CCbob i was told that the scanners they use can't read certain colors and they have to read them in person.I think one color was purple and teal.
I am in the the same boat with you stricrazy. I filed a validation letter may of "08 have not heard anything back from lbn. So what did you end up filing?
Well I filed the sworn denial in Feb 09 and also sent LBN a debt validation letter. I had not heard anything more from them until I received a certified letter from them the other day. Over a year after I filed my sworn denial and sent the DV request! The certified letter is the Plaintiff's requests for admissions and Interrogatories and a Request for production of documents... I am in the process of trying to figure out how to answer. All this stuff is so confusing to me... I am also trying to find out if I can get the case dismissed for failure to prosecute since over a year has passed since anything has happened. Does anyone know what Oklahoma law says about that??
Well then that constitutes illegal continued collection activity, doesn't it? That's the way I see it. Just call me and I'll help you respond to those answers in such a way that you tell them absolutely nothing they don't already know. No charge or obligation. That gets pretty tricky and may or may not succeed. Just read your rules of civil procedure to find out about that. You can find them on OSCN.net
Bill, Thank you so much for your offer to help me with this matter! You don't know how much I appreciate it. You said I could call you, however I don't have your contact info. It would probably be tomorrow before I would be able to call you. If you would like to send me your contact info and a time that would be best for you, I would be greatful.
Oh yes you have my contact info or at least you do if you click on my google docs link below. Time? Any time you want. I usually don't go to bed until about 10:30 or so and I'm usually up and getting after it about 5 A.M. So just about any time you want to call will be fine with me.
I plan on calling your sometime around 1 or right after I get out of the doctors office. But in the meantime I would like to post what I have got so far. Maybe you can give me tell me a better way to do it. IN THE DISTRICT COURT OF ****** STATE OF OKLAHOMA Case No: ****** Plaintiff VS. Defendant Defendant, appearing pro se, for its Response to Plaintiffâ??s First Set of Request for Admissions and Interrogatories states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein. REQUEST ONE- Admitted INTERROGATORY ONE- Object burdensome requests that are an unwarranted invasion of my personal privacy. REQUEST TWO- Denied INTERROGATORY TWO- Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. REQUEST THREE- Denied INTERROGATORY THREE: Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. REQUEST FOUR- Denied INTERROGATORY FOUR: Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. INTERROGATORY FIVE: Defendant is unaware of any such documents and therefore cannot produce said documents. INTERROGATORY SIX: 1. Love, Beal & Nixon has not proven that Asset Acceptance is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Asset Acceptance with all of the original creditorâ??s rights and privileges intact. 2. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 3. Plaintiff is a third party debt collector who purchased the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages. 4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant. 5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 6. Plaintiffâ??s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. 7. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. 8. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits. 9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. INTERROGATORY SEVEN: Defendant has no witnesses at this time. As far as the request for production of documents goes I don't have anything, and stated that in the above so I don't know if I even need to address that part of the discovery.
Your proposed response violates Oklahoma Statutes Title 12. Chapter 41 - Section 3233 Your proposed response violates Oklahoma Statutes Title 12. Chapter 41 - Section 3233 Your proposed response violates Oklahoma Statutes Title 12. Chapter 41 - Section 3233 Your proposed response violates Oklahoma Statutes Title 12. Chapter 41 - Section 3233 Asset Acceptance is not the original creditor. Explain that one to me please. Exactly what did plaintiff omit from their complaint that would entitle you to make the above claim? Interrogatories are questions by definition. You didn't ask a question here. You have no right to demand anything when responding to their interrogatories. If you wish to make demands upon them you need to formulate your own set of interrogatories or file motions that would require them to prove their allegations or disprove your allegations. You are way off base with that one. First let's see what the definition of the term Failure of Considerationis. failure of consideration n. not delivering goods or services when promised in a contract. When goods a party had bargained for have become damaged or worthless, failure of consideration (to deliver promised goods) makes the expectant recipient justified to withhold payment, demand performance or take legal action. Now then, under what contract did the plaintiff promise to deliver goods or services? What goods or services did you bargain for when contracting with the plaintiff that the plaintiff did not deliver? The answer is, of course that the plaintiff, a 3rd party debt collector promised you nothing and even if they had you admitted that you paid them nothing. Let's get real here. (LOL) Therefore, by your own admission there could not possibly have been any failure of consideration as you alleged above. Anyway, what is Privity? Please click on the link and tell me which of the types of privity you are referring to. Valid assignment? You might have something there. See 24 O.S. Chapter 2. § 35. Requirements that Assignment Be Written, Signed, Acknowledged, Proved and Certified I would suggest that you also check the definitions and applications sections to see who, what, when, where and how that applies. See #6. Might just apply. Haven't really studied that to find out for sure yet but I plan to very soon. I think you need to learn what Accord and Satisfaction is and how it operates. Accord and Satisfaction operates like a 3 legged table. If any of the legs are missing the table falls over. Your claim don't have any legs at all. Sorry about that. That should have been in your response to the court if you were going to say it at all. If you don't then they can hit you with a subpoena duces tecum and then what will you do? You would also be well advised to study the cases cited in Title 12. Civil Procedure Chapter 40 - Oklahoma Evidence Code Article Article I - General Provisions Section 2101 - Short Title. Being a pro se does not mean you can get away with being ignorant at the same time nor does it mean that you do not have to know and follow the rules. Being a pro se also does not mean that you can ignore the statements of the plaintiff's counsel and win. Each and every aspect of the case and pleadings must be examined in great detail. For instance, when and how did LBN first contact you? Did you demand validation in a timely manner? If so, how did they respond or did they? Did they demand reasonable attorney fees in the amount of XXXX.XX? Who said that was reasonable? They did? Oh? That's interesting. What gives them the right to determine what is or is not reasonable? Did they tell you that they would take no further action until some certain number of days had passed since date certain? If so did they abide by that statement or did they fail to abide by that statement? Obviously you haven't done the homework needed to properly become a pro se litigant. If pro se litigants hope to beat experienced attorneys they must be better prepared than the attorney is. That is often pretty easy to do since attorneys have a tendency to get sloppy and miss a lot of tricks. LBN is especially sloppy and if you had done everything correctly at the time of their first contact with you then you ought to be able to come up with at least 5 or 10 or more violations of FDCPA and maybe a few violations of FCRA too and be in a great shape to take them to federal court. As I said earlier, I'll help you respond to those interrogatories properly but I'm not going to do your homework for you.
Bill- I would like to thank you for taking the time to speak with me on the phone today. You have been a great help, obviously I hacked the discovery all up and with all the help you gave me today, I will be able to fix it!
Not a problem. Glad I could help but as I told you earlier, don't count on winning no matter how good you prepare your case. Frankly, I think the only chance you have of winning is proving that it isn't your debt if you can do that. I don't want to go into that any further in public forum without your express permission however. Our mutual friend got really, really stupid today. Imagine filing a Soldier's and Sailor's affidavit in a case involving a person of my age. (LOL). Last time I looked the act requires that to be filed in every case without fail but judges around here don't require it even though we are at battle with foreign powers and we have thousands upon thousands of troops overseas on active military duty. If I remember correctly the act states that any case filed is null and void if a Soldier's and Sailor's affidavit is not filed with the court. On the other hand the act has been modified several times so it might not say that any longer. Did she file one of those in your case? If not, I wonder why not? After all, we have lots of women in the military and overseas in combat areas. Some are even active duty fighter pilots and some are flying big transport planes. Many are on the ground in combat situations. Seems to me that if the law no longer requires such affidavits something is desperately wrong. Anyway, feel free to call me anytime. And if you happen to be in OKC on the 2nd Thursday of any month at about 7:00 P.M. feel free to drop into Coit's Root Beer stand at 24th & S. Western and join our meetings. You can also feel free to get in on my Friday night conference calls.
How is your case going with our "friend"? Hopefully you have got more accomplished than I have My mom has been moving and my daughter got sick so I had to put this aside and help them. I plan to get the ball rolling now! I am getting ready to send them my discovery I know what I want as far as production of documents but I don't really have any idea how to handle the request for admissions and the interrogatories. Should I just send the production of documents then at a later time send the others?
Dumb Bob hasn't really been following this thread that closely, but he'll just toss out for your consideration: There are important dates in discovery that you should follow. For example, if you don't get admissions back in time, they might claim that you admitted everything they asked you to admit. That could end the case right there, badly. You'll notice how they gave you all the discovery at once. This may not just be an attempt to save money on postage, it may also be a considered strategy to overwhelm you. It's actually a good ploy. You are overwhelmed because you don't know what you are doing, but if they get a lot of stuff at once they could be overwhelmed because your response is unexpected or they are overworked with too many cases to actually pay any attention to any of them. If you are going to send them discovery, plan from the start that you will likely have to compel them to get any serious answers. So figure out what the rules are so you can do that without too much trouble.
You can handle it just about any way you want to. As Dbob pointed out, they usually just send all three at the same time. He seems to think they do that to overwhelm you with questions and demands. That may be the strategy. I don't know about that but to me sending all of them at the same time makes absolutely no sense whatever. Interrogatories are questions but what questions am I going to ask? I really don't know the answer to that so why would I want to waste my quota of questions with dumb ones that aren't going to get me anywhere? I'd like to have a bit better purpose than just asking dumb questions. I could just demand documents but why would I want to demand documents if I don't know what documents they might have? Of course I suppose I could demand forensic e-discovery which would force them to let me hire a forensic discovery team to go through all their hard drives, answering machines and cell phones as well as their filing cabinets to see what might be discovered but since that can easily cost thousands of dollars I don't think I would want to go there. (LOL). Another tactic I might use is depositions but if I did that I'd still be in the position of asking dumb questions and getting dumb answers back. So my thinking is that I like to send demand for admissions first. When I do that then I often get back a motion for injunctive relief in which the plaintiff comes off demanding protection from having to answer my demands because my demand for admissions goes directly to the heart of the matter and if they have to admit all those things then they would have to admit they have no case. Honestly! I've seen them come back with just that kind of statements to the court demanding protection from having to answer my questions. I've honestly seen them tell the judges just that. Your Honor, we need protection from having to answer the defendant's demand for admissions because if we answer them we don't have a case. How dumb can they get??? That just about takes the cake. (LOL). So I like to demand admissions first to see what they do or do not have in the way of proof and documents then once I know that then I know what documents to go after. If they don't produce the demanded documents then I want to know why not hence interrogatories but only if needed. You do it however you want to but that's the way I do it.
Well, I just filed an objection to their demand for attorney fees this morning. I ran into an opinion by Drew Edmondson wherein he ruled that attorneys are not to be allowed attorney fees in SC cases. He quoted a case heard in the OK Supreme Court wherein the Supremes ruled that attorney fees cannot be assessed in SC cases in Oklahoma. So I quoted Edmondson and the Thayer case in my objection. Of course, I don't know how Croy will rule on that but if he denies me then we are most likely headed to appellate on that question. Needless to say, hauling people into SC cases whenever possible is a specialty for LBN. And why not? They file the case, 99% of defendants never show and at least 99 44/100ths of those that do show up and fight goof it up bad while the remaining ,0056 percent can't file any motions except to demand that the case be transferred to district court and they can only do that if they can file a counter claim for a pretty large sum of money greater than the SC limits. Now who in the heck can hope to win against those kinds of odds and when they take all your weapons away from you to start with??? Defendants in SC cases don't have the chance of a snowball in a hot oven. The plaintiff wins every time or nearly so. My case isn't likely to fare any better unless I can figure out some way to hit them they haven't run up against and so hopefully either don't know how to fight or make it so expensive and time consuming for them that they will just give up and move on to easier situations. I'm certain they will find something wrong with my argument but what the heck, I gotta try something or just do like everybody else and just give up and I'm not about to give up without giving it the good old college try. (LOL) As far as I am concerned right now, if they can somehow wiggle out of that argument they are better than Houdini who was a famous escape artist. They are going to have to try their level best because they file thousands of SC cases all over Oklahoma and if they can't collect any attorney fees then that will put a stop to that nonsense real quick so they aren't likely to want to see that happen. We will just have to see how Croy rules and maybe how the appellate court will rule and maybe even how the Oklahoma State Supreme Court and maybe even the 10 Circuit Ct will rule on that matter. If nothing else, it just might turn out to be more fun than they bargained for. (LOL)
Objection to attorney fees in Oklahoma Small Claims I just posted a link to my objection to attorney fees in Oklahoma Small Claims Courts in my Google Docs. Just click on the link below to see the full text of my objection. As I said, I have no idea what will come of it but what the heck. Might as well have some fun in the process of getting shafted.
Re: Objection to attorney fees in Oklahoma Small Claims Looks like you did your homework. Its great that you offer people like myself help with something we know nothing about. Your google doc's site has so many helpful links! I wish you luck with your case. For me this discovery process couldn't have come at a worst time. I feel so overwhelmed and just don't know how I'm going to get it all done. We just found out my daughter has a very rare neoplastic disease and have been running to OKC several times a week for doctors appts. and tests. Today I have to take my grandma to OKC for another doctors appt. on top of all that I have been trying to get my mom moved into a new house. My hope is that sometime within the next few days I will be able to sit down and do my own discovery. I am thinking I will probably take your advise and do one part at a time. I will most likely start with the production of documents so I will be able to see what they have before I do admissions, then make them admit they don't have a case, or I can only hope!
As I said earlier, how you do it is up to you. I'm not at all certain there is a best way to do discovery. I do know how attorneys usually do it which is to use the shotgun approach, all at once. I like to do it another way as I also pointed out but at the same time I'm not sure there is any right or wrong way to do it.
I find this forum to be confusing because I can't figure out how to post a new question, so here goes: I, too, have been served with a summons. Mine came from Equitable Ascent Financial, formerly Hilco Reveivables. The debt is for 13,000 and I'm not trying to contest it, though I'm sure well over half of it is fees and exhorbitant interest. My question is this: Do these companies want to make settlements, and if so, is there a going percentage, or rate? Any direction you can give me would be appreciated. I have to respond to my summons by the 16th, which I fully intend to do. I am willing to arrange a settlement, however, if possible. Junction
I am all for trying to arrange a settlement, but on my terms, not theirs. Problem is that I've never seen any of them really want to settle on my terms. (LOL) Somehow they seem to get the silly idea that they ought to get to dictate the settlement terms and that never works. How do you plan to respond to their summons? I've been doing some research into how people respond to summons and complaint here in Oklahoma. I've looked at a couple dozen or so responses to small claims lawsuits and quite frankly I'm appalled at what I have seen in the way of responses so far. I've only seen one that at least got them to back off and leave her alone but the case is still pending. Has been for the last couple of years and the lady could well be dead by now. She outlined a list of medical problems she has or had and it was long indeed. Cancer and I don't remember what all else she said she had. That and living on an SSI check of $675 monthly. Guess the lawyer figured it wasn't worth pursuing. Quite frankly, I think that should prove to any federal judge that the lawyer didn't do her due diligence investigations and review prior to filing lawsuit. One would think that if the lawyer had done her required review of the case she would have contacted the poor woman to see what she could find out about the defendant and the defendant's situation. Seems to me that failure to do so ought to constitute a federal offense all by itself. Of course I could be wrong about that but I'd say there is a pretty fair chance I'll find out sooner or later.
