Question regarding discovery...

[rshaney]

First of all thank you to everyone that has offered help to this point, much appreciated.

 

I sent the attorney for the JDB my answer, which included affermative defenses for both SOL and lack of standing. Today I received a letter back wanting me to contact the attorney to begin the discovery, or to settle for $20k, lol. Here's my questions if I can please get a little guidance.

 

1. The response still does not have a case number, does that mean it hasn't been filed, if so do I even need to respond at this point?

 

2. They have given me a time period of 14 days to respond, is this their time period or the courts, am I required to do this.

 

3. They have requested that we talk via phone for the discovery, do I have to do this or can i request we communicate via mail only? I am a little scared about saying something that could be held against me, so is this possible?

 

4. Am I allowed to threaten bankruptcy? Really if I lose this I will be filing anyways but am I able to tell them that in an effort to encourage either a dismissal or better settlement?

 

Thanks again for all your help!

[RyanEX]

Tough to follow a case when it's split into multiple threads. If you already have a thread started for this, you might want to re-post  this in there,

[rshaney]

I understand and thank you for the response. I figured the questions were generalized enough that it wouldn't really matter, but I will do that as well. Do you know any of the answers?

[BV80]

@rshaney

 

Here's your court rules.  According to the rules, a complaint must be filed within 1 year of service.  I would contact the clerk of court to make sure that this is correct.

 

http://www.mncourts.gov/Documents/0/Public/Rules/Civil_Rules_effective_7-1-2013.pdf

 

You should be able to find the answers to your other procedural questions in the rules.

[Spikey]

 

4. Am I allowed to threaten bankruptcy? Really if I lose this I will be filing anyways but am I able to tell them that in an effort to encourage either a dismissal or better settlement?

 

Not sure if it's allowed or not, but I really doubt that they'll care. You're better off working the legal process, keeping them on the defensive and be prepared for a potential trial. You answered a lawsuit, if you aren't prepared for what that means (i.e. trial), you're going to have a tough road to hoe.

[racecar]

"begin the discovery, or to settle for $20k"

I'm thinking that over i guess we begin discovery.

 

I dont know who is suing you so if its not portfolio recovery put in the proper junk debt buyer name

 

Here is how you talk to them by sending them these requests then you will see that they cant prove their case

Nothing good can come from talking to the plaintiff.

They will not help you they just want your money.

They bought your account for pennies on the dollar and want the full amount plus interest.

You may owe someone but you don't owe them a dime.

Fight them we will help. You can always file for BK if you have to have some fun in the meantime.

You don"t need to talk to the attorney about discovery just send it to him as he will you.

 

To: Lawfirm Name and address.

 

Pursuant to Minnesota Rules of Civil Procedure, Rules 33, 34, and 36, Defendant serves upon you and demands answers to the following interrogatories, requests for production of documents, and request for admissions. Minnesota rules provide that you must serve your separate written answers or objections to each interrogatory and request for admission within 30 days after this service.

The Propounding Party requests that the Responding Party respond to the following discovery requests in accordance with the Rules Governing the Courts of the State of Minnesota. The Propounding Party has used certain words with defined meanings as set forth in the Definitions section, below. 

(1) Each matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. 

(2) If objection is made, the reasons for the objection shall be stated. 

(3) If not admitted, your answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. 

(4) A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. 

(5) An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. 

(6) A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may deny the matter or set forth reasons for not being able to admit or deny.

(7)If a document being requested was in your custody or was known to you, but is no longer available, provide a description of the document, including the contents, and set forth how the document left your possession.

(8) If after due diligence in investigating and researching a discovery request, you cannot respond fully, answer to the best of your knowledge and explain your inability to give a complete answer.

(9). Include all information within your knowledge, the knowledge of your attorneys, any past or present staff, and any investigators employed by you or your attorneys.

　

　

　

 

DEFENDANTS INTERROGATORIES TO PLAINTIFF PORTFOLIO RECOVERY

 

1. State the names and addresses of all persons who have knowledge of any facts relating to the case. 

2. Identify all documents that may relate to this action, and attach copies of such document. 

3. Attach a complete copy of any written records or documents that you have regarding defendant, along with a typed transcription of any handwritten records and documents. 

4. Identify all correspondence between plaintiff and the defendant or its representatives, and attach copies. 

5. If you claim that the defendant made any admissions as to the subject matter of this lawsuit, state: (a) the date made; ( b ) the name of the person by whom made; ( c ) the name and address of the person to whom made; (d) where made; (e) the name and address of each person present at the time the admission was made; (f) the contents of the admission; and (g) if in writing, attach a copy. 

6. If you or your representative and the defendant have had any oral communication concerning the subject matter of this lawsuit, state: (a) the date of the communication; ( b ) the name and address of each participant; ( c ) the name and address of each person present at the time of such communication; (d) where such communication took place; and (e) a summary of what was said by each party participating in the communication. 

　

　

7. If you claim that the violation of any statute, rule, regulation or ordinance is a factor in this litigation, state the exact title and section. 

8. Set forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due. 

9. If the Account was assigned by the Original Creditor, set forth the date and a description sufficient to identify each Record which reflects or memorializes each assignment beginning with the Original Creditor and ending with you. [Note that defense anticipates that you will identify such things as forward flow agreements, purchase and sale agreements, bills of sale, and schedules of accounts;

10. Attach a copy of each Record identified in your response to Interrogatory #9.

11. With respect to each assignment of the Account, identify the name of each Natural Person who has personal knowledge as to whether the Account was described or identified in the assignment.

12. Identify all Records in your possession concerning the Account.

13. Attach a copy of each Record identified in your response to Interrogatory #12.

　

14. Identify each request you sent to either the Original Creditor or assignee of the Account for either a Record or information about the Account.

　

　

15. Attach a copy of each request identified in your response to Interrogatory #14.

16. Attach a complete copy of the response you received for each request identified in your response to Interrogatory #14.

17. What is the date on which the Account went into default?

18. What is the date of the Account’s last billing statement?

19. Explain any difference between the Account’s charge off balance and the balance on the Account’s last billing statement.

20. State the name of each Natural Person known to you or to your attorneys who can demonstrate that each Computer Record is what you claim it to be.

21. State the name of each Natural Person known to you or to your attorneys who is familiar with the record system used to create and store each Computer Record.

22. State the name of each Natural Person known to you or to your attorneys who can establish that it was the regular practice of the business which created each Computer Record to make it.

23. State the name of each Natural Person known to you or to your attorneys who has personal knowledge that each Business Record was made at or near the time of observation by a person with actual knowledge or from information supplied by such a person.

　

　

24. State the name of each Natural Person known to you or to your attorneys who has personal knowledge that each Business Record was made by a business whose regular practice was make that type or kind of Business Record.

25. State the name of each Natural Person known to you or to your attorneys who has personal knowledge that each Business Record was in fact made in the regular course of the business which made it.

26. Attach a copy of each Sworn Statement and indicate in the space below that the requested item(s) are attached or state the reason why it is not attached.

27. For each Sworn Statement, state whether you have the version which contains the Declarant’s original signature.

28. Attach a copy of each Record relied on or used by each Declarant in preparing his or her Sworn Statement and indicate in the space below that the requested items are attached or state the reason why it is not attached.

29. State the number (or, if unknown, a reasonable estimate of the number) of affidavits, declarations and certifications made by each Declarant on the same date as the Declarant’s Sworn Statement.

30. If you assert a claim for legal fees, attach your written retainer agreement with your attorney and indicate in the space below that the requested item is attached or state the reason why it is not attached.

　

　

31. Attach a copy of Defendant’s application in connection with the Account. If you do not have possession of that application, state whether you have requested a copy from anyone.

32. Were there written terms and conditions which governed the Account at the time the Account was opened?

33. Were the written terms and conditions which governed the Account at the time the Account was opened changed, modified, amended or replaced at any time after the Account was opened?

34. If you contend that Defendant’s payment obligations on the Account arose out of transactions other than transactions in which the money, property, insurance or services which are the subject of the transactions are primarily for personal, family or household purposes, then state the factual basis for your contention.

35. Identify and produce a copy of all documents reflecting that the information described in 15 U.S.C. § 1637(a)(1) through (8) (to the extent applicable) was disclosed to Defendant before the Account was opened.

36. Identify and produce a copy of all documents which you understand as constituting written notice of an increase in the Account’s annual percentage rate in accordance with 15 U.S.C. § 1637(i).

37. Do you have any claims against Defendant other than those arising out of the Account?

　

　

38. Identify each individual you expect to call at trial as an expert witness and include the subject matter on which each person is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

39. What is the full name, job title and work address of the Natural Person who certified the answers to these interrogatories on your behalf?

　

　

　

[END OF INTERROGATORIES]

RESPONDING PARTY’S CERTIFICATION TO ANSWERS TO INTEROGATORIES

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment. 

Date 

Print Name and Title Below Signature ______________________________

_______________________________

Date

Your name

Defendant, pro se 

Your Address

Telephone: 

　

Pursuant to Minnesota Rules of Civil Procedure, Rules 33, 34, and 36, Defendant serves upon you and demands answers to the following interrogatories, requests for production of documents, and request for admissions. Minnesota rules provide that you must serve your separate written answers or objections to each interrogatory and request for admission within 30 days after this service.

The Propounding Party requests that the Responding Party respond to the following discovery requests in accordance with the Rules Governing the Courts of the State of Minnesota. The Propounding Party has used certain words with defined meanings as set forth in the Definitions section, below. 

(1) Each matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. 

(2) If objection is made, the reasons for the objection shall be stated. 

(3) If not admitted, your answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. 

(4) A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. 

(5) An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. 

(e) A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may deny the matter or set forth reasons for not being able to admit or deny. 

DEFINITIONS 

The following words, when used with the initial letter capitalized, has the designated meaning: 

(A) "Account" means the indebtedness alleged in your Complaint. 

( B )"Original Creditor" is the Person with whom the Account was originally created for Defendant. 

ADMISSION REQUESTS 

1. Plaintiff has no personal knowledge as to the mailing by the Original Creditor to Defendant of any written agreement governing the Account. 

___ADMIT ___DENY 

2. Plaintiff has no personal knowledge as to the mailing by the Original Creditor to Defendant of any billing statement for the Account. 

___ADMIT ___DENY 

3. Plaintiff has no personal knowledge as to why the Original Creditor entered any transaction, debit, credit or charge on any billing statement for the Account. 

___ADMIT ___DENY 

4. Neither Plaintiff nor its attorney(s) possess an affidavit, certificate or other document executed by or on behalf of the Original Creditor which purports to authenticate the genuineness of any documents related to the Account. 

___ADMIT ___DENY 

5. Plaintiff’s right to acquire documents from the Original Creditor about the Account is governed by the written agreement under which Plaintiff acquired the Account. 

___ADMIT ___DENY 

Signed by Responding Party’s (CHECK ONE) ____ authorized agent _____ Attorney

　

Date

Your name

Defendant, pro se 

Your Address

Telephone: 

DEFENDANTS PRODUCTION OF DOCUMENTS TO PLAINTIFF PORTFOLIO RECOVERY

DEFINITIONS 

The following words, when used has the designated meaning:

(A) "Account" means the indebtedness alleged in your Complaint.

( B ) "Original Creditor" is the Person with whom the Account was originally created for Defendant.

 

1. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

 

2. The forward flow or media document(s) governing this transaction.

3. Proof of mailing of monthly statements to defendant.

4. A complete history of the account from day one, establishing the legitimacy of the balance sought.

5.The original signed application establishing the account.

　

Date

Your name

Defendant, pro se

Your Address

Telephone:

　

End of discovery

[rshaney]

Wow, as always great information, I have some work to do.

 

Yes really I am not ready for trial, just wanted to make sure they didn't get a default judgement and maybe see if I can get them to settle for a minimal amount or dismiss. If not then I will be filing bankruptcy if it becomes clear that it is a losing battle.

 

Thanks again for the info, I will read the court rules and follow up if I have any additional questions. You guys / gals are invaluable.

[racecar]

Make them prove their case.

[rshaney]

@racecar So are you saying just to copy what you have word for word and send it to them, changing of course the JDb name?

 

If so what is the second part where it starts after my name and signature, is that the seperation of questions versus requesting documentation?

 

@BV80 Does that mean that I still have to proceed with the discovery even if they haven't filed the complaint? Seems to me that if it isn't even filed with the court, and I have already answered and prevented the default judgement, why would I want or need to continue to spend my time and resources if it isn't even registered with the court? I don't know, am I just being optimistic?

[BV80]

@rshaney

 

You need to see what your rules say about discovery.  If they've requested discovery, I would think you would do the same.