You Can Beat Credit Card Debt Collectors

Updated on November 26, 2017
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Brian Gray obtained his degree in Language from Lee University and has been a published author and professional writer since 1985.

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You just received a certified letter in the mail from a law firm, you have a sinking feeling as you sign for this unwanted piece of mail, and when you open the envelope, your fears are confirmed. You are being sued by a credit card company that has come to collect what you left off owing them. All is lost, your world goes into a tailspin, and images of lost wages, raids on your little bank account, and possibly losing everything flash through your mind. Hopeless! You just want to find a hole and drop in it. But, guess what, you are very wrong. You don’t have to lose a thing, and my article will explain why.

Debt collection is a big business always looking for growth opportunities. In January of 1990, credit card debt was at $214 billion, but by January of 2009, during the greatest recession in history, it grew to $964 billion. As the recession began, people were rapidly losing their jobs, and thus, their ability to keep up with the payments on that debt. Good people were being forced into default on their accounts.

So, what did the credit card companies do? They kept on lending, they kept on raking in profits, and they kept engaging in a relatively unknown practice of selling those defaulted debts to companies that had no connection to your original debt. This line alone should raise your eyebrows and cause you to say, “What?” Yes, the credit card company whose card you had been using sold your debt to someone else...and they, the credit card company, promptly washed their hands of your old debt. Stunning, isn’t it?

In 2008 alone, over $123 billion in charged-off debts were sold to companies that then pursued those debts as if they owned them. But they don’t...at least not until you make a fatal mistake and give them the right.

You see, when you signed the original agreement with your credit card company, you signed a contract with your original credit card company. Think about what I just said, because this is where winning your battle begins. Yes, you signed an agreement with your credit card company, but you did not sign one with the companies that bought your debt from the credit card company. Sound crazy? If they don’t have a right to your debt, then why are they coming after you? Because you don’t know your rights, they know this, and they collect billions of dollars every year at massive profits.

Say your original credit card had a final balance of $1,000. The credit card company sells that off to a collection company for $100. Say the collection company only manages to collect $500 from that debt. Not a bad profit. Understand why, then, they pursue these collections? And if I told you that these collection companies have no right to that debt, would that shock you? I mean, they all seem to be following legal procedures when they come after you, don’t they? Yes and no. Yes, they are following legal procedures to trap you in a debt you no longer owe, and no, they do not have any right to that debt...that is, they have no right to that debt until you give them that right. And, yes, millions of Americans make serious mistakes every year and end up owing a debt all over again, a debt that was written off long ago.

What to Do

So, let’s first look at what NOT to do. Do NOT ignore the certified letter. Do NOT miss the court date. You will win if you follow what I am going to outline here; however, the clock begins ticking the minute you sign for that certified letter. Sign it, then begin acting on your rights immediately.

Answer the Summons

Read the letter that comes from the court. It will state how many days you have to file an answer: that is, an answer saying that you plan to defend yourself in court. You must do this immediately.

If it is a magisterial court, you can defend yourself. If it is a higher court, then you need to retain a lawyer. If you opt to retain a lawyer, you do not need a high-priced one. After you have read my article, you can tell any lawyer exactly how to proceed, although he or she should already know this.

Once you have answered the court summons, and you have told them that you definitely intend to defend yourself, the court will set a date for the hearing. Mark that date on your calendar as the day you will walk out of court a winner. Above all, do not miss that court date! If you do not show up in court, you will lose by default, which means that the collection company that is coming after you now owns the debt that was otherwise written off and had become worthless. Miss the court date, lose by default, and you owe money to blood-suckers who will garnish your wages and attach your bank accounts. Attend that court date!

File a Request for Production

Next, and this is very important, you need to file a “Request For Production.” Use the form I have outlined below.

Use this form for Request For Production
Use this form for Request For Production

Mail a copy of this request to the judge in whose court the hearing will be held, and mail a copy to the lawyer who is representing the collection company. Make sure that you send the letter to the lawyer at the collection company via certified mail, return receipt requested. By sending this to the lawyer at the collection company, you are telling him several things. You are telling him that you may just know your rights, that he is going to have a battle on his hands, and most of all, that he may just want to let this one go, because he knows that until you make a mistake, he has no right to the money he is claiming. And, in most cases, when this request for documentation is filed with the plaintiff, they go away and give up. They would rather concentrate on the easy wins, the ones where the person does not respond to the certified letter and, especially, the ones who do not show up in court. By filing the request for documentation, you have already begun to win, and they know this. If you follow through, you will win.

Why You File a Request for Production

Now, let’s look at what you just requested. You have demanded that the lawyer representing the collection company produce—and they are required by law to do so—the original agreement with your signature. You have also requested that they produce all of the receipts for every transaction that you engaged in during the entire life of the use of that credit card. You have requested that they show what you purchased in each of those transactions, and you have requested that they produce your payment record. All of this is legal, and all of it is required in order for them to properly enter the court. Guess what? They do not have this documentation.

Because the original credit card company does not keep this information, they do not sell it to the collection agency. Shocking information, isn’t it? All the collection company has is your name, last known address, the amount you “supposedly” owed when you made your last payment, and the account number. That’s it. So, without a signed agreement with your signature, how can they collect on that contract? They can’t...unless you let them, and if you do not know your rights, you will let them. When the collection company filed suit, they did not attach a copy of the original contract with your credit card company, and this is required by law. The judge knows this, but he cannot act as your attorney, so he has to sit on the bench and watch you sink yourself if you do not follow your legal rights. So, here they are.

What to Say on the Day of the Hearing

On the day of the court hearing, the first thing you want to have in front of you is this statement:

1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

This statement tells the court that you cannot claim to know whether or not this is actually your debt, because no proof of that ownership has been provided by the collection company, Plaintiff. Read, or quote, this statement, and add nothing further to what it says.

Now, a trick here is used when a plaintiff does show up in court in an attempt to trip you up and win through trickery alone. They will call you to the witness stand, brandish a copy of the original contract issued by the credit card company, and ask you, under oath, if you are denying that you signed this agreement with the credit card company.

If you say that you are not denying that you signed the agreement, you lose. You simply state that you are without knowledge sufficient to form an opinion as to the accuracy of the Plaintiff’s claim, and add nothing more. You can repeat this as often as you need to until the judge loses his patience and orders the plaintiff to sit down. The plaintiff is waving a blank piece of paper in front of you. It does not contain your signature, and it is not the original signed agreement. It is worthless.

For your next step, you state the following:

2. Plaintiff has failed to state a claim upon which relief may be granted.

Either no statute was cited, or the complaint fails to state facts sufficient to constitute a cause of action against you, the defendant. Listing the facts of the case may be enough to file a claim, but the plaintiff merely says the defendant owes the money, and this is not enough.

You want to state this:

"Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited."

3. Defendant demands proof of Plaintiff’s ownership of alleged debt.

The law is very clear that the plaintiff has a legal duty to attach any necessary documentation to everything he has filed in court, including in the original certified letter that was sent to you. Did you see any documentation in that letter? No. Why? Because the plaintiff has none. He knows that, the court knows that, and now, you know that, too. Legally, the plaintiff lacks capacity to sue. At this point, you may read the following statement to the court:

The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action.”

What you just told the judge is that the plaintiff, in this case, the lawyer representing the collection company, has not presented proof that he, or his company, owns the debt. Why does he own it? Did you sign an agreement with him? Is he a credit card company? The answer is, no. You do not owe him, or his company, anything. He is required, by law, to show why you owe him, or his company. He will not be able to prove this...unless you have made one fatal mistake.

If you have been scared into making any payment arrangements and have already made payments to his company, then I would seek legal help in unraveling their tentacles. Cardinal rule: do not make payments, or agreements to make payments, to any company that is calling about a debt that you owed someone else. Doing so creates a contract that may be binding.

As in most credit card cases (depending on your state), when a claim is “based upon a written agreement, the pleading shall state specifically if the agreement is oral or written.” If the credit card claim is based upon a "writing," then the plaintiff must “attach a copy of the writing.” This means that, once again, the law requires that the plaintiff produce the original contract with the credit card company bearing your original signature. No blank contracts, no “supposed or forged” copies. The original, and only the original, will do.

Also, in most states, if the lawyer filing the claim for the collection company knowingly files a suit without having that original contract in hand, he is in violation of the law. He has to either have that contract, or he has to have someone with him coming to court who has personal knowledge of that signed contract, and he has neither. When he signed the suit papers, he stated that he had these proofs by his signature. A lawyer filing such a claim should be prosecuted, he deserves to be sued, and you can do so if you have a lawyer representing you.

Next, we come to:

4. Insufficient specificity in a pleading.

When the lawyer for the collection company seeks damages based on a contractual relationship, an agreement or contract, and these damages are ascertainable based on that contract or agreement, then the lawyer is required to plead those damages with specificity. What this means is that the court is going to require that lawyer to include facts concerning when you engaged in purchases that led to that debt, the amount of those purchases, and what those purchases were. You can cite the following in court:

Citing Marine Bank, 25 Pa. D. & C.3d at 267-69. A “defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest.

Next on the list:

5. Defendant cites Failure of Consideration:

Whereas no exchange of money or goods occurred between the plaintiff and the defendant, therefore, defendant cites Failure of Consideration.”

What you are saying here is that there was never any exchange of money or items of value between you and the collection company, between Plaintiff and Defendant. You tell the court that you never entered into any contractual or debtor/creditor arrangements with Plaintiff. Consideration is a necessary fact that the plaintiff is required to show in order to prove that you and the collection company had a valid, binding and enforceable agreement or contract. Consideration means that the collection company was giving you a service in exchange for your money. Were they a credit card company? Were they giving you credit? Not likely. Therefore, they were not giving you any “consideration,” and you, therefore, do not have a contract with them.

Furthermore, the collection company would be required to show the terms of that agreement in court. Where is their contract with you? There is none. Because they cannot produce any such agreement or contract, this is “failure of consideration.” They have no case, just one more reason they knew that they should not come to court, one more reason the judge is compelled to dismiss the case against you.

Next, we come to:

6. Repudiation. Plaintiff is not named in any alleged agreement that is purported to have been entered into between Defendant and Plaintiff.

Here, you state that the plaintiff has not produced any contract between Defendant and (your collection company), naming Plaintiff as a party to such contract. Defendant repudiates any claim to such a contract existing. As there was no “meeting of the minds,” a necessary element of a valid contract, no contract exists. The plaintiff is not an assignee for the purported agreement, and the plaintiff has not produced any evidence that supports any related claims or assumptions. The lawyer for the collection company has failed to produce any document that shows that your original credit card company has named him, or his collection company, as assignees, nor has he even shown that the original credit card company has any knowledge of his actions, or that the original credit card company has even given this lawyer, or collection company, all rights and control.

If a credit card company did assign the debt to a third party, the creditor would then lose his rights to collect later. This means that your credit card company probably took a tax credit, an insurance write-off, or some such action that makes the credit card company unable to collect the debt after that point. They destroyed their records, and they moved on. The collection company does not have the original agreement with your signature, and they know that they have no case against you...unless you make the mistake of making an agreement with the collection company and then making a payment on it. Since there was no “meeting of the minds” between you and the collection company, a necessary element required to create a legal and binding contract between the two of you, their claim is repudiated.

If your original credit card company had made an agreement with the collection company, you were not a party to those terms. Just because an assignment clause exists in a credit agreement does not mean that it is sufficient to create a new obligation with the collection company. The assignment clause merely takes away the rights of your original credit card company to collect if they decide to assign it to another company, in this case the collection company. The collection company would then have to offer you a new contract, you would have to agree to its terms, and you would finally have to sign this new contract. If you have not signed a contract with the collection company, you owe them nothing.

In court, if you had to argue this, you would simply state:

"Plaintiff is not an assignee for the purported agreement, and Plaintiff has not offered any evidence to the contrary. As there is no proof offered, assuming that it exists would create an unfair prejudice against the Defendant."

Now, we move to:

7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

You can simply state,

“Whereas no relationship exists between Plaintiff and Defendant, and whereas Defendant never signed a contract or agreement with Plaintiff, Defendant cites Lack of Privity.”

Privity is the legal term for a close, mutual, or successive relationship to the same right of property, or the power to enforce a promise or warranty. No relationship exists between the collection agency (Plaintiff) and Defendant. Defendant never signed a contract or agreement with the collection agency. A collection company cannot collect any amount of money that is not permitted by law or by agreement.

"The Fair Debt Collection Practices Act states that the debt collector cannot collect any amount of money that is not authorized by the agreement creating the debt or permitted by law. Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.”

Nearing the end of our list, we come to:

8. Plaintiff's complaint violates the Statute of Frauds.

Plaintiff claims to have a contract with you; thus, Plaintiff has to produce it, because such a contract falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.

In order for the collection company to state that it had an agreement with you, it has to show how it was going to benefit you. For example, was the collection company going to issue you credit like a credit card company? Highly unlikely. Therefore, to say that it had a contract with you is fraudulent, because the collection company cannot provide the same services as the credit card company did. It would be like the credit card company selling your contract to another company that required you to sell your house to them at the end of one year. This new requirement would not be something that you agreed to in the original contract, and since there was no “meeting of the minds,” you did not come to any agreement with the collection company.

Here, then, you simply cite statute of frauds. Research your state’s case law to see how your state stands on this point. In any case, because the collection company cannot provide the same services as the original credit card company, adding this new requirement is breach of contract; thus, we invoke “statute of frauds.”

Lastly, we come to:

9. Scienti et volenti non fit injuria: “An injury is not done to one who knows and wills it.”

The laws in this country do not provide a remedy for a collection company that knowingly and voluntarily takes on a bad debt and then goes after the debtor in an attempt to collect that alleged debt. What the law says is that an entity cannot place itself in harm’s way and then sue for damages. Thus, “scienti et volenti non fit injuria.” That would be like you standing in front of a speeding car, then suing the driver for damages. You put yourself in harm’s way, you deserve no damages. The collection company bought a debt that was bad, then wanted it paid. Just cite "scienti et volenti non fit injuria," and the judge will know what you mean.

More Things You Should Know

Statute of Limitations

Most collection companies know not to go after debts that are past the statute of limitations, but, there are still those who do. But, note this very important point: once the debt has passed the statute of limitations, they cannot take you to court. They can contact you and ask you to pay the outdated debt, but they cannot take you to court. However, if you agree to make any payments to them, or acknowledge to them that you owe the debt, you may reset the clock, so to speak. This is called "re-aging the debt." Be very careful with regard to this factor. So you should know that most States will not allow claims on debts that are more than three years old, though in other states that statute of limitations is four years. There are also a few States that go out even further. You want to research this so that you know what your State allows, because the collection company pursuing you may have waited too long, and you may have a right to have the suit thrown out on this technicality alone.

Is the Debt Satisfied?

As I stated earlier, quite often, the credit card company has made an insurance claim, or taken a tax deduction, and this is known as accord and satisfaction. This renders the debt satisfied, and, legally, no one should be able to attempt any further to collect this debt. Your collection company knows this, yet they are still trying to take you to court, because they know that if you do not show up, the law then reverses everything, and you end up owing them. So, go to court. Just the fact that you file an intent to defend yourself lets them know that you are aware of your rights, that their best bet is to call off the bluff, and that they should go find some other person to try to fool into entering a contract with them for a debt that is otherwise uncollectible.

Debt Collectors Need To Validate the Debt

Remember that the Fair Debt Collection Practices Act requires all debt collectors to validate the collection upon request of the purported debtor. The collection company will not be able to, so, stand your ground with everything that I have written in this article. They deserve to lose, because they know they are acting illegally, yet they use all kinds of trickery and deceit to win. You can fight back by simply using the law and your legal rights.

Here is a very valuable article to read: https://www.nolo.com/legal-encyclopedia/debt-collection-defense-requiring-that-the-collector-document-the-debt.html

The Attachment Rule

When a junk debt buyer sues you, most State rules require, as per the Attachment Rule, that the debt collector must attach a copy of the account or written contract, and if they cannot do this, then they must state why the document is not attached. If the collector fails to do this, then you can file a motion with the court requesting that the court require them to produce the missing documents. Without these documents, you may petition the court to dismiss.

The Amount For Which You Can Be Sued In Small Claims Court

There are limits to the amount a collector can sue for in Small Claims Court. This will vary from State to State, so research your locality to see what they are.

Check Every Rule, and Good Luck

Make sure that you check every rule that I have quoted to make sure that there are not any deviations in your state. State laws will vary, and State laws vary from Federal laws, so do your homework. I am not a lawyer, but I used everything I have written herein to defend myself against a collection company, and you can already guess what happened. They did not show up in court, and the judge dismissed the case against me. It worked for me, it will work for you. And just in case you are not comfortable arguing in a court of law, if you can afford it, obtain the services of an attorney who is not too expensive.

The Federal Trade Commission explains your rights on its website: https://www.consumer.ftc.gov/articles/0149-debt-collection.

You have a right to win. Good luck to you.

Brian Gray

Additional Materials For Your Help

This article from the Loyola Consumer Law Review describes how creditors file improper collection complaints.

In the end, this article contends that plaintiff-creditors file improper complaints as part of a pecuniary calculus in the collection industry:

1) Original and secondary creditors file objectionable complaints (and cannot amend those complaints when challenged) since original creditors do not maintain the credit card debtor’s account documents at the outset of the creditor-debtor relationship (which means that secondary creditors cannot receive account records as part of an assignment); and

2) necessary account records are not retained because it is more economically efficient to file many unsupported claims than it is to expend resources in document retention and to file fewer substantiated claims.

The article describes how Pennsylvania courts require specific pleadings, and debtors can challenge pleadings that aren't specific enough.

Unlike federal courts, which require notice pleading, Pennsylvania courts demand fact specific pleading from both plaintiffs and defendants. At the outset, a pleading must set forth the “material facts” of the cause of action in a “concise and summary form.”

As in most credit card cases, when a claim is “based upon a written agreement, the pleading shall state specifically if the agreement is oral or written.”

If the credit card claim is based upon a writing, then the plaintiff must “attach a copy of the writing.”

Finally, “[a]verments of time, place, and items of special damage,” such as credit card charges, must be “specifically stated.”

Illegal Collection Efforts in the News

Federal Government Orders Firm to Stop Unsupported Collection Lawsuits

Pressler & Pressler, a New Jersey firm, was ordered in 2016 by the Federal Consumer Protection Bureau, which called it a "lawsuit mill," to stop filing unfair collection lawsuits. NJ.com reported that FCPB's order said that "before threatening litigation, agents must have original account-level information with the consumer's name, the last four digits of the account, the claimed amount, a chronological list of all the prior owners of the debt, a copy of the bill of sale and other records, the orders say."

Fraudulent Debt Collection is Big Business

Six people in North Carolina agreed to plead guilty to a $6 million fraudulent debt collection conspiracy that operated from 2011 to 2015, according to the Charlotte Observer.

This is possibly the best one yet: https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

Information From NOLO on Debt Verification

Nolo.com summarizes the principle of "debt verification" with advice similar to what I've given here that applies to many states. NOLO says:

If a debt collector sues you, most state and local procedural rules put even heavier documentation requirements on both the debt collector and creditor. In many states, a creditor or debt collector that is suing for collection of an account must:

  • attach to the complaint a copy of the account or written contract or agreement, or
  • state in the complaint why the account or document is not attached.

This is often referred to as the “attachment rule.”

If the creditor or debt collector doesn’t do this, you may be able to get the lawsuit dismissed. Or, you can ask the court to require the creditor or debt collector to provide the missing documentation and information. This is often called “requesting a more definite statement.” In either case, you’ll have to prepare and file a formal motion with the court.

What Documentation Must the Creditor Provide?

But what must the creditor provide by way of documentation? At a minimum, it must produce:

  • A copy of the original written agreement between the parties, such as the loan note or credit card agreement, preferably signed by you.
  • If the account has been sold to another creditor, then that creditor must prove that it has the right to sue to collect the debt. This usually means producing proof that the debt was assigned to it. Often such proof will be a bill of sale, an “assignment”, or a receipt between the last creditor holding the debt and the entity suing you.

What If the Collector Cannot Produce the Assignment?

If the creditor or collector suing you fails to produce proof of the assignment, then you can ask the court to dismiss the lawsuit. Again, you’ll have to prepare and file a formal motion with the court.

Counterclaims if the Collector Did Not Previously Verify the Debt

If the debt collector suing you previously did not verify the debt after you timely requested debt verification, you may file a counterclaim against that debt collector within the same lawsuit, requesting your own damages. Some states also allow you to countersue for damages against the creditor itself for failure to verify the debt.

An Important Article To Read From The New York Times

https://www.nytimes.com/interactive/2014/08/15/magazine/bad-paper-debt-collector.html

This is an eye-opening article written by Jake Halpern for the New York Times about the practice of junk debt buyers. I highly recommend reading this so that you can see what is going on behind the scenes with regard to charged off debts. This is a huge money making business, with junk debt buyers raking in billions.

Here is a quote:

"From 2006 to 2009, for example, the nation’s top nine debt buyers purchased almost 90 million consumer accounts with more than $140 billion in 'face value.' And they bought at a steep discount. On average, they paid just 4.5 cents on the dollar. These debt buyers collect what they can and then sell the remaining accounts to other buyers, and so on. Those who trade in such debt call it 'paper.'"

Another thing Halpern pointed out was that original creditors do not care what happens to the debt after they have sold it off to junk debt buyers. Here is another very enlightening quote:

"According to American Banker, in a series of transactions in 2009 and 2010, Bank of America sold millions of dollars of charged-off debt to a company in Denver called CACH. In the sales agreement, Bank of America said it would not make “any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever” about the accuracy of the account information it was selling."

More from Halpern's article:

"In 2009, the F.T.C. said in a report: 'When accounts are transferred to debt collectors, the accompanying information often is so deficient that the collectors seek payment from the wrong consumer or demand the wrong amount from the correct consumer.'”

Here is one more reason from Jake Halpern's excellent about article why you should be questioning the legal right of the entity claiming to own your debt:

"The notion that a portfolio of debt could be stolen may seem improbable, but plenty of debt brokers are all too willing to sell 'bad paper.' Such brokers sometimes 'double sell' or 'triple sell' the same file to multiple unsuspecting buyers. Other times, a broker may sell paper that he does not own and obtained by nefarious means."

Letter Requesting Validation of Debt

Before you are notified that you are being sued by the plaintiff, but once the junk debt buyer notifies you that they are intending to collect the alleged debt, send them this letter requesting validation of the debt, and give them 30 days to comply. Save proof that you mailed this letter. Here is the letter:

I am sending this letter to you in response to a notice I received from you on (here, cite the date of the letter you received). Be advised that this is a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested. This is NOT a request for “validation” or proof of my mailing address, but a request for Validation made pursuant to the above named Title and Section. I am hereby requesting that your office provide me with competent evidence that I have any legal obligation to pay you. Please immediately provide me with the following:

*What the money you say I owe is for;

*Explain how you calculated what you say I owe:

*Provide me with copies of any papers that show I agreed to pay what you say I owe;

*Provide a verification or copy of any judgment if applicable;

*Identify the original creditor;

*Prove the Statute of Limitations has not expired on this account;

*Show me that you are licensed to collect in my State; and

*Provide me with your license numbers and Registered Agent.

If your offices have reported invalidated information to any of the three major Credit Bureaus (Equifax, Experian or TransUnion), said action may constitute fraud under both Federal and State laws. Due to this fact, if any negative mark is found on any of my credit reports by your company, or the company that your represent, I will pursue legal action against you for the following:

*Violation of the Fair Credit Reporting Act

*Violation of the Fair Debt Collection Practices Act

*Defamation of Character

If your offices are able to provide the proper documentation as requested, I will require at least 30 days to investigate this information, and during such time, all collection activity must cease and desist. Also, during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel. This includes any information to a credit reporting repository that could be inaccurate or invalidated, or verifying an account as accurate when, in fact, there is no provided proof that it is.

If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file, and a copy of such deletion request shall be sent to me immediately.

Further, no telephone contact shall be made by your offices to my home, or to my place of employment. If your offices attempt telephone communications with me, including, but not limited to, computer generated calls or correspondence send to any third parties, it will be considered harassment, and I will pursue legal action. All future communications with me MUST be done in writing and sent to the address noted in this letter.

What Is Subrogation?

What is subrogation? Subrogation is the doctrine that allows a third party to be substituted for the creditor. The party being substituted agrees to pay the original creditor for the debts, and this allows the third party, known thereafter as the subrogee, the rights to collect the debt as were originally held by the original creditor.

Here is the legal definition: Subrogation is the substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. The one who initially discharges the obligation is called the "subrogee" and the party who is compensated is the called "subrogor." In other words, the subrogee stands in the shoes of the subrogor.

Subrogation can operate through a written contract titled a “subrogation agreement.” Since subrogation is an equitable remedy, all defenses and theories that apply to equity laws are equally applicable when dealing with subrogation issues.

There are general rules that shape and guide issues of subrogation.

Legal, or equitable, subrogation is not available to volunteers. What this means is that an entity with no connection to the debt cannot step in and claim the status of subrogee. The subrogee must satisfy the debt, because he does so to secure his own personal interests.

Legal subrogation is not available until the subrogor is fully compensated. This means just what it says, i.e., the original creditor must be fully compensated. More on this will follow.

Conventional subrogation does not require full compensation of the subrogor. “Conventional subrogation” is technically not the same as “legal subrogation.” Conventional subrogation is created by contract, while legal subrogation is implied by law and is based on equitable considerations. An entity who interjects themselves into the debt situation will not be granted rights under subrogation without a valid written agreement.

There are three entities involved in the proper interpretation of subrogation. They are: the entity that causes loss, the entity that is subjected to that loss by the loss causer, and the final one of the three is the loss insurer. The foundation of the laws that were written regarding subrogation are restitution, deterrence and fairness, and these three bases form the right and proper goals of any future legal evolution. All laws coming since this foundation should be weighed against that foundation and its original intents. The laws of subrogaton were NOT created for the purpose of self-enrichment schemes concocted by junk debt buyers. The laws of subrogation are being abused and corrupted by junk debt buyers.

For the moment, I hope these few statements will give you, the reader, some material to research and study. I will be adding more here when time permits. Basically, if you read the erudite New York Times article written by Jake Halpern which I linked and referenced, this should begin to give you even more tools with which to fight these blood suckers. They need to show more than just that you once upon a time may have had an account with some credit card company. What is their legal right of subrogation of the debt? How do they own your alleged debt? Where is their contract? Where are their proofs? Research this, study this, and hammer it home! Make them lose!

More About Subrogation

Traditionally, credit card companies attempted to collect their own debts. If this initial process was ineffective, then the credit card company assigned the accounts to collection companies. If the first collection company failed to collect, then the credit card company would re-assign the account to another collection company. Eventually, the credit card companies deemed this process too time-consuming and unproductive to be of financial value. They soon hit on a new idea—sell the debt. They got rid of their collection departments and went into a new business venture for selling off bad debt.

Around 1999, the credit card industry began to analyze the value of purchasing subrogation rights. It sounded like a great idea at first, but the credit card industry decided against it, because there would be legal problems once a case got into the courts and some smart lawyer decided to challenge the plaintiff with “First Dollar,” the term that refers to dealing with the insured’s (the credit card company) deductible. If one studies case law, various States require that the insured (the credit card company) be made whole before the insurance carrier can reap the benefit of subrogation. Under this statute, the credit card company has to get paid “first dollar” until the original creditor has been “made whole.” If the claim is purchased from the insurance company, what benefit is there for the insurance company to go to court on behalf of a junk debt buyer? Further, if the insurance company goes to court, how would it look for them to have their attorney subpoena the credit card company? So, the collection companies found an easier way around this difficulty.

They found that they could sue the debtors in court, the debtors would know that they owed the money, the debtors would run and hide, and therefore, once the case got to court, and the debtor did not show up, a default judgment would be issued, the debtor would now be indebted to the collection company, and a new and enforceable contract would now exist between the collection company and the debtor. And here is the Achilles heel of this: when a defendant answers, and a trial is scheduled, the insured and the claim representative are absolutely necessary in court in order for the plaintiff to prevail!

So, here are some things to keep in mind: Do not discuss the debt on the phone with collection companies, as they are recording your call and will use your admissions in court. Do NOT sign any promissory notes, as this is entering into a new and binding contract to pay the collection company the amount they are requesting. Answer the summons when you are sued, and tell the court that you will appear. Then, prepare your defense wisely, and go to court ready to win.

Transferring Your Account

All credit card companies can place a clause in your original credit card agreement which will read something like this: "We may transfer your Account and our rights under this Agreement to another person or company. That person or company will take our place in this Agreement. You must pay that person or company the amount you owe us on your Account (instead of paying us) if you are asked to do so." For this, I go back to one of the earlier points in my article: Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.


The collection agency does not have any signed agreement with you, and chances are that they probably do not even have a contract with the original creditor showing legal right of subrogation of the debt. The clause in the original credit card agreement is read to mean that the credit card company can transfer your account to another credit card company. While this point may be debated by some, I would argue in favor of the defendant and against the plaintiff on this one.

The Order of Transition in Credit Card Debt

Once the Account Becomes Delinquent - At 180 days from the last point of payment activity on an account, the company will usually designate that account as uncollectible. However, some companies may do this sooner, or wait a little longer, and that is their prerogative. When the company decides on this action, it will “write off” the account and list that debt against its earning for accounting purposes. This allows the company to reduce the amount it owes on taxes. The debt is now listed as “charged off.”

Charged off debts are still owing -The credit card company still owns the debt, and you still owe them the final balance. At this point, the credit card company can decide to pursue the debt themselves, or they can sell it to a junk debt buyer. If the bank sells the debt, they will adjust their accounting accordingly once the debt has been sold.

Forgiven Debt - The credit card company has the option of forgiving the debt, which means that they no longer expect you to pay. This, thus, makes the debt an income for you that must reported to the IRS, if it is over $600.00 , and you will then be issued a form 1099-C. This also means that no one should be coming to collect from you. The debt was forgiven.

Credit Report - Until the debt is paid in full, it will remain showing as unpaid on your credit report.

A Deceptive Collection Practice

Junk debt buyers often want you to think that they are the original credit card company coming after you. For them to state this, when it is not fact, is fraudulent and illegal. But that does not stop them from trying to make you think that they are representing the original credit card company by using clever wording that skirts close to the edge of illegal. Here is an example of one letter from a collection company.

"Dear (Your Name Here),

The above referenced account has been referred to our office for collection of the balance in full. Previous attempts have been made by our client to resolve this debt voluntarily. As of this date, those attempts have not been successful. (Name of the collection company here) has been authorized by our client to provide the necessary effort to collect this debt. We recommend that you take advantage of this opportunity to pay the balance in full to prevent further collection activity."

Below this paragraph was the obligatory notification that you had 30 days to dispute the validity of this debt, but what most people tend to do is this; they read this first paragraph, think their original creditor is coming after them, they panic, and their brain fogs over. What are they missing? Lots!

First of all, in this particular case, this was a letter from a junk debt buyer, not the original creditor. So who, you may ask, is "their client?" Good question! Because it most certainly was NOT the original creditor. Why? Because this account had been closed and charged off due to a bankruptcy taken by the person who held the original credit card. That account was written off in 2003, and here was this junk debt buyer posing as representing the original creditor...in 2009! This account was closed and now was time barred by statute of limitations, yet here was this junk debt buyer insinuating that they had a "client" relationship with the original creditor. A good lawyer could get this junk debt buyer in a lot of trouble.

Consider this as well, the junk debt buyer is warning the recipient that they should pay the "full balance" so as to "prevent further collection activity." First of all, this junk debt buyer bought this bad debt for about one cent per dollar, so, for their investment of $150, they were trying to collect $1500. It reads: "Please detach the upper portion of this notice and return with your payment in the enclosed envelope." Nice try, blood suckers.

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    • profile image

      Evan 2 hours ago

      Brian,

      After filing a Motion to Compel I received from the Plaintiff a packet of paperwork. The paperwork included quite a few billing statements and terms of a credit card agreement from the creditor. They produced no signed contract or agreement.

      I used the example for production which you provided in your article. The plaintiff objected to each request stating "objection to the request for production as it is overly broad, and unduly burdensome. Without waiving the objection see the attached Account statements. Discovery is ongoing, and Plaintiff reserves the right to amend or supplement this response". One interesting response in regarding producing a contract between the plaintiff and defendant was the Plaintiff's claim is based on an account and not a contract executed by Plaintiff and Defendant.

      The Plaintiff asked the court for a 30 day extension to respond to the production filed 11/02/2017. This packet was filed 12/14/2017 exceeding 30 days.

      My question to you is how should I respond to the court since they did not only fail to produce the documents within 30 days and also did not produce all or fully the documentation I requested? In addition, what advice do you have as a response to the objections they made?

      Thank You!!!

    • profile image

      Vickie 6 hours ago

      Hello Brian,

      So if I do lose I can appeal the judgement. I can't afford a lawyer I'm on social security disability. So, I would have to do this on my own. But, from my understanding that when I go to a circuit court three process starts all over again. And what I said in district can't be used. I'm I correct on that? That way I know to never admit to owning the debt. If you have any suggestions or information for me that would be helpful I'd appreciate any info. I won the first one against LVNV, so I think I can win this one I hope. Thank you so much for this site and you're information. I'm hoping that the paperwork that the judge scolded the plaintiffs lawyer about just might work in my favor. But, we will see how it goes.

      Thank you and have a great and happy holiday!

    • riverrat48 profile image

      riverrat48 9 hours ago

      Thanks Brian, I agree and I'll keep you posted :)

    • Hanavee profile image
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      Brian Gray 12 hours ago from Pennsylvania

      bellesmom,

      If you sent them a letter requesting validation of the debt, and all you got was that one statement, they have not provided sufficient proof to validate the debt, nor have they shown sufficient proof to even file a suit. Where is the original signed contract with your signature on it? Where is their proof of legal right of subrogation of the debt? Insist on these things, and study my article well so that you can see what is lacking in their response. Also, read as many of the posts on here as possible, because many people have posted their winning strategies.

      Good luck to you,

      Brian

      P.S. If you are too embarrassed to speak to your attorney friend, maybe you could pay for a one-hour, private consultation with another attorney.

    • profile image

      bellesmom 16 hours ago

      Hello. Thank you for your help.

      In August, I received a letter from a company called Midland Funding for a credit card that I had with Home Depot. I never heard of Midland Funding, so I did some research and found out that the company buys defaulted accounts just like you describe. The letter says the balance owed is $2000 (that's a round number)

      I did more research and found your information. I sent a letter requesting validation that included everything you suggested.

      On November 21, I got a letter from Midland that had a copy of a credit card statement that showed Home Depot and the same balance that the company is demanding in the first letter.

      The company did not provide anything that showed what the money they say I owe is for, a calculation, that it is licensed to collect in my state, or anything else.

      What do I do now? I know an attorney, but I'm embarrassed. Also this is not the only debt I owe.

    • Hanavee profile image
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      Brian Gray 19 hours ago from Pennsylvania

      riverrat48,

      I would file the motion to dismiss now. That is my personal opinion.

      Brian

    • Hanavee profile image
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      Brian Gray 19 hours ago from Pennsylvania

      Betsy,

      You said the magic words for your adversary: "I don't have...time to be in court." That is all they want, for you to not show up so that they then get a default judgment against you. Of all things, you most want to be in court if you are being sued. That is the highest priority.

      And when you say that you are judgment proof because of your low income, no matter how small your paycheck, they can garnish your wages and bank accounts. Your best bet, if you cannot hire an attorney, is fight them in court using the methods outlined in my article, as well as in the many posts on this site posted by people who shared their winning strategies. You cannot afford to avoid these people.

      Study the many strategies that are posted on here by people who won. Do your homework, go in there prepared to win, and make them run.

      Brian

    • Hanavee profile image
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      Brian Gray 20 hours ago from Pennsylvania

      Vickie,

      By admitting that you had an account with the original creditor, you may have given them the win. The answer needed was that they had not provided you with sufficient proof to confirm or deny their allegations. This is one of the reasons I always recommend trying to hire an attorney, or at least paying for a one-hour, private consultation with one. Going it alone is tough, especially since you are going up against an attorney who works for the junk debt buyer.

      Brian

    • riverrat48 profile image

      riverrat48 29 hours ago

      Brian, I am learning so much through your posts to myself and others, thank you so much. Would you go ahead and respond to the documents with a motion to dismiss within 30 days or would you wait for court?? I think I've got several good arguments, some of which is just too much to type but in a nutshell, we have evidence of this lawfirms illegal actions in the past. They previously put an illegal lein on our property, 3 years later we got our money back. Long story but the point is I can drag that up in court and have my husband testify if they assert I am being unreasonable. Whatcha think of that? (That's my backup plan.) (It was the huge Portfolio Recovery Lawsuit, it's easy to find in a search.)

    • profile image

      Betsy 30 hours ago

      Hi,

      I’ve been sued by Discover for a little under 3000 dollars. I am basically judgement proof since I make very little money as a part time worker and a full time graduate student. Should I answer the suit and ask for a request for production ? I have gotten a letter stating the Discover closed my account because of none payment of 180 days so I doubt this is really Discover suing! Please advise how to go about this. I rather not go to court because I don’t have money for an attorney or time to be in court!

    • profile image

      Vickie 33 hours ago

      Hello Brian

      I think I lost the lawsuit against Midland funding. They came up with a signed affidavit signed by City bank with was through sears credit card. They said they sent me a copy of this which they didn't. I noted to the judge. I never seen those copies nor signed any such agreement. I also noted to the judge that they don't have a witness to this signed affidavit. Only a notory stamp no witness to the signature. Which I judge noted that to plaintiff as well. The

      They asked if had an account with sears I said yes with sears not midland funding. I only owe the debt to the original creditor. I read all the statements on your site. But, they didn't have a signed contract or agreement to show. I told the judge I never did business with midland funding or signed any contract or got any credit or valuable property from them. Did I mess up by saying I did business with Sears / Citibank?

    • Hanavee profile image
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      Brian Gray 43 hours ago from Pennsylvania

      Dave Hadley,

      If the original creditor is listed on the court documents as the plaintiff, I would contact the original creditor and ask them if they are indeed the plaintiffs in this case. Because, if the firm filing this suit is NOT the original creditor, in this case American Express, then filing a court case posing as American Express when the plaintiff is not, such action constitutes fraud and is punishable by law.

      Usually, credit card companies write off bad debts after 180 days have passed with no collection on the account, and in many cases, they are sold off at junk debt auctions, but I would still contact the original creditor to see what action might be ongoing with them.

      Brian

    • Hanavee profile image
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      Brian Gray 43 hours ago from Pennsylvania

      Courtne Hauser 1,

      I would word the ending of this statement thusly: "Defendant has requested from Plaintiff their legal proof of their Right of Subrogation of Debt, thus showing that Plaintiff has the right to collect on said debt and further showing that the original creditor was not issued a tax credit or insurance payout for said debt, as pursuing this debt without legal right of subrogation of the debt would constitute fraud."

      Yes, I would also remind the court that the plaintiff failed to supply court requested documents in a timely fashion.

      The plaintiff cannot misquote or assume the provision of mortgage law to state that the original creditor is not required to maintain records (at least that is how I read this), and the plaintiff should have had sufficient proof of their claims before filing suit in court. Filing suit without sufficient proof to back a claim results in the plaintiff lacking legal standing in the court. I would state that plaintiff lacks legal standing.

      The plaintiff is required under the submission of a request for production to show how they arrived at their complaint of a total amount being owed and how it was computed. I would demand this in court. They cannot arbitrarily come up with some nefarious amount. There has to be a bona fide accounting.

      Brian

    • Hanavee profile image
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      Brian Gray 44 hours ago from Pennsylvania

      Caitibird,

      Where is the contract between you and the collection company? Where is there any agreement between you and the original creditor allowing for the transfer of this account? How does any document that the plaintiff has provided prove that you owe them? How do these documents show a contractual agreement between you and the collection company?

      Further, where has the plaintiff shown proof of legal right of subrogation of the alleged debt? Where is the proof that the plaintiff has satisfied the debt by paying the original creditor the entire amount alleged owed?

      These are the important items that need to be addressed.

      Simply supplying two statements does not prove the amount alleged. How do they come up with their totals? And you are right, how do any of these documents they have proffered show that they are due anything?

      They need an agreement between you and the plaintiff showing that you agree to pay them. They need an agreement between the plaintiff and the original creditor showing that the original debt is satisfied in full by the plaintiff in order for the plaintiff to claim damages and loss by the defendant.

      I hope these points make sense to you.

      Brian

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      Dave Hadley 2 days ago

      Hello Brian, thank you for being so helpful! I got served yesterday from ZWICKER & ASSOCIATES. Do you know the relationship between ZWICKER and American Express? American express is listed as the Plaintiff on the case. Will challenging the Right of Subrogation be helpful in my case? Thanks again

    • profile image

      Courtne Hauser1 2 days ago

      Scott and Associates never filed their Bill of Particulars wit the court. They court requested still that we do a grounds for defense so these are the first two points that I have.

      1. Defendant has requested on several occasions from the Plaintiff a Request for Production and Plantiff has failed to produce the requested information therefore. Defendant is without......

      2. Defendant has requested from Plaintiff a Right of Subrogation of Debt showing that Plaintiff has the right to collect on said debt and showing the original creditor was not issued a tax credit or insurance payout for said debt as this would be considered fraud.

      That is all I have so far as I am not sure what else to put in there. Can you put in there that they failed to produce the records the court requested? Any other points I should add to this?

      Scott and Associates sent me a letter based off of the second letter I had sent to them before our first court date and in it they are citing the Federal Trade Commission and that Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.

      I am assuming they are going to use this as their defense? Wouldn't they still have to submit a Bill of Particulars for the court since the court requested it?

      I know i have asked several things here just want to make sure I have all my basis covered.

    • profile image

      Caitibird 2 days ago

      Being sued in CA by Cavalry for a Citibank CC. Cavalry attached to their Complaint, two statements, an assignment which only transfers "accounts" yet has no language as to transferring any right, title or security in those alleged debts, a bill of sale of sorts showing Citi sold a bundle of accounts to Cavalry yet the consideration and accounts are blacked out, and a separate excel spreadsheet printout of my account which bears no proven connection to the other pages submitted as the assignment. I believe a proper assignment would require language as to rights, title, etc. to be valid but I am having a difficult time finding law to support that. Any help would be appreciated.

    • riverrat48 profile image

      riverrat48 2 days ago

      Exactly my thoughts about rule z and I already read it....so it's not just my interpretation. Thanks, will keep ya all posted.

    • Hanavee profile image
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      Brian Gray 2 days ago from Pennsylvania

      Evan,

      A non-oral hearing is when the court reads the paper pleadings and makes a decision. The date is the deadline for filing those pleadings.

      Brian

    • Hanavee profile image
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      Brian Gray 2 days ago from Pennsylvania

      riverrat48,

      They bought a bunch of accounts. This does not prove that they own your original debt with your original creditor, as they have not satisfied the premise of law, that being, the burden of proof always rests upon the plaintiff. The plaintiff has made basically three claims, i.e., that you owe an alleged amount, that this was owed to an original creditor, and that they now own this debt.

      How do they arrive at the total that they allege you owe? How do they prove that this was owed to the original creditor? How do they prove that you owe them? Further, how do they show legal proof of their right of subrogation of the debt?

      Brian

    • Hanavee profile image
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      Brian Gray 2 days ago from Pennsylvania

      riverrat48,

      This is a scattershot approach, and they are hoping that the obfuscation keeps you running. Take each of these items and object to them on the basis of each weakness. For example, "...appear to show an account with my name and Soc was sold to JCS." What is their proof that this is more than "appears to show" and legally proves beyond a reasonable doubt that this is your account? How do 10 statements prove the sum that they are alleging you owe?

      Here is a link to Rule Z for you:

      https://www.federalreserve.gov/bankinforeg/regzcg....

      As I read Rule Z, it pertains to mortgage lenders, so I would ask the plaintiff to show how this rule applies to them.

      Brian

    • Hanavee profile image
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      Brian Gray 2 days ago from Pennsylvania

      riverrat48,

      A quote from Nolo:

      "Failure to State a Claim. Most states require credit companies or the debt collector collecting on the account to attach to the complaint a complete set of documents. These documents usually consist of the original contract and any document showing that the company suing you actually owns the debt. If the credit card company or debt collector doesn't attach these documents, you can argue that it failed to state a claim."

      Brian

    • profile image

      Evan 2 days ago

      Brian,

      The Plaintiff failed to produce the documents I requested within 30 days which was granted by a Motion for Time Extension by the Plaintiff. I sent the court a Motion to Compel and in the alternative a motion to dismiss with prejudice. Previously, our pre-trial was set for 1/18. I checked the docket today and the court has issued a non-oral hearing on 1/4. I could not find much information on this type of hearing. From what I gather the court is going to make a judgment at this hearing based on the motions and discovery filed. Do you have any further insight on this type of hearing? Does this appear to be in my favor and/or should I seek an attorney to be present at this hearing? Thank you sir.

    • riverrat48 profile image

      riverrat48 3 days ago

      Ok, Brian, the printout shows I am on a list of accounts. The original creditors name is not even on the documents. There are 10 months of statements, none of which show any purchases, only amount due etc. Even if the creditor is not required to keep the documents for more than 24 months, how is that my problem. I mean if they were dumb enough to buy the debt without the contract.......I need to find the law about having a right to see the contract.

    • riverrat48 profile image

      riverrat48 3 days ago

      Ok, so I did get a package today dated the 4th. So this is what it contains a printout from a batch purchased that appear to show an account with my name and Soc was sold to JCS. All accounts but that one are redacted. along with 10 Statements from the OC. They sent a legal response stating because of Regulation z OC is not required to keep documents after 24 months.

    • riverrat48 profile image

      riverrat48 3 days ago

      Would you happen to know where the location is of a law that they must attach a contract TN or Federal law. I would like to quote that in my motion.

    • Hanavee profile image
      Author

      Brian Gray 3 days ago from Pennsylvania

      riverrat48,

      I would file a motion to dismiss with prejudice, and I would cite the reasons that you gave. Politely (that is the operative word here) inform the court that the plaintiff failed to produce the required documents that they not only promised to give to you, but that they promised to give as per their statement to the court. Failure to not only supply the documents, but failure to produce a receipt for the mailing, suggests that there never was a mailing. I would state to the judge that the plaintiff has failed to even demonstrate proof of said mailing. And I would file now. No need to wait.

      Brian

    • riverrat48 profile image

      riverrat48 3 days ago

      Hey Brian, Heather here. Hey, so I've not received any doc's in the mail. I'm quite sure it was a lie. So this is what I'm wondering. Do you think it would be a good move to file a motion to dismiss with prejudice based on the fact the one attachment they had on the summons is crap, no contract etc and based on the fact the attorney lied to the judge. I 'mean if nothing was sent out, and surely a law firm would be required to show proof of mailing. Is that nothing short of perjury??? Would you file a MTD w P if you were me to be heard on the next court date in April?? Or maybe the law firm would just agree to it?

    • Hanavee profile image
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      Brian Gray 3 days ago from Pennsylvania

      GVZP,

      Looks good.

      Brian

    • Hanavee profile image
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      Brian Gray 3 days ago from Pennsylvania

      RyanKeithV,

      For being a law firm, they are sloppy, which suggests to me that they are hoping to salvage their case by hoping you are not sharp enough, or brave enough, to persist. I would do what you are already doing, which is to stand on your demands of dismissal with prejudice...period. I wouldn't budge.

      You are most likely correct that this is a junk debt buyer who has hired a law firm to send out their lowest lawyer to try to get you to pay them. My belief is that this is not a law firm hired by your original creditor.

      Brian

    • profile image

      GVZP 4 days ago

      Hello Brian,

      I have read almost all your post and I have found the validation letter, I copied it and I just would like you to take a look at it because I am ready to send it. Please let me know if this is the right one.

      December 10, 2017

      XXXXXXX

      Address

      State, CT ZC

      ARS N S

      Address

      State, CA ZC

      Re: Acc #************

      ARS Reference No.

      To Whom It May Concern:

      I am sending this letter to you in response to a notice I received from you on November 17,2017. Be advised that this not a refusal to pay, but is a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested.

      This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your office provide me with competent evidence that I have any legal obligation to pay you.

      Please provide me with the following:

      *What the money you say I owe is for;

      *Explain and show how you calculated what you say I owe;

      *Provide me with an original contract that establishes the existence of a debt to which I ‘ am obligated to your or your principal.

      *Provide me with copies of any papers that show I agreed to pay what you say I owe;

      *Provide a verification or copy of any judgment if applicable;

      *Prove the Statute of Limitations has not expired on this account;

      *Show me that you are licensed to collect in my State;

      *Provide me with your license numbers and Registered Agent.

      If your offices have reported invalidated information to any of the three major Credit Bureaus (Equifax, Experian or TransUnion), said action may constitute fraud under both Federal and State laws. Due to this fact, if any negative mark is found on any of my credit reports by your company, or the company that your represent, I will pursue legal action against you for the following:

      *Violation of the Fair Credit Reporting Act

      *Violation of the Fair Debt Collection Practices Act

      *Defamation of Character

      If your offices are able to provide the proper documentation as requested, I will require at least 30 days to investigate this information, and during such time, all collection activity must cease and desist.

      Also, during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel. This includes any information to a credit reporting repository that could be inaccurate or invalidated, or verifying an account as accurate when, in fact, there is no provided proof that it is.

      If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file, and a copy of such deletion request shall be sent to me immediately.

      I would also like to request in writing, that no telephone contact shall be made by your offices to my home, or to my place of employment. If your offices attempt telephone communications with me, including, but not limited to, computer generated calls or correspondence send to any third parties, it will be considered harassment, and I will have no choice but to file a suit. All future communications with me MUST be done in writing and sent to the address noted in this letter.

      This is an attempt to correct your records, any information obtained shall be used for that purpose.

      Best Regards,

      XXXXXXX

    • profile image

      RyanKeithV 4 days ago

      Hi Brian,

      Just wanted to say that your advice was invaluable and much appreciated! I followed your advice as I was being sued by a law firm specializing in collecting debit (representing Capital One). I answered the summons denying any knowledge of the debt. Within the answer, I stated improper delivery of summons (us postal mail forwarded from my old address), the summons did not have any, "attachment" of complaint stating why I'm being sued. I also added request of production and counterclaims as you advised. I just received a letter from the law firm stating, stipulation to dismiss WITHOUT prejudice (I specifically asked for dismissal WITH prejudice in my answer. The law firm is stating in light of the address change (different address, and county) that they want me to sign this dismissal and refile in the district court that is in my county currently. They also said I was free to file any counterclaims in the district court. My question is where to go from here. I'm not going to sign the dismissal, but instead wanted to write another certified letter to the law firm asking them to send out a stipulation of dismissal with prejudice as stated in the original answer. Also within the letter I was going to reinforce the request of production and the, "no attachment" with the summons as they ignored that part of the answer and focused on the incorrect address. (I think there plan is to dismiss and refile again with the correct court this time). I just want this concluded and dismissed WITH prejudice, and I don't know if they will agree to dismiss with prejudice. If I don't sign this stipulation of dismissal without prejudice it sounds like its going to get hung up in the wrong county district court and they'll do something sneaky to get around it...I really don't know how it works and would be grateful for any advice on what my options are and where to go from here. The law firm specializes in debt collections, I'm just wondering if they are representing Capital One as a law firm or if they actually bought the debt. My credit report says Collections/write off...so really unsure. I currently live in Massachusetts. I thank you so much in advance for anything you might offer. -Ryan

    • Hanavee profile image
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      Brian Gray 4 days ago from Pennsylvania

      RLA,

      Good luck to you,

      Brian

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      RLA 5 days ago

      Thanks for providing the example! So I will use it as an example and just create my own. This is my first experience with this, so grateful I found your page!

    • Hanavee profile image
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      Brian Gray 5 days ago from Pennsylvania

      RLA,

      I often get this request from people, but there is no "form" for this, which is why I wrote a sample version in my article for people to copy and use.

      Brian

    • profile image

      RLA 5 days ago

      Thank you for this VALUABLE information Brian!

      I have been searching online and on my states website looking for an 'official' Request for Production form but I am not finding anything that is a 'blank' form that I can fill in...

      Do I HAVE to use a form? Or can I submit this on a plain piece of paper?

    • Hanavee profile image
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      Brian Gray 5 days ago from Pennsylvania

      Courtne Hauser 1,

      What is going to happen is that you are going to have a day in court to present your case for dismissal. The fact that Scott and Associates did not file their required end of the bargain means that they are most likely not prepared, that they are lacking crucial proofs. Heck, they might even choose not to show up. Whatever you do, prepare your defense, list their lack of legally required response as one of your reasons that their case should be dismissed with prejudice, and go in there to win.

      Your grounds of defense is that the plaintiff has failed to show sufficient evidence to prove their case. For this, look at all of the items required in the request for production. They need all of these, as well as the major points of my article. And don't forget their lack of proof that they have legal right of subrogation of the debt.

      Good luck to you,

      Brian

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      Brian Gray 5 days ago from Pennsylvania

      GVZP,

      Here is an interesting item about ARS National Services:

      https://aaacreditguide.com/collection-agencies/ars...

      I would immediately send them a letter requesting validation of the debt. I have written this letter out for you in my article, so scroll down till you see it, copy that letter, then send it to them via certified mail, return receipt requested. Give them thirty days to answer, and save all of your correspondence as evidence.

      Do not admit anything to them, do not agree to anything with them. Tell them all conversation must be done in writing, and have nothing further to say to them. Make them put everything in writing.

      Also, if they say that they directly represent PayPal, and if you can prove that they are not retained via legal contract by PayPal and on behalf of PayPal, that is fraud and punishable by law. Do your research, do your homework, and here's hoping for a good outcome for you.

      Brian

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      Courtne Hauser1 6 days ago

      So Scott and Associates did not file their Bill of Particulars and we called the courthouse and they verified they have received nothing. It was due the 5th. They told us to still prepare our defense. So along with our Ground of Defense which I am not really sure how to prepare since we do not have a Bill of Particulars to answer do we need to file anything else?

    • profile image

      GVZP 6 days ago

      Brian,

      I received a letter from ARS National Services Inc., they said PayPal Credit has hired them to work with my case, they are offering a settlement of the debt (35% discount).

      They want me to make a payment or dispute the validity of the debt.

      I have 2 questions:

      1) Are ARS National Services Inc. a debt buyer?

      2) Shall I send validation letter or the letter of proof of their legal rights of suborgation?

      Thank you

      GVZP

    • Hanavee profile image
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      Brian Gray 6 days ago from Pennsylvania

      CamelJockery79,

      You certainly put a monkey wrench in that lawyer's plans for a lay down. Study well, plan your strategy, and here's wishing you the best of good luck.

      Brian

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      Brian Gray 6 days ago from Pennsylvania

      riverrat48,

      I agree.

      Brian

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      CamelJockey79 6 days ago

      I'm being sued by Cavalry for a debt that I owed to CitiBank, but my account has been closed and charged off. I had my initial hearing yesterday, I told the judge and Cavalry's lawyer that wanted to file a request for production. The judge said that's something that I should have done prior to the hearing but I still have the right to do it.

      So I wrote out the template you provided in your article. At the court, one of the clerks said she could make a copy and give it directly to the judge, and the other copy I emailed and also faxed to the lawyer. In my email I said to send you reply back to confirm receipt, but I have not received any reply.

      My trial is set for January 3. So we'll see if they back out or decide to show up.

    • riverrat48 profile image

      riverrat48 6 days ago

      ............still waiting for those docs :) I bet nothing was sent to me and I bet nothing will be. We'll see :)

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      Brian Gray 6 days ago from Pennsylvania

      Jesse Zepeda,

      The Fair Debt Collection Practices Act pertains to the action of collecting debts, regardless of how those debts were incurred. If a debt has been sold to a junk debt buyer, then virtually everything in my article pertains. Also, research the statute of limitations for debt collections in your State.

      Brian

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      Brian Gray 6 days ago from Pennsylvania

      Vickie,

      Without being there, I could only guess. Of course, anything the lawyer asks you is all in his effort to get you to prove his case, so you have to always be on your toes and try to figure out what he is trying to do with his questions, what answers he wants, and avoid giving him what he wants. It is legal chess.

      Brian

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      Jesse Zepeda 7 days ago

      Does this apply to hospital bills from 2012

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      Vickie 7 days ago

      Why did the lawyer ask if I received the statements at my home. I just kept stating what you said to say under oath.

    • Hanavee profile image
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      Brian Gray 8 days ago from Pennsylvania

      Vickie,

      Good luck to you.

      Brian

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      Vickie 8 days ago

      Thank you so much for the information! I love in York, pa and I did everything you said to do. The lawyer said he did not need a sign contract and I said by law you do. I hope I won because all he had was 2016 statements. And asked off I received the statements at my address I just stated weekday you said to say under oath. I hope I proved they don't own the debt. But thank you so much for this information!

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      Brian Gray 8 days ago from Pennsylvania

      rivverat48,

      Your assumptions are correct. Their lawyer was in an embarrassing situation before the judge.

      Brian

    • riverrat48 profile image

      riverrat48 8 days ago

      Yes, I believe the docket is full until April. I can't wait to see what stuff the lawyer sent me in the mail :) After I thought about it......see the attorney for the JDB was up there, 2 victims (lol) went before me. When my name was called the lawyer hurried up and told the Judge that he'd sent me documents and never gave the Judge time to ask me if I was admitting or denying. I know that attorney did not want the others to hear me deny and defend!!!

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      Brian Gray 8 days ago from Pennsylvania

      riverrat48,

      If the judge gives them until April, that is just that much more time that you get to hone your skills and prepare an even stronger defense. The judge may have given them until April, because he may have a full docket, but there is no need to rush this anyway. Use the time to study everything you can so that you go in there ready to kick their butts.

      Brian

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      Brian Gray 8 days ago from Pennsylvania

      riverrat48,

      My assumption would be that their lawyer was unprepared and bluffed his way to buying time. If he did not have it now, my guess is that he will not have it then.

      Brian

    • riverrat48 profile image

      riverrat48 9 days ago

      Do you think I should have asked for a sooner date....like am I dumb for giving them until April?? Just curious, I won't be mad if you say I should have insisted upon a sooner date :) I was kind of blindsided by them saying they mailed stuff out yesterday.....

    • riverrat48 profile image

      riverrat48 9 days ago

      Hey Brian, wanted to update you. I went to court today and the lawyer said they sent doc's to me around the 4th (today is the 5th lol) Anyhow, the Judge asked if I received them and I said no so it's continued in April. Anyhow, if that were the case, why did the lawyer not bring the doc's to court and present them to me there. I think it's some sloppy stuff. Anyhow, I'll update in April :)

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      JV 10 days ago

      Thank you Mr. Gray.

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      Brian Gray 10 days ago from Pennsylvania

      JVB,

      Thank you, and the best of this holiday season to you and your family, as well.

      Brian

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      JVB 10 days ago

      Yaaaaaaaaaaaaaaaaaaaaay Mr. Gray. I have taken a Credit Debt Class and learned a lot. However, this thread is a clas all in itself. Thanks again for your time. Thanks for helping us (specifically me). God Bless you and Happy Holidays!

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      Brian Gray 10 days ago from Pennsylvania

      JVB,

      You get an A+ from me.

      Brian

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      Brian Gray 10 days ago from Pennsylvania

      JVB,

      Here is a good article referencing the Truth In Lending Act. I do not find anywhere in this act where the plaintiff has a leg to stand on, but maybe you can take the time to study it further and deeper to see if I have missed something.

      https://www.debt.org/credit/your-consumer-rights/t...

      As for their responses, "Plaintiff reserves the right to supplement/amend this response," it shows that they do not have sufficient proof to have filed in the first place, and they are hoping to bluff their way to the finish line. Call them on these lacks of sufficient evidence. They can reserve the right all they want to to supplement/amend, but they will still not have sufficient evidence no matter how long they are granted to delay, or how long they stall. Call them on this. They either have sufficient evidence, or they don't. They made the allegations, not you, so to quote one of the bedrocks of law, the burden of proof rests upon the plaintiff.

      And three checks are proof of what?

      Brian

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      JVB 11 days ago

      My draft:

      DEFENDANTS REPLY TO PLAINTIFF’S RESPONSES OF

      REQUEST FOR PRODUCTION

      1. Since you are claiming you are basing this claim on books and records, according (my state) State Rules, “If the credit card claim is based upon writing, then the plaintiff must attach a copy of the writing.” Thus, I am requesting you provide a copy of ANY original documentation (a consumer contract with wet-ink signature on it) as required under Section 609 (a) (1) (A) & Section 611 (a) (1) (A). If you do not provide, you are not in honor. Absent more, this “objection” is useless. Please see Fischer, 2017 WL 773694, at *3 (“[S]tating requests that are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91 (“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

      2. Again, since your claim is based this on books and records, according to the (my state) State Rules, “If the credit card claim is based upon writing, then the plaintiff must attach a copy of the writing.” Thus, I am requesting you provide a copy of ANY original documentation of an executed contract in (creditors) possession setting forth the terms Defendant is alleged to have agreed to in connection with the card from date (not from years afterwards). If this is not provided, you are in dishonor. Absent more, this “objection” is also useless. Please see Fischer, 2017 WL 773694, at *3 (“[S]tating requests that are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91 (“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

      3. Again, since your claim is based this on books and records, according to the(my sTate) State Rules, “If the credit card claim is based upon writing, then the plaintiff must attach a copy of the writing.” This DOES NOT say “Available changes in terms.” Thus, I am requesting you provide a copy of ANY original documentation of an executed contract in (creditor) possession setting forth the terms Defendant is alleged to have agreed to in connection with the card at the beginning (date), not from years afterwards. If this is not provided, you are in dishonor. Absent more, this “objection” is also useless. Please see Fischer, 2017 WL 773694, at *3 (“[S]tating requests that are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91 (“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

      4.Once again, you did not provide what I requested. You sent monthly statements from(date thru date). I requested statements from (date) thru (date). If this is not provided, how can one assume the billings/bookkeeping is correct from February 1979 thru December 2015? Absent more, this “objection” is useless. Please see Fischer, 2017 WL 773694, at *3 (“[S]tating requests that are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91 (“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

      5. Again, you did not provide what I requested. You sent monthly statements from (date to date). I requested details regarding alleged charges by amount, type, and date. This was not provided. Therefore, how can one assume the billings/bookkeeping is correct from date thru date? Absent more, this “objection” is also useless. Please see Fischer, 2017 WL 773694, at *3 (“[S]tating requests that are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91 (“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

      6.Again, you did not provide what I requested. You provided 3 copies of checks. I requested you provide evidence of all payments received. Not doing so means you are in dishonor. Absent more, this “objection” is useless. Please see Fischer, 2017 WL 773694, at *3 (“[S]tating requests that are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91 (“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

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      JVB 11 days ago

      Mr. Gray I mis-spoke. I tried to shorted my post so you wouldn't have that much to read or respond to. But I see you must have all the answers to respond. So here goes. Along with the "Overly broad and unduly burdensome" responses to each question they added: (they are in the order you have posted):

      #1-The books and records of the Plaintiff show that the Defendant opened the account in February 1979. The Truth and Lending Act only requires a period of 25 months (they sent 2003 thru 2015). they continued: after a diligent search, Plaintiff is unable to locate a copy of the account application. Plaintiff reserves the right to supplement/amend this response.

      **This account is over 38 years old. Of course they don't

      have it. But don't I have the right to ask and them to

      verify by providing the "Original Signed" document? Of

      course I asked several times for them to verify the debt.

      Also of course (like many others on here) they sent billing

      statements**

      #2-They answered: The books and records of the Plaintiff show that the Defendant opened the account in February 1979. The Truth and Lending Act only requires a period of 25 months. After a diligent search, Plaintiff is unable to locate a copy of the account agreement. Plaintiff reserves the right to supplement/amend this response.

      #3-Subject to and without waiving the forgoing objections

      see attached available changes in terms. Plaintiff reserves the right to supplement/amend this response.

      #4-Subject to and without waiving the forgoing objections

      see attached monthly statements (2/1979 thru 12/2015). Plaintiff reserves the right to supplement/amend this response.

      #5-Subject to and without waiving the forgoing objections

      see attached monthly statements (2/1979 thru 12/2015). Plaintiff reserves the right to supplement/amend this response.

      #6-Subject to and without waiving the forgoing objections

      see attached monthly statements (2/1979 thru 12/2015). Plaintiff reserves the right to supplement/amend this response.

      **They did include 3 copies of checks**

      I will wait to see if your response changes before I use previous response and compose letters (2 different accounts). Also, they served me for both accounts, but answering to 1.

    • profile image

      JVB 11 days ago

      Mr. Gray you are awesome. By the way, thanks for taking out time to help us in need. I read more on your thread and along with your instructions, I have drafted (ready to send tomorrow) letters on Proof of Legal Subrogation. I will keep you posted.

    • Hanavee profile image
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      Brian Gray 11 days ago from Pennsylvania

      JVB,

      The most common attempt to dodge answering by plaintiffs is to use the line "overly broad and unduly burdensome." This is an artful attempt to dodge in hopes that you, not being trained as a lawyer, will not know a good defense against it and will simply give up and lose. Here is what you should know.

      Such a disclaimer violates Rule 34 of the Federal Rules of Civil Procedure. This rule requires that, when a party states an objection to a request, it should include the reasons for the objection. Simply stating that the requests are "overly broad and unduly burdensome" lacks the level of specificity and explanation as called for in Rule 34. Study this rule by going online and doing a search of Federal Rules of Civil Procedure Rule 34.

      Further more, here is some legal precedent for you to use:

      The “overly broad and unduly burdensome” objection.

      Absent more, this “objection” is useless. See Fischer, 2017 WL 773694, at *3 (“[S]tating that the requests are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”); Heller, 303 F.R.D. at 490-91(“the party resisting discovery [must] show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”).

      So, at the very least, I would send a letter to them showing the precedent that I just posted for you, and tell them that their response was inadequate, then file a motion to compel with the court, and show this as your reason.

      This should cause them a little heartburn.

      Good luck to you,

      Brian

    • profile image

      JVB 11 days ago

      Mr. Gray. I followed your above instructions a month ago (Request For Production). The cases (2) were continued to February 2018). Today I received a box full of statements (for both accounts) saying they are providing for the last 25 months (according to the Truth and Lending Act) . They answered all the questions with Plaintiff requests are overly broad and unduly burdensome (accounts opened in 1979 and 1981). Please advise ( they gave me 30 days to response).

    • Hanavee profile image
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      Brian Gray 13 days ago from Pennsylvania

      GVZP,

      If you can prove that the collection company does not have a case, or, if you win in court, then you can contact the credit reporting companies and ask them to remove any deleterious information.

      Brian

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      GVZP 2 weeks ago

      Brian,

      After I have proof that the collection company have not right on collecting from me, can I ask them to remove my information they sent to the 3 bureau of credit, Equifax, Experidian and Transunion?

      I really don't know if you have this answer in this block, I have read a lot but there is more than 4,000 post here and is almost impossible for me to read them all in a short time, I am working on it because this is very interesting to me and I am taking the time to read every post every time I have the chance.

      Thank you!

    • Hanavee profile image
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      Brian Gray 2 weeks ago from Pennsylvania

      lbmontana,

      Yes, see the clerk of the court for the necessary paperwork to oppose the pre-trial conferences being done via telephone. Also, request that they show that they are licensed to do business in your State.

      Brian

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      lbmontana 2 weeks ago

      Hi Brian,

      Is it a common practice for Justice Courts to allow 3rd party debt collectors to attend pre-trial conferences via telephone? I have a collector (attorney debt collector) who submitted a letter with this request to our JC, but they responded to them saying that request needed to be submitted via motion and order also stating whether or not opposing party opposes. I so oppose so what do I submit? Do I submit a motion to oppose their request? It seems to me that if THEY summoned me to court, they should have to appear as well. They are located in Minnesota and I am in Montana. What are your thoughts? I thank you in advance for your amazing advice.

    • Hanavee profile image
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      Brian Gray 2 weeks ago from Pennsylvania

      T-Ark,

      I hope that you meant that you asked them to show that "they" have legal right of subrogation of the debt. If you wrote to them asking them to show that "I" have legal right of subrogation of the debt, you need to amend your request.

      This is a very good question, because showing that they have this means that they have to have a representative of the original creditor and a representative of the insurer of the original creditor present in court. Stand on this, study it, and know it well so that you can make your case. If this debt has been sold multiple times, they are not going to have the items listed in the request for production, so hammer them on this, as well.

      A typical trick of lawyers is to overwhelm you with stacks of papers, as if every one of those papers is relevant. Don't let their tactic throw you off. Stay focused on what they did NOT provide, and that is a signed copy of the original contract, a signed contract with you and them, and proof of legal right of subrogation of the debt.

      Good luck to you,

      Brian

    • profile image

      T-Ark 2 weeks ago

      Hi Brian, thanks for creating a great resource for us all. I have followed your steps and will be going to arbitration this Thursday. My request for production was met with pages and pages of statements from the Credit Card Company, but has since sold off the debt to multiple companies. The most recent "owner" has hired an attorney to represent them and we are ready for a showdown on the 30th. The "Judge" asked both parties to submit their Pre-Hearing of Proof packet. The Plaintiff's attorney sent me a 50 page packet of what they have submitted. I plan on taking all your talking point in this article with me. However, I did not submit a packet but wrote back an email to the judge and plaintiff that I will be brining only one request and that request is that the Prosecutor and/or the Plaintiff certify that I have the right of subrogation. I also asked them to produce that in writing. I'm curious to know if I made a mistake by asking them for this 2 days prior to the arbitration hearing? Assuming that the request is fulfilled and the judge grants the request, what motion or action would I need to take to ask the court to offset the charges? Thanks again for all your time!

    • Hanavee profile image
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      Brian Gray 2 weeks ago from Pennsylvania

      Evan,

      I would like to see the legal credentials of anyone stating that you do not file a "Motion to Dismiss," but rather, a "Demand to Dismiss." In every law school, it is Motion to Dismiss, and you want to ask the judge to rule "dismissed with prejudice," which means that it can never be re-opened by the plaintiff. The judge will consider the merits of the motion and rule accordingly. Do not listen to some YouTube moron who thinks he knows more than the judicial system and would have you irritating the judge, whom you want on your side. You are not fighting the judge, so don't start playing word games with him. You will lose more than you expected if you do that. There is truly one person you do not want to make your enemy, and that is the judge. He is going to be impartial until you start trying to show him how smart you are, and how corrupt you think he is, by playing word games. Stick to the tried and true methodology of due process, and file a motion to dismiss with prejudice. The results will be far superior to anything you found on YouTube.

      Brian

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      Evan 2 weeks ago

      Brian,

      I am about 5 days away from the Plaintiff failing to produce documents after asking the court for a 30 day extension of time. I called the clerk and asked if the proper procedure of the court should be for me to file a Motion to Compel or a Motion to Dismiss. They told me to file a Motion to Compel but I could state in the motion alternatively a Motion to Dismiss. What do you think?

      Also, after conducting research I have come across information where it has been suggested to not file a Motion to Dismiss but file a Demand for Dismissal. I have never heard of a Demand for Dismissal. Basically, I gather the demand is more assertive than a motion. What are your thoughts on that?

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      Brian Gray 2 weeks ago from Pennsylvania

      Kat,

      To my knowledge, they have to sue you in the State of your current residence.

      Brian

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      Kat 2 weeks ago

      Can a debt company sue you in two states at once? I've noticed that I'm on an active list in NY and I got served in IL for the same thing.

    • profile image

      vintageandmodern6 3 weeks ago

      Thank you.

    • Hanavee profile image
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      Brian Gray 3 weeks ago from Pennsylvania

      vintageandmodern6,

      This is a complicated situation. Because of all the entanglements, my best advice would be to contact an attorney who practices in your current State of residence, because he or she will know all of your local statute of limitations, as well as what you might be legally liable for when you visit New York.

      If they cannot give you free advice, then ask how much it would cost for a one-hour, private consultation. It will be money well-spent.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      GVZP,

      You're very welcome. Good luck to you.

      Brian

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      vintageandmodern6 3 weeks ago

      I was sued by a credit card company in NY state in 2005 and didn't go to court to contest it, so a default judgment was entered against me. The CC company filed an execution against me in my local county, but I remained unservable for the next 2 years. (The local sheriff's department tried at least twice to serve me papers, I just didn't answer the door.) I ducked calls from the company they sold the debt to, and actually still get a call from them every year or so. Again I avoided them too.

      My questions are:

      1. Do I need to worry about this until the 20 years is up? I've been to NY twice and live half way across the country, my state's executions last 10 years and can be renewed.

      2. I want to be able to file a small claims against another party in my local court system. Do I need to worry whether or not the local sheriff's office will serve me with an execution from 10+ years ago?

    • profile image

      GVZP 3 weeks ago

      Brian,

      THANK YOU SO MUCH!!!!!!

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      GVZP,

      Yes, you can send this to them at any time. In fact, if they have not filed suit in court against you, this is the perfect time to do so.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      GVZP,

      I would word it like this:

      "I am hereby and herewith requesting proof of your legal right of subrogation of the alleged debt. Please send me all related documents and appropriate proofs to fulfill this request within thirty days. Thank you."

      Brian

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      GVZP 3 weeks ago

      Brian,

      I have a question, a request for proof of legal right of suborgation can be send to the debt collector/junk buyer when they sent you a letter informing you they are in charge of the debt and they want to settle with you?

      Thank you!

    • profile image

      GVZP 3 weeks ago

      Hello Brian,

      I have been reading and studying all of this posts and researching on the internet to get ready for my case in court as you recommended. It is a little bit scary and I am learning so much with this.

      I already sent my answer Nov.17, now I am sending the request of production. also I am sending in a different letter the request for proof of legal right of suborgation to the collection agency that is swing me which I would appreciate you to read it before I send it, it is very simple what I wrote. As probably you has noticed with my broken English I am not originally from USA and my English is not perfect. This is what I wrote:

      November 21, 2017

      Collection Agency

      Address

      City, Ct ZC

      GVZP

      Docket No:

      Dear Collection Agency:

      I respectfully request that your office provide me with my certify of legal right of subrogation.

      Regards,

      GVZP

      Address,

      City, Ct ZC

      cc: SUPERIOR COURT JUDICIA DISTRICT OF City

      SMALL CLAIM SESSION

      Thank you Brian for taking your valuable time helping all of us.

    • profile image

      GVZP 3 weeks ago

      Hello Brian,

      I already sent my answer Nov.17, now I am sending the request of production. also I am sending in a different letter the request for proof of legal right of suborgation to the collection agency that is swing me which I would appreciate you to read it before I send it, it is very simple what I wrote. As probably you has noticed with my broken English I am not originally from USA and my English is not perfect. This is what I wrote:

      November 21, 2017

      Collection Agency

      Address

      City, Ct ZC

      GVZP

      Docket No:

      Dear Collection Agency:

      I respectfully request that your office provide me with my certify of legal right of subrogation.

      Regards,

      GVZP

      Address,

      City, Ct ZC

      cc: SUPERIOR COURT JUDICIA DISTRICT OF City

      SMALL CLAIM SESSION

      Thank you Brian for taking your valuable time helping all of us.

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      CourtneHauser1,

      If they don't file the Bill of Particulars, the judge can rule against them and dismiss the case. I think they already know that, so I would anticipate their complying. Be ready to challenge their claims in the bill.

      Regarding whether or not you can use the court website for your Grounds of Defense, I would ask the clerk of the court to be sure.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      riverrat48,

      Sounds like you have the situation well in hand. Good luck to you,

      Brian

    • profile image

      Courtne Hauser1 3 weeks ago

      Ok went to court for warrant in debt and was granted a trial. Scott and Associates who are representing LVNV Funding LLC has to file Bill of Particulars by 12/5 and we have to file Grounds for Defense by 12/27 with trial date on 1/5. My question is what happens if the don't file the Bill of Particulars? Also when we do our grounds for defense do we also need to file an answer for the Grounds of Defense or can this all be done in the Grounds of Defense document I found on the courts website?

    • riverrat48 profile image

      riverrat48 3 weeks ago

      I did what you said, separate mailings. I was hoping you would respond the way you did, as I am sure it's excellent advice and it's what my gut tells me is the best route. I will read the article you mentioned. I countersued my own attorney, pro se, many years ago and won AND assisted my daughter pro se who eventually won a writ of mandamus and a writ of habeas corpus in a long fight so I'm pretty confident that I have what it takes to fight these blood suckers. If they did win, they will find out I have no income or assets. Anyone know offhand what the laws are in TN as far as marital property. I'm pretty sure they can't go after my husband for an alleged debt of mine?????????? Thanks again, and I will come back and let you know the outcome :)

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      riverrat48,

      Read through the thousands of posts on here, and take note of how many have won their cases. There are so many, I have lost count, so the strategy that I have outlined apparently works.

      While it is true that the validation request is made before a suit is filed, I still find that it rattles the nerves of the plaintiff when you ask for this information, even if late. Further, those who are suggesting that it will blow up in your face are either junk debt buyers who are prowling the sites, or lawyer wannabes who don't know what they are talking about. Out of thousands of people who have used my information to win their cases, I have never heard of it "blowing up" in anyone's face.

      I would send the plaintiff a request for production, and in a separate mailing, I would send them a request for proof of legal right of subrogation of the debt. Send these certified mail, return receipt requested. Both of these should let them know that you are not going to just roll over and play dead, but that you are going to mount a legal fight to their games.

      Study my article well, research your case and prepare your defenses. Read many of the posts that are relative to your situation, and study the tactics they used successfully.

      Good luck to you,

      Brian

      P.S. Before you ask for arbitration, read the article written by Jake Halpern in the New York Times that I linked on here. It is a real eye-opener.

    • riverrat48 profile image

      riverrat48 3 weeks ago

      Brian, I got notice of a lawsuit (junk debt buyer) and I sent law firm letters requesting verification of debt and proof of ownership. Several people at another forum said it's to late for that after a suit has been filed, but I was not aware of this issue until I received the summons. I feel pretty confident it will be dropped but if they don't dismiss I'm going to request arbitration that is in the original creditors contract. Any opinion on this you can share with me??? 1st hearing is next month. Others on another forum said this can blow up in my face, please thoughts on this??!!!

    • profile image

      Courtne Hauser1 4 weeks ago

      Has anyone had any success with Scott & Associates? They are representing LVNV Funding. We had a warrant in debt and requested the trial and it was granted and they have to send the Bill of Particulars, and of course, we have to respond to those. It was funny though cuz this "attorney" drove 5 hours here and had at least 4 cases before ours and they all requested a trial and I am not sure how many after us. Any suggestions or anyone dealt with this company. I know we will win this as I have such a paper trail and asking this information and they have produced nothing up to this point. But wanted to see if anyone had any other suggestions or experience to share

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Evan,

      You are right on target with your suspicions. Why else would they ask for additional time, then ask you to do their work for them and prove their case. If they had sufficient evidence to sue in the first place, which is a legal requirement, then why are they asking you to confirm what they are fishing for? They don't have it.

      It amazes me that they think people are normally that stupid. What they appear to be doing is a last-ditch effort to get you to win their case for them. You asked them for information, they stalled, and instead of answering your legal request, they hoped that they could get you to give them the case by answering their questions first. Nice try.

      So, if the time limit comes up before the pre-trial, I would file a motion to dismiss with prejudice, and I would offer as one of my arguments that they failed to respond in a timely manner as requested by law. I would also state that they should have had sufficient evidence to prove their claims BEFORE filing suit, a legal requirement, and their list of questions show amply that they lack sufficient proofs to have filed in the first place. Therefore, they lack legal standing.

      The judge will most likely deny the motion to dismiss, but may issue a motion to compel, and that will be just as good, because that gives the plaintiff a time limit to produce the goods. Thirty days later, when they do not, case dismissed.

      Brian

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      Evan 4 weeks ago

      Brian,

      Thank you for your response. I find it interesting the Plaintiff has filed this while they have yet to produce the documents I have requested. They asked for an extension of time and have about two weeks left to produce them.

      In your opinion, is it normal for the Plaintiff to ask for this during Discovery in these types of cases? Based on their questions could it be they do not have the documentation I have requested and instead are wanting me to admit to certain questions that would prevent them from having to produce such documents? In this way I am doing the work for them.

      I have come to the opinion after some research that it may be used as a tactic where they are hoping the Defendant fails to answer or perhaps admits in favor of their claim in order to either get a default or summary judgement.

      Out of curiosity, do you think it would be useful for a Defendant to ask the Plaintiff interrogatories and/or admissions as well as production during Discovery? Also, do you think any of the questions they have asked warrant an objection as opposed to an answer?

      I will respond as you have suggested. The pre-trial is in January. You mentioned in a previous response if they do not produce documentation I should file a Motion to Compel. Should I file that first or file for a Motion to Dismiss with Prejudice? Thank you!!!

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Evan,

      Interrogatory NO. 1:

      State your name, Social Security number, address, phone number, and place of employment.

      The answer to this one is simple. List what they ask, nothing more, nothing less.

      Interrogatory NO. 2: Provide a brief explanation why you have not paid the monies identified in Plaintiff’s complaint.

      I would state: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim." Let them sort that one out.

      Request for Admission NO.1

      Admit you had an account with Citibank referenced in the complaint and assigned to Cavalry assignee of Citibank.

      Again, I would state: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Request for Admission NO. 2

      Admit that you borrowed money from Citibank based upon the terms and conditions required by Citibank.

      Once again: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Request for Admission NO.3

      Admit you received monthly statements and agreed to pay the contract interest and late fees at the rate and amounts contained in the monthly statements.

      And once again: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Request for Admission NO. 4

      Admit that you were given notice that your account with Citibank account number ************2343 was transferred, assigned or sold to and is now owned by Cavalry as assignee of Citibank.

      Most definitely: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Request for Admission NO. 5

      Admit that you defaulted under the terms and conditions by failing to pay the minimum amount due as stated in the monthly statement.

      And again: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Request for Admission NO. 6

      Admit that you are not a minor, incompetent or have any affirmative defense to avoid the payment of this debt.

      I would state: Defendant is not a minor. Defendant is not incompetent. Regarding the question of Defendant having an affirmative defense, Plaintiff has not produced sufficient information or given knowledge to Defendant sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Request for Admission NO. 7

      Admit that your current balance is $****.**

      I would state that I have sent Plaintiff a request for production, and Plaintiff has failed to produce the requested information, therefore, Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      You wrote: "I can only deny the matter or set forth in detail the reasons why I cannot admit or deny. I cannot give lack of information or knowledge as a reason for failure to admit or deny unless I state that they have made a reasonable inquiry."

      See my answers above.

      Brian

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      Evan 4 weeks ago

      Brian,

      After asking Cavarly for a request of production they filed their first motion of discovery consisting of Interrogatories, Request for Production, and Request for Admissions against me.

      Interrogatory NO. 1:

      State your name, Social Security number, address, phone number, and place of employment.

      Interrogatory NO. 2: Provide a brief explanation why you have not paid the monies identified in Plaintiff’s complaint.

      Request for Admission NO.1

      Admit you had an account with Citibank referenced in the complaint and assigned to Cavalry assignee of Citibank.

      Request for Admission NO. 2

      Admit that you borrowed money from Citibank based upon the terms and conditions required by Citibank.

      Request for Admission NO.3

      Admit you received monthly statements and agreed to pay the contract interest and late fees at the rate and amounts contained in the monthly statements.

      Request for Admission NO. 4

      Admit that you were given notice that your account with Citibank account number ************2343 was transferred, assigned or sold to and is now owned by Cavalry as assignee of Citibank.

      Request for Admission NO. 5

      Admit that you defaulted under the terms and conditions by failing to pay the minimum amount due as stated in the monthly statement.

      Request for Admission NO. 6

      Admit that you are not a minor, incompetent or have any affirmative defense to avoid the payment of this debt.

      Request for Admission NO. 7

      Admit that your current balance is $****.**

      I can only deny the matter or set forth in detail the reasons why I cannot admit or deny. I cannot give lack of information or knowledge as a reason for failure to admit or deny unless I state that they have made a reasonable inquiry.

      How should I respond to these? Help!!!

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Liz,

      Take a deep breath and relax just a bit. You sound like you are imagining the worst scenario possible. Let's look at a few things.

      One, the contract that they attached is NOT the signed original contract between you and the original creditor. Therefore, it is evidence of NOTHING, and it should be dismissed as such. You have to be prepared to argue this with some degree of confidence.

      To your next question, should you settle with the law firm? Only if you have no faith in your defense capabilities and want to pay money to a blood sucker that does not deserve a dime. $4800? I would pay a defense attorney $800, get them to work their magic in court, and have this case dismissed. The junk debt buyer probably paid $200 for the bad debt, so why give them $4800 without at least fighting for your rights? I can't tell you what to do with regard to settling, but I know what I would do, personally.

      With regard to whom the judge would favor, it is up to either the plaintiff or the defendant to make the most compelling case. The best argument wins. You have a chance, but you have to be prepared to fight with all of the tools that we have posted on this site. I would fight them with the facts: they do not have a copy of the original signed contract bearing your name, they do not have any signed agreement bearing your name that says that you agree to any changes to the original contract, they do not have a signed contract between you and them offering the same services as the original creditor, nor can they provide the same services as the original creditor, and last but not least, they most likely do not have legal right of subrogation of the debt. I would ask them to submit this.

      Study my article, read the many posts on here from people who shared their strategies in court that won for them, and if at all possible, hire an attorney to fight for you. You can win this.

      Brian

    • profile image

      Liz 4 weeks ago

      Hi Brian:

      I received a summons and filed an appearance in Illinois. I have a court date two weeks from now in small claims court. The debt listed is for $4800. There was a copy of a contract attached to the summons, but nothing with my signature on it, just my name typed. Should I try to settle with the law firm? The summons states they are suing me on behalf of the original financial institution, who by now has been bought out by another financial institution so they are really no longer in business under the original name. What happens if I go to court and dispute the amount that I owe or ask for documentation with my signature on it? Would the judge decide to go with the plaintiff anyway? Is there a chance that I could lose and judgement is granted? Also, if I do lose and am prepared to pay right then and there, could they still freeze my bank account and put a lien against my property? Thanks for your help!

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Christina D,

      If it were me, I would spend time researching both the Ward case and the Truth in Lending Act to see how the plaintiff thinks these are relevant. Years ago, I had to sue a car dealership, and I spent hours in the legal section of the library researching my defense. I had seven type-written pages in my argument ready for court when I got there, and the car dealership had their head honcho and his private attorney. They smugly thought that, since I was not an attorney, they would make short business of me. I won.

      So, research is the best antidote for these blood suckers. They can object all they want to when it comes to answering you, but ask that same thing in front of the judge, and I wonder what is going to happen then? I would very calmly, humbly and politely say something like this: "Your honor, I requested these documents from the plaintiff, and they refused to give them. It would seem to me that they do not have them, and if they do not have them, Your Honor, then that would indicate that they did not have sufficient proof to file suit in the first place. They would seem, therefore, to lack legal standing in your court, Your Honor. I would ask, therefore, that this case be dismissed on these same grounds." It's worth a shot. All the judge can do is deny your motion, but he might just say, "Well, Plaintiff, where are these documents, and why were they not provided upon request?" That's when the fun starts, because the plaintiff had better have a defense that passes the judge's scrutiny. It won't be you who is being denied the documents on questionable grounds this time.

      Since you are going to pretrial, you could bring it up there, or you could file a motion to dismiss on the grounds that the plaintiff has refused to supply legally requested documents that should be in their possession prior to filing suit. What I would do is file a motion to dismiss, and the judge will most likely deny it, which would lead to a motion to compel, and when the judge issues that, there will be a time limit for them to come up with the requested documents, or face having their suit dismissed.

      Brian

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