request for admission When did you stop beating your wife? (And other foxy tactics in Creditor Requests For Admissions)

[YoRocky]

"When did you stop beating your wife?" 

If the defendant answers it with even with a shade of remorseful guilt, then POOF, Plaintiff has magically conjured two facts into evidence without even an investigation. ONE, that you beat your wife. And TWO that you stopped beating her. 

This is the classic legal trick question to get facts assumed into evidence. They didnt have to introduce a shred of physical or testimonial evidence about the beatings. just YOU admitting or denying the action (stopping) makes the beating an assumed fact that then goes into evidence. That is crazy foxy (and straight-up disgusting)

Beating wives?? How does this apply to answering creditor requests for Admissions: 

Lets take a look at a relevant example from a Request for Admission from Creditor to Debtor

1. You admit that you applied for a credit card account with Big Bad Bank

2. You admit that you received agreement for account with Big Bad Bank.

3. You admit that you agreed to terms and conditions on account

And on and on in goes. Do you see what they are doing? How they are CRAFTY SMART FOXES?

 

Lets pull out our grammer education. Lets find the verbs and nouns and take some notes. 

What are the actions (verbs) and what are the things (nouns).

1. You admit that you applied for a credit card account with Big Bad Bank.

('applied' is the verb, 'credit card account' is the thing. we ignore Big Bad Bank)

2. You admit that you received agreement for account with Big Bad Bank.

('received' is the verb, 'account agreement' is the thing. we ignore Big Bad Bank)

3. You admit that you agreed to terms and conditions on account

('agreed' is the verb, 'terms and conditions' is the thing)

So we have actions 'applied', 'received', 'agreed'

And we have things 'credit card application', 'account agreement' , 'terms and conditions'

 

Now, lets recall that at trial are facts. But these facts must be introduced and proven, etc. 

Facts can be events like actions "you applied, 'you received', 'you agreed' (the verbs in our grammer dissection)

Or actual things in reality like 'credit card account', 'account agreement', 'terms and conditions'  (the nouns in our grammer dissection)

 

Now do you see what they did??? Okay fine I will tell you their secret:

They are phrasing the request for admission question to focus on a fact you will want to admit/deny the facts (the action words) 

By doing so you are, by inference, assuming THINGS POOF into existence and more importantly into the record.

To put another way, they just created these out of thin air, just by their question, WITHOUT SHOWING IT TO YOU FOR EXAMINATION

1- The credit card application

2- The agreement

3- The terms and condition

 

Oh no you dont, you rascals! We see what you are doing! You cant just make imaginary things as evidence into the record and then hope we will admit to them! 
No, your honor. We wont take it. We wont allow it.

We answer as follows:

1. You admit that you applied for a credit card account with Big Bad Bank

OBJECTION, assumes facts not in evidence. Plaintiff alleges Defendant applied for a credit card account with Big Bad Bank but has not attached any evidence of a signed agreement for examination. Without evidence to examine, Defendant is without information to answer this question so this request is DENIED.

2. You admit that you received agreement for account with Big Bad Bank.

OBJECTION, assumes facts not in evidence. Plaintiff alleges Defendant received agreement for account with Big Bad Bank but has not attached any agreement for examination. Without evidence to examine, Defendant is without information to answer this question so this request is DENIED.

3. You admit that you agreed to terms and conditions on account

OBJECTION, assumes facts not in evidence. Plaintiff alleges Defendant agreed to terms and condition for account with Big Bad Bank but has not attached any terms and conditions for examination. Without evidence to examine, Defendant is without information to answer this question so this request is DENIED.

 

Can anyone on here comment on the strategy to respond here? The rest of the RFA follows the same pattern of leading questions (verbs + fact they want to slip in) to assume facts into evidence.

How can i make this even stronger in my objections or denials?

 

[BV80]

2 hours ago, YoRocky said:

1. You admit that you applied for a credit card account with Big Bad Bank

OBJECTION, assumes facts not in evidence. Plaintiff alleges Defendant applied for a credit card account with Big Bad Bank but has not attached any evidence of a signed agreement for examination. Without evidence to examine, Defendant is without information to answer this question so this request is DENIED.

The problem with the response is that credit card accounts don’t have signed agreements.  Use of the card constitutes a contract and agreement with the terms and conditions.  By showing admissible credit card statements that show your name, address, and payments, the plaintiff can establish the existence of a contract.

The plaintiff would, however, need to provide (or should provide) a copy of the terms and conditions that were in effect at the time of default.

Have you studied CCP 98?

[YoRocky]

15 hours ago, BV80 said:

The problem with the response is that credit card accounts don’t have signed agreements.  Use of the card constitutes a contract and agreement with the terms and conditions.  By showing admissible credit card statements that show your name, address, and payments, the plaintiff can establish the existence of a contract.

The plaintiff would, however, need to provide (or should provide) a copy of the terms and conditions that were in effect at the time of default.

Have you studied CCP 98?

All credit card accounts start with an agreement that is presented written and signed (with a wet signature though electornic forms of that are the trend today). Regardless, the initial agreement is via a contract that is signed. The answer to that particular question demands the contract because an admission or denial can not be made reasonably without examining the alleged initial application.

What i think you are referring to is the theory of 'account stated', that doesnt rely on the original signed contract but that establishes a 'new agreement' every time the billing statement is received and not disputed. The entire theory is built on statements sent, received, and not disputed by the consumer. Thus there is implied concession due to none objection. 

However its impossible for the Original creditor to prove the statements were received. They can claim statements are mailed, but not actually received by the accused natural person and read and understood.

Next, as to the agreements and the practice of changing them at will (in effect changing the interest rate calculations, fees, new rules, etc) and stuffing them in mailings as 'riders' and in effect saying 'accept it or pay up what you owe'  is an UNCONSCIONABLE  and USUARIOS tactic of the Bank.    

So, although the legal standard of 'account stated'  for a summary judgement are stacked against the defendant, one must still be defiant to DEMAND AND BURDEN the plaintiff prove their claims and not try to use sneaky admissions to fabricate evidence without actually show it.

ITS WAR 

 

 

[BV80]

11 hours ago, YoRocky said:

All credit card accounts start with an agreement that is presented written and signed (with a wet signature though electornic forms of that are the trend today). Regardless, the initial agreement is via a contract that is signed. The answer to that particular question demands the contract because an admission or denial can not be made reasonably without examining the alleged initial application.

What i think you are referring to is the theory of 'account stated', that doesnt rely on the original signed contract but that establishes a 'new agreement' every time the billing statement is received and not disputed. The entire theory is built on statements sent, received, and not disputed by the consumer. Thus there is implied concession due to none objection. 

No, all contracts do not start with a written and signed agreement.  Read your state’s definition of an “implied contract”.

California Civil Code § 1621

An implied contract is one, the existence and terms of which are manifested by conduct.

In this instance, I am not referring to an account stated when I reference credit card statements   Credit card statements showing charges and/or payments show use of the card.  That is the “conduct” that indicates acceptance of terms and conditions.  

Here is CA case law.

A party may accept a contract by conduct, as well as by words, and parties to a written contract may modify the contract through an additional writing.  Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 1101.

Cardmember agreements contain a statement that use of the card constitutes a consumer’s acceptance of the terms and conditions.  The plaintiff must provide an admissible copy of the terms and conditions.

Is this the Discover card account to which you referred in another thread?   If so, I believe Discover’s agreements are governed by Delaware law.  Delaware has a 3-year SOL, and CA allows for shorter SOLs from other states.

11 hours ago, YoRocky said:

However its impossible for the Original creditor to prove the statements were received. They can claim it was mailed, but not actually received by the accused natural person and read and understood.

Your definition of “prove” and the courts’ definition of that term may differ.  Again, this can depend upon admissible evidence provided by the plaintiff such as credit card statements showing your name, correct address at the time of use of the card, and charges and payments.

This appears to be one of the ridiculous arguments found on the internet.  Businesses rely on billing in order to be paid.  The defense would work if the statements showed an incorrect address.  However, if the address is correct and the statements how charges and payments, the court would assume that it would be quite strange for a consumer to continue to use a credit card but never question why he or she was not receiving billing statements.

If there is an affidavit that includes a statement to the effect that you were sent statements, you either have to show that the affidavit s inadmissible or you must prove you never received statements.

Have you studied CCP 98? 

[YoRocky]

4 hours ago, BV80 said:

 

This appears to be one of the ridiculous arguments found on the internet.  Businesses rely on billing in order to be paid.  The defense would work if the statements showed an incorrect address.  However, if the address is correct and the statements how charges and payments, the court would assume that it would be quite strange for a consumer to continue to use a credit card but never question why he or she was not receiving billing statements.

 

Mailing something at an address is not evidence that the natural person defendant received the statement. Thats why personal service exists and substituted service has a higher barrier than just 'drop the papers at the door' (you have to at least show diligence to try 3 times, and then leave it with someone etc)

Actually it's a 'ridiculous argument' found on the internet stated by appellate judges in their review of cases. Not just one but numerous cases. While its true 'account stated' has a very low  standard of evidence (esp since consumer credit cases like this are based on preponderance of evidence), its still worth laying out the work and arguments for the appeals process to the review. If the trial court judges are rubber stamping these cases (as they are), then the last hope for justice is on the appeal. 

As I mentioned above, i understand the argument of implied consent of statements if no dispute was made. I also conceded that the 'agreement' revolves around the statements...under the account stated theory. 

The clues for at least having a chance to beat this bullshit account stated theory is in the appellate review of cases. My strategy is to work as if the case will be appealed and lay out the ground work for the record to demonstrate the evidence has not been properly presented, authenticated, etc, whatever it takes to have at least a chance to appeal and win there.

 

 

 

[BV80]

1 minute ago, YoRocky said:

Mailing something at an address is not evidence that the natural person defendant received the statement. Thats why personal service exists and substituted service has a higher barrier than just 'drop the papers at the door' (you have to at least show diligence to try 3 times, and then leave it with someone etc)

The personal service to which you refer is based upon due process in the  judicial system.  It does not apply to bills sent from businesses.

Why do you not answer my question about CCP 98?

[YoRocky]

22 minutes ago, BV80 said:

The personal service to which you refer is based upon due process in the  judicial system.  It does not apply to bills sent from businesses.

Why do you not answer my question about CCP 98?

Im using personal service to illustrate the fact that just mailing something does not mean the person received it and thus personal services was 'invented'.

 Im of course not arguing that personal service should be the standard by which credit card statements are to be delivered and thus proof of receipt. You argued something like along the lines of 'defendant is/was at present address, last statement was sent to that address, therefore defendant received statement'. That is once again, 'assuming facts not in evidence'.

It is entirely reasonable to say 'i receive mail at that address and i have no memory of receiving a statement. that opposing counsel claims it mailed to me. please SHOW ME, so i can examine it.'. Which is why the denial is both honest and effective. 

In addition it will be high nigh impossible to find the employee to testify and cross examine who ACTUALLY sent THAT statement. The most they will get is a generic 'in the ordinary course of business we mail out statements'. But nothing specific to the defendant statement. 

This is exactly where this arguement arises from that HAS been used successfully but unfortunately, like everything else with these kangaroo courts is up to the whims of the judges

 

Again, the standard to actually understand (and thus conceed through non objection) is to RECEIVE a thing like a statement, not just have proof it was mailed

There is absolutely no way to prove natural person received the statement. which is exactly why the creditor is attempting to get defendant to admit it in the RFA. I say, no, hell no, prove it and good luck.

re CCP 98, i did review it at your first mention and found this post 

 which updates with info on a supreme court decision. I actually listened to the court webcast of the arguements last night and that was also educational. http://jcc.granicus.com/player/clip/856?view_id=12. (its starts at 1:01)

Do you have a comment or defensive strategy to share in regards to it?

[BV80]

15 minutes ago, YoRocky said:

There is absolutely no way to prove natural person received the statement. which is exactly why the creditor is attempting to get defendant to admit it in the RFA.

No, they do not have to prove you received it as long as it is correctly addressed.  CA Rule of Evidence 641:

A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.

Do you have a rule, statute, or case law that says otherwise?

If you are in Limited Civil Court, CCP 98 has helped more defendants win against JDBs than anything else.

Read the CA Supreme Court ruling in Meza v. Portfolio Recovery because you can subpoena the JDB affiant.  Due to the 150 mile requirement in CCP 98, most JDBs dismiss because they don’t want to send their affiant to CA.  Here’s an excerpt:

Section 98(a) requires an affiant to provide an address within 150 miles of the place of trial at which lawful service can be made of a form of process that directs the affiant to attend trial. Although a subpoena normally must be personally served, in some circumstances witnesses can be summoned to appear at trial without service of process upon the witness personally. Thus, section 98(a) does not categorically require that all affiants be personally present at a location within 150 miles of the place of trial for a reasonable period within the 20 days prior to trial. Such presence is required only if it is necessary for lawful service at that address of process designed to secure the affiant's attendance at trial.

https://scholar.google.com/scholar_case?case=10912338867560789346&q=“CCP+98”&hl=en&as_sdt=4,104

 

[YoRocky]

26 minutes ago, BV80 said:

No, they do not have to prove you received it as long as it is correctly addressed.  CA Rule of Evidence 641:

A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.

Do you have a rule, statute, or case law that says otherwise?

CCP 98 has helped more defendants win against JDBs than anything else.

Read the CA Supreme Court ruling in Meza v. Portfolio Recovery because you can subpoena the JDB affiant.  Due to the 150 mile requirement in CCP 98, most JDBs dismiss because they don’t want to send their affiant to CA.  Here’s an excerpt:

Section 98(a) requires an affiant to provide an address within 150 miles of the place of trial at which lawful service can be made of a form of process that directs the affiant to attend trial. Although a subpoena normally must be personally served, in some circumstances witnesses can be summoned to appear at trial without service of process upon the witness personally. Thus, section 98(a) does not categorically require that all affiants be personally present at a location within 150 miles of the place of trial for a reasonable period within the 20 days prior to trial. Such presence is required only if it is necessary for lawful service at that address of process designed to secure the affiant's attendance at trial.

https://scholar.google.com/scholar_case?case=10912338867560789346&q=“CCP+98”&hl=en&as_sdt=4,104

 

You are highlighting the conclusion of the rule, we have to focus on its conditions.

Okay, lets review CA Rule of Evidence 641:

"641. A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."

Again, lets use our tools of grammer. We will look for nouns, verbs and see who has the responsibility for what.

1- 'a letter...' -  (n) refers to a SPECIFIC thing,. The so called 'damning' biling statement for specific account XX8899 by which the entire theory of account stated hinges on
2- '..correctly addressed' - (n) . that specific biling address in #1, must be correctly addressed. We will examine that if its available to examine
3- ' ...and properly mailed' - (v). here we see that specific item in #1, must be properly mail.
4. '..is...' -  this is our 'equals' sign. if we can prove #1, and #2, then we get to win the prize of 'presumed to have been received' which is what Creditor needs

So Plaintiff MUST demonstrate three things here. They have the burden for this presumptive fact of evidence.

- a specific letter (the prima facie  billing statement)
- a correct address (again pima facie on the billing statement)
- 'properly mailed' - oh oh. HOW ON EARTH WILL THEY PROVE THAT

They cant. They would have to prove THAT specific billing statement was properly mailed. 

The best they can get is that some so-and-so is witness , via an affidavit, knows that Big Bad Bank sends out statements. Statements in the generic. Not the SPECIFIC one in question.

I hope my grammer breakdown has not complicated the simplicity of the argument.

Basically, they say they have THE smoking gun 'the final statement to prove account stated'. But they can not prove it was received. And they cant prove it was received because according to the rules of evidence 641, they must have proof of 'a letter' (ie THAT specific billing statement) was properly mailed. This is impossible for them to prove and EASY to cross examine the witness to find out how they saw statement with account XX3199, was properly mailed.

I hope that makes sense. Again unfortunately we are dealing with trial courts that historically have shown they do not understand the law let alone able to understand an argument that breaks down the code with the tools of grammer to exract its meaning and application to the SPECIFIC facts of this case.

 

[BV80]

10 minutes ago, YoRocky said:

You are highlighting the conclusion of the rule, we have to focus on its conditions.

Okay, lets review CA Rule of Evidence 641:

"641. A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."

Again, lets use our tools of grammer. We will look for nouns, verbs and see who has the responsibility for what.

1- 'a letter...' -  (n) refers to a SPECIFIC thing,. The so called 'damning' biling statement for specific account XX8899 by which the entire theory of account stated hinges on
2- '..correctly addressed' - (n) . that specific biling address in #1, must be correctly addressed. We will examine that if its available to examine
3- ' ...and properly mailed' - (v). here we see that specific item in #1, must be properly mail.
4. '..is...' -  this is our 'equals' sign. if we can prove #1, and #2, then we get to win the prize of 'presumed to have been received' which is what Creditor needs

So Plaintiff MUST demonstrate three things here. They have the burden for this presumptive fact of evidence.

- a specific letter (the prima facie  billing statement)
- a correct address (again pima facie on the billing statement)
- 'properly mailed' - oh oh. HOW ON EARTH WILL THEY PROVE THAT

They cant. They would have to prove THAT specific billing statement was properly mailed. 

The best they can get is that some so-and-so is witness , via an affidavit, knows that Big Bad Bank sends out statements. Statements in the generic. Not the SPECIFIC one in question.

I hope my grammer breakdown has not complicated the simplicity of the argument.

Basically, they say they have THE smoking gun 'the final statement to prove account stated'. But they can not prove it was received. And they cant prove it was received because according to the rules of evidence 641, they must have proof of 'a letter' (ie THAT specific billing statement) was properly mailed. This is impossible for them to prove and EASY to cross examine the witness to find out how they saw statement with account XX3199, was properly mailed.

I hope that makes sense. Again unfortunately we are dealing with trial courts that historically have shown they do not understand the law let alone able to understand an argument that breaks down the code with the tools of grammer to exract its meaning and application to the SPECIFIC facts of this case.

 

Where is the rule, statute, or case law that supports your argument?   Proof that that a billing statement was mailed can be based upon the regular practice of a business.   Businesses make a practice of sending bills because they want to get paid.  There’s no law that requires businesses to send bills by certified mail or video proof of mailing.  If all that was required is for a defendant to deny receiving statements, no business would ever be paid.

Not too many judges are going to be fooled by “I don’t recall receiving statements” when the statements show payments.

Research mailbox rule presumption.  

If you spend your time arguing proof of mailing, rather than CCP 98 (if you are in limited civil), you’re wasting your time.

[YoRocky]

Like I said, there are CONDITIONS to win a presumption of Rule 641.

Those conditions are

(1) 'correctly addressed'
(2) 'properly mailed'

It must apply to the SPECIFIC statement in question, not 'statements' generically.

Plaintiff has the burden to meet those conditions not defendant.

Defendant has no memory or knowledge of information contained therein.

Plaintiff can not prove this. Plaintiff looses.

Quote

If you spend your time arguing proof of mailing, rather than CCP 98 (if you are in limited civil), you’re wasting your time.

The way I see it, civil litigation is a PAPER WAR. The strategy is to OVER BURDEN the Plaintiff with demands for records to prove their case.

In essense you are telling them 'to win this case, present this evidence'. YOU are setting the legal standard by the arguments you present.

 

Im in this to WIN by DEMANDING EVIDENCE at every turn. And discovery is just the tool to do so.

This CCP 98 idea is further down the road. But looks like its going to come down to the mail man on their end LOL

 

[YoRocky]

Quote

Not too many judges are going to be fooled by “I don’t recall receiving statements” when the statements show payments.

I would like to address this argument because its a good one - the classic 'follow the money'.

Again, the burden is on the Plaintiff to present the evidence of payment.

But the billing statement do not 'show payments'. It is a record of a transaction. Its just an accounting entry.

Just a number with likely a 'name' field that does not have a complete account number.

To ACTUALLY demonstrate payment, Plaintiff has the burden to show the 'cashed checks' from consumer. 

Plaintiff has not demonstrate a financial chain to the defendant. 

There are so much missing and required evidence now that I think more about this.

Please continue to shred my strategies! I am finding weaknesses and potential new lines which hopefully others who

find this thread will find help with.

ITS WAR.

 

 

To demonstrate PAYMENT

[BV80]

1 minute ago, YoRocky said:

To ACTUALLY demonstrate payment, Plaintiff has the burden to show the 'cashed checks' from consumer. 

Where are you getting this?  If they offer a billing statement that shows a payment made by you, are you going to lie?

Have you bothered to read any CA court rulings?  Find a ruling that says they have to provide “cashed checks”.  

I would suggest you research posts by calawyer and RyanEX.  

[YoRocky]

Quote

Where are you getting this?  If they offer a billing statement that shows a payment made by you, are you going to lie?

What a loaded question lol. As I was recently reading from the transcript of a real trial

 'That question should be taken out and shot'

Plaintiff has to show payments. The statements show nothing but a number and probably masked number. Plaintiff must prove all the connections.

Its rather easy to defeat these counters. just ask for specific evidence in the logical chains that they must prove.

The billing statement is no smoking gun. Its a actually a very weak strawman. The accounted legal theory has elevated it to some sacred cow that is infallible 'on its face'. Prima facie BS

Everything else is.a just a distraction. 

[texasrocker]

1 hour ago, YoRocky said:

I would like to address this argument because its a good one - the classic 'follow the money'.

Again, the burden is on the Plaintiff to present the evidence of payment.

But the billing statement do not 'show payments'. It is a record of a transaction. Its just an accounting entry.

Just a number with likely a 'name' field that does not have a complete account number.

To ACTUALLY demonstrate payment, Plaintiff has the burden to show the 'cashed checks' from consumer. 

Plaintiff has not demonstrate a financial chain to the defendant. 

There are so much missing and required evidence now that I think more about this.

Please continue to shred my strategies! I am finding weaknesses and potential new lines which hopefully others who

find this thread will find help with.

 

Ignore this troll.  He is blatantly misleading any poor unknowing soul who is searching for information and happens across this malarkey.  He doesn't even know how to properly word the adage that he used for the title.  It is, "Have you stopped beating your wife?" not, "When did you stop beating your wife?"

If someone used any of this ideology as a defense they would promptly lose their case and be laughing stock of the court. 

[YoRocky]

1 hour ago, texasrocker said:

Ignore this troll.  He is blatantly misleading any poor unknowing soul who is searching for information and happens across this malarkey.  He doesn't even know how to properly word the adage that he used for the title.  It is, "Have you stopped beating your wife?" not, "When did you stop beating your wife?"

If someone used any of this ideology as a defense they would promptly lose their case and be laughing stock of the court. 

Ad hominem does nothing to advance a relevant argument to the topic at hand if you had any. Anyone is free to ignore you as well. 

Pessimistic, naysayers are just a distraction.

 

[YoRocky]

I suggest the naysayers read this case, which backs up the strategy. This is one of MANY that successfully use 'show proof you sent me a mailing that i received'

https://www.leagle.com/decision/1993149420calapp4th147411418

Relevant part here:

Quote

2. Evidence of actual notice

(3) The only evidence that any appellant had actually received notice of the June 22, 1992, hearing was a "proof of service" declaration executed by an employee of counsel for Officer Bonzer. The declarant, pursuant to section 1013a, subdivision (3),⁴ did not attest to actually mailing the notices or to having personal knowledge they were mailed. (See Tobin v. Oris (1992) 3 Cal.App.4th 814, 825-826 [4 Cal.Rptr.2d 736].) Rather, the declarant stated she was familiar "with the firm's practice of collection and processing correspondence for mailing" and "[u]nder that practice it would be deposited with U.S. Postal service ... in the ordinary course of business." (Italics added.)

And read on for the appellate judges reviewing the record and concluding in fair of the defendant that they never recieved the mailing.

This is one of many kinds of cases I have found. Real appellate cases in favor of the strategy. Not random 'internet advice'.

 

 

[Clydesmom]

52 minutes ago, YoRocky said:

I suggest the naysayers read this case,

This is one of many kinds of cases I have found. Real appellate cases in favor of the strategy. Not random 'internet advice'.

Funny you should say that you suggest that others read what you post instead of internet advice.  Isn't what you are doing internet advice?  Talk about contradictions.

 

To anyone who comes across this in their search for help:  take the OP's advice at your own risk.  It is an internet troll who will most likely slow walk you straight to a judgment and wage garnishment and/or bank levy.  You have been warned.

[YoRocky]

14 minutes ago, Clydesmom said:

Funny you should say that you suggest that others read what you post instead of internet advice.  Isn't what you are doing internet advice?  Talk about contradictions.

 

To anyone who comes across this in their search for help:  take the OP's advice at your own risk.  It is an internet troll who will most likely slow walk you straight to a judgment and wage garnishment and/or bank levy.  You have been warned.

Whats up with the personal accusations? Is this the basic culture of toxic accusations of this forum? I would expect better especially 'senior' members.

If you do not agree, simply disagree. But with an intelligent rebuttal that advances the topic. We are all adults and can debate ideas without having insecurities of how what so and so say may lead so many to their doom and despair. That is insulting the reader that they cant make their own opinions about what they read on internet forums.

I have been polite and respectful and helpful in my insights. But i wont tolerate accusations. I do not believe its in the spirit of the website and its mission. I have conducted myself as a gentleman and I would ask the same of anyone.

 

 

[BackFromTheDebt]

I have followed and posted on this and other similar forums for over a decade.  
 

Every once in a while someone comes into this forum with some crazy idea that will supposedly be an automatic winner.  
 

Some of the strategies worked, and even those were limited.  Most did not.  Also, the strategies proposed by people who were new posters were pretty much universally a dud  

Sometimes these new strategies get a bit close to a yellow fringe level of lunacy  

The proof of the validity of any strategy is its effectiveness. 
 

I wiped out over $100k in debts using strategies that were sometimes a bit on the leading edge.  Sadly, the enemy learned from their mistakes and many of these strategies are less effective now. 
 

What I do know — the folks in California have had great success using unique California laws.  They have won, time and time again. 
 

The OP is highly offended that people are calling his strategy nuts.  It isn’t as nuts as yellow fringe, but seems nutty enough that it could completely piss off a judge and spectacularly backfire.  
 

Nobody is arguing with the OP anymore. 
The OP is whining that others are warning that his strategy is at best extremely risky.  
 

I wiped out over $100k using strategies that ranged from conventional to a bit nutty.  Most of the strategies worked.  I also learned the hard way which strategies don’t work.  
 

If you are considering a strategy, first check to see if anyone got it to work.  Some of the nutty strategies that did work originated in Wisconsin where court records are open and on line, so I could see proof that they worked.  Some of the strategies that failed were also in Wisconsin, so I could check the court cases as well.  

[YoRocky]

My initial post demonstrates how to handle a RFA using a very old and well known objection known as 'facts assumed as evidence'. The response is both truthful and effective. 

Then it got sidetracked into the question of the burden of proof of statements received by defendant is on the plaintiff not defendant. 

Again I posted actual cases to demonstrate my point. Others just respond with attacks. Then the echo chamber of peanut gallery jurists  chimes in. Sigh

Quote

If you are considering a strategy, first check to see if anyone got it to work. 

The strategy and arguments are from appellant cases. Its literally appellant judges telling the parties what should have been argued. 

You need to look at the appeal cases because judges throw these bones ALL THE TIME.

 

[nobk4me]

What the OP is missing is the benefit of litigation, that the rules apply equally to both parties.  You have the same rights as the plaintiff, including the right to file RFAs on them.  Which you should do, the more of them the merrier, consistent with any limits in the rules of practice.  Bury them in burdensome paperwork.

Word the RFAs in your favor, like this:

Admit the defendant does not owe the debt.

Admit the amount of the debt is not $xxxx (whatever they say it is).

Admit the amount of the debt is $0.

Admit the defendant did not open an account with the OC.

You get the picture.  Use what they sent you, including their definitions, but turn the RFAs around in your favor.

You are in CA, right?  Include this one:

Admit the plaintiff violated the Rosenthal Act.

The great thing about RFAs is unless they are denied within the time limit in the rules, they are deemed admitted.  So if the plaintiff fails to deny them, you can file a motion for summary judgment in your favor because there are no material facts in dispute.

You still need to answer their discovery too.

Yes, being a pro se defendant is a lot of work, but you have an advantage over your attorney opponent.  You can devote all your spare time to your one case. They can't.

 

[Clydesmom]

4 hours ago, nobk4me said:

You have the same rights as the plaintiff, including the right to file RFAs on them.  Which you should do, the more of them the merrier, consistent with any limits in the rules of practice.  Bury them in burdensome paperwork.

In theory great advice.  In reality:  not always possible.  Many small claims courts are trial by ambush and do not allow discovery:  GA is one one of them.  Others severely limit the number of items you can ask for.  Texas requires you get permission from the court to do discovery and then you have to submit what you want to the court who either approves or disapproves what you are asking for. If it is too burdensome you won't get it.  Courts have gotten wise to that "bury them in paperwork" practice from both sides.

The good news is many JDBs still want the easy low hanging fruit and will back down when challenged to prove their case.  The drama and theatrics the OP is proposing are not necessary.  Hard work and research definitely are.  Unfortunately many pro-se defendants are ill equipped or unwilling to put in that kind of effort.

[YoRocky]

37 minutes ago, Clydesmom said:

In theory great advice.  In reality:  not always possible.  Many small claims courts are trial by ambush and do not allow discovery:  GA is one one of them.  Others severely limit the number of items you can ask for.  Texas requires you get permission from the court to do discovery and then you have to submit what you want to the court who either approves or disapproves what you are asking for. If it is too burdensome you won't get it.  Courts have gotten wise to that "bury them in paperwork" practice from both sides.

The good news is many JDBs still want the easy low hanging fruit and will back down when challenged to prove their case.  The drama and theatrics the OP is proposing are not necessary.  Hard work and research definitely are.  Unfortunately many pro-se defendants are ill equipped or unwilling to put in that kind of effort.

 

This comment suggests  you are not familiar with how discovery works, the rules of evidence, and civil litigation in general. There is no 'drama and theatrics' when asserting your rights to discovery. At this point im sorry but we will need to agree to disagree and leave it at that.

You have a right to due process... which is exactly what the discovery allows.

You have a right to use all the tools and techniques to discovery. Which means demanding evidence and burdening your opponent EXACTLY as @nobk4mesuggests

As Pro Se you are held to the same standards of education as 'an attorney'. If you dont get an education, you loose. 

 Ive done much more homework on this for my specific case and cases like it. The conclusions are sound.

I feel very secure in my approach and i just find it laughable the responses i get from the peanut gallery. ITs like a defeatist attitude around here...and from what ive read 90% of the so called 'advice' by 'experienced members' is utter rubbish.

I think one of the first replies I got on here was the same 'give up, settle early, its a loosing battle'. 
It suggests the credit industry has employed agents on here... (this is common on other social media like on reddit where the 'credit advice' subs are full of people advocating selling your last belongings and taking on 5 jobs so you can meet the min payments for the rest of your life. Its a joke!

 

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Courts have gotten wise to that "bury them in paperwork" practice from both sides.

LOOOL. Utter nonsense. Each side has a right to use RFA, Interrogatories, production of document etc, up to the limits. In california its 35. More than enough.

the 'paperwork' is the only thing up for inspection in these cases. Thats why the billing statement is held up as some sort of sacred cow. Its. not. so. attack it. 

'paperwork' IS the battle field and  currency of civil litigation!! 

 

[Clydesmom]

3 hours ago, YoRocky said:

 

This comment suggests  you are not familiar with how discovery works, the rules of evidence, and civil litigation in general. There is no 'drama and theatrics' when asserting your rights to discovery. At this point im sorry but we will need to agree to disagree and leave it at that.

You have a right to due process... which is exactly what the discovery allows.

You have a right to use all the tools and techniques to discovery. Which means demanding evidence and burdening your opponent EXACTLY as @nobk4mesuggests

As Pro Se you are held to the same standards of education as 'an attorney'. If you dont get an education, you loose. 

 Ive done much more homework on this for my specific case and cases like it. The conclusions are sound.

I feel very secure in my approach and i just find it laughable the responses i get from the peanut gallery. ITs like a defeatist attitude around here...and from what ive read 90% of the so called 'advice' by 'experienced members' is utter rubbish.

I think one of the first replies I got on here was the same 'give up, settle early, its a loosing battle'. 
It suggests the credit industry has employed agents on here... (this is common on other social media like on reddit where the 'credit advice' subs are full of people advocating selling your last belongings and taking on 5 jobs so you can meet the min payments for the rest of your life. Its a joke!

 

LOOOL. Utter nonsense. Each side has a right to use RFA, Interrogatories, production of document etc, up to the limits. In california its 35. More than enough.

the 'paperwork' is the only thing up for inspection in these cases. Thats why the billing statement is held up as some sort of sacred cow. Its. not. so. attack it. 

'paperwork' IS the battle field and  currency of civil litigation!! 

 

LMAO.  We are supposed to take a guy seriously who doesn't know the difference between the words loose and lose?  

You aren't even worth the time to type this.

I repeat my warning to those that read your posts:  Follow his advice at your own risk.  You have been warned.  If you need further support read his thread on how he wasn't smart enough to pick up his watch after going through security at the court house and wants to sue a year later.