frosted1

Asset Acceptance going for the jugular. Need Help!!

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meet and confer is just a letter, no real meeting.  Letter stating what you want, and they may answer your letter or they may ignore it.

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If it were me I would not raise SOL at this point, but rather state in a meet and confer that counsel stated date of last payment was XX/XX/XXXX. Plaintiff needs to explicitly produce documentation defining date of last payment or defendant shall file a motion with the court with the assumption that plaintiff is hiding date of last payment to avoid SOL issues and seek sanctions for discovery misconduct.

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Can anyone tell me....  if the Plaintiff files a Motion to extend Facts Discovery Deadline and it is approved by the Judge, does that allow the Defendant to continue Discovery as well?

 

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Yes, it's one deadline for both parties.

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Thank you Spikey!!!   I appreciate the info.  I'm ok to send my first request for RFA and RFP when that Motion is approved, right?  I'd better get busy putting that together, too.

 

Also... how does one do a PM on this site?  I see it referred to all the time, but am not aware of the procedure.  Can you help me out there?

 

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In the "search" box on the uppper right of the screen, click on "members" then enter member's name.  Or if you see a post a member has done, just click on that name and you'll see a prompt telling you if you want to send a message.

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Also, if you hover your cursor over a members name in a thread it will popup a box with a send message option.

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New question???  

 

I was reading about the Bill of Particulars.  Would this be wise to use in a Utah case when the plaintiff has provided nothing of value in the way of Discovery/Disclosure?  Would it be better to do a meet and confer first, or just jump right in with the BOP?  

 

If they can be used in Utah, what would be the deciding factor to make one consider doing that?  I was trying to find more information in URCP, but either I missed it or it isn't there.

 

Any help would be most appreciated.

 

Thanks!

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a BOP for civil cases are only used in  District of Columbia, New York, Virginia, Maryland, California, Georgia,,  and Kansas.  (I think that is it) Utah is not one of them, so it would do you no good to request one.

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Thanks Shellieh98.  

I was hoping that I would be able to use the BOP.  

 

I have not sent any discovery requests and time has expired to do so.  I'm waiting to hear if the judge gives the plaintiff approval for a discovery extension.  Until then, I'm proceeding with the meet and confer letter to obtain documents from the plaintiff.  The only thing they've sent is an incomplete BOS and partial credit card agreement dated 2003.  

 

I was going to submit an Amended Answer, but in all the reading I've been doing, I've become rather confused as to the adequacy of my answer.  Some say don't include lack of standing or SOL unless I'm ready to defend either. I'm not sure i'm ready to defend anything, but I know I've got to do something.  I haven't a clue how to include any counter claims, as I'm not sure which rules the plaintiff has broken due to my lack of understanding all the rules of procedure.  I think I'm more confused now than I was in the beginning.  My answer is in a post a few posts back.  Any ideas as to what I should and should not include would be greatly appreciated.  I did take out the suggestions you gave me as to leaving  proof to the Plaintiff.  If the rest is ok, I'll just go ahead and send it with hope that it will be sufficient.

 

If I ask for and receive a credit report, do I have to send a copy of the report to the opposing counsel?

 

If I don't get proper documentation from the plaintiff, what would be the drawbacks, if any, to contacting the OC myself?

 

Thanks for all your help and any further suggestions you might offer.  I appreciate them all.

 

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When is your trial? By now the judge should have ruled on an extension for discovery, you need to check with the court. Did you file the amended answer?

No you don't have to give them a copy of your credit report unless you plan on using it in your defense. They sent you initial disclosures, did you send them any? If you did not i would go to the court website, find the form, and send them, even though they are late. I know you don't have anything to disclose, but send the form anyway stating you have no documents, and you have no witnesses except for impeachment purposes, (means you will question their witness)

I am really surprised they have not filed a MSJ on you.

Did they send you the name address and phone number of the person who signed the affidavit? If not and if discovery period is over you will not have any trouble getting that struck since you could not subpoena her.

Find out if the motion to extend discovery was granted or denied, then you can go from there.

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Hi Shellieh98,

 

Thanks for answering so quickly.  As of last Friday, no trial date has been established.  The motions have not been answered yet either.  I did check with the court.  As to my Amended Answer, it has not been filed.  Again, my confusion set in.  They sent me Initial Disclosures and then Discovery requesting Admissions and Production.  I did respond giving them basically the answer you just suggested as I did not have any documentation regarding this alleged account.  I have not sent any requests for Discovery. We did have a pre-trial conference which went nowhere.  They asked for bank accounts for 2007-2009.  I said ok, but then, after finding this site, changed my mind and refused to send bank statements.  I was not ordered to do so, just a verbal agreement with the opposing counsel. Then they filed a statement of Discovery Issues requesting the judge to compel me to produce bank records. I did respond with my objections to that.  They also filed the motion to Extend Fact Discovery Deadline.  This is where we're sitting right now... just waiting for Judge's decisions.  I did not respond to the motion to extend.  I'm not sure what affidavit you are referring to?  They did give the name of a witness they will be calling, but stated "contact through Plaintiff's counsel at the contact information listed"on their letterhead. No direct communication with her.

 

Are you saying that I should have filed an Initial Disclosure form even though I answered their Discovery?  

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Well I believe Utah has initial disclosure, and both sides are supposed to produce them. Your rule of civil procedure will tell you, go to them and search out disclosures.

While you are at it, search out motions and see if they tell you a time limit for the judge to answer it. You are kind of dead in the water right now since you can't do discovery, you have no trial date.

I believe the judge told you to file an amended answer, why, what was wrong with your first one? He ordered it, I would do it if I were you.

I guess at this point you would be studying how to object to the evidence they sent you in their initial disclosures. You need to learn the rules of evidence so you know what you are doing when it comes time for court.

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Thanks so much for your time and suggestions!  I will get right on the Disclosure issue and will be following your suggestions to better acquaint myself with the rules as indicated. 

 

Just to let you know, the judge that was at the hearing is not the judge that will sit trial.  This was an assistant??? judge.  I didn't take his wording as an order, but more as a strong suggestion in the way of advice.  My original answer was just a reiteration of my original validation letter along with a denial of the account.  I was not aware of legal procedure at the time and did not specify answers to questions as we are supposed to do.  I've learned the basic format since reading the comments on this site.  I did answer those basic questions in the Plaintiff's request for Admissions and Productions, thinking that was the next appropriate step.  I think that's why the substitute judge suggested I Amend my original answer.

 

Were you able to read through my draft of the Amended Answer?  I think it's on page 3 of this thread.  I'm a little insecure as to it's appropriateness  of the Affirmative Defenses and would appreciate any suggestions you might have to offer.  I have removed the comments, per your suggestions earlier, claiming "leaving proof to the Plaintiff", but they still show on that page.  

 

Again, my sincere thanks for all your help.

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Mr KentWA and others,

 

I've been reading, reading, reading all of the Utah related posts as well as URCP and Rules of Evidence I'm overwhelmed, but ever so grateful for all of you who have contributed so much useful information for those of us struggling with these issues.  My thanks to your kind consideration and generosity!

 

I was informed by Asset that the OC was Bank of America.  I just noticed in the BOS copy that Asset sent me,  it lists FIA Card Services,LLC as the seller of the loans.  I know B of A and FIA are affiliated, but what does the BOS have to reflect for title to be correct as far as the issue of standiing?  Is this an issue or am I grasping at straw here?

 

 

Also, If the Motion to Extend Discovery is approved, how does that or what effect does that have in the timing according to Utah Rule 26.

 

So far, no decisions have been handed down in either of the opposing counsels two motions. I'm just trying to figure out if I need to take any other action at this point in time.

 

I was trying to access this reference below, to no avail.  It comes up some unrelated site.  Is there a replacement site for the information listed there?

 

http://www.gregherst...Disclosures.pdf.  I would really like to read the information you had there.

 

THANKS AGAIN for all you do.

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Mr KentWA and others,

 

I've been reading, reading, reading all of the Utah related posts as well as URCP and Rules of Evidence.  My mind is boggled, but I'm ever so grateful for all of you who have contributed so much useful information for those of us struggling with these issues.  My thanks to your kind consideration and generosity!

 

 A couple of questions for clarity...  I was informed by Asset that the OC was Bank of America.  I just noticed in the BOS copy that Asset sent me,  it lists FIA Card Services,LLC as the seller of the loans.  I know B of A and FIA are affiliated, but what does the BOS have to reflect for title to be correct as far as the chain of title?  Is this an issue or am I grasping at straws here?

 

 

Also, If the Motion to Extend Discovery is approved, how does that or what effect does that have in the timing according to Utah Rule 26.

 

So far, no decisions have been handed down in either of the opposing counsels two motions. I'm just trying to figure out if I need to take any other action at this point in time.

 

Mr KentWA, I was trying to access this reference below, to no avail.  It comes up some unrelated site.  Is there a replacement site for the information listed there?

 

(http://www.gregherst...disclosures.pdf.)  I would really like to read the information you had suggested there.

 

THANKS AGAIN for all you do.

 

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If this was an OC suit it would not matter, but in a JDB suit you will want to make a big deal over this. FIA is a wholly owned subsidiary of B of A. Have they in any pleadings stated it was B of A? If so then you make them tie the two together with OC affidavit of the relationship and how FIA came to own the account.

 

On another note, the BOS is seldom the entire agreement, does it reference any other documents, agreements, etc? If it does and almost every time it does then you need to send a meet and confer to cough up the full agreement(s) with all attachments, exhibits and appendixes, In Utah the Doctrine of Completeness and Rules of Evidence 106 requires them to do so.

http://law.justia.com/cases/utah/court-of-appeals-published/1999/leleae.html

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Mr KentWA,  and all others who have been so generous with your time and wisdom.  

 

I can't thank you enough for all your good help!   I'm certainly learning to read these documents in a more intensive way than I did before I found you.  I'm halfway through my Meet and Confer, but I was reading in another thread and found this.  

 

Regarding disclosure....   If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.  If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.  

 

...I need a clarification...  is this "party"  referring to the person who sent disclosure or the person receiving disclosure?  Because, as I understand it, it refers to the party who sent the original disclosure.  That being the case, is it wise for me, the defendant in this case and the one receiving Plaintiff's incomplete disclosure, to bring to the Plaintiff his shortfall.  It would seem to me to be shooting myself in the foot, to alert the plaintiff to a situation where his documentation could be thrown out if he does not offer the correct documentation in the appropriate timeframe.  Why would I want to chance screwing that opportunity, (of getting his lousy evidence thrown out,) up by demanding he correct his shortfall?  Also, I remember reading in one of the threads that it might not be a wise thing to request definite documentation because it gives the Plaintiff the opportunity for an extension of time to correct their deficiencies???  Did I understand that situation correctly??    I really don't want to screw this up.  I want to blast em out of the water, so to speak!  I'm open to comments.

 

 

 

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Mr KentWA and others,

 

How do I bring up say...  SOL... If I did not include any affirmative defenses or counter-claims in my Amended Answer?  If I win a dismissal on that point can I then sue Plaintiff for FDCPA/FCRA violations?

 

(I think I'm starting to like this stuff a little too much.  I find myself reading all these threads with a bit more enthusiasm and less intrepidation than at first).

 

I'm eager to use the information I was reading about last night.  I just want to make sure I approach it in a procedurally correct manner and at the appropriate time.

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Excluding evidence is generally considered a sanction and the rules require meet and confer before you file to exclude. Rule 26 governing initial disclosures seems to be different, however that does not mean a judge will rule against you if you did not meet and confer. Quite often the JDB attorney's will tell you your request is irrelevant and that is a great place to be since the info can not then be used.

 

In a family members case he asked for the Sales Agreement mentioned in the supposed BOS, they said it was irrelevant. The judge then told them at the motion in limine that if that was the case their BOS was irrelevant.

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For the SOL you will need to show how the information came to you after answering (i.e. their original complaint did not list date of last payment). Then point out to the court that through discovery you learned the suit was barred by the SOL and plaintiff hid the fact from you. That in answering you did not expect the plaintiff to file an SOL action and therefore had no reasonable expectation of using that defense.

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Mr KentWA and others,

 

How do I bring up say...  SOL... If I did not include any affirmative defenses or counter-claims in my Amended Answer?  If I win a dismissal on that point can I then sue Plaintiff for FDCPA/FCRA violations?

 

(I think I'm starting to like this stuff a little too much.  I find myself reading all these threads with a bit more enthusiasm and less intrepidation than at first).

 

I'm eager to use the information I was reading about last night.  I just want to make sure I approach it in a procedurally correct manner and at the appropriate time.

 

If you win, then should be able to hire a consumer lawyer who can sue in fed dist crt for his attys fees and for statutory and maybe actual damages for you.

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Thanks for your patience and help in responding.  I've been out of town and got home to a crashed computer.  Must have been the storms.


 


In regard to including SOL issues in my Amended Answer, do I want to declare this as an affirmative defense and/or a counter-claim? To this date, I've never received any written documentation from the Plaintiff regarding dates of last payment or charge-off, nor charge-off amount.  Not sure if they're required to notify me of these items.  The opposing attorney did mention it during our conversation, at the pre-trial conference, while reviewing the documentation in his file, but has never sent me anything documenting it.


 


I'm in Utah, Utah being a "Choice of Law" state, Bank of America is the OC and I would be claiming Delaware as the forum governing.  Do I now state the citations and lay out the full defense in my Amended Answer or just state that I'm claiming SOL as an affirmative defense and/or counter-claim?  


 


Do I then send the Meet and Confer requesting verification of the dates of last payment and charge-off as well.  Or just send the Amended Answer and see what response I get?


 


I do want to be procedurally correct, because I now know that's a big issue in Utah.


 


Again, my thanks for all your help!!!

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I'd send formal discovery seeking this out...

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