First of all I'd forget about their failure or refusal to validate. That's not a defense and is totally irrelevant to the outcome of this case. You need to pursue that in a separate federal case to get the maximum benefit out of the complaint. I'd also quit worrying about whether or not the plaintiff is the true party of first interest in the case. That isn't going to get you anywhere either. The U.S. Supreme Court has already ruled against that argument long ago. All of that having been said, let's start with something more concrete. First of all you claim that isn't your account number. You should have realized that it isn't your account number to start off with. You don't own any account numbers, they do and they simply assigned a number to you. If they can't keep their own account numbers straight then too bad for them. If the account numbers they assigned to you are not the same then you have grounds to deny the question and you won't be telling any fibs or evading any questions. The above is the same as the anology that your car don't own the VIN number assigned to it by the manufacturer. So lets see what we can do with those questions. #1. Denied. Defendant never applied for nor received (Use the wrong account number they listed next to defendant name in heading #2. Denied. Defendant never received any credit on account number (Use the wrong account number they listed next to defendant name in heading} #3. Denied. Defendant never made or authorized any charges on account number (Use the wrong account number they listed next to defendant name in heading) #4. Denied. Defendant neither made or authorized any payments to be made in his favor on account number (Use the wrong account number they listed next to defendant name in heading) #5. Denied. Defendant has never received any billing statements on account number (Use the wrong account number they listed next to defendant name in heading) #6. Denied. Defendant never received any benefits whatever from account number (Use the wrong account number they listed next to defendant name in heading). #7. Denied. Defendant had no knowledge of account number (Use the wrong account number they listed next to defendant name in heading). #8. Denied. Since Defendant has no knowledge of account number then identity theft may be a possibility. #9. Admitted. Defendant could not claim unauthorized use of some account of which he has no knowledge. #10. Denied. Defendant neither opened nor closed the account which is the subject of plaintiff's complaint. #11. Denied. Defendant never received any final statement showing such a balance for the account which is the subject plaintiff's complaint. That's the way I would answer those demand for admissions but have they answered your demand for admissions? Or didn't you send them any? If not, why not? Your demand for admissions should have been sent to the plaintiff at the same time you responded to the complaint and sent your response to the plaintiff. If I were the defendant those matters would have all been taken care of within one or two days after the case was filed. Long before I ever got served. Of course, my court system has all new cases filed on line and all I have to do is check the court website once a day. If that weren't the case then I'd go to the clerk of the court at least once a week and check to see if any new developments had occurred. You already knew that you were in default so should have realized that a suit might get filed against you. But that is all history now and since you didn't do what you might have done no use crying over that. The only thing you can do now is to make sure that you don't make any more mistakes. One thing to watch out for is whether or not you have to have your admissions notarized before sending them. Your rules of procedure will tell you that and will also tell you how you have to answer the admissions. Check your rules of procedure to make sure you don't goof up again. Be sure that all of the answers I gave you are permitted by your state rules of procedure or you might not be able to use them. The answers I gave would be acceptable in some states but maybe not all. Now use their mistaken account numbers to your advantage. Prepare your own demand set of admissions and send them to the plaintiff immediately. Wait until the last possible moment to get your answers in the mail. If they wake up an realize what their mistake was they will probably cure the mistake and send you the same thing all over again but you will be on the right side of the timeline instead of the wrong side. That's the way I would go about it.
Any affidavits filed in the case??? Did they file any affidavits in the case? If so that very well may be a way to attack both in local and federal court. Let's learn a few things about affidavits and what constitutes a valid affidavit or tells us that the affidavit is false and misleading. Now then, based on the information to be found above forming your demand for admissions from the plaintiff should be easy indeed. Or was there really an affidavit filed with the papers? If so, who was the affiant and who was the notary? What state was the notary from? Does the Secretary of State that the notary is registered in actually have any knowledge or record of that notary? Who does the notary work for? Who does the affiant actually work for. If an affidavit has been filed in the case those are all important questions that defendants need to get answers for. False and misleading affidavits filed in collection cases are the norm, not the exception.
It was over before he ever got served according to what we might well call the law of averages. But that doesn't mean he should just give up, lay down and take his whipping. Granted that what I said his answers should be is nothing but a trick that won't work for long because they will see through it and wake up and die right. My guess is that they will quickly cure the problem and send him another set of interrogatories. He won't get away with the same trick the second time. But there is still a lot of room to fight. Using the trick to get the upper hand by sending them his demands for admissions as long as possible before having to send his answers to them can be key to winning. They very well may get all bent out of shape and refuse or fail to answer his. Then he can file motion to deem admitted before they can do that to him. He should have 90 days to complete discovery and should use up all of that and file motion to grant additional time for completion of discovery if need be. I believe that in the final analysis his only winning strategy is to file a federal case against the attorney and the plaintiff at the earliest possible time. If he does so and does it correctly he will find that they will get religion and leave him alone very quickly. The nice part about it is that if he files a federal case he will most likely never see the inside of a federal court room nor actually face any judge. I know a man who lost two cases in local court and got judgments against him in both cases. He filed a federal case based on providing false and misleading information to a consumer. That case is still in the settlement phase but the defendants have already agreed to his settlement terms which include paying off the debt for him, getting rid of the judgment and paying him a nice sum on top of that. Then the same attorney tried to get a settlement on the second case in local court and the man prepared an intent to sue and his next federal case against the attorney and went to the hearing. He presented the attorney with his documentation and the attorney turned tail and ran. He wanted to do a settlement to avoid having to go to federal again. A few days later the man's wife was scheduled to go to a hearing in local court with the same attorney. The man prepared a 3rd set of documents all ready to go to federal court and the wife presented the attorney with her set of documents all ready to go. That really ruined the attorney's day. Once you take them to federal court they get religion real quick. I strongly suspect that taking them to federal court is the only way this poster can possibly win his case. In any case, the key to winning is being on top of the situation, knowing all the tricks and using them to the utmost advantage. Knowing all the tricks don't mean using some kind of black hat theories or patriot mythology. It simply means taking nothing for granted, know or learn the exact legal definitions of all the words they use and if you don't know their meanings then look them up and see what they mean. It also includes knowing or learning all the rules of civil procedure and evidence so you can trip them up on each and every little mistake they might make. Collections lawyers are lazy creatures and constantly make mistakes in their pleadings and filings. They do as little as possible and often make statements that are false and misleading but they count on the fact that neither the court nor the defendant will know or pay any attention to that. They rely on the fact that as officers of the court the judge will let them get by with almost anything. Defendants must learn how to control both the judge and the plaintiff's attorney. It can be a daunting task but it can be done.
But he said he got an attorney and went to trial. So you're saying he should now sue both the plantiff and the attorney in federal?
I didn't see that but if he already hired an attorney and went to trial then why is he getting demand for admissions now? If the trial was already held then it is all over in the local court. Yes, he can file a federal case against the plaintiff and the plaintiff's attorney if he has sufficient causes of action. What happened in the local case has no bearing on the outcome of a federal case. In local court the only question before the court is whether or not the defendant owes the money. In the same way, the only question before the court is whether the former plaintiff and/or their attorney violated federal law. Nothing else matters. The fact that the former defendant now turned plaintiff owes the former plaintiff now turned defendant money is not a matter before the court. Money does not enter into the new case.
The postings about the questions were before the attorney, I believe. An old post that was bumped for an update, which was about going to court with the attorney.
Oh! Well then somebody sure is a bit confused and I'm not so sure its me. If someone has an attorney they shouldn't need to be posting questions about discovery. Providing responses to discovery is normally done by the attorneys in the case. However, according to the rules of civil procedure for most states discovery requests are supposed to be answered by the parties themselves rather than by the attorneys.
I'm not sure what happened. It looks to me like when the OP started out in February he was going pro se and asking all the questions. Then he must have gotten an attorney, because when someone bumped asking for an update he said he got an attorney and went to court. So I think it's the timeline that gets confusing. I understand--I was confused for a while, too!!!
Don't think. Just ignore most of the recent discussion on this thread. It was pretty much a discussion between me and Cap.
