hopetowin

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About hopetowin

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  1. I am looking for a link that had a list of how to clean up credit reports. It started with buying 4 notebooks... I really have looked all day. HELP!
  2. I am looking for a thread that told you step by step how to repair your credit. It started with a list of things to buy from the store. I know it said to get 4 notebooks. I cannot find it now. Anyone else know where it might be?
  3. I do not want the statement above to seem like I think I did everything right but I was under the ridiculous thought that they would have to actually prove their case. The issues I raised had to be enough to at least warrant a trial. I think I should have asked for oral arguments in my opposition. (If I understand what Coltfan told me) I know they did not have what they needed to win. I guess I learned a strong lesson. The Plaintiff was dying to settle with me right before the judge ruled. I should have.
  4. If he didnt use that affidavit to make his decision then he completely missed the boat. He pretty much screwed me over. I felt that I should have attacked their affidavit more but the statements had nothing on them but my name, address, an account number, and a total. The Bill of Sale I thought was brought into question and discounted enough to at least warrant a trial. I felt I had put enough doubt with the affidavit too but from people on here, I should have hit more at that. To be honest, I don't think the judge read 1 thing I filed. I dont think he read what they filed either. I think he ruled in their favor to close the case. He knows they had the power and money to appeal but he probably assumed I don't.
  5. At this point, all of these questions for me are for next time. I have accepted this one. But to your point about the MSJ..I didnt know that now I have to prove my case. But the judge wouldn't make them produce the information I needed to be able to prove. I asked for the statement of the last payment. They responded it was too cumbersome to provide. I asked the judge to compel them to provide, he denied it. How could I have proven this information?
  6. Just an FYI for me.. how else should I have worded that? I mean I don't know if the SOL was up or not.
  7. I did go point by point on hers and added the SOL. I really feel like I should have attacked the affidavit more but I guess to your point on the SOL was I thought the fact it was in question and they couldn't identify and wouldn't identify it me raising the question would mean they had to prove it. I did put that it might not be but I thought they had to prove their case not me. I do for sure see your point on the Bill of Sale. I never really spoke to that at all. Thanks for the pat on the back! I am pretty defeated right now.
  8. After I filed this motion, the plaintiff filed an answer to this. That is when she threw out the 2008 date. That was the first time it was ever mentioned. He ruled on it before I could respond.
  9. Any feedback you can give would be great for future reference if needed.
  10. INTRODUCTION Defendant moves for denial of Plaintiff’s motion for summary judgment for the following reasons: Plaintiff should not be granted leave as the Parties are in the midst of pretrial conferences in an attempt to resolve the matter or frame the issues to be tried at a trial; There are issues of material fact in this case that do not support the granting of summary judgment; The statute of limitations may have barred Plaintiff’s cause of action; Plaintiff has failed to delineate its basis upon which for summary judgment is being sought. BACKGROUND Plaintiff filed a complaint against Defendant on May 21, 2012 on account of an alleged credit card debt. As proof of the debt, Plaintiff attached document that contained Defendant’s name and address, an account number and a balance owed. Defendant does not recognize the account number, the name of the creditor and its predecessors or the balanced owed. On June 13, 2012 Defendant moved for a Definite Statement seeking more detailed information about the account in question, which was denied. Defendant answered Plaintiff’s complaint on September 24, 2012. On October 22, 2012, Defendant served its Request for Production of Documents on Plaintiff in accordance with Civ. R. 34. In response, Plaintiff produced the same document that was appended to its complaint and claimed that production of any other documents would be overly burdensome. Defendant filed a motion to compel Plaintiff’s Production of Documents, which was denied by the Court. On February 6, 2013, Defendant appeared at a pretrial conference in good faith in an effort to distill the issues for trial. The pretrial was continued to March 1, 2013. On February 19, 2013, Plaintiff, after being granted leave by the Court to do so, filed its Motion for Summary Judgment. ARGUMENT Summary Judgment is not Ripe in this Case because the Parties are currently scheduled to meet in pretrial discussions. Defendant appeared at a scheduled pretrial conference on February 6, 2013. Defendant believed that she would have the opportunity to meet with counsel to the Plaintiff and the Court in an effort to distill the issues to be heard at trial in this case or even possibly settle this matter. Plaintiff’s counsel appeared at the pretrial, but also had concurrent meetings at the Courthouse, and would be unable to attend at the pretrial time and the Court was not present. Defendant feels that this case is ready for trial and may be disposed of prior to trial due to the lack of evidence produced by the Plaintiff. Plaintiff cannot prove in its Motion for Summary Judgment that there are no issues of material fact in this case. Rule 56 of the Ohio Rules of Civil Procedure sets forth the requirements for Summary Judgment. The Ohio Supreme Court defined the standard for succeeding in a Motion for Summary Judgment in Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1: "Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433 (165 N.E.2d 840); Horvath v. Fisher Foods, Inc. (1963), 93 Ohio Law Abs. 182 (194 N.E.2d 452); Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App.2d 41 (218 N.E.2d 480); Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25 (254 N.E.2d 683). A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63 (329 N.E.2d 702)." Vetovitz Bros., Inc., v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 332, 397 N.E.2d 412. In its Answer, Defendant has denied that the debt introduced in the Complaint belongs to the Defendant. Plaintiff has produced the following documents seeking to establish a credit relationship with Defendant: Affidavit of Susan Rasmussen, an employee of the Plaintiff; Household Bank Mastercard statements dated July 1, 2009 and August 1, 2009; Bill of Sale between HSBC Card Services (III), Inc. and HSBC Bank N.A. selling a debt to Calvary SPV I dated October 13, 2010; Assignment and Bill of Sale where Calvary SPV I, LLC assigns the credit agreement to the Plaintiff dated December 30, 2011 Relying on Ohio case law that establishes how a creditor must conclusively establish a credit relationship with an alleged debtor, Defendant, in its Request for Production of Documents, requested documents that would conclusively establish a credit agreement between the parties, including a Credit Application (which would establish when this debt was incurred); a signed Credit Card Agreement and Periodic Account Statements showing purchases and payments on the alleged account. When Plaintiff failed to produce such documents, the Defendant filed a Motion to Compel Discovery reiterating its request. The Motion to Compel was denied by the Court. In Citibank v. Kovach (2010) 157 Ohio Misc. 2d 24 the Court of Common Pleas of Medina Ohio summarized Ohio’s standard to establish a debtor-creditor relationship in connection with a credit card: In Natl. Check Bur. v. Ruth, 9th Dist. No. 24241, 2009-Ohio-4171, 2009 WL 2516123, the Ninth District held as follows, "In order to establish a prima facie case for money owed on an account, ' "an account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due." ' Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus. '[A]n action upon an account may be proved by the introduction of business records showing the existence of the account.' Wolf Automotive v. Rally Auto Parts, Inc. (1994), 95 Ohio App.3d 130, 137, 641 N.E.2d 1195. See, generally, Raymond Builders Supply, Inc. v. Slapnicker, 11th Dist. No. 2003–A–0040, 2004-Ohio-1437. Defendant directs the Court’s attention specifically the two statements that were produced by the Plaintiff. These statements do not show a zero balance, nor do they show any listed items of charges, debits or credits. Defendant has argued throughout this case that these statements are insufficient to establish a credit relationship between the Plaintiff and Defendant. In its Entry denying Defendant’s Motion for More Definite Statement that Court noted that the Plaintiff might not be able to prove its case without further documentation. The Statute of Limitations May Bar Plaintiff from Bringing a Complaint on this Debt Because Plaintiff has failed to produce any evidence that shows when the last payment was made on the alleged account, the State of Limitations applicable to unwritten agreements may have expired, therefore barring Plaintiff’s cause of action. Since Plaintiff has failed to produce a written credit agreement, Defendant argues that the applicable statute of limitations imposed by R.C. 2305.07 is applicable. Further, since Plaintiff has failed to produce any account statements that show the last payment made on the alleged account by Defendant, Plaintiff cannot deny that the statute of limitations has expired for its cause of action. Plaintiff has failed to adequately delineate its basis for seeking a Summary Judgment In Mitseff v. Wheeler (1988) 38 Ohio St. 3d 112, the Supreme Court of Ohio held that a party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond. Specially the Supreme Court of Ohio found that the moving party’s “…obligations are set forth in Massaro v. Vernitron Corp. (D.Mass.1983), 559 F.Supp. 1068. Massaro held that the party seeking summary judgment " * * * bears the burden of affirmatively demonstrating that, with respect to every essential issue of each count in the complaint, there is no genuine issue of fact." Massaro, supra, at 1073 (citing Mack v. Cape Elizabeth School Board [C.A.1, 1977], 553 F.2d 720, 722). The moving party bears this burden " * * * even with regard to issues on which plaintiffs * * * would have the burden of proof should the case go to trial." Massaro, supra, at 1073, citing Ramsay v. Cooper (C.A.1, 1977), 553 F.2d 237, 240-241, fn. 8; Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 159-161, 90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142. See, also, Bird v. Zimmerman Fur Institute, Inc. (S.D.Ohio 1968), 294 F.Supp. 202. The requirement that a party seeking summary judgment disclose the basis for the motion and support the motion with evidence is well founded in Ohio law. "The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 26 O.O.2d 206, 207, 196 N.E.2d 781, 783-784. In the instant case, in its motion for Summary Judgment, Plaintiff fails to show how it has proved its case by showing the Court the elements of its cause of action and how the evidence Plaintiff has presented has satisfied each of those elements. CONCLUSION For the reasons state above, Defendant moves for a denial of Plaintiff’s Motion for Summary Judgment. Defendant strongly believes that the issues in this case can be distilled in a pretrial conference to production of further evidence that establishes a credit relationship between the Plaintiff and Defendant. This is what I filed in response to their summary judgement request
  11. Ill post my opposition motion when I get to work. Some of the things above were in an answer she filed after my opposition motion. He ruled before I could respond. At this point it seems in ohio there is really only the option of apdk pappealing. No motion to reconsider and no vacating judgements. At least not that I can find in the civil procedures. I am accepting I lost. I am not saying I did everything right. I should have filed my own affidavit it sounds like. But I do know they absolutely did not prove their case without even a trial. I did get contacted by an attorney who wants to meet with me. Maybe ill see what they have to say.
  12. Thank you! This makes sense. I am now trying to see if I am allowed under the Civil Code able to file a motion to reconsider or vacate judgement because I cannot find it in the laws in Ohio.