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Being sued by Midland. In discovery phase, need help!


nash43764
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Dating back last April I received summons on a debt from Midland. I did a lot of reading here and we are up to discovery. I sent my requests after reading here and they asked for an extension through my county court, (I'm in Ohio.) I stupidly assumed the extension was for thirty days and just kept waiting for something to happen. A total of 60 days would have been up on October 7th. Here it is, January and I just received their discovery answers a few days ago. Help?

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@nash43764 Did you include rule-compliant requests for admission with your discovery? If so, find out what the judge's discovery completion extension deadline was. 

RULE 36. Requests for Admission http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

(1) Each matter of which an admission is requested shall be separately set forth. The
party to whom the requests for admissions have been directed shall quote each request for
admission immediately preceding the corresponding answer or objection. The matter is admitted
unless, within a period designated in the request, not less than twenty-eight days after service of
the request or within such shorter or longer time as the court may allow, the party to whom the
request is directed serves upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or by the party’s attorney. 

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1 hour ago, Brotherskeeper said:

Each matter of which an admission is requested shall be separately set forth.

 

1 hour ago, Brotherskeeper said:

The matter is admitted unless,

 

1 hour ago, Brotherskeeper said:

within a period designated in the request, not less than twenty-eight days after service of
the request or within such shorter or longer time as the court may allow

 

1 hour ago, nash43764 said:
09/07/2017
  • PLAINTIFFS MOTION FOR EXTENSION OF TIME TO RESPOND TO
    DEFENDANTS FIRST SET OF DISCOVERY GRANTED FOR 30 DAYS

 

1 hour ago, Brotherskeeper said:

the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney. 

We have no idea what you sent to your plaintiff. If you sent Requests for Admission in your discovery packet that comply with your rules of civil procedure, and the plaintiff did not serve you with a written answer or objection to each Request for Admission by the 30-day extension granted by the court, then according to rule 36, each matter is admitted. (I am not a lawyer.)

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40 minutes ago, nash43764 said:

Can I get a little better explanation of what that means exactly? Thanks for your help by the way.

(I'm assuming your question was in relation to my post about arbitration.)

Arbitration is a forum to resolve disputes.  It's like court, but less formal.  Most credit card companies include a provision in their credit card agreements that allow either party to use arbitration to resolve disputes, and doing so removes both parties rights to have the case heard in court.

The catch is that arbitration costs a business A LOT ($5,000 to get started) whereas consumer fees are capped around $250.  Any time Midland is faced with a court order to arbitrate, they dismiss the case instead and walk away.

You need to be sure your debt is subject to arbitration.  This depends mostly on the original creditor (Cap1, for example, doesn't include arbitration in their agreements any more) and when the account was opened and charged off.  Look for your credit card agreement here:
https://www.consumerfinance.gov/credit-cards/agreements/

If you want to go this route, you need to get the ball rolling on it, like now.  Most jurisdictions have ruled that "participating in litigation" constitutes a waiver of a party's right to utilize arbitration.  "Participating in litigation" has different meanings in every jurisdiction.  This Ohio case gives some guidance.
https://scholar.google.com/scholar_case?case=13544036311911258590
Also, according to this case Midland has to prove you waived your right to arbitration.  To do so they have to show both of these two things: 1.) that you knew of the right; and 2.) you acted inconsistently with that right.
https://scholar.google.com/scholar_case?case=16873528219749558817

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Here is what I asked in discovery and their responses...

Productions

1. The original signed application establishing the account. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

2. Charge slips bearing the defendant's signature which establish use of the account. 

 Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

3. The original written agreement in which defendant allegedly assented to the terms of the account. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

4. A Complete history of the account from day one, establishing the legitimacy of the balance sought. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

5. Any document setting forth the choice of law provision. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

6. Any document produced by the plaintiff intends to produce at trial which establishes the exact day the subject account went into default. 

Objection, this request is premature as discovery is ongoing and reserves the right to amend this response. Further objecting, this interrogatory violates the trial preparation and work product privileges.

7. Any document produced by the plaintiff in the normal course of business which states and defines the exact statues the choice of law provision seeks to enforce. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

8. Any recording or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. 

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at the trial.

Objection, this request is premature as discovery is ongoing and reserves the right to amend this response. Further objecting, this interrogatory violates the trial preparation and work product privileges.

10. Proof of mailing of monthly statements. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time. 

Objects to this request on the grounds among others, that it is vague and ambiguous and that it fails to specify the type of information being sought.

12. Any document produced by the plaintiff in the normal course of business defining "unreasonable amount of time."

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. 

13. Documents establishing the chain of custody of alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignee's. These documents should show the account number and name of the account holder.

Objects to this request on the grounds among others, that it is vague and ambiguous and that it fails to specify the type of information being sought. Further it is overly burdensome. Without waving, see attached. 

14. Forward flow document governing this transaction. 

Objects to this request on the grounds among others, that it is vague and ambiguous and that it fails to specify the type of information being sought.

Attached is Exihibit 1 asset schedule about accounts transferred by the bank to the buyer, but everything is blacked out. 

An affadavit of sale of account by original creditor, and some account statements.

I don't understand how this means anything if it went beyond the 30 day extension time...

 

 

 

 

 

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1 hour ago, nash43764 said:

2. Charge slips bearing the defendant's signature which establish use of the account. 

 Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

UGH.  This is never needed.  You only need this if you are alleging identity theft or if you are disputing fraudulent charges with the original creditor.  It has NO bearing on a defaulted credit card case.

1 hour ago, nash43764 said:

3. The original written agreement in which defendant allegedly assented to the terms of the account. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

Again, UGH.  The courts know there is no written contract in a credit card case and they are not looking for one.

1 hour ago, nash43764 said:

4. A Complete history of the account from day one, establishing the legitimacy of the balance sought. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

Nope.  WAY WAY too broad.  You only have 6 months to dispute a charge before it is permanent.  ANY amounts over 6 months from the date of default are considered accurate.  

1 hour ago, nash43764 said:

5. Any document setting forth the choice of law provision. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

If you are asserting a choice of law the burden is on you.

1 hour ago, nash43764 said:

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at the trial.

Objection, this request is premature as discovery is ongoing and reserves the right to amend this response. Further objecting, this interrogatory violates the trial preparation and work product privileges.

BAD move.  Introducing your own banking records proves you are responsible for the account.  You never ever want your own records introduced unless they benefit you.

1 hour ago, nash43764 said:

10. Proof of mailing of monthly statements. 

Objection to the request as it is overly broad and unduly burdensome. Further objecting to to the extent this question seeks confidential and privileged information. Without waving the objection see attached. 

They are only required to prove they generated monthly statements not prove they mailed them.   Waste of time.

 

You cut and pasted this from the internet and most of it is useless in a defense.   Look into filing a motion to compel arbitration.  You are in over your head and your opponent knows it now.

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3 minutes ago, nash43764 said:

Ok, I get I screwed up, but still sending this months after the deadline means nothing? 

Unfortunately, it means nothing.   

By not taking any action, you allowed them to take this long.   Read Rule 37 of the Rules of Civil Procedure.  You could have filed a motion to compel responses.   The court would then have granted or denied your motion.   If the court granted it, it would have ordered the plaintiff to respond within a certain amount of time.   At that point, if the plaintiff failed to obey a court order, you could have requested sanctions.

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