Author Topic: Demand for Discovery, Admissions and Production of Documents  (Read 8266 times)

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Flyingifr

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Demand for Discovery, Admissions and Production of Documents
« on: November 04, 2005 04:52:27 AM »
A key part of the Flyingifr Method is to make the other side work for everything they try to get from you - so you have to fight them tooth and nail over every facet of the case. Lawyers thrive on this strategy, and as long as lawyers don't work for free, the more work you make their lawyer do, the higher the legal bills they have to pay. Some would fear that if you lose they can pass these legal bills on to you. To do so would be contrary to law, because it would violate a fundamental right to defend oneself. As long as your arguments are not frivolous, you can mount them.

An important part of a civil suit is Discovery. This is conducted after the preliminary pleadings (the summons, the answer and the reply) and before trial. Discovery is not conducted in a Court before a Judge, but issues pertaining to the Discovery can be submitted to the Judge for a decision (more about this later). Discovery is correspondance between you and the other side wherein you each (yes, they have Discovery rights also) "feel out" the other side's case. The purpose of Discovery is to reduce the issues for the Court to decide. Whatever is agreed to in Discovery (admitted or Stipulated) will be regarded as a settled matter at Trial.

In putting together your Discovery demand, keep in mind that you are not restricted to one Demand. Answers to questions in Discovery Demand #1 can create questions that are proper in Discoverty Demand #2. The Discovery Demand has three basic parts: Questions, Admissions and a Demand for the Production of Records.

Hypothetical Situation Let's say XYZ JDB LLC is suing Flyingifr for a ten year old credit card debt. That credit card debt is now in the hands of the thrird JDB.

QUESTIONS

In the Questions section, you must put yourself into the Court room and mentally have the other side on the Stand. What questions would you ask? What proof of the answer woiuld you demand to back up the answer? In the hypothetical case in point, here are some of the questions I would be asking in my Discovery:

First, let's see if the Plaintiff really exists and has the right to conduct business in my state and use its Courts

1. What is the true and correct name of the Plaintiff? In what state was the Plaintiff Organized? When? Provide a certified copy of the Organizational documents as well as certified copies of any amendments thereto.

2. Has the Corporate Charter lapsed or been revoked by the Domiocile State? Provide a Certificate of Good Standing issued by the appropriate Department of the Domicile State.

3. Has the Plaintiff been admitted  to conduct business in Arizona? Are all licenses and bonds in place, if required? Provide a copy of same as well as a Certificate of Good Standing from Arizona.

Now let's get to the nitty gritty of the case

4. What is the name of the company that allegedly (everything is alleged. Admit NOTHING) granted the alleged credit that is the subject of this matter? Provide a copy of the application for credit that the Original creditor relied on, a copy of the promissory note or other document indicating Defendant agrered to be bound by any credit agreement, and any amendments tjhereto, as well as a complete posting history of the account, showing all charges, debits, credits, returns, offsets and charge-backs from inception of the account to present date.

5. What is the name of the company that Plaintiff purchased the alleged obligation of Defendant from, and when was it purchased? Provide a copy of the bill of sale, Bulk Transfer Affidavit and cancelled check evidencing payment. Notice that the amount paid for the debt is irrelevant. Don't raise that issue, it will get tossed out of Court immediately

6. What is the name of any intermediary owner or owners of the alleged debt? Provide a complete chain of ownership of the debt, as well as copies of the Bulk sate Affidavits pertaining to each transfer of the alleged debt.

7. What was he status of the alleged obligation of the Defendant when it was allegedly purchased by Plaintiff?

8. if FDCPA voilations are alleged Provide the names, residence addresses, business addresses, titles and telephone numbers of all persons in Plaintiff's employ who regularly enganged in Collection activities with regards to the alleged account of Defendant.

9.  If FCRA violations are alleged Provide the names, residence addresses, business addresses, titles and telephone numbers of all persons in Plaintiff's employ who regularly enganged in reporting to or recieving disputes from Credit Reporting Agencies with regards to the alleged account of Defendant.

Note that numbers 8 and 9 will be much longer, going into demanding (in the case of FDCPA violations) copies of all collection notes, letters sent, internal memoranda, meeting notes, etc pertaining to the collection of the alleged debt, and FDCPA training classes conducted in the past two years, attendance rosters - looking for the absence of the people named in 8 and 9 - as well as class curriculum and curriculum vitae of the instructors.

Demand for Production of Documents and Records

10. Provide all notes, memoranda, e-mails, computer records in written (non-magnetoc) form and any and all other documents not protected by Attorney-Client provilege regarding to the Defendant's alleged account, including but not limited to contracts, charge slips and credit memos.

11. Provide any an all documents that Plaintiff intends to or may produce at trial as evidence.

12. Provide the name, address, title and telephone number of all witnesses Plaintiff may or intends to call at Trial, as well as a synopsis of their testimony and their capacity as custodian of the matters to which they may testify.

and so forth.... since each case is different, you will have to adapt this to the case you have. What is here is general in nature.

ADMISSIONS:

13. Admit that Plaintiff does not have custody or legible copies of any documents with Defendant's signature on it.

14. Admnit that Plaintiff's employees regularly engage in conduct and collection tactics that violate FDCPA...

Expect them to deny every Admission.

Also expect them to object to every question and demand for a document as either "vague" or "proprietary" or for some other reason. When they do this, you submit the matter to the judge, in a Motion, to order them to answer or produce, setting forth why (a) the matter at isssue is a fundamental part of the Plaintiff's burden of proof, (b) is a key factor in Defendant's defense or Counterclaim, or (c) is neither vague nor privileged and is needed for Defendant to  narrow the issues, or any combination of these. The Judge will rule, and you go from there.

Here's a simplified roadmap of what you want in Discovery:

You need to analyze every aspect of what their burden of proof is and make them prove it.

Here's a roadmap:

1.Since the plaintiff is not a Natural Person, prove the Plaintiff actually exists.
2. Prove the Plaintiff STILL exists (Corporations that don't file all required reports to their State can be dissolved by the State - that's the reason for the Certificate of Good Standing). A Corporation that no longer exists has no standing to sue anyone.
3. Prove you have the privilege of coming into my State and using its courts to collect. Same burden as #1 and #2.
4. Prove there is a debt from ORIGINAL records - not hearsay statements like "we were given a computer print out...."
5. Prove YOUR liability for the alleged debt.
6. Prove the amount of the debt and that all charges are allowed by law or contract.
7. Show that any person who will testify has actual first-hand knowledge of what they will testify about.
8. Provide a copy of any and all documents you may admit into evidence.
9. Profvide the name and address of any person who was the custodian of those documents from the time they originated to now in order to establish their authenticity and chain of custody
10. Provide a sysnopsis of what any person you anticipate to testify as toi what they will testify to.
11. Prove that you come into Court with "Clean Hands"
12. In the case of FDCPA violations, prove that you had reasonable procedures in place to prevent the violation, what training you conducted to make sure your people complied with law, the subject of the training and the qualifications of the trainer, how the violation escaped those reasonable procedures and what disciplinary action has been taken against the violator.

And that's just a START. What they provide (if they provide anything) may open up new avenues for a Secod Discovery Demand.



Just send them on a long trip, make their attorney work and run up their legall fees.
« Last Edit: November 04, 2005 02:51:25 PM by Flyingifr »
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

jeff53072

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Re: Demand for Discovery, Admissions and Production of Documents
« Reply #1 on: January 21, 2008 06:29:44 AM »
I found this information to be helpful.  However,  Does someone have a complete sample of a letter demanding discovery from the plaintiff.  I got some ideas from this website.  Please note that I modified what I found on this website to my situation.  Of course I have not been served and I am waiting for it to happen. 

I am new to this board.  So I am not sure where to post this.

local court rules and state code on civil procedure does not define how much time they have to answer.  So I can file motion for dismissal.

I am emboiled in a fight with law firm and they refused my Certified letter demanding
validation of debt. 

I expect them to file suit.  Case involves fraudulent debt.

I pretty much have the answer to the complaint written.  Basically it involves denying or admitted to the allegations.  None of which I will admit due to it being fraud.

My lawyer handling another case involving FDPCA violations has been a little help.
However, He wants money lots of it.

I am new to this site.  If anyone can provide a sample of demand for discovery and
a motion for jury trial or any samples that I can read. It would give me ideas on how to proceed.   Yes, Jury trial.  This may scare them off.
_______________________________________________________________________
STATE OF _____      CIRCUIT COURT       ANY COUNTY

Plaintiff,


                        Case No.
                        Case Classification Code
v.


Defendant,

.
ANSWER TO COMPLAINT



The plaintiff, complaining of the defendant, alleges and says as follows:


1. The plaintiff is a limited Liability Corporation, with principal office and place of business in _______________.   

Defendant has no knowledge of the factual basis of this allegation, and therefore denies same and demands strict proof thereof.

2. The Defendant is resident of ______________. Admitted.

3. The defendant allegedly entered into a promissory note or other written credit agreement in favor of ______, pursuant to which Sears allegedly extended credit to the defendant. (Attached hereto is a true and accurate copy of that credit agreement). Denied.

4. Thereafter, this account was sold  to and acquired by ____ , the plaintiff herein, and the plaintiff is now the holder in due course of the account.

 Defendant has no knowledge of the factual basis of this allegation, and therefore denies same and demands strict proof thereof.


5. The defendant is in default under the terms of that note or credit agreement, in that said defendant has failed to make payments due thereunder. Denied

6. Pursuant to the terms and provisions of the note or credit agreement, the defendant is lawfully indebted to the plaintiff in the principal sum of $ ____________ together with interest thereon at the contract rate of 23.99% per annum. Said sum has been outstanding since May 1, 2006. Denied

7. The written credit agreement between the parties contains provisions for the payment of attorneys fees in the event of default. The balance outstanding is currently  $___________, comprised of the principal, together with the interest to date of $___.__.. Pursuant to the provisions of Any state ____.__, the plaintiff hereby gives notice to the defendant that it intends to enforce those provisions of the credit agreement calling for the payment of attorneys fees. The plaintiff hereby further notifies the defendant that said defendant may avoid the imposition of attorneys fees by paying the current outstanding balance of $4,000.00 to the undersigned at the address shown below within five (5) days after the defendant has been served with a copy of this complaint and summons. If the defendant pays said sum to the undersigned within five (5) days after service, the plaintiff will neither seek to enforce those provisions, nor pursue further legal remedies against said defendant. Denied


WHEREFORE, the plaintiff prays the Court as follows:
1. That plaintiff have and recover from the defendant the principal sum of $__________.
2. That plaintiff further have and recover from said defendant interest on said sum at the contract rate of _______% per annum from MM-DD-YY   to the date of judgment, and at the rate of ____% per annum thereafter until paid.

3. That the plaintiff further have and recover from said defendant its reasonable attorneys fees in the sum of $________ which sum is fifteen (15%) percent of $__________.00, the current balance outstanding, pursuant to Wisconsin State Statute ___.___
.
4. That the plaintiff further recover from said defendant all costs of this action.

5. For such other and further relief as the Court may deem just and proper.




G:\TRAVELDRIVE\ANSWERTOCOMPLAINT.WPS









debtonator

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Re: Demand for Discovery, Admissions and Production of Documents
« Reply #2 on: January 21, 2008 06:33:28 PM »
Jeff relax a bit.... Flying gave you the insight to make your own discovery demand.

Today is your lucky day. I have a convenient FDCPA Sample Discovery as a attached pdf. This is exactly what you are looking for.

Good luck and give them !! :sharked:

Cheers
You have to learn the rules of the game. And then you have to play better than anyone else. ~ Albert Einstein

Never interrupt your enemy when he is making a mistake.

If you want to be a winner; surround yourself with winners.

Mischievous Smurfy

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Re: Demand for Discovery, Admissions and Production of Documents
« Reply #3 on: January 21, 2008 11:02:00 PM »
jeff ... now is the time to prepare yourself ...  unfortunately we rarely get the opportunity to educate someone until the have been served and are on a short timeline....

find your rules of civil procedure and learn them ...
and read read read here...

they "refused" your letter demanding validation?  how did they do that ... refuse to sign for it or what?
« Last Edit: January 21, 2008 11:03:34 PM by smurfy »
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why are we requesting validation instead of disputing???  Why Why Why

jeff53072

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Re: Demand for Discovery, Admissions and Production of Documents
« Reply #4 on: January 23, 2008 03:21:18 AM »
I sent them a validation of debt letter on Dec 15, 2007 (regular mail.  in response to their received 1st notice received on Dec 10, 2007.  after receiving a second notice.  I faxed a validation of debt on January 7,  2008.   On January 12, 2008.  I sent a certified letter to them.  Thus far they have not signed for it.

This account was sold by Resurgent capital.  In July the balance was 4700.00. I have numerous credit reports showing the balance.

The new collection agency claims that the balance is 7073.00.  They were busted for adding attorney fees after a judgement was obtained by Minn attorney General.


They were trying to collect when I disputed.  Is this illegal?

I am going to run a credit bureau check to see if they put it on my report.  After I disputed it.  I believe that is illegal.

Realistically,  I am concerned whether these dirtbags creating documents to show a liability.  I was carefully not to sign these debt validation letters.  I let my computer do it.

Nowdays with scanners and copy machines.  They do not have to have orginals to file a lawsuit. They can create a signed credit card agreement or other signed documents.

As for court rules.  I have them.  I have on paper chapter 801-807 dealing with all facets of civil procedure. 

I know how to answer a complaint.  I will throw a curve ball at them by paying the jury fee.

I need a Affidavit of mailing----can't find one.

I watch the website to see if they have filed against me every day.

 I had four accounts with fraud.  Charges after I paid them off in 2000 and 2001.

One CA is going to be sued for reaging on my credit report.  These dimwits sent me a self serving account statement with the date of last activity 04.02/01

Once I brought their documents to there attention they have not bugged me in about 5 months.

Waiting on NACA attorney to file suit.  The reaging happened because I filed a dispute with experian.  My lawyer says the damage is done. Even if they change it.



I do have a question.  Experian and transunion show a removal date of 12/09 and
and 02/09.  They have no date of last activity. 

The state I am in the statute of Limitations is 6 yrs.  Based on the above is it sol barred. 

This makes sense.  dirtbag mobster showed a removal date of 03/08 prior to them reaging.  I disputed the reaging per attorney's instructions.  Its off . The sol expired 04/07 according to my attorney.


I have numerous credit reports with these dates.  Unifund even verified the info in 3/07

Thanks for the demand for discovery.






Mischievous Smurfy

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Re: Demand for Discovery, Admissions and Production of Documents
« Reply #5 on: January 23, 2008 05:56:56 PM »
Quote
My lawyer says the damage is done. Even if they change it. ...

and what planet is he from??.... get a new lawyer ... it appears this one is for the other side...

this does appear to be re-aging to me ...

first ... if the date of last activity is 04/02/01 ... that would likely be the stat. charge off date ... or the last payment .... not the DOFD.   The account could have been in default long before that ...

second ... even IF we assume 04/02/01 is the DOFD ... that means the legal reporting period ends ... 10/02/08 ... not 12/09 ... and again ... thats assuming last activity is the DOFD ...  it could be ... but it's not likely ...
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why are we requesting validation instead of disputing???  Why Why Why