Xenophon

How to Proceed in Defending against a JDB?

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@Xenophon

 

Just curious:  How is "account" vague and ambiguous in the context of this litigation?

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Any feedback on this responses will be much appreciated!

 

 

 Q. All docs there refer/relate to a credit cards issued by Bank

1. DENIED. After a diligent search and a reasonable inquiry in an effort to comply with this demand, Defendant denies receiving any alleged credit cards by NAME BANK , N.A., therefore defendant has no such documents in its possession at this time. as Discovery is still in progress      ongoing. Defendant reserves the right to amend his/her responses per the rules of civil procedure if such documents become available.

 

Q. all documents that refer/relate to credic card assigned by bank from XX/XX/20XX to XX/XX/20XX for account number XXXXXX

 

*** After diligent search of all records Defendant has no such documents in possession and has denied all allegations in the complaint.  Discovery is ongoing. Defendant reserves the right to amend her response if said documents become available***

Q all documents that refer/relate to trainsation initiated by you on credit card bearing account XXXXXXXXX from XX/XX/20XX - XX/XX/20XX

3. OBJECTION. Defendant objects to plaintiff’s use of the word “account” on the ground that it is vague and ambiguous in the context of this litigation. For that reason, defendant has asked plaintiff to respond to a Bill Of Particulars setting forth the contract referred to in the complaint, all the charges that were allegedly made pursuant to that contract, all credits that were made to the account, the price or charge for each item, materials or goods supplied or other considerations rendered, and all payments or credits that have been made to the account. Plaintiff objected and has not provided the complete account. Without such information, defendant is unable to provide the information sought in this Request. Defendant reserves the right to supplement her answer to this Request after plaintiff complies with Bill Of Particulars.

 

Q All documents that refer/ relate to payments made by you to bank  to applied to outstanding balance.

4. DENIED. After a diligent search and a reasonable inquiry in an effort to comply with this demand Defendant concludes that no such documents of alleged payments made to NAME BANK, N.A. that were to be applied to the alleged outstanding balance on the alleged credit card are in her possession or control as discovery is still in progress and not complete. Defendant reserves the right to amend her responses per the rules of civil procedure if such documents become available.

 

Q Al documents that refer/ relate to correspondence  sent by you to bak from XX/XX/20XX - XX/XX/20XX

5. DENIED. After a diligent search and a reasonable inquiry in an effort to comply with this demand, Defendant concludes that no such documents of alleged correspondence sent to NAME BANK, N.A. from the alleged dates XX/XX/20XX to XX/XX/20XX are in her possession or control as discovery is still in progress and not complete. Defendant reserves the right to amend her responses per the rules of civil procedure if such documents become available.

 

Q: All documents that refer/relate to correspondance received by you from bank on credit card number XXXXXXXXXXX

6. DENIED. After a diligent search and a reasonable inquiry in an effort to comply with this demand Defendant concludes that no such documents of alleged correspondence received by Defendant from NAME BANK, N.A. that reference the alleged credit card number XXXXXXXXXXX are in her possession or control as discovery is still in progress and not complete. Defendant reserves the right to amend her responses per the rules of civil procedure if such documents become available.

 

Q: all documents that refer/ relate to telephone calls made by you to JDB

7. DENIED: Defendant denies ever initiating any telephone calls to JDB. Therefore no such documents exist.  

 

Q: all documents that refer/relate to telephone calls received by you from JDB.

8. DENIED: Defendant denies ever receiving any telephone calls from JDB. Therefore no such documents exist.  

 

Q: All documents that refer/relate to correspondence received by you from JDB.

9. DENIED: Defendant denies ever receiving any correspondence from JDB. prior to the commencing of this motion, therefore no such documents exist.  (the only correspondance i ever received from them was after being summoned which was an answer to my request for validation).

Based on your first response I changed the second response   to reflect your denial. I would just use something like that basic response for the rest of them (other then what you say on the ones about the phone calls (7&8) . You have denied their allegations in the complaint, so you obviously do not have these items in your possession. You do not have to "change up" your answer in each response to amuse the judge or for fear of upsetting him. If you are denying then you don't have what they are asking for and that is the answer, it doesn't matter if it's canned or not.

All of these things they are asking for is exactly what THEY are supposed to give YOU, in discovery, not the other way around. You do not have to prove their case for them.

 

Someone will say "what are you going to tell the judge if they come up with documents?". You are going to motion the court to strike the documents and show on what grounds they are inadmissible. You don't just submit to them. And it's kind of likely that you would expect documents to come from them, that doesn't make them admissible.

 

Then you will hear "what are you going to do if they subpoena your bank records" (which is rare). Then you will obviously object to it. And they are going to do whatever they are going to do regardless. You don't adjust your strategy or discovery to serve their purpose.

 

As far as the judge getting upset with canned answers or all basically the same answers; the court doesn't want to get involved in discovery in the first place. Any judge that is upset with you for not answering differently to spice up each answer, is already upset just because you are fighting the case in the first place. You have a right to actively defend your self without fear of upsetting a judge, and the plaintiff bears the burden of proof.

 

They are not asking you to admit or deny (as in request for admissions) so I removed "denied" from your response. You just don't have anything to produce, you have already "denied" in the complaint.

 

You could also object to this as well due to an improper BOP response as I think that fits your case.

 

See what you think and what you come up with (if you choose to ) based on my opinions above.

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Thank you to all and each of you who have been helping me this far.

so i sent my request for documents to JDB, and just today i received the response to the request. in their response:

1: request to produce all documents relating to agreement between OC referencing the account No XXX, with defendant's signature.

 

A:  Plaintiff objects on the grounds that this request seeks inofrmation privileged ... and trade-secret in anture. Plaintiff futher objects on the ground that seeks material irrelevant  and not calculated to lead to discovery of admissible evidence for defentah't liability on account stated theory.

2. All documents relating or consittuting a contract... or other means demonstrating that JDB as the authority and is legaly entitled to collect on debt from OC on Accoutn XXXX.

 

A: Plaintiff objects on the grounds that this request seeks inofrmation privileged ... and trade-secret in anture. Plaintiff futher objects on the ground that seeks material irrelevant  and not calculated to lead to discovery of admissible evidence for defentah't liability on account stated theory.

3: All itemized statements from alleged OC account XXXX, that demonstrate how the alleged amount was calculated:

 

A: Reseived 12 months of statements, redacted bill of Sale, screen print with name and address, account, and a bal, Affidavit of sale from an attorney-in-fact somewhere in the state of Florida, Affidavit of sale on accout by OC, and a "copy"? of a letter sent from JDB informing that the "account" to the legal department.

 

4: All documents relating to the alleged "credit Card Account Purchase Agreement" referre in the alleged "bill of sale" date on XX/XX/XXXX between OC and JDB.

 

A: Plaintiff objects on the grounds that this request seeks inofrmation privileged ... and trade-secret in anture. Plaintiff futher objects on the ground that seeks material irrelevant  and not calculated to lead to discovery of admissible evidence for defentah't liability on account stated theory.

ive been reading ever since sending the the request for documents on what would be my next move. ASTMedic skiped the "meet and confer" and therefore the "Motion to compel" because he knew JDB didnt have evidence to prove their case, and also in other threats members argue that motion to compel helps the JDB.  while seadragon and others argue that MTC the "credit card accoutn purchase agreement" is beneficial.

 

Can someone explain if this is also beneficial on an Accoutn Stated theory?

 

thank you!

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They are just different strategies.  I myself would send a meet and confer and ultimately probably the MTC. I would keep constant pressure on them. I think they are far more likely to dismiss the case before trial if it is a thorn in their side, over a  case that is dormant, and I would make them have to spend time on the case.   ASTMedic's strategy is the opposite. Both work as long as you follow the next step:

 

Both sides agree on sending the ccp 96 witness and exhibit list request, as well as objecting to their CCP 98 declaration and subpoenaing the declarant, and motions to strike evidence produced in response to your ccp 96 request.

 

It doesn't really matter if it's account stated or open book etc; theses cases are all about economics to them.

 

This Is one of the judgment calls you have to make. 

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Thank you @Anon Amos
I think i will go down the Meet and Confer route. I do have a question, I am having a little bit of trouble putting down in words why the Credit Card Account Purchase Agreement material to the case.

 

Please help,  Thank you!

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Because the alleged bill of sale references it, but it is not included, therefore the bill of sale is incomplete. It also references certain warranties about the accuracy of the pool of accounts.

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@shellieh98 thank you.

Im going in to my 2nd job so I will work on your suggestion tomorrow morning during work.

Question: what would happen if I file the Meet and Confer, and receive no answer, then file MTC, and judge deems that such agreement is not needed? Is that a possible outcome?

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Yes it's possible. Nothing ventured, do thing gained.

What if he grants it? I would most likely see a dismissal in your future. You need to study up on making a compelling argument in your motion to compel should you need to file one.

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@shellieh98 thank you.

Im going in to my 2nd job so I will work on your suggestion tomorrow morning during work.

Question: what would happen if I file the Meet and Confer, and receive no answer, then file MTC, and judge deems that such agreement is not needed? Is that a possible outcome?

I think me and you are in the same ship, I am also looking to take the same angel and ask for the sales agreement. What the team recommended in my case as to send online  1 ROD and have it as fallows

 

 

1. The Purchase and Sales Agreement between_____________________________, Inc. and

 

_______________________________________, dated MAY 03, 2012, as referenced in the first

 

paragraph of the Affidavit “AFFIDAVIT OF SALE AND BALANCE’ singed by ________________ on

 

MARCH ??TH 2014.

 

If they don’t send it (and they won’t) then I will be filing a motion. If they do, then in most cases you will find something in it that says, the information that they have provided is may not be correct, blab blab la bal. If it does then they won’t be able to stand in court and claim that the info they have it accurate when the sales contract says it’s not.

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@Sammyvill thank you. Have you sent request for documents to plaintiff. I already did and requested that document along with a couple other request, which they objected.

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2011SRL5eRooney.pdf

 

A Good Friend of ours who will jump into this post soon sent me this article, it is by a lawyer who lives/works in California so its specific to our Sate. I has a lot of good info it help me a lot and hope it will do the same for you.
 

PS I am looking forward to seeing your motion to compel a purchase agreement I haven’t been able to locate one that is specific to CA, with the help of the team I hope we can put something together that will help us and everyone else who may need something like that.

 

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Im on my phonenon break so I acntnsee the attachment you posted., but I actually got my hands on a credit card agreement between chase and midland funding. I know I cannot use it as evidence but I was thinking that I can use it as argument on the motion to compel to demonstrate why the agreement is essential in this case

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I doubt you will have to argue much with a judge that the agreement is essential to the case. They usually do produce things once you file the MTC.

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how does this sound for the Meet and confer letter:

 

Reason Why Further Response Should be Provided:

 

Exhibit 1 is a copy of the alleged Bill of Sale with a Closing Date of **/**/**** between Original Creditor . “seller” and JDB “buyer”.  This documents in no way show any assignment of the account in question to the Plaintiff. Nowhere is there any reference to any account number or any assignment to the Plaintiff. The alleged Bill of Sale references a “Credit Card Account Purchase Agreement" between plaintiff and the original creditor in which the seller sets forth all warranties and/or lack thereof as to the accuracy of the documents concerning the charged-off accounts included in the alleged transaction. There is no good faith basis for plaintiff to contend that responsive documents are protected by the attorney-client privilege, the work product doctrine, or constitute trade secrets. 

If plaintiff does not produce the “Credit Card Account Purchase Agreement” stated in the alleged “Bill of Sale” mentioned above the accuracy of the alleged account cannot be verified, therefore, documents originated in above mentioned alleged transaction cannot be utilized to pursue this claim. Please produce all documents responsive to this request.

 

If plaintiff does not do so within 10 days, defendant will file a motion to compel and will seek sanctions for having to bring an unnecessary motion.

 

If you need to speak with me further about the matter feel free to contact me at the phone number at the top of this letter.

 

Thank You,

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got my Meet And Confer letter.... question: M&Cl letter has to be served or just Certified Mailed??

 

Thank you!

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Question: Plaintiff has 10 days to answer to M&C letter. Means i can file MTC on the 11th day, or do they have 10 days +5 days if served by mail?

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Hello, Question. Can anyone explain to me what an "At Issue Memorandum" is? I noticed on the court website that the Plaintiff filed and At Issue Memorandum last Friday, I have not yet received this document.

 

I sent my RFP to plaintiff, then M&C letter giving them 10 days to answer (today is the 10th day). I will appreciate any advice. Thank you!

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ok, i think i know what "At Issue Memorandum" is. can i still file MTC the plaintiff? no answer to my M&C letter has been received.

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Filed a Motion to Compel Discovery this evening. during the filing i realized that a trial date has been set for the month of November. I didnt see anything on the calendar regarding an CMC. when will be scheduled?

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Filed a Motion to Compel Discovery this evening. during the filing i realized that a trial date has been set for the month of November. I didnt see anything on the calendar regarding an CMC. when will be scheduled?

Did you send a final m&c letter of your intent to file a mtc?

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Here was my final m&c

 

Defendant writes regarding Plaintiff s failure to respond with respect to the above mentioned issue. Defendant has amicably tried to work with Plaintiff in this matter. Defendant's requests are the bare minimum for Plaintiff to demonstrate or refute his standing in this litigation.

 

Plaintiff seems to contend that upon filing this litigation Plaintiff saw fit "to stand in the shoes of the assignor" however, saw fit to "not stand in the shoes of the assignor" upon receiving Defendant's request to produce relevant documents. In addition, Plaintiff s assertion of the "Account Stated" claim contends to be the only claim not discoverable. Far from it. A party is entitled to disclosure in discovery as "a matter of right unless statutory or public policy considerations clearly prohibit it." Greyhound Corp v. Superior Court (1961) 56 C2d 355, 378, 15 CR 90, interpreting the Discovery Act of 1957. The intention of the discovery statutes is to make discovery a "simple, convenient, and inexpensive" means of revealing the truth and exposing false claims. 56 C2d at 376.

 

Therefore, this is Defendant's final meet and confer letter in this matter. Defendant is seeking the relief of the Courts and is giving notice that Defendant has filed a Motion to Compel Further Response to Defendant's Document Request.

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Sorry, my mistake, sent M&C letter, received objections based on trade secret and attorney client privilege. And one incomplete responce not CCp compliant. After that I sent an additional letter requesting code compliant answet. Spoke to lawyer over the phone and refuse to modify responses.

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