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Sued by Gurstel Pocket Docket in MN - need help at Discovery stage

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I need some help on next steps in Discovery phase of lawsuit.  Here's a snapshot of where things are at:

 

April 2014:

Via Pocket Docket in Minnesota, was served by Gurstel Chargo, representing Autovest as JDB for Wells Fargo Financial on Consumer Debt. With interest it's around 25k. 

 

I responded within the 20 days required, basically said insufficient information to be able to admit or deny claims.  Asked for plaintiff to prove claim. Requested lawsuit be dismissed, etc.

 

May 2014:

Gurstel sends robo letter to discuss discovery plan, gives settlement offer. Discovery plan states they will provide Required Disclosures on or before June 27, 2014 and proposes I do the same as soon as possible. 

 

I respond via certified mail by June 27 that basically I no longer have any documents. With regards to the Discovery Plan, I sent a revised plan that read: 

(1)  Plaintiff and defendant (via attachment) will provide its 26.01(a) Required Disclosures on or before June 27, 2014.  Plaintiff proposes Defendant provide his/her 26.01(a) Required Disclosures as soon as possible.  Plaintiff and Defendant will respond to the discovery requests by July 27, 2014.

 

So now it is July 9 and I haven't received anything from Gurstel.  No discovery documents.  Nothing.  The SOL should be running out within a few months however I haven't been able to get the exact date verified from Wells Fargo.

 

Here's my question: They never sent any type of Discovery so can't I get this officially dismissed?  If so, how?  What are my next steps?

 

Help!

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Because you changed the date, they have until July 27th plus mailing time to respond. If they don't after that, then you have to wait until they file a case in court prior to filing any motions to compel.

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WhoCares1000 -

 

Thanks for the quick response. Perhaps you can help clarify a bit on these questions :)

 

-Since their original Discovery Plan stated: "(1)  Plaintiff  will provide its 26.01(a) Required Disclosures on or before June 27, 2014" and my request was received by them on that day, if they had intended to send Required Disclosures by that date wouldn't those have already been sent?  As in, their maill and my mail passed through at the same time?

 

-So far, I haven't received any DV whatsoever and am assuming they are the 97% JDB that don't have anything.  Not sure if you've dealt with them in the past but what is the likelihood they will send anything?

 

-I thought I read with a Pocket Docket that I can still try to get this dismissed even if they don't file at the courts.  If they don't file and I don't hear from them, what should I expect to have happen?  The SOL should be running out in a few months.

 

Any insight or advice on next steps, if I need an attorney, etc. is greatly appreciated!

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You probably don't need an attorney just yet. Even if the letter passed in the mail, by making the change, you gave them an extra month to get the evidence.

As for dismissal, that can only be done by the plaintiff prior to the case being filed. Defendants cannot dismiss cases. Realize that if they do dismiss, the SOL will continue on as if the case never happened. They are probably now trying to buy themselves time.

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I received a reply from Gustel and not sure what it means or how to handle.  Below is the entire Discovery Plan they sent.  I sent it back with my edits that are in cross outs and italics. 

 

Here is a summary of their reply:

 

"We are in receipt of your revised Discovery Plan, please be advised Plaintiff objects and does not agree with amendments as stated. You may file a separate discovery plan with the court if you desire. If you have any questions, please call us.  This communication is from a debt collector and is an attempt to collect a debt, Any information willl be used for that purpose."

 

I haven't the foggiest on what to do next or what this even means.  Help!

 

 

---

Pursuant to Rule 26.06© of the Minnesota Rules of Civil Procedure, the parties submit the following revised Discovery Plan:

 

(1)  Plaintiff and defendant (via attachment) will provide its 26.01(a) Required Disclosures on or before June 27, 2014.  Plaintiff proposes Defendant provide his/her 26.01(a) Required Disclosures as soon as possible.  Plaintiff and Defendant will respond to the discovery requests by July 27, 2014.

 

(2) Discovery will be needed on any denial, dispute, or defense claimed or asserted by Defendant.  Plaintiff will provide Discovery materials for each assertion in the complaint that the defendant did not agree to in the Answer.  Plaintiff will also provide Discovery that will be used to prove the debt if valid under Minnesota law. Discovery should not be conducted in phases, but should be limited to the issues raised in Plaintiff’s Complaint and Defendant’s Answer.

 

(3)  Any of Plaintiff’s electronically stored information can be reproduced in hardcopy format.

(4)  Parties may claim privilege of or protection of trial-preparation materials at the time of production.  If a party disagrees with a designation, the disagreeing party must object to the designation within fourteen days of receiving the document.  If the parties are unable to resolve a designation dispute, the parties may petition the court of a determination.

 

(5)  No changes should be made to the limitation on discovery imposed under the Minnesota Rules of Civil Procedure or Local Rules.  Plaintiff does not propose any other limitations.

 

(6)  The court need not issue any other order under Rules 26.03, 16.02 and 16.03 at this time.

Pursuant to Rule 26.06© of the Minnesota Rules of Civil Procedure, the parties submit the following revised Discovery Plan:

 

(1)  Plaintiff and defendant (via attachment) will provide its 26.01(a) Required Disclosures on or before June 27, 2014.  Plaintiff proposes Defendant provide his/her 26.01(a) Required Disclosures as soon as possible.  Plaintiff and Defendant will respond to the discovery requests by July 27, 2014.

 

(2) Discovery will be needed on any denial, dispute, or defense claimed or asserted by Defendant.  Plaintiff will provide Discovery materials for each assertion in the complaint that the defendant did not agree to in the Answer.  Plaintiff will also provide Discovery that will be used to prove the debt if valid under Minnesota law. Discovery should not be conducted in phases, but should be limited to the issues raised in Plaintiff’s Complaint and Defendant’s Answer.

 

(3)  Any of Plaintiff’s electronically stored information can be reproduced in hardcopy format.

(4)  Parties may claim privilege of or protection of trial-preparation materials at the time of production.  If a party disagrees with a designation, the disagreeing party must object to the designation within fourteen days of receiving the document.  If the parties are unable to resolve a designation dispute, the parties may petition the court of a determination.

 

(5)  No changes should be made to the limitation on discovery imposed under the Minnesota Rules of Civil Procedure or Local Rules.  Plaintiff does not propose any other limitations.

 

(6)  The court need not issue any other order under Rules 26.03, 16.02 and 16.03 at this time.

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They are saying they gave you a proposed discovery plan, you gave them the plan back with revisions to their plan, and they do not agree with your plan. So they are saying they will file theirs, and you can file yours if you want.

I don't know your rules, I would pull out mn rules of civil procedure, and search out the discovery part. They will tell you if you need to file a plan. My state we don't, we use disclosure, period unless it a huge case, but your state looks like they use initial disclosures, then discovery for the things you didn't get (or things they don't have) later.

Research your states rulings in civil cases. What is it they need to win? Look at the charges against you, is it breach of contract? Account stated? You need to know what they need in order to win. The reason they didn't agree to your plan is because you stated "plaintiff will provide discovery materials for each item, blah blah blah. They have no intention of doing that. They are going to do it as cheap as possible. ( they have to pay for each document from the OC after a few, at like 5.00 a page). They are not going to do that.

That is why most firms are going for the account stated theory.....it is easier to prove with less paperwork for them. (But not if you know how your state has ruled, and what they need because you will want to object to what they have)

They are going to give you a couple of statements, a bill of sale of a pool of accounts, and an affidavit by someone that works for them saying they reviewed your account, and yep you owe them.

Your job will be to read how your courts have ruled, what they need to win, and how you will refute the evidence they do have.

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Update:  I've not heard a word from GC since the last letter in mid-July that said they didn't accept my discovery.  I've also not contacted them.  Now what? 

 

A couple of questions:

1 - The SOL on the debt has either passed or coming up soon. This was a an auto loan that was written off with WF and then sold, resold to JDB. Is the SOL on the anniversary of the last payment I made to WF,  when they write it off, when it gets sold?

 

2 - Being I haven't heard a word for over 2 months, now what?  What should I do or what should I expect?

 

Any input would help!

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As far as I know, nothing has been filed in the courts. It's pocket docket only.  If something is filed with my county, don't I need to be informed? If that doesn't matter, how could a person plead SOL at discovery or to have it dismissed?

 

What should I expect as their next move, if any? 

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Under the new Minnesota rules, they have 1 year from starting the case to file it with the court. That means that they have until April 2015. Otherwise the case gets dismissed automatically and then the SOL will have run out.

As this point, the both of you have an argument as to how discovery will be performed (and whether they really followed up on their own discovery plan). This cannot be dealt with until the case is filed with the court.

I think at this point, the ball is in their court on what to do next and you can really only sit tight and watch the count court listings to see if the file. If they do, I am betting it will be 1 or 2 days before the 1 year clock runs out.

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I need help understanding what I see online at pa.courts.state.mn.us.Does this mean the case has been dismissed and I'm done with this ordeal??  Any insight is greatly appreciated!!

 

-----

Briefly summary:

4-9-14 - was severed pocket docket, from then went through phases of discovery, etc. until December

1-13-15 - sent Response to Interrogatories, Response for Product of Documents and Response for Admissions to JDB

 

4-6-15 - JBD mailed copy of their filing with County court mailed, proposed trial date of 3-28-16.

4-8-15 - I received copy of filing, just looked it up online at pa.courts.state.mn.us and here's what it shows:

 

DISPOSITIONS

4-8-15  Dismissal without prejudice

 

 

OTHER EVENTS AND HEARINGS

4-6-15  Case Filed

4-6-15  Certificate of Representation

4-6-15  Civil Cover Sheet

4-6-15  Summons and Complaint

4-6-15  Affidavit of Service

4-6-15  Affidavit of Service

4-6-15  Schedule Court Trial

4-7-15  Notice of Case Assignment

4-7-15  Order for Dismissal

4-8-15  Notice of Entry of Judgment

4-8-15  Judgment

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I'm a bit dumb-founded....  If dismissed without prejudice, I assume they can still try to bring suit again.  However, SOL just expired so perhaps I can truly do a happy dance???

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Sweet! If they do file again, is there a limit to how long they have to wait or how long they CAN wait?  In other words, when can I feel this is finally completely behind me?

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Uh now. If they file again, and the sol is up, lucky you. You get 1000.00 when you counter sue for filing on a time barred debt. They can however still report on your credit report for total of 7 years after the default of the account.

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MN SOL is 6 years so it is only on the credit report for another 1.5 years and that is it there.

Since the case was not filed with the court, I would suggest going to the courthouse and verifying that it was a dismissal and not a judgement against you. Make sure you get the case number from the website and you can review the case without purchasing the documents. The window clerk will bring it to you.

They can file at any time but if they file again, you bring up SOL and then counter sue for FDCPA violation. At that point, I would pay the court fee to remove this from pocket docket because they will have to pay you back when you win.

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A new twist - I received my paperwork from the court today that showed the case was dismissed 'DUE TO WRONG VENUE'.  Judge said neither I nor JDB was a resident of the county.  HOWEVER, I AM a resident of said county.  So, I would think the JDB would re-file, however the date I was originally served was 4-9-14 and the date they had filed at my county was 4-6-15.  There were 3 days short of SOL expiring on the paperwork of when the initially served me. 

 

Questions -

1) Can they refile with the same county and point out that I AM a resident, thereby overriding the judge's dismissal?

2) If they can refile, can it go back to the original filing date of 4-6-15 since the judge was actually in error on the residency issue?

3) If they can refile and judge allows the 4-6-15 date and in essence, not hitting the SOL, can I still countersue for SOL for this or the original debt?

 

Any insight is greatly appreciated!!!

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Did you file a general denial for all things in the complaint and the judge just pounced on that without proof? This is really really strange. Then again, due to lack of funding at the state level, the judges are overworked and could have made a mistake.

The first thing I would do is lay low and not say anything to the court or other lawyers. Realize that Gurstel has 1000s of these cases and it might take them time to realize what happened and by then, it will be too late.

What I believe can happen is that they have 20 days from the date of the judges decision to file a motion to vacate the judgement or appeal. This is the same thing that defendants get after a judgement of any kind is rendered against them. If they do the motion or appeal and the motion is granted or the plaintiff's appeal is upheld, the date reverts back to the original case of 9 April 2014 as the original case is still open. If the motion is denied or the plaintiff's appeal is denied, then the case is closed.

I would do 2 things at this point:

1) Watch the website and see what they do next. Watch the number of days carefully, If they get within the allotted 20 days, you can try to fight it but will lose. If they file after the 20 days, file an opposition saying that they are outside of the allotted time and that if the roles were reversed, you would be required to be within the time limits.

2) I would consult with a consumer attorney at this point. A 30 minute consult would be between $100 and $200 and it would be worth it just to know what is going on.

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Ugh.  JDB was able to get the dismissal reversed and the judge to admit they dismissed for wrong venue in error.  My understanding is that it stands as if it had not been dismissed.  I've now received a motion for summary judgement. They attached some documents such as my original note with WF, however the docs that show the JDB that is being represented isn't real clear on if they specifically bought the debt or not.  I contacted a defense attorney who said there is some possibility this can be fought and I win based on if they truly own the debt or not. More realistically he said I may want to try to settle. It's 25k at stake.

Here's the big decision I need to make within the day.  I can retain the attorney at a flat $2500 to fight for me and /or potentially negotiate.  He has to file a motion to delay within the next day.  If granted gives a bit of time to do his discovery.  If not, court date is 10-21.  If I pay him to represent and then we negotiate in the long run it might be less than the $25 k, but I have to wonder if I can negotiate with the JDB on my own and have less out of pocket all around.

Suggestions?  Pay the attorney and take my chances we can delay and possibly win or try to negotiate on my own.  If I don't have the attorney I really don't think I have the knowledge to fight correctly in court.

Help.

 

 

 

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Odds are, you will probably win with the attorney so I would suggest that route with $25k at stake and a $2500 flat fee. Sounds like they really want a judgement against you with because these things don't usually make it to court and especially are not appealed in Minnesota. Since they are gunning for you, you want someone on your side.

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