Cap 1 lawsuit, it is 3 months from being out of SOL and is for 1400.00. Cap attorneys was a no show at first pre trial but called in minutes before time and ask for an extension because they were caught up at another court in another town. ( they have like 30 attorneys in office ) Court granted them another time. I am sure they didn't think I would show up. Cap 1 Attorney came to be in the hallway and told me about the case and right off the bat said he would settle for 80% and go away. I told him I would settle for 2k and would not go any further as you did not validate the debt and did not prove to me or anyone it is mine. He said you know it is yours, we know it and yu will not only have to pay the 1300, but court costs as well. I told him I am prepared to fight the case and force you to prove it is mine. He got up, charged into the courtroom and when the judge spoke he told him he needs at least 60 days for further discovery. Judge granted time. He ask court for a phone pre trial next time.....??? Sent me a list of 25 interrogatories, request for admissions and production of documents. I know I need to answer and dont know how... but this makes me think they have nothing and want me to give them what they dont have, evidence. Where can I get help on answering these items and what should I send back to them asking them to produce docs to me. Any help would be greatly appreciated. I do the work but I need some guidance on what to do from here. Thank you.
Cap1sucks, and flyingifr are probably the best to answer this in detail, but to start you will need to research all the rules of procedure for your court venue. What level of court is this? Since it is an attorney, I presume it is not small claims. They are trying to "draw the foul" on you, they probably assumed that you would not show, let alone contest. You should have made a Motion to Vacate request right when the attorney did not show, but too late now. You may want to consider hiring an attorney at this point, consult your local Bar Association referral system for attorneys in your area who specialize in this field. You will most likely need to prepare a countersuit if they did not validate, and "continued collection activity" evidenced by the suit. Again, do your research.
Thank you Biz. Research puts me in a position to only deny the interrogatories and send it in. I cannot believe the judge allowed them more time when I told him they sent em a dunning, I DV'd them within the 30 days ( have proof ) and they failed to answer the request. I understand many of you have to be careful on lawsuit questions, but I am asking for direction, I know they dont have any proof of the debt. Is there any way to ask the judge for dismissal based on the fact they never validated?
Validation would be an issue brought up at trial. You should have a motion to dismiss made out when you go into court or you can file before your next court date. Sounds like you live in CA or one of the larger states that allow call in's by attorneys. What discovery "items" is the attorney wanting? You should not have talked to him and tipped your hand it's always better to go in front of the judge and make them look like fools. Next time when in court after after you have said your piece and given evidence ask for a dismissal "In the interest of justice" thats a catch all.
You can't just deny the interrogatories. You have to give a reason for each denial and that reason has to be a reason allowed under the rules of procedure for your state. You must fully explain your reason for the denial. your unanswered demand for validation has nothing to do with whether or not you owe the debt. The judge could care less for any of those things. I'm trying to give you some direction by telling you that they won't even need a computer print out of the debt or any proof of it whatever. It won't make any difference about your demands for validation. All they need is the pure statement of the attorney that you owe so much money and if you don't rebut it with more evidence that you don't you are going to lose. That is just the long and the short of it. No, absolutely not. motion to dismiss for failure to state a claim upon which relief can be granted might work if you can show where they have not provided any proof. You have to go about these things in the right way or you willl lose. You have to keep their evidence if any from getting introduced and you have to learn how to use objections and many other things to win.
What you need to learn is how to use discovery weapons wisely and how to move the court to compel the other side to show his hand before trial. Most lawyers respond to discovery with words like, "Objection. Overbroad, vague, ambiguous, seeks to inquire into the attorney client privilege, exceeds the scope of discovery, calls for a legal conclusion, not likely to lead to discovery of relevant information, not allowed under rule # and other equally nonsensical answers." So you need to learn the rules of procedure and learn to use them the way attorneys do. The typical crooked lawyer will respond with such objections to your demands for discovery knowing your winning hand is useless unless you can prevent him from hiding the evidence so he can surprise you at trial. You should have sent discovery demands before he sent his to you, not after. The first discovery tool you have at your disposal is demand for more definitive answers. This should have been your first response to his summons and complaint. This is what I teach my students. Set that motion for trial immediately. Get a hearing date for your motion for more definitive statements. If the other side refuses to answer or objects the next move is to file motion to compel discovery. Set your motion for hearing and support your motion with a well-cited memorandum of law that you can argue at the hearing to make your record that the information you seek is discoverable information you have a right to know before trial. Now you have at least temporarily placed the burden of proof on the plaintiff's shoulders instead of letting them make you prove your innocence. You must put the burden of proof on them through proper use of your 5 discovery tools. Learn to use each and every one of them effectively. Learn how to use objections to their supposed affidavits. They are nothing but hearsay and cannot lawfully be entered into the record. Be sure that you have a court reporter at each and every hearing and get your objections into the record. Learn that you cannot win trying to complain about what they did or did not do to you. You cannot win claiming violations of FDCPA, FCRA, TILA or any of that. Those are useless arguments and only prove to the court and the plaintiff's attorney that you don't have a clue about how to defend against their lawsuit. You only make yourself look foolish using those arguments. Such arguments work very well in federal court because when you get to federal court the burning bush question of the day is not about what you owe but rather about their having broken the law. Whether or not you are in a local court or a federal court your paperwork and your arguments should always be up to federal court standards. Your pages should always have footers which contain the page numbers, your paragraphs should always be numbered, your heading and title should always be in 14 point all caps, your title should always be underlined. Your work should always be in 12 point type and everything should always be bolded. Never make an unsupported argument. Back up everything with rules, statutes or case law or all of the above if possible. These are the things I teach my students right from the start. If you do it any other way you will lose every time unless you can prove that you have already paid the debt or that they have the wrong person or that they somehow do not have jurisdiction. This stuff isn't rocket science. Anyone can learn it quickly and effectively. My students also quickly learn that it is far better to be a plaintiff in a federal court than it is to be a defendant in any court. You should learn to take those arguments about FDCPA, FCRA, TILA and what have you to federal court immediately. Start your road to federal court as soon as you get their initial contact letter and sooner if their first contact with you is by phone. Keep careful records of all that happens. You should understand that validation letters are you first step into federal court. Expect them to fail to validate the debt and do it properly according to the standard set up in Fields vs Wilbur Law Firm. If you shepardize that case you will find that there are 35 cases that have referred to that case and every one of them call it the standard by which proper validation can be judged. If their validation is not up to the standards set by Fields vs Wilbur lawfirm then it isn't validation and there is your open doorway into federal court. You should demand validation of the debt collector and you should demand validation of the attorney who sues you. If they fail to meet the standards of Fields you should immediately haul them into federal court. If you fail to do those things expect to lose and get a judgment against you. Then you can either pay it or file motion to vacate the void judgment. No, I'm not an attorney and I would be ashamed to admit it if I were. BB
