Lucent

CACH in Texas - Zero Response from Plaintiff to Discovery Request

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1. Who is the named plaintiff in the suit?  CACH LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Wold rather not say.  It is a well known JDB attorney for CACH in Texas.

3. How much are you being sued for? $10k+

4. Who is the original creditor? (if not the Plaintiff) Web Bank (Lending Club)

5. How do you know you are being sued? (You were served, right?) Served at my home

6. How were you served? (Mail, In person, Notice on door)  In Person

7. Was the service legal as required by your state?  Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  They sent several letters.  I did not respond.

9. What state and county do you live in?  Travis County, TX

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  It is just within the SOL based on the alleged last payment.

11. What is the SOL on the debt? To find out:  4 Years (Texas)

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).   Served, Discovery on both sides delivered.  I have answered discovery and the suit with a general denial

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  Nope

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.  Nope

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  I responded within the required time with a general denial.  I did not use any affirmative defense.

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I am well on my way and have been reading as much as possible.  

The original petition was properly filed with a breach of contract claim.  All that was included in the petition was a T&L statement.  No contract.  No account statements, no proof of ownership.  The alleged loan is from Lending Club (WebBank)  

Plaintiff included a boilerplate discovery request with their complaint which I responded to within the required time.  My response generally denied everything, punting the requirement back to them to prove their case based upon all the great information on this site.

After filing my general denial I immediately sent the Plaintiff a Discovery request for Disclosure and Production.  Essentially asking very specific requests for a contract, account info., 190.2 disclosures, 194.2 disclosures, chain of title, warranties, etc.  

It is now 9 days past the required 30 day response time for the Plaintiff to respond to my Discovery request and they have not responded in any way.    My request is recorded with the court and I have a receipt for the registered mail delivery.   I was planning on sending a request for admissions and interrogatory to bolster my case based upon the documents they produced but I am now leaning to letting it ride to see what they do.  

The Texas statue states they cannot introduce any evidence not produced in Discovery.  Is this correct?  I don't want to poke the Bear but also don't want to miss something.

I am on top of the court filings so I will not miss anything.  But essentially radio silence from the Plaintiff.

Should I just wait at this point?  

 

 

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Well no responses from the board....    

Or the JDB law firm.   Total radio silence.  And they are now well beyond the 30 day requirement for their discovery response.

I have sent my answer, a request for production and interrogatories, and my response to their boilerplate discovery.  All CMRR with digital tracking and filed with the court.

I am going to go silent on my part to wait for the JDB's next move.    Like a "Fart in the wind" I remember someone else saying on the board. :) 

I have no idea what to expect next.  95% of the cases that are posted in the same court are for default summary judgement.  The few people who fight are in most cases getting no suited or dismissals. 

So we will see.  In any event I am happy to document what my experience is to help others who may have the same situation.  The board has been invaluable for my case.

Once I am through the wringer I will post all my documents and responses.

L

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By failing to provide who the law firm is that filed the suit and in which court you are creating a hindrance to getting much help.  It is next to impossible to predict what an unknown entity's actions may entail.  Most JDB attorneys have established calcuable patterns in previous cases.   

Regardless of who it is I would suggest sending them a letter via certified mail stating that if you do not receive the answers to your discovery within seven days then you intend to file a motion to compel said answers and the forward flow agreement showing the complete chain of ownership of the alleged debt that is the subject of the lawsuit.

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Enerson Law LLC...  In the Travis County Civil Court.

BTW, I asked for the entire chain of ownership including the flow agreements in my discovery.

Thanks for the reply.  I will send them a letter.

L

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Quick question.  Do I also need to file my letter demanding they comply with the court?  Seems I would want it on the official record.

And should I include the initial discovery request?

L

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Well I have received zero response from the JDB on any of the materials I have sent them.

  • General Denial (Also sent to court, CMRRR and registered online)
  • My answer to JDB discovery (The fact I responded registered with court and sent RMRRR to JDB)
  • My 1st Discovery request to JDB including demand for production of documents and interrogatory (Sent to JDB CMRRR and the request also registered with the court)
  • My letter to JDB reminding them of their obligation to answer Discovery, with a threat to file a Motion to Compel if they didn’t respond in seven days.  (Sent CMRRR)

JDB is now ~30 days late on their Discovery response, and also late on my demand letter.  They have produced nothing, no contract, no proof of ownership, no billing statements.  The original petition only had a truth and lending statement copied from the web.  Since the filing of the suit they have been totally silent. 

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I think my next step will be to file a Motion for Summary Judgement – Lack of evidence.   Is this a mistake?

I do not want to miss any steps.  Can anybody help with the process for Travis County Civil Court in Texas?   Here are the steps I believe I need to take:

  1. File MSJ for lack of evidence with the court and serve the same MSJ on the JDB
  2. Call the court clerk and request a hearing date for the motion (Can I request a date with the MSJ?)
  3. Serve the hearing date docket call on the JDB (Not sure how to do this part)
  4. Attend the hearing
  5. Leave a free man. 

Seems they will automatically lose and the case will be dismissed if they do not respond.  Is this correct?

Do I even need to schedule a hearing?  Can the motion be ruled on by the judge without setting a hearing?  How is this done?

Any other guidance?  All help is greatly appreciated.

Here is what I have drafted for the MSJ:

DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGEMENT

 TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW  (“Defendant”), to urge the above-captioned motion against  (“Plaintiff”) and in support hereof, shows the following: 

I.                   NATURE OF SUIT

Plaintiff’s action is for suit on breach of contract along with a request for all costs of court, post judgement interest, and all other relief which plaintiff is entitled. 

II.                ADEQUATE TIME FOR DISCOVERY

An adequate time has passed for discovery.

III.             NO EVIDENCE

Plaintiff’s claims are insupportable in that there is no evidence of one or more of the following essential elements on which Plaintiff has the burden of proof at trial:

a)      Defendant signed the note.

b      Defendant is in default thereunder.

c)      Plaintiff notified Defendant of default and provided an opportunity to cure.

d)     Defendant failed to cure.

e)      Plaintiff has suffered damages.

f)       All just and lawful offsets, payments and credits have been allowed.

g)      Plaintiff made written demand for all sums claimed.

h)      Plaintiff is the owner and holder of the note and purported appurtenant indebtedness.

i)        Plaintiff is entitled to recover its attorney’s fees.

IV.             PRAYER

WHEREFORE, Defendant requests judgment of the Court that Plaintiff take nothing.

L

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@Lucent I sent my Discovery to PRA LLC back On April 7th tracked it they signed for it on April 10th no response as to dat so I am sending a certified letter today to them giving them seven days to respond or a motion will be filed with the court to compel Discovery along with the chain of ownership and flow agreement. I am sending it certified mail today,. They are way passed the deadline. Good luck to you. 

 

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Well I spoke too soon.  Received the JDB response to my discovery in the mail today.  Guess my letter actually worked.

Huge packet of all kinds of paper.

On my Discovery they basically objected to everything.  

  • On my chain of title request they are claiming work product and privilege

For the rest they are claiming 12 C.F.R 226.25 says they don’t have to retain any of the records I requested.  I should have them.  Well OK, and I can’t find them.  

They objected to production of:

  • Warranties or representations
  • Credit agreement bearing my signature
  • Itemized statements for the alleged account
  • Any other documents

Stating they will call no witnesses.

The packet includes an inch of paper:

-          A redacted bill of sale for lot xxx (No other details)

-          An Affidavit attempting to validate the bill of sale

-          Exhibit II conveying the lot xxx to CACH.  Redacted with no details.  (Lending club to CACH)

-          Certificate of Loan Sale – Transfer statement for loans on Exhibit A (Exhibit A is a promissory note)

-          Affidavit verifying the account schedule “Bill of Sale” – no mention of me.

-          Exhibit I

          o   A different affidavit (Different Date & names) validating the bill of sale. - Again no mention of me

          o   Duplicate of exhibit II above

-          Duplicate Exhibit I page

          o   Spreadsheet list of payments from the alleged account

-          Then the following

          o   Borrower bank account verification (Welcome Spencer on the header – I am definitely not Spencer)  Boilerplate - My name is not mentioned

          o   Borrower Membership Agreement (Welcome Spencer) Boilerplate - Once again I am not mentioned

          o   Borrower Documents and Information (Welcome Spencer) – I am listed correctly

          §  Name, Address, Phone, Loan Details, with Checkboxes stating I agree to the Borrower Agreement, Loan Agreement and T&L

          o   A credit score – No name

          o   Loan Agreement (Welcome Spencer)  Boilerplate - I am not mentioned

          o   Exhibit A – Promissory Note (Totally Blank)

          o   Thirty more pages of boilerplate copied from the web

          o   Truth and Lending Disclosure – With my name and loan amount

          o   Duplicate T&L – Same info (Package is getting thicker)

          o   Two different pages showing original loan amount in different formats - Has my name and DOB

          o   Affidavit of Sale – State of California listing my name and sale of redacted loan to CACH

          o   Several pages of JDB demand letters and offers to settle

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Sorry for the novel....    I still think I want to file a MSJ – No Evidence

I can't see how they establish ownership or a signed contract with what they have produced.   All their evidence is disjointed and doesn't hold together.

Am I setting myself up for failure?  Comments anybody?

L

Edited by Lucent
Updated

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How do I challenge the signers of the affidavits?   They did not provide any address details but they did submit multiple affidavits.  But are also saying they will call no witnesses.

Should I do Admissions and Interrogatories to challenge their actual knowledge of the account?  Seems that might be my next attack route.

Or do I proceed with the MSJ for lack of evidence?

L

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File a motion to compel answers to everything they refused to answer (except the itemized statements as you never should have asked for that anyway) and for production of the forward flow agreement.  Everything they provided is the same inadmissible "evidence" that they send to any defendant for intimidation purposes.

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Thanks texasrocker.  Always appreciated.

Before filing the MTC should I send the following?

1.  Meet and confer letter
2. Interrogatories
3. Request for Privilege Log 

Seems I would want these on record 1st.

L

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You already sent what would be considered a meet and confer letter.

I did not see the discovery you originally sent.   Did you not include any interrogatories?

I would bring up the fact in the motion to compel that they failed to provide a privilege log when claiming attorney-client privilege or whatever they called it.  

 

 

 

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We won!   

Sorry for the silence.  Didn’t want to poke the Bear.  This was actually two parallel cases.  In any event we are two for two.  And both are now past the SOL. 

1st case:  JDB nonsuited after I added representation and we filed an updated answer. 
2nd case: JDB went silent after adding representation and finally nonsuited after a year of silence

Case #1:  I started off Pro Se with my answers (general denial found on this site) and discovery (also found on the site).  The JDB never responded to my discovery.  Not knowing how to file motions, I got cold feet at this point and hired legal help. 

My new lawyer filed an amended answer including a plea to the jurisdiction for lack of standing (many good examples on this site) calling out the fact that the JDB petition did not include signed contracts.  He also added an SOL affirmative defense. 

At the same time, he filed a new discovery request, which again demanded chain of title and flow agreements.  JDB had never responded to my initial discovery.  Discovery was again ignored by the JDB and 60 days later, the JDB filed a Nonsuit.
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Case #2: The second case followed the same path with the one difference being the JDB did respond to my discovery, which included a demand for flow agreements, after I sent a demand letter.  Their response was filled with a ream of junk paper and objections claiming client privilege or no requirement to maintain records.  My new lawyer did not file a second discovery request, opting to only file an amended answer mirroring the first case. 

The case then sat idle with no action for 12 months.  Finally, after no movement or contact the JDB nonsuited on day 444 of the case.
____________________________________________________________

Two wins using the general strategy of texasrocker to get me started pro se, and then a very similar strategy with my attorney.  Yes, the texasrocker strategy can still work in Texas.  Thanks @texasrocker

Maybe it was just dumb luck or whatever, but in my case it worked. 

Lucent

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