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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Assistance with discovery responses

Customer Question

I've began drafting my response, but being a layman, still would like advice on what objections and answers are appropriate for disco requests sent to me by junk debt buyer.

INTERROGATORIES
No. 1: State the name, address and position or title of each and every person who has answered, provided any information, has been consulted, or has participated in the preparation of the Answers to these Interrogatories. For each such person identified, state which Interrogatories each answered or provided information used in answering.
No. 2: If You assert that the claim herein sued upon is the obligation of anyone other than Yourself, then state: (a) The name and present address of each such other person; (b) All of the facts upon which You rely in support of such position; (c) Your relationship to such other person or persons.
No. 3: If you feel there is any reason whatever why You do not owe the claim or debt sued upon, and if You have not fully stated such in response to the preceding Interrogatory, then state such reason or reasons here, and all facts relating thereto, without regard to any legal opinion as to the validity of same.
No. 4: Identify each person You are aware of who has knowledge concerning the facts and circumstances surrounding the matters which are the subject to the claims made against You in this lawsuit. For each such person, please state: (a) Name; (b) Occupation; (c) Business and residence address and telephone number; (d) A detailed summary of the matters within the knowledge of each person.
No. 5: Identify each and every document in your control or possession, or within Your knowledge, that in any way refers or relates to any defenses which You assert in this matter. With respect to each Document, please state: (a) The date of said Document; (b) The substance of the information set forth in said Document; (c) the present location of the original or, if there is no original, photocopies of said Document. In the alternative, you may attach copies of said Documents to Your Answers.
No. 6: State specifically and completely the factual basis of each and every defense, whether set forth in Your Answer, or otherwise, which You assert in this action. For each such defense, please provide the following: (a) State each and every fact upon which You base said contention; (b) State the name, address, and last known employer of each and every individual whom You believe has knowledge of the facts and circumstances upon which You base said contention; (c) If any such fact is referred to or embodied in any Documents, describe each Document with sufficient particularity to serve as a basis for a separate request for production of Documents. In the alternatives, You may attach copies of said Documents to Your Answers.
No. 7: State specifically and completely each and every act which You allege Plaintiff failed to perform in accordance with any agreement between the parties, which act(s) were precedent to any obligation by You to pay Plaintiff.
No. 8: List the addresses of every place where you have resided for the last ten years, and if you had your mail sent to another address, please list those addresses as well. Please identify whether the address was used as a residence, for mailing purposes, or both.
OBJECTION will be made at the time of trial to any attempt to introduce evidence which is sought by this discovery and to which no timely disclosure has been made.


REQUEST FOR PRODUCTION OF DOCUMENTS
No. 1: All documents relating to the alleged debt of Defendant.
No. 2: Every billing statement you have in your possession for the alleged account.
No. 3: All exhibits which Defendant proposes to introduce at trial.
No. 4: All sides of all checks that you contend constitute payment of any part of Plaintiff's claim and for which no credit has been given.
No. 5: Any letter or communication sent to the creditor disputing the alleged account.
No. 6: All documents claimed to support any defense, affirmative defense, or counterclaim, including but not limited to, bank statements, account statements, and written correspondence exchanged between Plaintiff and Defendant concerning the credit card account which is the subject of this litigation.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Tell me what your case is about?
Customer: replied 1 year ago.
Cavalry Portfolio is attempting to collect on an account they purchased from Bank of America. Their local lawyers (Gurstel Chargo) pocket filed a complaint in November. I responded timely and along with my answer sent my interrogatories, requests for production, and requests for admission. They did not timely respond, but finally (but partially) replied in March. At the end of April, I was served with their disco requests which I am currently working on a response.
Expert:  Zachary replied 1 year ago.
Sorry, I need to know more than that.

Calvary Portfolio is suing you?

Are you a company?

What kind of debt are they suing for?


Customer: replied 1 year ago.
My apologies for not responding more fully.

<>
Yes.

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No.

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Revolving credit
Expert:  Zachary replied 1 year ago.
Got it. My notes to each question are below:

INTERROGATORIES
No. 1: State the name, address and position or title of each and every person who has answered, provided any information, has been consulted, or has participated in the preparation of the Answers to these Interrogatories. For each such person identified, state which Interrogatories each answered or provided information used in answering.


Notes - This is a standard question. Just list your name unless you have an attorney or accountant or some third party which is helping you.

No. 2: If You assert that the claim herein sued upon is the obligation of anyone other than Yourself, then state: (a) The name and present address of each such other person; (b) All of the facts upon which You rely in support of such position; (c) Your relationship to such other person or persons.


Notes - this is a legitimate question. Does the debt over which they are suing belong to someone other than you? If so who?

No. 3: If you feel there is any reason whatever why You do not owe the claim or debt sued upon, and if You have not fully stated such in response to the preceding Interrogatory, then state such reason or reasons here, and all facts relating thereto, without regard to any legal opinion as to the validity of same.

Notes- This is a legitimate question. Is there any reason you feel that you do not owe the debt? However, I would object as follows: "Objection, this interrogatory is overly broad in that it seeks to force Defendant to marshal all its evidence and improperly attempts to place the burden of proof on Defendant in this case. Subject to the foregoing objections and without waiving the same, Defendant believes_____________(state why you dont' think you owe it, if you have a good reason...if you don't then just leave the objection as it is without this last sentence).


No. 4: Identify each person You are aware of who has knowledge concerning the facts and circumstances surrounding the matters which are the subject to the claims made against You in this lawsuit. For each such person, please state: (a) Name; (b) Occupation; (c) Business and residence address and telephone number; (d) A detailed summary of the matters within the knowledge of each person.

Notes - this is a legitimate question and you should answer to the best of your ability.

No. 5: Identify each and every document in your control or possession, or within Your knowledge, that in any way refers or relates to any defenses which You assert in this matter. With respect to each Document, please state: (a) The date of said Document; (b) The substance of the information set forth in said Document; (c) the present location of the original or, if there is no original, photocopies of said Document. In the alternative, you may attach copies of said Documents to Your Answers.

Notes - This is a bogus request. Reply with this objection only: "Defendant objects to this interrogatory on the grounds that it is overly broad, vague and ambiguous, failing in its entirety to identify with specificity the exact type of information requested and further attempts to force Defendant to marshal its evidence."

No. 6: State specifically and completely the factual basis of each and every defense, whether set forth in Your Answer, or otherwise, which You assert in this action. For each such defense, please provide the following: (a) State each and every fact upon which You base said contention; (b) State the name, address, and last known employer of each and every individual whom You believe has knowledge of the facts and circumstances upon which You base said contention; (c) If any such fact is referred to or embodied in any Documents, describe each Document with sufficient particularity to serve as a basis for a separate request for production of Documents. In the alternatives, You may attach copies of said Documents to Your Answers.

Notes - this is a fair question. What are the facts which back up your defenses. However, I would begin with an objection: "Objection, this interrogatory is overly broad and attempts to improperly exclude evidence which is not included in the response to the same, and in other words, attempts to force Defendant to marshal its evidence. Subject to the foregoing objections and without waiving the same, Defendant response as follows...."

No. 7: State specifically and completely each and every act which You allege Plaintiff failed to perform in accordance with any agreement between the parties, which act(s) were precedent to any obligation by You to pay Plaintiff.

Notes - If you have alleged this, then you need to explain what the Plaintiff did that shows that they should not be paid.

No. 8: List the addresses of every place where you have resided for the last ten years, and if you had your mail sent to another address, please list those addresses as well. Please identify whether the address was used as a residence, for mailing purposes, or both.
OBJECTION will be made at the time of trial to any attempt to introduce evidence which is sought by this discovery and to which no timely disclosure has been made.

Notes - This is a fair question and needs to be answered.


REQUEST FOR PRODUCTION OF DOCUMENTS

Notes - You need to gather all the documents you have regarding the debt, copy them and produce them as an attachment to your responses.

No. 1: All documents relating to the alleged debt of Defendant.

Notes - Objection, this request is overly broad, vague and ambiguous. Defendant is not in possession of all responsive documents. Further, this request attempts to force Defendant to marshal its evidence improperly. Subject to the foregoing objections, please see the attached responsive material.

No. 2: Every billing statement you have in your possession for the alleged account.

Notes - fair and needs to be produced

No. 3: All exhibits which Defendant proposes to introduce at trial.

Notes - Objection, Defendant is not required to produce its trial exhibits until ordered to do so by the court in its pre-trial order. Further, this request is overly broad, vague and ambiguous, improperly attempting to force Defendant to marshal its evidence.

No. 4: All sides of all checks that you contend constitute payment of any part of Plaintiff's claim and for which no credit has been given.

Notes - this one is fair...you need to try to retrieve these from you bank as well.

No. 5: Any letter or communication sent to the creditor disputing the alleged account.

Notes - this is fair.


No. 6: All documents claimed to support any defense, affirmative defense, or counterclaim, including but not limited to, bank statements, account statements, and written correspondence exchanged between Plaintiff and Defendant concerning the credit card account which is the subject of this litigation.

Notes -Objection, this request is overly broad, vague and ambiguous. Defendant is not in possession of all responsive documents. Further, this request attempts to force Defendant to marshal its evidence improperly. Subject to the foregoing objections, please see the attached responsive material.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN


Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
ZDN,

Thanks for your speedy reply! I will rate your question shortly. A few followup questions:

-- Interrogatories --
No. 2: This seems like a logic trap. If I answer that the claim is not the obligation of anyone else, how do I avoid asserting that I must be obligated by virtue of having just instantiated the liability in order to deny it is the obligation of another party?

No. 6: Affirmative defenses seemingly speak to themselves as legal theory or on points resulting from Cavalry's lack of evidence. Are there additional facts you would suggest I provide as a basis for each of these defenses?

<>
On information and belief, based on the information or lack thereof now available to Defendant, the following affirmative defenses may apply:
6. The Complaint fails to state a cause of action upon which relief may be granted.
7. Plaintiff lacks standing.
8. Plaintiff is barred from seeking relief from damages.
9. Plaintiff has failed to join a necessary party.
10. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.
11. Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.
12. Plaintiff’s calculation of interest is usurious or based on a rate that is greater than allowed by law.
13. Plaintiff’s claims are barred by the doctrine of laches.
14. Plaintiff’s claims are barred by the doctrine of waiver.
15. Plaintiff’s claims are barred by lack of privity.
16. Plaintiff’s claims are barred by the applicable statute of limitations.
17. Plaintiff’s claims are based on a contract that is an adhesion contract, and as such, all or portions of it are unenforceable.
18. Plaintiff’s claims are based on a contract that is illusory and therefore unenforceable.
19. Plaintiff has failed to state a valid claim for costs and disbursements incurred.
By alleging the Affirmative Defenses set forth above, Defendant intends no alteration of the burden of proof and/or burden of going forward with evidence that otherwise governs with respect to any particular issue at law or in equity. Furthermore, all such defenses are pleaded in the alternative, and do not constitute an admission of liability or that Plaintiff is entitled to any relief whatsoever.

No 7: I would argue that there is no agreement between me and Cavalry, so how could they fail to perform?

General Q: How would I (is it a good idea to) address that I cannot fully respond to the Plaintiff's requests as they have failed to fully reply to my requests for production?

-- Requests for Production --
No. 2: I asked for this as part of my discovery requests. Shouldn't statements be something that Cavalry needs to have had to establish liability without being speculative?

No. 4: Given Cavalry is pursuing this action under an accounts stated theory, can I not object to this as irrelevant and unduly burdensome?
Expert:  Zachary replied 1 year ago.
-- Interrogatories --
No. 2: This seems like a logic trap. If I answer that the claim is not the obligation of anyone else, how do I avoid asserting that I must be obligated by virtue of having just instantiated the liability in order to deny it is the obligation of another party?

Answer - That's a fair point. You could assert an objection as follows: "Defendant objects to the foregoing interrogatory on the grounds that it lacks a proper foundation. Specifically, it assumes that such "obligation" is valid to being with. The burden of proof on this issue is on the Plaintiffs. Defendant is not aware of any party whatsoever which is obligated on the Plaintiff's claims. It is Defendant's position that no one is obligated on Plaintiff's claims or for the alleged debt."

No. 6: Affirmative defenses seemingly speak to themselves as legal theory or on points resulting from Cavalry's lack of evidence. Are there additional facts you would suggest I provide as a basis for each of these defenses?

Answer - You carry the burden of proof on an affirmative defense. Thus you have to raise the evidence to establish them, unless they are on a purely legal basis.


On information and belief, based on the information or lack thereof now available to Defendant, the following affirmative defenses may apply:
6. The Complaint fails to state a cause of action upon which relief may be granted.

-purely legal (you will have to move on this or it waives the defense...why does the plaintiff's cause of action fail on its face?)

7. Plaintiff lacks standing.

Answer - You need to state that there is not nor has there ever been any contractual privity between you and the Plaintiff and that the Plaintiff has not produced any evidence to show that it has a valid claim or has standing to assert the alleged debt.

8. Plaintiff is barred from seeking relief from damages.

Answer - I'm not sure I understand what this defense is. But you would simply explain what facts support this defense.

9. Plaintiff has failed to join a necessary party.

Answer - what other party should be part of the action?

10. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

Answer - This supports itself as a statement of fact.

11. Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

Answer - This supports itself as well (although it is probably irrelevant as most revolving credit agreements contain a clause that allows the lender to assign the contract without your consent.)


12. Plaintiff’s calculation of interest is usurious or based on a rate that is greater than allowed by law.

What is the rate which you claim is allowed by law?

13. Plaintiff’s claims are barred by the doctrine of laches.

What facts constitute laches here?

14. Plaintiff’s claims are barred by the doctrine of waiver.

How did they waive their claim?

15. Plaintiff’s claims are barred by lack of privity.

Simply state that there is no contract between you and the Plaintiff.

16. Plaintiff’s claims are barred by the applicable statute of limitations.

State when you believe the statute of limitations lapsed (statute starts from the day of your last payment?)

17. Plaintiff’s claims are based on a contract that is an adhesion contract, and as such, all or portions of it are unenforceable.

Here you would state that you were not given any opportunity to negotiate any portion of the contract.

18. Plaintiff’s claims are based on a contract that is illusory and therefore unenforceable.

Illusory means that there was a promise that could never be completed. What promise does this refer to?

19. Plaintiff has failed to state a valid claim for costs and disbursements incurred.

How so?

By alleging the Affirmative Defenses set forth above, Defendant intends no alteration of the burden of proof and/or burden of going forward with evidence that otherwise governs with respect to any particular issue at law or in equity. Furthermore, all such defenses are pleaded in the alternative, and do not constitute an admission of liability or that Plaintiff is entitled to any relief whatsoever.

No 7: I would argue that there is no agreement between me and Cavalry, so how could they fail to perform?

That's a valid argument.

General Q: How would I (is it a good idea to) address that I cannot fully respond to the Plaintiff's requests as they have failed to fully reply to my requests for production?

Answer: You state, "Discovery is still ongoing and Defendant is in the process of gathering responsive information, some of which is in the possession of Plaintiff. Defendant will supplement this answer in a timely fashion pursuant to the Rules."

-- Requests for Production --
No. 2: I asked for this as part of my discovery requests. Shouldn't statements be something that Cavalry needs to have had to establish liability without being speculative?

Nope. They are entitled to have you produce them if they are in your possession.

No. 4: Given Cavalry is pursuing this action under an accounts stated theory, can I not object to this as irrelevant and unduly burdensome?

You can make such an objection, but relevance is the weakest of all the objections. Plus, the payments are relevant to how much is owed on the debt at controversy. So, a relevance objection would likely be overruled. In regard to an unduly burdensome objection, this might be a good point, as the information can be shown in a less burdensome manner (like just producing your bank statements showing the payments made). If you say that they should have evidence of all the payments made by their account information, you are waiving the argument that you may have made more payments than they show you to have made.

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