They haven't provided requested discovery items

[gls334]

In Wisconsin

A month away from trial date.
1. Prior to this, rep for the collection firm submitted witness saying person will provide all info about debt. (Terms and conditions, how debt was calculated, who has owned the debt...etc.)

2. We send a request to the firm asking for the same information they say their witness will provide as part of discovery. Nothing. Then we get a copy of the standard Terms and Conditions for a credit card, and the enclosed letter says they're waiting for their client to get the rest of the materials.

3. Yesterday an email shows up from their atty's paralegal stating their client won't be able to provide the materials requested for discovery in time for the trial. Then the message asks if we'd like to have the trial taken off the calendar. Then they offer that we could make payment arrangements.

Does it appear there may be new options? Is their inability to provide materials,( they said they'd have), for discovery an opportunity for a stipulation or potential dismissal? Should we have them remove the trial from the calendar?

Thanks,
GLS334

[yaka11]

If I am understanding your post, they have emailed you stating that they do NOT have the documents that this witness swore under oath, that they could provide, and now they are being 'friendly' to you asking if you wanted to get this off of the calender and then make payment arrangements?

Sounds like they want you to get all excited about them dropping the lawsuit that you will say YES YES YES, in the meantime, giving them an opportunity to try to come up with something down the line, to continue to collect on this debt, and to continue to let it sit and rot your credit report!

THEY have the burden of proof to the court, they said they had it, and now they dont.

Personally, I would ask for dismissal based on this, with predjudice, so they can never come after you in court. I would also ask for the court to order that this be removed from all 3 CBA's right away since they can not proove the debt...


Am I reading it right? I am sure that others who have been here longer will have some more clear 'legalease' answers and advice...but if it were me, I would finish this out, they cant proove are darn thing....

No proof=no judgement

HTH!
Angie

[Debt Guy]

OP

Do you have an attorney? Or, are you playing pro se?

[gls334]

RE: Haven't provided discovery items, etc

yaka11 and debt guy - thanks for your input. Short answer first:

Debt guy - we have done this ourselves so far.

Clarifying or restating:

1. The court asked for a list of witnesses as part of the usual procedure. We have/had none and replied so.
2. Their attorney's reply said they would have a witness, stated her name and qualifications. Then that letter said she would provide very specific documents and information ...the history of the debt and previous owners, how the total was calculated, payment history, Ts & Cs, and more.
3. So as a part of our discovery we requested everything they said their witness would be able to provide in court. Their attorney has only sent some generic T&Cs without a name, account or our signature on it and nothing connecting us to them - that is all we recieved to date.
4. Since, we got an email from their atty's paralegal (all previous communication have been letters from the atty) stating they needed more time to acquire all of our requested items and asking if we'd like the case pulled from the calendar, saying they'd entertain a payment plan.

I am past the date for motions, if I understand correctly, and not sure if I can still move for a dismissal. I was wondering about a stipulation. We have been just sort of waiting it out. Have an AUG 21 court date.

Thanks for your prompt reply. Not sure I'd get one so didn't check back until a couple days ago. Will check in more frequently. Thanks again.

gls334

[gls334]

Another brief clarification:

Our discovery request is/was limited to a verbatim list of the 'things' they said their witness would provide. We haven't requested any absurd little annoying items that would serve no purpose from the get go.

Originally Posted by Debt Guy

OP

Do you have an attorney? Or, are you playing pro se?

Should I consider these questions a suggestion that I should consult an attorney?

Many thanks,

GLS334

[Texas Pooh]

OP,

Please consult with a lawyer. You are entitled to the information you seek, before trial, but may need to file a motion to compel and/or may be able to argue that the evidence be excluded at trial. However, both motions require some knowledge of evidentiary procedures and how those need to be asserted in litigation.

Sounds to me like they are having trouble proving up the debt, which may give you some leverage in negotiations. Are you able to propose a realistic payment that would resolve the matter completely? You should be able to use the circumstances to negotiate the most favorable terms if they are concerned about proving the debt at trial.

[gls334]

Thanks for the solid input. You have confirmed my inclinations. Up to the point at which they indicated they couldn't come up with the items they initially said they would have, it was a pretty straightforward situation.

I would very much like to settle this outside of court. The wrinkle on the raisin is that it was a specific total. (A 'back burner' debt while keeping a former sole proprietorship afloat. That venture survive and was passed on.)

The complaint of the debt stated there was a balance about 10 months ago of $8,000. However over that 10 month to one year period they made some calculation that brought the total in the complaint to $17k.

So the need for the discovery items is reinforced, because we simply cannot reconcile the amounts, raising other questions. It got to the point where the litmus test "Do you owe the debt?" were asked, we'd have to say..."We don't know."

Right now, though, as you stated it appears the biggest likelihood for things go bad (worse) would be a procedural pitfall.

With continued gratitude,

gls334

[gls334]

Well this is amazing... The plaintiff is dismissing the case. Found out yesterday. Unheard of...I think...at least rare.

Thanks to all for your input.

GLS334

[gls334]

Naturally plaintiff's dismissal motion is 'without prejudice.' Can one request a counter motion or something to attempt to get the motion changed to 'with prejudice?'

We have five days to object to the proposed motion. Would that objection be filed with the court, or simply communication with their atty?

Alternatively, would the change to dismissal with prejudice be something accomplished subsequent to current dismissal?

GLS334

[debtcollector`]

You have been advised to talk to an attorney. I will repeated that advice strongly.

Move quickly and see if a local attorney can do what you want. Or wait for the process to start all over again.

DC

[gls334]

Yes, I did heed your advice. A couple days ago. We shall see what they conger up.

Thanks to all,

gls334