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Mik1404 · Jul 8, 2008, 02:55 PM

An attorney within my state has taken over a contract for a cc debt. The original debt was for 5,000.00 and now with fee's they want $14,000.00. I originally proposed a settlement with monthly payments that was ignored. I don't deny the debt rather the amount. The law firm claim they are representing FIA card services although prior to this firm another firm had contacted me regarding the debt. I received a court summons. I have sent an Intent to Defend for the debt to the court and attorney. I sent a motion for discovery/interrogatory to the attorney in question. The attorney sent me back (9 days late) an Objection to my Interrogatories. Basically they objected to every Discovery request I had. Attached is the Objection, my request are included as well. My question is what direction should I take if any? It seems they won't produce the documents because they don't have them. Any insight into this matter would be much appreciated. Attached is the Objection, my request are included as well. Thanks!

Fr_Chuck · Jul 8, 2008, 03:08 PM

Motion to court to dismiss case for refusal to respond in timely manner to request and failure to supply requested info

Mik1404 · Jul 8, 2008, 03:50 PM

How do I go about the wording for a correct motion to dismiss? Are there any negatives in doing so? Thanks again!

TheCleaner · Jul 9, 2008, 05:07 AM

No negative effects, about the wording I don't know you should look around in Google. How old is that debt? Still inside SOL?

I've been readig the response, it is Bull S. tipycal JDB stuff, in your motion to dismish make sure to mention that they had refuse to provide: proof of the debt, proof of ownership and proof of the amount claimed, don't ever ask again for the amount they paid for the account, that is not your business but make sure to ask for proof of ownership, purchase agreement or whatever, he price they paid should be there. The important part is the point #9 They screw up big time in there now is time to file dismissal with the court.

Carl,-

Mik1404 · Jul 9, 2008, 05:24 AM

Thanks Carl,

Last transaction was about 2006. I believe RI has a SOL for 10 years. Thanks for everyone's help. I will post an update.

TheCleaner · Jul 9, 2008, 05:38 AM

Yes it is 10 years, also the legal interest rate is 12% since they can't show a credit contract now they are violating the usura laws in your state.

ScottGem · Jul 9, 2008, 07:12 AM

Ok, I'm going to take a different tack here. While I believe the attorney is hiding behind the letter of the law, I think you goofed in your list of requests. I think you went way overboard and gave them the opportunity to refuse. I think this is what happens when people try to be lawyers. If you are going to represent yourself in a matter like this, then use the KISS principle. Don't try to out legalese a lawyer, it won't work.

At this point, I think its too late. So you just have to go into the hearing and ask for verification. What you are entitled to is:

1) A copy of the original credit application showing your signature
2) A record of payments on the account
3) An accounting of how they reached the sumn they are suing for.
4) Proof that they are legally entitled to collect on the debt.

You are not entitled to several of the requests you made and the plaintiff was correct in objecting to them. Other requests were too broadly worded and constitute a fishing expedition that the plaintiff can object to.

Mik1404 · Jul 9, 2008, 07:25 AM

Should I still seek to dismiss? Or should I just wait for a court date? I concur that some of the request may be more information than they want or believe should give. However even the basic request for information (#5) was dismissed. In my Intent to Defend which was filed, I requested proof via a signed original contract. It was never even acknowledged. It just seems that they are not willing to negotiate a settlement nor provide any proof of contracts. Thanks for your help, I truly appreciate it.

ScottGem · Jul 9, 2008, 07:34 AM

But even with #5 you went too far. Had you restricted it to the copy of the original credit app, that would have been OK, But once you added in those other documents you overstepped allowing them to object in general. You have no right to any thing the creditor used to decide whether to grant credit other than the original app.

But at this point, I would prepare a motion to dismiss. I would word it very simply:

I Move to dismiss this suit on the grounds that the plaintiff has not provided sufficient proof that I incurred this debt.

Again the KISS prinicple. If you try to get too legalese the judge will be forced to rule on legality of your motions according to prevailing law.

Then take this document with you to the hearing. Ask the judge to have the plaintiff produce the necessary documentation you listed, ONE AT A TIME! First ask for the copy of the credit app or contract. If they can't produce that everything else is moot and you ask for dismissal. If they can produce the contract, then you ask for an accounting. This is to determine SOL as well as balance. Then ask for proof they are entitled to collect.

Mik1404 · Jul 9, 2008, 08:01 AM

Thanks again!
Should I list the 4 Items within the Motion to Dismiss? Do I need to provide a copy to the Attorney and/or include my original Interoggatory request?

ScottGem · Jul 9, 2008, 08:16 AM

Do you understand what the KISS principle is? Stop trying to be a lawyer. You aren't and the judge will understand this and will, most likely, give you some leeway. Especially if this is small claims court. You may not even have to have a written motion. What it should come down to is this:

You: Your honor, I submitted a request for verification of the debt. The plaintiff objected to all my requests. I understand I may have worded those requests poorly, so I ask now if the plaintif has proof that I incurred this debt. If so, have him produce it. If not, I request that the suit be dismissed.

Mik1404 · Jul 9, 2008, 12:18 PM

Thanks for your help!

TheCleaner · Jul 9, 2008, 01:17 PM

You file with the court and then send a copy to the attorney. In your motion add to what Scotgem said something as "Even in the event the plaintfill produce evidence of the existence of the alleged debt hey had no provide any evidence proving that they are entitled to receive payments" That's the purchase agreement and they will not bring that to court, no matter what, without it they have no right to get your money so the whole thing gets dumped.

Don't ever use the word "verification" The concept is defined in the FDCPA and the only thing required to be in compliance with it is an affidavit,that's what they are trying to do.

You are asking for a complete validation of the debt, it has nothing to do with credit laws.