Expert: Creditwrench - 5/12/2009

Question
QUESTION: Collection company/lawyer on behalf of original creditor begin collection process, I sent validation letter certified mail. They only sent back a couple recent account statements, no original contract and statements did not show details of total amount owed. This is recent debt and not out of SOL.

I was then served a summons on a complaint of debt owed. I answered the complaint, sworn, sent certified mail denying and asking for proof, statement and original signed contract. I stated that since they continued collecting after validation letter and did not provide proof they are in violation.

It's now about 45 days later I just received Discovery, Plaintiffs First Interrogatories, First requests for production and first request for Admissions to Defendant. It says I am required to respond within 21 days. This came from Plaintiff lawyer, not the Court.

This is in the Circuit Court of Virginia.

What is my next move?

1) Do I simply not answer and wait for Court to require me to answer discovery?

Or will they never require that, and the next notice I get is summons for conference?

2) Or do I answer basically : Defendant has insufficient information to affirm or deny and leaves the Plaintiff to their proof, etc, giving them really nothing that could be used against me?

Then file same defendant discoveries?

I realize I don't know the correct process or procedure, though I do not have the money to hire an attorney. I would greatly appreciate guidance on my next move.

ANSWER: You need to answer but I'd wait until the last minute to answer. In the meantime I would get my demand for admissions in to them ASAP. How to answer depends on each question. I can't tell you how I would answer without knowing all the questions.


---------- FOLLOW-UP ----------

QUESTION: Thank you for your response. See below the discovery questions I received to answer (Plaintiffs First Interrogatories, First requests for production and first request for Admissions). Note that they included in discovery package they sent to me all account statements with itemized charges, but did not include original signed contract.

You also said I should then send them admissions immediately, do I not send interrogatories, or request to produce as well? Please see below what I had planned on submitting to them.

THEIR DISCOVERY TO ME:

FIRST REQUEST FOR ADMISSION

1. Admit that you made application to Plaintiff and/or were granted a credit account by Plaintiff.
2. Admit that the attached account agreement, which is marked as Exhibit A, is a true and authentic copy of the credit agreement governing the account referenced in the preceding paragraph.
3.   Admit that the account statements, which are attached as Exhibit B, are genuine.
4.    Admit that you derived benefit from the credit card account referenced in request number 1.
5.   Admit that you agreed to repay all sums loaned on the above account in
accordance with the terms and conditions of the credit card agreement attached as Exhibit A.
6.    Admit that you have failed to honor you payment obligations with respect to the
above account and are in default with respect to said account, despite repeated demand for payment by plaintiff and/or plaintiff's agents.
7.    Admit that the principal balance outstanding on the account referenced in the preceding paragraphs equals $xx, xxx, less credits of $xx
8.    Admit that you are indebted to plaintiff in the amount of $xx with
interest at x % from xx until judgment and thereafter at the judgment rate of interest, plus costs, less credits of $xx
9.   Admit that you have no defenses, counterclaims or rights of set-off with respect
to the above account.
10.    Admit that the Plaintiff, American Express Centurion Bank, is entitled to Judgment in the
amount of $XX with interest at X% from X until judgment and thereafter at the judgment rate of interest, plus costs, less credits of $X

FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS

1.    Please produce all documents that you intend to introduce at the trial of this action.
2.    Please produce all correspondence or records of conversations initiated
by the Defendant between the Defendant and the Plaintiff during the time period
between XX,  and the present.
3.    Please produce any and all documentary evidence that demonstrates
what amount or amounts of Plaintiff's claim is disputed.

FIRST INTERROGATORIES

1.    Please state the name, address, home telephone number, work telephone
number and occupation of the person or persons answering these interrogatories.
2.   Please name each and every witness that you intend to call at the trial of the above matter. For each witness identified, please include the witness's name, address, home telephone number, work telephone number and occupation, as well as a brief summary of each witness's believed testimony.
3.   Please name each and every expert witness that you intend to call at the trial of the above matter. For each expert witness identified, please include the witness's name, address, home telephone number, work telephone number and occupation, as well as that witness's area of expertise.
4.   Did you make application for a credit card account provided by the
Plaintiff?
5.   Did you make charges on the credit card account referenced in the
preceding paragraph for goods sold and delivered and/or services rendered?
6.   Are the account statements attached to Plaintiff's Request for Admissions factually correct? If your answer is in the negative, state all facts and circumstances supporting such contention.
7.   Is it your contention that you owe a lesser amount than is requested in Plaintiff's Complaint? If so, what amount do you contend that owe to the Plaintiff?
8.   Was any complaint every made prior to the filing of Plaintiff’s Complaint regarding the balance shown as due on Plaintiff’s Complaint? If, so state the date(s) therof, to whom made and the details of the complaint

MY PLANNED DISCOVERY TO SEND TO THEM:
REQUEST TO PRODUCE
1.   All invoices created by the Plaintiff.  
2.   All statements created by the Plaintiff.  
3.   All cancelled checks evidencing payments by Defendant to the Plaintiff on the account in suit.  
4.   All contracts, agreements and memoranda of agreements between the parties.  
5.   All correspondence received by the Plaintiff from the Defendant.  
6.   All correspondence sent by the Plaintiff to the Defendant.  
7.   Plaintiff's entire file concerning the matter which is herein in controversy.  
8.   Plaintiff's account payable ledger or book or record, kept in the usual course of Plaintiff's business, pertaining to the account of Defendant with Plaintiff.  
9.   Any written objections sent by Plaintiff to Defendant claiming objections to the payments to the account.  
10.   Any written notification sent by Plaintiff to Defendant claiming any objections to the payments to the account.  
11.   All documents identified in the Interrogatories filed with this Request to Produce.  
12.   All documents which would evidence why Defendant(s) failed to pay the debt as alleged in the Complaint.  
13.   All documents evidencing that Defendant(s) owes the money alleged in Plaintiff's Complaint.  
14.   All documents evidencing payments made by Defendant(s) on this account.

REQUEST FOR ADMISSIONS
1.   You have no signed contract or signed application for credit which shows the Defendant applied for a Credit Card.  
2.   You have no signed contract or signed application for credit showing that an account was established in the Defendant's name and a Credit Card was issued to the Defendant.  
3.   You have no written contract entitled Cardmember Agreement that states the terms and conditions that the Defendant agreed to.  
4.   You have no written and signed contract stating the Defendant would be responsible for all charges made on the account in connection with all Credit Cards issued on the account.  
5.   You have no merchant receipts showing the charges that were incurred on the account in the sum of $X.

NOTICE OF SERVICE OF INTERROGATORIES
1.   Please state the name, business and home addresses and telephone numbers, of the persons answering these interrogatories.  
2.   If you claim that the charges billed are correct please state, with particularity, how such charges are calculated.  
3.   Please list each person known to you or to your attorney who has personal knowledge of the matters involved in this lawsuit, and as to each, please state their name, home and business addresses and telephone numbers, and relationship to the Plaintiff(s), if any.  
4.   State the names, addresses, and telephone numbers of each person who you intend to call as a witness at the trial of this case, and provide a brief synopsis as to the anticipated testimony of each.  
5.   State the name of the person or employee of Plaintiff who is responsible for the generation of invoices and statements.  
6.   State the name and address of the person who is the records custodian of the books and records of Plaintiff.  
7.   With reference to each and every claim you have stated, state the factual basis for your claim, identify all persons who have knowledge of the facts supporting the claim and state the date and description of any documents which would support the claim.  
Very much appreciated!


Answer
That's just way too much for me to answer here. It would end up being all jumbled together and impossible to decipher even if I were willing to spend the time to answer all of them. But I've printed this page out and if you will call me at (405)237-2174 I will help you get most of them worked out. I'll be busy from 8:00 to 9:00 central time this evening on a Jurisdictionary conference call. I'll also be out of pocket tomorrow evening from 6:00 to 10:00 because I'll be at my local Jurisdictionary chapter meeting. I'm president so I can't miss that.
Friday evening I have my own conference call which starts at 7:00 P.M. and runs to whenever. That is open to the public and the phone number is 1-712-432-1601. The pin is 508548#. You are cordially invited to call in and participate. If you can call me at the (405) 237-3274 number most any other time I'll be glad to spend some time helping you out. You ask whether you should send interrogatories, demand for admissions and production of documents all at the same time. I say you shouldn't do that because I think you should send admissions first then when the answers come back from that you can use their admissions or failure to admit as a foundation upon which to build your list of demands for production of documents and if that don't come out right then build your list of interrogatories based on what you got from them in the first to discovery demands. If you do it any other way you are simply trying to shoot fish in a barrel. The water deflects the bullet and you get nowhere.