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Timothy D. Smith
Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 2044
Experience:  10 years practicing IP law and general litigation
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I am in the middle of a lengthy case...third time going to

Resolved Question:

I am in the middle of a lengthy case...third time going to pre-trial. The last notice signed with opposing council and approved by the judge was 1) to continue the trial that was sched for 5/13...and to set the matter for a case mgmt conf within 60 days.

Since then I received Plaintiff notice of serving docs (about the 5th time for this) and a Reply to Affirmative Defenses of Defendant (me) that states 1) Plaint denies all def affirm defenses, demands strict proof 2) Defenses are barred because of cond of the loan. 3) Requests Court Find in Favor of Plaint.

I have a response that states:

REPLY TO PLAINTIFF’S ASSERTIONS AND DEMANDS

Defendant, XYZ, hereby requests that the Plaintiff provide Defendant with the initial discovery requested March 18, 2013. Plaintiff has only provided Defendant with limited information and by their own admission have not supplied the mortgage origination file, correspondence with senior bank officials subsequent and immediately following the execution of the loan, and all other materials referenced in the attached correspondence handed to their new legal council of ZZZ, LLP on
May yy, 2013.

Plaintiff has evidence related to Defendant’s affirmative defenses including but not limited to information in its own files and Affidavits supplied by Defendant.

Defendant requires additional information as sited above and through additional discovery including depositions and other information that can be gathered relating to this case before the court. It is Defendant’s right incorporated in the Rules of Civil Procedure to have access to all information in Plaintiff’s possession and files that relate to this case before the court.

Plaintiff’s alleged assertion that Defendant’s defenses are barred and that the agreement and loan are binding on the Defendant are false…as the loan was fraudulently established, the Plaintiff violated multiple Florida and Federal laws in its pursuit of the mortgage and continued to make assertions following the signing of the mortgage that were in conflict with Florida law and the rights of the Defendant. Fraud vitiates all contracts.

Defendant reserves the right to add to its pleadings with regard to fraud and other defenses.

WHEREFORE, the Defendant requests the Honorable Court

1. will compel the Defendant to supply the additional information requested

2. will find in a favor of the Defendant that includes rescinding the mortgage, assessing legal fees and providing substantial damages against the Plaintiff. Defendant reserves the right to add to these pleadings during the pre-trial period and allowed in the pre-trial plan period.

Respectfully Submitted,


Questions:

Can I send a response to Plaintiff's REply to etc.

Is this format and title of the response OK?

Any other suggestions?
Submitted: 1 year ago.
Category: Legal
Expert:  Timothy D. Smith replied 1 year ago.

I hope this message finds you well. That looks pretty good. I would change the title to Defendant's Motion to Compel Discovery, or In the Alternative, Motion To Dismiss. You also may want to add some additional language in the second paragraph which specifically states that the Court cannot and should not find in favor of the Plaintiff predicated on the Plaintiff's willful and wanton disregard for the requests of the Defendant, which specifically results in an inability of the Defendant to answer the requests of the plaintiff.

 

In adding this language, you better insulate yourself from a summary judgment and also put the burden back on the plaintiff while at the same time painting your opponent in a bad light. This also goes to the Motion to Dismiss...you are asking that the court dismiss the fraudulent claim of the plaintiff based on the plaintiff's own reluctance to act in accordance with the rules, as well as their failure to state a claim upon which relief can be granted.

 

Let me know if you have any other questions or comments.

 

Best wishes going forward.

Customer: replied 1 year ago.

When your stating " you are asking the court to dismiss the fraudulent claim of the plainitiff" ....you're not mixing that up with the fact that Defendant is claiming fraud against Plaintiff...correct!


 


otherwise thanks so much for your advise

Expert:  Timothy D. Smith replied 1 year ago.
That is right...what I am insinuating in stating that is there is irony in the fact the plaintiff is alleging fraud while at the same time committing fraud before the court through fraudulent actions.
Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 2044
Experience: 10 years practicing IP law and general litigation
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