Not logged in? Join one of the bigest Law Forums on the Internet! Join Now!   Latest blog post: Tips for Achieving an Amicable Divorce

Advertisments:




Sponsor Links:

Discount Legal Forms
Discounted Legal Texts


SHOULD I MOTION TO STRIKE OR FILE A SUBPOENA FOR THE TRIAL?

Discuss anything relating to Consumer Law

SHOULD I MOTION TO STRIKE OR FILE A SUBPOENA FOR THE TRIAL?

Postby colten » Wed Oct 26, 2011 12:10 pm

I have to go to court next month in Florida because a Junk Debt Buyer attorney sues me for a Credit card debt. I have already filed my Answer and Affirmative defenses and I went for a pretrial conference a couple of weeks ago and the attorney said he can provide 15 pages of evidence and they are not settling the debt for less than the amount I am sued for. I have received 3 pages of the evidence: Affidavit of Debt or Sale; Bill of Sale; Plaintiff's witness list. I don't know what my next step should be. I have been reading some articles online for striking them all or I can file a subpoena for a debt validation.
I have a couple of questions here since I am not an attorney.
1. Is it better to file three separate motions to strike or a subpoena for debt validation together with a debt collector disclosure statement containing 50 questions OR BOTH.
2. If it is better to file the motions to strike am I allowed to file 3 motions at the same time in Florida or it should be one motion striking all three pieces of evidence- the affidavit, the bill of sale and the plaintiff's witness list.
3 I went to the clerk of courts and they gave me three subpoena forms- "SUBPOENA DUCES TECUM FOR TRIAL; SUBPOENA FOR TRIAL; SUBPOENA FOR DEPOSITION.
I am not sure which one of those I should use to fill up the following.
The contents of the subpoena should be the followings:
--------------------------------------…
" I ,the Defendant in the above captioned lawsuit, hereby, respectfully, demand from the Plaintiff the followings:

a). The original Credit Contract, signed by me, setting forth the terms of such a contract.

b). The Debt Purchasing Agreement, setting forth the terms, legality, right and extent of transfer. Please do NOT provide a Bill of Sale, as it does NOT set forth the full terms of the alleged debt purchase, nor does it show what rights has been transferred.

c). A copy of all receipts, for all the purchases, allegedly made by the Defendant, and which has contributed to the total amount of the alleged debt owed, as maintained and reflected in the records of the Plaintiff.

d). A certified complete itemized break down of the amount alleged owed.

e). A sworn Affidavit to the followings:

1). That no consumer protection laws, both State and Federal, has been violated in bringing about this lawsuit.

2). That the total amount alleged owed, is owed in its entirety, to the plaintiff.

3). Whether or not, any part of this alleged debt has been charged-off, claimed as a loss, or an insurance policy has been claimed, as a compensation, by any creditor or debt collector.

f). Fill in the attached Debt Collector Disclosure Statement. (44 questions)
colten
 
Posts: 18
Joined: Sat Apr 02, 2011 1:54 am

SHOULD I MOTION TO STRIKE OR FILE A SUBPOENA FOR THE TRIAL?

Postby eoforwic » Wed Oct 26, 2011 12:17 pm

None of the above. A motion to strike does not apply in this situation. A motion to strike is used to strike redundant, immaterial, impertinent, or scandalous matter from a pleading. Evidence is not a pleading and is generally not subject to a motion to strike. Instead, during trial, you will use the appropriate evidentiary objection and may move to strike it from the record. Bottom line, you cannot move to strike the 3 pages of evidence. By the way, if you were able to file a motion to strike, you would file one motion but identify all information you wish to strike in that motion (not three separate motions).

A "subpoena for debt validation together with a debt collector disclosure statement containing 50 questions." What??? There is no such thing. A subpoena is a writ issued by the court or an officer of the court ordering someone to do something. A debt validation is a right under the FDCPA, not a rule of civil procedure. Finally, if you want to send written questions to a party, you would send them interrogatories. However, you are limited to 30 questions including all subparts unless the court permits you to exceed this number. Anyway, you have combined several different things to come up with something that does not exist.

Subpoena duces tecum for trial would require a non-party to produce certain evidence as of the date of the trial. Subpoena for trial would be used to require a witness to show up to testify at trial. Subpoena deposition would be used to require a witness to show up for a deposition. A deposition is a form of discovery whereby you are allowed to ask the witness questions under oath prior to the date of the trial. Anyway, none of these apply in your situation. Bottom line, your using the wrong forms to do things the forms are not designed to do.

Anyway, the big problem is that you did not address these issues at the pretrial conference. That's why a trial was scheduled next month. You should have advised the judge that you wanted to conduct discovery and informed him that the case was not yet ready for trial. You have to send a motion to the court requesting a continuance and send your discovery requests to the opposing party. Since the other party is represented by an attorney, normal discovery rules apply even if the matter is in small claims.
eoforwic
 
Posts: 25
Joined: Fri Apr 01, 2011 3:00 pm


Return to Consumer Law

 


  • Related topics
    Replies
    Views
    Last post