Drano Series #185: Credit Card Case : A Few Sample Documents: Motion to Dismiss, Answers to Interrogatories, Answers to Requests for Production of Documents, Motion for Partial Summary Judgment

Credit Card Case : A Few Sample Documents Smith's Motion to Dismiss Smith's Answers to Interrogatories Smith's Answers to Requests for Production of Documents Smith's Motion for Partial Summary Judgment This credit card case ended successfully for the defendant, but the plaintiff lender clearly made it take longer . . . by using dishonesty and tricks of the collection bar. The defendant never had a credit card issued by the plaintiff, so the plaintiff changed its "name" three times. Defendant brought a Motion for Partial Summary Judgment (on the case-in-chief), was allowed an evidentiary hearing on that motion, and won summary judgment against the plaintiff. Although the statutes have provisions for the defendant to be reimbursed for his legal fees, the local district-court judge did not order the plaintiff to pay the defendant's attorney's fees. This was disgraceful on the part of that court, whose judges, it has been observed, are "courted" by the collection bar. That courting happens in, at least, open ways: by having the district-court judges sit on panels at seminars about collection law, by being given free dinners, by beng toasted by the leaders of that bar -- all appealing appeals to those whose egos are protected by opaque black robes and whose acts are protected by judge-made absolute immunity. After we won in the State court, the plaintiff had the nerve, the temerity, to bring the same case in federal court. The plaintiff lost after one informal meeting with the judge around a conference table, but the defendant is still minus the reimbursement from the State case. Further, during the course of this case, my client and I learned that banks do not credit your payments on the five business weekdays. Some credit payments only on Mondays through Thursdays, some only on Mondays through Wednesdays. This clearly fraudulent practice allows banks to declare payments as "late" when, in fact, the payment might not have been late at all, and add unjust late charges with considerable ease and frequency. Of course, interest is charged for all days. NOTE In the Answer documents below, I have BOLDFACED important objections, which you should not forget to include in your Answer dosuments

SMITH'S ANSWERS TO FIRST SET OF INTERROGATORIES
PROPOUNDED BY HOUSEHOLD CREDIT SERVICES

Xxxxxxx Y. Smith, pursuant to Rule 33 of the Massachusetts Rules of Civil Procedure, hereby responds to each numbered paragraph of the First Set of Interrogatories propounded by Household Credit Services allegedly doing business as Household Bank ["HCS/HB"] as follows:

GENERAL OBJECTIONS

A. Xxxxxxx Y. Smith objects to HCS/HB's First Set of Interrogatories to the extent that they seek to impose upon Xxxxxxx Y. Smith obligations or burdens which are greater than, or inconsistent with, Rule 33 of the Massachusetts Rules of Civil Procedure.

B. Xxxxxxx Y. Smith objects generally to HCS/HB's First Set of Interrogatories on the grounds that they are overly broad and burdensome. Xxxxxxx Y. Smith has made a good faith effort to respond to the Interrogatories, but reserves the right to object to, and to move to have vacated, all of HCS/HB's First Set of Interrogatories.

C. The following responses and objections are based upon information now known. Xxxxxxx Y. Smith has not yet completed discovery or preparation for trial in this action and therefore will supplement these responses and objections to the extent required by the Massachusetts Rules of Civil Procedure.

D. Without waiving these objections and by way of response, Xxxxxxx Y. Smith provides the following responses.

ANSWERS TO INTERROGATORIES

Answer to Interrogatory 1. Xxxxxxx Y. Smith, [[[[[[Your Address]]]]. Smith objects to the remainder of the interrogatory as being irrelevant and invasive of his privacy.

Answer to Interrogatory 2. Your Address.

Answer to Interrogatory 3. Smith objects to this interrogatory on the grounds that it requires legal conclusions. Without waiving his objection, he answers as follows: Household Credit Services and Household Bank, N.A., now owe him money.

Answer to Interrogatory 4. Smith has not determined who his expert or experts shall be, if any, at trial. Smith reserves the right to update this answer to this interrogatory and its subparts at a later time when that decision is made.

Answer to Interrogatory 5. Smith objects to this interrogatory on the grounds that it assumes that Smith received three letters dated 20 December 1997, 30 December 1997, and 10 February 1998. Without waiving his objection, he answers regarding his disability as follows:

Smith is right-handed. In 1959, Smith suffered a severe laceration of the ulna nerve (four inches back from the wrist), the extensors, and the abductors -- i.e., everything was cut down to the ulna bone. As a result, Smith's arm lost function, i.e., he has what is called an "artistic hand," a term given to the injury due to the shape the hand takes. Given that the nerves were cut, the muscles in his hand have since atrophied. He had three operations and they were not successful. <> He doesn't write with his left hand because he is not left-handed. He also suffered, in 1976, an injury to the left elbow when he fell out of a tree from a height of 20 feet. His disability has been diagnosed as micitis-ossificans (sp?), which means that the range of mobility of that left arm is limited to about 40 degrees, as compared to 180 degrees of a normal arm.

Therefore Smith could not easily write a letter to Daniels and instead phoned the Daniels' office in response to a letter from Richard Daniels and dated 20 December 1997. His attempt was to no avail. He kept being put on hold, being told Daniels wasn't there; ultimately he just gave up. As the time he was expecting his December statement, however, it never came.

As to the letters which HCS/HB has listed in the Interrogatory numbered 5. Smith received the December 20th letter, but never received a letter dated December 30, 1997, from the Daniels office. He did receive a letter from the Daniels office dated February 10, but by then HCS had already filed and served suit against him, Smith was represented by counsel and Daniels knew that before he sent the letter. Smith's counsel called the Daniels' office on February 11th. Smith had not received the letter until a week later, making Smith believe that Daniels or someone in his firm backdated the letter.

Answer to Interrogatory 6. Smith objects to this interrogatory on the grounds that is overly broad, harassing, burdensome. Without waiving his objection, Smith states that his doctor for the injury to his right arm was Dr. Peter H. Dillard, a neurosurgeon who maintains an office in Woburn, Massachusetts, and the doctor who treated the injury to his left arm was Bill Lanigan from Medford. He's dead now, but Lawrence Memorial Hospital was the hospital in which Smith stayed for a month.

HCS/HB already knows Smith's attorney's name and address. Any communication between Smith and his attorney is privileged and he raises that objection here.

Answer to Interrogatory 7. Smith objects to this interrogatory on the grounds that it is self-serving. Smith had no obligation, nor did it enter his mind, to call all the attorneys on the masthead of the Daniels stationery. The letter was from Daniels. Smith responded to Daniels. Daniels didn't want to talk, then he should not be in a business which requires him to communicate with people. Smith believes that Daniels should hand in his license, particularly where Daniels didn't even check whether the money was due before he brought suit against Smith and attempted to attach Smith's home! Further, Smith did not receive the three letters the HCS/HB's counsel is assuming or implying Smith received. He received the December 20th letter and the February 10th letter. With the February 10th letter, Daniels, in Smith's mind, was breaking the law by trying to communicate with him directly rather than through his attorney.

Answer to Interrogatory 8. Smith objects to this interrogatory because it has been the subject of five motions and three Answers to the three bogus Complaints filed by Daniels. For that reason, Smith objects to this interrogatory on the grounds that is burdensome and harassing. Smith also objects to this interrogatory because it requires him to guess what is in his attorney's mind. Smith further objects to this interrogatory on the grounds that it seeks information which is protected by the attorney-client privilege. Without waiving his objections, Smith refers the interrogator to his/her/their own admission in a pleading that Attorney Wisniowski from the Daniels lawfirm, the only attorney who would get on the telephone, refused to discuss the case with Smith's counsel.

Answer to Interrogatory 9. Smith objects to this interrogatory on the grounds that it is about 20 different interrogatories rolled up into one, and therefore exceeds the number of interrogatories permitted by the Massachusetts Rules of Civil Procedure. Smith objects also to the interrogatory because it goes on and on and on without any break in such a way that it is difficult to comprehend.

Without waiving his objections, Smith states that he almost had a heart attack when he was served with the motion for a real estate attachment on his home. He was in a state of anxiety for several weeks until the motion was heard in court. He could not sleep, he was stressed out, he went to a social worker, Maggie Jones, to talk to her regarding his stress. He has met her on several occasions for that purpose. He went through a red light because his mind was preoccupied with thinking that he was going to lose his home. Because of the stress, he also couldn't keep anything in his stomach, he couldn't taste the food, he didn't know what was actually happening to him.

Smith reserves the right to update his answer to this interrogatory at a later time.

Answer to Interrogatory 10. Smith objects to this interrogatory on the grounds of relevancy. Smith also does not understand what is meant by a Practitioner of the Healing Arts.

Answer to Interrogatory 11. Smith objects to this interrogatory on several grounds, for example, (1) the subject of the interrogatory is totally irrelevant to this action, (2) HCS or HCS/HB has attached three Agreements in total to the original Complaint, the First Amended Complaint, and the Second Amended Complaint, so it is unclear to which Agreement the interrogator is referring, and (3) none of the three Agreements have been dated by HCS or HCS/HB, so the it is impossible to know to what periods HCS or HCS/HB is referring. Without waiving his objections, Smith answers as follows: Smith has not been employed since 1985.

Answer to Interrogatory 12. Smith objects to this interrogatory on the grounds that it is totally irrelevant to this action, which was not brought by Smith but by HCS and/or Household Bank, N.A. and/or HCS/HB.

Answer to Interrogatory 13. Smith objects to this interrogatory on the grounds that it is too broad, harassing, burdensome, requires legal conclusions, and constitutes far more interrogatories than are allowed by the Massachusetts Rules of Civil Procedure. HCS and/or HCS/HB knows the basis for Smith's counterclaims.

Answer to Interrogatory 14. Smith objects to this interrogatory on the grounds that it is too broad, harassing, burdensome, requires legal conclusions, and constitutes far more interrogatories than are allowed by the Massachusetts Rules of Civil Procedure. HCS and/or HCS/HB knows the basis for Smith's counterclaims.

Answer to Interrogatory 15. Smith objects to this interrogatory on the grounds that it is vague, harassing, burdensome, irrelevant, assumes facts not in evidence, and constitutes far more interrogatories than are allowed by the Massachusetts Rules of Civil Procedure.

Answer to Interrogatory 16. Smith objects to this interrogatory because it assumes that there is an Agreement being sued upon, where no Agreement has as yet identified by HCS or HCS/HB or its attorneys.

Answer to Interrogatory 17. Smith states that he had not been credited for a $4000 payment he made in December of 1997 prior to being sued.

Answer to Interrogatory 18. Smith objects on the grounds of attorney-client privilege and broadness and relevancy.

Answer to Interrogatory 19. Smith objects on the grounds that the three different Agreements attached to three different Complaints by HCS and its attorneys are illegible. In any event, it is HCS and its attorneys who have claimed each time that one of those Agreement was the Agreement which HCS had with Smith, and it is clear that neither HCS nor an entity now described by the Daniels law office as HCS/HB was a party to any of those three Agreements.

Answer to Interrogatory 20. Smith objects to this interrogatory on the grounds that it is a request for a document and not an interrogatory.

Xxxxxxx Y. Smith states under the penalty of perjury that he has read the foregoing Interrogatory answers and knows the contents thereof; that said answers were prepared with the assistance and advice of counsel; that the answers set forth above, subject to inadvertent or undiscovered errors, are based on and therefore necessarily limited by the records and information still in existence, presently recollected, and thus far discovered in the course of the preparation of these answers; that Xxxxxxx Y. Smith reserves the right to make any changes in the answers if it appears at any time that omissions or errors have been made therein or that more accurate information is available; that subject to these limitations the Interrogatory answers are true to the best of his knowledge, information, and belief.

__________________________________
Xxxxxxx Y. Smith

CERTIFICATE OF SERVICE

I, ______ Smith, hereby certify that on 12 June 1998, I emailed and on 13 June 1998 I served a true and accurate signed copy of the within pleading by prepaid first-class mail on Grace Calamita, Esq., who has been standing in for Richard S. Daniels, Jr., Esq., One Center Plaza, Boston, MA 02108-7300.

12 June 1998 _______________________________
Your name

Smith's Motion for Partial Summary Judgment

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. CAMBRIDGE DISTRICT COURT
CIVIL DOCKET NO. 9852-CV-131

____________________________________
Household Credit Services
Plaintiff and Defendant-in-Counterclaim

Xxxxxxx Y. Smith
Defendant and Plaintiff-in-Counterclaim
____________________________________

XXXXXX Y. SMITH'S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT

ON THE ISSUE OF LIABILITY ON HIS COUNTERCLAIMS

Now comes Defendant and Plaintiff-in-Counterclaim Xxxxxx Y. Smith ["Smith"] and moves for partial summary judgment against Household Credit Services ["HCS"] on the issue of liability on each of his counterclaims.

This motion is brought again as a result of HCS's ANSWER, in which all the elements of each of Xxxxxx Y. Smith's counterclaims except the issue of damages were admitted by HCS, leaving no genuine issue of material fact in dispute except Xxxxxx Y. Smith's damages. Each of the actions in counterclaims and the admissions by paragraph is identified below.

STANDARD FOR SUMMARY JUDGMENT

In these circumstances, partial summary judgment for Xxxxxx Y. Smith and against Household Credit Services is proper, for a principal purpose of "the summary judgment rule is to isolate and dispose of factually unsupported claims. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 713 (1991), quoting Celotex Corporation v. Catrett, 477 U.S. 317, 323-324 (1986).

For example, where a movant is not met by countervailing materials, summary judgment is applicable. Kourouvacilis v. General Motors Corp., 410 Mass. 706 (1991). See also LeBlanc v. Great American Ins. Co., 6 F.3d 838, 841 (1st Cir. 1993); Flesner v. Technical Comm. Corp., 410 Mass. 805 (1991); Willits v. Roman Catholic Archbishop of Boston, 411 Mass. 202 (1991).

Summary judgment should also be granted when there is both no material fact in dispute and when the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 36 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c).

Further, under Rule 56(c) of the Massachusetts Rules of Civil Procedure, a motion for summary judgment must be granted "if the pleadings . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Summary judgment is also mandatory against a plaintiff which cannot prove an essential element of its case. Kourouvacilis, 410 Mass. at 716.

Moreover, a well-pled motion for summary judgment shifts the burden to the plaintiff to establish by reference to specific admissible facts the existence of a dispute as the material fact requiring a trial. Id. at 711; Godbout v. Cousens, 396 Mass. 254, 261 (1985). Mass.R.Civ.P. 56(e).

UNDISPUTED FACTS

Xxxxxx Y. Smith's first counterclaim -- Breach of Contract: HCS admitted to paragraphs 33(a, b, c) of Xxxxxx Y. Smith's counterclaim. That is, HCS admitted that it and/or its alleged assignor, Household Bank, N.A. ["the Bank"], (a) failed to provide to Xxxxxx Y. Smith monthly statements for the billing cycles ending on or around 19 December 1997 and on or around 19 January 1998, (b) failed to apply a payment by Xxxxxx Y. Smith of $4000.00 to his account, and (c) brought suit before providing a final monthly statement showing application of a $4000 payment by Xxxxxx Y. Smith to HCS for the Bank.

Xxxxxx Y. Smith contends that those acts constitute a breach of either of the alleged agreements produced by HCS with its three Complaints (the original and the two amended ones).

While HCS contends that Xxxxxx Y. Smith still owes money on the contract, Xxxxxx Y. Smith contends that he was and is under no obligation to pay any balance remaining on his open-end credit-card account, for it is well-settled that "the law does not require a party to tender performance if the other party has shown that he cannot or will not perform" [Leigh v. Rule, 331 Mass. 664, 668 (1954), citing Lowe v. Harwood, 139 Mass. 133; Schayer v. Commonwealth Loan Co., 163 Mass. 322; Foternick v. Watson, 184 Mass. 187, 193; Augello v. Hanover Trust Co., 253 Mass. 160, 166-167; Schilling v. Levin, 328 Mass. 2, 5; Restatement: Contracts, Sec. 306].

In this case, the other party, HCS, has shown that it could but did not perform, making it impossible as a matter of law for HCS to prevail against Xxxxxx Y. Smith his claim for breach of contract,

As a result, all that remains is an assessment by trial to determine Xxxxxx Y. Smith's damages, making partial summary judgment on the issue of HCS's liability appropriate.

Xxxxxx Y. Smith's second counterclaim -- Negligence: HCS admitted to paragraph 36 of Xxxxxx Y. Smith's counterclaim. That is, HCS admitted that it and/or its assignor had a duty to act in accordance with the federal and state fair billing practices acts.

When they violated their duties under those acts, they negligently breached their duties to Xxxxxx Y. Smith.

As a result, all that remains is an assessment by trial to determine Xxxxxx Y. Smith's harm and damages, making partial summary judgment on the issue of HCS's liability for negligence appropriate.

Xxxxxx Y. Smith's third counterclaim -- Statutory Violations: HCS admitted to paragraph 41 of Xxxxxx Y. Smith's counterclaim. That is, HCS admitted that it and/or its assignor was/were obliged to act in accordance with relevant state and federal statutes, including, but not limited to, the following: the Truth in Lending Act, Fair Credit Billing Act, Fair Credit Reporting Act, Fair Debt Collection Act, Regulation Z, and the Massachusetts Truth in Lending Act, G.L. c. 140D, secs. 1 et seq., and Massachusetts Debt Collection Regulations, 940 Code Mass.Regs. sec. 7.01 et seq.

Given that those statutes require that the lender provide to a borrower monthly statements for each billing cycle, apply monies received from the borrower to the balance of that account, and confirm by a monthly statement the application of such payments, and that HCS and/or its assignor failed to fulfill their obligations under the above-mentioned statutes and instead brought suit against Xxxxxx Y. Smith, Household and/or its assignor violated those statutes.

As a result, all that remains is an assessment by trial to determine Xxxxxx Y. Smith's harm and damages,\[1]/,\[2]/ making partial summary judgment on the issue of HCS's liability for statutory violations appropriate.

Xxxxxx Y. Smith's fourth counterclaim -- Unjust Enrichment: HCS admitted to paragraphs 45 through 48.\[3]/ That is, HCS admitted that it and/or its assignor knew or should have known that Xxxxxx Y. Smith made a payment of $4000.00, that that check was posted on 15 December 1997, that HCS subsequently brought this lawsuit against Xxxxxx Y. Smith without acknowledging the $4000 payment, and that after being served with Xxxxxx Y. Smith's Answer to the Complaint, HCS amended the Complaint but still did not fully apply Xxxxxx Y. Smith's $4000 payment. Xxxxxx Y. Smith contends that that conduct of Household and/or its assignor constituted unjust enrichment of Household and/or its assignor by something less than $4000.00 and the interest thereon since on or around 12 December 1997.

Although HCS has since amended its Complaint for the second time to account for the $4000 payment, it continues to insist that Xxxxxx Y. Smith owes another sixteen hundred dollars, approximately, although once HCS and/or its assignor breached the contract, Xxxxxx Y. Smith was no obligated that sum.

As a result, all that remains is an assessment by trial to determine Xxxxxx Y. Smith's damages, making partial summary judgment on the issue of HCS's liability for unjust enrichment appropriate.

Xxxxxx Y. Smith's fifth counterclaim -- Violation of G.L. c. 231, sec. 6F: While HCS denies paragraph 51, to wit, that bringing suit against Xxxxxx Y. Smith was not wholly insubstantial, frivolous, and not advanced in good faith, HCS does admit, in HCS paragraph 47, "that suit was inadvertently filed in an amount that did not take into account the $4000.00 payment."

Xxxxxx Y. Smith contends that any entity must not bring or file a suit "inadvertently." Both plaintiff and plaintiff's counsel have an obligation to file a suit "inadvertently."

Xxxxxx Y. Smith contends that the inadvertence in this case is equivalent to bringing a wholly insubstantial and frivolous suit, which logically can not have been advanced in good faith.

As a result, all that remains is an assessment by trial to determine Xxxxxx Y. Smith's damages, making partial summary judgment on the issue of the violation of c. 231, sec. 6F appropriate.

Xxxxxx Y. Smith's sixth counterclaim -- Violation of G.L. c. 93A: HCS admits paragraphs 53, 55, 56(c), 60, 63, 65, 66(a), 66(d), 67-69, 72-73, 75(a,b) of Xxxxxx Y. Smith's chapter-93A counterclaim, and calls upon Xxxxxx Y. Smith to prove the remaining averments of that cause of action.

That is, HCS admits that Household and its assignor were subject to the provisions of G.L. c. 93A, and the rules and regulations of the Attorney General promulgated thereunder, and concedes that a violation of section 34 of G.L. c. 140D, or any rule or regulation issued hereunder, constitutes a violation of chapter 93A.

HCS admits that the agreement called for payment within 25 days after the end of the billing cycle ("the payment due date"), that installment payments were to be sent to Baltimore, Maryland, that the monthly statement did not forthcome before Xxxxxx Y. Smith received a demand letter dated 20 December 1997 from HCS's counsel, that the December statement did not arrive at the end of that month, and that the Complaint was left outside Xxxxxx Y. Smith's front door.

HCS further admits that on 11 February 1998, Xxxxxx Y. Smith's counsel phoned the Daniels law firm to speak to Richard Daniels to ask if he would accept service for Donald Mathews, who is allegedly a legal adjuster for Household Credit Services and whose affidavit was filed on behalf of his employer, the Plaintiff.

HCS admits that three paralegals and one lawyer (Karen Wisniowski) put Xxxxxx Y. Smith's counsel on hold multiple times for many minutes and then refused to let Xxxxxx Y. Smith's counsel speak to Daniels. HCS also admits that when Xxxxxx Y. Smith's counsel told Wisniowski that asking Daniels lawfirm to accept service for Donald Mathews was not a question of privacy, Wisniowski asked Xxxxxx Y. Smith's counsel if she was questioning Wisniowski's competency as a lawyer and instructed Xxxxxx Y. Smith's counsel to FAX them a notice of appearance. HCS admits that Xxxxxx Y. Smith's counsel assured Wisniowski that she would send a notice of appearance as soon as the phonecall was concluded, and again asked Wisniowski to answer whether Daniels law firm would accept service, but that Wisniowski would not extend professional courtesy and accept Xxxxxx Y. Smith's counsel's word that she would FAX her notice of appearance.

And HCS admits that, on Wednesday, February 11th, after hanging the phone up, Xxxxxx Y. Smith's counsel FAXed the notice of appearance, and rephoned Wisniowski -- whereupon Wisniowski informed Xxxxxx Y. Smith's counsel that Daniels' law firm still refused to accept service for Mathews.

HCS further admits that although that letter was dated 10 February 1998, the postmark bore the date 17 February 1998, six days after Daniels knew that Xxxxxx Y. Smith was represented by counsel. Xxxxxx Y. Smith asks the court to take judicial notice that once a party is represented by counsel, it is a violation 940 CMR 7.01 to communicate with the party directly. Brow v. Stanton, 12 Mass.App.Ct. 992, 992 (1981).

HCS admits that subsequent to being served Xxxxxx Y. Smith's Answer to the Plaintiff's Complaint, Plaintiff amended its Complaint but continued not to fully credit Xxxxxx Y. Smith's account with his $4000 payment, silently changed the alleged credit card agreement with one from a different banking corporation and not identifying, as the first Exhibit A did, and that HCS was an entity which was providing processing services.

That leaves only the following facts in dispute: (a) whether the acts of HCS and/or its alleged assignor were wilful and knowing, (b) whether HCS practice of accelerating the date payments are due and requiring borrowers to send the payments to Maryland, from where HCS sends the checks to Illinois and thereby delaying the posting of payment to the borrowers' accounts are unfair and deceptive acts, (c) whether Xxxxxx Y. Smith had prior notice and whether the practice agreed what was in the alleged agreement, (d) whether late-payment charges were wrongfully imposed.

Consequently, it is for these issues which Xxxxxx Y. Smith wants discovery and which HCS refuses to produce the necessary information.

Given HCS's unwillingness to produce agents, servants, and/or employees of HCS who have relevant information regarding those procedures, it is appropriate to presume that the information Xxxxxx Y. Smith seeks would be UNfavorable to HCS. Cf. Wigmore, EVIDENCE IN TRIALS AT COMMON LAW, S_s 291, at 228 (James H. Chadburn, rev., 1979).

Such unwillingness to produce the deponents is analogous to "[t]he wilful destruction, suppression, alteration, or fabrication of documentary evidence [which] properly gives rise to a presumption that the documents if produced would be injurious to that party who thus hindered the investigation of the facts." Gard, Spencer A., JONES ON EVIDENCE, sec. 3:90, at 320 (6th ed. 1972).

Further, in such a context, the presumption may be made that the testimony of those witnesses who are not produced would be unfavorable to HCS who should have produced those deponents. Cf. Graves v. United States, 150 U.S. 118, 121 (1893) ("If a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.").

With that mandatory presumption, the only issues remaining are those which HCS called upon Xxxxxx Y. Smith to prove . . . and those issues are easily provable against HCS.\[4]/

For the above reasons, partial summary judgment against HCS on the count for 93A violations is appropriate.

WHEREFORE, Xxxxxx Y. Smith prays that this motion for partial summary judgment on the issue of liability on all of his counterclaims be allowed.

Respectfully submitted,

XXXXXX Y. SMITH,

By his attorney,

22 March 1998 ____________________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

BBO #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, counsel for defendant, hereby certify that on 22 March 1998 I FAXed and on 3 March 1998 I served a true and accurate copy of the within pleading by prepaid first-class mail on Grace M. Calamita, Esq., and Richard S. Daniels Jr., Esq., One Center Plaza, Boston, MA 02108-7300.

22 March 1998 _______________________________

Barbara C. Johnson, Esq.

[1]"TILA actual damages may include consequential damages, even including emotional distress caused by the creditor's disclosure violations." Truth-in-Lending, supra, p. 295. Iuteri v. Branhaven Motors, Inc., No. N-81-254, Clearinghouse No. 41,259 (D.Conn. Nov. 14, 1985) ("Plaintiffs suffered actual damages in the form of emotional trauma and unnecessary aggravation . . . Pursuant to 15 U.S.C. sec. 1640(a)(1) authorizing compensation for such damages, the Court awards $2,000"). Feliciano v. Schwartz, Clearinghouse No. 20,671 (E.D. Pa. Jan 28, 1977) (plaintiff received award for great inconvenience and emotional distress). "Damages for humiliation, harm to reputation, and emotional or mental distress, have been recognized as a proper basis for awarding actual damages under the Truth in Lending Act and other titles of the federal Consumer Credit Protection Act." Truth-in-Lending, supra, p. 296, and cases gathered in n. 115 on page 196.

Proof of actual damages is not a prerequisite to the recovery of the statutory award. Truth-in-Lending, supra, p. 286, n. 16 and authorities cited. Statutory damages, $100-$1000, . . . . Id. at 296.

[2]Consumers are awarded TILA attorney's fees in "any successful action." TILA, sec. 130(a)(3), 15 U.S.C. 1640(A)(3). Hensley v. Eckerhart. 461 U.S. 424, 103 S.Ct. 19933 (1983). Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 261 n.34 (1975) ("statutes which are mandatory in terms of awarding attorney's fees include . . . the Truth in Lending Act, 15 U.S.C. sec. 1640(a)..."). DeJesus v. Banco Popular de Puerto Rico, 918 F.2d 232 (1st Cir. 1990) (same). Private enforcement obviates the need for a large federal bureaucracy to enforce TILA. In re Steinbrecher, 110 B.R. 155 (Bankr. E.D. Pa. 1990).

[3]HCS admitted paragraph 47 to the extent that HCS brought suit without acknowledging Xxxxxx Y. Smith's $4000 payment.

[4]Such issues as whether Xxxxxx Y. Smith's arms are disabled, whether he has great difficulty writing, whether the Daniels law office treated him shabbily, as they did his counsel, when Xxxxxx Y. Smith tried to get through to Daniels or to give notice to any of Daniels' staff that he did not owe the money. When one calls the Daniels law office (617-227-7300), a machine asks you to input the extension of the party you want to talk to, and if you do not know the extension, to press the first three letters of the person's last name. When you press "D-A-N", the electronic operator tells the caller "THERE IS NO SUCH MATCH."

All of HCS pleadings, which are allegedly signed by Daniels, are not signed by him but a computerized signature file, so it is not known whether he, in fact, is the true author of the pleadings or whether he even reads them with the required due diligence.

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HELP: Any HTML programmer know how to get rid of the extra <> below the Google ads at the top of the files and the <> in the upper right-hand corners of the Google ads on the right-hand side of the screen? i've wasted hours, if not days, trying to figure out WHY they are there in some files and not in others . . . and how to get rid of them. THANKS!!

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#1, Meuse #5, Linnehan & Brown #9, Linnehan & Brown #13, Meuse #17, Linnehan & Brown #21, Linnehan & Brown #25, Sylvia v. Sylvia #29, Linnehan & Brown #33, Trimboli #37, Linnehan Related #41, Smith/Pocahontas #45, Smith/Pocahontas #49, Smith/Pocahontas #53, Smith/Pocahontas #57, Smith & Judges #61, Smith/Pocahontas #65, Linn. Dom. Rel. #69, Linnehan & Brown #73, 1st Cir. B&L Decis. #77, LyndaPaul-Child-sup #81, 1st Amendment/Bar #84a, Sano case/Banned in Mass. #88, Money from estate #90, Count 2: Answer Interwoven #93, Herald in on Bar War #97, Opposition to Nissenbaum #101, Judicial Immunity Roots #105 Barb's letter-Rule 1.15 (am. #109 Barb v. BBO (Federal) #113 Smith'sOpposition to Boston #116 Meuse's §1983 Complaint #120 Petition-Writ of Certiorari-USSCt #124 Meuse-Opp-to-NCMEC Dis #128-Letter-Petition-Rehearing #132 Pretrial-conf-Lafortune #136 Smith o-james-recons-dism #140 Smith o-sj-R 56.1 facts mp1 #144 surreply-to-offs-reply-recon #148 m-dismiss-jdp-ccs-malp-2 #152 contempts-Pocahontas & Smith ------------------------------------------------------- #156 strike-appearance-ag-for-bbo ------------------------------------------------------- #160 m-lv-excess-pp-brief #164 answer-to-contempt-petition #168 m-vacate-stay-and-consolidation #172 appeal-judgment-of-dismissal-app-ct #176 amended-motion-for-acceleration #180 reply-to-crane-weisberg-appellee-brf #184 appendices-to-petition-writ-for-cert	#2, Meuse #6, Meuse #10, Meuse #14, Linnehan & Brown #18, GAL in Case #22, Linnehan v. Sylvia #26, Grandparents #30, Meuse #34, Linnehan Related #38, Smith/Pocahontas #42, Linnehan Related #46, Smith/Pocahontas #50, Smith/Pocahontas #54, Smith/Pocahontas #58, Smith/Pocahontas #62, Smith & Judges #66, Linn. Dom. Rel. #70, Linn.Child-support #74, Fraud-5-Lawyers #78, StupidButFamous #82, 1st Amendment/Bar #85, Bogus contempt, coming #89, Petition for Discipline #90, Count 3: Answer Interwoven #94, Restraining Order #98, Hearse at Lawyers Weekly #102, Bar Board:Star Chamber #106 Motions filed at Bar Board #110 Reply Appeal Immunity #114 The Younger Doctrine #117 Fed QuasiJudicial Immunity #121 Opp. to Dismiss by FOX TV #125 F4J London Parade Pics #129 Letter- Editor Lawyers Wkly #133-Barb v, BBO: App Brief #137 Smith-o-dipiano-recons-dism #141 Smith o-sj-Boston-memo mp1 #145 m-partial-recon-cc-wiretap #149 reply-o-dism-jdp-ccs-2d-mal #153 barb-v-bbo-crane-defamation ------------------------------------------------------- #157 strike-appearance-ag-for-BC-ABC ------------------------------------------------------- #161 m-str-docs-obc-record-appendix #165 m-declaration of-practice-of-law #169 o-impound-supp-appendix-record #173 show-cause-brief for hear'g-1st-Cir #177 motions-vacate-reverse-dismiss #181 five-motions-and-oppositions-sjc	#3, Meuse #7, Recusing Judge #11, Meuse #15, Linnehan & Brown #19, Linnehan & Brown #23, Robyn Sylvia, Aff. #27, Meuse #31, Linnehan & Brown #35, Smith/Pocahontas #39, Linnehan & Brown #43, Linnehan Related #47, Smith/Pocahontas #51, Smith/Pocahontas #55, Smith/Pocahontas #59, Smith/Pocahontas #63, King HarrySmith #67, Meuse Kidnapping #71, Smith/Judges/A-G #75, LaidbackPocahontas #79, Fraud-StupidButFamous #83, 1st Amendment/Bar #86, Proposed Findings/Bar #90, Answer to Petition Discipline #91, Motion for Attorney Fees #95, Court Commits Crimes #99, Opposition to Attorney Fees #103 Appeal Judicial Immunity #107 Barb v. BBO et al (State) #111 Complaint - Sec 1983 #115 TOC-Proposed Findings #118 Opposition to Motion Strike #122 Barb v. BBO -- immunity #126 Meuse- re- Bivens Claims #130 LaFortune-Opp to Preclude #134 Memorial Butch Bailey #138 o-city-recons-denial-dismiss

Smith's Motion to Dismiss
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. CAMBRIDGE DISTRICT COURT CIVIL DOCKET NO. 9852-CV-131 ____________________________________ Household Credit Services Plaintiff and Defendant-in-Counterclaim v. Xxxxxxx Y. Smith Defendant and Plaintiff-in-Counterclaim _____________________________________ MOTION TO DISMISS PLAINTIFF HOUSEHOLD'S CLAIMS Now comes Defendant and Plaintiff-in-Counterclaim Xxxxxxx Y. Smith ["Smith"] and moves that the claims of Household Credit Services ["Household"] be dismissed. As grounds, Smith states the following: 1. ((that on the face of the pleadings, Smith does not owe the debt averred by Household, making it impossible for Household to have stated a claim for which relief may be granted; 2. that on the face of the pleadings, Household has not shown that there was any contract between Plaintiff and Smith: a. (the exhibit attached to Household's complaint appears to be a boilerplate memorialization entitled "Cardmember Agreement" and published by Household Bank, N.A., which is not a party to this case, b. the boilerplate Agreement is unexecuted, and c. the exhibit at most is an adhesion contract containing ontractual terms mandated by the nonparty bank; 3. ((that on the face of the pleadings, there is NO evidence that Household is an assignee of Household Bank, N.A. and would be entitled to anything from Smith; 4. that on the last line of the exhibit attached to Household's complaint, there is one statement which reads: "Household Credit Services, Inc. provides processing services for Household Bank, N.A."; 5. that Household Credit Services as an entity is insufficiently identified in that there is no address anywhere in any of the pleadings filed by the Daniels Law Office: i.e., according to the Complaint, Household Credit Services' place of business is Las Vegas, Nevada, but the Household Credit Services which Smith dealt with was located or at least received mail in Maryland; 6. that therefore there is nowhere to serve the affiant Donald Mathews, who affiances that he is employed by Household Credit Services -- and the Daniels Law Office has informed Smith's counsel that it refuses to accept service of a summons and subpoena duces tecum on Mathews. [See Affidavit of Smith's counsel which accompanies this motion.] For the above reasons, Smith states that dismissal with prejudice of the claims of Household Credit Services is appropriate. WHEREFORE, Smith prays that his motion to dismiss with prejudice be allowed. Respectfully submitted, XXXXXXX Y. SMITH, pro se, 15 February 1998 ____________________________ Your name and address CERTIFICATE OF SERVICE I, ____ Smith, pro se, hereby certify that on 16/17 February 1990 I served a true and accurate copy of the within pleading by prepaid first-class mail on Richard S. Daniels, Jr., Esq., One Center Plaza, Boston, MA 02108-7300. 16/17 February 1990 _______________________________ Your name