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Everything posted by bluewraith

  1. @BV80 @Anon Amos Just got back from the MSJ hearing. I lost. The judge accepted the cach affidavit and didn't consider any of my objections. Once he accepted their first affidavit I knew I was sunk. Oh well, at least it's all over. The judge did ask if I had any legal training though, because he sees a lot of Pro Se and said my filings were some of the best he had seen. Gotta feel good about that The rentalawyer they sent was pretty nervous when he was giving responses until the judge said the affidavit was fine. He seemed pretty intimidated by the questions I had raised in my opposition.
  2. @hot in az Well, a bit late to fix that. Oh well. It's already set for a hearing on the 1st. The only thing I know of witnesses is they are not going to be getting one from the OC.
  3. @BV80 @Anon Amos Here is the affidavit I'll be filing as well. I figured this would be a good point to take care of the discovery issue they presented. In the end, with the evidence and discovery attached, this will be 36 pages or so. "Active litigant" indeed! lol REDACTED OMSJ Affidavit.pdf
  4. @BV80 Heres the latest draft, and what I will more than likely be filing. I feel like there is something that I'm missing though.. I've read that I should file an affidavit with this, but I'm not fully sure on just what to include in that affidavit. REDACTED Opposition to MSJ.pdf
  5. @BV80 She mentions nothing specific, just "books and records of Plaintiff". I don't know what she would be trying to attach. Same with the OC affidavit. They only reference "the books and records" but never explain what those books and records are, nor directly mention a bill of sale, a schedule 1, nor billing statements.
  6. @BV80 @Anon Amos Ok I here is the latest draft. I'm hoping to have this finished and filed by Friday, but the sooner the better I would imagine. I think I have most of the issues covered in here, but I still need some help with the OC affidavit. I'm not sure how to bring up the issue that it was created after the lawsuit started, long after the sale that it is referring to. REDACTED Opposition to MSJ.pdf
  7. @BV80 @Anon Amos Heres what I have so far.. I've not made much progress past this point at all unfortunately. I'm starting to hit mental roadblocks on this stuff.
  8. @Robespierre From what I can tell on Doxpop, it sat around for a while before being tossed under TR41(E) in January. Midland filed a Motion to Dismiss with Predjudice. @BV80 @Anon Amos I spoke with a CA this week but he was no longer interested in the FDCPA case since they can claim Bonafide error even with a CoS and signed CMRR. Basically, he just wanted copies of the Discovery questions that I sent to CACH for his own use. He was also surprised that I got the SJ set aside. Hey, at least I got a free bottle of water out of the deal.. lol Still working on my OMSJ, and looking to other attorneys who are a bit more local to me.
  9. @BV80 @Anon Amos Filed my Motion to Vacate SJ this morning. Sometime this afternoon, the judge signed off on it set aside and set a hearing on the MSJ in a few weeks. They reserved 30 minutes on the schedule. Time to get busy!
  10. @BV80 Both Orders were signed at the same time, (Order on TR41E and MSJ), so that is what leads me to believe it. I don't blame him for trying to clear his calendar, but that's pretty shady considering I have been active in the case. They never filed a MTC, but their Statement of Undisputed Facts does state things that were either denied in Discovery, or objected to. Huh.. thats weird. The Summary Judgment and TR41E papers don't have a Filed stamp.. Not the copy I got from the court myself, nor the copy that they mailed to me. Both are signed and dated though
  11. No. They say nothing about discovery in it at all.
  12. No response again today, so I sent my lawyer an email to see if he was still interested in taking the FDCPA suit on contingency. He is, so hopefully I'll have an appointment with him this week sometime. This might be the start of a long friendship with him, ya never know. As for the Summary Judgment, @BV80 @Anon Amos What do you two think about my Motion to Vacate SJ posted above? It really seems like it needs to be longer, but then again its a pretty cut and dry issue. If and when the courts vacate or set aside the SJ, will CACH have to refile the MSJ or should I still file my Opposition to MSJ along with the Motion to Vacate? I'd hate to give them all my ammo only for it to be turned around when they file a new MSJ.
  13. @BV80 No response from them today. I did receive copies of the Summary Judgment as well as the Order to keep the case on the docket (Re: the TR41E last week). If nothing changes Monday by close of business I'll be checking in with the CA and see what he thinks on the FDCPA suit. The attorneys themselves *are* debt collectors, so I don't think there will be any issue with getting a misrepresentation charge, especially since they didn't attempt to fix the violation. It also looks like I may be able to file a grievance with the Indiana Supreme Courts Disciplinary Commission over this as well. I bet that would give him the warm and fuzzies. lol
  14. @BV80 I will be sure to bring up those points next time I speak to the consumer attorney. No matter what they do about the motion to set aside, they are still liable for the violation. Judicial Notice has been filed and serviced, and the letter has been faxed. Tomorrow should be interesting.
  15. The CA suggested faxing the document. I totally forgot about that old archaic piece of equipment sitting the office. Guess fax machines will never die.
  16. I have this nasty habit of recording all phone calls that may or may not be related to legal matters. Indiana is a single party state in that as long as one party knows its being recorded, the other side does not need to be told. I'm sure I'll be recorded as well. I'll ditch the last paragraph. It was added in as just trying to be nice, but I think the niceties are over at this point. Thank you.
  17. Dear Scumbag Lawyer, On April 27th, 2015 you filed Plaintiff's Response to Court's Trial Rule 41(E) Hearing stating: “The Plaintiff has been awaiting discovery responses from the Defendant, but received none. Plaintiff is requesting summary judgement on that basis by separate motion.” Please see the documents attached in reference to the above claim. Included is a signed Certified Mail Return Receipt dated May 14th 2014, as well as a copy of the Certificate of Service dated May 12th, 2014, for my discovery responses to you. On April 27th, 2015 you also filed a Motion for Summary Judgement which was granted to the Plaintiff on April 28th, 2015. Indiana Trial Rule 56 © states in pertinent part: “An adverse party shall have thirty (30) days after service of the motion to service a response and any opposing affidavits.” Since this Judgement has been awarded to you in violation of Indiana Trial Rule 56 because of the statement made in Plaintiff's Response to Court's Trial Rule 41(E) Hearing, I hearby demand that you file a Motion to Set Aside Judgement on your own behalf. If no motion has been filed to the court on this matter within 24 hours, I will retain an attorney pending a FDCPA lawsuit, as well as contacting the Kentucky Bar Association regarding the ethical violations of allowing a Summary Judgement to be granted in violation of TR56©. If you have lost or misplaced my Discovery Responses, I would be more than happy to send you another copy at your request after a Motion to Set Aside Judgement has been filed. @Anon Amos Hows that look? Since the CA I talked to wanted to be copied on the letter, that means the easiest thing to do would be email it. Unfortunatly, that means I get to phone them up and ask for their email address, since it was not added to their appearance. Oh goody gumdrops.. lol
  18. With the judicial notice, should I also point out the CMRR/Notarized Cert of Service and TR41E blunder?
  19. I went to the courthouse this morning and got a copy of the SJ. I was going to file the above attached documents, but decided to give some CAs a call before doing so. I just got off the phone with one. He didn't seem super hopeful about the debt case due to the costs involved on both ends, but was interested in the FDCPA violation. He has a few different options that he said are available. I can send a letter to the attorney demanding that they Motion to Set Aside Judgement on their own behalf due to the FDCPA and ethical violations of saying they never received my discovery, including the CMRR and notarized certificate of service. If they set it aside, great. If not, it looks more egregious for the FDCPA lawsuit increasing its value. He can write the letter himself, to the tune of ~$150 Finally, he can also file a scope limited motion (ghost write) to set aside on my behalf for ~$225 Or, I can have him do both the letter and ghost write the motion to set aside. He suggested that I write the letter myself, and copy him on it. Basically, he agrees that their statement in the TR41E response was a violation of the FDCPA, and that the court was wrong to issue the Order before the time limit was up. Even if they do set aside the judgment, they are still liable for the FDCPA violation. I'm still waiting to hear back from a couple other CAs, but in the meantime I'm deciding if I want to write the letter, or if I should just fork the $150 over to him. @Anon Amos @BV80
  20. I just thought of something.. In their response to the TR41(E) the lied and said they never received discovery response. I don't wonder if the Judge read that and took it for gospel, and signed the Order thinking I never complied with discovery, therefore wouldn't be opposing. Still though.. thats not how it should have been done. I wonder if I should mention something about that so they do know that I complied with discovery. That's probably best left for the opposition to MSJ though.
  21. @Anon Amos @BV80 Heres my judicial notice and motion to vacate, along with the order. In the end I went with short and simple on both, due to time. Looking at it, there isn't any reason to make it more complicated than what it is... hopefully the court agrees. If you have any comments please let me know. I plan on filing and mailing these tomorrow. REDACTED Judicial Notice.pdf REDACTED Motion to Vacate Summary Judgment.pdf REDACTED Order to Vacate Summary Judgment.pdf
  22. Ahha! Rule 60((8) states: any reason justifying relief from the operation of the judgment, other than those reasons set forth in subparagraphs 1, 2 ,3, and 4. A "catchall" for the motion to vacate. It was hiding on the opposite page. Having a printed copy of the Trial Rules helps, but can be a bit annoying at times too.
  23. @Anon Amos I've been looking for a couple of hours on here and the web and I cannot find anything about a Motion to vacate a MSJ due to a court error.. The closest thing I can relate it to (in Rule 60 - Relief from judgment or order) would be "mistake, surprise, or excusable neglect" or maybe clerical mistakes.. It almost seems like I have to go to appeals and get it reversed.
  24. Seems like a good idea to make sure they notice the date it was served and filed, that way they don't have to dig through the records to check. I don't think it will take *too* much to convince them on the motion to vacate the judgment, since its clearly in the wrong at the moment. I did email a couple of CAs to get their opinion on the "missing" discovery issue. Hopefully I hear back from them soon, otherwise I'll give them a ring in the next day or so.