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Thread: Motion to Compel/Strike/Dismiss?

  1. #1
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    Motion to Compel/Strike/Dismiss?

    Today I received a response to my interrogatories that I sent to the JDB's Attorney on an old alleged sears debt that I am being sued for. They, of course, didn't give me any of the information/documentation that I asked for in my interrogatories. I am trying to get some advice on what my next step should be as far as this is concerned.

    Below are their answers to my interrogatories:

    1. Identify the person or persons answering these interrogatories. Include their business address, business phone number, and title within the Plaintiff's Organization.

    Answer: Jane Doe, Account Manager at New Century, address info...Objection as to providing Jane Doe's direct business number, as she may be reached through counsel.

    2. Set forth with specificity all facts in support of each defense and/or claim which the defendant has in the above-entitled matter including dates, places, names and addresses of persons present or involved in any action and/or conversations.

    Answer: Defendant, me, opened sears account number XXXXX on or about 7/98. Defendant utilized said account and made monthly payments until 4/02. Defendant subsequently defaulted on payments due with respect to account number XXXXX, and as same was charged off on or about 1/03 in the amount of XXXXXX. This is the principal amount of the instant suit. See the account placement information transmitted electronically from the original creditor, annexed hereto.

    3. Attach any documentation evidencing complete chain of ownership and/or assignment of the subject account, from date of charge-off till present, including but not limited to, the name and addresses of any intermediary owner(s) of the subject account, bull(s) of sale, canceled check(s) for purchases of subject account, or bulk sale affidavit(s) pertaining to each transfer of the subject account.

    Answer: Objection. The complete chain of title is not within plaintiff's custody or control. Notwithstanding, please see annexed hereto the applicable Bill of sale demonstrating plaintiff's current ownership of the subject account.

    4. Attach copies of all writings, documents, or any other records which related to said account or in any way support any claims, including but not limited to, detailed account history from original creditor, correspondence, contracts, agreements, notices, monthly statements, applications, and any letters sent to or received in connection with the subject account.

    Answer: Objection. The documentation requested is not currently within plaintiff's custody or control. Notwithstanding, see the aforementioned placement information and the relevant Bill Of Sale, which evidences Plaintiff's current ownership of the subject account. Plaintiff' has requested further documentation which will be provided to defendant if, and when, plaintiff comes into the possession of same.


    So here is my question...It looks like they don't have any real evidence.
    All they sent me was a copy of some Bill of Sale and 4 pages that looked like they were printed from an excel spreadsheet. Each of the 4 pages are just rows from a spreadsheet with information on them like my name, address, etc. None of the pages say where it was printed from, etc.

    Now as far as the Bill of Sale is concerned it is between New Century (JDB) and Sherman Acqusitions (another JDB)...Not Sears. The Bill of Sale doesn't have any identifying information as to any account information, account holders name etc...It just basically says Sherman Acquisitions has sold New Century some Charged-off accounts and that the accounts are described in the attached Appendix A and are referred to as Charged-Off Accounts in the Purchase and sale agreement between. But there is no Appendix A attached to any of the documentation that they sent me.

    Do I have any grounds to have this case dismissed or grounds to strike this bill of sale? Also can I file a motion to compel or were their responses sufficient in the courts eyes? Any help would be greatly appreciated. I go to court in about a month and would like to know what kind of defense I actually have here. Thank you all so much in advance.

  2. #2
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    Quote Originally Posted by mirandagk View Post
    Do I have any grounds to have this case dismissed or grounds to strike this bill of sale? Also can I file a motion to compel or were their responses sufficient in the courts eyes? Any help would be greatly appreciated. I go to court in about a month and would like to know what kind of defense I actually have here. Thank you all so much in advance.
    What state are you in? What court?

    In response to your question #1, maybe. Need to know above info as to your court procedure but generally if they haven't met the burden of a proper complaint, then you can MTD.

    You file a motion to strike the bill of sale if it does not sufficiently meet your rules of evidence. Since they say themselves they don't have the complete chain of custody then they cannot prove they own the account or have the right to collect upon it.

    I would file a motion to compel the answers to your discovery if you feel they didn't answer sufficiently. Regardless of what I think, it's whether the judge in your case feels they have not which will get them compelled.
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  3. #3
    The lack of underlying documents presents a situation where they are asking the Court to rule in their favor using hearsay on hearsay. Exception will not apply here.
    I am not *your* attorney and you are not *my* client. Nothing in this post shall be construed as establishing an attorney-client relationship.

    Would you rather us tell you what WILL happen or would you rather have rah-rah bull-droppings from someplace else?

    Just say NO! to TSA gropings at the airport after having first said HELL NO!!! to the Nude-o-Scope

  4. #4
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    I'm sorry...I'm in NJ. Its in the superior court; special civil part.

    Yeah I didn't think that I had any standing to compel them to give me something that they stated they don't even have. I don't even know if I should try to compel them to get me any statements, agreement with my signature, etc., since they say they are trying to obtain those things.

    I had read through the rules of procedure but was a bit confused as to whether or not I had to take certain steps before submitting a motion to strike or motion to dismiss.

  5. #5
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    Are statements considered hearsay evidence? If the attorney only has statements to go on then should the OP compel the statements or more then just the statements because it appears that is all they are going to show.
    Many CA's are now stating that statement are full validation and are using it in court rooms that have judges that have absolutely no consumer law experience whatsoever.
    Assest Acc. just won a case in my local courtroom with just statements on a pro se litagant. That is all they had, nothing else.

  6. #6
    Quote Originally Posted by Ohio Boy View Post
    Are statements considered hearsay evidence? If the attorney only has statements to go on then should the OP compel the statements or more then just the statements because it appears that is all they are going to show.
    Many CA's are now stating that statement are full validation and are using it in court rooms that have judges that have absolutely no consumer law experience whatsoever.
    Assest Acc. just won a case in my local courtroom with just statements on a pro se litagant. That is all they had, nothing else.
    They didn't win because that was all they had but rather they likely won because the pro se litigant did not take the time to learn procedure and seek to strike the statements.

    Statements absolutely can be sufficient if they are properly introduced into evidence and there is no challenge made by the opposing party.

    And, simply stated, I don't have a lot of sympathy. One of the areas I have continued to harp on is that if someone wants to represent themselves, then they need to immediately be learning procedure before they ever even think of going into court alone.
    I am not *your* attorney and you are not *my* client. Nothing in this post shall be construed as establishing an attorney-client relationship.

    Would you rather us tell you what WILL happen or would you rather have rah-rah bull-droppings from someplace else?

    Just say NO! to TSA gropings at the airport after having first said HELL NO!!! to the Nude-o-Scope

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