Kevin Khamati Oduor

WEST VIRGINIA: IN THE CIRCUIT COURT FOR JEFFERSON COUNTY ERIC NEWMAN, Case No. CC-19-2023-C-108 Plaintiff, vs. JUDGE: DAVID HAMMER ARY LS 4 LLC., et al Defendants PLAINTIFF'S RESPONSE TO DEFENDANT ELK RIVER TRUSTEES, INC.'S ANSWER TO FIRST SET OF REQUESTS FOR ADMISSION TO: DEFENDANT ELK RIVER TRUSTEE INC CLUNK, HOOSE CO., LPA Sarah Crichigno [10083] Attorneys for Defendant Elk River Trustee, Inc. 495 Wolf Ledges Pkwy Akron, OH 44311 - – telephone - - facsimile-File No- 1. The Plaintiff is in receipt of the above-referenced Response (DEFENDANT'S (ELK RIVER TRUSTEES, INC.) RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSION) from Defendant ELK RIVER TRUSTEES, INC. (“Defendant ELK RIVER”). 2. Plaintiff notes that the said Response is defective. The Response does not comply with Rule 36. 3. Further, the grounds which have been raised in the Response have no legal backing and standing as demonstrated in this reply by Plaintiff. 4. Under Rules 36(a) requests for admission cover the truthfulness of any matter, opinion of fact, or application of law to fact. In addition, in responding, when an objection is made, the reasons for the objection must be stated and answers must specifically deny or set forth the reason why the answering party cannot truthfully admit or deny a matter. 1 5. Also, an answering party is not permitted to give a lack of information or knowledge as a reason for failure to answer unless the party states that reasonable inquiry has been made and that information obtained or readily available is insufficient to enable the party to admit or deny. 6. Further, under Rule 36(a), if a party considers that a matter that is requested presents a genuine issue for trial matter and under provisions of Rule 37(c), then the party can set forth why the party cannot admit or deny it. 7. The Rules above only allow three responses to request for admission (a) denial; (b) admit; or (b) object. A party cannot raise an objection and a denial in response to the same request. This is because the law requires that a denial must be unconditional. 8. Plaintiff responds that the answers which have been provided by Defendant ELK RIVER violate the provisions of Rule 36(a) which Defendant seeks to rely on because Defendant ELK RIVER has denied and objected at the same time. The rule specifically states that: If an 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 party shall specify so much of it as is 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 the party has made reasonable inquiry 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 admission 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 provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it. (W.Va. R. Civ. P. 36 is based on Fed. R. Civ. P. 36.) 9. “The responding party is expected to admit unless they disagree with the request, then he or she must deny or object. That ‘denial must be forthright, specific and 2 unconditional.’” Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 77 (2003) (citing Booth Oil Site Admin Group v. Safety-Kleen Corp., 194 F.R.D. 76, 80 (W.D.N.Y. 2000); Moore’s Federal Practice, ¶ 36.15[5][a]). The denial by Defendant ELK RIVER is neither “be forthright, specific and unconditional.” 10. Plaintiff reminds Defendant ELK RIVER that the request for admissions has a binding effect and is intended to lend clarity to the presentation of disputes and facts. These Requests and corresponding answers are expeditious, efficient resolutions of factual issues and may, to a considerable degree, when propounded early in the litigation, control the cost of discovery as well. Considering that one purpose for such Requests is to narrow the issues of the case, a " weeding out of the facts" if you will, they are designed to reduce trial effort and promote litigation efficiency. Booth Oil Site Admin. Group v. Safety-Kleen Corp., 194 F.R.D. 76, 79 (W.D.N.Y.2000). James Wm. Moore., Moore's Federal Practice ¶ 36:02 (3d ed.2002). Discovery pleadings are expected to elicit and expound upon the facts of the matters. Therefore, requests for admission have a big role in narrowing down issues in the dispute which is what Plaintiff seeks to achieve in his requests to Defendant ELK RIVER. 11. Defendant ELK RIVER failed to specific, detailed, and complete responses to Plaintiff’s Requests. In doing so, Defendant ELK RIVER failed to meet the standards set in Rule 36. 12. The responses provided by Defendant ELK RIVER are deficient, non- responsive, and " impermissibly calculated to avoid taking any position whatsoever regarding the contents and meaning of key documents relevant to the dispute, relying upon Booth Oil v. Safety-Kleen Corp., 194 F.R.D. 76 (W.D.N.Y.2000). 13. Also, the objections raised by Defendant ELK RIVER allege in all instances that the request for admission calls for a “legal conclusion”. This is not the case as the requests have been drafted in a simple manner and a manner that only related to facts. 14. The simplicity of the admission requests sent by Plaintiff are simply, directly, not vaguely or ambiguously, and are also in such a manner that they can be answered with a simple admit or deny without an explanation Booth Oil, 194 F.R.D. at 79; Diederich v. Department of the Army, 132 F.R.D. 614, 619 (S.D.N.Y.1990); Moore's Federal Practice, ¶ 36.10[6]. 3 15. REQUEST FOR ADMISSION No. 1 thus pertains to whether Defendant ELK RIVER verified whether Plaintiff paid off the loan or if the loan was discharged/forgiven. This is an application of facts as it entails an activity of checking the loan to verify the loan balance before enforcement. All businesses that deal with collection or lending have an internal process of determining whether payments are up to date before determining delinquency and default. This is common sense and a practice that is standard in the industry of lending as any business would verify what has been paid and the debt balance. Defendant ELK RIVER cannot rely on the objection that the request seeks a legal conclusion. “REQUEST FOR ADMISSION No. 1: Admit that you did not verify or attempt to verify whether the Plaintiff had paid the loan or the loan had been discharged and/or forgiven.” Answer by Defendant ELK RIVER: “RESPONSE: Objection. The request is not proper under Civ. R. 36(A) in that it seeks a legal conclusion, rather than the application of law to fact. Insomuch as it seeks application of law to fact, it does not specify the law or legal standard to which the admission of fact must apply. To the extent that a response is required, and without waving the objection, it is therefore DENIED.” The objection by Defendant ELK RIVER that the requests call for a legal conclusion is not substantiated specifically. Also, the Defendant has not outlined which legal conclusion the request calls for. Also, Defendant ELK RIVER did not provide a denial that meets the threshold described as ‘denial must be forthright, specific and unconditional.’ The above denial is conditional and hence is incomplete. 16. The above analysis applies to Defendant ELK RIVER's answers to REQUEST FOR ADMISSION No. 2, 3, and 4. REQUEST FOR ADMISSION No. 2 deals with whether Defendant ELK RIVER has documents or not. There is nothing, not even a word in the request that is connected with the legal conclusion. “REQUEST FOR ADMISSION No. 2: Admit that you have no loan activity documents or accounts documents to which the deed is subject.” Answer by Defendant ELK RIVER: “RESPONSE: Objection. The request is not proper under Civ. R. 36(A) in that it seeks a legal conclusion, rather than the 4 application of law to fact. Insomuch as it seeks application of law to fact, it does not specify the law or legal standard to which the admission of fact must apply. The question speaks of a “deed” without specifying what document. Without waiving said objection, it is DENIED.” The answer by Defendant ELK RIVER does not meet the requirement of forthright, specific and unconditional. This is because Defendant ELK RIVER seeks to object and deny at the same time. Also, Defendant ELK RIVER answer wishes to introduce nuanced elements like legal standards which have not been specified in the request by Plaintiff. The question deals with whether Defendant ELK RIVER has in its possession loan activity documents or accounts which the deed is subject. Possession of legal documents by a party is not subject to or related to any legal standard, it is whether you have the documents or not. The Defendant can either admit or deny the request. If they have an objection the same should be raised specifically concerning the documents. 17. Similarly, No. 3 asks whether Defendant ELK RIVER has knowledge of or is aware of whether the loan was forgiven, paid, or discharged. “REQUEST FOR ADMISSION No. 3: Admit that you are not aware of or have no knowledge of whether the loan was forgiven, paid, and/or discharged.” Answer by Defendant ELK RIVER: “RESPONSE: Objection. The request is not proper under Civ. R. 36(A) in that it seeks a legal conclusion, rather than the application of law to fact. Insomuch as it seeks application of law to fact, it does not specify the law or legal standard to which the admission of fact must apply. Without waiving said objection, Elk River Trustees Inc. ADMITS that it is not aware of any fact or information that the subject note secured by the deed of trust recorded in the office of the clerk of the county commission of Jefferson County, West Virginia, in book 1629 at page 173 was forgiven, paid off and/or discharged.” The request does not seek any legal conclusion. Whether the Defendant was aware that the loan was forgiven, paid, or discharged is a question of fact. This is a very simple and straightforward request made by the Plaintiff. The Defendant is seeking to avoid answering by giving an unclear objection. 18. No. 4 is a request that deals with whether Defendant ELK RIVER is the first holder or successor of the deed of trust and whether that deed has been held by multiple third 5 parties before it came to the hands of Defendant ELK RIVER. This is a simple factual question only requiring the Defendant to verify deny or agree as to whether it is the first one to have interest in the deed of trust. The objection to a legal conclusion is not justifiable as the question does not seek to create any legal conclusion. The questions do not dispute whether Defendant ELK RIVER has an interest in the trust deed or the note, but rather whether other third parties held those instruments before they came to be held by Defendant. “REQUEST FOR ADMISSION No. 4: Admit that you are not the first successor or holder of the trust deed and that the deed had been held by multiple companies, corporations, and businesses.” Answer by Defendant ELK RIVER: “RESPONSE: Objection. The request is not proper under Civ.R. 36(A) in that it seeks a legal conclusion, rather than the application of law to fact. Insomuch as it seeks application of law to fact, it does not specify the law or legal standard to which the admission of fact must apply and is a compound question. Without waiving said objection it is DENIED as defendant, Elk River Trustees, Inc. is not a holder of the note secured by any trust deed or deed of trust; it is ADMITTED that the Deed of Trust recorded in the Office of the Clerk of the County Commission of Jefferson County, West Virginia in Book 1629 at Page 173 has an assignment recorded in the aforesaid Clerk’s Office Book 192 at page 743 but that said assignment does not name or involve Elk River Trustees Inc. This request for Admission is otherwise DENIED.” Since Defendant ELK RIVER and the others are relying on a trust deed and a note that is based on a loan, they cannot rely on the justification of “legal conclusion” when asked about documents and information pertaining to the loan that they seek to collect. This information should be in the possession of Defendant ELK RIVER and its codefendants. 19. In all 4 requests for admissions, Defendant ELK RIVER should thus either admit, deny, or object. It cannot be either a denial or an objection at the same time. Rule 36 allows a party that requests admission to move to determine the sufficiency of the answers and objections. The plaintiff wishes to have these requests properly answered according to the rules. 6 20. The plaintiff is of the view that the answers are not in compliance with Rule 36 and may be forced to move to court to compel proper answers. Before doing that, Plaintiff wishes to engage Defendant ELK RIVER to provide answers that are compliant with Rule 36. 21. The plaintiff does not wish to move to Court to determine the sufficiency of the answers or objections. This response should be sufficient notice to Defendant ELK RIVER to provide answers which are sufficient and in compliance with the Rules. Dated: January 29, 2024. RESPECTIVELY SUBMITTED /s//_________________________ ERIC NEWMAN - Pro Se Plaintiff 158 Cornpone LN, Harpers Ferry, WV 25425 - Fax: - 7 CERTIFICATION OF SERVICE I, ERIC NEWMAN, Plaintiff, Pro Se, do hereby certify that on January 29, 2024, the foregoing “PLAINTIFF’S RESPONSE TO DEFENDANT ELK RIVER TRUSTEES, INC.'S ANSWER TO FIRST SET OF REQUESTS FOR ADMISSION” was served upon all parties by depositing true copies thereof in the United States Mail, postage prepaid, and respective attorney as follows: s//_________________________ ERIC NEWMAN - Pro Se Plaintiff 21520 Yorba Linda Blvd Suite G-1029 Yorba Linda, CA 92887 - Fax: - Email:- DEFENDANTS ARY LS 4 LLC. William J. Powell (W. Va. Bar No. 2961) Kelsey Swaim Miller (W. Va. Bar No. 12574) STEPTOE & JOHNSON PLLC 1250 Edwin Miller Blvd., Suite 300 Martinsburg, WV 25404 Tel: - Fax: ---MADISON MANAGEMENT SERVICES William J. Powell (W. Va. Bar No. 2961) Kelsey Swaim Miller (W. Va. Bar No. 12574) STEPTOE & JOHNSON PLLC 1250 Edwin Miller Blvd., Suite 300 Martinsburg, WV 25404 Tel: - Fax: --- DEFENDANT ELK RIVER TRUSTEE INC 8 CLUNK, HOOSE CO., LPA Sarah Crichigno [10083] Attorneys for Defendant Elk River Trustee, Inc. 495 Wolf Ledges Pkwy Akron, OH 44311 - – telephone - - facsimile-File No- 9