mrspiceman

Sued by Cach LLC - Motion to Compel Discovery Responses and Set Discovery Conference - OKLAHOMA

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Being sued by Cach LLC for a debt allegedly incurred my by defunct business for $31,000. Original creditor is Wells Fargo.

Here are the bullets: 

  • Plaintiff Petition Filed 3/2015
  • Defendant Answered Petition 5/2015
  • Plaintiff Filed  "MOTION TO COMPEL DISCOVERY RESPONSES AND TO SET DISCOVERY CONFERENCE" 6/2016
  • Plaintiff Filed "NOTICE OF HEARING ON PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES" 6/2016
  • All of the Plaintiff's communication was mailed to my now ex-wife's old house address, so I never received the communication. As a result, I was not able to respond to the Discovery request. I only made the discovery of these events through the online court system after they made their filings.
  • Filed for and was granted Divorce in 8/2015, after my answer but about 10 months earlier than the recent Plaintiff's filings. 
  • My assets are nearly zero, I rent and do not own a home and I owe more on my car than it is worth and live near paycheck to paycheck.
  • PLAINTIF'S MOTION TO COMPEL DISCOVERY RESPONSES AND TO SET DISCOVERY CONFERENCE HEARING IS SET FOR THIS FRIDAY
  • Will be traveling for work on the day of this hearing and will be gone (2) weeks. My jobs has me out of town 21 days of the month. 

How should I BEST proceed from here? As it stands, they don't have my correct address and I cannot appear at the hearing. Any help would be GREATLY appreciated. 

 

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@mrspiceman Wells Fargo offer private arbitration. Get your cardmember agreement. That may be the way to go on this unless you find posts on Oklahoma win strategy. For now you should look into getting a continuance of the hearing and getting your correct address to the Plaintiff and the court. You'll want to get your Motion to Compel arbitration in ASAP if that's how you want to go. If you start getting into discovery, that will be a factor in showing you waive your right to arbitration, then you're stuck in court.

Read up here.

There's some good detail in here on Oklahoma law for credit card debts- http://www.nationallist.com/image/cache/Oklahoma_Debt_Collection_Laws_-_Final.pdf

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If your hearing date is this Friday, I'd call the county court clerk's office or head down there before you're on the road. They may have forms on their website as well. Schedule a hearing for your Motion to Compel arbitration (template in the linked thread above) for the new date. When arb is approved it will put a stay on court, including these discovery hearings. Your district court rules/rules of civil procedure should have detail on amending answers. Oklahoma Statutes Title 12 Chap 39 Oklahoma Pleading Code.

If you aren't going to do arb and are staying in court it's going to be a whole other thing if your discovery responses are due. Did they send request for admissions? Go ahead and send your answers unless you're going to do arb then you'd not send and object to participating in discovery to avoid waiving your right to private contractual arbitration.

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They sent a discover request and a request for admissions, but they sent it to a non-valid address that I had inadvertently listed on my ANSWER only. This is a completely DIFFERENT address than what was used when they mailed the original petition. It is also an address in which my then wife lived (now Divorced). CACH LLC waited nearly 1 year after my ANSWER to proceed further with the case. Since that time, I got divorced, my ex-wife moved from the incorrect address and she put a forward in resulting in all of the communication from CACH LLC lawyers to not get to me. I only discovered what is going on now from a recent public search on the courts web site. Trying to figure out how best to fix and move forward. I have an "appearance and change of address" ready to go and was wondering what else I should file to be safe. Should I file a Motion for a continuance and a Motion to Compel for Arbitration? Kind of in a rough spot with the address being screwed up. Wouldn't there be a lack of service here? They have no signature and the tracking they provided clearly shows it was forwarded to a city and zip code in which I don't live.  

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The address you were originally served at was the correct one and you answered? You did not notify anyone of improper service at the time you answered? You did not keep the Plaintiff and Court up to date on new addresses after that point to contact you at? Get all that up to date and keep watching the court's site for your case.

4 hours ago, mrspiceman said:

Should I file a Motion for a continuance and a Motion to Compel for Arbitration?

With three days before hearing this is where the other party doesn't get proper notice so call the court clerk, you could do a courtesy call to the Plaintiff atty office as well. In your continuance mention your work travel schedule and also include you'll be presenting your Motion to Compel Arb (you just found the cardmember agreement) and it would be more efficient use of the court's time to handle all of these in one rescheduled hearing. From this point forward if you're doing arb I'd include mention of it in all court papers. I wouldn't put too much into the continuance about mail issues other than you haven't been receiving mail if these problems could have been resolved by you keeping them up to date on a good address.

BTW, in your pleading requirements see if there's anything there about the agreement needing to be attached to the complaint. That link earlier mentions OK courts expect cardmember agreements. You could use in your argument that if the Plaintiff provided this earlier you would have known about arb.

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4 hours ago, mrspiceman said:

CACH LLC waited nearly 1 year after my ANSWER to proceed further with the case.

You'd have to see what OK failure to prosecute rules state as far as inactivity leading to dismissal. Double check the case activity site to make sure it's actual lack of activity and not lack of mail you've been receiving.

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The only incorrect address was the one provided in my original answer. They mailed the petition to (2) different addresses, neither of which was the same as what I provided in my answer. The address provided in my answer was simply an error on my part, but it was only the address they used for all of the mailing subsequent to the answer filed . Now, none of the prior addresses are correct as it's been nearly 17 months since the original filing and life has changed for me during that time. 

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@mrspiceman

The fact that CACH has filed a motion to compel production shows that they mailed their requests before that motion.  Do you know when they mailed the  requests for production?

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Yes, they mailed it to the incorrect address listed on my answer. This address was that of my now ex-wife, we were divorced (1) year ago and the USPS tracking CACH lawyers provided shows it was forwarded to a different city. She moved from that address shortly after our Divorce. 

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4 minutes ago, mrspiceman said:

Yes, they mailed it to the incorrect address listed on my answer. This address was that of my now ex-wife, we were divorced (1) year ago and the USPS tracking CACH lawyers provided shows it was forwarded to a different city. She moved from that address shortly after our Divorce. 

Okey dokey.

The problem I see here is the dormancy (inactivity) period.  They mailed the requests to the address you provided.   If they mailed those requests before the time limit required by the court ( if there is one), you may not have a claim for lack of prosecution.

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I filed my answer 5/2015 and they're request were not received until 4/2016. Those request were not received by me, as it was forwarded to an unknown address in a different city from where I live. 

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When you go to court to file your arb papers make sure those and extras you bring along to take home with you are clerk time stamped to show you filed them prior to Friday.

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