT ___DENY

 

RFA No. 7:

Plaintiff has no written agreement, signed by Defendant, incorporating the terms and conditions of any agreement you allege exists in this case.
 

___ADMIT ___DENY

 

RFA No. 8:

Admit that Plaintiff purchases charged-off debts for not more than 8 cents on the dollar.
 

___ADMIT ___DENY

 

RFA No. 9:

Plaintiff has never exchanged goods, services, and/or money with the Defendant.

 

___ADMIT ___DENY

 

RFA No. 10:

Admit that there is no written agreement between you and Defendant.
 

___ADMIT ___DENY

 

RFA No. 11:

Admit that as of the date you drafted your Complaint, you had no evidence admissible at trial that proves Defendant owes the debt.

___ADMIT ___DENY

 

RFA No. 12:

Plaintiff did not originate any records regarding the creation of the alleged debt.

 

___ADMIT ___DENY

 

RFA No. 13:

Plaintiff has no personal knowledge of the creation of the alleged debt.

 

___ADMIT ___DENY

 

RFA No. 14:

Admit that Plaintiff does not have access to all of the records created and maintained by [bANK] that pertain to the alleged account that is the subject of this lawsuit.

 

___ADMIT ___DENY

 

RFA No. 15:

When it acquired the alleged debt of Defendant, all Plaintiff obtained was a computer printout of alleged debtors, addresses and identifying information, and the supposed balances owed.
 

___ADMIT ___DENY

 

RFA No. 16:

Admit that the Bill of Sale from the Issuer to Plaintiff does not reference the names of the Defendant.
 

___ADMIT ___DENY

RFA No. 17:

Admit that the Bill of Sale from the Issuer to Plaintiff does not reference the account number of the alleged debt that is the subject of this lawsuit.

 

___ADMIT ___DENY

 

RFA No. 18:

Admit that you are unable to provide a complete accounting for the amount you are claiming from a zero balance to the amount charged off.
 

___ADMIT ___DENY

 

RFA No. 19:

Plaintiff does not have in its custody, legible copies of any documents bearing Defendant's signature.

 

___ADMIT ___DENY

 

RFA No. 20:

Plaintiff’s Affiant is only advised of the alleged balance allegedly owed to the Plaintiff by the Defendant, and has no direct, personal, firsthand knowledge of the alleged account and alleged debt as it was incurred.

 

___ADMIT ___DENY

 

RFA No. 21:

Plaintiff’s Affiant does not have in his/her immediate possession, or custody and control, all records pertaining to the alleged account and debt of the Defendant, which is the subject matter of this lawsuit.

 

___ADMIT ___DENY

 

RFA No. 22:

All records allegedly held by Plaintiff, which allegedly prove Defendant is indebted to the Plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff.

 

___ADMIT ___DENY

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Interrogatory No. 1:

Identify all persons involved in the preparation of the answers to the interrogatories.  For each such person, provide their address and telephone number.  For each such person, also identify which interrogatory that person responded to.  Please also include their title with the Plaintiff and length of time of employment, if applicable to that person.

 

This is just a quick comment, but why not make this two questions?

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Interrogatory No. 1:


Identify all persons involved in the preparation of the answers to the interrogatories.  For each such person, provide their address and telephone number. 


 


Interrogatory No. 2:


For each such person identified in Interrogatory No. 1, also identify which interrogatory that person responded to.  Please also include their title with the Plaintiff and length of time of employment, if applicable to that person.


 


 


Better?   :-) and thank you~


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I am a newbie so don't take my word for it, but these look good, gives them a lot to object to.

I would maybe delete RFA #4, you're letting them say, yes we do have a written agreement with the OC, same with #20, and #22.

They seem to give the Plaintiff possible recognition of a valid assignment

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Thank you for your input @Garden Gnome- it's much appreciated.

 

Here are my questions that maybe others can answer - based on your thoughts.....

 

RFA No. 4:

Plaintiff’s right to acquire documents from the Issuer about the Account is governed by the written agreement under which Plaintiff acquired the Account.  The JDB produced a copy of an alleged Bill of Sale (partial) - it references that they accept the assets "AS-IS" .... I am understanding that this means that when they purchase the account, they receive specific documents on each account, and the chances of the JDBer obtaining further documentation of the purchased assets, is slim-to-none.  Meaning:  what they already have in "potential" evidence is what they have.  That is my interpretation, and most certainly flawed!

 

RFA No. 20:

Plaintiff’s Affiant is only advised of the alleged balance allegedly owed to the Plaintiff by the Defendant, and has no direct, personal, firsthand knowledge of the alleged account and alleged debt as it was incurred. I'm not sure how this gives the Plaintiff possible recognition of a valid assignment.  Isn't the focus of this request on "personal knowledge" of the alleged account and how it was incurred?

 

RFA No. 22:

All records allegedly held by Plaintiff, which allegedly prove Defendant is indebted to the Plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff.  The point here *from what I interpret* is to focus on the fact that whatever documents that the Plaintiff has amount to nothing in regard to admissible evidence due to the fact that they are "hearsay" - records from a third party, and not the Plaintiff.  ??  Again, I'm not 100% on what I *think* I understand.  

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They are trying to prove up an incomplete and inadequate "Bill of Sale" with a supporting affidavit.  The question is does the Original Creditor create these affidavits in the normal course of business, by a person with person knowledge and expertise, etc.  because if they can claim they do, they will claim a "business exception" to heresay.  In other words it isn't the JDB's relationship to the Affidavit that makes it heresay, it's the quality of the Affidavit itself.

 

If you can't knock out the JDB's standing, then they will like the original creditors affidavit just fine.

 

At least that's how I understand it.  I tried to look for inconsistencies between the "Bill of Sale"and the Affidavit to show that they don't actually support each other.  And I think the JDB's have to buy affidavits and other evidence at $5 or so a page.  I'd ask the Plaintiff if they bought the affidavit for purposes of litigation.

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 The question is does the Original Creditor create these affidavits in the normal course of business, by a person with person knowledge and expertise, etc.  because if they can claim they do, they will claim a "business exception" to hearsay.  In other words it isn't the JDB's relationship to the Affidavit that makes it hearsay, it's the quality of the Affidavit itself.  I've been wondering about this.  Regardless, there is no account for the entire balance thus far - just an alleged balance due.  Also, wouldn't the affiant need to have personal knowledge of the account, and not just the alleged balance at the date of charge-off?  This affant signed the affidavit over a year after the Bill of Sale was signed.  I find that odd.  Why would an OC keep records in their computer database, and on the books, a year AFTER the assets had been sold?  I find that questionable.

 

If you can't knock out the JDB's standing, then they will like the original creditors affidavit just fine.  Hmm.  Well, this is something I need to know beforehand.  Is there a way to word my discovery questions to find this out?

 

At least that's how I understand it.  I tried to look for inconsistencies between the "Bill of Sale"and the Affidavit to show that they don't actually support each other.  The date is a year apart on mine.  And I think the JDB's have to buy affidavits and other evidence at $5 or so a page.  I'd ask the Plaintiff if they bought the affidavit for purposes of litigation.  

 

"The Plaintiff purchased the Affidavit of Debt from the Issuer for purpose of litigation" Admit or Deny.

 

Is this how  would word the question?  And.... what would make the affidavit inadmissible if the JDBer did purchase the document for purpose of litigation?  I would think it would be difficult to get them to admit that.

 

Thanks again, for your input @Garden Gnome.

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I have another question.

 

 *If* a JDB has a legitimate Bill of Sale, and *if* they also have an Affidavit of Debt from the OC that is acceptable as admissible evidence in court, on what grounds would they be entitled to collect on the alleged account balance, without having any documents that evidence how that balance was calculated?  

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Yeah, I would ask ," the OC creates certifications of debt affidavits in the regular course of business?" , "the affidavit was created at or near the sale?"  " the plaintiff purchased the affidavit for the express purpose of litigation?"  Look up the evidence code in the statutes for your state, under evidence try to find the business exception to hearsay, and get them to admit they don't qualify.  In  Florida affidavits are accepted only in these circumstances

 

 

  (6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.—

  1. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph © and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

 

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Ok, let me get this straight:  

 

If my rules of evidence are the same in my state state (I should have them memorized by now - I've read them a gazillion times...but I will read them again) - in order to qualify for the business exception hearsay rule, the document "Affidavit of Debt" would have had to be sworn to (authenticated??) at the time of the actual sale of assets?  Meaning, the date on the Affidavit of Debt should be on or near the date noted on the Bill of Sale?

 

 

Also, the BOS references a lot no. of accounts sold in the thousands.  Attached are computer printouts that list personal info., and alleged account info.   Those attached doc's are not signed by the OC or sworn to.  How would I know who created those documents?  Anyone could type up that info.  The Bill of Sale mentions nothing personal in relation to the defendant.

 

Do my questions address the Bill of Sale and attached documents in enough detail?  I was trying to find the appropriate wording to question the authenticity of those documents - not sure I did.

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Somebody with Arizona knowledge might be able to answer if your questions are sufficient. I know I would google "the elements" that they need to prove each charge in your state, and word my questions so they have to object or admit that they can't prove their case. And I would try to word my questions about the admissability of their evidence  so they have to object or admit that their evidence is crap.

 

It seems to me that you're doing a good job of that. Judges are supposed to be liberal with pro se people, so you probably can't make a fatal mistake as long as you're careful not to hand them anything that might bolster their claims.

.  

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Very good advice. I would also say keep the questions short to the point. Make them admit questions only. If they dont respond to your discovery questions in the time frame they are automatically deemed admitted so make sure the ones you ask are admit questions.  Also you will get their so-called evidence stricken in your motion in limine before trial . Remember the game is won or lost usually before trial.

My case went on almost a year and they sent me another affadavit signed 8 months later. Standard stuff . Also the discovery is between you and them not the judge.It's just making them do work and that is good.  I would PM seadragon to take a look because I never had to go through this step

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RFA No. 4:

Plaintiff’s right to acquire documents from the Issuer about the Account is governed by the written agreement under which Plaintiff acquired the Account.  The JDB produced a copy of an alleged Bill of Sale (partial) - it references that they accept the assets "AS-IS" .... I am understanding that this means that when they purchase the account, they receive specific documents on each account, and the chances of the JDBer obtaining further documentation of the purchased assets, is slim-to-none.  Meaning:  what they already have in "potential" evidence is what they have.  That is my interpretation, and most certainly flawed!

 EXCEPT AS PROVIDED IN THIS SECTION, THE CHARGED-OFF

ACCOUNTS ARE BEING SOLD "AS IS" AND "WITH ALL FAULTS",

WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER

AS TO EITHER CONDITION, FITNESS FOR ANY PARTICULAR

PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY,

EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS

ANY WARRANTY, REPRESENTATION, ORAL OR WRITTEN, PAST OR

PRESENT, EXPRESS OR IMPLIED, CONCERNING THE CHARGEDOFF

ACCOUNTS, OR THE STRATIFICATION OR PACKAGING OF THE

CHARGED-OFF ACCOUNTS.

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RFA No. ____

Plaintiff purchased the alleged Account from the Issuer on an "AS IS" and "WITH ALL FAULTS" basis, without recourse and without representations or warranties of any type, kind, character, nature, express or implied.

 

 

Should I add this in @racecar?   Or does RFA No. 4 cover this?  

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Its hard to swear that an account is true and correct when its sold AS IS" and "WITH ALL FAULTS" basis, without recourse and without representations or warranties of any type, kind, character, nature, express or implied.

answer yes

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Its hard to swear that an account is true and correct when its sold AS IS" and "WITH ALL FAULTS" basis, without recourse and without representations or warranties of any type, kind, character, nature, express or implied.

answer yes

ok

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