Response to Plaintiffs demand for admissions example.

Discussion in 'Credit Talk' started by billbauer, May 6, 2010.

  1. billbauer

    billbauer New Member

    As many here know from my past posts I am being sued for an auto repo. I sent my demand for admissions to the plaintiff a week or more ago and today I got their demand for discovery.

    Although I have 45 days from today to respond they only have 30 days to respond to my demands so I have them behind the old 8 ball time wise. In order to give an example of how to respond to admissions I have posted a link to my proposed responses to their demand for admissions on my google docs page. You can clisk on the link below and see how I plan to respond.

    Of course, I will prepare a second set of admission demands which I plan to send to them tomorrow. Those will be based on their demands to me. Let them answer their own questions. (LOL) Well, to some extent at least. Then when we get close to the 45 day mark I'll file a motion for protective order from most of their questions. At the end of the 30 day mark I'll file motion to deem admitted anything they didn't admit. IF they don't answer at all then I'll just pick and choose between the list of 44 questions I sent them to have deemed admitted.

    I may very well not win but I'm sure planning to give them some major headaches before it is all said and done. My responses need some quotes from Oklahoma Statutes and from civil rules of procedure yet but I've got plenty of time to get those located and quoted.

    What I have posted on my google docs is just the admissions section. They also sent demand for interrogatories and production of documents which I will also respond to and post my responses later.

    Please don't think I am trying to give legal advice here. That wouldn't be possible because every attorney has a different set of demands and ways of presenting them so at best what I have posted is just an example of how to go about responding to admissions.
  2. billbauer

    billbauer New Member

  3. creditatty

    creditatty New Member

    I simply deny most requests for admissions, state Plaintiff lacks sufficient knowledge or just object as to being vague.
  4. billbauer

    billbauer New Member

    Of course, based on what you have said here it isn't too hard to imagine that the Plaintiff just picks up his toys and goes home. Right? If I'm wrong about that please tell us what usually happens after they get your responses.
  5. creditatty

    creditatty New Member

    I represent Plaintiff's, thus, unless they've lied to me about something we don't pick up our toys unless we settle or go to trial.
  6. billbauer

    billbauer New Member

    I didn't think so. That's why I said it the way I did. Never seen an attorney yet who would give up just because some defendant I simply denied the requests for admissions, stated Plaintiff lacks sufficient knowledge or just objected as to being vague. Wouldn't be much of an attorney if they did.

    Those are just stock responses every attorney uses no matter what. I have yet to see any attorney give any straight answers to a defendant. Not ever. In fact it wouldn't surprise me any if and attorney did give up so easily the bar assn would turn him into their favorite whipping boy (or something like that anyway.) LOL
  7. creditatty

    creditatty New Member

    Objections are common and so is Requests for Supplementation to drown us in paperwork. Those are usually denied as well and a Motion to Compel is then threatened. Very rarely ever happens and even if it does, it matters not to me because the questions are not likely to lead to admissible evidence. They can schedule a deposition and ask whatever they like is the general answer I get from most Judges.
  8. billbauer

    billbauer New Member

    Something I can't figure out. First you say you are an attorney who works for creditors and debt collectors then you come off sounding like a consumer advocacy attorney. Which is it? The problem is that the Bible says you can't have two masters. Now then I am fully aware that we are not in church here but the example does fit because if you work for creditors and debt collectors and they find out that you are helping consumers then they will dump you and you won't get any more work from them. On the other hand, if consumers know that you work for debt collectors then you will be seen as probably willing to sell them out to the debt collectors and you won't get any more business from consumers. Of course, if that happens I guess you could alway help the drunks get out of their DUI problems or start chasing ambulances. So I'm sure you would survive one way or another.

    Drown us in paperwork? Yes and that's not all. One of my local students here in OKC just left the office and he was sued by a debt collector out of Texas who lost the case and got nothing because Vance D. knew how to defend. Then he sued the debt collector in return. Both cases were in small claims courts and both lost the case. Neither could prevail. Then Vance sued the debt collector in federal court. He got a letter from the defendant's attorney this morning telling him the debt collector would surely win the case and Vance would end up having to pay the court costs and attorney fees so in order to prevent further litigation costs the defendant would agree to pay $500 to settle all claims against them but Vance would also have to agree to take down the damaging recordings of phone conversations from his web site and agree to a strict confidentiality agreement.
    That is pretty common. Defendant's attorneys just love to tell the plaintiffs that they don't have a crying chance of winning and they had better take an old cold tater and forget the whole thing. Of course Vance isn't about to agree with them or accept any such silly offer. He can't very well agree to the idea of taking the recording off his web site because it isn't going to do any good. After all, what guarantee can he give that I haven't already copied his recordings and will soon be putting it up all over the internet for all and sundry to hear? What guarantee can Vance give that somebody hasn't already beat me to the punch? He can't do that and the recordings are likely to show up somewhere sooner or later. I can just about guarantee that they will. Maybe not right now because if they do then that could jeopardize Vance's case but once it is settled and done with then that may become a totally different matter.
    Trying to bury the other side in paperwork is par for the course. Nothing new there.
  9. creditatty

    creditatty New Member

    When did I say I was a creditor's attorney? I represent consumers that have been sued by debt collectors, debt purchasers and original creditors. I simply use Rule 12.02 of the Tennessee Code Annotated to dismiss their Complaint and counter under the FCRA, FDCPA (if applicable) and Tennesee Consumer Protection Act.

    Most of these cases take place in General Sessions Court wherein discovery isn't even allowed. If the case is in Circuit, I do what I've stated above.

    I also represent "Plaintiff's" in civil actions in various Circuit Courts in Tennessee against the same and credit reporting agencies. I also file cases for consumers in the United States District Court for the Middle District of Tennessee.

    Sorry, if I confused you by my use of the term "Plaintiff."
  10. billbauer

    billbauer New Member

    OK. No problem. So since you are a consumer advocacy attorney let me explain a situation I am currently involved in where I am the defendant.

    FDCPA states that nothing a debt collector has in their files or on their computers can be construed as validation. (at least words to that effect). I demand validation and the attorney responds with a demand for payment saying "Here is the validation you requested" and it is on their stationary and carries their letterhead. Nothing whatever to indicate that they had followed the law.

    FDCPA furthermore says that if validation is demanded timely any and all further collection attempts constitute illegal continued collection activity. (or words to that effect) In fact, that was one of the main points upon which Clifford Sheppard, acting on behalf of Spears sued Brennan, a debt collector in the 7th Cir. Ct. of Appeals.
    So what constitutes illegal continued collection activity and what does not?
    (1.) Lawyer files suit (maybe falsely) on behalf of the alleged plaintiff. Plaintiff may also actually be yet another debt collector.
    (2.) Lawyer serves defendant.
    (3.) Law firm files notice of appearance naming the law firm and naming 5 or 6 attorneys who are members of that law firm so that any one of them can proceed with the case. (Are each of them both individually and severally liable for the infractions of any one of them and severally as well?) (4.) Lawyer files Soldier's and Sailor's act notification (5.) Defendant responds, files response and certificate of service for demand for admissions (44 demands) and mails response, demand for admissions and certificate of mailing to plaintiff's lawyer. Lawyer files certificate of service and sends demand for admissions, (16), demand for production of documents and list of interrogatories. So does each and every demand for admissions, each and every demand for production of documents and each and every interrogatory constitute a separate violation and cause of action when the debtor files a federal case or not?
    Does each and every action numbers (1.), (2.),(3.) and (4.) constitute illegal continued collection activity and if not then which ones do not constitute illegal continued collection activity?
    It is also illegal to provide false and misleading information to a consumer. If the lawyer first demands more than $10,000 then files in SPECIAL COURT claiming less than $10,000 but more than $6,000 and in demand for admissions wants the defendant to admit to owing the exact same amount (greater than $10,000) originally claimed prior to suit is that not providing false and misleading information to a consumer and maybe to the court as well?

    I'm not asking for any opinions dealing with the present case or how to handle this instant case but rather about a strictly hypothetical case which might or might not be filed in federal court at some unknown future time by some hypothetical consumer. I would not ask you about an ongoing case because I know you cannot give legal advice when I'm not your client and we don't even live in the same state.
  11. peeper

    peeper New Member

    I replied by stating the following to each question.Defendant does not admit to plaintiffs claim that bla bla bla.
    I never heard from them again.
  12. billbauer

    billbauer New Member

    I'd say you were extremely lucky. I had a student a couple of years ago who lost in local court and the attorney demanded responses to a number of questions such as where she banked, how much she made each month, what kind of car she owns and numerous other questions. That was for determination of assets. They wanted to garnish her or freeze her bank accounts or take her car, of course. Whatever they could get.

    She responded to almost every question by telling them it wasn't any of their dam business and used those exact words. (LOL)

    She never heard anything from them after that either but then you might get away with that if you are 86 years old as she was at the time.

    I could probably get away with that too but I wouldn't try to. I'd tell them where I bank and hope they tried to grab my money. I'd almost be willing to beg them to go grab it as a matter of fact. That's one of the small advantages of being a senior citizen.

    Just because you got away with it don't mean anybody else will get away with that kind of answers.
  13. creditatty

    creditatty New Member

    Seems to me you have FDCPA violations against the debt collector or purchaser as the case may be. You probably also have FCRA claims if they're reporting and you've hooked them under 15 U.S.C. 1581s-2b.

    My thought is that a simple FDCPA suit is only worth 1k max and the deficiency would offset that (if that's what someone is hypothetically suing for) and then some. I would file in Federal so they couldn't assert the underlying debt. If suit has already been filed in State court, I would assert state law counters and move to dimiss (12b6 if avaliable or the equivalent in your state) for lack of proof and in the alternative, file a Rule 56 based upon what is undisputed they don't have to preponderate the debt is owed and is yours. Then, simutaneously, I would file in Federal under FCRA (if applicable) and FDCPA to avoid res judicata and collateral estoppel issues.
  14. billbauer

    billbauer New Member

    I don't think there are any FCRA violations or if there are they would be against yet another debt collector.

    Based on the fact that the national average for settlement of FDCPA claims is said to be around $3800 they would have to be getting quite a bit more than that in the majority of the more than 28,000 cases which were claimed to be on record. In order to get that average there has to be a great number of those cases that got much more than $3800. So I'm a bit surprised at your $1,000 max statement. You mean to tell me that even though I will be able to document at least 50 violations or more I'm still only going to get a grand out of it?
  15. peeper

    peeper New Member

    I also repied to every interrogatory questions by objecting on the grounds the plaintiff had no standing.Think about this.Someone buys a bad debt for peanuts for the sole purpose of making a huge profit.They in turn ask the court for a judgment to force the defendant to legally pay this huge profit.If they are seeking damages from the defendant it should be for the actual damages plus court cost.How can someone claim that a defendant should pay them 5,000.00 plus court cost for a 200.00 purchase?The original creditor i could see but a two bit collection agency?Buying bad debt is like gambling or the stock market.You take a chance on the fact you will be able to collect 5,000.00 on a 200.00 investment.If you fail you should not be allowed to go crying to the courts to help you.The court should not be helping you collect your intended profit.If the original creditor is not willing to take the defendant to court to collect,the courts should not get legally involed with some 2nd or 3rd party.
  16. ccbob

    ccbob New Member

    If only the world worked as it "should."

    Unfortunately, in a court of law there are the rules of the court and the rule of law. The rule of "should" is not present.

    While what you describe (buying something for pennies on the dollar hoping for a windfall) may be entirely accurate, it overlooks the underlying law that makes it possible.

    What is being sold is the debt (an obligation of the debtor to pay for services received by the lender). The debt is an asset or piece of property just like a used car. It is tangible and it has some value. Now the market value of that contract is something for a buyer and seller to negotiate. The face value however, is what is written in the contract. If the buyer and seller decide to transfer the debt for a fraction of the face value, that's their problem. Just like if you get a good deal on eBay or Craig's List. The market price, however, does not alter the face value of the debt which the new owner can now use the law to enforce and they can enlist the court's help to do so.

    If you think that's bad (or not as it should be) it gets worse. Should a judgment be made against the debtor (Meaning the court has decided that the debtor does, in fact, have an obligation to repay the amount), that judgment is now an asset that can be sold.

    At least in the case of the original contract some goods or services were exchanged between the OC and the debtor. In the case of the judgment, the only asset involved is the contract, itself.

    Is that how it "should" be? I don't know, but I think it all depends on which side of the contract you're on.

    I'm interested to see how your "should" defense is received by the court. From what I've seen, however, the other side will just apply the rules of the court and the rule of law and throw it out and have you try again.
  17. billbauer

    billbauer New Member

    Exactly correct. Should, ought and any other such terms almost never do what so many think they will. It all boils down to knowing the law better than they do as well as knowing and applying the right strategy at the right time.

    I went into my Cap One case fully expecting to lose for the exact reasons you have stated. Because of knowing and following the rules and using the proper strategies I might have a slim chance of getting the lawyer to dismiss or getting the case dismissed. I know the judge fairly well from having sat in on maybe 3 or 4 of his trials and been there myself once several years ago. I lost that one day but it didn't really make any difference because the law firm had already dismissed the case so my argument was moot and that's the way the judge ruled. So I know that he is a pretty good judge and tries to be fair to both sides when he can. In the upcoming case I might have a razor thin chance of getting it dismissed but I won't be the least bit surprised or disappointed if I lose because all the odds are against me no matter what I plead. All I can say is that this case may very well drag on for the next 2 or 3 years before the fat lady finally sings and she won't do that in this court room.
  18. peeper

    peeper New Member

    Does the original creditor and the two bit debt collector have the legal right to sell and/or purchase the debtors privacy rights too?
  19. billbauer

    billbauer New Member

    Now that can be a tough legal question. The Constitution guarantees us the right to privacy but the Constitution only applies to government, not private corporations or other individuals.

    On the other hand one can sue for invasion of privacy under some circumstances. On the surface of it I would say they do not but then who am I to say? I'm not a lawyer and I don't feel competent to give you an answer in this type of situation.
  20. creditatty

    creditatty New Member

    FDCPA in of itself is 1k max plus attorney's fee's and costs. That is what bumps up the average plus pendent state law claims.

    You can have a million violations but, unless you can show actual malice, yes, you're looking at 1k (well, unless you have some actual damages as well).

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