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OC Plaintiff omitting "business records" during pre-trial discovery

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lulew

Junior Member
What is the name of your state (only U.S. law)? NY

Last month I filed my Answer to a Complaint regarding alledge credit card debt. My answer demanded proof in all causes of action, included discovery demands: interrogatories and production of documents. My answer also ask the court to dismiss the complaint with prejudice. A few days ago I received via regular mail 1 year of credit card statements, an unsigned cardholder agreement and a letter from the Plaintiff's attorney stating "If the enclosed documents do not contain all of the documents you requested, our client does not possess these documents. We will continue to work with our client to attempt to obtain as many of the omitted documents as possible, and will forward any additional documents as soon as possible." I interpret this as if the Plaintiff does not possess "Business Records" as required by law for this type of case. In their complaint lies an "account stated" cause of action which I understand is the Plaintiff can use to get a summary judgement when a defendant doesn't properly oppose the complaint. My goal is to oppose and create an issue of material fact that results in getting the case dismissed with prejudice.

In a few days we are scheduled to appear at a Pre-Trial Conference. I want to prepare a solid opposition and/or motion (whatever it takes) that creates an issue of material fact. I also want the judge to see this letter from the OC's Attorney. What would be the appropriate format and action to respond? Some guidance from the community would be appreciated. Thanks in advance.
 


Zigner

Senior Member, Non-Attorney
What is the name of your state (only U.S. law)? NY

Last month I filed my Answer to a Complaint regarding alledge credit card debt. My answer demanded proof in all causes of action, included discovery demands: interrogatories and production of documents. My answer also ask the court to dismiss the complaint with prejudice. A few days ago I received via regular mail 1 year of credit card statements, an unsigned cardholder agreement and a letter from the Plaintiff's attorney stating "If the enclosed documents do not contain all of the documents you requested, our client does not possess these documents. We will continue to work with our client to attempt to obtain as many of the omitted documents as possible, and will forward any additional documents as soon as possible." I interpret this as if the Plaintiff does not possess "Business Records" as required by law for this type of case. In their complaint lies an "account stated" cause of action which I understand is the Plaintiff can use to get a summary judgement when a defendant doesn't properly oppose the complaint. My goal is to oppose and create an issue of material fact that results in getting the case dismissed with prejudice.

In a few days we are scheduled to appear at a Pre-Trial Conference. I want to prepare a solid opposition and/or motion (whatever it takes) that creates an issue of material fact. I also want the judge to see this letter from the OC's Attorney. What would be the appropriate format and action to respond? Some guidance from the community would be appreciated. Thanks in advance.
You are lucky you received anything with your improper request for discovery.
 

lulew

Junior Member
Discovery can be requested at anytime before trial so why would you say that it is improper?
 

TigerD

Senior Member
While you were throwing in the kitchen sink, did you remember to deny their claims in your answer?

DC
 

tranquility

Senior Member
I agree. I am completely surprised. But, good for you. Now, you might want to make some proper discovery demands so you don't get creamed in court. You see, they only need to give you bubble gum wrappers at this point and, present the real stuff in court. When you say they failed to turn it over in discovery, so I object. They will say, "What discovery?".

Even if the items are properly demanded at a future point, I fail to see how such a turn over of documents would not be "business records". True, they may not be enough to prove things, but, they may. (It might depend if they are going on an "account stated" theory.)
 

lulew

Junior Member
While you were throwing in the kitchen sink, did you remember to deny their claims in your answer?

DC
Yes I did....I'm pro se and proactively researching my situation. This site has been helpful to me in the past situations. I'm hoping it will be just as helpful now.
 

lulew

Junior Member
I agree. I am completely surprised. But, good for you. Now, you might want to make some proper discovery demands so you don't get creamed in court. You see, they only need to give you bubble gum wrappers at this point and, present the real stuff in court. When you say they failed to turn it over in discovery, so I object. They will say, "What discovery?".

Even if the items are properly demanded at a future point, I fail to see how such a turn over of documents would not be "business records". True, they may not be enough to prove things, but, they may. (It might depend if they are going on an "account stated" theory.)
Yes, the complaint reads an "account stated" cause of action which I didn't admit or deny, however, demanded proof. I believe this is what I mainly need to oppose and create an issue of material fact to get the complaint dismissed.
 

tranquility

Senior Member
Yes I did....I'm pro se
You know, for some reason, I think we guessed.

Re-issue and serve discovery properly. Then you might get the business records affidavit.

Oh, if "accounts stated" they may not have to give you a signed copy of the agreement to prove up their case.

Reading edit:
You don't WANT to create an "issue of material fact" if your goal is to get the complaint dismissed. If such an issue is created, well, that's what trials are for.
 
Last edited:

lulew

Junior Member
You know, for some reason, I think we guessed.

Re-issue and serve discovery properly. Then you might get the business records affidavit.

Oh, if "accounts stated" they may not have to give you a signed copy of the agreement to prove up their case.

Reading edit:
You don't WANT to create an "issue of material fact" if your goal is to get the complaint dismissed. If such an issue is created, well, that's what trials are for.
Ok, well how do I oppose the statements, unsigned card agreement and letter that were mailed to me?
 

Zigner

Senior Member, Non-Attorney
Ok, well how do I oppose the statements, unsigned card agreement and letter that were mailed to me?
That is why you are going to lose. You intention was to find a loophole to duck out of the debt. You have no defense against the debt itself, do you?
 

lulew

Junior Member
Not looking for a loophole or to be tried by Zinger. I am simply asking the experienced community how to move forward. My affirmative defenses are clear in my answer. If the plaintiff has no proof then why waist the court's time with a trial.
 

Zigner

Senior Member, Non-Attorney
Not looking for a loophole or to be tried by Zinger. I am simply asking the experienced community how to move forward. My affirmative defenses are clear in my answer. If the plaintiff has no proof then why waist the court's time with a trial.
What do you feel your affirmative defenses are?
 

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