BrokeBaker

Being sued in California for old debt: served tonight

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@HomelessInCalifornia there was an open-ended question for #3:

 

3.  Admit that you made payments on CHASE BANK USA credit card now bearing account number xxxx within the last four years.
 
  • Deny.   but what else do I say? The last payment I see was 11/2008.  Based on the account statements the JDB gave me, the last payment they show is 11/2008, but they don't have any statements after June 2009.  I don't believe any payments were made after 11/2008, but I need to prove it, right?  Or is that their burden?

 

Do I just say Deny/Denied/Objection.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possesion.

Yep. If you don't recall the account, how can you recall any payments?

 

Also, remember that you are answering to the "best of your knowledge." That means you can only give the information that you have when you respond. It does not mean that you are stating empirical facts.

 

Remember:  It is the plaintiff's burden to PROVE their case.  It is not defense's burden to prove or disprove anything.

 

If it is to your advantage to disprove an assertion of the plaintiff, then those arguments come up in your motions and brief. Basic defense is to disqualify evidence and testimony and then show omissions, errors, flaws, and dual interpretations to the evidence and testimony that is finally allowed (if any).

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You can get copies from your old bank. It would be very expensive to order back statements from 2007 to present. What I would do is order statements from around the time you think last payment is, and get say 4-6 months worth of statements, a couple after the last payment. If it shows that last payment was out of the SOL, you need to get those copies notarized by the bank to authenticate them. A credit report will not work as proof.

If they want all your bank records, they can subpoena them and pay theirselves. If they show the payment was within the sol, keep quiet lol, they can provide their own proof.

I would do this ASAP because if you put after a diligent search yada yada, and don't produce them timely, they might move to preclude them because you didn't share lol.

 

I have the statements up until June 2009, which were provided by JDB.   Those statements show that 11/2008 was the last payment.   There was no payment 12/2008 through 06/2009.

The bank account that I used to make payments on this card was closed in 2009.  And after that, I'm pretty sure that a payment wasn't made after that.

 

I will call Chase Bank with the account number listed on the statements to see if I can find out when the last payment was AND to get a copy of that last statement.  Not sure what they have, but I can at least try.

 

 

If my research turns up nothing, can I say:  Defendant denies knowledge of any payment made after November 2008.  Plaintiff has requested information that show be in Plaintiff's possession.

 

 

Have I got that right?

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Not credit card statements. The statements from your checking account, presumably. Whatever account you used to pay from.

 

DON'T call Chase. One of the reasons that they haven't been selling debt for a while is that they had so many errors in their record keeping. If your own bank records do not show a payment after 2008, then it will be interesting to see how the JDB comes up with a payment in the past four years.

 

I think I need some popcorn. This will be fun. It should be fun for you, too. Watching them scramble to prove a lie--good times!

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Yes your checking account statements, or what ever account you used to pay on the account.

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For me personally, when dealing with discovery answers, I like to be as clear as possible on answer to Request for Admissions.  The reason is leaving any wiggle room can be used against me later.  Your statement above as follows " Defendant denies knowledge of the account " is not a clear enough denial.  Lawyers make a living twisting statements, to fit their needs.

 

Here are couple of answers that I will typically use for these types of RFA's.

 

Defendant incorporates all General Objections. Based on the foregoing objections this party is Denies to this Request for Admissions #X.  Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

 

Or this one-

 

Defendant incorporates all General Objections. Defendant further objects this discovery request as phrased is argumentative. It requires the adoption of an assumption, “you left a balance due and owing” which is improper.  There is no current evidence before the court the Defendant has an account. Any discovery request that requires the adoption of an assumption is argumentative. This is objectionable as to form.

 

Based on the foregoing objections this party is Denies to this Request for Admissions #X.  Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

 

So for me I like a clear "DENIES" or" DENIAL" or "DENIED".  There is no way to twist this, versus  "denies knowledge of the account".  It is probably a matter of taste and others may have other ideas, but thought I would share mine.

 

As stated previously once and if you are certain that the suit was filed beyond the SOL, you should be able to get any decent attorney to take your case over and complete the task.

 

Best of Luck

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Agree with skippy1960. I like a clear denial, leave no room for interpretation. place a period and then add something if it's truly needed.

 

"DENIED. Lorem ipsum dolor sit (if necessary) ..."

 

Also take a look at CCP 2033.210-2033.300 - gives a guide on how responses should be crafted. Make responses definitive and as suggested by the CCP - I would think the JDBs would not have any any wiggle room to distort answers or otherwise come back at you.

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After much work, I cannot get any bank statements that show when the last payment was made to my chase credit card.  That Bank Account has been closed, and the Bank itself no longer exists (It was a Washington Mutual Account that I used to pay that credit card, because it was a Washington Mutual Bank credit card.  Chase bought WaMu).

 

That WaMu account was closed 5 years ago.  So, I don't have proof of the last payment I made.  But I KNOW the last payment was in 2009 at the latest.  And no matter how you slice it, that's 5 years ago.  But I can't go right for the SOL argument because I don't have the smoking gun proof.

 

So, I need to provide an Admission or Denial of the 8 requests for admissions.

 

I guess what I am confused about is how can I deny knowledge of the account and then later argue "but I know enough about the account to know that I haven't made a payment in 5 years".

 

 

The language that some have suggested for me don't seem like it'll work.  And, I haven't been able to find a sample Response to RFD.

 

=======================

I'm working on this tonight, and so on pleading paper, I have refined my responses to the "Request for Document" as below, but it still seems fishy to me.

 

 

1.  Admit that you applied for a credit card from now bearing account number xxx

Should I say:  Denied.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

Question: I can't confirm whether the Chase Credit Card I had it the same account number on their documents. How do I resolve?

 

2.  Admit that you received a credit card from CHASE BANK USA now bearing account number xxxx

Should I say:  Denied.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

Question: I can't confirm whether the Chase Credit Card I had it the same account number on their documents. How do I resolve?

 

 

3.  Admit that you made payments on CHASE BANK USA credit card now bearing account number xxxx within the last four years.  

Denied.   

 

4.  Admit that you became delinquent in the payments due on the CHASE BANK USA credit card now bearing account number xxx

Denied OR Admit???   I did become delinquent thought.

Do I add "Plaintiff has requested information that should be in Plaintiff's possession."?

 

5.  Admit that you left a balance due owning on CHASE BANK USA credit card now bearing account number xxxx.

Should I say:  Denied.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

Question: Even if I know there was a balance left on the card, I still deny?

 

 

 

6.  Admit you received statements regarding the CHASE BANK USA credit card now bearing account xxxx

Cannot truthfully admit or deny the matters set forth in this request because he does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.Cannot truthfully admit or deny the matters set forth in this request because he does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.

 

7.  Admit that the balance due and owned by you on the CHASE BANK USE credit card now bearing account number xxxx as of December 9 2010 was $xxxx

Cannot truthfully admit or deny the matters set forth in this request because he does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.

 

8.  Admit that at all relevant times, Plaintiff has had and now has all rights, title, interest, and sole ownership to CHASE BANK USA credit card now bearing account number xxxx

Denied. Defendant has failed to provide information to substantiate this request.Plaintiff has requested information that should be in Plaintiff's possession.

 

OR

 

Cannot truthfully admit or deny the matters set forth in this request because he does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.

 

 

========================================

If you have any information or a sample response, I'd love to see it.  i just don't feel confident on the responses because I'm confused on possibly being contridictory.
========================================
 
Thanks!
 

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In addition tot he request for production of documents (which I've detailed in the earlier post), they also served me Request for Admissions.  In this document, they requested that I admit that all documents provided to me are "genuine".  The documents are 18 bank statements.

 

How do I respond to this?  Do I deny since they aren't originals, or do I admit they are genuine.  They do look like my statements, because there are a lot of familiar charges as I looked through them.

 

Please advise if you can.

 

-BB

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After much work, I cannot get any bank statements that show when the last payment was made to my chase credit card.  That Bank Account has been closed, and the Bank itself no longer exists (It was a Washington Mutual Account that I used to pay that credit card, because it was a Washington Mutual Bank credit card.  Chase bought WaMu).

 

That WaMu account was closed 5 years ago.  So, I don't have proof of the last payment I made.  But I KNOW the last payment was in 2009 at the latest.  And no matter how you slice it, that's 5 years ago.  But I can't go right for the SOL argument because I don't have the smoking gun proof.

 

So, I need to provide an Admission or Denial of the 8 requests for admissions.

 

I guess what I am confused about is how can I deny knowledge of the account and then later argue "but I know enough about the account to know that I haven't made a payment in 5 years".

 

 

The language that some have suggested for me don't seem like it'll work.  And, I haven't been able to find a sample Response to RFD.

 

=======================

I'm working on this tonight, and so on pleading paper, I have refined my responses to the "Request for Document" as below, but it still seems fishy to me.

 

 

1.  Admit that you applied for a credit card from now bearing account number xxx

Should I say:  Denied.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

Question: I can't confirm whether the Chase Credit Card I had it the same account number on their documents. How do I resolve?

 

2.  Admit that you received a credit card from CHASE BANK USA now bearing account number xxxx

Should I say:  Denied.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

Question: I can't confirm whether the Chase Credit Card I had it the same account number on their documents. How do I resolve?

 

 

3.  Admit that you made payments on CHASE BANK USA credit card now bearing account number xxxx within the last four years.  

Denied.  No payments have been made to Chase Bank USA within the last four years.

 

4.  Admit that you became delinquent in the payments due on the CHASE BANK USA credit card now bearing account number xxx

Denied:  Plaintiff has requested information that should be in Plaintiff's possession.

 

5.  Admit that you left a balance due owning on CHASE BANK USA credit card now bearing account number xxxx.

Should I say:  Denied.  Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

Question: Even if I know there was a balance left on the card, I still deny?

 

 

 

6.  Admit you received statements regarding the CHASE BANK USA credit card now bearing account xxxx

Denied. Defendant denies knowledge of the account. Plaintiff has requested information that should be in Plaintiff's possession.

 

7.  Admit that the balance due and owned by you on the CHASE BANK USE credit card now bearing account number xxxx as of December 9 2010 was $xxxx

Denied. Defendant denies knowledge this balance due. Plaintiff has requested information that should be in Plaintiff's possession.

 

8.  Admit that at all relevant times, Plaintiff has had and now has all rights, title, interest, and sole ownership to CHASE BANK USA credit card now bearing account number xxxx

Denied. Defendant has failed to provide information to substantiate this request.Plaintiff has requested information that should be in Plaintiff's possession.

 

 

========================================

If you have any information or a sample response, I'd love to see it.  i just don't feel confident on the responses because I'm confused on possibly being contridictory.

========================================

 

Thanks!

I can tell you are struggling with just saying DENIED, to all or most of these. But above you have a reasonable answer to your question or concern. When the account was opened and active it was a Washington Mutual Credit Card account by your own research. They know this also and that is why the wording of the RFA's is as follows:

on or from or by "CHASE BANK USA now bearing account number xxxx".

Ask yourself a question how come RFA #1 doesn't include the line above???

I personally would answer DENIED to all of the RFA's, if there was never a payment made to Chase. Meaning if you defaulted prior to Chase taking control. The fact that they aquireed the assets is not part of the current request for admission. Finally, you are answering these based on your current knowledge today, not what you may learn or understand 12 months from now at a trial....

It appears you have answered the SOL question meaining your research has concluded that you haven't made any payments on this account at least 4 years prior to the date the suit was filed.

If this is true I would finalized my answers to the discovery and go find a counsumer lawyer. The should want to take your case as it will be an easy pay day for them and you...

Finally, asserting a defense to a law suit doesn't mean you have to admit at any given time you are a true party to the alleged complaint. Notice that the word "Alleged", currently the otherside is alleging you are a party to this contract and owe money.

All the facts being equal lets say you really weren't the correct person, would that change the fact that they have filed suit on a debt that is outside the SOL? Answer is NO.

I dealt with Chase on the same circumstance WAMU account, wasn't even outside the SOL. Hired an attorney went to trial and we won, Chases witness could not testify to WAMU's contract/business records...I wish we had a SOL defense would have been much easier..

It is a FDCPA and Roesenthal violation to file suit on a time barred debt, you may already be owed a $1000.00 dollars from the otherside....

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In addition tot he request for production of documents (which I've detailed in the earlier post), they also served me Request for Admissions.  In this document, they requested that I admit that all documents provided to me are "genuine".  The documents are 18 bank statements.

 

How do I respond to this?  Do I deny since they aren't originals, or do I admit they are genuine.  They do look like my statements, because there are a lot of familiar charges as I looked through them.

 

Please advise if you can.

 

-BB

Very Simply DENIED!!!!

How do you know if they are genuine, did you work for Chase Bank in the computer department that does all the accounting and puts all the informaiton into statements. Did you handle any of the mail for Chase Bank to make sure the statements were actually sent to any of the customers...

I believe they are hoping for you to screw up on these answers and they can collect on this time barred debt..

Complete you answers and get them sent so you aren't late, then go find an attorney and let them get you that $1000.00....

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I am curious, can't a Credit Report show when a last payment was made to the original creditor?  Does it have to be a checking account statement?

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Credit reports often show a date of last payment or date of delinquency.  But credit reports are frequently inaccurate.

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In addition tot he request for production of documents (which I've detailed in the earlier post), they also served me Request for Admissions.  In this document, they requested that I admit that all documents provided to me are "genuine".  The documents are 18 bank statements.

 

-BB

If 18 bank statements were provided to you by anyone other than the bank; then they cannot be "GENUINE"  (even if they are accurate (not saying they are). You cannot commit perjury and claim they are genuine when it was a bottom feeder (not the bank) that gave them to you.

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I guess what I am confused about is how can I deny knowledge of the account and then later argue "but I know enough about the account to know that I haven't made a payment in 5 years".

Because you know your financial situation, when things went bad, and when they were still good  (financially speaking), you may not remember this account; but you do remember the last time you were making regular payments and when you fell behind etc.

I believe you once said that you started a business and have been broke ever since. So your last time of regular payments and still having money (before starting the business) was 5+ years ago. 

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The language that some have suggested for me don't seem like it'll work.  

 

 

Thanks!

 

DENIED....Try that. Standard procedure for RFA's.

 

Look out for trick questions however. Sometimes you deny any and all amounts, etc.

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After much work, I cannot get any bank statements that show when the last payment was made to my chase credit card.

You can send them discovery (if you  haven't already) and ask for an accounting of the alleged account from inception to the  amount prayed for in the complaint. They need to prove the amount is correct and would have to show the payments to do so, including the last one. 

  But I can't go right for the SOL argument because I don't have the smoking gun proof.

I would if it were mine (assuming it's not too late). I would assert the SOL as an affirmative defense and try to let them provide the proof in discovery. If I couldn't prove then I would not sweat it; and just beat them the traditional way. If you did not assert SOL as an affirmative defense it will be moot anyway, however.

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You can send them discovery (if you  haven't already) and ask for an accounting of the alleged account from inception to the  amount prayed for in the complaint. They need to prove the amount is correct and would have to show the payments to do so, including the last one. 

I would if it were mine (assuming it's not too late). I would assert the SOL as an affirmative defense and try to let them provide the proof in discovery. If I couldn't prove then I would not sweat it; and just beat them the traditional way. If you did not assert SOL as an affirmative defense it will be moot anyway, however.

 

 

@Anon Amos

 

Thanks for multiple points.

 

In May 2014, I sent JDB a request for BOP, and they only sent me credit card statements from 1/7/2008 - 6/7/2009.    I opened the account in 2007.

 

The statements JBD provided showed that my last payment was made in October 2008.  They have statements from November 2008-June 2009 and there was no payment made during those dates.

 

JDB doesn't have any more statements to cover the end of 2009 or into 2010.

 

JDB sent me a RFD, one of which includes a request for credit card statements up to 12/2010.  They also sent CHASE a subpoena asking for statements up to 2010.  Which means they have no proof that a payment was made within the last 4 years (which I know there wasn't because of my financial situation).  JDB has no statements to prove a payment was made, which is why they are asking me and Chase for statements.

 

In May, I sent request for BOP, and got nothing.  June 4th, I sent them a meet and confer letter, asking for all documents I originally requested in the BOP.  This included all statements from creation of the account to the account's closure.  They have failed to respond.  

 

I was waiting on JDB's response to BOP, and then I was waiting on a response to my M&C letter, before I did formal discovery.

 

Also, in my Answer, I did use  SOL as an affirmative defense.  I had about 18 other affirmative defenses listed, but for sure SOL was one of them.

 

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@BrokeBaker

 

I'd be suing both the JDB and the attorney for filing suit on a time-barred debt.  1692e(2) and 1692e(10) of the FDCPA and whatever would apply to the Rosenthal Act.

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I think you should be much more confident in your SOL defense. Your discovery request have proven SOL if they showed your payments. They did not leave the last payment out just to trip you up, and if they did; you can still use it against them.
 
The rules of evidence also work in reverse. If there was a payment made that kills the SOL theory, then it should have been produced. Evidence that a record that should have been made during the regular course of business does not exist, can be used as proof that is was never made.
 
They gave you the accounting of your payments which you can use against them to prove the SOL. I actually agree with BV80 in that you have a suit here against them. You may be able to get a lawyer to take your case on contingency.

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My trial date is on June 5th, and all the information provided by Kenosian (Plaintiff's attorney) during Discovery shows that the JDB doesn't show I made any payment after September 2009, which means when they served me in March 2014, the lawsuit was barred due to Statue of Limitations. (they would have had to serve me before 9/30/2013)

 

Given that I have about 8 weeks left before trial, I will need to figure out what my next steps needs to include.   Also, I remember reading on a thread something about how to handle the affidavit that was provided (I know I want to get it thrown out, but I have to find what others have recommended).

 

Thanks to everyone that has supported me so far.  If you read this, any tips you can provide would be appreciated.  Also, I'll be private messaging some of you by the end of the week.  including @Seadragon @shellieh98 @calawyer @HomelessInCalifornia @Anon Amos

 

-BB

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I think they will dismiss before trial, and try to slink away. I may be inclined to send a meet and confer telling them last payment on this alleged account was well past the sol when they filed suit. If they would like to settle with me before trial, you would accept 1000.00. A dismissal with prejudice, and no reporting to the cra's. If not then I am prepared for trial, and when it is over I will be contacting a NACA attorney to inquire about a suit against xxxx for filing suit on a time barred debt. but what ever your comfortable with. If you do this outline when account was charged off, and when they filmed suit. Sol is 4 years.

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What matters is when the case was filed not when it was served.  See CCP 350:  http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=350-363

 

Was your case filed within 4 years of the last payment?

 

Between 45 days and 30 days before trial, you should serve a CCP 96 request.  This requires plaintiff to give you all of the evidence and witnesses it intends to use at trial.  Plaintiff's response will tell you whether it  intends to use a live witness or a declaration.

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I think the case may be time barred by the running of the SOL, but the SOL for you to sue them (for suing you after SOL) has also run out.

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not necessarily Anon Amos.  He raised the defense yes, but they continued this charade.  He needed documents to verify, and since he asked for them, it has not been a year, so he could file based on the date he requested the documents, not when the case was filed.  He didn't know for sure, but when he found out for sure, a year had not passed.  However May would be his 1 year, so if he is going to do it, he should do it now.

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