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Monday, November 10, 2008
How to lose a lawsuit
Questioner: Karen
Subject: Cresit card lawsuit
QUESTION:

A lawyer has sued me on behalf of JDB for a credit card debt. SOL not expired. I Answered the court and attorney with a General Denial that wasn't sworn.I just read this needed to be sworn. Is it to late to resubmit a sworn copy ?

How long do I have to request Discovery from Plaintiff ? No dates have been given to me by the courts and I only see it has to be done during the discovery period.

Plaintiff hasn't responded to my request for validation ,as allowed by FDCPA. Even though they have filed lawsuit and placed this on my credit report. Would you suggest filing a Motion to compel since they haven't shown any of the documentation requested prior to validating the lawsuit ? or Filing for Discovery ?

Thanks in advance for any suggestions, K

ANSWER:
A lawyer has sued me on behalf of JDB for a credit card debt. SOL not expired. I Answered the court and attorney with a General Denial that wasn't sworn.I just read this needed to be sworn. Is it to late to resubmit a sworn copy ?

I'd submit a motion to allow filing of an amended complaint. You will probably have to amend it in some meaningful way. Simply having the amended motion notarized without adding something meaningful would not be a good idea.
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How long do I have to request Discovery from Plaintiff ? No dates have been given to me by the courts and I only see it has to be done during the discovery period.

Check your rules of procedure. They will tell you what time is allowed for discovery. If you are too close for the other party to respond then you will need to file motion for extension of time.
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Plaintiff hasn't responded to my request for validation ,as allowed by FDCPA. Even though they have filed lawsuit and placed this on my credit report. Would you suggest filing a Motion to compel since they haven't shown any of the documentation requested prior to validating the lawsuit ? or Filing for Discovery ?

Failure to respond to validation is not a reason to file motion to compel. What did you send in the way of discovery? Again, your rules of civil procedure will tell you how discovery must be conducted and give you your remedies and how to enforce your right to get responses.


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---------- FOLLOW-UP ----------

QUESTION:
Thank you for your feedback.

I never requested discovery . When I sent my initial dispute letter asking for verification / validation to the lawyer, I also stated " Please provide me the original contract that I signed, dated and the agreement information, including the credit limit. Please include any and all communications associated with this account...Please send a complete account of the alleged debt, as I have never had credit this extensive. "

Since the above documentation hadn't been given to me , I assumed that this would be dismissed as lack of merit since FDCPA states debt collector must cease all collection activities upon dispute until the debt has been verified. Is this reason to get a dismissal? The citation was filed 4 days after my request. I know this is a violation and I can sue for it; I didn't want to file to soon though.

A legal aid person said I needed to ask for Motion to Compel first, then the dismissal. ( I couldn't get represented because my household income is higher than they allow.)

I haven't received notice of a court date yet so Discovery is still allowed. I plan to file these today as they are already prepared.

When I Motion to amend my answer, adding Special denial for Conditions Precedent , would I need to also include my Motion for Production of documents/ Admissions ? My intent to counter sue for violations? Or can these be submitted separately ?

Is this true? : "If you respond "Deny" to one of their requests,you are not denying it took place. You are only refusing to allow it to be admitted in court as a fact without dispute."

Can a JDB be "Owner, Assignee and Beneficiary " ?

Thank you again ! K

Answer:

Like most pro se litigants, you don't seem to know the rules and procedures that are used in our courts. That's why people are constantly being told to get a lawyer. That plus the fact that as a result of their education they are also presumed to know how to prosecute or defend their cases. While it is true that many lawyers do know the rules and procedures of the courts it is probably also true that most of them don't. In fact, the majority of lawyers probably never see the inside of a court room or even prepare any cases. There is a vast army of lawyers who do other equally important things for government or large corporations such as preparation of new laws for various legislative branches or they are legislators themselves. You would probably be very surprised to learn how many police officers are attorneys and have a private law practice on the side. The number of criminal lawyers is far greater than the number of attorneys who specialize in debt collection. Attorneys who specialize in consumer advocacy and really understand how to represent consumers are few and far between indeed and out of those few most don't want to defend consumers. Most only want to sue debt collectors who have deep pockets.
That means that consumers who have little or no money are left to fend for themselves.

You talk about a counter suit. Those seldom do any good at all. They aren't worth the paper they are written on much less the cost of filing them. You say the legal aid person told you to file motion to compel? You say you haven't demanded discovery so what would you base a motion to compel on? Nothing!!!

You also ask the following: "When I Motion to amend my answer, adding Special denial for Conditions Precedent , would I need to also include my Motion for Production of documents/ Admissions ? My intent to counter sue for violations? Or can these be submitted separately ?"

Why would you file a motion to amend your answer? What new evidence do you have to use such a motion? Filing a motion to amend usually requires that you have new evidence to present to the court that you did not have at the time you filed your original answer. You also ask whether or not you should include your motion for production of documents/admissions. Courts usually don't want such things filed in the court records. Even in federal courts where you must have the courts permission to engage in discovery the actual requests are almost never seen in the filings. You mention production of documents and admissions. Most attorneys and pro se litigants send all their discovery requests at one time. Their interrogatories are filled with silly questions, many if not most of which have no bearing on the outcome of the case. When defendants send interrogatories the attorneys find every possible excuse to object, deny, obfuscate and give answers that are totally inane and of no value to the defendant whatever but get all bent out of shape if the defendant does not answer every question they ask. Then they file motion to deem admitted and go on to win easily. Defendants who don't understand the process might as well not bother with discovery since they are going to lose the case anyway. I teach my students to stretch the discovery process out to the greatest extent possible by sending demand for admissions first then when the answers come in from that send demand for production of documents and then if their questions are not answered finally send interrogatories. If demand for production of documents produces nothing then use dueces tecum. Even the original response to the court should have been designed to force the plaintiff to prove his case.

You have probably already lost the upper hand in the discovery process if you didn't send your demand for admissions at the same time you sent the plaintiff's attorney your response to the complaint. In fact, if you even got served before you responded to the complaint you lost a valuable advantage. If you are in debt and you even suspected that someone might sue you then you should have been watching the court's web site on a daily or weekly basis to see whether you have been sued or not.

If a suit is filed against you a response should have been filed and sent to the plaintiff's attorney along with your demand for admissions the next day or two. You don't need to wait to be served in order to do that.

You say that the statute of limitations has not expired. How do you know that? What web site did you get your information from? What card are they suing you for? What state do you live in?

You described what you sent in your validation letter to the attorney but the problem is that they are not required to provide you with most of the information you demanded. It appears that you used a validation letter you got from some web site and I've never seen one yet that was worth the electrons it took to put them there. The only ones I've ever seen contain a great deal of useless gobble-de-gook and nonsense. You say that the citation was filed 4 days after you sent your validation letter. How do you know they received your validation letter prior to the time they filed? If you can't prove they had your demand before they filed you can't prove a violation. In order to prove it you would need to know the exact time and date your letter was received and the exact time they filed.

Then you say you know you could file a suit against them but in order to stand a chance of winning you would want to file a federal case and obviously you don't have a clue of being successful in federal court without some serious help. Federal court is much more difficult to file and win in than a local court is and the way you are going at it in local court is making a sure loser out of you.

I'd advise that you get some serious help.

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