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Request for admissions - didn't receive them


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I have an ongoing case with Midland and I found out today that they had sent request for admissions (Discovery questions) by certified mail. Unfortunately our mail service here is really crap and they don't knock on your door, they just stick the piece of paper telling you to collect it inside all your junk mail and apparently I didn't see the piece of paper before trashing my junk mail.

So long and short I didn't know about this until they file a summary judgement, which shows the certified mail item being returned to them.

They are using the no reply to discovery means admission of everything.

 

What should I do ... I know I need to object to summary judgement, but regarding the discovery questions is their something in law which I can stipulate to show the judge I have not admitted just cos I didn't receive?

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In my experience the other side never sent anything to me cmrrr. Ever. You might file a motion to continue discovery based on the fact you have complied with everything up to this point. Answer etc... You have right?? And send a copy to the other party asking for them to resend the RFA to you.  Then I would work up a killer MOSJ with our help. But is there anyone from your state on here who can chime in on this with case law?

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This is what I had put together:

OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT

 

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

COMES NOW, XXXX XXXX, Defendant in the above styled and numbered cause,

and hereby submits its Opposition of Motion for Summary Judgment.. The basis for this Motion are set forth below.

 

FACT:

 

Plaintiff has not provided evidence of a contract or agreement alleged in Complaint

Plaintiff's requests for disclosures was never received by defendant as can be seen from their submitted documentation of the USPS records. The certified mail was returned to them June 20th 2013.

 

ARGUMENT:

 

*Plaintiff has not submitted any evidence of an alleged contract between CHASE BANK and Defendant

Plaintiff's Exhibit 'A” does not contain evidence to show Plaintiff purchased the alleged account from Chase Bank. The Exhibit provides that Plaintiff purchased a pool of undisclosed accounts, therefore Plaintiff has no legal standing of alleged debt.

 

*References in Case Law to substantiate evidence of contract:

In Williams v. Unifund CCR Partners Assignee of Citibank, No. 01-06-00927, 2008 WL 339855 (Tex. App.- Houston [1st Dist.] February 7, 2008, no pet.), the First Court of Appeals held that a creditor failed to establish the existence of a contract when it failed to produce “the actual agreement or any other document that established the agreed terms, including the applicable interest rate or the method for determining the applicability and amount of finance charges."

In Wal Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App._Houston [14th Dist.] 2002, no pet.). To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). The material terms of a contract must be agreed upon before a court can enforce the contract. An applicable interest rate is a material term.

 

 

CONCLUSION:

Defendant prays the Motion for Summary Judgment be denied based upon the above arguments that Plaintiff has not provided evidence of a contract or evidence of legal standing

 

Thoughts?

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ARGUMENT:

 

*Plaintiff has not submitted any evidence of an alleged contract between CHASE BANK and Defendant

Plaintiff's Exhibit 'A” does not contain evidence to show Plaintiff purchased the alleged account from Chase Bank. The Exhibit provides that Plaintiff purchased a pool of undisclosed accounts, therefore Plaintiff has no legal standing of alleged debt.

 

*References in Case Law to substantiate evidence of contract:

In Williams v. Unifund CCR Partners Assignee of Citibank, No. 01-06-00927, 2008 WL 339855 (Tex. App.- Houston [1st Dist.] February 7, 2008, no pet.), the First Court of Appeals held that a creditor failed to establish the existence of a contract when it failed to produce “the actual agreement or any other document that established the agreed terms, including the applicable interest rate or the method for determining the applicability and amount of finance charges."

In Wal Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App._Houston [14th Dist.] 2002, no pet.). To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). The material terms of a contract must be agreed upon before a court can enforce the contract. An applicable interest rate is a material term.

 

 

CONCLUSION:

Defendant prays the Motion for Summary Judgment be denied based upon the above arguments that Plaintiff has not provided evidence of a contract or evidence of legal standing

 

Thoughts?

@enginama1 - You didn't bring up any thing about lack of standing due to a defect in the Chain of Custody, can you add that?

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Without seeing their MSJ  I could not say if what you have is correct.  You have to follow line by line to theirs and attach each of their claims.  Before your case law you should have a heading Memorandum of law.

 

If it were me I would go ahead and call their secretary and see if she will fax their requests to you. I would respond to them even though you were late.

 

Your MOSJ is what you have to show the judge that this will what you have to bring to an appeal if necessary.

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So actually they kindly included a copy of their requiest for admissions as evidence in the summary judgement. So I guess I should respond to those questions and include it with my MOSJ ?

There's 26 questions and they start off with Plaintiff properly named Defendant in Plaintiffs original Petition. I answer Admit to that...cos its just asking did we name you correctly?

The next 25 questions refer to a contract and terms of contract between defendant and chase bank. As we didn't actually open the account with chase bank and it does state we entered into a contract with chase bank on xx date.

I assume we say "Deny, as Defendant has no knowledge of a contract or agreement with Chase Bank' to all the questions which talks about a contract and for questions about statements and payments I assume we say DENY, as Defendant has no records to substantiate the statement.

 

A little help on what to say what not to say would be great.

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Actually never mind on all the questions I found a post on it respond with "The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response."

 

So it's ok to answer with ADMIT when they ask 'Plaintiff properly named Defendant in Plaintiff's original petition' ? Or is there a catch?

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Now, I just came across that the SOL with CHASE Bank would be 3 years as they are incorporated in Delaware. ( this alleged debt will be 4 years since last activity in December this year)

So does the SOL apply to the issuer's state or the alleged debtors state ? I have come across differing opinions but nothing solid like a texas case to use.

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Wow , alot of stuff to answer. I would for sure answer their questions. I would not admit to the first one if you denied in your answer they were the proper party to sue you.  I don't know what you put in your original answer. Sol is the state you are in. Arizona is wierd because they amended the sol from 3 years to 6 years 7/20/11. So it was grandfathered if you made your last payment 3 years before that date it was out of Sol. Check your state laws on choice of law or PM someone from Texas to give you help on SOL.

 

You do not include the answers to request for admissions in your MOSJ. That is between the parties. If you never opened an acct with Chase that is what the admin is talking about . No proof of chain of command or forward flow. Try to find some Texas case law to support this.  You should post their MSJ so we can help you.  I think it is weak so far.

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@hot in az

 

What I meant on the SOL is that Chase bank put Governing Laws clause in their credit card agreements going back to 2005 that governing laws would be State of Delaware - location of card issuer, not location of card holder.

State of Delaware is 3 Yr's on SOL. So this says to me they are time barred, unless there is something obvious I am missing.

 

Source of card agreements: http://www.cardmemberagreements.org/chase-bank/

GOVERNING LAW
THE TERMS AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND, TO
THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE, WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE,
WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT

 

Source: http://delcode.delaware.gov/title10/c081/index.shtml
TITLE 10
Courts and Judicial Procedure
Limitation of Actions
CHAPTER 81. PERSONAL ACTIONS

§ 8106. Actions subject to 3-year limitation.

(a) No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.

§ 8108. Mutual running accounts.

In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current.

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I guess without seeing your whole thread about was has occured up to now and your date of last pmt etc. it's hard to follow what has occurred previously. If you believe you are out of SOL file a motion to dismiss the case based on that.

Maybe someone your state will help here.

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