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Responding to Discovery Request, Pending MSJ, LVNV, Michigan


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So the reason I believe the judge didn't dismiss their motion is because the attorney used my previous answers to create doubt about what my answer truly was.  She said I didn't deny or admit, but rather lacked information to do either. (ah my original mistake is used against me).  I was so caught up in arguing the assignment I didn't object and clarify for the court that I did in fact deny.  If I get another shot at it, I most definitely will.

 

However I would suggest a word of advice to anyone out there,  quoting @bmc100 "I always say deny, deny, deny".  Denying an allegation is merely stating how you plead.  The fact that the judge told me to make a 3rd amended answer and to change my answers to denials is sufficient for me to understand you cannot perjure yourself in an answer. Deny Deny Deny.

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Your amended answer takes the place of the original. It is not used along side the original for all reasonable purposes. the Plaintiff cannot use the original answer, if the court allowed you to amend it. 

 

In the MI rules, if you lack information, it has the effect of a denial. You did not mess up there. MCR 2.111©(3). 

 

What did the judge do end up doing? Did he slap you with a judgment? or is does this case carry on?

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MCR 2.118 is the Amendment rule. In a pleading I wrote, I quoted a case law  that stated that an amendment takes the place of the original pleading. 

 

If it did not, then why would a court allow you to amend only for the old pleading to be used against you in the future. Everytime you amend, the last amendment takes the place of all previous answers or pleadings. 

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MCR 2.118 is the Amendment rule. In a pleading I wrote, I quoted a case law  that stated that an amendment takes the place of the original pleading. 

 

If it did not, then why would a court allow you to amend only for the old pleading to be used against you in the future. Everytime you amend, the last amendment takes the place of all previous answers or pleadings. 

@bmc100  @justiceforall3

In addition to the (2nd) amended answer, justiceforall3 denied under penalty of perjury most of the complaint allegations in his counter affidavit. 

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Sorry for the confusion, it wasn't that I didn't properly amend my answer, it was that I allowed the Plaintiff to orally argue my first answer (which I did incorrectly) verses objecting and having the Judge actually look at my amended answer and affidavit. I don't believe the Judge ever saw my 2nd amended answer.  I am shocked he didnt rule in their favor considering he didn't actually believe I denied everything (and with an affidavit).

 

The judge didn't rule anything.  He simply adjourned his decision for a month (Sept 23) to allow Plaintiff to get me the rest of my discovery request (agreement, ALL the statements showing use, and proof of assignment).  Even if they don't give me any more documents, I think once I have the Judge look at my affidavit and amended answer he will dismiss their motion. (he essentially said as much himself telling me to draw up a 3rd amended answer with affidavit).

 

I don't think Plaintiff will get me anymore documents (except a redacted excel spreadsheet to go with their Chain of Title).  

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MCR 2.118 is the Amendment rule. In a pleading I wrote, I quoted a case law  that stated that an amendment takes the place of the original pleading. 

 

If it did not, then why would a court allow you to amend only for the old pleading to be used against you in the future. Everytime you amend, the last amendment takes the place of all previous answers or pleadings. 

@bmc100

 

As this Court has explained, an amended pleading supersedes the former pleading, making the original pleading "abandoned and withdrawn." Grzesick v Cepela, 237 Mich App 554, 562; 603 NW2d 809 (1999), citing MCR 2.118(A)(4), quoting 61B Am Jur 2d, Pleading, pp 92-93; see also Nippa v Botsford Gen Hosp, 251 Mich App 664, 679; 651 NW2d 103 (2002), vac'd on other grounds 468 Mich 882 (2003).

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@bmc100

 

As this Court has explained, an amended pleading supersedes the former pleading, making the original pleading "abandoned and withdrawn." Grzesick v Cepela, 237 Mich App 554, 562; 603 NW2d 809 (1999), citing MCR 2.118(A)(4), quoting 61B Am Jur 2d, Pleading, pp 92-93; see also Nippa v Botsford Gen Hosp, 251 Mich App 664, 679; 651 NW2d 103 (2002), vac'd on other grounds 468 Mich 882 (2003).

It was the Nippa case I used before. 

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The judge should know this from the start. You should not have to object. They did not have a complete chain if title and if they did not have it for the MSJ, chances are they won't have it. 

 I think they'll have trouble coming up with billing statements that show use. I've seen 2-3 forward flow agreements from Chase. They have a time limit of 3 years from sale date I think to order "media" as they call it. There is also the requirement that any additional documentation from Chase has to be requested by the original debt purchaser. The judge gave LVNV 2 weeks to get the docs  to justiceforall3. @bmc100  is there any strategy justiceforall3 should employ here to get Stenger to dismiss? What happens after 2 weeks if JDB doesn't obey the court's order to produce?

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Yesterday I received Plaintiff's response to my letter to confer.  It was all objections again, and this time they admitted that they didn't have the billing statements that show use.  They didn't admit to not having the account agreement, but rather used the same objections as last time.

 

Do I have any other play here other than simply having another opportunity to present my case to the Judge?

 

The Judge was obviously confused as to what my answer was and he didn't even see my affidavit as he asked me to create one.  Is it necessary to file a 3rd amended answer?  My plan was to simply bring the Judge another copy of my amended answer and show him the affidavit in court, and then bring up the fact the Plaintiff has objected to all my requests again.  Thoughts?

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Yesterday I received Plaintiff's response to my letter to confer.  It was all objections again, and this time they admitted that they didn't have the billing statements that show use.  They didn't admit to not having the account agreement, but rather used the same objections as last time.

 

Do I have any other play here other than simply having another opportunity to present my case to the Judge?

 

The Judge was obviously confused as to what my answer was and he didn't even see my affidavit as he asked me to create one.  Is it necessary to file a 3rd amended answer?  My plan was to simply bring the Judge another copy of my amended answer and show him the affidavit in court, and then bring up the fact the Plaintiff has objected to all my requests again.  Thoughts?

@justiceforall3

 

You wrote:

"The judge ordered the Plaintiff to give me ALL of my 3 requests, adjourned the decision until September 23rd, and said they must give me the required documents in two weeks.  He then said once I receive these documents, to submit my 3rd amended answer denying with an affidavit."

 

Their response to your meet and confer letter does not comply with the judge's order. When is the 2 weeks up? 

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@justiceforall3

I don't know enough about this part of the process. To help clarify for anyone reading:

 

1.) Did the JDB file a copy of the response to your M&C letter with the court?

 

2.) Do you have the judge's order to provide all 3 of your discovery requests in writing? If not, can you get it from your court file? 

 

3.) What exactly did they provide? What is still missing?

 

IANAL, but it appears that the judge did not deem their objections to your requests as valid and ORDERED them to provide the documents your requested.  If their response to your M&C letter was prepared on a date after the MSD hearing, their continued objections are in violation of the judge's order. Can you ask bmc100 or BV80 for their advice? 

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I would wait until the next court date as long as they do not supply you with what the court ordered them provide to you. The judge won't be happy and will most likely dismiss without prejudice. If they cannot prove that you used the account or have any additional documents other than an affidavit. You have a nice FDCPA violation against LVNV. 

 

You can get the debt wiped clear and get an easy $1,000. 

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The judge came back and asked Plaintiff about their Chain of Title and how it is they didn't submit proof of my actual account.  The Plaintiff had an excel spreadsheet and was stating it was in the file, but it wasn't, she went to go show it to the Judge, but he declined to see it stating the Defendant hadn't seen it.  The judge was reading my discovery requests and their objections (THANK YOU @BROTHERSKEEPER) and said they must submit to me proof of assignment (the excel spreadsheet she had in her hand).  He then was about to wrap it up and was going to say that once they do, he will have no choice but to rule in their favor unless I object (he recommended a 3rd amended answer to complaint with straight denials).  

 

The Plaintiff made a mistake in my opinion, because the next words out of her month were "Your Honor, just to be clear, you want Plaintiff to provide only request #3 (the rest of the assignment) to the Defendant?"  He said yes and then I immediately asked for the account agreement and the remaining credit card statements to show use.  The judge ordered the Plaintiff to give me ALL of my 3 requests, adjourned the decision until September 23rd, and said they must give me the required documents in two weeks.  He then said once I receive these documents, to submit my 3rd amended answer denying with an affidavit. (I really don't believe he read my brief, nor my actual complaint, because what he was asking me to do is already in the file).

 

Make a long story short, I consider this a win.  Lets see what the Plaintiff provides now in their 2 week window.

 

Did you get this spreadsheet--the one the judge said he'd have no choice but rule in their favor once they did? Did they submit it to the court? We don't know exactly what you've been given and can't see what you have or what's still missing, so it's impossible to determine your next step. Your JDB has until Aug. 25 to give you the missing docs from the judge's order. When your judge said "unless you object," do you know how to object?

 

IANAL, but after Aug. 25, I would seriously consider following the recommendation of the judge to submit a 3rd amended answer and a new counter affidavit that includes all of the necessary denials for the account stated from the 1st affidavit, plus your M&C letter and their latest response to the M&C. (If you decide to do this, you might want to post your draft here before submitting it.)This will get the new info/facts in front of the judge like the 2nd affidavit (MSD) got the discovery facts in front of the judge. Remember, your amended answer and amended affidavit take the place of the previous ones, so you can't leave anything out of the new ones. You also have new information/facts concerning evidence and the lack thereof  to use to support your denials in your 3rd amended answer. Some of the documents the judge ordered are not, by Plaintiff's own statement, in the possession, custody or control of your Plaintiff--and upon your information and belief--the Plaintiff will never be able to obtain them. 

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@justiceforall3

I don't know enough about this part of the process. To help clarify for anyone reading:

 

1.) Did the JDB file a copy of the response to your M&C letter with the court?

 

2.) Do you have the judge's order to provide all 3 of your discovery requests in writing? If not, can you get it from your court file? 

 

3.) What exactly did they provide? What is still missing?

 

IANAL, but it appears that the judge did not deem their objections to your requests as valid and ORDERED them to provide the documents your requested.  If their response to your M&C letter was prepared on a date after the MSD hearing, their continued objections are in violation of the judge's order. Can you ask bmc100 or BV80 for their advice? 

 

@justiceforall3

Can you please answer the above questions? Also, what was the date of their response to your M & C? Was it dated after the MSD hearing? 

 

    "Do I need to again ask for written consent to amend, or if the Judge told me to amend anyway, is that enough?"  

 

On August 11, 2014. at Plaintiff's motion hearing for summary disposition, this Honorable Court ordered Plaintiff to produce documents in response to Defendant's discovery requests by August 25, 2014. After such time, this Court gave leave for Defendant to amend his answer and affidavit. 

 

 

"Shocking considering the Judge pretty much told their counsel to give it to me."    This is how you described what the judge said right after your hearing, "The judge ordered the Plaintiff to give me ALL of my 3 requests, adjourned the decision until September 23rd, and said they must give me the required documents in two weeks."

 

Words matter. Judges don't kinda sorta opine. From what you've related, the sole reason the judge adjourned the MSD hearing was for plaintiff to give you the documents you requested. He read (from the bench, not beforehand) your discovery requests, read their objections, refused to accept the spreadsheet at the hearing because you hadn't seen it, and told them to give it to you. You then argued and won (!) to have all 3 requests produced.

 

I'm curious about the date on their M&C response (with the same objections) because it may not be their response to the judge's order, but merely a late answer to your letter. You may still get something from them by 8/25. I asked if they filed this latest response with the court. You need to check your file to see the judge's order on the adjournment and discovery responses and if they filed their response to your M&C with the court. 

 

IANAL, but this is the ground upon which many pro se defendants win or lose their cases. This is likely where understanding the strategic use of court process determines outcome.

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I confirm there is no evidence of the use of the card or how the balance was computed.

 

I asked for:

 

Request: Please provide copies of all statements generated while this alleged account was open.

 

Response: Plaintiff objects to the Defendant's request as it is vague, overly broad and to the extent that the documents requested are in the possession of or equally accessible to the Defendant.  Plaintiff further objects to the extent that the request seeks the production of documents that relate to matters not raised by the pleadings, that are not material or necessary to the prosecution or defense of this action, or that are not reasonable calculated to lead to discovery of admissible evidence. Subject to the same, Plaintiff refers Defendant to copies of account statements sent on the account by the original creditor to Defendant (Exhibit A).

 

Request:  Please provide the original or copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts.

 

Response: Plaintiff objects to the Defendant's request as it is vague, overly broad and to the extent that the documents requested are in the possession of or equally accessible to the Defendant.  Plaintiff further objects to the extent that the request seeks the production of documents that relate to matters not raised by the pleadings, that are not material or necessary to the prosecution or defense of this action, or that are not reasonable calculated to lead to discovery of admissible evidence. Subject to the same, Plaintiff refers Defendant to copies of account statements sent on the account by the original creditor to Defendant (Exhibit A).  Plaintiff further refers Defendant to the assignment documentation attached as Exhibit B.

 

Request:  Please provide a copy of the assignment between LVNV Funding, LLC and Chase Bank for this alleged account.

 

Response:  Plaintiff further objects to the extent that the request seeks the production of documents that relate to matters not raised by the pleadings, that are not material or necessary to the prosecution or defense of this action, or that are not reasonably calculated to lead to the discovery of admissible evidence.  Subject to the same, Plaintiff refers Defendant to the assignment documentation attached as Exhibit B,

 

Exhibit A was simple statements they had already given, which do not show any purchases.

Exhibit B were the same bill of sale and declaration of account transfer they gave me before.  They also included what appears to be a spreadsheet with account numbers, name, addresses, etc... with all information "redacted" except for mine.  Not much on the spreadsheet that isn't already showing on the bank statements.

 

@justiceforall3

 

What is the difference between what is in bold above and what the judge refused to accept at the MSD hearing, but JDB hasn't yet provided to you? Is the "declaration of account transfer" notarized or sworn in any way? 

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@justiceforall3

Can you please answer the above questions? Also, what was the date of their response to your M & C? Was it dated after the MSD hearing? 

 

    "Do I need to again ask for written consent to amend, or if the Judge told me to amend anyway, is that enough?"  

 

On August 11, 2014. at Plaintiff's motion hearing for summary disposition, this Honorable Court ordered Plaintiff to produce documents in response to Defendant's discovery requests by August 25, 2014. After such time, this Court gave leave for Defendant to amend his answer and affidavit. 

 

 

"Shocking considering the Judge pretty much told their counsel to give it to me."    This is how you described what the judge said right after your hearing, "The judge ordered the Plaintiff to give me ALL of my 3 requests, adjourned the decision until September 23rd, and said they must give me the required documents in two weeks."

 

Words matter. Judges don't kinda sorta opine. From what you've related, the sole reason the judge adjourned the MSD hearing was for plaintiff to give you the documents you requested. He read (from the bench, not beforehand) your discovery requests, read their objections, refused to accept the spreadsheet at the hearing because you hadn't seen it, and told them to give it to you. You then argued and won (!) to have all 3 requests produced.

 

I'm curious about the date on their M&C response (with the same objections) because it may not be their response to the judge's order, but merely a late answer to your letter. You may still get something from them by 8/25. I asked if they filed this latest response with the court. You need to check your file to see the judge's order on the adjournment and discovery responses and if they filed their response to your M&C with the court. 

 

IANAL, but this is the ground upon which many pro se defendants win or lose their cases. This is likely where understanding the strategic use of court process determines outcome.

The attorney was probably bluffing. The attorney knew the judge would not allow the spreadsheet if she had it. Now, they won't give it up cause they do not have it. They do not have anything. They were hoping for a default judgment and now they are hoping that you will screw up. They keep pressing on since the judge keeps asking you to amend your answer, though you already did. 

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