dledhead

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About dledhead

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  1. Indeed, I believe I did not respond in a timely manner. However, this was entered into the courts on-line records on December 29: MAGISTRATE'S ORDER*****DEFENDANT MAY FILE A WRITTEN MEMORANDUM IN OPPOSITION TO THE MOTION. DEFENDANT SHALL SERVE A COPY OF ANYTHING FILED WITH THE COURT ON OPPOSING COUNSEL. PLAINTIFF MAY SUBMIT A REPLY MEMORANDUM BY JANUARY 11, 2011. THE MATTER WILL BE SUBMITTED FOR DECISION AT THAT TIME WITHOUT ORAL HEARING. So I have not answered their Interogs yet; also, I have not submitted mine to them yet. I answered their request with summary judgment as follows: A search of the Secretary of State's website indicates that the Plaintiff, Department Stores National Bank, is not registered with the State of Ohio (ORC 1329.01), thus questioning the propriety of the invocation of the jurisdiction of the court in this matter. Defendant sent a request on December 29, 2010, via USPO to the Secretary of State requesting a No Record Certificate (Exhibit D attached). Additionally, according to ORC 1329.10 (: ( No person doing business under a trade name or fictitious name shall commence or maintain an action in the trade name or fictitious name in any court in this state or on account of any contracts made or transactions had in the trade name or fictitious name until it has first complied with section 1329.01 of the Revised Code and, if the person is a partnership, it has complied with section 1777.02 of the Revised Code, but upon compliance, such an action may be commenced or maintained on any contracts and transactions entered into prior to compliance. And, according to Debney v. Lancaster, 2009-Ohio-6121, the "legal capacity to sue" is in question: Thus, a person places himself in a precarious position when he operates under a fictitious name, as a person doing business under an unregistered, fictitious name lacks the legal capacity to sue. Thomas v. Columbus (1987), 39 Ohio App.3d 53, 55-56. Moreover, Defendant sent a request on December 18, 2010, to the purported attorney, Javitch, Block, and Rathbone, of Plaintiff, Department Stores National Bank, for an electronic file of Plaintiff's First Discovery. Plaintiff's purported attorney was in receipt of the correspondence on December 20, 2010. To date, the Plaintiff has not responded to Defendant's request. Exhibits A, B, and C are attached. Now, the magistrate says I can file a Written Memorandum In Opposition. Where do I go from here? xcaliber: i sent you a PM. thank you.
  2. Dear XCALIBER: With all due respect and with much appreciation for your help, I thought it was unwise to divulge too much information. Quite frankly, I'm uncertain if your request exceeds that. Please advise.
  3. XCALIBER, it reads as follows: " Now comes Plaintif, Dept. Stores National Bank, by and through counsel, and moves this Honorable Court, pursuant to Rule 56 of the Ohio Rules of Civil Procedure, to grant summary jedgment against Defendant XXXX. A Brief in support is attached hereto and made a part hereof." "Wherefore, Plaintiff requests that this Court issue an order of Summary Judgment on Plaintiff's Complaint, in favor of Plaintiff, and against Defendant." This is there Brief in support: Their STATEMENT OF FACTS state that Plaintiff received extension of credit with DSNB. They assert that the amount is x-amount of dollars and that defendant failed to make monthly payments. Because defendant did not liquidate the account, plaintiff filed it's complaint. (Actually, counsel on behalf of plaintiff, right? Counsel has not demostrated that plaintiff indeed retained them to file on their behalf. Is that correct?) Then they offer LAW AND ARGUMENT, they cite Civ. R 56 regarding summary judgment. They cite Welco Industries, Inc. v. Applied Cos., 67 Ohio St. 3d 344, 346 (1993). They refer to the account statement (one statement) "The amount due on the acct statement is clear and the affidavit accurately reflects the amount that remains due and owin on the account. See Exhibit B. The Defendant is obligated to pay the amount due on the account. These facts cannot be disputed." The go on to add: "Other than the denial in Answer, the Defendant has not produced any evidence to demonstrate that this account was paid in full. To avoid summary judgment, the defendant must go beyond bare denial in answer and bring forth evidence to rebut Plaintiff's evidence. dresher v. burt, (1996) 75 Ohio st. 3d 293. The defendant cannot meet this burden as plaintiffs affidavit demonstrates that there remains a balance due." The concluded that "reasonable minds can come to but on conclusion that summary judgment is warranted in this case." And, "The Plaintiff, DSNB, submits that there exists no genuine issue as to any material fact. Therefore, Plaintiff is entitled..." They provide an affidavit of XXXX who is duly sworn, desposes and states: 1. XXXX has personal knowledge of the records; 2. XXXX is compliance rep for FDS Bank, which services DSNB accounts (who is FDS?) "I am familiar with the DSNB account records kept and maintained in the ordinary course of business, including information concerning the DSNB account issued to Defendant that is the subject of this lawsuit (XXXX-XXXX-XXXX-XXXX). DSNB's records reflect extensions of credit were made to or on behalf of Defendant in connection with Defendant's Account" 3. "The account billing records, which were made, recorded and kept in the course of regularly conducted business, reflect debits, credits and the balance of the account and were made at or near the time of the occurrence (what does that mean) of the matters set forth by, or from info transmitted by, a person with knowlledge of those matters." 4. Defendant rec'd periodic billing statements and failed to make timely payments. 5. The balance due DSNB is $XXXX. Thoughts, comments, advice?
  4. I was mistaken. There was no judgment. The Plaintiff's lawyer filed the following: Motion for leave to file motion for summary judgment instater Plaintiff's motion for summary judgment The judge/magistrate has not signed off on it yet. As the clerk informed me, the file is in the magistrate's basket. Today I filed a pre-trial statement. also, I file a RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Basically, the Plaintiff whom the lawyer asserts they represent is not registered in the state of ohio. A business search on the Secretary of State's website yields no business entity. Thus, there is question as to whether or not the lawyers properly invoked jurisdiction of the court in this matter. Also, a request for an electronic copy of the plaintiff's discovery has not been forthcoming. The burden of proof, as I understand it, is on the law firm, the debt collector. They have not demostrated that they have the authority and capacity to collect on the alleged debt. If I am wrong, I am hopeful someone will correct me.
  5. Regarding plaintiff's lawyer's discovery, I sent on December 18 request for electronic file. As of to date, it has not been received. This i mentioned in pre-trial statement with exhibits that I am submitting today.
  6. procrastination, oversight, overwhelmed...all inexcusable. trying to build business which takes tremendous amount of time. However, pretrial conference has not been held yet, scheduled 1/12. Am just now submitting pre-trial statment, which i had overlooked. want to file motion to continue (reschedule for later date, right?). should i? Should i file motion to compel discovery? should I go ahead and submit my own list of interrogs, which is where I REALLY get hung up. no clue what to submit. no clue what interrog, what admissions, etc to ask. going to courthouse today to observe magistrate in action...to see how it works. also, to have some cases pulled for me to review. plaintiff's lawyer filed for judgment. that can occur BEFORE pre-trial conference? plaintiff also provided affidavit of dsnb employee who can attest to the account, blah, blah, blah. how do i respond to their affidavit? should i submit my own affidavit? sorry this is all so scattered...just commenting and asking as it comes to my mind. thank you for your reply.
  7. Judge has not signed off on this yet. But, according to clerk, may do so today. Plaintiff had affadavit from employee of DSNB. What should I do?
  8. Yes, it is DSNB. By the way (I don't know if this means anything), this began with NCO Financial Systems, then UCB (to whom I sent a DV), then to Javitch Block and Rathbone.
  9. Maybe I overlooked it. Was he NOT served properly? What would served properly mean? thank you. P.s. I ask because I just had a judgment rendered against me. Am looking at what I need to do to file motion to vacate.
  10. What do I do? Javitch Block and Rathbone filed complaint on behalf of Department Stores National Bank. I answered with defenses. Here is the link: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=305077 They sent interrogatories. I did not answer within 28 days. Judgment from court. What do I do? Can I fight this? Thank you.
  11. What do I do? Rather lengthy, but "Court finds the Motion to be well taken and it is therefore ORDERED that Plaintiff is granted judgment." I failed to answer interrogatories within 28 day time frame. What do i do?
  12. How to respond to this Interrogatory: "Provide a brief explanation why you have not paid the monies identified in Plaintiff's Complaint." Suggestions?