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Thank You All!!---A Midland Win


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Ok , so don't wait fo the judges rulig on the MET just file the MOSJ. If that is your advise why did I resend them??? I sent a copy of the green card and proof of the mailing to them. Ok , I'm just going to work on the MOSJ and forget all this other stuff

Earlier I told you I thought you were in Justice Court and when I realized you were in Superior Court, I told you to forget about resending the RFAs. You said you had already sent them by that point.

The only issue I can see with moving forward as if they are admitted is the part where the plaintiff denied receiving them. My thinking is that since you can prove they received them, you're being more than generous by giving them 10 extra days to respond. I don't have any idea how the court will look at it, but that's how I would argue it if it were me.

When you served the RFAs the first time, did you file a certificate of service with the court?

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Ok so you're even that much more covered on the RFAs. I think if they don't answer by the 10 days you should be able to safely move forward with the opposition as though they were admitted.

Again, plaintiff will say they didn't get them so in your opposition, assert that you sent them certified mail and attach the green card as an exhibit and also refer to the certificate of service.

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When I emailed everthing again I requested they send a courtesy e-mail back that they received them.  No such e-mail back. So they will now claim they NEVER received them.  Of course when I sent them I was at the library and the librarian who has helped me with the computer stuf watched while it said successfully sent. LOL

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When I emailed everthing again I requested they send a courtesy e-mail back that they received them.  No such e-mail back. So they will now claim they NEVER received them.  Of course when I sent them I was at the library and the librarian who has helped me with the computer stuf watched while it said successfully sent. LOL

I just thought of something... Did they consent to receiving the second set via email? If not they will argue that even if you did send them (I know you did - I'm playing them), they weren't sent properly.

Again, as far as I can tell, you have them dead to rights on the first set and the second round was a courtesy. If they are going to say they didn't get them, too bad. You can prove they got the first set and you were just being nice in giving them another chance.

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Their letter received after I sent the 2nd reminder notice:

 

Dear Defendants,I received your notice regarding your requests for admission. Unfortunately, my office did not receive any discovery requests from you dated, Feb xxxxx or otherwise. So, my client cannot properly respond.  Please resend the requests at your earliest conveniance and I will address them with my client.  To expedite, please feel free to e-mail them to me @.

 

My letter to them : I received your notice claiming that you did not receive my Discovery requests. As I sent them Febxxxxx and they were signed for bt your office and the green certified receipt card was returned to me, I feel that your client has decided not to respond to my discovery requests pursuant to ARCP Rule 36

 

A second notice was sent out to you on xxxxx and the due date is xxxxx. Being that is a Sunday I will give your office until Monday to provide me with the Discovery requests.

If thePlaintiff does not feel that this is enough time to answer. Plaintiff can withdraw their MSJ to give them more time.

 

Please find enclosd the copy of the certified receipt for your inspection.

Also find enclosed , Defendant's RFA,RFP, andInterrogs (abbrev)

Defendant's have e-mailed the requests , as requested by the Plaintiff to expedite responses.

 

Please send an e-mail to me @xxxxxxx to verify you received them at your office.

 

Got a copy of my MET back from court today . Judge still has not ruled??

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Their letter received after I sent the 2nd reminder notice:

 

Dear Defendants,I received your notice regarding your requests for admission. Unfortunately, my office did not receive any discovery requests from you dated, Feb xxxxx or otherwise. So, my client cannot properly respond.  Please resend the requests at your earliest conveniance and I will address them with my client.  To expedite, please feel free to e-mail them to me @.

You should be covered with this.

 

Got a copy of my MET back from court today . Judge still has not ruled??

I'm not sure what this means. How was it different from what you filed? Were there any comments with it?

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Piano Lady, Start working on the MOSJ. Post it as you get a draft and we'll help. The judge has 30 days to rule on enlargment so you may not get a ruling before MOSJ is due.

 

Just get out their MSJ and copy the format and answer each thing they are claimng with a counter claim and case law to back it up.  As Harry said , your RFA's are deemed admitted so use that as well in the motion.

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Summary judgment can (should) only be granted when there are no material issues in dispute. If you argue the SOL had expired, that's a material issue. If you argue their evidence is not admissible, that's a material issue. If you argue their affiant doesn't have personal knowledge, that's a material issue. If you argue they aren't contractually entitled to interest, that's a material issue. The only way they can (should) prevail on summary judgment if you make all of those arguments is if the judge decides the SOL had expired, their evidence is admissible, they are contractually entitled to the interest they claim and the affiant demonstrated personal knowledge. If the judge is unconvinced on even one of those things, you are entitled to a trial on whatever remains in dispute (as long as it's a material issue).

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Another win in AZ Court of Appeals.

Quotes the Allen case

Non-Citable but the ideas can be used and it was a unanimously decision

Reversed and Remanded back to Superior Court

Other issues but key was affidavit of Citi was inadmissible hearsay

 

CITIBANK NA, Plaintiff/Appellee,

v.

RICHARD L. BARRETT, Defendant/Appellant.

 

No. 1 CA-CV 13-0434.

Court of Appeals of Arizona, Division One.

 

April 17, 2014.

 

Key point on footnote 2:

 Barrett also argues the credit card statements on which Citibank's motion was based are inadmissible hearsay that do not fall within the business-records exception to the hearsay rule. See Ariz. R. Evid. 803(6)(A). We agree; the Shepherd affidavit did not provide evidence that the statements were "made at or near the time by — or from information transmitted by — someone with knowledge." See Ariz. R. Evid. 803(6)(A).

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Without seeing what you asked for in your roggs and RFPs, it's hard to know if their responses are helpful to you or not.

As far as the RFAs go, 2, 4, 6, 7 and 8 are definitely helpful. I'd love to explore their "personal knowledge" of 10-13. Did you get a ruling on your motion for enlargement of time yet? Hopefully it's enough time for you to send some more roggs to get to the bottom of 10-13.

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Is this a FDCPA violation??/ They sent this to me a couple days AFTER the complaint was filed. I believe LD-50  got a similar letter..

I would say it's false and misleading to the least sophisticated consumer but if you're shifting gears into counterclaim mode, you have to talk to a lawyer. There's a lot to sort out at this stage.

My opinion is you SHOULD talk to a lawyer, by the way.

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Without seeing what you asked for in your roggs and RFPs, it's hard to know if their responses are helpful to you or not.

As far as the RFAs go, 2, 4, 6, 7 and 8 are definitely helpful. I'd love to explore their "personal knowledge" of 10-13. Did you get a ruling on your motion for enlargement of time yet? Hopefully it's enough time for you to send some more roggs to get to the bottom of 10-13.

Edit: include #3 in that list as well. They admitted they have no personal knowledge of the account and that they won't call anyone from the OC but then said they will call a witness with personal knowledge. Curious how that will go down. Who did they disclose as possible witnesses in their initial disclosure statement?

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I uploaded the RFA's etc... in my post 111. In disclosure they called no witness. Trying to see how I can use these as deemed admitted in my MOSJ.  Should I send the judge a copy with the CMRRR

Got it.  I'll take a look later this afternoon.

 

I don't think you can have them admitted.  They answered, albeit late, but they will argue you gave them more time.

 

Hopefully the judge grants your motion for extension of time, but if not, their admissions to 2, 3, 4, 6, 7 and 8 should be enough to preclude them from winning their MSJ.  The rules say affidavits must be made on personal knowledge.  If they have no personal knowledge of some of the main issues in dispute, they shouldn't be able to win an MSJ.  From there you can send them some more interrogatories to dig into why they denied 3 and 10-13.

 

By the way, I'm not saying the judge won't grant the MSJ.  I'm saying I don't think he should.  But he could.

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Should I send a copy of the interogs to the judge as exhibit in my MOSJ???? Along with the cmrrr of the first sent rogs in Feb?? Have to file it this afternoon.

Yes. Attach the answers to the discovery requests as an exhibit to your statement of facts. You can also attach the return receipt if you're going to argue their RFAs are admitted.

If you already filled it and need to change it you have a few days to file an amended pleading.

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