fight2win

Won before, but here we go again....

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@fight2win - is this pre-trial conference the mediation phase, or is it with a judge? If mediation, the JDB lawyer will probably just phone in. Typically they say they are authorized to off a settlement in the 50% range. A trial is set if nothing is settled.

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@fight2win - is this pre-trial conference the mediation phase, or is it with a judge? If mediation, the JDB lawyer will probably just phone in. Typically they say they are authorized to off a settlement in the 50% range. A trial is set if nothing is settled.

It's just the standard pre-trial to see what other docs we have and decide if we want to settle.  Last year this same JDB showed up, but then I got dismissal notice from them a week later.

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The pre-trial will be the same thing you experienced last time.  They will try to settle and get you to admit the debt is yours.  You can address any outstanding issues at that time or just tell them you aren't going to settle and don't believe the debt is yours.

 

 

 

Here are my thoughts on your discovery requests.

 

Rogg # 9, add "alleged" in there somewhere

 

Rogg #20-22 is this information not stated in the documents at issue?

 

Rogg #23 is probably not helpful.

 

I would add an RFA asking them to admit they have no personal knowledge whether or any part of the alleged debt was ever disputed.

 

RFA #5 you're way too close to admitting the debt.  I would say something like "admit that when you purchased debts from [name of seller here] that included the debt you claim is owed by Defendant's, those debts were sold to you under a contract that specified that the debts came to your without recourse and without representation or warranty of any type, kind, character or nature, express or implied (<---make this say whatever the bill of sale says)".

 

RFA #8 they will deny because the cardholder agreement allows them to step into the shoes of the OC.  I would make this more specific, like "admit that you never directly entered into a contractual relationship with Defendant."

 

RFA #9 The LSA is the contract that governed the subsequent sale of the debts.  Since the sale had already taken place by the time they sued you, they were for sure in possession of the LSA at that time.  Things they probably did not have, however, are billing statements, cardholder agreement and possibly the Bill of Sale.

 

RFA #10 I would make this more specific. "Admit the Bill of Sale, Cardholder Agreement and Credit Card Statements were not brought into existence by Plaintiff."  And then I would add another RFA to this effect: "Plaintiff has no personal knowledge as to how the Card Holder Agreement and Credit Card Agreement came into existence."  I excluded the bill of sale because they may know how that was created.

 

RFA #14 & 15: "admit the bill of sale does not explicitly name defendant/account #..."  (They will claim the schedule included with the bill of sale was incorporated into the bill of sale, so the bill of sale vicariously references you.)

 

RFA #16 is only relevant if the LSA is dated after the bill of sale.

 

RFA #18 does not matter.

 

 

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I'm working on those changes - but regarding the last edit RFA #16....

 

I'm confused, the Affiant has specified one particular date for the Loan Sale Agreement.  The Bill of Sale (Exhibit C) claims that the Loan Sale Agreement happened on a different date.  

 

I had asked you about this before, but maybe I confused you.   Yes, the date of the Bill of Sale is several days after the date of the Loan Sale Agreement.  I get and understand that.

 

What I was saying was that the Affiant, on her Affidavit of Debt, etc.  claimed that the date of the sale of the account was on a different date than what was referenced on the Bill of Sale.  Should she have a different date for that particular document?  Isn't there ONLY one Loan Sale Agreement with one date?  Shouldn't that particular date stay consistent?

 

I ask because all her information should be accurate, or that could possibly discredit her trustworthiness, correct?  Or no?

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Do I need to include ALL of the following language on my RFA for

 

"Admit that the Bill of Sale and Assignment of Loans “Exhibit C” specifies that debts are sold to you without recourse and without representation or warranty of any type, kind, character or nature, express or implied."

 

OR

 

Admit that the Bill of Sale and Assignment of Loans “Exhibit C” specifies that debts are sold to you without recourse and without representation or warranty of any type, kind, character or nature, express or implied, except as specifically provided in the Agreement, and subject to Buyer's and Seller's repurchase rights as set forth in the Agreement.

 

Can I shorten it like the first one, or do I need to include every word of that statement?

 

 

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OK I didn't get what you were asking for in the RFA.

I think I would approach this a different way. I would try something like:

"Admit that the date the bill of sale was signed is the transaction date that included the alleged sale of the underlying debt."

You don't want to draw to much attention to the specific discrepancy. If they admit that RFA, they will have to later explain why the affidavit swears over under oath to a different date. They will probably try to say the date the bill of sale was signed is not the date of the transaction or something else, so maybe figure out a way to word the RFA to be able to exclude all possible alternative explanations.

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You don't have to use every word, but if the bill of sale doesn't say "as-is", don't use that phrase. In other words, if you say "as-is" (or whatever) and the bill of sale doesn't say that, they will properly deny it and you will have wasted a RFA. See what I mean?

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OK I didn't get what you were asking for in the RFA.

I think I would approach this a different way. I would try something like:

"Admit that the date the bill of sale was signed is the transaction date that included the alleged sale of the underlying debt."

You don't want to draw to much attention to the specific discrepancy. If they admit that RFA, they will have to later explain why the affidavit swears over under oath to a different date. They will probably try to say the date the bill of sale was signed is not the date of the transaction or something else, so maybe figure out a way to word the RFA to be able to exclude all possible alternative explanations.

Hmm, ok.  I start writing my own RFA's and when I go back and read what I wrote, I'm like ???  :)  What the hell did I just write?  

 

Thank you 

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You don't have to use every word, but if the bill of sale doesn't say "as-is", don't use that phrase. In other words, if you say "as-is" (or whatever) and the bill of sale doesn't say that, they will properly deny it and you will have wasted a RFA. See what I mean?

Yes.  I figured I could use the exact language and leave off the end - thanks.  I just wasn't sure.  

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What language does the affidavit say about the sale of the debt? Use that and try to incorporate some of the language from the bill of sale into your RFA.

Example: if the bill of sale says "on this date the accounts were sold..." and the affidavit says "defendant's account was purchased on xx/xx/xxxx", day say something like "admit that the date shown on the bill of sale is the date you claim to have purchased a debt allegedly owed by me.

Make it so they can't admit or deny without contradicting one or the other.

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Ok, made changes to RFAs.  I went ahead and posted them up here.   You've already helped me tremendously; look them over only if you feel like it!  Thanks so much.

 

REQUESTS FOR ADMISSION OF FACTS

 

 

RFA No. 1:

 

Plaintiff has no personal knowledge as to the mailing by the Issuer to Defendant of any written agreement governing the alleged Account.

 

___ADMIT ___DENY

 

 

RFA No. 2:

 

Plaintiff has no personal knowledge as to the mailing by the Issuer to Defendant of any billing statement for the alleged Account.

 

___ADMIT ___DENY

 

 

 

RFA No. 3:

 

Plaintiff has no personal knowledge as to why the Issuer entered any transaction, debit, credit or charge on any billing statement for the alleged Account. 

 

___ADMIT ___DENY

 

 

RFA No. 4:

 

Plaintiff’s right to acquire documents from the Issuer for the alleged Account is governed by the written agreement under which Plaintiff acquired the alleged Account.

 

___ADMIT ___DENY

 

 

RFA No. 5:

 

Admit that the Bill of Sale and Assignment of Loans “Exhibit C” specifies that debts are sold to you without recourse and without representation or warranty of any type, kind, character or nature, express or implied.   

 

___ADMIT ___DENY

 

 

RFA No. 6:

 

Plaintiff cannot state which date the alleged contract sued upon was entered into.

 

___ADMIT ___DENY

 

 

RFA No. 7:

 

Plaintiff has never exchanged goods, services, and/or money with the Defendant.

 

___ADMIT ___DENY

 

 

RFA No. 8:

 

Plaintiff has never directly entered into a contractual relationship with the Defendant.

 

___ADMIT ___DENY

 

 

RFA No. 9

 

Plaintiff has no personal knowledge whether all or any part of the alleged debt was ever disputed.

___ADMIT ___DENY

 

 

RFA No. 10:

 

Admit that the Bill of Sale, Cardholder Agreement and Credit Card Statements were not brought into existence by Plaintiff.

 

___ADMIT ___DENY

 

 

RFA No. 11:

 

Plaintiff has no personal knowledge as to how the Cardholder Agreement and Credit Card Agreement came into existence.

 

___ADMIT ___DENY

 

 

RFA No. 12:

 

Plaintiff has no personal knowledge of the creation of the alleged debt.

 

___ADMIT ___DENY

 

 

 

RFA No. 13:

 

Plaintiff does not have access to all of the records created and maintained by F.I.A. Card Services, N.A. that pertain to the alleged Account that is the subject of this lawsuit.

 

___ADMIT ___DENY

 

 

RFA No. 14:

 

When it acquired the alleged debt of Defendant, all Plaintiff obtained was a computer printout of alleged debtors, addresses and identifying information, and the supposed balances owed.

 

___ADMIT ___DENY

 

RFA No. 15:

 

Admit that the Bill of Sale from the Issuer to the Plaintiff does not explicitly reference the name(s) of the Defendant.

 

___ADMIT ___DENY

 

 

RFA No. 16:

 

Admit that the Bill of Sale from the Issuer to the Plaintiff does not explicitly reference the account number of the alleged debt that is the subject of this lawsuit.

 

___ADMIT ___DENY

 

 

RFA No. 17:

 

Admit that the date the Bill of Sale was signed is the transaction date that included the alleged sale of the underlying alleged debt.

 

___ADMIT ___DENY

 

 

RFA No. 18:

 

Admit that you are unable to provide a complete accounting for the amount you are claiming from a zero balance to the alleged amount charged-off.

 

___ADMIT ___DENY

 

 

RFA No. 19:

 

Plaintiff’s Affiant is only advised of the alleged balance allegedly owed to the Plaintiff by the Defendant, and has no direct, personal, firsthand knowledge of the alleged account and alleged debt as it was incurred.

 

___ADMIT ___DENY

 

RFA No. 20:

 

Plaintiff’s Affiant does not have in his/her immediate possession, or custody and control, all records pertaining to the alleged account and alleged debt of the Defendant, which is the subject matter of this lawsuit.

 

___ADMIT ___DENY

 

 

RFA No. 21:

 

All records allegedly held by Plaintiff, which allegedly prove Defendant is indebted to the Plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff.

 

___ADMIT ___DENY

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They look good. Either way they answer #17, I think you have very solid grounds for making an argument that the bill of sale and affidavit are not trustworthy.

That is, unless they object to the question. Lol

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Also, check the rules on how many RFAs you can send. I think it's 40, but verify that. They will object to all of them if you go over.

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Wait a minute. RFA 21, did they create the affidavit? If so, you might think about rewording that question.

Yes, that appears to be a document created by the Junk.

 

 

How about this??

All records, with the exception of the Affidavit of Sale and Certification of Debt, allegedly held by Plaintiff, which allegedly prove Defendant is indebted to the Plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff.

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Also, check the rules on how many RFAs you can send. I think it's 40, but verify that. They will object to all of them if you go over.

Yes, there are 25 RFAs and 40 Roggs

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I had my pre-trial conference this morning.  JDBA was a different guy from last time - he was a weasely type of fellow.  

 

He sat down anticipating I'd want to settle, and when I politely told him I was not interested in settling, he asked me why.  I told him I didn't believe I owed the debt.  

 

I gave him my Roggs and RFAs (and filed my Notice of Service with the court earlier).  He sat for a few moments trying to figure out which box to check in regards to the next move.  He asked if we could have another pre-trial in 3 months, and I told him it was ok, but I just wanted to get on with it and have the trial.  I told him I didn't need another pre-trial conference because there would be no settlement agreement made.  He told him he needed more time to continue with discovery.  

 

He ended up asking if we could move it back 4 months.  I said sure.

 

When we went to get a copy of the paper, he asked me if I didn't think I owed the debt again.  I told him I didn't know anything about it.  ???  He told me I could file an Affidavit if I felt it was identity theft. He also asked me for my phone number and pointed to my address asking if it was correct.  I told him my info. on the documents was correct.  

 

Thoughts?  I don't think I have much to worry about.  

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Be prepared for MSJ now. That is exactly how it went down with us - they sent a weasel (sounds like same guy!) who was all for another mediation session, while, in the background the main lawyer filed an MSJ. Keep watching your mail - in our case they never sent us the MSJ, they just sent it to the court.

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Yep, MSJ is almost certainly their next move, although they are supposed to complete discovery once it's been started.

You never know. They may surprise you with a stipulated dismissal. I wouldn't count on it, but that happened with someone here a year ago or so.

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Yep, MSJ is almost certainly their next move, although they are supposed to complete discovery once it's been started.

You never know. They may surprise you with a stipulated dismissal. I wouldn't count on it, but that happened with someone here a year ago or so.

I don't understand - why/how can they do that?  I gave them my discovery docs, so don't they have to respond?  So what should I work on preparing in case they do that.  I did, of course, wonder why he pushed the date out so far, and told him I'd rather just get it over with - that I didn't need more time and that I didn't need another pre-trial conference because we would not settle.

 

Anyway, what do I do if they try to file an MSJ (as Goody mentioned) without sending us notice.  Is that allowed?  Doesn't the judge inquire as to whether the discovery process has been completed?

 

 

I think I need to get a Request for Production of Doc's out immediately.  Correct?

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Yep, MSJ is almost certainly their next move, although they are supposed to complete discovery once it's been started.

You never know. They may surprise you with a stipulated dismissal. I wouldn't count on it, but that happened with someone here a year ago or so.

What is a stipulated dismissal (with prejudice)?  I got a dismissal last time from them.  I still don't understand why they would dismiss the other lawsuit for over $3K and even bother to fight this one for so much less.  

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A stipulated dismissal means both parties agree to allow plaintiff to dismiss the case. You can refuse to stipulate and force them to trial. If they won't agree to "with prejudice", this is one way to ensure they cannot sue you in the future. Of course it could backfire and you could lose the case if you force it to trial.

As far as what they can and cannot do, it's all up to the judge. Yes, they are supposed to complete discovery before filing an MSJ, but if the judge allows them to do otherwise, then that's what they "can" do. There's nothing you can do about it until after trial or summary judgment. You just have to move forward with your case and hope the appellate court reverses the trial court's decision.

The judge won't inquire as to discovery. It's up to you to raise these issues.

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A stipulated dismissal means both parties agree to allow plaintiff to dismiss the case. You can refuse to stipulate and force them to trial. If they won't agree to "with prejudice", this is one way to ensure they cannot sue you in the future. Of course it could backfire and you could lose the case if you force it to trial.

As far as what they can and cannot do, it's all up to the judge. Yes, they are supposed to complete discovery before filing an MSJ, but if the judge allows them to do otherwise, then that's what they "can" do. There's nothing you can do about it until after trial or summary judgment. You just have to move forward with your case and hope the appellate court reverses the trial court's decision.

The judge won't inquire as to discovery. It's up to you to raise these issues.

Oh, well, that is lovely.  I love the way the courts work. I do appreciate the heads-up on these things~

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 I still don't understand why they would dismiss the other lawsuit for over $3K and even bother to fight this one for so much less.  

 

Yet more proof that Harry's capped-fee discovery is what is driving the industry. They believe that they will will in the long run. Unlike yesteryear, the "long run" doesn't cost them a dime more than folding early.

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I had my pretrial conference in early December.  We set another pre-trial conference date (next one will be in mid-Feb).  You guys mentioned that they might try an MSJ, but they didn't.  

 

I had sent my RFAs and Roggs right after the pretrial conference in December and just received a response.  I was a little surprised they took the time to bother.

 

What do I do at this point?  I need to read through their responses more thoroughly, but from what I can see, 95% is the standard deny and objections.

 

Also, they referenced the wrong court on both of their responses.  

 

Should I post my questions and their responses on here?  Is that necessary?

 

Thanks!!

 

 

 

 

 

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