Debtinate

How to recite case law in court?

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@BV80 Crap. Looks like that's something the attorney could fall back on, but at the same time it's something JDB attorney assumes a lay person won't find. Although some of these rules are head scratchers though. The rules for discovery specifically say 28 days. So that time should also include mailing. When I sent my responses to the JDB attorney, I did so without the need for a 3 day extension for mailing. I met the deadline that they set in their paperwork. I still think if they don't reply in time I should take a chance on filing a MSJ.

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@Debtinate

 

In my state, if the other party doesn't respond to discovery requests within the allotted time, we can file a motion to compel the responses.   Some attorneys might send out a reminder letter to the other attorney before a motion to compel in an attempt to show the court that everything possible was done before resorting to a motion.

 

Find out what your rules say about a failure to respond in a timely manner.

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I've located 2 MSJ filed by the JDB attorney that is assigned to my case. In both, the attorney appears to start the 28 day clock running from the day he mails out the discovery per the certificate of service page. The MSJ is filed rather quickly from the time responses aren't received, generally in about a week or so, so it does not appear that there is any need for motions to compel. I did see one where the attorney sent a courtesy letter to the defendant's attorney saying that the requests for admissions were already deemed admitted, but he wanted to see if they had responses to interrogatories or any documents to produce. Really at that point I'm not sure what the point of the letter was since by that point the defendant already admitted to the JDBs allegation by rule.

 

I can only hope I can turn the tables on the JDB. It would be my honor to trap them like they do to hundreds and thousands of people on an annual basis.

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@Spikey I don't know, this scenario is no different than when the JDB propounds discovery on a Defendant, and then the Defendant doesn't answer. From my research, it doesn't look like the JDB attorney waits until the discovery cut-off time to file the MSJ. They submit one as soon as possible after the RFA are deemed admitted. It's almost the same concept as filing a motion for default judgment. The JDB swoops in rather quickly and takes care of business.

 

See, the JDB attorney tipped me off that he's going to be on vacation all next week. The rules of Civil Procedure don't seem to have a section that grants extra time if someone goes on vacation. If the JDB Attorney wants to submit answers to me after the due date on my discovery requests, that's fine, but I'll still hold them to the same standards and the same timeline they set for me. It was 28 days from the day of mailing, and that's what I'll use. If I have to submit their paperwork in my motion as proof, I'll do it.

 

Using their own stuff against them.

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@Debtinate You'll be fine as long as you meet the proper deadlines. It may be worth trying to get your hands on a copy of the MSJ they file. It may be boilerplate and will give you insight on how to respond if it comes to that. MSJ's aren't difficult to defeat depending on the judge, all you need to come up with is one issue in dispute that requires a trial.

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@Spikey I've found several MSJ filed by this JDB attorney when the defendant doesn't respond to discovery. Of course, since the defendant didn't respond during discovery, most of them don't oppose, or don't know how to oppose the MSJ so they lose.

 

Only thing is, I've never seen a defendant file a MSJ against the JDB attorney for not timely answering discovery. Can it be done? What opposition could they offer, or what case law could support their position? I have no idea, but I would be thoroughly pissed if the Judge let them get away with it. 

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@Spikey I think their lawyer is paying attention too, but is also playing games with me. Basically they told me we'll start the clock against you once we mail out our discovery packet, but they tried to tell me that the clock for them starts on the day they received the packet. So which is it?? LOL.

 

This might be my best chance. I'm just nervous because I haven't found many cases of the defendant using this tactic against the JDB attorney. So there could be some simple way for the JDB attorney to weasel out of it, but I have no way to know for sure.

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First of all if you are still in the middle of discovery and it is not complete that is a perfect defense to why msj should not be granted. MSJ is not hard to beat, all you have to do is show that there are material issues of fact that have not been resolved, there are a lot of them so lets start from the begining, I am not saying all of them apply but I'll give you a good list to reasearch.

Plaintiff has not proved standing to sue, leading cases, Bell Atlantic Corp. Et Al v. Twombly 550 U.S. 544 (2007), Ashcroft v. Iqbal, 490 F. 3d 143(2009), Whitmore v Arkansas, 495 U.S. 149 (1990), Allen v Wright 468, U.S. 737

Jurisdiction of the court has not been established, Leading cases, Melo v. US, 505 F2d 1026, Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150

Subject matter,  U.S. v. White, 139 F.3d 998;  Boles v. State, 717 So.2d 877 (1998), United States v Cotton, 535 U.S. 625, 630 (2002

Summary judgment, Trensey v Pagliaro, 229 F. Supp. 647,

Discovery is not complete

bill of sale to prove ownership

chain of title

an accounting from a zero balance

documents that are not verified offered as evidence

statements by council that are not supported by any evidence

Affidavits that are irrelevant, out dated, hearsay, or make other statements that are not supported by facts or evidence, these are just a few but will get you started.

 

In your issue I would stop arguing with the attorney and file a motion to hear cause or controversy, other states may call it pretrial motions, and ask the court when the clock starts running.

 

Defendants motion for court to hear controversy

There has been an ongoing debate with this case as to the deadline for discovery to be answered and returned to the asking party. State rule of trial procedure state a person has 28 days to answer discovery. But there is an argument of when exactly does the time begin. Does it begin from the day the discovery is put in the mail or when the other party receives discovery. Defendant needs to have this issue resolved to determine if plaintiff's motion for summary judgement is timely.

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@Debtinate There is no double standard, the same rules apply to both parties. Don't let them push you around. If the rules aren't clear, then @BTO429 advice will clear it up.

 

Don't take anything they tell you at face value. They think they can push you around because you're a pro se.

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Now I just need to determine if the JDB could continue to add interest after charge-off, and if so, at what rate could they do it at. I need some leverage. If I could file a counter-claim for misrepresenting the amount of the alleged debt, that would be a major boost.

 

Just to let you guys know, I contacted an attorney today and conducted a free consultation over the phone. I just wanted to share my story, and wanted to see if getting an attorney would be feasible for me, or if it would make sense. I really didn't get much from the phone conversation, it sounded like the attorney was impressed with how I handled things to this point, but I still got the impression she wasn't really passionate about going to trial against JDBs. I got the vibe that she was a supporter of settlements because the conversation kept getting back to that subject.

 

I am doing my due-diligence, but it seems that my best course is to keep going solo, and keep exchanging blows with the JDB. I want a trial, I want to beat them. I want to be the voice for debtors out there that don't fight. If I lose, I have support from my wife that BK might be the way to go. I've fought these deamons for so long, my credit has been in the dumps for years... I can't explain the embarrssment I went through not long ago when I had to fill out a credit app to buy a used car because my old one broke down. Getting denied by everyone and their mother until I found a creditor that was willing to take a chance (and I haven't let them down  :-)My credit can only get better from here. If I win, I'll probably be excited for a while, and then breakdown and cry behind closed doors. I'll be so happy to rid myself from the chains of this horrible time in my life. The stress and anxiety that these JDBs and attorneys have caused me over the years. These people must be stopped!

 

GOD gave me a brain, he gave me a voice to stand up to my foes, he led me to this site for help. I'm grateful for the help here. I can do this, I can win!

 

Just FYI, this (bolded text) might be why the JDB sued you.  Creditors do monitor your credit reports and look for evidence your financial picture has changed for the better - like applying for credit and getting it.  They figure if you can pay for a car, you can pay them.

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First of all if you are still in the middle of discovery and it is not complete that is a perfect defense to why msj should not be granted. MSJ is not hard to beat, all you have to do is show that there are material issues of fact that have not been resolved, there are a lot of them so lets start from the begining, I am not saying all of them apply but I'll give you a good list to reasearch.

Plaintiff has not proved standing to sue, leading cases, Bell Atlantic Corp. Et Al v. Twombly 550 U.S. 544 (2007), Ashcroft v. Iqbal, 490 F. 3d 143(2009), Whitmore v Arkansas, 495 U.S. 149 (1990), Allen v Wright 468, U.S. 737

Jurisdiction of the court has not been established, Leading cases, Melo v. US, 505 F2d 1026, Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150

Subject matter,  U.S. v. White, 139 F.3d 998;  Boles v. State, 717 So.2d 877 (1998), United States v Cotton, 535 U.S. 625, 630 (2002

Summary judgment, Trensey v Pagliaro, 229 F. Supp. 647,

Discovery is not complete

bill of sale to prove ownership

chain of title

an accounting from a zero balance

documents that are not verified offered as evidence

statements by council that are not supported by any evidence

Affidavits that are irrelevant, out dated, hearsay, or make other statements that are not supported by facts or evidence, these are just a few but will get you started.

 

In your issue I would stop arguing with the attorney and file a motion to hear cause or controversy, other states may call it pretrial motions, and ask the court when the clock starts running.

 

Defendants motion for court to hear controversy

There has been an ongoing debate with this case as to the deadline for discovery to be answered and returned to the asking party. State rule of trial procedure state a person has 28 days to answer discovery. But there is an argument of when exactly does the time begin. Does it begin from the day the discovery is put in the mail or when the other party receives discovery. Defendant needs to have this issue resolved to determine if plaintiff's motion for summary judgement is timely.

 

@BTO429 @Spikey I think there is a misunderstanding about this issue, and I apologize if I didn't convey the message the right way. There has never been an argument between me and the JDB attorney about how many days they have to respond to my discovery. The JDB attorney made a comment in an e-mail assuming they had until a certain date to respond to my discovery requests. This date is beyond the date that I inserted as the due date for my discovery requests. I followed the same format that the JDB attorney used when they sent me their discovery requests. Like them, I demanded responses up to and including 28 days from the date the discovery packet was mailed. According to their e-mail to me, it appears their theory was to start the 28 days from the date they received my packet. This is contradictory to the way they wanted me to respond to theirs. I think the attorney was trying buy some extra time because he is going to be on vacation next week, but that's not my problem. If this is my big chance to trip them up, I've got to take it!

 

What I am getting at is would I be in the wrong if I kept my mouth shut in hopes that they would submit their responses late? Wouldn't I be justified filing a motion for summary judgment against them since the request for admissions would then be considered admitted if they didn't respond by the due date? I hope I have explained this situation better.

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It depends on your RTP's in my state we can't go running of with the MSJ, we first have to file a motion to deem admitted. If the judge agrees then the MSJ is next. Your state may be different you need to read them to find out hat you need to do. Don't want to get the case dismissed over procedure.

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As far as I can tell, I have to request leave from the court to file the MSJ since a trial date has been set. Once that's granted then I can file the MSJ. One thing I need to figure out is if the clerk will allow me to submit the request for leave and the MSJ at the same time. Doing one at a time seems like a strategy killer and a time a waste of time. I'll have to understand that procedure though. If I can hand the clerk both items for filing at the same time, that would be perfect.

Also, I intend on using the JDB attorney's discovery packet that was sent to me as part of an exhibit in my MSJ. I want to illustrate to the judge that the JDB attorney gave me 28 days from the date of mailing, so that's the same procedure that I followed. Do you guys think that would be acceptable?

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@debinate

 

If the clerk allows you to submit the request for leave to file and the MSJ at the same time, but your request is denied, then that would be a waste of time (drafting an msj when it won't be heard).

 

You might be able to save time by fax filing the request for leave. It seems to me like  a lot of work drafting an MSJ if you don't know if you can use it yet. Also, you would have to send a copy of the MSJ to your opponent, and if it won't be heard anyway; you may have given up some of your argument to the lawyer ( although I never worry about that too much, however some people do).

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Hey folks. Happy New Year to all!

 

So, tomorrow marks 30 days since I mailed my discovery requests to the JDB attorney. I didn't get my mail yet for the day, but to date I have not received any responses. Assuming nothing comes today, and nothing comes tomorrow, I want to act fast to put my foot down and tell the JDB attorney that the requests for admissions have been deemed admitted by their failure to reply in a timely fashion per Ohio Discovery Rules.

 

There has been no contact with me, or with the court formally asking for additional time to respond.

 

Can anyone give me advice on how to proceed. Should I just compose a word document and fax it to the JDB attorney? What should I say? I've seen some of the letters they write when people miss the deadline, and generally they say that the admissions have now been admitted, but they would still accept responses to ROGS and RPD.

 

I need to strike fast, and I'd like to submit my letter tomorrow or Thursday at the latest. I need to be prepared if they try to fight me on this, or try to find some loophole or ask the court for an extension of time (after the fact that the requests are admitted)

 

ANY ADVICE WOULD BE GREAT!!

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You need look in your states code of civil procedures (under discovery) and see what it says in your local rules about it.

 

Also, In California rules we would have to allow an additional 5 days for mailing documents, so see if you have a similar rule. I think you do have a good rule if they just become admitted though. 

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There is more, but here is the juicy stuff:

 

(A) Availability; procedures for use.

 

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Civ.R. 26( B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. A party serving a request for admission shall serve the party with an electronic copy of the request for admission. The electronic copy shall be reasonably useable for word processing and provided on computer disk, by electronic mail, or by other means agreed to by the parties. A party who is unable to provide an electronic copy of a request for admission may seek leave of court to be relieved of this requirement.

(1) Each matter of which an admission is requested shall be separately set forth. The party to whom the requests for admissions have been directed shall quote each request for admission immediately preceding the corresponding answer or objection. The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service of a printed copy 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.

 

******

(B) Effect of admission.

 

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Civ. R. 16 governing modification of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by the party for any other purpose nor may it be used against the party in any other proceeding.

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