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Asset Acceptance/Gurstel Chargo MN


DaBrks
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I was advised to begin a new topic so I could get help specific to my case.

In mid August I received a summons from Gurstel Char go on behalf of Asset Acceptance for a First Bankcard account.

On August 29th I sent Answer and Defense and Defendants Discovery Requests to Plaintiff. I also enclosed a letter stating I am unemployed with benefits expiring on October 3rd and Minnesota statutes do not allow them to garnish them.

August 31st I received a letter asking me to prove my unemployment to which I sent a copy of my unemployment statement.

Yesterday I received a letter which is asking me to contact them or sign the Discovery Plan. Also included was a settlement offer for 15k.

I have read the Minnesota Rules of Civil Procedure but am really at a loss as to my next move. I only have 13 more days to figure it out.

My biggest question is....didn't I already ask them for discovery with my original documents? If not how should I respond to this request for a discovery plan?

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OK, first of all, you have no money what so ever so contacting them would be futile.

It also sounds like they do not care that you are collection proof and intend to proceed anyways so you will have to proceed too. Since you are unemployed, you should have plenty of time to learn this.

Without seeing the document, I am assuming it is a schedule on how discovery will proceed with deadlines for the various discovery stuff. If you post it online, other can chime in as to whether you should sign off on it or propose changes. Either way, make sure to send it back CMRRR so that you can prove they got it.

I would also prepare for discovery. When you filed you answer, that was simply an answer to complaint. If you send a discovery request with the answer, you probably should not have done so and once the schedule is all dealt with, should send it again. If you search the forums, you should be able to find what they need to prove their case and that is what you ask for. They will also send you discovery requests. Again, posting those will help others guide you on how to answer.

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I am only typing out the meat of the 5 pages. I only have access to a tablet so it would take a month to type it all out.

This letter is written in compliance with the MN Rules of Civil Procedure, Rule 26.06 and the Man Rules of General Practice for the District Courts, Rule 115.10. As such this letter is written in an effort to confer on a discovery plan and also to discuss settlement.....

1) Contact our firm within the next 14 days to works out a discovery plan. An attorney can be reached by calling 763-xxx-xxxx.

2). Send us a letter within the next 14 days listing your contact information. An attorney will then attempt to reach you to discuss a discovery plan.

3). If you do not wish to collaborate on a discovery plan, attached is a proposed plan we have formulated after reviewing the file. If acceptable please sign and return to our office. If we do not hear from you within 14 days we will assume the attached plan is acceptable and will present it to he Court when, and if, the case is filed.

Settlement offer of 15k is made, payable in a lump sum.

The document for my signature lists pursuant to Rule 26.06 ©.....

1) Plaintiff will provide its 26.01 (a) Required Disclosures on or before Oct. 29, 2013. Plaintiff proposes Defendant provide her 26.01 (a) Required Disclosures as soon as possible.

2). Discovery will be need on any denial, dispute, or defense claimed or asserted by Defendant. Discovery should not be conducted in phases, but should be limited to the issues raised in Plaintiff's Complaint and Defendants Answer.

3). Any of Plaintiffs electronically stored information can be reproduced in hardcopy format.

4) Parties may claim privilege of or protection of trail preparation materials at the time of production. If a party disagrees with a designation, the disagreeing party must object to the designation within 14 days of receiving the document. If the parties are unable to resolve a designation dispute, the parties may petition the court for a determination.

So, this is the basics of the request...it sounds to me like they want me to show them what I have first before deciding what to do about the case. What is the best response to this?

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answer these questions.  I will post in the next thread a request for documents for you to send to the plaintiff, and we will go from there. :)

 

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state? 

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt? To find out: 

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

17. Read this article: 

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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here is a list of documents to request.  you need to put it on pleading paper for your state, send a copy to the plaintiff, keep one for your self, and check your rules if you need to file a proof of service to the court, you do not need to send the requests to the court.  mail them certified return receipt requested to the plaintiff.

long list of demand for documents.docx

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Again, I am working with a tablet so be patient....I tried to copy the questions into this reply but it didn't work.

1. Plaintiff - Asset Acceptance LLC

2. Law firm - Gurstel Char go

3. Amount - 16k (offered settlement of 15k)

4. OC- First Bankcard

5. Served? Yes

6. How Served? In person at home.

7. Legal service? Yes

8. Correspondence before sued? A few letters and settlement offers

9. State/County - Minnesota/Anoka County

10. Last time paid on account - July, 2012

11. SOL? 6 years

12. Status? MN is a pocket docket state, I have been served a summons and replied. Nothing filed with court yet.

13. Disputed with credit bureau? No

14. Did you send DV before suit filed? No, they sent one to me without my asking. It contained 6 months of card statements.

15. How long do you have to respond? 20 days, which I have submitted an answer. Discovery Plan (latest document) 14days. No interrogatory questions received.

16. Evidence with summons? No, only the 6 months of statements with DV letter.

Whocares 1000 said I probably shouldn't have sent discovery with answer. Is my response to the Discovery Plan to send the long list of discovery that shellieh98 provided?

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OK, on the discovery plan, I would change 2 things:

1) I would change the dates to this:

A) All discovery requests will be sent to the other party by 29 October 2013

B) All responses to the discovery request will be done by 28 November 2013

C) Any meet and confer on differences on discovery response will occur by telephone on 12 December 2013 at a time convenient to both parties

D) If there are any disagreements after the meet and confer, they will need to be dealt with by the case judge when the case is filed

2) Add to the statement that plaintiff will provide discovery materials for each assertion in their complaint that the defendant did not agree to in their answer. Plaintiff will also provide discovery that will be used to prove the debt is valid under Minnesota Law

I would keep everything else in the plan. Also, add you contact information when you send the plan back BUT inform them that you will only speak to the lawyer handling the case.

Once that is sent and both of you agree to the discovery plan, that is when you send your discovery requests (including those you have been told about by other users). Take the time to research this site as there is information here which tells you what must be used to prove a debt in Minnesota and hold the other party to that in your requests.

Finally, if the meet and confer do not work, type up your motions but keep them close to vest until the case is filed with the court. Let them file the case as they cannot do anything to you until they do (in other words, you are holding the winning hand for the time being as the shown cards have not been dealt yet).

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You can do that or on the document, you cross out the paragraphs and add you own and see if they agree. If not, there will need to be a meet and confer. What you want is that both parties are on equal footing when it comes to discovery. One side cannot force the other to divulge first. If they argue that you are unreasonable, tell them to file with the court and let a judge decide.

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Here is the document I prepared in response to the Discovery Plan....any suggestions are welcome.

 

STATE OF MINNESOTA                         DISTRICT COURT

COUNTY OF ANOKA                        TENTH JUDICIAL DISTRICT
_____________________________________________________________________________________

                            Case Type:  Consumer Credit Contract
Asset Acceptance, LLC,
            Plaintiff,            RULE 26.06 c  DISCOVERY PLAN
                    vs.            REVISED

ME,
            Defendant
_____________________________________________________________________________________

TO:  AMY L. BLOWERS, C/O GURSTEL CHARGO, 6661 COUNTRY CLUB DRIVE, GOLDEN VALLEY, MN 55427

    Pursuant to Rule 26.06© of the Minnesota Rules of Civil Procedure, the parties submit the following revised Discovery Plan:

(1)  Plaintiff will provide its 26.01(a) Required Disclosures on or before October 29, 2013.  Plaintiff proposes Defendant provide his/her 26.01(a) Required Disclosures as soon as possible.  Defendant will respond to the discovery request by November 28, 2013.

(2)  Meet and confer regarding differences on Discovery response will occur by telephone on December 12, 2013 at a time convenient to both parties.  Any disagreements arising after the meet and confer will be addressed by the case judge when the case is filed.

(3) Discovery will be needed on any denial, dispute, or defense claimed or asserted by Defendant.  Plaintiff will provide Discovery materials for each assertion in the complaint that the defendant did not agree to in the Answer.  Plaintiff will also provide Discovery that will be used to prove the debt if valid under Minnesota law. Discovery should not be conducted in phases, but should be limited to the issues raised in Plaintiff’s Complaint and Defendant’s Answer.

(4)  Any of Plaintiff’s electronically stored information can be reproduced in hardcopy format.

(4)  Parties may claim privilege of or protection of trail-preparation materials at the time of production.  If a party disagrees with a designation, the disagreeing party must object to the designation within fourteen days of receiving the document.  If the parties are unable to resolve a designation dispute, the parties may petition the court of a determination.

(5)  No changes should be made to the limitation on discovery imposed under the Minnesota Rules of Civil Procedure or Local Rules.  Plaintiff does not propose any other limitations.

(6)  The above schedule can be revised for additional Discovery requests if the initial Discovery materials lead to the need to request new materials.

(7)  The court need not issue any other order under Rules 26.03, 16.02 and 16.03 at this time.

Dated:  This _____  day of ________________, 2013    GURSTEL CHARGO PA

                             By________________________________
                            Amy L. Blowers
                            Attorney for Plaintiff


_____________________________            _________________________________
Date                           

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For (1):

Plaintiff and defendant will provide its 26.01(a) Required Disclosures on or before October 29, 2013.  Plaintiff proposes Defendant provide his/her 26.01(a) Required Disclosures as soon as possible.  Plaintiff and Defendant will respond to the discovery requests by November 28, 2013.

 

This sets the schedule for both sides and makes it equal.

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  • 4 weeks later...

On Oct. 4th I sent the above to Gurstel Chargo CMRR.  Yesterday I received a document entitled "Required Initial Disclosures".  Attached to the document is one month of credit card statement.  I assume this is in response for my request for discovery but it doesn't say anything other than the response "These entities may have information regarding the facts alleged in the Plaintiff's Complaint and Defendant's Answer" to the following responses:

1.  Plaintiff, available through counsel, Gurstel Chargo.

2.  Defendant address and telephone number know to Defendant.

3l. Plaintiff's predecessors in interest, addresses and telephone unknown.

4. Defendant's financial institutions, addresses and telephone numbers know to Defendant.

5. Various merchants, addresses and telephone numbers unknown.

 

I am not sure if I need to respond with Discovery questions at this juncture and what exactly this means.  By the way, they never returned a signed copy of the revised Discovery Plan...does this mean anything?

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I would send your questions ASAP and if they are suing using only one credit card statement (which probably does not show any charges or computations), I would ask for the rest of them because MN requires an accounting from 0 balance to prove account stated.

The 2 things you ask for are a signed contract (proves contract) and an accounting from 0 balance (proves account stated). If they have neither, they really don't have a case, no matter what the amount it. If they are a JDB, also need to request chain of ownership to the original creditor (whose name should be shown on the suit).

Get your questions, admissions, and requests for documents out as soon as possible. They are trying to play with you at this point and you need to show you are serious.

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@WhoCares1000

 

 

The attorney provided one case that would lead one to believe that an accounting from a -0- balance is required.  He stated:

"More recently, the Minnesota Court of Appeals emphasized that the statement of account must contain a description of every charge to be included in the account as stated."  The case was American Druggists Insurance v. Thompson Lumber Co.(Minn.Ct.App.1984).  Here's what he cited in the footnotes from that case:  (rejecting creditor’s claims to compound interest where compound interest is notmentioned in invoices).

That doesn't require a every credit card statement that shows every charge and payment.  Also, the attorney doesn't make that claim.  If you read the American Druggists case along with the footnote, you see that the dispute was based upon the fact that interest had been compounded on the balance, but none of the invoices indicated that compound interest was to be included.

Also, the attorney points out that if one retains a statement for a period of time without objection, one is assumed to have agreed to the balance.   He provides numerous case law to support that contention.

Check out the following cases:


Citibank (South Dakota), NA v. Otto, Minn: Court of Appeals 2008

 An account stated is a manifestation of an agreement between a debtor and creditor that a stated amount is an accurate computation of an amount due. Id. The retention of a statement of account without objection for more than a reasonable period of time demonstrates debtor acquiescence, implies a promise to pay the balance owed without further proof, and operates to create an account stated. Meagher v. Kavli, 251 Minn. 477, 487, 88 N.W.2d 871, 879 (1958). An account stated constitutes prima facie evidence of the liability of the debtor. Erickson v. Gen. United Life Ins. Co., 256 N.W.2d 255, 259 (Minn. 1977).

In February 2007, the outstanding balance on the account was $5,491.50. Based on the evidence, appellant retained the statement of account for approximately three years, which constitutes a reasonable amount of time. See Meagher, 251 Minn. at 487, 88 N.W.2d at 879. This demonstrates that appellant acquiesced to the statement of account, a promise to pay the balance incurred since June 2005 without further proof was implied, and an account stated has been created. Id. Therefore, respondent has presented prima facie evidence of appellant's liability. See Erickson, 256 N.W.2d at 259.



Discover Bank v. Johnson, Minn: Court of Appeals 2013


1. Account stated

Discover Bank sought to establish an account stated by submitting Stetyzie's affidavit together with a copy of the parties' credit-card agreement and various monthly billing statements on Johnson's account. These documents establish that Johnson obtained credit extensions from the bank and made multiple partial payments on his credit-card account and that billing statements to which Johnson never objected were sent to him on a monthly basis. Based on the record, the district court properly concluded that Johnson "assented to the correctness of the account statements," establishing that an account with a stated debt existed between the parties.

In neither of the previous cases did the court indicate that a complete accounting was necessary to prove an account stated claim.  

However, it is also not indicated that the consumers denied the balance and denied receiving the billing statements.  Whether or not one can do that would depend upon what is shown on the billing statements and what could be proven if the plaintiff motioned to compel one's bank records.  If billing statements provided by the plaintiff show no charges and payments, one could possibly dispute the balance in an affidavit.

 

In Nelson v. FIRST NATIONAL BANK OMAHA, (Minn: Court of Appeals 2004), the court stated:

 

Here, FNB Omaha failed to produce a credit-card agreement signed by appellant or any other evidence establishing appellant's assent to the Visa and Mastercard accounts. FNB Omaha's production of an unsigned cardmember agreement and numerous billing statements bearing the names of both appellant and Tara Nelson fails to establish that a genuine issue of material fact does not exist as to the parties' mutual assent, particularly when countered by appellant's sworn statements, which deny that he (1) had personal knowledge of these accounts; (2) applied for or accepted these credit cards; and (3) agreed to pay any amount.[1] Without more, appellant's name on an account, when considered along with his denial of mutual assent, fails to establish the existence of an account. Thus, when viewed in the light most favorable to appellant, the record fails to establish a necessary element for liability under the doctrine of account stated.

 

The consumers in that case denied ever opening the account.   One can't always do that, but you see the importance the court placed on an affidavit that counters the claims made by a creditor.

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I will sent another copy of my Discovery, Interrigories etc. tomorrow. I did send this on August 13th but several posters said it was too soon. The document was prepared by an attorney back when I could afford one. I can attach the document but it is 10 pages. If you feel it would be helpful I will be happy to do it.

Do you think it wise to include a letter which states for the third time that I am unemployed and my final payment will be on Wednesday? They are well aware that I am judgement proof since I have no income, my house is under water by 40k and I owe more on my car than it is worth. Like many I am beginning to feel they are just harassing me for fun.

Another interesting side note is that the attorney who sent the latest document is different than the one from previous documents...is there any significance? The original attorney is still included on the listing of attorney's working at the firm.

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OK, I guess I was wrong on that. I still do not think that one statement with no other paper work or affidavit from the OC would prove anything however.

As to the questions the OP is sending, do you understand why the question is being asked. The purpose of it and what information is supposed to be gleened from them. If not, I suggest doing research and/or posting the questions to find out. If you paid for the work, it is fine to use it. Just know what you are doing before doing it.

Also, did you get any discovery questions/admissions/production of documents that you have to answer? If so, you need to answer them to the best of your ability (or object to them).

As to why they are suing you, that is because in Minnesota, they can call you for a debtors exam every 6 months, even if you are currently collection proof. Their hope is that you miss one of those exams so that they can get an arrest warrant and then get some bail money that they can grab regardless of your collection status. Since they used pocket docket, they were hoping that you would not answer and would get a default. That is out the window but since this is a 5-figure debt, they will probably put more effort in it than say a $5000 debt. I do not know if this one will end up in court or not. They have a long way to go before it becomes unprofitable considering they probably paid $800 - $1600 for the debt.

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This is what I found on the MN Courts website regarding the letter:

 

Initial disclosures are due 60 days from the original due date for an answer (unless the parties stipulate to a different date or the court orders it) and are intended to obviate traditional discovery on the matters subject to disclosure.  Like discovery requests and responses under the current rules, disclosures are served but may not be filed with the court unless ordered.  Discovery is stayed until the parties can convene and agree on a discovery plan.  Initial disclosure requires the identification of the name, address and telephone number of individuals “likely to have discoverable information” along with a description of that information, a copy or description of documents that the party may use to support its claims, a computation of each category of damages, and production for copying of any insurance agreement applicable in the case.

 

 

This is the document I received...I parsed out some of the irrelevent information to save space.

 

Disclosure A: The name and if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

 

Response:

 

1.  Plaintiff, available through counsel, Gurstel Chargo, 6681 Country Club Dr, Golden Valley, MN 55427.

 

This entity may have information regarding the facts alleged in Plaintiffs Complaint and Defendants Answer.

 

2.  Defendant address and telephone number known to Defendant.

 

This individual may have information regarding the facts alleged in Plaintiffs Complaint and Defendants Answer.

 

3.  Plaintiff's predecessors in interest, address and telephone unkown.

 

These entities may have information regarding the facts alleged in Plaintiffs Complaint and Defendants Answer.

 

4.  Defendant's financial institutions, addresses and telephone numbers known to Defendant.

 

These entities may have information regarding the facts alleged in Plaintiffs Complaint and Defendants Answer.

 

5.  Various merchants, addresses and telephone numbers unknown.

 

These entities may have information regarding the facts alleged in Plaintiffs Complaint and Defendants Answer.

 

Disclosure B:  A copy or a description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

 

Response:  All documents, electronically stored information, and tangilbe things in the possession, custody or control of Plaintiff, to the extent discoverable include:

 

1. Account statements

2.  Assignment documentation

 

Plaintiff is compiling additional documentation and will supplement these disclosures as necessary.

 

Disclosure C:  A cumputation of each category of damages claimed by the disclosing party who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless priviledged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.

 

Response:  The following is a computation of each category of damages claimed by Plaintiff:......Attached is one credit card statement which the calculation is based on.

 

 

According to the information I have read they should disclose the "entities" name, address, phone number etc. in the initial disclosure.  I have not received any questionnaire from them.  Am I way off topic and this is a response to the discovery request I sent back in August?  Any help with a response would be greatly appreciated....I don't think I really have anything to disclose do I?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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