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@CCRP626 when we left the judge had said they needed to get me my discovery by the 10th. Though I'm not sure it was an order to compel or just a request type of thing. The lawyer played dumb and went for sympathy. Then handed me the part of discovery that was 100% objected. Then she said there would be another pre-trial hearing? Maybe because we postponed the trial? 

@BV80 So they may not require it at first unless I stress my objection to it? Is it possible to object to it now or should I wait until trial? Their objection to my date of last payment said it was burdensome and not within their custody to obtain that. Well then why did their statement say it in the first place?

Also overheard my lawyer and a lawyer there representing midland funding. Joking about how easy it was to just write up a bunch of 'bullshit and most of the time they'll choose the least damning one' with debt collection. So that was cool to hear that they even know their full of it.

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@RandomHero If you don't have your discovery by the 10th, look at Rule 37 b2C Motion to Dismiss or B Prohibiting the Plaintiff from introducing anything additional (like that laundry list of witnesses/documents they "may" introduce) effective that date.

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4 hours ago, RandomHero said:

So they may not require it at first unless I stress my objection to it? Is it possible to object to it now or should I wait until trial?

You object whenever the issue of ownership is raised whether it be in opposition to a MSJ or at trial.   What the judge would require them to produce is anyone's guess. 

 

4 hours ago, RandomHero said:

Their objection to my date of last payment said it was burdensome and not within their custody to obtain that. Well then why did their statement say it in the first place?

Burdensome?   Well, cry me a river.  Not within their custody?   Too bad.    Cavalry made the allegation, so they should either be prepared to be burdened or slither back under their rock.

 

4 hours ago, RandomHero said:

Also overheard my lawyer and a lawyer there representing midland funding. Joking about how easy it was to just write up a bunch of 'bullshit and most of the time they'll choose the least damning one' with debt collection. So that was cool to hear that they even know their full of it.

The response to your request for proof of the date of last payment is a perfect example of how they write up a bunch of you know what.   He's obviously not that interested in representing his client.

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2 hours ago, CCRP626 said:

@RandomHero If you don't have your discovery by the 10th, look at Rule 37 b2C Motion to Dismiss or B Prohibiting the Plaintiff from introducing anything additional (like that laundry list of witnesses/documents they "may" introduce) effective that date.

Yep, this looks like you need to put the pressure on them.  A lot of debt collectors file a ton of lawsuits, because they know that more than 90% of the time, the consumer will never respond, so they thrive on default judgments.  Most of the time, they cannot come anywhere near proving their claims, if the defendant would file an answer and fight.

I like what CCRP said here.  If it were me, I would want to compel discovery, and when they cannot or do not produce those things, I would motion to dismiss.  The plaintiff needs more than mere allegations with nothing to back them up.  For example, they claim to the court that they are the assignee of the OC.  Fine....where's their documentation showing that this one specific account was assigned to them?  I would object to every "response" from them where they complain about actually having to provide documents to back up every allegation they have made to the court.  If they allege it, then they must be able to prove it.  When they cannot prove their case, MTD because the plaintiff obviously brought nothing more than mere allegations to the courtroom.

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@CCRP626 @BV80 hello again! Sorry for the lack of updates. It's been a busy couple of months. The 10th has come and gone with no further response from cavalry. I sent the good faith letter as requested by the judge that they answer my discovery and why I objected to their objections. 

My letter basically stated that every one of their answers was an objection based on it being burdensome or asking for documents that weren't within their possession. And why these were valid requests to build my defense. In their full discovery response (where everything was objected to) they listed a new person as a witness that wasn't the same person they put in their evidence and witness list. 

My letter gave them an additional week to respond and I got nothing. I did get a notice from the court that another pre-trial hearing is scheduled for tomorrow. So I'm trying to take the time to update you all. I got a letter from cavalry's attorney over the weekend saying the original attorney has withdrawn and a new attorney is now representing the case. Why would they switch attorneys? The former one has other pre-trials in the same room tomorrow, so it's not like he won't be there. 

So im going to pre-trial tomorrow asking to dismiss again based on lack of evidence and lack of willingness on their end to answer discovery. All they keep doing is stalling, switching witnesses, and now switching my attorneys. 

What other reasons should I back up my request for dismissal on?

What should I be expecting at the pre-trial tomorrow? Them saying they got confused yet again? Can I bring it to the judges attention that at this point they're wasting everyone's time as this is the third pre-trial we've had and I still don't have any of the discovery I've asked for even after filing a motion to compel? Or are their objections enough to be considered answers even though it didn't give me any of the documents I've asked for? 

I've specifically asked for documentation showing the last payment they claim was made, and a complete list of all the sales of the account and they haven't given me anything. 

At this point even if it goes all the way to trial I'm fairly confident what they have shown isn't enough for a win. And if they had the full transfer agreement (which is basically all they need to make it a win for them) they would have sent it. How do I ask the judge to at least make it so they can't introduce anymore evidence into the case? If they're not answering my requests, they shouldn't be allowed to submit anything else. Since they've said they don't have it or it's too much trouble to get it. I feel like they're just going to play dumb again tomorrow. And I know in the rules that @CCRP626 pointed out about discovery, if they don't answer I can ask that they can't submit further evidence. 

What confuses me is did the judge grant my motion to compel? Or simply give them more time since they played dumb? Do I need another motion to compel? What happens at the pre-trial? This is the third and each time cavalry just says they got confused.

Thanks again guys! 

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@RandomHero Look through the rules. There should be a limit on pre-trial conferences and providing their case evidence/witnesses by a deadline. I'm sure it doesn't say three of these are needed. Motion in Limine is another option to research to halt any further evidence dumps.

-Read through the thread again from page one since everything is probably covered.

-If you can't get it dismissed at least ask the Judge for a firm trial date with no continuances and no more evidence than what they have supplied at this time.

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On 5/25/2016 at 8:11 AM, RandomHero said:

when we left the judge had said they needed to get me my discovery by the 10th. Though I'm not sure it was an order to compel or just a request type of thing.

 

On 5/25/2016 at 10:57 AM, CCRP626 said:

If you don't have your discovery by the 10th, look at Rule 37 b2C Motion to Dismiss or B Prohibiting the Plaintiff from introducing anything additional (like that laundry list of witnesses/documents they "may" introduce) effective that date.

 

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1 hour ago, RandomHero said:

What confuses me is did the judge grant my motion to compel? Or simply give them more time since they played dumb? Do I need another motion to compel?

You'd have to look at the order. For now just reference it in your motion and if the Judge feels it was just another pat on the Plaintiff's back and not an order with consequences, they'll point it out if they deny your motion. You may want to prepare your own orders in the future asking for what the rules allow. I don't see the Judge allowing their stalling to go on and on especially when you followed what the judge requested to try to obtain the documents.

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@CCRP626 there was no order. She just said it and said they had until the 10th. If I disagreed with their discovery to write them a letter saying why. And that a new pre-trial date would be set up. There was no written order. :/

Do I need to write up a motion to dismiss for the pre-trial or can I do it verbally tomorrow?

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1 hour ago, RandomHero said:

Do I need to write up a motion to dismiss for the pre-trial or can I do it verbally tomorrow?

I think you've been through this at court already so review what's occurred. Wasn't that appearance two months ago where the Judge said they had until the 10th of June held under Rule 26g? I'm just skimming through this but it looks like the Judge was required to issue a written order if you check 26 (g)(3).

Rule 7 (b)(1) http://www.courts.maine.gov/rules_adminorders/rules/text/MRCivPPlus/RULE 7.pdf has the motions procedure which states motions are in writing except at trial, hearing or under 26g. Rules 26 and 37 seem to have the discovery rules you'll need for their failure to provide discovery.

 

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3 hours ago, CCRP626 said:

I think you've been through this at court already so review what's occurred. Wasn't that appearance two months ago where the Judge said they had until the 10th of June held under Rule 26g? I'm just skimming through this but it looks like the Judge was required to issue a written order if you check 26 (g)(3).

Rule 7 (b)(1) http://www.courts.maine.gov/rules_adminorders/rules/text/MRCivPPlus/RULE 7.pdf has the motions procedure which states motions are in writing except at trial, hearing or under 26g. Rules 26 and 37 seem to have the discovery rules you'll need for their failure to provide discovery.

 

Yes, but this judge also decided that a MTD due to SOL was instead a MTD for failure to state a claim and ruled on something not even in front of them, so who knows.

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@RandomHero  Go back and read the previous suggestions.  I believe it was determined that the proper pleading would be to file a motion for summary judgement and show evidence that this action is time-barred by SOL.  If you properly format your MSJ and do not confuse or clutter your pleading with any unnecessary information and stick only with the SOL issue, perhaps the new judge will dismiss the case.

I would use the word time-barred every chance I got.  In motions, at the hearing, etc. until I got a definitive ruling on the SOL issue.

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Got through pretrial. My verbal motion to dismiss was denied because the opposing lawyer said that was something that needed to be left for trial. They did however say that they have no further evidence that cavalry was willing to submit, so further discovery would be useless. I made sure to have that noted that no more witnesses or evidence will be allowed. 

Looks like it's going to trial. I mentioned it being time barred and I don't think the judge really cared if it was until it goes to trial. But maybe I should write another MSJ based on the statute of limitations alone like you've said. One last try. 

Another pretrial before me was also for cavalry and cavalry had withdrawn the suit. No such luck with mine though. 

They said they needed a 30 day notice to fly in cavalry's witness. What are the odds of them actually doing that? 

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3 hours ago, RandomHero said:

But maybe I should write another MSJ based on the statute of limitations alone like you've said. One last try. 

Didn't the last one many pages back get turned down solely for procedural issues with you not attaching a notice or something so the SOL was never addressed? Whatever you're going to do, read the rules back and forth. If you're doing something in writing, you might as well add in the discovery issues and how Rule 37 (specific section posted earlier) calls for dismissal.

Make sure I've got this right- this all looks outside of SOL except for one piece of paper created by the JDB showing a single small payment years after all other payments? Reviewing all your own bank records, they do not show this payment? Repeated discovery requests for more detail on this payment were met with objections or silence? The court hearings on discovery issues brought under Rule 26g do not actually ever produce a court order needed to advance to Rule 37 to enforce them which includes not going to trial because the attorney said "that was something that needed to be left for trial"?

While you're crafting your court papers head to the CFPB site and file a complaint for time barred lawsuit on a private student loan- http://www.consumerfinance.gov/complaint/

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@CCRP626 This all sounds right. The motion to dismiss awhile back mentioned lack of evidence and was denied because of improper procedure and because they at least had a viable complaint. 

According to everything, this debt defaulted in 07. The only thing saying otherwise is a paper on cavalry letterhead saying it defaulted in 2010 and that a partial payment was made in 2010. However asking for proof of all this whether through letters or through actual discovery was met with silence and in discovery met with objections. At the discovery hearing the lawyer said they got confused and handed me discovery then. When I pointed out to the judge right there saying it was all objections saying it was burdensome or wouldn't lead to admissible evidence and that those objections per the rules are counted as failure to answer, the judge told me to write them a letter of good faith explaining why I needed these answers. My letter was never answered. So they've yet to show me a union federal default date. And union federal is no where to be found in my bank records or my credit report. 

That said, the judge today didn't seem to care they hadn't answered. The lawyer said what I had was all the evidence cavalry was willing to give. How is that fair that I have nothing to build a defense with though? She made mention that there was no 26g motion filed from me. To which I told her the previous judge told me to only send them a letter of good faith to get my answers and if I didn't we'd cover it at pretrial. 

Should my MTD be based on rule 37 then? Or sol? The attorney today said evidence needed to be gone over at trial and dismissing now wouldn't be proper procedure. Which I get. But dismissing based on time barred or rule 37 should still be an option. I've played by all the rules, they're the lawyers and keep getting away with it because they're 'confused' and cavalry is 'confused'. 

But yes. You've got the base of it correct. So, another MSJ or MTD based on rule 37 and SOL? Send them more discovery? Or just wait for my court date and hope the witness doesn't show? Would the witness be damning? 

One silver lining is that they said cavalry has no further evidence. Which means they're going to court with the incomplete, whited out transfer agreements with none of my info on them. And case law you guys have given me should be enough that if I cite them at trial, the judge should have to agree they don't have enough evidence?

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4 hours ago, RandomHero said:

opposing lawyer said that was something that needed to be left for trial.

http://www.courts.maine.gov/rules_adminorders/rules/text/MRCivPPlus/RULE 36.pdf

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 Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.

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Whatever you do, do it in writing to have a paper trail. You can reread Rule 26 to see what went wrong but without a court order coming from that, it doesn't look like you can use Rule 37 which has the teeth for discovery violations. If you're doing a MSJ for SOL, adding all the discovery detail wouldn't hurt.

You know they've got crap for evidence and it's now set they can't ambush you with anything new. If their witness doesn't show, move to dismiss if they already haven't, no continuances. If they do produce their witness, it's hearsay.

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Hi everyone! Back for a fun update. 

So trial is officially set for the 29th. I haven't received anything as far as a new name for the witness they claimed they would bring. Do they need to give me a specific name before trial? All they've said this far is it could be this guy, then this girl, or this other guy. 

More interesting. I got a letter from their lawyer saying their client has agreed to offer a settlement amount of about half what they're suing for, and allow monthly payments of that amount. It says to call to agree or to counter offer. 

What should I do with this? Is this a sign of weakness on their end, or just a good faith effort? If I could get them to settle for even less, it may be tempting just to avoid trial. But do they maybe think they don't have a strong enough case to win so now they're extending the olive branch? They've offered no form of settlement up until this. 

Also, if I call the lawyer and counter offer, is that me essentially accepting responsibility for this debt and will ruin my chances of winning? 

Thanks everyone! Hope you've been well!

@CCRP626 @fisthardcheese @BV80 @kraftykrab

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38 minutes ago, RandomHero said:

I haven't received anything as far as a new name for the witness they claimed they would bring. Do they need to give me a specific name before trial?

You would have to check your states rules of civil procedure.  Some states do require it (like California) but I am not familiar with Maine enough to know.

If they DO have to disclose it and don't it gives you grounds to challenge their witness.

39 minutes ago, RandomHero said:

More interesting. I got a letter from their lawyer saying their client has agreed to offer a settlement amount of about half what they're suing for, and allow monthly payments of that amount. It says to call to agree or to counter offer. 

What should I do with this? Is this a sign of weakness on their end, or just a good faith effort?

No it is their effort to attempt to collect money with little to no effort.  The goal is ALWAYS a default judgment or settlement vs. a trial where they have a 50/50 chance or better of losing.

40 minutes ago, RandomHero said:

Also, if I call the lawyer and counter offer, is that me essentially accepting responsibility for this debt and will ruin my chances of winning? 

No.  Settlement talks are not admissible in court.  I would keep the negotiating without admission by stating in the interest of freeing up everyone's time you are not admitting to anything but are willing to offer 20% of the amount they are suing for.  If you are comfortable I would settle for 30-35% if they agree to it but not half.  That is just me your tolerance level may be higher.  

Before making ANY payment though you want all terms in writing with them.  I would also include terms that state they will delete the trade line, any remaining amount is disputed and they cannot/will not sell the account.  

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At this point I am lost.

If I was sued on a debt I was sure was beyond SOL, I would have had an attorney filing a federal lawsuit against the JDB by now and that lawsuit would be used to leverage a dismissal in this case against me.   I sure as heck would not be entertaining paying half of what they claim I owe to settle.

But you do what you feel you need to do.

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So one update. I called their attorney about their settlement offer a couple weeks ago. After reviewing all the evidence they sent and with them saying they didn't have any more evidence to submit, I decided I was going to roll the dice and go through with the trial. When I called the attorney she had no idea who I was, and needed me to give her the case number to look it up (understandable since I'm sure she sends dozens of settlement letters a day). She finally pulled it up and asked if I agreed to the settlement and told me she'd send me papers to sign. I then told her it was just a courtesy call to let her know I had no interest in settlement since they refused to give me any of the discovery and documents I asked for as proof they had standing to sue on this. 

Then she said she was authorized to offer a $5000 settlement amount again to be paid at $200 a month. Although tempting since this would've been only a quarter of the debt, I politely responded again that there was no settlement to be made as Cavalry has failed time and time again to show me that they legally own my debt. She thanked me for calling to let her know and we hung up. 

A week ago I received a call from her again saying they would be willing to settle for a lump sum of $2,000 to recoup expenses spent on preparing for the trial. The trial she said that I had dragged out over the past year. Now, $2000 would be 10% of what they wanted and very very appealing to have it all be over. But for her to effectively blame me that I dragged something out pissed me off to be honest. I wasn't trying to drag anything out, I was trying to fight it and it was an inconvenience to them for something they wanted me to default on. So again I apologized and told her that I had zero interest in settling or in helping Cavalry 'recoup' the cost they spent on their 'resources,' and pointed out that Cavalry's cost in this was not my burden to bear,similar to how the proof of them owning this debt wasn't mine to bear. That I've asked for the full bill of sale, the original contract, and proof of that mystery partial payment and they've failed to produce anything of any value for me to even consider a settlement to a debt collection agency. And that it's clearly an issue that a judge needs to decide on at this point. 

I feel more confident than ever going into trial now. I feel like there's no way they're going to have a witness at this point and that they have no 'smoking gun' they can show at trial as they've already told the judge they have no further evidence. 

So trial is set  we'all see how it goes and hopefully I didn't piss them off too much to make them really fight. But I think them wanting to settle so badly shows their cards in a way that they don't think they'll win this  

I'll keep everyone posted. But seriously, thank you to everyone who's continued to help me with this even though I was essentially asking for the same advice/reassurance over and over again. You guys are all awesome  

 

 

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@RandomHero

Hopefully, they'll dismiss before trial or fail to show up.   In the event there's no dismissal beforehand and they do appear, it remains to be seen if the judge will require them to provide the full bill of sale and original contract.  If he doesn't require it, focus on their failure to prove the date of last payment.   You've denied making that payment.  (You did deny it in an affidavit, right?).  

They claim you made a payment on a certain date so where did they get the amount of the alleged payment and the date on which it was allegedly made?   If they claim to have gotten that information from the OC, why didn't they get a copy of the credit card statement from the OC that shows the alleged payment?   After all, they've had plenty of time to get proof from the OC.  It would seem that instead of allowing you to drag this case out :roll: , they would have gotten the necessary proof to nip this in the bud.

As a member once said, "The proof is in the pudding, but they haven't provided the pudding."

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@RandomHero

I think you did pretty well for yourself to have Cavalry want to settle a $18K debt for $2K.   JDBs usually pursue big debts like yours aggressively.    A lot of OPs might have settled for that amount.  But if you feel you have the upper hand, then go for it.   I would, however, THOROUGHLY PREPARE for trial.  There's not a lot of credit card caselaw in Maine.   Keep us informed.  

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