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I just had a motion hearing in Bergen County (Special Civil - Small Claims) Amount $1,300.00 I am the defendant in a lawsuit vs Midland Funding. Represented by Pressler and Pressler. LLC.

 

Today's motion hearing was in regard to a set of an Initial Interrogatories dated June 6, 2014. There were 3 questions in the Interrogatories. The claim made by the defendant was: "The answers that you provided to all of Plaintiff's Initial Interrogatories are non-responsive because they are devoid of the information requested in those Interrogatories."

 

The 3 Interrogatories were:

 

1. Set forth with specificity all facts in support of each defense and/or claim which the defendant has in the above-entitled matter including dates, places, names and addresses of persons present or involved in any actions and /or conversations.

 

2. Attach copies of all writings, documents or any other records which relate to said account or in any way support any defenses or claims, including but not limited to, correspondence, contracts, agreements, notices, monthly statements, applications, and any letters sent to or received in connection with the subject account.

 

3. Attach any documentation evidencing defendant' mailing address(es) between 5/18/06 to 11/24/10, which should include but is not limited to, copies of energy or water bills, telephone bills, leases and /or deed(s)/mortgage(s) and drivers license(s). If said documentation is not in the possession of the defendant, please list each address at which the defendant received mail during the time period requested.

 

To all three I answered. "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff's claim, and based on that denies generally and specifically Plaintiff's claim."

 

How should I have answered?

 

At today's motion hearing the judge asked all cases involving Pressler and Pressler to go out into the hallway to meet with their attorney individually. About seven clients, including myself waited in the hallway. When it came to my turn, I stated based on the mood of the judge and how all other clients had been treated that "I am open to discussing a settlement, but I need to receive all the documents that I requested first." I was asked 2 questions about the account and said I am not familiar with the information and that is why I need all of the documents to verify.

 

Then I brought up the option to "dismiss with prejudice the case if they are not able to provide the documents before our trial date". The attorney said that will be a possibility that she will discuss with her client. She gave her business card and asked for my phone number. To quote her, "This is something we can discuss and do before we go to trial on Wednesday. She would not be able to request this motion today. However this is something we can discuss up and to before the trial date (Wednesday July 30, 2014).

 

Here is where I think I made my mistake. We then went back before the judge and the motion was just for how I answered the 3 Interrogatories. The judge was upset with everyone before him today. He is just horrible. He looked at my replies and said that "you can not answer these this way. This looks like something you just looked up on the internet and filled some space."

 

Motion To Strike was in favor of Pressler and Pressler.

 

Our trial date is now Wednesday, July 30 2014 8:45AM. So with my motion to strike granted to them, is it now as if I did not answer and therefore the court can grant automatic default judgment?

 

Very worried here. What options, if any do I have at this time? What motions or filings can I file at this time (if any)? Did Pressler and Pressler just sand bag me?

 

Thank you for your time in reading this. I look forward to replies and possible solutions.

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1. Set forth with specificity all facts in support of each defense and/or claim which the defendant has in the above-entitled matter including dates, places, names and addresses of persons present or involved in any actions and /or conversations.

Defendant has denied the account, therefore has no facts related to the above entitled matter except for the allegations brought by the plaintiff. Defendant denies knowledge of any actions or conversations by any person in the above alleged matter.

2. Attach copies of all writings, documents or any other records which relate to said account or in any way support any defenses or claims, including but not limited to, correspondence, contracts, agreements, notices, monthly statements, applications, and any letters sent to or received in connection with the subject account.

After a reasonable inquiry and diligent search defendant has no documents, contracts, notices, monthly statements, applications, or letters in connection with the subject account.

3. Attach any documentation evidencing defendant' mailing address(es) between 5/18/06 to 11/24/10, which should include but is not limited to, copies of energy or water bills, telephone bills, leases and /or deed(s)/mortgage(s) and drivers license(s). If said documentation is not in the possession of the defendant, please list each address at which the defendant received mail during the time period requested.

Objection request is overly broad and unduly burdensome. Also on the grounds it is personal, and confidential not likely to lead to any admissible discovery. Without waiving foregoing objection defendant is without any bills, deeds, leases, drivers licensees for the time period requested. Defendant has lived at his current address xxxx since month/year.

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You would file those as an ammended answer to interrogatories.

If your trial is wed. They must have sent you some kind of evidence. It is very late to receive any docs from them, and if they try to give you anything on court day I would object to them due to surprise at trial. In addition be prepared with objections and case law to back it up for each peice of evidence they may try to introduce. It is going to take a fast study on your part, but you can do it if you try.

These are the things they need to prove their case. ( they don't need anything if you do nothing, but if you object to it all then the judge should rule in your favor if you have supporting arguments for each item they have, and if they forgot something you would say xxxx is required to lay foundation for the business records exception to the heresay rule, and give that missing peice.

So they need

1. A bill of sale from original creditor to JDB. If there is more than 1 JDB, a bill of sale to each successor.

2. An affidavit from each owner of the account stating they are familiar with the business practices of company, the know how the records are kept and maintained, and the affidavit was made at or near the time of creation of the business records. They must give their name, who they work for, and how they are qualified to make that testimony. It must say your account is accurate, not believed to be accurate.

Your job is to find the case law to support those statements in your state. Google scholar is the easiest way to find that, using key words to search such as affidavits for exception to heresay rule.

3. Billing statements that show a payment. To prove account stated if that is the charge against you they need to show you assented into an account stated. A payment could show that. You would still object to them as being unauthinticated heresay. Look up what it takes for account stated in your state, then if they didn't supply that, you need to write it down and object in court.

List everything they have given you this far.

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Thank you so much for answering my post shellieh98. I greatly appreciate!

 

If I may ask further, what should I file with the court on Monday at this time to supply the much better answers you provided above to my 3 Interrogatories? I have a trial date set for Wednesday July 30. Special Civil. Perhaps with correcting these Interrogatories, I could be successful in asking again for a "dismissal with prejudice".

 

Speaking with their lawyer today, clearly she was fumbling through paperwork and they do not have many if not all of the things I asked for during the duration of this trial: copies of contracts, copies of complete statements, copies of signed receipts, copies of contracts as the "ownership". This CC account was transferred twice. OC to 1st Junk Debt Buyer to current (Midland Funding).

 

If I am able to correct this through the courts, could I make a motion to DISMISS without prejudice on Monday? After today's motion hearing, there is nothing outstanding. I've asked for numerous documents through initial filings and original production request, they are not providing anything other than 1 CC statement from the last month of the alleged account.

 

Thanks again!

:yahoo:

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Read this case carefully.  It is two cases in one ruling.  The appeals court held the JDB failed to prove its case with Oughla, but did prove its case with Zaidi.

 

http://scholar.google.com/scholar_case?case=10582884400328214375&q=credit+card&hl=en&as_sdt=4,31&as_ylo=2014

 

 

Here a law firm analyzes the above case.  You may wish to contact them about your case. Or contact Phillip Stern who argued the cases and won one.    A consultation is free with both firms.

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I found the following Rule for New Jersey Special Civil. I could use a second or third set of eyes please to help explain. Am I still in my time frame to send an amended set of answers to the original set of interrogatories?

 

Pressler and Pressler won the MOTION TO STRIKE regarding how I answered my 3 original interrogatories this past Friday, July 25. Trial date is now on Wednesday, July 30.

 

NJ Rule:

4:17-7. Amendment of Answers

Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting.

 

4:17-8. Use, Filing and Effect of Interrogatories

  • (a) Use. Answers to interrogatories may be used to the same extent as provided by R. 4:16-1(a) and R. 4:16-1( B) for the use of the deposition of a party. If less than all of the interrogatories and answers thereto are marked or read into evidence by a party, an adverse party may read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read into evidence. Interrogatories shall not be marked into evidence without good cause.

  • ( B) Filing. Neither the interrogatories nor the answers shall be filed unless the court so directs at the pre-trial conference or trial.

  • © Pleading Not Stayed. The service of interrogatories shall not stay the time for service of an answering pleading.

Source:

http://www.judiciary.state.nj.us/rules/r4-17.htm

 

Thus far from this entire case and during the period of discovery the Plaintiff has only produced 1 piece of paper. Alleged credit card statement of the last month before the OC account was charged off.

 

Thank you again to everyone that is answering. Your help is GREATLY appreciated. You all are lifesavers. 

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If they try to get a default judgment against you, under New Jersey 6:6-3 this is what they must provide:

 

6:6-3. Judgment by Default
  • (a) Entry by the Clerk; Judgment for Money.

    If the plaintiff’s claim against a defendant is for a sum certain or for a sum that can by computation be made certain, the clerk on request of the plaintiff and on affidavit setting forth a particular statement of the items of the claim, the amounts and dates, the calculated amount of interest, the payments or credits, if any, the net amount due, and the name of the original creditor if the claim was acquired by assignment, shall enter judgment for the net amount and costs against the defendant, if a default has been entered against the defendant for failure to appear and the defendant is not a minor or mentally incapacitated person. If prejudgment interest is demanded in the complaint the clerk shall add that interest to the amount due provided the affidavit of proof states the date of defendant’s breach and the amount of such interest.  If the judgment is based on a document of obligation that provides a rate of interest, prejudgment interest shall be calculated in accordance therewith; otherwise it shall be calculated in accordance with R. 4:42-11(a).  If a statute provides for a maximum fixed amount as an attorney fee, contractual or otherwise, and if the amount of the fee sought is specified in the complaint, the clerk shall add it to the amount due, provided that in lieu of the affidavit of services prescribed by R. 4:42-9(B) the attorney files a certification that sets forth the amount of the fee sought, how the amount was calculated, and specifies the statutory provision and, where applicable, the contractual provision that provides for the fixed amount. If the claim is founded on a note, contract, check, or bill of exchange or is evidenced by entries in the plaintiff’s book of account, or other records, a copy thereof shall be attached to the affidavit.  The clerk may require for inspection the originals of such documents.  The affidavit shall contain or be supported by a separate affidavit containing a statement, by or on behalf of the applicant for a default judgment, that sets forth the source of the address used for service of the summons and complaint.  The affidavit prescribed by this Rule shall be sworn to not more than 30 days prior to its presentation to the clerk and, if not made by plaintiff, shall show that the affiant is authorized to make it.

  • In any action to collect an assigned claim, plaintiff/creditor shall submit a separate affidavit certifying with specificity the name of the original creditor, the last four digits of the original account number of the debt, the last four digits of the defendant-debtor’s Social Security Number (if known), the current owner of the debt, and the full chain of the assignment of the claim, if the action is not filed by the original creditor.

  • If plaintiff’s records are maintained electronically and the claim is founded on an open-end credit plan, as defined in 15 U.S.C. §1602(i) and 12 C.F.R. §226.2(a)(20), a copy of the periodic statement for the last billing cycle, as prescribed by 15 U.S.C. §1637(B) and 12 C.F.R. §226.7, or a computer-generated report setting forth the previous balance, identification of transactions and credits, if any, periodic rates, balance on which the finance charge is computed, the amount of the finance charge, the annual percentage rate, other charges, if any, the closing date of the billing cycle, and the new balance, if attached to the affidavit, shall be sufficient to support the entry of judgment.

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From LVNV Funding v. Colvell, 22 A.3d 125, (2011), 421 N.J. Super. 1

 

 

Although defendant does not allege that she did not use this card or hold this account, LVNV does not meet the requirements set forth in federal law and repeated in Rule 6:6-3(a). To collect on a revolving credit card debt, LVNV is required to provide the transactions for which payment has not been made, any payments that have been made, the annual percentage and finance charge percentage rates and the billing cycle information. R. 6:6-3(a). Here, LVNV did not provide any documentation regarding the original MasterCard transactions by defendant other than the account number and the alleged balance.

 

 

You have to insist to the judge that NJ case law requires that they properly prove their case.

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Is your trial the 30th? Or is it a hearing, conference, or other? They submitted that motion to strike, the judge granted it but, check you rules of discovery.....do they say if opposing party does not answer, they must send a meet and confer before they file a motion? Some courts do, some don't. If the do, and the plaintiff did not send you a note saying they are unacceptable, I would state that in your certification. I would still send and file them, if you don't you have zero chance to fix that mistake, if you do the court may accept the response.

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Hi shellieh98. Last Friday was the motion date to STRIKE on the Interrogatories and this Wednesday, the 30th will be our TRIAL date. 

 

I found this Rule. My concern is the timeframe for me. The motion to strike was this past Friday and the trial is this Wednesday, July 30. 

 

Here is the rule I found:

4:17-7. Amendment of Answers

Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting.

 

Source:

http://www.judiciary.state.nj.us/rules/r4-17.htm

 

Thanks for your help. 

 

With trial being on the 30 of July, did the "discovery" period already end?

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I would not think you have too much to worry about.  The penalty for not answering the first two, are that you cannot introduce those items as evidence at trial since you did not present them during discovery.  If you weren't planning to use them, there is no loss. 

 

So basically what @shellieh98 said: Give them the addresses and nothing else.  They have the burden of proof at trial not you.  Don't let them make it about you not answering discovery, make it about them not having any evidence and wanting you to provide it.

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Since you said the judge was in a horrible mood at your last hearing, you are really going to have to be on your toes, ready to quote the law and statutes.  If you look at Sterns website that I gave you a link to, there is an actual transcript of him and a lawyer for Pressler at a summary judgment hearing arguing a case back and forth.  Your case won't last that long, but it may give you some insight.

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I'm not sure how it is in your state, but in Missouri on Account Stated they have to prove that each and every credit card transaction is reasonable as to purchase price, AND they have to prove that the defendant agreed to the amount being sued for.

 

If you do find yourself in court and Midland's lawyers don't have a witness, you can object to every piece of evidence they try to submit as hearsay. You will probably find that they will try to settle before you go to trial, probably on the same day. If they do you can ask if they have a witness, and if they DO NOT, you can tell their lawyer that you will object to any and all evidence they try to offer on the grounds of HEARSAY because they have no one to testify as to their authenticity.

 

They (lawyers) more than likely will dismiss your case. Hope you don't have to go that far. 

 

I used the same strategy AND WON!

 

Good luck

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