Petition Filed by Plaintiff

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

ROBERT C. SEARLE AND MARIA D. SEARLE,

Plaintiffs

NO. CV04-0948-LC

Versus

JUDGE TRIMBLE

S & P CAPITAL INVESTMENTS INC. and

CITIFINANCIAL INC. MAGISTRATE JUDGE

Defendants WILSON

REPLY MEMORANDUM IN RESPONSE TO OBJECTION BY CITIFIANCIAL INC. TO PLAINTIFF’S MOTION TO DEEM ADMISSIONS ADMITTED AND RULING ON THE SUFFICIENCY OF ANSWERS TO REQUEST FOR ADMISSIONS

Plaintiffs ROBERT C. SEARLE AND MARIA D. SEARLE present this reply to the objection raised by CitiFiancial Capital Inc. (S&P) regarding plaintiff’s motion to Deem Admissions Admitted and Ruling on the Sufficiency of Answers to Request for Admissions.

Facts:

Plaintiffs originally requested admissions 4 May 2004, and both defendants objected on the untimely submission of these admissions (before the 26(f) conference). Plaintiffs then requested admissions 9 July 2004, and CITI responded to these admissions 10 September 2004.
Defendant CITI raised several objections in their answers to request for admissions, also, CITI mischaracterized plaintiffs grounds for this motion. Primarily incorrect is CITI’s assertion that to admit to the genuineness of documents, the documents are required to be in the custody and control of the party served the admissions.

This is not in keeping with Rule 36(a), as stated: “Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying.”

If the served party had custody and control of a document which opposing party had requested admission the genuineness thereto, there would never be request for admissions, as the issue would summarily be moot and therefore negate the Rule.

The fact that Rule 36 exists to expedite trials by resolving issues which are not disputed. See, e.g., Berry, 110 F.R.D. at 442; Charles Alan Wright and Arthur R. Miller, 8 Federal Practice and Procedure § 2252 (2d ed. 1994). “The rule is intended to expedite the trial and to relieve the parties of the cost of proving facts that will not be disputed at trial, the truth of which is known to the parties or can be ascertained by reasonable inquiry.”

Additionally, the term “genuine” has somehow been misconstrued. A simple reading of Webster’s Dictionary New College Edition: genuine...adj. 1. Actually possessing or produced by the alleged or apparent attribute, character, or source; not artificial: genuine sorrow; genuine leather. 2. Not spurious or counterfeit; authentic...

Further, Black’s Law Dictionary: genuine, adj. 1. (Of a thing) authentic or real; something that has the quality of what it is purported to be or to have <the plaintiff failed to question whether the exhibits were genuine>. 2. (Of an instrument) free of forgery or counterfeiting <the bank tell could not determine whether the signature on the check was genuine>. UCC § 1-201(18).

To dispute the genuineness of documents is tantamount to accusing the opposing party of forgery.

Also, the defenses raised should be reviewed with these admissions, as they contradict issues raised by the defense in the answers to the request for admissions. The question arises, will each of these facts be disputed at trial?

Specifics:

A. Request for Admissions No. 1

(a) “Exhibit A1: Statement of First Family Financial Services.”

CITI’s objections are based on a false assertion that First Family Financial Services is a third party. Citing case law in order to refrain from conducting a cursory inquiry does not constitute a reason for denying the request.

In Herrera v. Scully 143 F.R.D. 545; 1992 the Court, in it’s review of the “Standards of Review Under Rule 36” lists subordinates such as: “any of defendant's officers, administrators, agents, employees, servants, enlisted or other personnel, who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response.”

First Family Financial Services (FFFS) was bought/merged with The Associates in or about 1992. In November 2000, CITI bought/merged with The Associates. CITI000013, a listing of employees at the Deridder, LA offices of CITI contain several personnel from the FFFS office, as their place of employment did not change from onset of the causes leading to this lawsuit.

FFFS is wholly owned and operated by defendant CITI. Additionally, all the records contained in the former companies are in the control, custody, and most definitely in the possession of the defendant: CITI.

(b) “Exhibit A2: Copy of Check #3805 paid by Sabine State Bank in the amount of $340.71.”

CITI again objected to ‘possession, custody or control’ a moot point, as Rule 36 was enacted by Congress to relieve the Courts, at trial, from the burdensome task of certifying each and every obvious document or statement it is presented.

CITI purports, again, to not being FFFS. The facts do not support the position.

Given that CITI’s own exhibit (CITI000007) indicates the accuracy of the check, will CITI require the Court mandate they provide the deposit records of FFFS from January-March 2000 before they admit?

The reply given in (b) above suffices.

(d) “Exhibit A4: Worksheet indicating proper amounts from Exhibits A1-A3.”

Whether CITI utilizes the exhibits plaintiffs extract the data, and only data, from or utilize

their own exhibits, is moot, and since the computations are simple, plaintiffs will not object to withdrawing this admission, as it is confirmed by the facts.

(e) “Exhibit B1: Corporate history of “The Associates” from CitiFiancial web site, four Pages”

Although admitted, CITI now quibbles over what the document from their web site says. Upon looking up First Family Financial Services with the Louisiana Secretary of State, First Family Financial Services Inc. currently lists 300 St. Paul Place, Baltimore, MD as their current principal place of business, the same address as CITI.

(f) “Exhibit B2: Extract of Experian updated Credit report indicating S&P Capital Investments Inc. and Allied Finance Co having been updated as of 04 February 2004 two pages.”

CITI objects with their standard objection, although their produced documents (CITI000001 & 2) as well as their admitted facts, in their response to admissions 2(j) and 2(l), “CitiFinancial admits that [in December 2003], it reported credit information regarding account number 1509099717878750 to credit reporting agency(ies). Then CITI objects on the grounds it would have to procure subpoenas from third parties to authenticate the document.

This flies in the face of reason, if plaintiffs required a subpoena from “Allied” they would have to serve the subpoena to the proper person. Upon inquiry at the Secretary of State of Louisiana, we find that proper person “Allied”, is under the licensure of “The Associates”, a Dallas Texas Corporation, “The Associates” is a wholly owned subsidiary of CITI, having been purchased by CITI.

(g) “Exhibit B3: Extract of TransUnion credit report indicating S&P Capital and CitiFiancial as creditors dated 17 December 2003 two pages.”

(h) “Exhibit B4: Extract of Equifax credit report indicating S&P Capital as a creditor updated February 2004.”

CITI objected with their standard response, and the Equifax report indeed does not

contain a company owned by them, except, that S&P has acknowledged the reporting to the CRAs, and S&P bought the Account from CITI (via The Associates) fully two years after the note was cancelled.

(i) “Exhibit C1: Affidavit of Michael B. Rodriguez dated 20 April 2004.”

The objection is based upon an improper premise. CITI now states plaintiffs are going further than the request. The affidavit is just that, a genuine affidavit, not forged, altered, or otherwise not authentic. The statements therein are of course subject to questioning, deposition, and verification, in another arena. CITI cites T. Rowe, 174 F.R.D. at 47, which actually argues in plaintiffs’ favor. The attestation of the affidavit in no way removes any of CITI’s defenses as to the statements contained therein. This request, although misinterpreted by CITI, is merely asking CITI to state whether the document is genuine or a falsified document.

CITI then state plaintiffs (improperly) of asking for the admission of any of the content of the document. Plaintiffs do not mention any content of the document in any of the statement requests as can be noted in Request for Admissions 2 (a)-(jj). Instead of legalese, the plain language of Rule 36(a), and subsequently the Request are proper.

(j) “Exhibit D1: Fax from Plaintiffs to S&P Capital Investments Inc. 7 January 2004, showing then available copies of exhibits A2 and A3 on the second and third page, three pages.”

Whether CITI admits to the genuineness of this fax to defendant S&P, is not an issue.

(k) “Exhibit D3: Web page indicating S&P Capital Investments Inc.’s (800) 289-2322

number with Internet Call Manager (ICM), date 19 Jan 2004. Indicating Plaintiffs ICM account.

With regards to CITI, not an issue. However, CITI did not inform plaintiffs of any copies not having been forwarded them. Plaintiffs have ensured a copy (via email) was forwarded to counsel.

(l) “Exhibit D4: Letter from S&P Capital Investments Inc. dated 21 January 2004, and postmarked 22 January 2004.”

Again, with regards to CITI, not an issue.

(n) “Exhibit E2: Letter to S&P Capital Investments Inc.”

With regards to CITI, this is not an issue.

B. Request for Admissions No. 2

Statement requests.

(a) “Plaintiffs Robert C. Searle and Maria D. Searle are natural born citizens of the United States of America and are residents of the Parish of Vernon, and the State of Louisiana.”

Given CITI’s opposition to this admission, plaintiffs have no problem withdrawing it, however, with CITI’s Seventh Affirmative Defense (regarding standing to sue) some deference should be given.

(b) “Plaintiff Robert C. Searle is a United States Army Commissioned Chief Warrant Officer Two, a member of the Louisiana Army National Guard, activated 10 February 2003 and released from active duty 25 December 2003 in support of Operation Enduring Freedom and Operation Iraqi Freedom.”

CITI opposes this request, and plaintiffs have no problem withdrawing it. However, CITI’s Sixth Affirmative Defense should be taken into consideration upon review.

(d) Admitted

(e) “Full accord and satisfaction of the consumer loan account referenced in section 2 of the petition was obtained positively and without recourse on or about 15 March 2000.”

This statement is clear, as to the account being paid or not. David v. Katz, the argument used, is reaching, as the admission called for in that case, was a question the defendant had a perceived ability to prevail on at trial. Here, CITI does not.

(f) “That the payments referenced in section 2 of the Amended Petition were made in good faith including accrued interest toward the consumer loan account in this section. Exhibit A4.”

CITI objected based on the legal conclusion of “good faith”. Plaintiffs know of no other way but by “good faith” a debtor can make payments to a creditor or servicer of a loan. Any debtor expects reciprocal “good faith” (e.g. posting payments).

Lakehead as cited: “Of course, requests for admission are not to be employed as a means "to establish facts which are obviously in dispute or to answer questions of law." Kosta v. Connolly, 709 F. Supp. 592, 594 (E.D. Pa. 1989), citing Driver v. Gindy Manufacturing Corp., 24 F.R.D. 473, 475 (E.D. Pa. 1959).”

(g) “That the first paragraph of section 2 of the Amended Petition is true.”

CITI objects to this admission and plaintiffs have no problem withdrawing it.

(h) “CITI: That section 2 of the Amended Petition ‘At some point after the account was activated in 1997, First Family then sold it’s operations and eventually it became CitiFinancial, which it remains today.’ Exhibit B1; and ‘Upon information and belief, S&P, as well as CitiFiancial, the CitiFinancials[1], assumed responsibility for the collection of this account in June 2002, and November 2000, respectively, although the account had been paid.” is true. Exhibits A1-A4, B1, and B3 page 2.”

CITI objects again regarding FFFS, and as defendant S&P is concerned, this admission speaks for itself.

(j) “That section 3 of the Amended Petition “First Family was not listed on any of our credit reports, instead, the defendants were. Citifinancial and S & P were listing accounts in arrears.” is true. Exhibits B2 and B3.”

CITI admits as pertaining to them.

(k) “CITI: That Section 3 of the Amended Petition “I sent Citifinancial a certified letter, requesting they rectify this situation, in January 2003.” is true. Exhibit E1.”

Admitted.

(l) “That section 3 of the Amended Petition “Upon returning from Operation Iraqi Freedom, December 2003, Citifinancial was still on my credit report along with S& P for this same paid debt.” is true. Exhibit B3.”

CITI admits as pertaining to them.

(m) “CITI: That section 3 of the Amended Petition “Citifinancial has even updated an item on my credit report listed as ‘Allied Finance’ 1308 North Pine Street, Deridder, LA 70634, with the same information regarding the original First Family account.” is true. Exhibit B2.”

CITI again tries to relegate the issue to “interpretation”. Both Allied Finance and FFFS are wholly owned by CITI. This admission could not be clearer.

(n) “CITI: The mergers and or purchases described in the second paragraph of section 3 of the Amended Petition is a fair description of the history of the local offices of Citifinancial Inc. in Deridder, Louisiana. Exhibit B1.”

Plaintiffs have no problem withdrawing this admission.

(o) “That section 3 of the Amended Petition “The Associates in November 2000. The Associates, under the auspices of Citifinancial, apparently in June 2002, engaged the debt collection services of S & P.” is true. Exhibits B2 and B3.”

Plaintiffs made a typographical error, the words “The Associates in November 2000.” should be stricken. Plaintiffs, upon necessity will resubmit this admission.

(z) “That section 8 of the Amended Petition “Petitioners have shown that they have made due demand upon the defendants to amicably resolve this matter” is true. Exhibits E1 and E2.”