justiceforall3

Responding to Discovery Request, Pending MSJ, LVNV, Michigan

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I received a request for admissions, interrogatories, production, etc.. from the Plaintiff LVNV on June 19th.  The Plaintiff also filed a Motion for Summary Disposition on June 30th.  My question is, do I need to respond to the discovery request, or should I simply focus on my opposition to their MSJ?  I am not sure what can be deemed admissible if I don't respond in 28 days.  The Plaintiff has not responded to my discovery request and so I feel I shouldn't respond to theirs.  I am looking for some advice.  Please help! 

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The fact that the Plaintiff has not responded to your discovery requests is GOLDEN.  I would immediately respond to their discovery request by denying everything. Use the forums standard answers. Most courts will deny a MSJ if discovery is not complete or if there is one outstanding fact. Annotate the missing discovery item by item in your reply to Plaintiffs MSJ and be sure to include all documents when you file your reply. Include an affidavit of denial of debt and get it notarized and send CMRRR to plaintiffs attorney after you file it with the court. Plaintiff is going for a quick Default Judgment and is trying to scare you away for going to court on the MSJ motion. Dont let them. 

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I already did all the work writing my opposition to their MSJ and was going to file that in a couple weeks (the Motion date isn't until Aug 11).  I argued against their affidavit of account stated claim, and feel pretty confident I can beat their MSJ.  I was told by an attorney friend that I didn't have to respond to their discovery and to simply file my opposition memo, but that same person advised me to admit to opening the account in my answer, and I don't feel so confident in his help anymore.  Unfortunately I would have to file my response to their discovery tomorrow (which is the 28th day) and was hoping I didn't have to as I would have to at minimum admit to opening the account again (to not contradict my answer).  I feel like If I don't respond to their discovery I have a better chance. 

 

My question is basically if I don't respond to their discovery, how does it hurt me? What does it mean that it becomes admissible? 

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I already did all the work writing my opposition to their MSJ and was going to file that in a couple weeks (the Motion date isn't until Aug 11).  I argued against their affidavit of account stated claim, and feel pretty confident I can beat their MSJ.  I was told by an attorney friend that I didn't have to respond to their discovery and to simply file my opposition memo, but that same person advised me to admit to opening the account in my answer, and I don't feel so confident in his help anymore.  Unfortunately I would have to file my response to their discovery tomorrow (which is the 28th day) and was hoping I didn't have to as I would have to at minimum admit to opening the account again (to not contradict my answer).  I feel like If I don't respond to their discovery I have a better chance. 

 

My question is basically if I don't respond to their discovery, how does it hurt me? What does it mean that it becomes admissible? 

 
What does it mean that it becomes admissible?
Each matter as to which a request is made is deemed admitted unless answered or objected to within 28 days of receipt of the request! Example: Admit you owe Plaintiff $25,000. Failure to answer admission on time means you admit you owe $25,000. The judge will hold you to that. 
 
Please read the court rules very, very carefully. 
Rule 2.309 Interrogatories to Parties 
(A) Availability; Procedure for Service. A party may serve on another party written 
interrogatories to be answered by the party served or, if the party served is a public 
or private corporation, partnership, association, or governmental agency, by an 
officer or agent. Interrogatories may, without leave of court, be served: 
(1) on the plaintiff after commencement of the action; 
(2) on a defendant with or after the service of the summons and complaint on 
that defendant. 
( B ) Answers and Objections. 
(1) Each interrogatory must be answered separately and fully in writing under 
oath. The answers must include such information as is available to the party 
served or that the party could obtain from his or her employees, agents, 
representatives, sureties, or indemnitors. If the answering party objects to an 
interrogatory, the reasons for the objection must be stated in lieu of an answer. 
(2) The answering party shall repeat each interrogatory or subquestion 
immediately before the answer to it. 
(3) The answers must be signed by the person making them and the objections 
signed by the attorney or an unrepresented party making them. 
(4) The party on whom the interrogatories are served must serve the answers 
and objections, if any, on all other parties within 28 days after the 
interrogatories are served, except that a defendant may serve answers within 
42 days after being served with the summons and complaint. The court may 
allow a longer or shorter time and, for good cause shown, may excuse service 
on parties other than the party who served the interrogatories. 
 
Rule 2.312 Request for Admission 
(A) Availability; Scope. Within the time for completion of discovery, a party may 
serve on another party a written request for the admission of the truth of a matter 
within the scope of MCR 2.302( B ) stated in the request that relates to statements 
or opinions of fact or the application of law to fact, including the genuineness of 
documents described in the request. Copies of the documents must be served with 
the request unless they have been or are otherwise furnished or made available for 
inspection and copying. Each matter of which an admission is requested must be 
stated separately. 
( B ) Answer; Objection.
(1) Each matter as to which a request is made is deemed admitted unless, 
within 28 days after service of the request, or within a shorter or longer time as 
the court may allow, the party to whom the request is directed serves on the 
party requesting the admission a written answer or objection addressed to the 
matter. Unless the court orders a shorter time a defendant may serve an 
answer or objection within 42 days after being served with the summons and 
complaint. 
(2) The answer must specifically deny the matter or state in detail the reasons 
why the answering party cannot truthfully admit or deny it. A denial must fairly 
meet the substance of the request, and when good faith requires that a party 
qualify an answer or deny only part of the matter of which an admission is 
requested, the party must specify the parts that are admitted and denied. 
(3) An answering party may not give lack of information or knowledge as a 
reason for failure to admit or deny unless the party states that he or she has 
made reasonable inquiry and that the information known or readily obtainable 
is insufficient to enable the party to admit or deny. 
(4) If an objection is made, the reasons must be stated. A party who considers 
that a matter of which an admission has been requested presents a genuine 
issue for trial may not, on that ground alone, object to the request. The party 
may, subject to the provisions of MCR 2.313©, deny the matter or state 
reasons why he or she cannot admit or deny it.

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But isn't my Opposition/Affidavit to their MSJ denying their claims anyway? 

Your opposition to their motion argues against the grounds on which their motion is based, and/or that a material fact is disputed. You are going to be in a position you don't want to be in if you fail to timely respond to their Admissions. You've got to follow the court rules.

 

Did you read this thread for Michigan defendants?

http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

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@justiceforall3

As an example only, here's an argument against summary disposition based on MCR 2.116( C )(10) when Discovery is not complete.  It would be necessary to tailor this argument to the specific facts of your case. The more detailed you can be about what material information you still need from your plaintiff in order to defend yourself as an unrepresented defendant, the better and stronger your argument will be.  

 

II.             Plaintiff’s Motion Is Premature As Discovery Is Ongoing

Implicit in a motion under MCR 2.116( C )(10) is the concept that discovery in a case has provided the parties to the contested matter all the necessary facts, evidence, and general information needed to succeed in their theory of the case. Summary disposition should not be granted lightly, and it is generally premature under MCR 2.116( C )(10) if discovery has not closed. St Clair Medical, PC v Borgiel, 270 Mich App 260, 271; 715 NW2d 914 (2006). The court may deny the motion on the basis of the insufficiency of the facts in relation to the underlying law, rather than assuming the facts are complete and making a decision using the facts presented. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009) (discussing that when granting a motion under MCR 2.116( C )(10) and stating that “[t]he question is whether further discovery stands a fair chance of uncovering factual support for the opposing party’s position”) (citations omitted).

 

At the pretrial hearing Plaintiff requested XX days to conduct discovery, Defendant stipulated to the period, and this Honorable Court ordered discovery to be completed by XXXX, 2014. Defendant sent requests for discovery and admissions by certified mail to Plaintiff, with production and responses due by XXXX, 2014, within the Court’s deadline. 

 

A.       Defendant seeks discoverable material necessary to prepare its defense.

      At a minimum, and as a threshold matter, a question of fact exists concerning whether Plaintiff has a valid title to the claim at issue and therefore standing to file suit in Michigan district court. Discovery will allow Defendant to assess the legality of LVNV’s ownership of the alleged debt, to assess the credibility of the affiant, the trustworthiness of the documents being certified by the Plaintiff’s affiant, and to otherwise adequately defend against LVNV’s alleged claims. Further, discovery is necessary concerning whether affiant XX, as “an Authorized Representative for LVNV,” is employed directly by LVNV, as implied but never explicitly stated, or is actually employed by another entity that maintains Plaintiff’s business records, to assess whether he is a qualified witness under MRE 803(6). 

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Last question - I know I royally screwed up in my answer to the Plaintiff.  A lawyer friend was helping me out before I got on these boards, and I answered the following:

 

1. Plaintiff is the assignee of Defendant's Heritage First USA account issued by Chase Bank USA, N.A.
 
1.         Answering paragraph 1, upon information and belief, Defendant admits the allegations contained therein.
 
4. On September 7,2006, Defendant(s) opened an account with Chase Bank USA, N.A. An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.
 
4.         Answering paragraph 4, Defendant admits the allegations contained in paragraph 4, but does not have a copy of the Agreement in his possession.
 
 
I know I can't change my stance now on the fact I admitted opening an account, but am I still allowed to argue against the assignment in my motion?
 
 
 
 

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You can file an amended answer in most courts, I would respond to their discovery because even if the MSJ gets denied, they won on your admits. They are going to try to use your answer against you, see if you can amend your answer before the hearing date.

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When were you served? There may be a time limit for you to amend your answer, or you may have to ask for leave of the court.

If you can't amend, I would still deny their standing, make them prove it. @bmc100 may know the answer

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In so many cases where the defendant has appealed his case, the appeals court (not just in Mich but everywhere else) affirmed the trial court's decision because of admissions by the defendant.

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If I received the Plaintiff's discovery request on June 30th, but it was dated June 19th, I get 28 days from the time I received it to send my answer correct? I was just curious how the Court knows for sure what date I received the documents, as they weren't send certified mail.

 

So to clarify, assuming I don't amend my answer (which I don't think I can do now that a date has been set for the summary disposition motion - Aug 11), what is the best way to answer Plaintiff's Requests to Admit?  I understand that If I fail to respond than I admit by default.  Would it benefit me to say something like:

 

The information known or obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a difference response.

 

Or is my strategy better to admit to some of the requests pertaining to the card being opened and me receiving it, but then deny the rest that speak to using the card, getting statements, that plaintiff is the owner of the account, etc...?

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admit to obvious things like your name address, etc. deny everything else.  You could put "after a reasonable inquiry and diligent search the information is not known, therefore denies. 

That way your saying you looked, but can't find anything that would make you admit to it. Never give them anything they can try and turn around on you.

You have 28 days from when you recieved them.  Is there a postmark on the enevolope?  If so keep it.  They can't prove they sent it sooner, so you could counter if they try and say you were late.

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Well the main questions I struggle with are the following:

 

1.  You personally opened the Credit Card in your name.

2.  The Credit Card was issued on the Account.

3.  You received the Credit Card.

4.  You received the Cardholder Agreement regarding the Credit Card Account.

5.  You activated the Credit Card.

6.  You used the Credit Card.

 

Does my admission to their allegation of  "On September 7,2006, Defendant(s) opened an account with Chase Bank USA, N.A. An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession." mean that I now have to admit to these other things?

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@justiceforall3 @shellieh98

In our first case, we made mistakes in answering the complaint, which we didn't realize until reading the JDB's (surprise) MSD. Our court rules required we seek concurrence from plaintiff before filing any motion. JDB's attorney would not give consent. We did motion the court to amend the answer. The first available hearing date for our motion to amend was the same date as the MSD. While our motion wasn't technically granted, the judge gave leave to amend at the hearing. The judge also adjourned the MSD and told the JDB to obtain proof of the assignment of our specific account, an issue we raised in our opposition to their MSD.  

 

http://www.icle.org/modules/books/chapter.aspx?chapter=17&book=2012555670&lib=litigation&sections=2&from=store

"If the grounds asserted for summary disposition are based on MCR 2.116( C )(8)(9), or (10), the court “shall give” the parties an opportunity to amend their pleadings to correct the defect as provided by MCR 2.118 unless the evidence indicates that an amendment would not be justified. MCR 2.116(I)(5)."

 

Please read the entire MCR 2.118, but here is an excerpt:


MCR 2.118  Amended and Supplemental Pleadings
(A) Amendments.
 
(1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading.
 
(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.
 
(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party’s reimbursing the adverse party for the additional expense, including reasonable attorney fees.
 
(4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading.

 

MCL 600.2301 Amendment of process or pleadings before judgment.

 

The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.

 

Case Cites:

Pro se pleadings are to be construed liberally and expansively, affording them all opportunity in obtaining substance of justice, over technicality of form. Maty v Grasselli Chemical Co., 303 US 197 (1938).

 

Ben P. Fyke & Sons v Gunter Co.,390 Mich 649, 656-660; 213 NW2d 134 (1973). http://scholar.google.com/scholar_case?q=bigelow+v+walraven&hl=en&as_sdt=4,23&case=1270071757406935035&scilh=0

The allowance of an amendment is not an act of grace, but a right of a litigant seeking to amend "n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive * * *, repeated failure to cure deficiencies * * *, undue prejudice * * *, futility of amendment, etc." Foman v Davis, 371 US 178, 182; 83 S Ct 227, 230; 9 L Ed 2d 222, 226 (1962).

 

"`Prejudice' refers to matter which would prevent a party from having a fair trial, or matter which he could not properly contest, e.g. when surprised. It does not refer to the effect on the result of the trial otherwise." (Emphasis supplied.)

A number of courts have held that although allowance of the proffered amendment may cause the opposing party ultimately to lose on the merits this is not a factor to be considered in deciding whether to grant the motion.[2] "[T]he question of prejudice is presented by the time at which it is 658*658 offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the amendment is allowed, whereas he may win it if the amendment is denied." James, Civil Procedure, § 5.2, p 158 (emphasis by the author)."

 

 

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so the law states I could amend my answer within 14 days of being served of their MSJ? Do I need to rewrite my answer as Amended and simply refile w/court and send to Plaintiff, or do I have to first motion the court to allow me to do this?  I am confused.

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so the law states I could amend my answer within 14 days of being served of their MSJ? Do I need to rewrite my answer as Amended and simply refile w/court and send to Plaintiff, or do I have to first motion the court to allow me to do this?  I am confused.

No, you had 14 days from filing your first answer to their complaint to just file an amended answer without jumping through hoops.  A motion for summary judgement is not a pleading. Now, you have to get written permission from your Plaintiff (probably not going to happen) or get leave from the court via a written motion. See MCR 2.118 (2). I know it's confusing. 

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Ahhhhh, if only I knew the meaning of the word "pleading".  I assumed the MSJ was a pleading and drafted my amended answer and filed with the court today (and served via mail to Plaintiff).  It was the 13th day since I got their MSJ and I wanted to make sure to be in the 14 day window I totally blew it.

 

Oh well - its going to be a fun day in court trying to explain that one.

 

Its strange that they allowed me to file it...

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Ahhhhh, if only I knew the meaning of the word "pleading".  I assumed the MSJ was a pleading and drafted my amended answer and filed with the court today (and served via mail to Plaintiff).  It was the 13th day since I got their MSJ and I wanted to make sure to be in the 14 day window I totally blew it.

 

Oh well - its going to be a fun day in court trying to explain that one.

 

Its strange that they allowed me to file it...

My advice is to read and reread the Michigan Court Rules until you understand them--before taking an action. http://courts.mi.gov/courts/michigansupremecourt/currentcourtrules/1chapter2civilprocedure.pdf
 
Rule 2.110 Pleadings 
(A) Definition of "Pleading." The term "pleading" includes only: 
(1) a complaint, 
(2) a cross-claim, 
(3) a counterclaim, 
(4) a third-party complaint, 
(5) an answer to a complaint, cross-claim, counterclaim, or third-party 
complaint, and 
(6) a reply to an answer. 
No other form of pleading is allowed. 
 
( B ) When Responsive Pleading Required. A party must file and serve a responsive 
pleading to 
(1) a complaint, 
(2) a counterclaim, 
(3) a cross-claim, 
(4) a third-party complaint, or 
(5) an answer demanding a reply. 

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Yeah I was rushing and made a mistake.  

 

So in this situation the Judge will simply enforce the first answer?  I am confused as to what happens in these situations.

 

Or is it similar to LVNV funding dating an affidavit 40 days prior to filing their complaint, not complying to the law either? 

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Yeah I was rushing and made a mistake.  

 

So in this situation the Judge will simply enforce the first answer?  I am confused as to what happens in these situations.

 

Or is it similar to LVNV funding dating an affidavit 40 days prior to filing their complaint, not complying to the law either? 

I honestly don't know. You may receive an opposition/objection to your amended answer, since JDB's attorney drafted its MSD based on your first answer admitting the account was yours and the JDB owned it. I'd expect them to push back. If it were me, and I am not an attorney, I'd contact the JDB attorney asking for consent to amend my answer. Once that's denied, I'd draft the motion--compliant with court rules--and include the language that states you sought concurrence from Plaintiff which was denied, pursuant to MCR 2.118(2); attach the amended answer to the motion. You'd need to call the clerk to get a hearing date. Follow the court rules and ask if you aren't sure. You may get the judge to allow the amended answer at the MSD hearing by arguing for it. I don't know. Perhaps others here at CIC have better advice.

 

You really need to read up on the proper way to draft and file and serve your submissions going forward. Hey, if you're going to work this hard, under this stress, do it right and once. I say this as someone who learned the hard way. 

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Under MCR 2.312(D)(1), a trial court may consider a motion to  allow an admission to be withdrawn or amended.  This case discusses the factors the court will consider if so motioned.

 

http://statecasefiles.justia.com/documents/michigan/court-of-appeals-unpublished/301947.pdf?ts=1332936324

@debtzapper-

 

@justiceforall3  is attempting to amend his/her answer to the complaint, due to admitting (on the advice of an attorney friend, no less!) both standing allegations--that JDB is the assignee of Heritage First USA/Chase, and justiceforall3 opened the account with the OC on a specific date. IANAL, but I don't believe a pleading admission to a complaint allegation is the same as an admission to a request done in discovery. A motion to amend an answer to a complaint is brought under a different court rule than withdrawing/amending an admission in discovery.

 

I do not know the strategy of the advising attorney friend to have justiceforall3 admit to the assignment of the account to LVNV--something neither of them could have personal knowledge of. 

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So I just got off the phone with the Plaintiff, and they said they are going to grant me consent to amend my answer.  WHAT???  They will be emailing me written consent by Monday.

 

I am confused - why would they agree to this? Can they specify consent to only certain changes or is it all or nothing?  They didn't ask me what changes I will be making.  Perhaps they assume because I originally admitted to certain things, that I might change some other points in their favor?  Anyway I guess I will find out in a couple days.

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