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Can you explain this to me.. subject to provisions under rule

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16 of pretrial order The...
Can you explain this to me.. subject to provisions under rule 16 of pretrial order The court may permit withdrawal or ammendment of the admissions hen the presentation of the merits of the action will be subserved thereby and the party who obtains the admission fails to satisfy the court that withdrawal or amendment will prejudice that partyin maintaining the action or defense on merits ?
Submitted: 5 years ago.Category: Legal
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3/1/2012
Lawyer: Law Pro, Attorney replied 5 years ago
Law Pro
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What that rule is basically saying is - that the court upon your motion may allow for the amendment or withdrawal (even allow you to file out of time) of admissions when the judge thinks there is good cause to do so.

Generally, you have to file a motion to ask the court what you want them to do as to your "admissions".

In your case - allow you to file your answers/responses out of time.

"merits" in law means - This word is used principally in matters of defense of civil actions. A defense upon the merits, is one that rests upon the justice of the cause, and not upon technical grounds only (that time restraints within which to file your pleadings by is just a technicality) ; there is, therefore, a difference between a good defense, which may be technical or not, and a defense on the merits.

Everyone realizes in the legal profession that an attorney can keep the other side bottled up for years with litigation - motions, pleadings, discovery requests, depositions, etc.

That is the technical procedural process of the law and litigation.

That just because you didn't file your responses (answers and objections) to their requests for admissions on time you are thereby "prejudiced" when you have a "meritorious" defense.

Prejudiced - disadvantaged, unjust, unfair, inequitable

Merits - the actual and intrinsic rights and wrongs of an issue, esp in a law case, as distinct from extraneous matters and technicalities

Every time a judge makes a ruling - someone is prejudiced thereby.

However, it would be "unjust" in inequitable and place you at a disadvantage not to be able to file your responses to the requests for admissions out of time - although the opposition may be prejudiced it's not unjust or inequitable for the judge to allow you to do such especially when you have a meritorious cause of action.

It's a tough argument - that basically you have to argue to the court that you have a defense to the plaintiff cause of action and if not allowed to file your responses to their requests for admissions upon a mere technicality - it's unjust and patently unfair.

So you have to explain in your motion why you didn't file your responses on time (giving a good reason - merely forgot isn't good enough - you must have been under a false impression or someone was in the hospital or something).

Then you have to attach your responses to the request for admissions to the motion as an exhibit for the judge to be able to view them.

Then you can point to some of your responses to the requests for admission while arguing before the judge giving examples of what your meritorious defense is to the plaintiff's action.

It's not an easy endeavor to do all this and make the argument. What's in your favor is that you're pro se - judges usually bend over backwards for pro se litigants.


So that's it in a nutshell.




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Customer reply replied 5 years ago
So would being pro se and misunderstanding the ramifications of not responding be good enough. If I can argue the exhibits they have hold no weight and the plaintiff cannot win with the documents they have presented? There is no contractual agreement and the bill of sale for the debt has nothing in the body of it that states they purchased a debt that belonged to me. That the only way they can win is waiting for a technical default?
Lawyer: Law Pro, Attorney replied 5 years ago
No, doubtful - you need to give a better excuse as I stated. Misunderstanding the ramifications isn't a very good excuse - in fact a very poor excuse.

Arguing that the exhibits are irrelevant and that plaintiff cannot prove their allegations with the documents submitted - that's good.

That's a good argument as to the "merits" - but you need a better excuse as to why you didn't respond.

DO NOT use that you didn't understand the ramification of not responding - better to say your computer was down or your printer was broken or internet wasn't working because of your router problems. Something beyond your control.

I like that statement that the only way they can win is waiting and hoping for a technical default.

I'm not sure of the facts of your case - but it would appear that they need to prove:

1) a valid contract

2) a valid assignment of the contract to them

3) breach of contract, and

4) damages



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Customer reply replied 5 years ago
OMG...My computer did go down and I can prove it . So can I say my computer went down and since I couldn't research how to respond I didn't understand the ramifications? The reason I am saying that is because I put in a statement my interpretation was that by not responding I was under the impression this case would move to trial. And all they have as exhibits is an alleged account summary and a bill of sale for a computer excel file. After this response I'll accept and if I have any other questions I will ask a new one. Thanks so much
Lawyer: Law Pro, Attorney replied 5 years ago
It's something that the court can hang their hat on - that they don't unfairly prejudice or penalize the opposing party - by giving you the ability to then file your responses to their requests for admissions.

Do not say you didn't understand the ramifications - that shoots you in the foot.

Say you couldn't respond because your computer was down - you only have one computer and all your information is on that computer (which is why you couldn't use someone else's computer).

Say you wanted and planned on filing a response but couldn't because of the problem.

Definitely point out the deficiencies of their alleged evidence and say that by not responding to their requests for admissions - that evidence is now admitted which is unjust because the evidence is not evidence of anything.


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