Tag Archive for: requests for production

Motion to Compel Cycle

The “Motion to Compel Cycle”

– What to do when the Company Suing You Won’t Answer Discovery

If you’re being sued for debt and following our system, you will serve “discovery” on the other side. That is, you will send them questions to answer called “interrogatories,” requests for documents, and requests that they admit certain things.

We do this because debt buyers usually don’t have the proof they need to establish their case, and even original creditors often don’t. We need to know exactly what they do have so we can prepare to show that it isn’t legitimate evidence. That will be important in resisting any motions they file, in filing our own motions, and preparing for and winning at trial.

You will send discovery, and no matter what you send, you will receive nothing but objections in response. This is called “stone-walling,” and it’s in every debt collector’s playbook. Do NOT just send another set of questions – it doesn’t matter what you ask, they will always object, so that would be useless. They might be stonewalling because they know they don’t have legitimate evidence, but frankly I think it’s mostly just a strategy to convince you to give up – to make you think you don’t have a chance against their lawyers and their money.

Don’t give up. Make them give you your answers.

To do that, you’re going to have to do the things that allow you to file a motion to compel, and then you will, obviously, have to file the motion, too. This whole process is what I call the Motion to Compel Cycle. So what is that?

Look at your rules of civil procedure for the rule on motions to compel. READ THAT RULE!

You will notice, in every jurisdiction I’ve ever seen, that the rule requires you to negotiate “informally” in good faith to resolve the issues raised by the other side’s objections. That is going to require you to call them up on the phone, speak to the lawyer on the other side, and discuss the objections. You will do this in good faith, but they certainly will not. And when you get through with this conversation, you will send them first a confirming letter if they’ve agreed to anything, and secondly what’s called a “good faith letter,” which outlines the items remaining in contention and states your basis for demanding the evidence.

So it goes like this:

Send discovery and wait for response

Call them to discuss objections

Write good faith letter outlining disputes and giving them a certain time to provide the information you demand

Wait for that time to expire

Write and file motion to compel.

It is possible they will respond with an argument. You should reply to that argument, but remember never to make any admissions of owing them or anyone money, of any prior relationship to the creditor, etc. NO ADMISSIONS AT ALL EVER. This is critical because they may slip a question in asking “don’t you owe __ the money?” or “don’t you already have the records? It was your credit card account!”

The only issue you should discuss is whether and why they owe you the discovery. Don’t forget.

This whole process is tedious and annoying because you know they are not in good faith. However, remember this: your efforts are requiring more attorney time spent on your case than many other cases combined would require. You are drawing blood with every minute you make them spend. And it’s the only way you will get what you need.

Remember in your first phone call to ask about EVERY SINGLE OBJECTION. I know there are dozens. Go through each one. It’s your right and responsibility, and it costs them $250/hour to talk with you.

Write a “confirming letter” if they make any concessions at all. Say “you said you would give me __ by [date]” and mention everything they agreed to. If they said they didn’t have anything responsive to a question or request, confirm that in the same way, too. You must create a written record.

You won’t get much, so you have to take the next step, the good faith letter where you say why you’re entitled to the information you request. If you’re using our model discovery, you’ll know what to say here.

They won’t give you anything even after this, in all probability, so your next step is the motion to compel. In that, you will include a statement about the phone calls you attempted, and you’ll attach your good faith letter. The court won’t hear your motion otherwise.

We have materials that could help you with all of the motion to compel cycle, from phone call to hearing.

 

 

Make them Answer Discovery

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Discovery – Requests for Documents

This is going to be a brief article. For a fuller discussion and samples, look in the Litigation Manual and Forms. Still, you should be able to create your own after reading this. If you do not already own the Debt Defense System, you should consider it. Membership with us allows us to help and guide you every step of the way.

As with other discovery, Requests for Documents are controlled by the rules of civil procedure for your jurisdiction. And there are two sets of rules you must consider: your state rules in general and, if you are in some sub-court of the state, the rules regarding your court; and your “Local Rules” if your court has them.

Sub-Courts

An example of what I mean by “sub-court” might be what we have in Missouri, Associate Circuit courts. These are courts that are designed to handle smaller amounts of money. Or small claims courts (even less money). Many states have similar types of arrangements, and these sub-courts will have their own special rules, and these rules always control when and how much discovery you can conduct. I normally suggest that people avoid these courts because the can be a little too relaxed about the rules. Relaxed rules may seem “easier” for you, but in reality what they do is let the debt collectors get information in that they couldn’t otherwise – and your best chance of winning is to keep that evidence out.

Even if you’re not in that sort of sub-court, your court may have “local rules,” which are rules designed to elaborate on your state’s rules of civil procedure. The rules of civil procedure will create the general structure of discovery and set the penalties for not cooperating – the local rules will establish certain limits: only a certain number, for example, or that they must be in a certain format (not “compound,” usually, meaning without sub-parts).

Whatever the situation, you must find the rules controlling your discovery, or you may do something wrong, giving the debt collector an easy out. To find your rules of civil procedure, follow this link. Any special rules may be mentioned in your rules of civil procedure or in your court’s web-page. I am not aware of these rules – but you must be.

Content of Requests for Documents

The term “document” for purposes of requests is very broad and contains things like electronic records, facsimiles, any non-identical copy of a record, etc. The term is usually defined in the rules of civil procedure, and the way you would define it is to refer to that rule: “by requesting documents, defendant intends all documents as defined by Rule ___, ____Rules of Civil Procedure.

What You Request

You want everything thing the debt collector could use to support its case or attack yours. At a minimum you should ask for any document in their possession or control which you signed or which they contend applies to you in any way. You want all documents relating to the amount or terms of any alleged debt, every document showing or relating to any agreement you made with them, including any notes or comments. You want every document showing or relating to anything you said. If you have a counterclaim, you’ll want to create requests that get everything they have related to that.

Standard

The standard for requests for production is that you are asking for documents in their possession or control. Possession is obvious, but control includes documents that other people have created for them or in support of their business: accountant’s records, for example, or account records (of your account) if the original creditor agreed to provide them if requested. If these documents are not provided or objected to, but then they try to use them at court, you should request to have them excluded from trial.

Objections

When the other side objects – as they will, to everything you ask – you will, eventually, have to eliminate those objections so that you can be sure you have everything they have. Just because they deny having something you would expect them to have, though, does not mean you can file a motion to compel. Rather – once they have answered, you pretty much have to take them at their word for not having stuff they say they do not have. That is, unless you have evidence they are actually hiding something.

Conducting Discovery When Sued for Debt Part 3

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Conducting Discovery – Part 3

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