Author Topic: interrogatories and request for production of documents  (Read 4273 times)

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wanger

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interrogatories and request for production of documents
« on: February 18, 2009 10:58:50 PM »
Hi
 Just got one of these sent to me the other day.  I think I have answered everything to my satisfaction.  My question is this.  Initial letter from lawyer came 2/29/08 and now this came the other day.  I don't know why they waited a year...  I cant remember sending a DV letter, since  I cant find any letter on my PC.  aargh.  They did send a copy of the signed contract on the last page of the packet of papers.  Is that enough for validation ?  I was thinking that they needed all the paperwork from the OC, right ?   The other thing I was thinking was upon answering all the production of documents, shouldn't the collection agency have all those documents, I shouldn't have to produce them  or is that just the formal way of doing things to satisfy the legal jargon ?
Thanks for the help
 wanger

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Re: interrogatories and request for production of documents
« Reply #1 on: February 19, 2009 02:28:38 AM »
Initial letter from lawyer came 2/29/08 and now this came the other day.  I don't know why they waited a year...

I assume you are referring to the Interrogatories and Requests for Production? 

The answer:  Because they can and the court did not dismiss the case for lack of prosecution.

Quote
I cant remember sending a DV letter, since  I cant find any letter on my PC.  aargh.  They did send a copy of the signed contract on the last page of the packet of papers.  Is that enough for validation ? 

Yes, that could be enough to both "validate" the debt and prove their case in court if they can get the evidence admitted.

(The time delay is irrelevant unless State law says otherwise; there is no time limit for obtaining and forwarding validation in the FDCPA or other Federal law.)

Quote
I was thinking that they needed all the paperwork from the OC, right ? 

No, the FDCPA only calls for them to provide enough to support the amount owed and show who the debtor in question is and the signed contract can do both, especially when accompanied by legal documents.  Now, if they were trying to produce Discovery for YOU, they would need to provide more than the contract IF they were asked to provide it.

You have not stated what the other documents in the packet were; I assume the 'Rogs and document requests were among them.  You also mention the contract copy. Was there anything else which would have acted as verification per the FDCPA?  (Of course, such documents would also likely serve as document "production" in this case.)

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The other thing I was thinking was upon answering all the production of documents, shouldn't the collection agency have all those documents, I shouldn't have to produce them  or is that just the formal way of doing things to satisfy the legal jargon ?

You would think they should have it all, but the truth is CAs normally are forwarded just enough information to collect the debt; this is true, all too often, of even "bad" debt buyers (JDBs) debt files. 

If it was the CA filing in their own name as Plaintiff?   They may well NOT have the documentation in full in the file they pass to the attorney, hence one reason for Discovery.

Neither do they need to have it just to file:  All the Plaintiff (and their attorney) need is enough to show the court that there is sufficient grounds to file the lawsuit if such attached evidence is needed per the Rules of Civil Procedure.  Whether there is enough to actually prove the case and whether it's admissable in court is not required.
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wanger

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Re: interrogatories and request for production of documents
« Reply #2 on: February 19, 2009 02:51:15 PM »
You have not stated what the other documents in the packet were; I assume the 'Rogs and document requests were among them.  You also mention the contract copy. Was there anything else which would have acted as verification per the FDCPA?  (Of course, such documents would also likely serve as document "production" in this case.)
     yes the 'Rogs and documents were among them.  There was nothing else in the packet that had anything to do with verification.


If it was the CA filing in their own name as Plaintiff?   They may well NOT have the documentation in full in the file they pass to the attorney, hence one reason for Discovery.
     the title on the paperwork states   Palisades Collection, LLC plaintiff vs   myself, defendant

----so now in this, can I force them to provide all documentation or is thing now going to trial with just the contract and I am finding myself being for the amt ?

    one more question..  can they go after a spouse ? or just the person named on the suit ? and then what if the person named does not have employment. Can they then attack the working spouse ? 


 Thanks for the timely reply and information.. 
    wanger
« Last Edit: February 19, 2009 02:55:37 PM by wanger »

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Re: interrogatories and request for production of documents
« Reply #3 on: February 19, 2009 03:32:08 PM »
I hope you have not served the Discovery answers on the attorney for the Plaintiff...not yet anyway.  You might need to reconsider some of your answers:

Quote
If it was the CA filing in their own name as Plaintiff?   They may well NOT have the documentation in full in the file they pass to the attorney, hence one reason for Discovery.
     the title on the paperwork states   Palisades Collection, LLC plaintiff vs   myself, defendant

----so now in this, can I force them to provide all documentation or is thing now going to trial with just the contract and I am finding myself being for the amt ?

Palisades, eh?  They are often referred to as "Palishady" for good reason! Sneaky, tricky, will do almost anything to collect.  Not a problem, really. Why?  They likely don't have any more than that alleged contract you allegedly signed and are trying to get YOU to prove THEIR case.

Note the words "alleged" and "allegedly":  Because they are NOT the originator of the account but merely own it in succession, Palisades MUST be made to show in court that their title is clear all the way back to the OC.  Since Palisades tends to buy debt that has been "around the block" quite a few times, they may not be able to establish clear title.

If they can't to the satisfaction of the court?  They cannot prove they are the real party in interest and the suit must fail. (No evidence, no case.)

So guess what you have to do?  (Make them prove it, including serving YOUR Interrogatories and Requests for Production.)

And NOT do? (Provide them with any more documents/information than you absolutely have to.  It's likely they are asking for information more suited to a post-judgment debtor's exam (Information Subpoena) than anything that would bring up admissable evidence at trial.  So, unless you really cannot avoid giving them what they want--or you need to keep the evidence admissable since it can only help YOUR case--don't let them bully you into giving them the kitchen sinks.)

See this thread:  "Junk Debt Buyers and the Chain of Custody", http://www.debtorboards.com/index.php/topic,2365.0.html

And this one:  "Now the Fun Starts-They Have An Attorney", http://www.debtorboards.com/index.php/topic,7216.msg17.html#msg17

Also note who the Plaintiff is:  Palisades violates consumer law, it seems, for the fun of it.  You may well have counterclaims...including the fact they filed suit IF the debt is out-of-statute (SOL).

A question:

How long ago did this account allegedly default and such default was never cured/any new payments made (the likely trigger(s) that would start the SOL)?  Palisades also buys a lot of SOL debt, and this one might be one.

Quote
one more question..  can they go after a spouse ? or just the person named on the suit ? and then what if the person named does not have employment. Can they then attack the working spouse ? 

Unless you live in a community property state AND the debt was incurred by the marital community (after marriage), they cannot go after the innocent spouse.  Their only choice is to go after the party actually named in the suit IF they get a judgment.

A note here:  When a suit is filed in a community property state, normally BOTH spouses are named as parties to the suit.  This is done even if there is a chance the spouse has nothing to do with the dispute, such as a suit to recover pre-marital debt or deals with property held in only one spouse's name which was owned prior to the marriage.  In this case, it appears that only one spouse was named.  That indicates to me that community property issues are not going to be relevant. 

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itsmeagain

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Re: interrogatories and request for production of documents
« Reply #4 on: February 19, 2009 03:43:27 PM »
Hi
 Just got one of these sent to me the other day.  I think I have answered everything to my satisfaction.  My question is this.  Initial letter from lawyer came 2/29/08 and now this came the other day.  I don't know why they waited a year...  I cant remember sending a DV letter, since  I cant find any letter on my PC.  aargh.  They did send a copy of the signed contract on the last page of the packet of papers.  Is that enough for validation ?  I was thinking that they needed all the paperwork from the OC, right ?   The other thing I was thinking was upon answering all the production of documents, shouldn't the collection agency have all those documents, I shouldn't have to produce them  or is that just the formal way of doing things to satisfy the legal jargon ?
Thanks for the help
 wanger

Whoa! . . . what do you mean by "sent to me the other day"?  HOW was it sent?  Have you even been SERVED or is this just another attempt by a VERY sneaky JDB to get you to pony up information so they CAN sue?

Have you checked the court to be sure there is a suit?  Don't send anything until you can answer the above.

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Re: interrogatories and request for production of documents
« Reply #5 on: February 19, 2009 03:57:33 PM »
Whoa! . . . what do you mean by "sent to me the other day"?  HOW was it sent?  Have you even been SERVED or is this just another attempt by a VERY sneaky JDB to get you to pony up information so they CAN sue?

Have you checked the court to be sure there is a suit?  Don't send anything until you can answer the above.

Good catch, itsmeagain!  I was assuming he had been sued while he was waiting for a reply to an outstanding DV (computerized records do get "eliminated" quite easily accidentally and few have the skills, money or inclination to learn how to recover such files).

Knowing Palishady Palisades, it may well be they are not beyond stooping this low to get the target to pony up the docs they cannot otherwise get!

Another thought:  "Is that "signed contract" even the real thing?  Or, is it proof that their "skillz" in Microsoft Word (or maybe Photoshop?) are far more advanced than one might believe?" :P 

Or, another way to put this:  "Is the alleged "verification" as fake as it gets (something most of us would refer to as "perjury" if the document was notarized)?"

The latter may well be the case, especially since such items would normally be supported by an affidavit to try to establish their veracity.  Apparently, that "copy of the contract" lacks such documentation and would not if it were filed as a supporting document in a court case.
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wanger

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Re: interrogatories and request for production of documents
« Reply #6 on: February 19, 2009 05:29:58 PM »
Thanks for all the quick replies. 

  - Was served thru my attorney.  I went to them earlier cuz they sent a summons (I think) and I wanted to get the answers put down correctly.  (before I really got my research together from this board). So I think all was served correctly.

 So now after answering their 'rogs and production of docs, I can fire off one for them asking the same things ? or is there another way to get them or their local lawyer to prove "chain of custody" ?

  I cant remember for sure if they acutally sent a summons and we answered, but I dont really remember if they even sent a DV.  I think I just answered and then nothing happened and then I forgot bout the whole matter, half hoping to would just go away until the SOL cleared.

  When looking at a credit report, I dont have the credit card (which was for a clothing store) listed. it only lists Palisades and which card it is and that it was placed in collections and will fall off in 2011.  The origional acct was allegedly opened in 96, I cant remember or have any paperwork to state when last payment was attempted.

 I am located in South Dakota ( freaking cold here right now....aargh)

thanks

wanger

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Re: interrogatories and request for production of documents
« Reply #7 on: February 19, 2009 05:50:19 PM »
another thing I thought off..  on the Production of Docs questions, they are asking for all paperwork (statements, payments, etc) associated with debt.  Is it safe to answer them that they should be in possession of such documents ?  I have read thru some of the examples of answers here and I dont think I have admitted anything except of my name and addy, which they aleady have

Mischievous Smurfy

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Re: interrogatories and request for production of documents
« Reply #8 on: February 20, 2009 12:36:47 AM »
"After a thorough search Defendant is not in possession of any such documents.  Should such documents be discovered they will be immediately produced"

If you had any ... and produced them ... then you just made the case for them.
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why are we requesting validation instead of disputing???  Why Why Why

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Re: interrogatories and request for production of documents
« Reply #9 on: February 20, 2009 02:45:45 AM »
  - Was served thru my attorney. 

Whoa, Nellie!  You have retained counsel yet YOU are asking us what YOU should do??

Where is YOUR attorney in all of this?  Dealing with the 'Rogs and Admissions is HIS job.
So is getting Palisades to "prove it" should the case go to trial.


Quote
I cant remember for sure if they acutally sent a summons and we answered

Then why don't you ask the party who was allegedly served with the complaint, your attorney?

Quote
I think I just answered and then nothing happened and then I forgot bout the whole matter, half hoping to would just go away until the SOL cleared.

Did YOU file that answer pro-se?  I should think you did not since it appears that your attorney handles all such matters (service was directly on your counsel).

What in the heck is YOUR attorney doing to earn their fees??  Did the discovery get served on you directly or through counsel?  If you were served directly, the paperwork should have been forwarded to YOUR COUNSEL immediately and you should have followed whatever he told you to do about it.

Now, if he gave the papers back to you to fill out?  All you need to do is return them once you are done to HIM to serve them on opposing counsel.  Then you need to tell him to serve discovery on Palisades (if he has not done so already).

Maybe I spoke too soon...Now, this is not legal advice (and your attorney should know about this), but F.Y.I. :

Quote
The origional acct was allegedly opened in 96, I cant remember or have any paperwork to state when last payment was attempted.

This one may be SOL; depends on the CoA:

http://law.findlaw.com/state-laws/civil-statute-of-limitations/south-dakota/

Quote
Contracts   6 yrs. §§15-2-6, 13; Oral: 6 yrs. §15-2-13

Collection of Debt on Account   -

Note that "collection of debt on account" does not state a particular SOL in this chart, which is taken from a reliable source (FindLaw, a service of WestLaw).  The actual SD Codified Code, Chapter 15, Civil Procedure, Sec. 15-2-13(1) states the SOL for an action on contract:

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=15-2-13

Quote
15-2-13.   Contract obligation or liability--Statutory liability--Trespass--Personal property-- Injury to noncontract rights--Fraud--Setting aside corporate instrument.  Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within six years after the cause of action shall have accrued:

             (1)      An action upon a contract, obligation, or liability, express or implied, excepting those mentioned in §§ 15-2-6 to 15-2-8, inclusive, and subdivisions 15-2-15(3) and (4);

The cited subdivisions may all have nothing to do with the CoA in your case, which appears to be an action on a written contract; 15-2-15(4) deals with when the SOL begins for an open account (such as a bar tab :)  ).

Aha!

The conclusion is obvious even to a non-attorney such as myself:  This alleged debt is WAY out of SOL.  Not only does Palisades not have the right to demand relief through the courts due to the passage of time, you have major FDCPA violations to get THEM with.  Violations such as of FDCPA §807(5), the threat to take an action that cannot be taken, such as filing that lawsuit on a time-barred debt and FDCPA §807(8 ):

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(8 ) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to
communicate that a disputed debt is disputed.

Look again at the TL.  Palisades no doubt is doing just that (reporting false information).

And if it turns out that there is no lawsuit?  Those discovery demands would then get Palisades on this:

Quote
[FDCPA §807](9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.

And of course, this...[§807(10)]

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(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

In short, why is your attorney not filing a Motion to Dismiss and make the court tell Palisades "so sad, too bad"?  He sure has grounds for filing suit as your representative in Federal court for the FDCPA violations AND FCRA ones as well to make Palishady's life miserable.  :P
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Re: interrogatories and request for production of documents
« Reply #10 on: February 20, 2009 01:39:33 PM »
"After a thorough search Defendant is not in possession of any such documents.  Should such documents be discovered they will be immediately produced"

If you had any ... and produced them ... then you just made the case for them.

Let me guess - this was the document that their entire Burden of proof rests on......
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Mischievous Smurfy

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Re: interrogatories and request for production of documents
« Reply #11 on: February 21, 2009 01:24:33 AM »
Whoa, Nellie!  You have retained counsel yet YOU are asking us what YOU should do??

But But But Rottie .... an attorney couldn't tell you to um ... continue to forget that those oh so important documents fell behind the 700# file cabinet last year.
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why are we requesting validation instead of disputing???  Why Why Why

Pablo

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Re: interrogatories and request for production of documents
« Reply #12 on: February 25, 2009 07:32:14 AM »
The conclusion is obvious even to a non-attorney such as myself:  This alleged debt is WAY out of SOL.  Not only does Palisades not have the right to demand relief through the courts due to the passage of time, you have major FDCPA violations to get THEM with.
Well he said the contract started in 1996 but when did the debt occur?  2003?  2000?  1999?  Saying it is WAY out of Statute of Limitations without knowing when the debt occurred (we only know when the CC was started) is not fully correct.  We would have to know when the CC defaulted not when the CC started.
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Re: interrogatories and request for production of documents
« Reply #13 on: February 25, 2009 11:30:47 AM »
Pablo...you need to do more study before you post...

Well he said the contract started in 1996 but when did the debt occur?  2003?  2000?  1999?  Saying it is WAY out of Statute of Limitations without knowing when the debt occurred (we only know when the CC was started) is not fully correct.  We would have to know when the CC defaulted not when the CC started.

If you did, it would be clear that you would not be seeking ways to remove your foot from your mouth right about now... :P  See here:

When looking at a credit report, I dont have the credit card (which was for a clothing store) listed. it only lists Palisades and which card it is and that it was placed in collections and will fall off in 2011.  The origional acct was allegedly opened in 96, I cant remember or have any paperwork to state when last payment was attempted.

Note the above, Pablo: 

1.)  The OP's credit report (hardly conclusive evidence) has NO TL for the OC but only Palisades does.  It appears that Palisades sued in time, BUT...

2.)  JDBs typically "re-age" the accounts they get for just that reason (to try to fool the court into thinking the debt is newer--and still "fresh" enough so lawsuit is still "timely"--than it is). 

3.)  Since any TL for the OC is no longer there, it's a reasonable presumption that the reporting period for the OC (the clothing store) is past, probably long past and so is the triggering event under the contract for the SOL to start to 'run'.  That period does NOT require the debt be charged-off (written-off) nor need a debt be so in order for the JDB to be considered a "collection agency" for the purpose of determining the true reporting period nor whether suit is "timely".

In any case, it's still in Palisades' court to prove that the debt is "new" enough that lawsuit is still an option.  The length of time that has passed brings up some controversies:

a.)  The actual date of the event that triggered the "SOL" to run (the date certain) does exist even if it's not yet known.  Palisades CANNOT change that absent a reaffirmation of the debt by the debtor or the existence of a novation (which would require all three parties--including the OC which is nowhere in sight--to agree).

Therefore, the OP should raise the SOL defense and let the court decide.

b.)  The date the original account opened can indicate a "stale" debt, especially since the OP has no documentation and likely the OC doesn't have it any more, either: The alleged contract copy may well have been in the "package" Palisades bought from where ever they got it from (and that may well not have been the OC).

Therefore, the OP should raise the SOL defense and let the court decide.

c.)  The documentation provided so far has not yet been accepted as evidence by the court and is far from being so.

The OP should not only demand documentation in Discovery but should call for witnesses from Palisades and where ever else the debt has been since the account was created to testify at trial.

Never mind...guess what?  ;)

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Re: interrogatories and request for production of documents
« Reply #14 on: February 27, 2009 03:20:33 PM »
I need to clarify:

When I posted this:

Quote
3.)  Since any TL for the OC is no longer there, it's a reasonable presumption that the reporting period for the OC (the clothing store) is past, probably long past and so is the triggering event under the contract for the SOL to start to 'run'.  That period does NOT require the debt be charged-off (written-off) nor need a debt be so in order for the JDB to be considered a "collection agency" for the purpose of determining the true reporting period nor whether suit is "timely".

In response to this information:

When looking at a credit report, I dont have the credit card (which was for a clothing store) listed. it only lists Palisades and which card it is and that it was placed in collections and will fall off in 2011.  The origional acct was allegedly opened in 96, I cant remember or have any paperwork to state when last payment was attempted.

I had this in mind: 

The DOLA is set no later than when the last payment is received, but can be sooner if the terms of the contract allow for earlier official default of the same.  That is the "date certain" which starts the clock running on the seven year period a derogatory tradeline can be displayed on the reports.  The presumption here is that the OC placed a TL to begin with; if this is the case, the fact it's no longer there indicates the debt is old enough to also be out-of-statute for lawsuit in the OP's state (SD).

Another support for this presumption of an OOS debt?  Try this:  The OP did mention they were served a COPY of a contract they allegedly signed with the OC, which is possible.  That would confirm when the contract was entered into and exactly what would constitute contract default if it's legible enough to read!

This (legibility of a document copy) is important for two reasons:  1.)  To establish the contract and its terms; and, 2.) What would constitute a breach and any cure for the same.  It's very possible that even if the OP continued to pay something on the amount owed, it might not have been enough to cure the breach.  If the breach of contract were not cured at any time, the SOL could not be reset by anyone for any purpose until and unless such breach were to be curable and such cure were effected.

If that contract "copy" allegedly signed by the OP is partially or fully illegible?  Palisades would have a tough time even establishing there was a valid contract (a signature on such a document binds nobody to its terms since those terms cannot be established).
If this is true, the evidence would fail and so would the case (no evidence, no case).

Therefore, raising SOL as a defense is logical due to the passage of time alone and should be the first defense.  Attacking the attached "evidence" itself, especially if the copy presented is of less than stellar quality, would be a viable second defense (unable to prove terms of the alleged contract based on the evidence attached to the complaint).
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