1. Who is the named plaintiff in the suit? Discover Bank C/o Discover Products
2. What is the name of the law firm handling the suit? Thomas & Thomas
3. How much are you being sued for? 9400
4. Who is the original creditor? Discover Bank
5. How do you know you are being sued? Served by Sheriff
7. Was the service legal as required by your state? Yes
8. What was your correspondence (if any) with the people suing you before you think you were being sued? Sent a letter requesting validation, they sent back a stack of statements not a complete accounting them sued
9. What state and county do you live in? KY, Jefferson
10. When is the last time you paid on this account? Nov 27, 2014
11. What is the SOL on the debt? To find out: 3 year?
12. What is the status of your case? Suit served? Motions filed? Served, I answered Complaint, Discovery on Both sides has been sent and answered. They moved for a Summery Judgment Judge had them redo it so waiting for the new Summery Judgment. I moved for a dismissal based on lack of standing and motion to strike an affidavit (Judge said she was going to take them under advisement).
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes
14. Did you request debt validation before the suit was filed? Yes
15. How long do you have to respond to the suit? Waiting for them to refile their motion for a Summery Judgment
16. What evidence did they send with the summons? Almost complete set of statements, and a copy of an agreement. In discovery they provided no other information. They added an affidavit when they filed their Motion of Summery Judgment. I have filed a motion to strike the affidavit (Judge said she was going to take them under advisement).
I have fought credit card debt before and a foreclosure, it's been several years (8 or 9) and I don't have the resources and help I used to have any more. I have written the start of a motion to oppose summery judgment. I need help making sure I didn't do a bonehead mistake or maybe I missing something in it. I'll attach what I have written so far. Any advise or ideas would be greatly appreciate.
COMMON WEALTH OF KENTUCKY
IN THE CIRCUIT COURT
JEFFERSON COUNTY, KENTUCKY
C/O DISCOVER PRODUCTS INC.
6500 New Albany Rd.
New Albany, OH 43054
v. Case Number: xxxxxxxx
xxxxx xxxxxxx Ct.
Louisville, KY xxxxx
MOTION TO OPPOSE SUMMARY JUDGMENT
Comes now the Defendant, (lokie999) , and files this REPLY AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT in response to Motion For Summary Judgment filed by Plaintiff, DISCOVER PRODUCTS INC, as follows:
The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.
A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.
Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied. Because there is a genuine issue of material fact, Plaintiff has failed to establish that they are entitled to judgment as a matter of law. This court must have actual knowledge: a motion for summary judgment is not a substitute for a trial on the merits; a motion for summary judgment is not a trial by affidavit; summary judgment is inappropriate where triable issues of fact are in dispute.
1. Defendant received the Plaintiff's Summons on July 5th 2016. Defendant answered the request on July 15th.
To purpose a summary judgment it requires that there is no genuine issues of material fact have been raised. Defenses have been raised and ignored by the Plaintiff. Because they are still in questions a motion for summery judgment should be denied.
(1) Answer to Complaint #2. Defendant demands the contract that bears the signature of the (Defendant) wherein he agreed to pay the Plaintiff.
No contract with any signature has ever been provided. No receipts bearing the signature has been submitted on the record.
(2) Answer to Complaint #7. At time of this filing there is no court record that contains evidence of Standing.
To date of the filing for Motion for Summery judgment the Plaintiff claims to be holder in due course of the debt but has not provided any agreements or contract between it and Discover Bank to prove is has any standing.
(3) Answer to Complaint #8. Plaintiff has failed to state a claim upon which relief may be granted Plaintiff’s claim money for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited.
To date of the filing for Motion for Summery judgment the Plaintiff claims to be holder in due course of the debt but has not provided any agreements or contract between it and Discover Bank to prove is has any standing. The Statements they submitted with the complaint are nothing but hearsay without a witness to verify that they are genuine.
(4) Answer to Complaint #9. Defendant raise the equitable doctrine of “unclean hands” as a total or partial affirmative defense.
At the time of filing the lawsuit the Plaintiff has failed to validate the debt in compliance with the FDCPA. The plaintiff sent several copies of statements to the Defendant but did not include a complete accounting the first statement sent was dated in 2009 the accounts show that the account was opened in 2007 thus failed to provide two years worth of statements. They area also missing several statements between 2009 and 2015.
The appeals court overturned the default summary in Spears vs. Brennan Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g (b) Validation of Debts.
(5) Answer to Complaint #11. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.
No contract with any signature has ever been provided. No receipts bearing the signature has been submitted on the record. The plaintiff and the defendant have never had any kind of agreement or contract.
2. The Plaintiff is attempting to move for Summery Judgment without having the evidence to make a real case and is relying on hearsay.
Discovery was returned from the plaintiff on August 10th, 2016.
Interrogatory #4 Provide the full name, business and home address and occupation of every witness plaintiff will call on to testify at the time of trial and provide a summary of the testimony, referencing any documents said witness will rely on. For each expert, specify separately, in addition to the above, the expert’s area of expertise, the expert’s employer, if any, the expert’s subject matter for testimony, the expert’s opinions and conclusions and the grounds upon which same are based.
Plaintiff Answer: Plaintiff's Counsel cannot begin to determine who if anyone will be needed until an actual dispute is identified. Objection
Interrogatory #5 Provide a summary of the expected testimony of each person listed in response to the previous interrogatory.
Answer: Plaintiff's Counsel cannot begin to determine who if anyone will be needed until an actual dispute is identified. Objection
The defendant would like to point out that the burden of proof lies with the plaintiff not the defendant and if there are no competent fact witness in this case it can not move forward and must be dismissed as a master of law. He has submitted no witnesses that can verify any evidence, without evidence there is no case.
3. The Plaintiff is attempting to use an affidavit in his Motion for Summery Judgment that was not submitted in discovery to the defendant. Denying the defendant his ability to serve discovery based on information in the affidavit.
Discovery was returned from the plaintiff to the defendant on August 10th, 2016.
Interrogatory #14. Identify all documents and exhibits that Defendant intends to introduce in evidence in the case.
Answer: Objection, Unable to determine what documents if any will be needed until defendant produces and actual dispute.
Discovery was returned from the plaintiff on August 10th, 2016. Them Plaintiff moved for summery judgment October 5th, 2016. In the papers he included an affidavit of Stephen Ball which was never sent to the Defendant as part of discovery. Furthermore the affidavit is dated September 26th, 2016 and only references three items The last two statements and the contract. The statements where attached to the affidavit but the contract was not.
The statements and agreement that was filed with the complaint are now proven to be heresay. The plaintiff would need to bring forth a witness to verify the documents.
Defendant has filed a motion to strike the affidavit for it's inability to be verified under cross-examination and it's lack of foundation.
3. Discovery from the Defendant to the Plaintiff discovery was filed on August 5, 2016. Documents requested from plaintiff included any documentation of relationship between Plaintiff and DISCOVER BANK, the alleged original creditor, a complete payment history, and any breakdown of the sum requested by plaintiff, receipts for all alleged purchases. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.
4. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.
5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
6. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.
9. The Plaintiff has not entered into the record of how it obtained the debt from the original creditor. If the original creditor took a payment to assign the dept to the plaintiff or received other compensation in the forms of monies or credits from the plaintiff. The plaintiff is not the real party at interest. Plaintiff voluntary, with knowledge inherent, made an assumption of risk and is not entitled to judgment. Plaintiff's damages are limited to the real or actual damages of actual cost paid or exchanged to original creditor. Plaintiff has failed to supply such details in anything on record.
10. The plaintiff has failed to provide on the record there was any contract between the Plaintiff and the Defendant.
The federal truth in lending act
15 USC 1602(i)
(I) the term "open end credit plan" means a plan under which the creditor reasonably contemplates repeated transactions, which prescribe the terms of such transactions, and which provided for a finance charge which may be computed from time to time on the outstanding unpaid balance.
a credit plan which is open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time."
in order for a contract to be applicable, the contract itself must be signed by the party who is being sued. just putting the contract terms on paper in not sufficient, it needs to be signed. this is where credit cards fail to satisfy the written contract requirement .
11. The Confrontation Clause of the Sixth Amendment to the United States Constitution Provides in relevant part: " the accused shall enjoy the right ... to be confronted with the witnesses against him." Many decisions of the Supreme Court of the United States have affirmed the right of the accused under the Confrontation Clause to have a face-to-face confrontation with the accuser, and an opportunity to cross-examine the accuser. In the 2004 decision of Crawford v. Washington, the Supreme Court emphasized that the right to confront one's accusers could not be taken away in cases where judges believe that testimonial hearsay evidence is reliable, because such hearsay evidence had not had its reliability tested through the procedural crucible of cross-examination.
WHEREFORE, Defendant, (lokie999) , respectfully submits that the Court should deny the Plaintiff's Motion for Summary Judgment, filed herein by DISCOVER PRODUCTS INC, and prays for Dismissal of the complaint by the Plaintiff and any further relief this court deems just and proper.