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Hi all, 

I really wish I had come across this site sooner than my deadline (tomorrow) to respond to the interrogatories, production, and admissions because I would have been able to sift through more responses here.

Would anyone be willing to review what I have answered (many from this site, thanks!) and help with some answers that I have left out? I lost some steam and ideas to respond with around #8. 

I've "beat" the rent a lawyer from this office once in small claims and had a case dismissed but this one is large enough to be in Civil Court and I don't want to shoot myself in the foot so to speak. 

STATE OF VERMONT

 

SUPERIOR COURT ) CIVIL DIVISION

WASHINGTON UNIT ) DOCKET NO.  Wncv

)

Name )

Defendant, )

)

v. )

)

PORTFOLIO RECOVERY ASSOCIATES, LLC )

Plaintiff



 

DEFENDANTS RESPONSE TO FIRST INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUEST FOR ADMISSIONS

 

Defendant, (name), pro per, pursuant to V.R.C. P 33 and 34 responds to first request within thirty (30) business days of service.

 

INTERROGATORIES

 

  1. Identify the person(s) who prepared and or assisted in any way defendant's answers to these interrogatories.

Answer: Myself, (named)

 

2. State your full name, current address, and work address.

Answer: Stated name, current address, OBJECTION: The information sought is improper as it goes toward post judgment remedies.

 

3. For each response to Plaintiff's request for Admission that is other than an unqualified admission, identify each fact to support defendant's denial or other response, identify each person who witness or otherwise has knowledge of such facts, and identify each document evidencing, constituting or otherwise relating to such facts.

Answer: OBJECTION: Defendant's responses will be adequately detailed in the answer to the plaintiff's request for Admission. Defendant is not required to refute the plaintiff's claims; the plaintiff is required to prove them.

 

4. Identify all persons with whom defendant has communicated with relating to the subject matter of this litigation and the subject matter of any such communication.

Answer: OBJECTION: relevancy to the litigation.

5. Identify any individual that the defendant is aware that has knowledge of the facts and circumstances of this case.

Answer: OBJECTION: relevancy to litigation.

 

6. If you have lawsuits pending in which you are either a plaintiff or defendant, kindly state the following for each, name of lawyers, parties, nature of claim, date of incident, status of case where (name of court) suit is pending; any lawsuits against you personally, include all details; any payments to other creditors by defendant, details of dates and amounts, whether under other court orders and whether you have ever filed bankruptcy.

Answer: OBJECTION: relevancy. Defendant is not aware of any lawsuits currently pending and has not filed bankruptcy.

 

7. Kindly list each and every address wherein you reside from Jan 1 2006 to the present.

Answer: Defendant provides the following addresses:

(listed)

 

8. Please list each and every person who you authorized to use with is the subject matter of this litigation, state whether you gave that person possession of your credit card Synchrony Bank Walmart credit card account ending in 0522, list that date that you revoked that persons authorization to use the credit card account.

Answer:

 

9. If you claim that you filed a written dispute with Plaintiff, about any items appearing on your monthly billing statements, please provide the date that you sent the written dispute; the address that you sent your written dispute to; a description of you dispute; the name of the person or entity that you sent your dispute to; whether you received a response to the written dispute; and what the outcome of your dispute was.

Answer: OBJECTION: the lack of any objection by a defendant does not prove the plaintiff's case of Account Stated.

 

10. If there are any payments which you allege you have not been credited for, please list each payment by date, amount, and payee.

Answer: At this time defendant is not aware of any uncredited payments.

 

11. If you claim that you are not responsible for the amount claimed in the Plaintiff’s complaint, please identify the person or entity that you feel should be responsible for paying the amounts charged to your credit card account.

Answer: DENIED to the extent that payments to the original creditor, the ACCOUNT, are immaterial to the extent that it has no bearing on the instant action, the purpose of which is to establish that Portfolio Recovery now owns said account and is supposedly entitled to collect, a fact which is yet unproven.
 

 

13. Please state all the facts supporting each defense that you are not responsible for the Synchrony Bank Walmart credit card account ending in 0522 balance upon which the plaintiffs claim is based.

Answer: DENIED to the extent that payments to the original creditor, the ACCOUNT, are immaterial to the extent that it has no bearing on the instant action, the purpose of which is to establish that Portfolio Recovery now owns said account and is supposedly entitled to collect, a fact which is yet unproven.
 

 

14. Please identify all documents,, correspondences business entries, or other writing that you will be relying on for you defense of this claim.

Answer: DENIED, as stated, above, to the extent that payments to the original creditor, the ACCOUNT, are immaterial to the extent that it has no bearing on the instant action, the purpose of which is to establish that Portfolio Recovery now owns said account and is supposedly entitled to collect, a fact which is yet unproven

 

15. If you will be relying upon any verbal communication for your defense of this case, please provide concise statement of the substance of each such verbal communication and state the name and address of the person making such statement. In your answer indicate what that person(s) connection is to the Plaintiff and/or to defendant.

Answer: Defendant does not have a record of verbal communication at this time.

 

16. If you dispute any of the charges to Synchrony Bank Walmart credit card account ending in 0522, which is the subject matter of this lawsuit, please identify each charge, the amount of the charge, and explain why this is not owed to the Plaintiff for these charges.

Answer: DENIED to the extent that payments to the original creditor, the ACCOUNT, are immaterial to the extent that it has no bearing on the instant action, the purpose of which is to establish that Portfolio Recovery now owns said account and is supposedly entitled to collect, a fact which is yet unproven

 

17. If you dispute the interest rate to Synchrony Bank Walmart credit card account ending in 0522, which is the subject matter of this lawsuit, please identify the disputed interest rate, the first date that the defendant disputed the interest rate, why the defendant believes the interest rate should be different, and what the defendant feels the correct balance due is with calculated interest.

18. If the defendant disputes the over limit charges please explain, identify and itemize all of the over the limit charges that are to be disputed for the Synchrony Bank Walmart Credit card account ending in 0522 ending in 2183.

 

19. If anyone investigated this matter for you, state their names, address, and state whether such investigation was reduced to writing. If said investigator obtained any signed statement or recorded statement, identify the person who gave the statement and give a brief synopsis of the statement.

 

20. Do you receive any exempt income?

 

21. Are you employed? If yes please provide the average weekly or bi weekly salary.

 

22. Do you own real estate? If yes please provide the form of ownership (Tenants by the Entirety, Trust etc)

 

23. If the defendant owns real estate in any form please provide the amount of equity that the defendant has in the real estate.

 

24. Please identify each individual that you intend to call as a witness in this action and please provide a brief description of the nature of their testimony.


 

25. Please identify any and all expert witness the defense intends to call and please provide a brief description of the nature of their anticipated testimony.

 

REQUEST FOR PRODUCTION

 

  1. Identify and produce copies of documents that show use of and payments made on Synchrony Bank Walmart credit card account ending in 0522.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available.

 

2. Identify and produce copies of documents that provide payments made on Synchrony Bank Walmart credit card account ending in 0522.

  1. If in the form of a check please produce copies of all checks used to make payments on the Synchrony Bank Walmart credit card account ending in 0522.

  2. If in the form of a money order please produce copies of all money orders used to make payments on the Synchrony Bank Walmart credit card account ending in 0522. If payments were made electronically over the phone and authorized EFT and /or ACH payments please produce copies of Bank Statements evidencing payments made on the Synchrony Bank Walmart credit card account ending in 0522.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

    1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

    2. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

3. Identify and produce any documents that relate in any way to any dispute as to charges, account balance, over the limit fees, late payment fees, and interest rates on purchase and/or cash advances pertaining to the Synchrony Bank Walmart credit card account ending in 0522.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

4. Identify and produce any documents relative to Request 3.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

5. Identify and produce all documents that are admissible to show that defendant is not liable to the Plaintiff for the amount of the damages the Plaintiff claims for Synchrony Bank Walmart credit card account ending in 0522.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

6. Identify and produce each and every document related to defendants source of exempt income if any.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

7. Identify and produce documents that relate in any way to any witnesses Defense intends to call to testify at trial.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

8. Identify and produce all documents that Defense intends to use at trial.

 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available

 

9. Identify and produce a copy of a Deed to any real property that the Defense owns.


 

  1. Defendant has no such documents in nirs possession at this time. Defendant reserves the right to amend nirs responses per the rules of civil procedure if such documents become available


 

REQUEST FOR ADMISSIONS

 

  1. That the defendant obtained a credit card from Synchrony Bank walmart credit card account ending in 0522.

 

NO. 1: DENIED to the extent that no application was attached hereto for evaluation.


2. That defendant has not disputed having Synchrony Bank Walmart credit card account ending in 0522.


NO. 2: DENIED to the extent that no admissible evidence establishing use of the unproven account was provided for evaluation.

 

3. That defendant currently resides at 182 VT.


NO. 3: DENIED.  The address provided in the request is not the defendant's address. Defendant’s address has been correctly provided in the Interrogatory.
 

4. That defendant previously resided at VT.


NO. 4: ADMITTED. Defendant previously resided at VT

 

5. That defendant received the notice from the original creditor Synchrony Bank that Synchrony Bank Walmart credit card account ending in 0522 was sold to Portfolio Recovery Associates LLC on 6/22/17. The notice is dated Jun 30 2017


NO. 5: DENIED.

 

6. That the defendant used and made payments on a Synchrony Bank Walmart credit card account ending in 0522.


NO. 6: Admitted in part to the extent that no liability for any such payment has been established, therefore no payment is required. DENIED in part to the extent that Plaintiff has produced no admissible evidence establishing ownership or liability.
 

7. Each month received monthly billing statements credit card account for defendants Synchrony Bank Walmart credit card account ending 0522 at the address of VT 05602 and (address).


NO. 7: OBJECTION No admissible evidence was attached hereto which would allow defendant to make an informed response.

 

8. The monthly billing statements show a monthly credit transaction on the Synchrony Bank Walmart credit card account ending in 0522.

 

NO. 8: OBJECTION No admissible evidence was attached hereto which would allow defendant to make an informed response.
 

9. The monthly billing statements also shows the accumulated balance due on the Synchrony Bank Walmart credit card account ending in 0522.

NO. 9: OBJECTION No admissible evidence was attached hereto which would allow defendant to make an informed response.

 

10. The monthly billing statement shows the interest charged on the Synchrony Bank Walmart credit card account ending in 0522.

 

NO. 10: OBJECTION No admissible evidence was attached hereto which would allow defendant to make an informed response.

 

11. That defendant never sent a written dispute to the Plaintiff concerning any items appearing on the monthly billing statements for the account Synchrony bank walmart credit card account ending in 0522.

 

12. Defendant did not protest any items appearing on the monthly billing statements for the Synchrony bank walmart credit card account ending in 0522 because defendant (is accused) to be responsible for the use of the account and the amount due and owing.

 

13. That there are no payments made by you or anyone else on your behalf for which the Plaintiff did not credit the Synchrony Bank Walmart credit card account ending in 0522.

14. You were making payments, but at some point you stopped making your monthly payments on the Synchrony Bank Walmart credit card account ending in 0522.

 

15. Your last payment on your Synchrony Bank Walmart credit card account ending in 0522 was on January 12, 2016 in the amount of $158

 

16. You never made another payment after January 12, 2016

 

17. That you owe the amount claimed in the Plaintiff's complaint, $6098.78 plus costs.

 

18. That there are no disputed material facts requiring a trial.

 

19. That you admitted being the card holder of the Synchrony Bank Walmart credit card account ending in 0522 in the answer to the complaint.

 

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2 hours ago, Dromper said:

20. Do you receive any exempt income?

21. Are you employed? If yes please provide the average weekly or bi weekly salary.

22. Do you own real estate? If yes please provide the form of ownership (Tenants by the Entirety, Trust etc)

23. If the defendant owns real estate in any form please provide the amount of equity that the defendant has in the real estate.

ALL of these should be answered:  OBJECTION:  this information is immaterial to the complaint as filed and not relevant to determining if the Defendant incurred a debt and is obligated to pay to the Defendant.

2 hours ago, Dromper said:

9. Identify and produce a copy of a Deed to any real property that the Defense owns.

OBJECTION:  this information is immaterial to the complaint as filed and in no way establishes that the Defendant has any obligation to the Plaintiff in the matter before the court.

2 hours ago, Dromper said:

Admitted in part to the extent that no liability for any such payment has been established, therefore no payment is required. DENIED in part to the extent that Plaintiff has produced no admissible evidence establishing ownership or liability.

You need to re-think this answer and any like it.  Essentially you are admitting to having the Synchrony account and it would be a cake walk from there under the business records laws for PRA to prove you owe them.  You need to make them prove you opened and used a Synchrony account AND that they now own the rights to it.

2 hours ago, Robby8900 said:

I believe that there is an arbitration clause in  the cardholder agreement.

This is your best option if VT law will still allow you to try it.  Some states require you raise this as an affirmative defense when you answer the suit others require you not answer and file a MTC arbitration instead.  You will need to find out what your courts require if you want to attempt this option.

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Found this case. If you participate in in litigation for a period of time engaging in discovery etc.. you waive right. Personally i would file motion to dismiss and compel plaintiff t arbitrate its claims in accordance with the written agreement. https://constructlawph.files.wordpress.com/2018/02/adams_v_barr.pdf

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If ya didn't assert an ''Affirmative Defense'' of lack of subject matter jurisdiction due to an underlying arb clause, you may file an amended answer asserting it. Just a thought.

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2 hours ago, Robby8900 said:

Can you post your answer to the complaint?

"The Plaintiff is not the original credit card company or lend and the Defendant does not believe the Plaintiff has the right to sue for this purported debt." Defendant asks that the court dismiss this case as the defendant cites failure of consideration by the plaintiff".

I realize now though that the Complaint is the following 8 complaints:

1. Plaintif  is a corporation with its principal place of business at 120 corporate blvd norfolk va

2. The defendants reside in VT

3. On 8/18/13 Defedant opend a credit acct w/ original creditor synchrony bank assigned acct #

4. Defendant used the creidt acct for purchases, cash advances or/and balance transfers. The last payment toward this credit accct to syncrhony bank post on 1/12/19 as refelect on the attached "last payment" statement. The balanc due and owing at that time was $5354.85

5. The defendant defaulted on this acct by failing to make timely payment and prusant to poicy set forth in the federal register syncrhony bank charged off the credt acct on 8/17/19 for a balance of $6245.36. NO interest is accreud to the balance since charge off

6. The defendant defaulted on 2/12/816 the balance at the time of charge off was $6254.36. The difference between the charge of balance and the last payment statement balance is $899.51 which figure represents he interest fees accruded on the account following default.

7. on 6/22/17 plaintiff purchased this debt together with the right to collect same

8. According to the plaintiffs books and records defendant is in default and indebted to the plaintiff in the amount of $6098.78

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Thanks! I have previously filed a motion to continue as I was away during the scheduled Status Conference, that got rescheduled for July 11 and then was subsequently canceled by the court. Do I post date the Interagatorries etc to cover my tail while I figure out what VT Civil Court requires for arbitration?

ALL of these should be answered:  OBJECTION:  this information is immaterial to the complaint as filed and not relevant to determining if the Defendant incurred a debt and is obligated to pay to the Defendant.

OBJECTION:  this information is immaterial to the complaint as filed and in no way establishes that the Defendant has any obligation to the Plaintiff in the matter before the court.

You need to re-think this answer and any like it.  Essentially you are admitting to having the Synchrony account and it would be a cake walk from there under the business records laws for PRA to prove you owe them.  You need to make them prove you opened and used a Synchrony account AND that they now own the rights to it.

This is your best option if VT law will still allow you to try it.  Some states require you raise this as an affirmative defense when you answer the suit others require you not answer and file a MTC arbitration instead.  You will need to find out what your courts require if you want to attempt this option.

 

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31 minutes ago, Dromper said:

"The Plaintiff is not the original credit card company or lend and the Defendant does not believe the Plaintiff has the right to sue for this purported debt." Defendant asks that the court dismiss this case as the defendant cites failure of consideration by the plaintiff".

I realize now though that the Complaint is the following 8 complaints:

1. Plaintif  is a corporation with its principal place of business at 120 corporate blvd norfolk va

2. The defendants reside in VT

3. On 8/18/13 Defedant opend a credit acct w/ original creditor synchrony bank assigned acct #

4. Defendant used the creidt acct for purchases, cash advances or/and balance transfers. The last payment toward this credit accct to syncrhony bank post on 1/12/19 as refelect on the attached "last payment" statement. The balanc due and owing at that time was $5354.85

5. The defendant defaulted on this acct by failing to make timely payment and prusant to poicy set forth in the federal register syncrhony bank charged off the credt acct on 8/17/19 for a balance of $6245.36. NO interest is accreud to the balance since charge off

6. The defendant defaulted on 2/12/816 the balance at the time of charge off was $6254.36. The difference between the charge of balance and the last payment statement balance is $899.51 which figure represents he interest fees accruded on the account following default.

7. on 6/22/17 plaintiff purchased this debt together with the right to collect same

8. According to the plaintiffs books and records defendant is in default and indebted to the plaintiff in the amount of $6098.78

Personally, i would refrain from participating in discovery, and file a amended answer, with a general denial of the plaintiff's claims, and state as a affirmative defense: court lacks subject matter jurisdiction to render judgment on the merits due to an underlying arb clause, and personally i would also file a motion to dismiss complaint pursuant 12b(1) and compel plaintiff to arbitrate its claims. However, this is your choice as you are the one dealing with this matter.  

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12 hours ago, Clydesmom said:

ALL of these should be answered:  OBJECTION:  this information is immaterial to the complaint as filed and not relevant to determining if the Defendant incurred a debt and is obligated to pay to the Defendant.

OBJECTION:  this information is immaterial to the complaint as filed and in no way establishes that the Defendant has any obligation to the Plaintiff in the matter before the court.

You need to re-think this answer and any like it.  Essentially you are admitting to having the Synchrony account and it would be a cake walk from there under the business records laws for PRA to prove you owe them.  You need to make them prove you opened and used a Synchrony account AND that they now own the rights to it.

This is your best option if VT law will still allow you to try it.  Some states require you raise this as an affirmative defense when you answer the suit others require you not answer and file a MTC arbitration instead.  You will need to find out what your courts require if you want to attempt this option.

I'm still trying to find out whether I need to raise an affirmative defense or file an MTC arbitration. Also, it states I need to respond to the first interrogatories, requests, and admissions withing 30 days of service but WHAT happens if I don't?

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If you don't respond most answers are deemed admitted and the court compels you to answer the others.

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1 minute ago, Clydesmom said:

If you don't respond most answers are deemed admitted and the court compels you to answer the others.

So it sounds like it would be prudent to respond to the questions with denial/objections, file an amended answer compelling arbitration.

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9 minutes ago, Dromper said:

So it sounds like it would be prudent to respond to the questions with denial/objections, file an amended answer compelling arbitration.

You may not need an amended answer.  Again, you need to find out what YOUR court in  YOUR state requires.   @Robby8900 is giving answers based on his limited experience in his court in Ohio years ago and it is high risk to assume he is right.  

I am advising you to find out what your court requires.  If you needed to invoke arbitration in your answer then yes, you need an amended one. If you didn't then you file a MTC arbitration only and the answers to discovery completely change to denial on most of it due to lack of subject matter jurisdiction having motioned for arbitration.  Under NO circumstances should you just not answer them under the theory you are MTC arbitration and do not have to.  If you are going to skip arbitration and defend it then you need to answer discovery completely but in a way that does not set you up to lose.

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1 hour ago, Robby8900 said:

Personally, i would refrain from participating in discovery, and file a amended answer

Which could be REALLY bad advice and completely wrong since the case is in VT for the OP and not OH were you were.  Actually refraining from discovery is bad advice in any district not answering gets the questions admitted and that means admitting you own the account and owe the debt.

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I'm definitely leaning towards responding to the Plaintiff's request w/denials/objections and then filing what I need to subsequently.

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18 minutes ago, Clydesmom said:

You may not need an amended answer.  Again, you need to find out what YOUR court in  YOUR state requires.   @Robby8900 is giving answers based on his limited experience in his court in Ohio years ago and it is high risk to assume he is right.  

I am advising you to find out what your court requires.  If you needed to invoke arbitration in your answer then yes, you need an amended one. If you didn't then you file a MTC arbitration only and the answers to discovery completely change to denial on most of it due to lack of subject matter jurisdiction having motioned for arbitration.  Under NO circumstances should you just not answer them under the theory you are MTC arbitration and do not have to.  If you are going to skip arbitration and defend it then you need to answer discovery completely but in a way that does not set you up to lose.

I agree however I don't have time to find out what, where, or how court requires this process and I'm not finding it through the VT Judiciary site at the moment so I think it's reasonable for me to deny the Plaintiff's discovery and then if i need to file an amended answer or a MTC arbitration I can do so after. Any holes in this plan?

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Formulating the answers to the last 2:

 

18. That there are no disputed material facts requiring a trial.

 

19. That you admitted being the card holder of the Synchrony Bank Walmart credit card account ending in 0522 in the answer to the complaint.

 

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2 hours ago, Clydesmom said:

Which could be REALLY bad advice and completely wrong since the case is in VT for the OP and not OH were you were.  Actually refraining from discovery is bad advice in any district not answering gets the questions admitted and that means admitting you own the account and owe the debt.

The case i posted earlier was a VT Supreme court ruling. It speaks of a waiver of arbitration if over a period of time, a defendant participates in litigation including discovery, or other pleading documents.

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2 hours ago, Dromper said:

I agree however I don't have time to find out what, where, or how court requires this process and I'm not finding it through the VT Judiciary site at the moment so I think it's reasonable for me to deny the Plaintiff's discovery and then if i need to file an amended answer or a MTC arbitration I can do so after. Any holes in this plan?

This is reasonable.  FYI:  if you are going to defend yourself you have to make the time.

 

47 minutes ago, Robby8900 said:

The case i posted earlier was a VT Supreme court ruling.

From this century?  The last case you thought was relevant was over 200 years old and was not relevant at all.

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1 minute ago, Clydesmom said:

This is reasonable.  FYI:  if you are going to defend yourself you have to make the time.

Doing the things I can with the knowledge and resources I've got at a given moment. :) 

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22 minutes ago, Clydesmom said:

This is reasonable.  FYI:  if you are going to defend yourself you have to make the time.

 

From this century?  The last case you thought was relevant was over 200 years old and was not relevant at all.

Oh man your killing me, yeah this case is 2018.

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4 minutes ago, Robby8900 said:

Oh man your killing me, yeah this case is 2018.

I will review the case that you submitted but I think it's important that I respond to the initial request and then follow up after I find out about procedural process. I doubt that responding to the initial request is participating in discovery for a lengthy period of time. My greater concern is responding to this question:

 

 

18. That there are no disputed material facts requiring a trial.

DENIED to the extent that no admissible evidence establishing use of the unproven account was provided for evaluation.

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6 minutes ago, Dromper said:

I will review the case that you submitted but I think it's important that I respond to the initial request and then follow up after I find out about procedural process. I doubt that responding to the initial request is participating in discovery for a lengthy period of time. My greater concern is responding to this question:

 

 

 

18. That there are no disputed material facts requiring a trial.

DENIED to the extent that no admissible evidence establishing use of the unproven account was provided for evaluation.

You could throw in the arbitration on this #18 as:  As a material condition of owning the alleged account, Plaintiff assented to arbitrate all disputes and claims. Defendant, has located a copy of the ''Agreement'' governing the alleged account and attached same hereto as Exhibit ''A'' and defendant's affidavit as Exhibit ''B''. You must make sure there is a material issue of fact or they will MSJ

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