Preview
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
CONSUMER CREDIT CONTRACT
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF CHISAGO TENTH JUDICIAL DISTRICT
Discover Bank
Plaintiff, DECLARATION OF ATTORNEY
Court File No. 13-CV-23-142
vs.
Mitchel D Josephson
The Honorable Catherine A. Trevino
Defendant(s).
I, the undersigned, state as follows:
1 That I make this Declaration in Support of the Motion of the Plaintiff for Summary Judgment as
attorney of Plaintiff.
That I am a licensed attorney authorized to practice in Minnesota.
That pursuant to Rule 115.10 of the Minnesota General Rules of Practice for the District Courts,
the parties have attempted to confer in an effort to resolve this matter prior to bringing a
dispositive motion.
4 That Exhibit 1 attached hereto is a true and correct copy of Plaintiff's Discovery, which was
served on Defendant(s).
5 That, to date, Defendant has failed to answer Plaintiff's discovery requests.
In the state of Minnesota, county of Hennepin, I declare under penalty of perjury that everything I have
stated in this document is true and correct. Minn. Stat. § 358.116.
Dated: 3s ZS MESSERLI & KRAMER PA
(Brian A/Chou, #0332124
(Jefferson C. Pappas, #0304943
(Jillian N. Walker, #0388575
(Stephanie S. Lamphere, #0396794
rt cia M. Westerhoff, #0398577
larcus S. Boston, #0401167
(Craig P. Henderson, #0402194
(Stephen M. Kaminsky, #0402966
cc-litigation@messerlikramer.com
3033 Campus Drive, Ste. 250
Plymouth, MN 55441
Ph#: (763) 548-7900
Fax#: (763) 548-7922
Page 1 of 54
MN_0750 File No: 22-126184
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
Messerli| Kramer P.A. Telephone Representatives Avallabls:
MESSERLI | KRAMER ATTORNEYS AT LAW 8am -7 p.m. Monday, Tyesday, Thursday
ATTORNEYS AT LAW 3033 Campus Drive Bam.- 5 p.m. Wednesday
Suite 260 Bam. -6 p.m. Friday
Plymouth, Minnesota 55441-2662
main 763-548-7900
fax 763-548-7922 Lobby Hours:
{oll free 844-417-6626 8 o.m.-5 pm. Monday - Friday
T7414
December 06, 2022
TIRE ATE ET UT WT
Mitchel D Josephson
4905 ATHENS TRL
NORTH BRANCH, MN 55056-4936
Our Client: Discover Bank
Consumer: Mitchel D Josephson
Account Number; XXXXXXXXXXXX5095
Balance: $10,170.11
Our File Number: 22-126184
Dear Mitchel D Josephson:
Enclosed herein and served upon you, please find Plaintiff's Discovery pursuant to the Minnesota
Rules of Civil Procedure. Please contact our office at (763) 548-7900 should you wish to resolve
this matter.
Very truly yours,
MESSERLI & KRAMER PA
Enclosure
IMPORTANT NOTICE
This communication is from a debt collector and is an attempt to collect a debt. Any information
obtained will be used for that purpose.
EXHIBIT
1
MN_9235 File No: 22-126184
Page 2 of 54
13-CV-23-142
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oe TIFICATE_OR § VICE BY MALL
DEC
0 8 202
On , a true and correct copy of Plaintiff's Discovery was
placed in an envelope with postage prepaid in the United States mail at 3033 Campus Drive,
Suite 250 Plymouth, MN 55441, addressed to:
Mitchel D Josephson
4905 ATHENS TRL
NORTH BRANCH, MN 55056-4936
In the state of Minnesota, county of Hennepin, I declare under penalty of perjury that everything
IT have stated in this document is true and correct. Minn. Stat. § 358.116.
<¢eloun
pu e etl
3033 Campus Drive, Ste. 250
Plymouth MN 55441
cc-litigation@messerlikramer.com
C
Ph#; (763) 548-7900
Fax#: (763) 548-7922
URAC MAAR AOC
MN.0235 File No: 22-126184
Page 3 of 54
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
CONSUMER CREDIT CONTRACT
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF CHISAGO TENTH JUDICIAL DISTRICT
—— ee a
Discover Bank
Plaintiff,
vs,
Mitchel D Josephson PLAINTIFF'S DISCOVERY
Defendant(s). Court File No,
-—- _.....5 Ls
TO: Mitchel ID Josephson, that address is 4905 ATHENS TRL. NORTH BRANCH, MN
55056-4936
Pursuant to Rules 26, 33, 34 and 36 of the Minnesota Rules of Civil Procedure, Discover
Bank (Plaintiff), hereby requests responses from Mitchel D Josephson (Defendant(s), to the
following Requests for Admissions, Written Interrogatories and Request for Production of
Documents as so instructed below and required by said Rules.
PART I:
GENERAL DEFINITIONS APPLICABLE TO THE TERMS
USED IN THESE DISCOVERY REQUESTS
"Document" has the meaning set forth in Rule 34.01 of the Minnesota Rules of
Civil Procedure and includes, without limitation, any papers or writings, photos or
other graphic representations, audio or pictorial recordings, and data processed or
generated by computer or another machine including non-identical copies,
whether rendered non-identical by reason of notation made on said copies or
otherwise, and all drafts alterations, modifications, changes and amendments of
those documents as described in Rule 34.01.
"Deseribe in detail" or "explain in full detail" means to set forth a full and
complete statement of whatever the responding party knows or believes in
response (o the inquiry made, leaving out no important facts,
In each request or interrogatory, “and" as well as "or" should be construed either
disjunctively or conjunctively as necessary to bring within the scope of the
request or interrogatory information which might otherwise be construed to be
outside its scope.
MN,0235 File No: 22-126184
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13-CV-23-142
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4 In each request or interrogatory, all nouns should be construed as either singular
or plural as necessary to bring within the scope of the request or interrogatory
information that might otherwise be construed to be outside its scope.
in each request or interrogatory, the masculine noun or pronoun should be
construed to include the feminine or neuter of the noun or pronoun as necessary to
briig within the scope of the request or interrogatory information which might
otherwise be construed to be outside its scope.
6 "Identity" has the respective meanings as related below:
a. As toa natural person, "identify" means to state his or her full name, the
person's age or an estimate thereof, pres ent or last known residence
address, occupation or profession or job title, employer or business
description and business address.
As to a non-natural person or company or other business entity, "identify"
means to state the full and complete name of the entity, the nature or form
of the entity (such corporation, partnership, ete.), its present or last known
address and the principal line of business in which it is engaged.
As to a document, "identify" means to state the nature of the document
(letter, book, memo, picture, chart, cte.), its date or the date of its
significance relative to your answer, its title, the author(s) or person(s)
who prepared or issued it, its addressee(s) or recipient(s), a description of
its content or subject matter. and its present location or custodian.
Attachment of the document for which identification is requested, without
inclusion of requested information not apparent from the face of the
document will not be considered sufficient compliance with an
interrogatory.
As to an oral communication Jentify" means to state the type of
communication (phone call, in-person meeting, etc.), the date it occurred,
here it took place, the p ns who participated or were present at the
time and a description of its content or subject matter.
"You" or ny, our" or "Defendant" means Mitchel D Josephson, Defendant(s) in the
above-entitled matter.
The Account Number has been partially redacted to protect the Consumer's
privacy. The partially redacted Account Number shall bear the same meaning as
the full unredacted Account Number. If a full Account Number is necessary to
adequately respond to the following requests, please contact Messerli & Kramer
PA to receive the full number. We may be reached at (763) 548-7900.
MN_0235 Pile No: 22-126184
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13-CV-23-142
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"Account" or "Your Account" or "Credit Card" or "Card" refers to the charge
account bearing account number ending in XXXXXXXXXXXX5095,
10, Any other term not defined herein shall have the meaning ascribed to it by
Webster's New Universal Unabridged Dictionary (2012),
PART ID.
REQUEST FOR ADMISSIONS
A. Instructions
for Requests for Admission.
Jn accordance with Minnesota Rules of Civil Procedure, Rule 36, Plaintiff calls upon
Defendant to serve written admissions to the requests made below. Said admissions are for
purposes of this action only and must be made within the time and manner specified by said
Rule. In particular, your attention is called to that part of Rule 36.01 that provides:
‘The matter is admitted unless within 30 days after service of the request, or within
such shorter or longer time as the court may allow, the party to whom the request
is directed serves upon the party requesting the admission a written answer or
objection addressed to the matter, signed by the party or party's attorney... If
objection is made, the reasons therefor shall be stated. The answer shall
specifically deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter. A denial shall fairly meet the
substance of the requested admission, and, when good faith requires that a party
qualify an answer or deny only a part of the matter of which an admission is
requested, the parties shall specify so much of it as it true and qualify or deny the
remainder, An answering party may not give lack of information or knowledge as
a reason for failure to admit or deny unless the party states that a reasonable
inquiry has been made and that the information known or readily obtainable by
the party is insufficient to enable the party to admit or deny. A party who
considers that a matter of which an adir jon has been requested presents a
genuine issue for trial may not, on that ground alone, object to the request; the
party may, subject to the provision of Rule 37,03, deny the matter or set forth the
reasons why the party cannot admit or deny it.
The following instructions apply to the requested admissions:
1 If Defendant's response to a Request is not an admission, the answer must
specifically deny the matter or set forth in detail the reasons why it cannot
truthfully be admitted or denied.
A denial shall fairly meet the substance of the requested admission.
MN_0235 File No: 22-126184
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When good faith requires that Defendant admit or deny only a part of the matter
for which an admission is requested, Defendant must specify the portions of the
request which are admitted and then deny or qualify the answer only as to the
remainder.
Lack of knowledge or information may not be given as a reason for failure to
admit or deny unless the subject matter is plainly outside the scope of what
Defendant would, in the circumstances, reasonably be expected to know, and
unless Defendant first declares that diligent inquiry has been made in a genuine
effort to obtain the information from available sources.
Failure to provide truthful and unequivocal responses to these requested
admissions within the meaning and spirit of Rule 36 shall subject Defendant to
sanctions provided by the Rules.
.
6. Please restate each request for admission immediately before giving the response.
Matters that are unqualifiedly admitted by Defendant may require an expanded
answer in the Interrogatory portion of these discovery requests.
B. Actual Requ Ls.
j ‘That you received an account from Plaintiff currently bearing the account number ending
in XXXXXXXXXXXX5095 (Account),
2 That your Account was opened on or about September 05, 2012.
3 That your name was on the Account with Plaintiff.
4, That you used your Account to purchase goods and services, transfer balances from other
accounts, and/or obtain cash advances,
5 That you authorized others to use your Account to purchase goods and services, transfer
balances from other accounts, and/or obtain cash advances.
6 That you received the benefits of using your Account.
7. That you retained the benefits you received from using your Account,
8 That you accepted the terms of the Contract by using the Account,
9. That you received detailed periodic billing statements from Plaintiff setting forth the
purchases and charges on the Account,
10. That you were required to pay back Plaintiff the charges and advances made by you
related to your Account.
MN_0235 Bile No: 22-126184
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fl. ‘That your mailing address is or has been 4905 ATHENS TRL, NORTH BRANCH, MN
55056-4936,
12. ‘That Exhibit A attached hereto contains true and correct copies of authentic and genuine
periodic billing statements sent to you from Plaintiff detailing your Account activity.
13. Ifyou claim lack of knowledge as an answer for Request for Admission Twelve, admit
that you have no knowledge, documentation, or reason to dispute the authenticity of Exhibit A.
14 That your name appears on Exhibit A.
15 That your address appears on Exhibit A.
16 That Exhibit A accurately reflects the activity on the Account.
17 That you did not send written notice to Plaintiff within sixty days of any claimed error
first appearing on any periodic billing statement.
18. That you made payments to Plaintiffto pay against the balance on your Account.
19, ‘That Plaintiff credited your Account each time a payment was received,
20. That you failed to make all of your minimum periodic payments to Plaintiffas set forth in
the Contract.
21. That you defaulted on your Account with Plaintiff,
22. ‘That interest was charged to your Account in accordance with the terms of the Contract.
23, That fees re charged to your Account in accordance with the terms of the Contract.
24, That the last payment made on your Account was on or about October 15, 2021, in the
amount of $204.00.
25, That this Account has not been paid in full.
26. ‘That there remains a principal amount owing on your Account of $10,170.11.
27. ‘That you have no proof to dispute the balance sought in the Complaint.
MIN_0235 File No: 22-126184
Page 8 of 54
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PART IL.
WRITTEN INTERROGATORIES
A. Insttuctions
for Luterrogatories.
Plaintiff requests answers by Defendant to the written Lnterrogatories below in the matter
required by Minnesota Rules of Civil Procedure, Rule 33. Objection will be made at trial to any
documents or the testimony of any witness that Defendant is called upon herein to disclose if
Defendant fails to make such disclosure in Defendant's answers to these Interrogatories. Other
sanctions may also apply.
While the Rules do not require Defendant to give conclusions of law or legal opinions in
Defendant's answers, Rule 33.02 of the Minnesota Rules of Civil Procedure is clear that an
interrogatory is not objectionable merely because the answer to it involves an opinion or some
application of law to fact. All answers are to be given in factual terms as fully as possible.
Each of the interrogatories below are to be restated immediately before the response to it
is given, as required by Minnesota Rules of Civil Procedure, Rule 33.01(d).
The following instructions apply to the Interrogatories:
1, Unknown Information: To the extent any information called for by these
Interrogatories is unknown to you, so state and set forth the remaining information as
is known. If es mates can reasonably be made in place of unknown information, set
forth your best estimate, clearly designated as such, along with a description of the
basis for the estimate, in place of the unknown information.
Supplem swers: ‘These Interrogatories will be deemed fo be continuing, so as
to require additional answers if further information is obtained between the time
answers are served and the time of trial
identifi of Docume! Whenever in these Interrogatories you are asked to
identify a document, you shall designate the type of document (i.e., letter,
memorandum, report, etc.) and shall state: (i) information sufficient to enable Plaintiff
to identify the document, such as its date, the name of addressee or addressees, the
name of the signer or signers, the title or heading of the document, or other appropriate
identifying information; (ii) the identity of the persons or whom the original and all
vopies were sent; and (iii) the present or last known locations or possessors of the
original document and of each copy thereof.
MN.0235 Vile Ne 22126184
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4, Lost or Destroyed Documents: If any document in these requests was formerly in
existence or in your possession but no longer exists, or no longer is within your
possession, custody, or control, your response should state, for each such document
(i) an identification of the document and its author(s) and addressee(s); (il) the date
and circumstances of the document's loss or destruction; and (iii) the reason or
justification for such loss or destruction
Procedure for Claiming Privilege or Other Objection: If you claim that any request
herein respecting any document is objectionable on grounds of privilege, your
response should include, for such document: (i) a statement of the nature of the
objection and the basis therefore; (ii) a statement of the nature and type of the
document and its genera! subject matter; (iii) a statement of the number of pages or
units of the docuinent; (iv) an identification of the document and the document's
author(s) and addressee(s): (v) a statement setting forth the date of the document; and
(vi) a statement setting forth the document's present location and identifying each
person having possession, care, custody or control of the original or any copies of the
document.
B, Actual Diterrogatories,
INTERROGATORY _NO. Identify the person or persons signing these answers to
interrogatories and identify every other person assisting in the preparation of the answers
INTERROGATORY NO. 2: Identify all other persons known to you to have any knowledge
INTER
relating to the tansactions and occurrences which are the subject matter of this action, whether
obtained in the course of investigation, preparation for trial or otherwise, and state the knowledge
possessed by each such person
NO, 3: State whether, and if so why, you contend that any of the monthly or
INTERROGATORY
other periodic payments to Plaintiff were excused.
INTERROGATORY 4: State whether, and if so why, you contend that you are not required
to perform under the Contract,
1
INTERROC RY NOW: For cach and every defense, dispute. and denial claimed by you in
response to the Complaint. state all facts and identify all documents that you claim support your
assertions.
INTERROGATORY NO, &: For each request for admission served herewith or any part thereof
which you have denied, denied with qualifications or answered in any other manner, other than an
unqualified admission, set forth in detail and with particularity:
a) The full factual basis for the denial, qualification or failure to admit;
b) The full legal basis for the denial, qualification or failureto admit,
¢) Identify all documents supporting such denial, qualification or failure to admit; and
d) Identi Il persons with knowledge supporting your denial, qualification or failure
lo admit.
MN_0235 File No: 22-12618¢
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PART IV.
REQUESTS FOR PRODUCTION OF DOCUMENTS
A, Instructions for Requests for Production of Documents.
In accordance with Minnesota Rules of Civil Procedure, Rule 26.02 and 34, Plaintiff
hereby requests Defendant to produce for inspection or copying by Plaintiff's counsel the
documents requested below within thirty days from the date of this request.
The following instructions apply to the Requests for Production of Documents:
I. Lost or troyed Documents: If any document in these requests was formerly in
existence or in your poss sion but no longer exists. or no longer is within your
possession, custody, or control, your response should state, for each such document:
(i) an identification of the document and its author(s) and addressee(s); (ii) the date
and circumstances of the document's loss or destruction, and (iii) the reason or
justification for such loss or destruction,
Procedure for Claiming Privilege or other Objection: If you claim that any request
herein respecting any document is objectionable on grounds of privilege, your
response should include, for such document: (i) a statement of the nature of the
objection and the basis therefor: (ii) a statement of the nature and type of document
and its general subject matter; a statement of the number of pages or units of the
document; (iv) an identification of the document and the document's author(s) and
addressce(s); (v) a statement setting forth the date of the document; and (vi) a
statement setting forth the document's present location and identifying each person
having possession, care, custody, or control of the original or any copies of the
document.
Location of Lnspectic Regarding the place of inspection and copying, Plaintiff's
counsel requir ody of all original documents for a period of 10 days to complete
evaluation of the same which shall be at the office of Plaintiffs attorney.
B Actual Requests.
Copies of each and every document identified in any of your answers to
interrogatories or Responses to Requests for Production of Documents or Requests for
Admission,
zy Copies of each and every document though not identified above, that you relied upon
in answering this set of discovery.
Copies of all exhibits thar you intend to introduce at trial,
Copies of any and all correspondence between you and Plaintiff regarding the subject
matter of this lawsuit.
MN_0235 File No: 22-126184
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5. Copies of any and all bank records, canceled checks or other proofs that you claim
represent any uncredited payments that you made on the Account,
6. Copies of any and all documents that you sent to Plaintiff notifying them ofa billing
error that appeared on your Account.
7. Copies of any and all documents that support your denials, affirmative defenses, and
disputes as set forth in your response to the Complaint.
THESE DISCOVERY REQUESTS ARE DEEMED TO BE CONTINUING IN NATURE,
AND SHOULD YOU, YOUR COUNSEL, OR ANYONE REPRESENTING YOUR
INTERESTS ACQUIRE NEW OR ADDITIONAL KNOWLEDGE NOT SET FORTH IN
YOUR RESPONSES TO THESE DISCOVERY REQUESTS, OR LEARN OF ANY
ADDITIONAL PERSON OR PERSONS HAVING KNOWLEDGE RELATING TO THE
MATTERS TO WHICH THESE REQUESTS ADDRESS, YOU ARE REQUESTED AND
DIRECTED TO FURNISH THE NEW OR ADDITIONAL INFORMATION AND THE
NAMES OF ANY SUCH PERSONS TO THE UNDERSIGNED.
MESSERLI & KRAMER PA
ISIN ars Bos!
‘wNo4os 167, 8T68107487
Her
(08:47:24 -06'00
oa
3033 Campus Drive, Ste. 250
Plymouth, MN 55441
co-litigation@messerlikramer.com
Phi: (763) 548-7900
Fax#: (763) 548-7922
MN 0235 Fite No: 22-126184
Page 12 of 54
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¢
Disc:
DISCOVER IT® CARD ENDINGIN 5095
CAROMEMBER SINCE 2012 DISCC'VER
Fa u Ay
oh Ay
W aA i
Previous Balance
DAG OR
se:
a wiv
$8,531.41
i
Cea
New Balance Minimum Payment
EET i sa
Payment Due Date
el
ll
Payments and Credits $204.00
Purchase! 4 $307.91 $8,782.67 $176.00 11/15/2021
Balance Transfers +$0.00 Late Payment Warning: If we do not receive your minimum payment by the date
Cash Advance: +$0,00 listed above, you may have to pay a late fee of up to $40.00.
Fees Charged + $0.00 Minimum Payment Warnings If you make only the minimum payment each perlod
interest Charged 4$147.35 you will pay more terest and it will take longer to pay off your balance. For
€ example
New Balance: 782.67
See Interest Charge Calculation section follawing the Fees and He yos anit ne Idibonat You vill pay off th And you will chs Ge
eh 6 using this card and bala 4 shawn on this paying an estinabad
Interest Charged section for detailed APR information cach month you pay. stat renin aboot total of
Credit Line $9,000
Credit Line Available $217 Only the minimum paynient 35 years $44,464
Cash Advance Credit Line $1,800 $327 3 years $11,787
Cash Advance Credit Line Available $217 i (Savings $32,677)
Ifyou would ‘Ike information
about credit counseling services, callus at 1-800-347-1121
9
FICO® Score 8 based on TransUnion® data:
Al
AS OF 10/14/21
es Upulated Monthly
fpu See Key Factors that help explain your score
at Discover.com or visit ourmabile app.
Notice: See reverse side for Important information
2
SEC NG
etach ot perforation above and return wi
a
eck payable to
ACCOUNT NUMBER ENDING IN 5095
Discover, Do not fold, elip, staple or send cash, New Balance 58,782.67
Miniinum Payment Due 5176.00
Payment Due Date 11/15/2021
MITCHEL D JOSEPHSON
i ES wa}
Fora faster, asier
$
J 1 Discover.com 1-800-347-2683
4905 ATHENS TRE y Lo pay. See reverse for pay ot cut off Haves,
NORTH BRANCH MN 55056-4936
PO BOX 6103
CAROL STREAM IL 60197- EXHIBIT
ao
New address, email or phone? Please uadate on reverse. oe na
b: Bt
———————— sass
Page 13 of 54
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DIsco VER m GARD ENDINGIN 5095 Page 2 of 6
Mite Ht 10 = OPEN TO CLos E DATE: 09/21/2021 - 10/20/2021
Important Information Minimuin Payment Due, (ii) statement Minimum Payment Oue plus a fixed dollar
See your Cardmember Agreement. Your Curdmember Agreement contains all the amount,or (iv) other dollar amount. If your scheduled "Other dollar amount”
terms of your Account. aymientis not enough to coverthe M:nimum Payment Due as listed on your monthly
ftheillingMinimum
statement, your scheduled paymentfor that month will be increased to cover
Payment Due, Ifthe scheduled payment is greaterthan the Minimum
Lost or Stolen Cards. Report immediately! Call 1-800-347-2663.
Payment Due, any excess will be applied in accordance with your Cardmember
‘What To Do ff You Think You Find A Mistake On Your Statement: If you ti there is Agreement, Ifyour scheduled payments greater than the New Balance on your billing
an error on your statement,vl tous at Discover, PO Box 30421, Salt Lake City, UT statement, that payment will be processed only for the amountof your New Balance,
84130-0421, or submit the for provided at htips://discover.com/billingerrornotice, Your automatic payment aniount maybe less than the amount indicated on the billing
You must contact us within 60 days after the errar appeared on your statement, You statement based on credits or payinents after the Close Date,
may call us, but ifyou do we are not required (o investigate any potential errors, and Ifyou enroll by phone in our automaticpayment service, pleasefill-in the fullowing,
you may have to pay the amountin question. The Billing Rights Notice further blanks below and retain the authorization for your records.
explains your righ(s. Please see your Cardmember Agreement ot visit
https://discover,com/billingrights for a copy of this Notice. Amount
Payments, You may pay all ur pert ofyour Account balance at anytime, However, you Ofull Pay min Pay
‘mus! pay at least the Miniioum Payraent Oue by the Payment Oue Date. Send only Pays $__ — ~~ C)othe
Preview
13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM CONSUMER CREDIT CONTRACT STATE OF MINNESOTA DISTRICT COURT COUNTY OF CHISAGO TENTH JUDICIAL DISTRICT Discover Bank Plaintiff, DECLARATION OF ATTORNEY Court File No. 13-CV-23-142 vs. Mitchel D Josephson The Honorable Catherine A. Trevino Defendant(s). I, the undersigned, state as follows: 1 That I make this Declaration in Support of the Motion of the Plaintiff for Summary Judgment as attorney of Plaintiff. That I am a licensed attorney authorized to practice in Minnesota. That pursuant to Rule 115.10 of the Minnesota General Rules of Practice for the District Courts, the parties have attempted to confer in an effort to resolve this matter prior to bringing a dispositive motion. 4 That Exhibit 1 attached hereto is a true and correct copy of Plaintiff's Discovery, which was served on Defendant(s). 5 That, to date, Defendant has failed to answer Plaintiff's discovery requests. In the state of Minnesota, county of Hennepin, I declare under penalty of perjury that everything I have stated in this document is true and correct. Minn. Stat. § 358.116. Dated: 3s ZS MESSERLI & KRAMER PA (Brian A/Chou, #0332124 (Jefferson C. Pappas, #0304943 (Jillian N. Walker, #0388575 (Stephanie S. Lamphere, #0396794 rt cia M. Westerhoff, #0398577 larcus S. Boston, #0401167 (Craig P. Henderson, #0402194 (Stephen M. Kaminsky, #0402966 cc-litigation@messerlikramer.com 3033 Campus Drive, Ste. 250 Plymouth, MN 55441 Ph#: (763) 548-7900 Fax#: (763) 548-7922 Page 1 of 54 MN_0750 File No: 22-126184 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM Messerli| Kramer P.A. Telephone Representatives Avallabls: MESSERLI | KRAMER ATTORNEYS AT LAW 8am -7 p.m. Monday, Tyesday, Thursday ATTORNEYS AT LAW 3033 Campus Drive Bam.- 5 p.m. Wednesday Suite 260 Bam. -6 p.m. Friday Plymouth, Minnesota 55441-2662 main 763-548-7900 fax 763-548-7922 Lobby Hours: {oll free 844-417-6626 8 o.m.-5 pm. Monday - Friday T7414 December 06, 2022 TIRE ATE ET UT WT Mitchel D Josephson 4905 ATHENS TRL NORTH BRANCH, MN 55056-4936 Our Client: Discover Bank Consumer: Mitchel D Josephson Account Number; XXXXXXXXXXXX5095 Balance: $10,170.11 Our File Number: 22-126184 Dear Mitchel D Josephson: Enclosed herein and served upon you, please find Plaintiff's Discovery pursuant to the Minnesota Rules of Civil Procedure. Please contact our office at (763) 548-7900 should you wish to resolve this matter. Very truly yours, MESSERLI & KRAMER PA Enclosure IMPORTANT NOTICE This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose. EXHIBIT 1 MN_9235 File No: 22-126184 Page 2 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM oe TIFICATE_OR § VICE BY MALL DEC 0 8 202 On , a true and correct copy of Plaintiff's Discovery was placed in an envelope with postage prepaid in the United States mail at 3033 Campus Drive, Suite 250 Plymouth, MN 55441, addressed to: Mitchel D Josephson 4905 ATHENS TRL NORTH BRANCH, MN 55056-4936 In the state of Minnesota, county of Hennepin, I declare under penalty of perjury that everything IT have stated in this document is true and correct. Minn. Stat. § 358.116. <¢eloun pu e etl 3033 Campus Drive, Ste. 250 Plymouth MN 55441 cc-litigation@messerlikramer.com C Ph#; (763) 548-7900 Fax#: (763) 548-7922 URAC MAAR AOC MN.0235 File No: 22-126184 Page 3 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM CONSUMER CREDIT CONTRACT STATE OF MINNESOTA DISTRICT COURT COUNTY OF CHISAGO TENTH JUDICIAL DISTRICT —— ee a Discover Bank Plaintiff, vs, Mitchel D Josephson PLAINTIFF'S DISCOVERY Defendant(s). Court File No, -—- _.....5 Ls TO: Mitchel ID Josephson, that address is 4905 ATHENS TRL. NORTH BRANCH, MN 55056-4936 Pursuant to Rules 26, 33, 34 and 36 of the Minnesota Rules of Civil Procedure, Discover Bank (Plaintiff), hereby requests responses from Mitchel D Josephson (Defendant(s), to the following Requests for Admissions, Written Interrogatories and Request for Production of Documents as so instructed below and required by said Rules. PART I: GENERAL DEFINITIONS APPLICABLE TO THE TERMS USED IN THESE DISCOVERY REQUESTS "Document" has the meaning set forth in Rule 34.01 of the Minnesota Rules of Civil Procedure and includes, without limitation, any papers or writings, photos or other graphic representations, audio or pictorial recordings, and data processed or generated by computer or another machine including non-identical copies, whether rendered non-identical by reason of notation made on said copies or otherwise, and all drafts alterations, modifications, changes and amendments of those documents as described in Rule 34.01. "Deseribe in detail" or "explain in full detail" means to set forth a full and complete statement of whatever the responding party knows or believes in response (o the inquiry made, leaving out no important facts, In each request or interrogatory, “and" as well as "or" should be construed either disjunctively or conjunctively as necessary to bring within the scope of the request or interrogatory information which might otherwise be construed to be outside its scope. MN,0235 File No: 22-126184 Page 4 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM 4 In each request or interrogatory, all nouns should be construed as either singular or plural as necessary to bring within the scope of the request or interrogatory information that might otherwise be construed to be outside its scope. in each request or interrogatory, the masculine noun or pronoun should be construed to include the feminine or neuter of the noun or pronoun as necessary to briig within the scope of the request or interrogatory information which might otherwise be construed to be outside its scope. 6 "Identity" has the respective meanings as related below: a. As toa natural person, "identify" means to state his or her full name, the person's age or an estimate thereof, pres ent or last known residence address, occupation or profession or job title, employer or business description and business address. As to a non-natural person or company or other business entity, "identify" means to state the full and complete name of the entity, the nature or form of the entity (such corporation, partnership, ete.), its present or last known address and the principal line of business in which it is engaged. As to a document, "identify" means to state the nature of the document (letter, book, memo, picture, chart, cte.), its date or the date of its significance relative to your answer, its title, the author(s) or person(s) who prepared or issued it, its addressee(s) or recipient(s), a description of its content or subject matter. and its present location or custodian. Attachment of the document for which identification is requested, without inclusion of requested information not apparent from the face of the document will not be considered sufficient compliance with an interrogatory. As to an oral communication Jentify" means to state the type of communication (phone call, in-person meeting, etc.), the date it occurred, here it took place, the p ns who participated or were present at the time and a description of its content or subject matter. "You" or ny, our" or "Defendant" means Mitchel D Josephson, Defendant(s) in the above-entitled matter. The Account Number has been partially redacted to protect the Consumer's privacy. The partially redacted Account Number shall bear the same meaning as the full unredacted Account Number. If a full Account Number is necessary to adequately respond to the following requests, please contact Messerli & Kramer PA to receive the full number. We may be reached at (763) 548-7900. MN_0235 Pile No: 22-126184 Page 5 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM "Account" or "Your Account" or "Credit Card" or "Card" refers to the charge account bearing account number ending in XXXXXXXXXXXX5095, 10, Any other term not defined herein shall have the meaning ascribed to it by Webster's New Universal Unabridged Dictionary (2012), PART ID. REQUEST FOR ADMISSIONS A. Instructions for Requests for Admission. Jn accordance with Minnesota Rules of Civil Procedure, Rule 36, Plaintiff calls upon Defendant to serve written admissions to the requests made below. Said admissions are for purposes of this action only and must be made within the time and manner specified by said Rule. In particular, your attention is called to that part of Rule 36.01 that provides: ‘The matter is admitted unless within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or party's attorney... If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and, when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the parties shall specify so much of it as it true and qualify or deny the remainder, An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that a reasonable inquiry has been made and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an adir jon has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provision of Rule 37,03, deny the matter or set forth the reasons why the party cannot admit or deny it. The following instructions apply to the requested admissions: 1 If Defendant's response to a Request is not an admission, the answer must specifically deny the matter or set forth in detail the reasons why it cannot truthfully be admitted or denied. A denial shall fairly meet the substance of the requested admission. MN_0235 File No: 22-126184 Page 6 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM When good faith requires that Defendant admit or deny only a part of the matter for which an admission is requested, Defendant must specify the portions of the request which are admitted and then deny or qualify the answer only as to the remainder. Lack of knowledge or information may not be given as a reason for failure to admit or deny unless the subject matter is plainly outside the scope of what Defendant would, in the circumstances, reasonably be expected to know, and unless Defendant first declares that diligent inquiry has been made in a genuine effort to obtain the information from available sources. Failure to provide truthful and unequivocal responses to these requested admissions within the meaning and spirit of Rule 36 shall subject Defendant to sanctions provided by the Rules. . 6. Please restate each request for admission immediately before giving the response. Matters that are unqualifiedly admitted by Defendant may require an expanded answer in the Interrogatory portion of these discovery requests. B. Actual Requ Ls. j ‘That you received an account from Plaintiff currently bearing the account number ending in XXXXXXXXXXXX5095 (Account), 2 That your Account was opened on or about September 05, 2012. 3 That your name was on the Account with Plaintiff. 4, That you used your Account to purchase goods and services, transfer balances from other accounts, and/or obtain cash advances, 5 That you authorized others to use your Account to purchase goods and services, transfer balances from other accounts, and/or obtain cash advances. 6 That you received the benefits of using your Account. 7. That you retained the benefits you received from using your Account, 8 That you accepted the terms of the Contract by using the Account, 9. That you received detailed periodic billing statements from Plaintiff setting forth the purchases and charges on the Account, 10. That you were required to pay back Plaintiff the charges and advances made by you related to your Account. MN_0235 Bile No: 22-126184 Page 7 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM fl. ‘That your mailing address is or has been 4905 ATHENS TRL, NORTH BRANCH, MN 55056-4936, 12. ‘That Exhibit A attached hereto contains true and correct copies of authentic and genuine periodic billing statements sent to you from Plaintiff detailing your Account activity. 13. Ifyou claim lack of knowledge as an answer for Request for Admission Twelve, admit that you have no knowledge, documentation, or reason to dispute the authenticity of Exhibit A. 14 That your name appears on Exhibit A. 15 That your address appears on Exhibit A. 16 That Exhibit A accurately reflects the activity on the Account. 17 That you did not send written notice to Plaintiff within sixty days of any claimed error first appearing on any periodic billing statement. 18. That you made payments to Plaintiffto pay against the balance on your Account. 19, ‘That Plaintiff credited your Account each time a payment was received, 20. That you failed to make all of your minimum periodic payments to Plaintiffas set forth in the Contract. 21. That you defaulted on your Account with Plaintiff, 22. ‘That interest was charged to your Account in accordance with the terms of the Contract. 23, That fees re charged to your Account in accordance with the terms of the Contract. 24, That the last payment made on your Account was on or about October 15, 2021, in the amount of $204.00. 25, That this Account has not been paid in full. 26. ‘That there remains a principal amount owing on your Account of $10,170.11. 27. ‘That you have no proof to dispute the balance sought in the Complaint. MIN_0235 File No: 22-126184 Page 8 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM PART IL. WRITTEN INTERROGATORIES A. Insttuctions for Luterrogatories. Plaintiff requests answers by Defendant to the written Lnterrogatories below in the matter required by Minnesota Rules of Civil Procedure, Rule 33. Objection will be made at trial to any documents or the testimony of any witness that Defendant is called upon herein to disclose if Defendant fails to make such disclosure in Defendant's answers to these Interrogatories. Other sanctions may also apply. While the Rules do not require Defendant to give conclusions of law or legal opinions in Defendant's answers, Rule 33.02 of the Minnesota Rules of Civil Procedure is clear that an interrogatory is not objectionable merely because the answer to it involves an opinion or some application of law to fact. All answers are to be given in factual terms as fully as possible. Each of the interrogatories below are to be restated immediately before the response to it is given, as required by Minnesota Rules of Civil Procedure, Rule 33.01(d). The following instructions apply to the Interrogatories: 1, Unknown Information: To the extent any information called for by these Interrogatories is unknown to you, so state and set forth the remaining information as is known. If es mates can reasonably be made in place of unknown information, set forth your best estimate, clearly designated as such, along with a description of the basis for the estimate, in place of the unknown information. Supplem swers: ‘These Interrogatories will be deemed fo be continuing, so as to require additional answers if further information is obtained between the time answers are served and the time of trial identifi of Docume! Whenever in these Interrogatories you are asked to identify a document, you shall designate the type of document (i.e., letter, memorandum, report, etc.) and shall state: (i) information sufficient to enable Plaintiff to identify the document, such as its date, the name of addressee or addressees, the name of the signer or signers, the title or heading of the document, or other appropriate identifying information; (ii) the identity of the persons or whom the original and all vopies were sent; and (iii) the present or last known locations or possessors of the original document and of each copy thereof. MN.0235 Vile Ne 22126184 Page 9 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM 4, Lost or Destroyed Documents: If any document in these requests was formerly in existence or in your possession but no longer exists, or no longer is within your possession, custody, or control, your response should state, for each such document (i) an identification of the document and its author(s) and addressee(s); (il) the date and circumstances of the document's loss or destruction; and (iii) the reason or justification for such loss or destruction Procedure for Claiming Privilege or Other Objection: If you claim that any request herein respecting any document is objectionable on grounds of privilege, your response should include, for such document: (i) a statement of the nature of the objection and the basis therefore; (ii) a statement of the nature and type of the document and its genera! subject matter; (iii) a statement of the number of pages or units of the docuinent; (iv) an identification of the document and the document's author(s) and addressee(s): (v) a statement setting forth the date of the document; and (vi) a statement setting forth the document's present location and identifying each person having possession, care, custody or control of the original or any copies of the document. B, Actual Diterrogatories, INTERROGATORY _NO. Identify the person or persons signing these answers to interrogatories and identify every other person assisting in the preparation of the answers INTERROGATORY NO. 2: Identify all other persons known to you to have any knowledge INTER relating to the tansactions and occurrences which are the subject matter of this action, whether obtained in the course of investigation, preparation for trial or otherwise, and state the knowledge possessed by each such person NO, 3: State whether, and if so why, you contend that any of the monthly or INTERROGATORY other periodic payments to Plaintiff were excused. INTERROGATORY 4: State whether, and if so why, you contend that you are not required to perform under the Contract, 1 INTERROC RY NOW: For cach and every defense, dispute. and denial claimed by you in response to the Complaint. state all facts and identify all documents that you claim support your assertions. INTERROGATORY NO, &: For each request for admission served herewith or any part thereof which you have denied, denied with qualifications or answered in any other manner, other than an unqualified admission, set forth in detail and with particularity: a) The full factual basis for the denial, qualification or failure to admit; b) The full legal basis for the denial, qualification or failureto admit, ¢) Identify all documents supporting such denial, qualification or failure to admit; and d) Identi Il persons with knowledge supporting your denial, qualification or failure lo admit. MN_0235 File No: 22-12618¢ Page 10 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM PART IV. REQUESTS FOR PRODUCTION OF DOCUMENTS A, Instructions for Requests for Production of Documents. In accordance with Minnesota Rules of Civil Procedure, Rule 26.02 and 34, Plaintiff hereby requests Defendant to produce for inspection or copying by Plaintiff's counsel the documents requested below within thirty days from the date of this request. The following instructions apply to the Requests for Production of Documents: I. Lost or troyed Documents: If any document in these requests was formerly in existence or in your poss sion but no longer exists. or no longer is within your possession, custody, or control, your response should state, for each such document: (i) an identification of the document and its author(s) and addressee(s); (ii) the date and circumstances of the document's loss or destruction, and (iii) the reason or justification for such loss or destruction, Procedure for Claiming Privilege or other Objection: If you claim that any request herein respecting any document is objectionable on grounds of privilege, your response should include, for such document: (i) a statement of the nature of the objection and the basis therefor: (ii) a statement of the nature and type of document and its general subject matter; a statement of the number of pages or units of the document; (iv) an identification of the document and the document's author(s) and addressce(s); (v) a statement setting forth the date of the document; and (vi) a statement setting forth the document's present location and identifying each person having possession, care, custody, or control of the original or any copies of the document. Location of Lnspectic Regarding the place of inspection and copying, Plaintiff's counsel requir ody of all original documents for a period of 10 days to complete evaluation of the same which shall be at the office of Plaintiffs attorney. B Actual Requests. Copies of each and every document identified in any of your answers to interrogatories or Responses to Requests for Production of Documents or Requests for Admission, zy Copies of each and every document though not identified above, that you relied upon in answering this set of discovery. Copies of all exhibits thar you intend to introduce at trial, Copies of any and all correspondence between you and Plaintiff regarding the subject matter of this lawsuit. MN_0235 File No: 22-126184 Page 11 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM 5. Copies of any and all bank records, canceled checks or other proofs that you claim represent any uncredited payments that you made on the Account, 6. Copies of any and all documents that you sent to Plaintiff notifying them ofa billing error that appeared on your Account. 7. Copies of any and all documents that support your denials, affirmative defenses, and disputes as set forth in your response to the Complaint. THESE DISCOVERY REQUESTS ARE DEEMED TO BE CONTINUING IN NATURE, AND SHOULD YOU, YOUR COUNSEL, OR ANYONE REPRESENTING YOUR INTERESTS ACQUIRE NEW OR ADDITIONAL KNOWLEDGE NOT SET FORTH IN YOUR RESPONSES TO THESE DISCOVERY REQUESTS, OR LEARN OF ANY ADDITIONAL PERSON OR PERSONS HAVING KNOWLEDGE RELATING TO THE MATTERS TO WHICH THESE REQUESTS ADDRESS, YOU ARE REQUESTED AND DIRECTED TO FURNISH THE NEW OR ADDITIONAL INFORMATION AND THE NAMES OF ANY SUCH PERSONS TO THE UNDERSIGNED. MESSERLI & KRAMER PA ISIN ars Bos! ‘wNo4os 167, 8T68107487 Her (08:47:24 -06'00 oa 3033 Campus Drive, Ste. 250 Plymouth, MN 55441 co-litigation@messerlikramer.com Phi: (763) 548-7900 Fax#: (763) 548-7922 MN 0235 Fite No: 22-126184 Page 12 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM ¢ Disc: DISCOVER IT® CARD ENDINGIN 5095 CAROMEMBER SINCE 2012 DISCC'VER Fa u Ay oh Ay W aA i Previous Balance DAG OR se: a wiv $8,531.41 i Cea New Balance Minimum Payment EET i sa Payment Due Date el ll Payments and Credits $204.00 Purchase! 4 $307.91 $8,782.67 $176.00 11/15/2021 Balance Transfers +$0.00 Late Payment Warning: If we do not receive your minimum payment by the date Cash Advance: +$0,00 listed above, you may have to pay a late fee of up to $40.00. Fees Charged + $0.00 Minimum Payment Warnings If you make only the minimum payment each perlod interest Charged 4$147.35 you will pay more terest and it will take longer to pay off your balance. For € example New Balance: 782.67 See Interest Charge Calculation section follawing the Fees and He yos anit ne Idibonat You vill pay off th And you will chs Ge eh 6 using this card and bala 4 shawn on this paying an estinabad Interest Charged section for detailed APR information cach month you pay. stat renin aboot total of Credit Line $9,000 Credit Line Available $217 Only the minimum paynient 35 years $44,464 Cash Advance Credit Line $1,800 $327 3 years $11,787 Cash Advance Credit Line Available $217 i (Savings $32,677) Ifyou would ‘Ike information about credit counseling services, callus at 1-800-347-1121 9 FICO® Score 8 based on TransUnion® data: Al AS OF 10/14/21 es Upulated Monthly fpu See Key Factors that help explain your score at Discover.com or visit ourmabile app. Notice: See reverse side for Important information 2 SEC NG etach ot perforation above and return wi a eck payable to ACCOUNT NUMBER ENDING IN 5095 Discover, Do not fold, elip, staple or send cash, New Balance 58,782.67 Miniinum Payment Due 5176.00 Payment Due Date 11/15/2021 MITCHEL D JOSEPHSON i ES wa} Fora faster, asier $ J 1 Discover.com 1-800-347-2683 4905 ATHENS TRE y Lo pay. See reverse for pay ot cut off Haves, NORTH BRANCH MN 55056-4936 PO BOX 6103 CAROL STREAM IL 60197- EXHIBIT ao New address, email or phone? Please uadate on reverse. oe na b: Bt ———————— sass Page 13 of 54 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM DIsco VER m GARD ENDINGIN 5095 Page 2 of 6 Mite Ht 10 = OPEN TO CLos E DATE: 09/21/2021 - 10/20/2021 Important Information Minimuin Payment Due, (ii) statement Minimum Payment Oue plus a fixed dollar See your Cardmember Agreement. Your Curdmember Agreement contains all the amount,or (iv) other dollar amount. If your scheduled "Other dollar amount” terms of your Account. aymientis not enough to coverthe M:nimum Payment Due as listed on your monthly ftheillingMinimum statement, your scheduled paymentfor that month will be increased to cover Payment Due, Ifthe scheduled payment is greaterthan the Minimum Lost or Stolen Cards. Report immediately! Call 1-800-347-2663. Payment Due, any excess will be applied in accordance with your Cardmember ‘What To Do ff You Think You Find A Mistake On Your Statement: If you ti there is Agreement, Ifyour scheduled payments greater than the New Balance on your billing an error on your statement,vl tous at Discover, PO Box 30421, Salt Lake City, UT statement, that payment will be processed only for the amountof your New Balance, 84130-0421, or submit the for provided at htips://discover.com/billingerrornotice, Your automatic payment aniount maybe less than the amount indicated on the billing You must contact us within 60 days after the errar appeared on your statement, You statement based on credits or payinents after the Close Date, may call us, but ifyou do we are not required (o investigate any potential errors, and Ifyou enroll by phone in our automaticpayment service, pleasefill-in the fullowing, you may have to pay the amountin question. The Billing Rights Notice further blanks below and retain the authorization for your records. explains your righ(s. Please see your Cardmember Agreement ot visit https://discover,com/billingrights for a copy of this Notice. Amount Payments, You may pay all ur pert ofyour Account balance at anytime, However, you Ofull Pay min Pay ‘mus! pay at least the Miniioum Payraent Oue by the Payment Oue Date. Send only Pays $__ — ~~ C)othe