Request for Admissions - Help needed please...

[TX1983]

I want to make sure I answer the "Request for Admissions" correctly.  I've serached and viewed others on the site but want to be dilligent with my response.

 

Do I just Response with Deny or

Response: 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.

 

 

 

 

Here's are a few of the Admissions questions I need to answer.

 

The Plaintiff (or Plaintiff’s predecessor in interest) entered into a contract with Defendant.

 

Based on Defendant’s Request, Plaintiff or Plaintiff’s predecessor in interest opened an account.

 

Plaintiff is the owner of the indebtedness on the Account

 

Plaintiff (or Plaintiff’s predecessor in interest) and Defendant entered into an agreement to create an account for credit.

 

Thank you,

 

TX1983

[Spikey]

If you can outright deny something and not perjure yourself, then do it. The insufficient information answer is appropriate when their evidence is lacking and you can't determine an answer.

 

All the admissions you listed will likely fall under the insufficient information answer depending on what evidence they've sent you.

[TX1983]

Spikey - thanks for replying.  No evidence was sent with the summons.  Only a reference to the account # from the OC.

[shellieh98]

I would use the insufficient information one, you are stating the denial, and they have to provide the proof to you before you can admit.  If you outright deny, you may be required to prove it.

[TX1983]

Thanks @shellieh98 for the reply.  I do have one question.  It's for a response to the following Request for Disclosures question. 

 

The summons states, Suit on Open & Stated Account/Debt/Breach of Contract

 

C: The legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial)

 

Will the following response be sufficient?

 

Response:The Plaintiff has failed to state and cannot prove a claim on an account, either open, stated or under TRCP Rule 185, because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s).
The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract.

 

Thanks

[Huey Pilot]

Read you State Rules for Civil Procedures regarding responses. The rule of thumb is Object to and Deny everything but your name and address.  Less is more! Even if you have to fight it later you are costing the Plaintiff time and money making you a less likely target to sustain the action. One of our Oregon Posters admitted just one thing and the Plaintiff filed a motion for summary judgment (MSJ) and won. 

 

HP

[shellieh98]

you don't need to put all that.  just state the information is insufficient for you to admit or deny, so you deny.  That is your defense right now.  relating to " responding party’s claims or defenses"

[BV80]

@TX1983

 

Response:The Plaintiff has failed to state and cannot prove a claim on an account, either open, stated or under TRCP Rule 185, because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s).

 

The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract.

 

 

 

Did you have the account with the OC?  

 

The TX Court of Appeals has ruled that:

 

 The common law claim for account stated differs from a suit on account which requires personal property or services be provided by the creditor to the debtor. TEX.R. CIV. P. 185. A suit on account is not a proper tool for credit card collection. Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212, 216 (Tex.App.-Texarkana 2005, no pet.) (credit card not a sworn account because no title to personal property passes from the bank to the cardholder).

 

But remember they've also claim a stated account (account stated).

 

As far as breach of contract is concerned, if they've provided no evidence, then they haven't yet proven the existence of a contract between you and the OC.   In your response, you stated "the original contract between the Defendant and the card issuer".  That implies that there was an agreement between you and the OC.  You don't want to do that.

 

If I were the one being sued and no evidence had been provided so far, I would keep my response simple.

 

"Plaintiff has provided no evidence that supports its claims for Suit on Open & Stated Account/Debt/Breach of Contract."

[racecar]

Court junk up here

 

DEFENDANT’S RESPONSE TO ADMISSIONS

To: Bank Name, through its attorney, Attorney name and Address.
 

The Defendant makes the following response to the Requests for Admissions

 

 

 

1.The Plaintiff (or Plaintiff’s predecessor in interest) entered into a contract with Defendant.

Response: 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.

 

2.Based on Defendant’s Request, Plaintiff or Plaintiff’s predecessor in interest opened an account.

Response: 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.

 

3.Plaintiff is the owner of the indebtedness on the Account

Response: 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.

 

4.Plaintiff (or Plaintiff’s predecessor in interest) and Defendant entered into an agreement to create an account for credit.

Response: 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.

 

Respectfully Submitted,

your name

your address

phone
 

 

Certificate of Service

 

 

Verification
Before me, the undersigned notary, on this day personally appeared "My Name" a person whose identity is known to me. After I administered an oath to him , upon his oath, he "My Name" said:
My name is "MY Name". I have read the responses contained in this document. The facts stated therein are within my personal knowledge and are true and correct.
 

[shellieh98]

racecar to the rescue as usual.

[TX1983]

Thank all!!  I truly appreciate the advice. Is Verification required for response to the Requests for Admissions?

[TX1983]

I’ve completed my responses for “Request to Admissions” and Request for Disclosure”.  I’m not sure it’s wise or not to post them on the form.  My goal is to mail to the attorney and submit to court tomorrow.  I just want to make sure my ducks are in a row and have a couple of questions.

 

1.  Do I sign my signature under “Respectfully Submitted” for both the “Response Request to Admissions”, “Response to Request for Disclosure”, or just sign the Certificate of Service for each? 

2.  I haven't submitted a Request for Production to the plaintiff, If anyone has a good example and can share.  I’m planning on creating it tonight. 

3.  Can I mail the “Response Request to Admissions” , “Response to Request for Disclosure” and “Request for Production”  in the same envelope or should I mail them separately to the Plaintiff/Attorney and court?

 

 

CERTIFICATE OF SERVICE

 

 

 

On August xx, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

 

Attorney Name

Address

 

By Certified Mail, Return Receipt Requested By U.S. Mail #

 

 

Respectfully Submitted,

__________________________ 

 

Date:___________________

[BV80]

@TX1983

 

When I was sued, I followed the format of the JDB's complaint and discovery requests and did whatever their attorney did.  If they signed a document in a certain place, I did the same thing.

 

I don't think it would be a problem for you to include all of your responses in the same envelope.   Check your rules about filing the responses with the court.  In my state, we don't file discovery requests or responses with the court.

[Spikey]

There's one county here that has special requirements for responding to a Request for Admission. So you need to check both the local court rules as well as the state rules.

[shellieh98]

yes sign both places, one showing you did the admissions, and the other affirming you mailed them to the attorney.  here is a production list if you want to redact to fit your needs.

 

Request for production of documents

 

Your Caption for the case

 

Under that  the statutory language for the request(look at plaintiffs request and recycle their useage)

 

DEFINITIONS AND INSTRUCTIONS

 

            The following definitions and instructions apply throughout this request for identification and production, unless the context clearly indicates otherwise:

 

A. This request requires that you produce all writings responsive to any of the following numbered requests which are in your possession or control or subject to your control, wherever they may be located. The writings which you must identify and produce include not only writings which you presently possess, but also writings which are in the possession or control of your attorneys, accountants, bookkeepers, employees, representatives, or anyone else acting on your behalf.

 

B. If you prefer, you may produce all writings which are responsive to any of the following numbered requests by delivering copies of all such writings on or before the thirtieth day following the date of service of this request to: <your name>., <your address>

 

C. All writings which are responsive in whole or in part to any of the following numbered requests shall be produced in full, without abridgment, abbreviation or expurgation of any sort. If any such writings cannot be produced in full, produce the writing to the extent possible and indicate in your written response what portion of the document is not produced and why it could not be produced.

 

D. The term "writing" as used in this request for identification and production is a broadly inclusive term referring to any and all written or other graphic material, however produced or reproduced, of every kind and description and to everything upon which sounds, words, symbols or pictures are recorded or depicted by magnetic or electrical impulse, photography, or otherwise. The term "writing" includes, by way of example and not limitation, the following and anything similar to any of the following:

 

1. Letters, telegrams, telexes, cables, TXWs, memorandum, interoffice correspondence and other forms of correspondence and written communication;

 

2. Agreements, contracts, policies, handbooks, practice guidelines, reports, studies, records, books, journals, papers, statements, pamphlets, circulars, publications, stenographic notebooks, files and their contents, file folders, file covers, file jackets, and notes;

 

3. Summaries, abstracts, indexes, tabulations, graphs, charts, lists and inventories;

 

4. Calendars, desk calendars, appointment books, schedules, logs, telephone messages, diaries, time sheets, minutes of meetings, and transcripts;

 

5. Financial statements, checks, invoices and accounting records and books;

 

6. Pleadings, deposition transcripts, trial transcripts, interrogatories, answers to interrogatories, affidavits, declarations, papers filed or lodged with courts, and papers filed with or sent to administrative agencies.

 

7. Tape recordings, sound reproductions, objects, photographs, motion pictures, microfilm, computer data stored on magnetic tape, computer printouts, data processing cards or tapes, and computer disks or diskettes.

 

E. You are required to produce not only the original or an exact copy of the original of all writings responsive to any of the following numbered requests, but also all copies of such writings which bear any notes or markings not found on the originals and all preliminary, intermediate, final and revised drafts of such writings.

 

F. It is not intended that this request require production of any writings which are privileged. If you are not producing any writing responsive to any of the numbered requests below on the basis of a claimed privilege, or for any other reason, state the following information:

 

1. Describe the writing with specificity;

 

2. Identify the privilege claimed or other reason why the writing is not produced;

 

3. State the names and capacities of all persons who participated in the preparation of the writing; and

 

4. State the names and capacities of all persons to whom the document was circulated or its contents communicated.

 

G. Plaintiff _______________. is referred to in this request for identification and production as "Plaintiff."

 

 

 

DEMAND FOR PRODUCTION OF DOCUMENTS

 

1. The complete contents of records, paper and/or electronically stored data, relevant to the alleged account ending in xxxx from _________________________..

 

2. The complete Credit Card Account Purchase Agreement dated  xx/xx/xxxx between [name of original creditor] and [name of jdb] include any attachments, exhibits, and/or appendices to same.

 

3. All contracts, agreements, and/or applications for credit signed by “my name”, pertinent to the alleged account ending in XXXX.

 

4. All writings concerning failure of “my name” to make payments to [name of original creditor] on the alleged account ending in XXXX.

 

5.   Produce each agreement / terms and conditions you contend was offered to and accepted by the defendant, including but not limited to the original account agreement, any amendment to the agreement, any notice of a change in any term of the agreement, or any schedule of interest rates or fees applicable to the alleged account ending in XXXX from (date it says you opened the account) to the present.

 

6.  Plaintiff alleges account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff, Produce the document that will be used to introduce into evidence that identifies this account as an account stated account.  (use this if one of the causes of action was account stated)

 

7. All copies of checks, money orders and/or writings from “Plaintiff’s assignor/s” showing any and all payments made by Defendant.

 

8.  For each document listed below that was delivered to the defendant, please produce all documents indicating the date the document was delivered and the manner in which it was delivered, including, if the document was delivered by the Postal Service or other courier, the location to which it was addressed and whether the document was returned undelivered:

             a. The original account agreement for the account.

             b. Any amendment to the agreement for the account.

           c. Any notice of a change in any term of the account, including but not limited to a change in the rate of interest or amount of any fee applicable to the account.

             d. Any schedule of interest rates or fees applicable to the account.

             e. Any credit card issued in connection with the account.

             f. Any statement of payments, charges, fees or interest for the account.

 

9.  For each document you have produced that you contend applies to the account and that does not contain some piece of the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature:  Please produce every document containing information from which it may be determined whether the document applies to the account.

 

10. Produce a list of debits and credits from the opening of alleged account, to the last closing statement that will be used to identify an open book account.  .(use if cause of action is on open book, money lent or received)

 

11. Produce documents relative to the purchase of the alleged account at issue to include electronic mail, Electronic word processing correspondence, electronic database files. Meta data associated with alleged account parameters and any written correspondence between plaintiff and the alleged assignors to the alleged account. electronic data files are to be produced in a windows readable format or a program for file translation on CD-R media.

 

12. Any documents, electronic mail, text messages, or any other form of communication between; <Process server name>; <Company he works for>.; and Plaintiff's counsel or employees concerning the alleged account ending in XXXX.

 

13. Produce documents related to employee training in the processing of alleged accounts including the entering of data from the alleged assignor, processing through the storage system, updating or changing the electronic data, adding data to the computer system, changing TIFF information using computer image processing programs, and destruction of documents procedures in use for the past 5 years.

 

14. Produce any documents Plaintiffs relied on in the review of the Complaint which formed the basis for the alleged Causes of Actions plead in the complaint.

 

16. Documents responsive to the active status in the state of incorporation or formation of [name of jdb] 

 

17. Produce a list of  terminated or discharged employees within the last 5 years. The list can be in Microsoft Excel® format.

[TX1983]

Thanks everyone for the great advice…

Can I Certified U.S. Mail to the Attorney today and submit the same documents to the court Monday? I’m not going to have time today to go by the Court house before they close. 

 

Also, I have been receiving random calls from phone numbers I do not recognize.  I’m assuming it’s the Attorney or associates with the law firm.  I’ve been ignoring them.  Should I answer the calls?

[Spikey]

@TX1983 They're probably trying to get you to settle. If they don't leave a message, then I don't consider it all that important.

[TX1983]

They have left a couple of messages basically stating who they are and asking me to contact them back..

[Spikey]

@TX1983 I would only speak with the lawyer's office and only the lawyer directly not his secretary or some other flunky.

[TX1983]

Can I Certified U.S. Mail to the Attorney today and submit the same documents to the court Monday? I’m not going to have time today to go by the Court house before they close.

 

I don't have to mail "Certificate of Service" document to the Attorney just submit a Certificate of Service to the court?

 

If the Plaintiff has not asked me for Request for Production of Docments, I should still Request from them?

[TX1983]

*bump*

[BV80]

Did you check your rules to see if discovery requests and/or responses should be filed with the court?