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Plaintiff Disocver Banks's Ex Parte Communication with Judge


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I have a question regarding an opposing attorney's ex parte communication with a judge regarding the judge's ruling to Plaintiff Discover Bank's Motion to Compel discovery which was filed against me.

Discover Bank filed a motion to compel discovery over a year after he had received my responses to his requests to admit, requests to produce, and interrogs. I did file a memorandum in opposition to his motion. At the hearing, the judge ordered I provide more specific information to the Plaintiff's interrogatories but took under advisement his requests submitted during discovery that I produce bank statements (7 years worth).

Plaintiff claimed his requests for bank statements were due to my response to his requests to admit. When Discover Bank submitted a request to admit I used the account to obtain cash advances (2 different transactions/different dates), I admitted to using the account to obtain a cash advance but denied his request to admit due to my lack of information regarding the dates and amounts in Plaintiff's request to admit.

The judge's order on the Motion to Compel stated she would take under advisement Plaintiff's request to produce, but stated I did not need to submit this documentation at this time.

Plaintiff Discover's attorney, after receiving the judge's order, wrote a letter to the Judge (and sent a copy to my address) that states:

"I write regarding my client's Motion to Compel Discovery Responses....specifically the court took under advisement the question of whether the Defendant should be required to produced to certain bank statements over the time period where the credit account's use is in dispute through the instant action. Plaintiff argues that such statements are highly relevant as such bank statements will tend to confirm and deny the genuineness of the credit card statement produced by Plaintiff; moreover, these statements will add needed clarity to certain contested facts related to use of the account. Any update the Court could provide on this matter would be most appreciated."

Three days after the date of Plaintiff's letter, the judge signed an amended order stating the Plaintiff would be required to send the specific dates of the cash advances, and I had to produce all bank statements for the two months procceeding and following those dates.

It is obvious that the Plaintiff's attorney's ex parte communication with the judge influenced her decision to amend her prior order.

Aside from reporting Plaintiff's attorney to the bar for violating code of ethics through his ex parte communication with the judge, can I file a motion to dismiss his complaint?

I'm in South Carolina, and the opposing attorney's law firm is in North Carolina.

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Usually an ex parte communication takes place without notice to the other party. You received notice, but you didn't say if you received it in time to respond. Did the know you received a copy? You need to speak to an attorney.

SC Code of Judicial Conduct

Canon 3B(7)(a):

(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.* A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

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The judge didn't contact me regarding Discover Bank attorney's letter. I received a copy of the letter 3 days before the judge signed an amended discovery order.

I wasn't given an opportunity to respond. The letter also references argument that was not presented during Plaintiff's Motion to Compel.

I am unsure as to what I can file. I think I can file a motion for sanctions against this attorney and a motion to recuse this Judge?

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I don't know if you can dismiss the complaint but you might be able to appeal the order to compel in a higher court stating that the rules of civil procedure have been violated. You would need an attorney for that and that can get real expensive real quick and what will probably happen is that the higher court will remand the decision to the lower court to be handled properly which will cause you to have to get the statements.

Another option might be a motion to reconsider and list the basis and the consideration has to be outside of the ex-parte communications of the other side. That will be cheaper and easier to get.

The problem you have is that now that the bell has been rung, you cannot unring it. Even if the judge will reconsider, the letter will be in the judges head and will have an effect. You might be able to argue that because of that, the sanction is that the other side does not get the statements at all. This is why lawyers do this however, especially against pro se parties. They know that even if they get hit with sanctions, they still got what they wanted which is their opinion in the judges head without the other parties arguments.

Finally, you could contact the other party's attorney and mention to them that you know about this and will be fighting this as well as reporting to the bar (not that it will do much good, fox guarding the hen house) but it they are willing to drop the issue of the statements, you will be willing to ignore this action.

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Call some attorneys to see if anyone will talk to you for a minute over the phone. Just ask if the communication was an ex parte communication. You got the notice 3 days before the judge signed the order. It's possible that you could have responded in some way, I don't know. But get an attorney's opinion before you do anything.

You might would have to show that the letter unfairly influenced the judge. It's not uncommon for judge to grant a MTC bank statements in a credit card case, especially when the plaintiff is an OC.

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It is not ex-parte communication as the defendant was copied on the letter being sent. Had they not been notified and found out after the judge amended the ruling that would have been ex-parte.

What I would do is file an objection on the amended ruling due to not being given due process to respond to the Plaintiff's letter to the court and object. The basis would be by not being able to respond the court unfairly prejudiced the defendants case by not allowing equal access to the court. I would want this preserved for any appeal that might be necessary.

My argument against the bank statements are that the Plaintiff asked for them based on cash advances which would NOT reflect in personal bank statements only in the creditors statements for the credit card. Therefore the request for bank statements is nothing more than a fishing expedition by the Plaintiff which is not allowed.

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I agree that it probably wasn't an ex parte communication because, as I told the OP, he said he received a copy. That's also why I wondered whether or not he had time to respond. It's also why I included the SC Code of Judicial Conduct which shows that a judge has to let the other party have time to respond.

I'm thinking that the MTC records was not just about 2 cash advances. It was about proving he made payments to Discover that would add up to more than the total of the cash advances.

"specifically the court took under advisement the question of whether the Defendant should be required to produced to certain bank statements over the time period where the CREDIT ACCOUNT'S USE is in dispute through the instant action. Plaintiff argues that such statements are highly relevant as such bank statements will tend to confirm and deny the genuineness of the credit card statement produced by Plaintiff; moreover, these statements will add needed clarity to certain contested facts related to USE OF THE ACCOUNT. "

If the OP flat out denied using the account for any other reason, making payments could hurt his credibility. On the other hand, the plaintiff appears to have offered only one credit card statement (genuineness of the credit card STATEMENT). We need to know if only one cc card statement has been provided or if that's a typo and they've offered more cc statements that show payments which could be matched to payments made from his account.

It would also help to know their admission requests and his responses.

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I haven't disputed making payments on the account. This is coming from Plaintiff's statements of account he has produced in my discovery requests. He stated in my interrogs they were true account copies during discovery. They obviously are not. They contain advertisements with copyrights different from the year the account statement was allegedly produced - for example, a 2008 statement has a 2011 Discover Bank add on the statement itself.

This is a fishing expedition in an attempt to prove their documents are reliable by using payment info from my bank account to show that the documents reflect the correct payments applied.

I agree that my bank records will still not prove that a cash advance was received.

Plaintiff even states in his letter that he needed my bank statements to prove the genuineness of the account statements. !

I'm afraid I have waived my right to object bc more than ten days have passed since the amended discovery order.

Another issue I don't understand, is Plaintiff sent me a copy of the judge's order stating this amendment was signed on July 1st and entered on July 11th. This pre-dates his ex parte communication. I never received this and plaintiff claims he was in receipt of this on August 13th.

I never to date received that document at all. I received an amended order entered on August 18th. Both my documentation and the Plaintiff's contain the same amended order.

I know that Plaintiff wants to give the impression that his letter didn't influence the judge which is why he sent me a copy. How can this order be signed and entered with two completely different dates?

I don't understand why the judge sent the amended order to Plaintiff on that date.

At first I thought Plaintiff made have falsified that doc but it does have the clerk of court stamp and judge's signature.

This is really strange and confusing. There should be some recourse on my behalf for some clarification regardless of ten days passing.

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The genuineness of documents can include their accuracy. Matching payments from your bank account records could show accuracy.

In response to their admission requests, did you deny using the account for anything other than cash advances? Did you make payments for charges before you ever took out a cash advance?

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I didn't deny using the card to obtain goods. I did assert a defense of identity theft and fraudulent charges on the account, along with police report and evidence supporting identity theft.

When they lied about the documents being true copies of the original, I began challenging that also. That's why they want any record they can obtain in an attempt to prove their accuracy.

Maybe I can file 60(B) due to fraud and misrepresentation. As part of the amended order, the judge ruled that plaintiff provide the dates of the cash advances along with my supplying bank records two months prior to their dates and after.

The plaintiff sent these dates, along with supplementary discovery, requesting I produce all bank records for two years.

This is in opposition to the judge's order as she denied all requests to produce except for the two months prior and after dates of alleged cash advances.

Discover also write in a letter, "Pursuant to the Form 4 order on Plaintiff's Motion to Compel, find Plaintiff's supplemental requests for production of documents. This is NOT pursuant to the judge's order. I will object to those additional requests.

I think this constitutes fraud and misrepresentation - which could support my filing a motion under SCRCP 60 (B)

Do you think I have something here?

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Her order denied plaintiff's request of production of bank records with the exception for the 2 months proceeding and after the dates he provides for two cash advances.

Plaintiff requests my bank records to "prove" I obtained cash advances i e showing a deposit in the amount of cash advances - though I'm unsure how he can state that any money being deposited were from cash advances bc it will not indicate that in bank records.

I never denied obtaining cash advances but stated I was uncertain about the amounts and dates - one was in 2008.

So Plaintiff is attempting to send supplemental discovery requests to produce "pursuant to the court order"

I call that misrepresentation and misconduct on his behalf!

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At least your bank records wouldn't support the plaintiff's claim. However, I'd only provide what the judge ordered and object to the request for anything else.

I don't know if his request is considered misconduct and misrepresentation. If he attempted to make it look like the judge ordered you to provide more than she did, that could be misconduct and a misrepresentation.

No matter what, you need to talk to an attorney to find out if there's any wrongdoing at all here, and if there is, what you should do. If you need to file a motion, you want to make sure that you word it effectively and include the proper rules and/or canons that have been violated.

What you're doing is not also accusing the attorney of misconduct, but you're also accusing the judge. That's not something to be taken lightly. You want all your i's dotted and t's crossed.

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As a Defendant, I encountered a Judge in a case who allowed an ex-parte communication with the Plaintiff's attorney. I understand how frustrating that can feel. However, per BV80's recommendation, handle this with great care. In my scenario, it was the 5th or 6th instance where this Judge showed total bias, and eventually I filed a Motion to Recuse. The Judge was stuck, as I had provable facts on my side, and in my state (Florida) if there is even the presumption of prejudicial conduct by a Judge, they must recuse themselves or we can appeal to a three Judge panel in a higher court. What Judge wants to go before their peers to explain their conduct? (especially when their actions were in fact biased)

In effect, I had the Judge declare himself to be prejudicial, and he recused himself, allowing me to have any prior ruling he made re-heard. Sound good, right? Not so fast. Every Judge who presided in the case after him disliked me from the start as their first introduction to me was to read my Motion to Recuse, accusing their colleague of an ex-parte communication and prejudicial conduct. Talk about facing an uphill battle. Each successive Judge literally threw the issue at me at the start of every hearing going forward. I eventually settled the case for $0, and there was no way I could have won in front of the Judge who was involved in the ex-parte communication.

My two cents - if you are going to go the recusal route, make sure you have the facts 100% on your side, learn your state's rules for making such a motion and know them like the back of your hand before filing, and be prepared for the next Judge to be very hard on you every step of the way. I would only consider this route if you feel 100% certain you cant get the case fairly heard in front of the present Judge.

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Thanks for your feedback. I know it's a good ole boy network, and the thought did occur to me that other judges would react to that.

One of my discovery objections was due to Discover asking about the credit card agreement governing my account. They had attached an agreement to the interrogatories with a different copyright year versus the one attached the complaint (not an amended agreement. 2 different contracts with original copyright years). The judge told me to guess which one I thought belonged to my account and provide responses to the interrogatories concerning the agreement.

This mentality is what I am up against.

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