Debtinate

How to recite case law in court?

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Perfect. perfect... I'll probably fax a letter over to the JDB attorney office sometime tomorrow if I don't get anything in the mail by then. I really want to turn the tables on them. They do the same thing to so many people, it's time for them to eat it for once!

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Usually a motion to deem the admissions admitted is required. Not sure how this plays out in Ohio. 

 

Also be warned that this may not be a slam dunk win. Some states give latitude to the non-responding party.

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@Spikey @Anon Amos

 

Well, still no discovery responses from the JDB attorney as of yesterday's mail. So they are now OFFICIALLY LATE! ::USA::  The request for admissions are now deemed admitted.

 

Here is my plan of attack. I have composed a courtesy letter to the JDB stating that by Civil Rules the request for admissions are now deemed admitted, and I also request for them to respond to the interrogatories and RPD within 7 days if they are still interested. 

 

In regards to filing a motion to deem request for admissions admitted, I couldn't find one way or another if this is always necessary in the State of Ohio. Regardless though, I think I will still go ahead and file one with the Court. Does anyone know what I should include with this motion as exhibits? I was just thinking my actual discovery questions, proof of certified mailing and perhaps the letter I am soon to send to the JDB attorney. Does anyone think I'd need an affidavit with this?

 

Once that's submitted, I hope to GOD it gets granted. Though I am still worried about some trick the JDB can try to pull out of their hat to oppose the motion. The fact remains I followed the rules, and so far they haven't.

 

If it does get granted though, it should set up nicely for a MSJ, or for a dismissal. I CAN ONLY HOPE!!!

 

Any suggestions??

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@Spikey Can you explain your reasoning so I have a better understanding? Isn't it in my best interest to show them that I know the rules and I am holding them to it?

 

With all due respect, I think the motion to compel just drags this thing on and makes it appear that I genuinely care to wait around for their discovery responses.

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@Debtinate

 

With all due respect, I think the motion to compel just drags this thing on and makes it appear that I genuinely care to wait around for their discovery responses.

 

 

I know that you really don't want them to respond to your requests, but you still have to follow court procedure.   Part of the purpose of a motion to compel is to support a possible motion to preclude evidence.  For instance, if the judge grants a motion to compel, and the other party doesn't comply with his order, you've got support for a motion in limine or a motion to preclude any evidence they might have provided.

 

If you don't file a motion to compel, then try to have their evidence precluded, the judge may or may not grant it.

 

Some courts prefer that parties do everything they can to avoid taking up the court's time with motions.   That would be the purpose of a reminder letter   You want to show the judge you did what you could to avoid taking up the court's time, but the other party won't cooperate.

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I don't think or know if getting the admissions admitted is as much of a slam dunk as you do.

 

I did find a case in Ohio where a motion to deem admissions admitted was mentioned: http://www.sconet.state.oh.us/rod/docs/pdf/10/2007/2007-ohio-697.pdf

 

And another: http://www.leagle.com/decision/1995757101OhioApp3d656_1669

 

I have learned to play the long game with the legal process. Quick outs are nice when they happen, but can't be expected. Answering a lawsuit means you need to be prepared for the ultimate end game, which is trial. On that basis, you need to flush out all of the other side's evidence to properly formulate a defense. RFPs and Interrogs are part of that process. A motion to compel forces them to answer and in some cases depending on the rules without objection. If they fail to answer after a court order it gives you a lot of leverage along with sanctions which can help kill their case. 

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I guess what I have a hard time understanding then, is why should I play by a different set of rules than the JDB attorneys usually follow?

 

I appreciate the responses you all have given, and it will help me to formulate a new strategy, but I still remain confused a little bit about the "white glove" approach I'd be offering to the JDB attorney.

 

Through my research of various Ohio court cases, when a defendant hasn't responded to the JDB attorney's discovery requests typically the same thing happens.

 

1) A motion for summary judgment is filed rather quickly from the time responses were due. Typically within a few weeks. The JDB attorney simply states that by not answering, the request for admissions are deemed admitted, and therefore there is no issue of material fact for trial. There is some basic case law, and that's it. Additionally, they include as exhibits the discovery requests and an affidavit, and then they win. There isn't even a mention of requests for production of documents, or interrogatories since essentially those are moot and useless once the admissions are admitted.

 

Most of these motions don't include any proof of a courtesy letter. There is no record on the court docket of a motion to compel or anything like that. It's straight in for the kill if you will.

 

I've even come across a case where a pro se defendant missed the cut-off time to respond to discovery. Later on she retained counsel to oppose a motion, ended up answering discovery at that point, but still lost and the trial court level and appelate level since the responses were late and already "admitted".

 

Maybe I have a misunderstanding of the process, but let's just say that sometime next week they send me all of their discovery responses. Does that change anything?

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You're also not an attorney. What members of the bar can do and get away with is astounding. As a pro se, the only thing protecting you is following the rules of procedure. 

 

You're obviously welcome to follow or not follow any advice given. If you want to follow the typical JDB example that you've read, I wish you good luck.

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I'm not trying to stir the pot, I'm really not, and I definitely appreciate all the help. This is just a pivotal point of the case, I am just trying to understand the process.

 

Let's just assume that right now the JDB attorney is in default of answering my discovery, and for argument's sake, the admissions are admitted.

 

So from this point I send a courtesy letter to the JDB attorney asking for documents and ROGS. Let's say they comply and submit those to me within 5 days or something. How does that change my position? Are those ROGS and docs worth anything if the admissions are admitted? What would I do if they comply? Does the case just go on...? Do I lose my chance to bury them into the ground because I'm letting them get back into the fight?

 

Also, if it reaches the level of me having to file a motion to compel discovery, and the court orders the JDB attorney to comply, what happens if they do comply? Are they back into the fight without consequences?

 

I'm still just trying to understand the concept of going through all these hoops, when technically I could probably just file a MSJ and save everyone a lot of time.

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@Debtinate

 

This is OH Rule 36(A)(3):

 

(3) The party who has requested the admissions may move for an order with respect to the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Civ. R. 37(A)(4) apply to the award of expenses incurred in relation to the motion.

 

That says that a party MAY move for an order.  It doesn't say you HAVE to file a motion  Find some OH cases involving admissions that were deemed admitted.   Was a motion always filed?  What did the court say about the motion?

 

That might give you an idea about how to proceed.  Here's a case to get you started.

 

http://scholar.google.com/scholar_case?case=752920107781804050&q=%22Rule+36%22+AND+%22deemed+admitted%22&hl=en&as_sdt=4,36

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Read the "Second Assignment of Error" from this 8th Appellate District case.  Technically, if a admission is not answered in a timely manner, it is self-executing; you do not need to file a Motion to Deem Matters Admitted.

 

http://scholar.google.com/scholar_case?case=5372544288064758575&q=%2236(a)%22&hl=en&scisbd=2&as_sdt=4,36,111,126,356,357

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@debtzapper

 

This is the part that is not good.

 

"Although Civ.R. 36(A) deems requests admitted if no response is made within the allotted time, we note that a judge has discretion to allow withdrawal or amendment of the requests under Civ.R. 36(B)."

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From the above case:  Note also what is says about the judge's discretion in conducting discovery.

 

 

 

Second Assignment of Error

 

{¶13} In his second assignment of error, Downey contends that the trial court erred by not deeming matters admitted by U.S. Bank because U.S. Bank's responses were untimely.

{¶14} Civ.R. 36(A) provides, in pertinent part:

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 Rule 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. * * *

(1) * * * The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof 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 his attorney. * * *

{¶15} Pursuant to the express language of Civ.R. 36(A), requests for admissions are "self-executing; if there is no response to a request or an admission, the matter is admitted. Unlike other discovery matters, the admission is made automatically and requires no further action by the party requesting the admission." Palmer-Donavin v. Hanna, 10th Dist. No. 06AP-699, 2007-Ohio-2242, ¶ 10 (citations omitted). Thus, once a party fails to timely respond to the requests for admissions, the defaulted admissions become facts, and a motion seeking confirmation of those admissions is not necessary.Natl. Mut. Ins. Co. v. McJunkin, 8th Dist. No. 58458, 1990 Ohio App. LEXIS 1730 (May 3, 1990) (motion to deem matters admitted superfluous).

 

{¶16} "Although Civ.R. 36(A) deems requests admitted if no response is made within the allotted time, we note that a judge has discretion to allow withdrawal or amendment of the requests under Civ.R. 36( B)." Knox v. Hetrick, 8th Dist. No. 91102, 2009-Ohio-1359, ¶ 72. Moreover, a trial court has broad discretion in controlling the conduct of discovery and in issuing sanctions for violations. Cheek v. Granger Trucking, 8th Dist. No. 78805, 2001 Ohio App. LEXIS 4905 (Nov. 1, 2001). Thus, the decision to accept late admissions is a matter within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Hayes v. Walt Ward Constr. Co., 8th Dist. No. 69557, 1996 Ohio App. LEXIS 5199 (Nov. 21, 1996); see also Aetna Cas. & Sur. Co. v. Roland, 47 Ohio App.3d 93, 547 N.E.2d 379 (10th Dist.1988).

{¶17} Here, Downey sent his discovery requests on November 4, 2011. U.S. Bank responded on December 6, 2011. Based on the record before us, the trial court did not act unreasonably or arbitrarily when it granted U.S. Bank leave to file late responses to Downey's discovery requests and ordered that any matters deemed admitted were withdrawn. U.S. Bank responded to Downey's request for discovery only one day late.

{¶18} Downey's second assignment of error is overruled.

 

T

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To continue from above, Debinate could, as a courtesy to the other party, and to show the court he is acting in good faith, send the lawyer a letter reminding him admissions are past due.

 

Or just send a letter asking again for the RPD's and Rogs and not mention the admissions.  Let the admissions become "self-executing."

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I agree with sending the letter, and not mentioning the admissions The fact that it's too late for them to send a timely response doesn't hurt. Judges like it when you have everything well documented. I also agree that pro se definitely have to go the extra mile. in my case I was granted a motion to compel and a motion for compliance, for both I sent letters warning of the impending motion beforehand. I also agree that bar members can get away with murder, as my opposing council violated every code at issue in my case and got away with it, despite objection. 

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WOW. Thank you all for the responses! I am going to read through everything a second time to make sure I understand everything. Of course just like with most aspects of a case, there seems to be case law that supports my stance, and case law that counters my stance.

 

I'm still holding on to my letter until I know exactly how to word it, or if I should mention anything about the admissions or not. I can understand both sides of the argument, so it's hard for me to make a decision. I like the whole "self-executing" aspect, but I want to make sure the JDB attorney knows that I know the request for admissions are now technically admitted.

 

Feel free to keep the advice coming while I review your responses, and the cases you have referenced.

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I'm not trying to stir the pot, I'm really not, and I definitely appreciate all the help. This is just a pivotal point of the case, I am just trying to understand the process.

 

Let's just assume that right now the JDB attorney is in default of answering my discovery, and for argument's sake, the admissions are admitted.

 

So from this point I send a courtesy letter to the JDB attorney asking for documents and ROGS. Let's say they comply and submit those to me within 5 days or something. How does that change my position? Are those ROGS and docs worth anything if the admissions are admitted? What would I do if they comply? Does the case just go on...? Do I lose my chance to bury them into the ground because I'm letting them get back into the fight?

 

Also, if it reaches the level of me having to file a motion to compel discovery, and the court orders the JDB attorney to comply, what happens if they do comply? Are they back into the fight without consequences?

 

I'm still just trying to understand the concept of going through all these hoops, when technically I could probably just file a MSJ and save everyone a lot of time.

 

What are you actually trying to accomplish here? Based on the additional research that's been done, it's no slam dunk that the late admissions with be admitted. You still need to play for the end game, which is trial. Preparing for a trial requires gathering evidence to prepare your defense. If you don't bother to follow up, you're going to end up running blind, which is a recipe for disaster. Filing motions makes the other side work, runs up their legal costs, shows that you know the rules and are a fighter. If they're smart, they'll dismiss as they'll be spending a lot of money to keep the case going. If they refuse to participate in discovery, it may piss the judge off which works in your favor.

 

If this was my case, I'd start with getting the admissions admitted, be it motion to deem admissions admitted or just going for a MSJ. I'd sent a letter reminder for the other late discovery and start looking into a motion to compel. Keep the pressure firmly on them.

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@Spikey

 

I think you pretty much hit the nail on the head. Due to the JDB / Attorney mishap, my goal is to attack them with a MSJ. I'm trying to back them into a corner, so maybe they will dismiss the case, but I'm trying to do that without being reckless. Without being too motion happy & blowing my chance somehow.

 

Right now they know where they stand. Once again, today there was nothing in the mail from the JDB attorney, so they continue to get further behind the due date of my discovery requests. 

 

I faxed my courtesy letter to them this afternoon, and asked for RPD and ROGS to be submitted to me by next Friday.

 

If they want to drop the case, by all means they should. If they respond, I will probably still file a MSJ and provide my supporting documentation. I will use favorable case law, and the case law that suggests that RFA are "self-executing" after a certain amount of time.

 

The only thing I have to figure out is what to do if the JDB files a motion with the court asking for an extension to respond to discovery. Which is why as you suggested, it might be a good idea to get a motion to deem request for admissions admited over to the court ASAP. 

 

Having never done this before, there just seems to be too many uncertainties with the process, too many work-arounds. My court wouldn't even let me file discovery paperwork to reflect on the docket, or even a notice to the court that I served discovery on a certain date. I'm still not thrilled about this, because the judge has no idea what actions I've taken, or when I took those actions, and the judge won't know that until I file a MSJ. So in the meantime, the JDB attorney can just file an extension request with the court, while the judge has no idea that's its been over 30 days with no response from the Plaintiff.

 

Sorry for venting, I just want this to all work out well...

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Hi everyone, just a quick update...

 

I still have not received discovery responses through the mail.

 

The JDB attorney did respond to my courtesy letter though yesterday through e-mail. The attorney said that the responses were submitted for mailing on January 6th via regular US MAIL, and he is surprised I did not receive anything yet.

 

I replied that I haven't received anything, and asked the attorney if they had any tracking information for the envelope so I could check the progress. Since they shipped regular first class mail, they did not have any tracking information. They offered to "resend" the responses, I insisted that they be sent via certified US Mail so I could sign for the envelope and have a record of when I received responses. They agreed.

 

So now I'm waiting to have something tangible to use as leverage, or at least to better help my case should I file a MSJ. I'm sure when I get their paperwork, the certificate of service will say January 6th, but I don't know if that will have any weight if they can never prove when/if they actually sent out the responses the first time. I'll just go by the date I actually receive the envelope via Certified US MAIL.

 

That's where things stand.

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The JDB attorney did respond to my courtesy letter though yesterday through e-mail. The attorney said that the responses were submitted for mailing on January 6th via regular US MAIL, and he is surprised I did not receive anything yet.

Why am I not surprised by this response..... If you don't get anything within a week, it's time to take it to the next step.

 

So now I'm waiting to have something tangible to use as leverage, or at least to better help my case should I file a MSJ

 

The missing RFAs are enough to go for MSJ, depending on what you asked of course.

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@Spikey

 

Crazy... the mail just come today and low and behold, the envelope with discovery responses. Postmark is January 15th, and I do have a shipping label too so I can print out the details. The JDB attorney can object and say they mailed them 2 weeks ago, but the fact is there is no proof of that.

 

I'll post more later, but it appears it's a general denial. The RFA are answered, but if they are late and "self-executing" I still plan to attack the JDB with that fact. The RPD are basic, some unauthenticated statements, a general bill of sale, and then the redacted spreadsheet that shows my name and other personal info. The spreadsheet is generic though, no company letterhead, not dated, just has my personal info on there so basically anyone could have compiled it.

 

In terms of credit application or agreement, the JDB answers they don't have these docs, and that the OC isn't obligated to keep them after a certain amount of years. Which is funny though, because in some of their responses they say I breached the account agreement, yet they don't have the agreement, so how can they know what I did or didn't do, or what the terms of the agreement are?

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Dollars to donuts they're going to either claim that they sent them on the 6th or that the return date for RFAs is based on the date they received them, even if the rules don't read that way. i don't put anything past these bottom feeders.

 

Breach of contract (or the account agreement) is standard practice for these guys. Illinois law requires production of the contract if you claim that in a complaint. I have to wonder if Ohio has something similar.

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@Spikey

 

Definitely. I am sure no matter what happens, they will try to spin it that they followed discovery rules and answered on time. At least though I have something in my back pocket. Worst case scenario, it should be enough to create a genuine issue of fact that would render both of our MSJ denied. Or at the very least, create grounds for an appeal should things get really bad at some point.

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