Re: Whychat - concerning discovery requests

Posted by lawguy (68.119.155.69) on March 15, 2003 at 20:47:46:

In Reply to: Re: Whychat - concerning discovery requests posted by Why Chat on March 15, 2003 at 20:02:38:

I think I see what you are trying to say.

But we must still remember that interrogatories must be answered as truthfully and completely as possible, based upon the knowledge of the party upon whom interrogatories have been served.

I think you are saying that if a CA (not an OC) sues on a debt, and has not provided any information as to how the debt was acquired by the CA, then the defendant may answer "no knowledge" when asked about the debt.

That could be permissible, depending on the facts of the situation. If CA has alleged in its complaint that the original creditor is say JCPenneys, and then asks questions about a particular JCPenneys account that the debtor actually had, then the debtor should answer the questions about the Penneys account as truthfully and completely as possible, barring permissible objections.

If CA just says in its complaint "debtor owes us this," then defendant may truthfully respond "no knowledge."

Regardless, CA still has the burden of establishing its right to collect the debt, and debtor would most likely have no knowledge of the dealings between CA and JCPenneys (if any.)

CA must provide the assignment of rights from Penneys to CA, otherwise, CA would lack standing to sue. Defendant may, and should, request production of this assignment in discovery. If such is not produced, the defendant should move for summary judgment based on the lack of standing.

Point is, under no circumstances should a person lie or otherwise be misleading in responding to discovery. I've not seen it, but I imagine that a judge or magistrate would be particularly strict with a pro se party who has responded to discovery untruthfully. The penalties for doing so can be severe--and even more severe than losing the case.

--The fact, by itself, that the debt is time barred does not permit the defendant to respond "no knowledge."

Note, that a limitations statute does not destroy the debt, it only prohibits recovery of the debt through the courts. The common saying is that limitations affects the remedy and not the right. (as opposed to a statute of repose, which will extinguish altogether the underlying obligation.) The "moral" obligation to pay the debt still exists, and the time-barred debt may be used as valuable consideration on a contract. Thus, the fact by itself that a debt is time-barred does not mean that a debtor could truthfully say "no knowledge" (in case the argument is that there is no debt because the limitations period has run.)

--Also, the fact that no validation was produced does not in itself permit the debtor to respond "no knowledge." If the debtor has knowledge otherwise of the account, he should answer the interrogatories truthfully.

But now we are getting into very specific factual situations, and this isn't what I'm trying to address. I'm just trying to shed some light on court procedures...

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