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Found 49 results

  1. I just received a Motion for Summary Judgement for Audit and Adjustment Company in King County here in Washington State. The MSJ is being filed under Rule 56. It looks like it was filed 9/19 and I just received it a couple of days ago in the mail. The date of the hearing is this Tuesday, 10/7. I was not served, and there is no complaint. The plaintiff was kind enough to send me a copy of rule 56. They have also attached some copies of what appear to be past statements and a declaration of assignor in support of plaintiff's MSJ. That was signed on 12/30/13 and looks like it was signed by someone at the OC. There's also another assignment attached that looks more like a letter signed on 2/5/13, but I don't know who signed it as there signature is unreadable, and no other fields are printed. I haven't handled this type of thing before. I'm using to filing an answer, etc. So I'm a little stumped, and frustrated by zero lack of time to respond. I feel like I need to turn something in tomorrow to be timely. Can I respond to the MSJ and object to it because of lack of time for discovery? I'm not sure what other defenses or objections are appropriate. Any feedback you have is appreciated.
  2. Hi gang, this is my next item on the agenda as I continue to battle Midland. Last week was my opposition to Midland's 'Motion to Vacate Judgement and Set Aside' (Look for that post elsewhere on the forum; just the fact that I am now preparing a Motion for Summary Disposition is a clue as to how last Friday's events turned out). The trial date is set for a few weeks down the road; in the meantime I am going to hit them with a MSJ (it's actually a MSD in Michigan). This'll be a two-parter; first comes the motion, then comes the brief. I followed the exact form that Plaintiff followed when they filed their own MSJ on me last August. DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116 © (10) Now comes Defendant Beefer Real, Pro Se, for his Motion for Summary Disposition pursuant to MCR 2.116 © (10) states as follows: 1) That on or about June 20, 2013, Plaintiff filed his action, and Defendant was properly served. 2) The action filed by the Plaintiff was related to a credit card account that Plaintiff alleges belonged to the Defendant and was allegedly procured by Plaintiff from Chase Bank. 3) Defendant sent Request for Discovery via certified mail with return receipt to Plaintiff’s council on Xxxxxx xx, xxxx. Defendant received Plaintiff’s answers on or about Xxxxx xx, xxxx. 4) That Plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that Defendant is indebted to the Plaintiff. 5) The Plaintiff has used hearsay statements in the pleadings of this case. 6) That an examination of the attached documentation originally provided by Plaintiff, along with Plaintiff’s responses to interrogatories during discovery, has left Plaintiff with a lack of standing. Without standing, the case cannot be ruled in Plaintiffs favor. WHEREFORE, Defendant respectfully requests that this Honorable Court grant judgement in Defendant’s favor and dismiss this suit with prejudice. Dated: Xxxxxx xx, xxxx _____________________________ Beefer Real
  3. I know there are many templates on these forums for countering motions for summary judgement but I wanted to make sure my response was catered to my exact motion in Washington state. Please help me draft it here. I have a hearing in ten days and they sent me the motion stuff just at the tenth day. Just to get people up to date, got the summons, and the plaintiff discovery responded..denied all, sent my first discovery...got half a$$ stuff back no original signed contract agreement...so now they have sent me the motion for summary judgment.. Here is there motion: Comes now the plaintiff, by and through its attorney, and moves the court for summary judgement on Plaintiffs' claim against the defendant. In the opinion of counsel this motion is well founded in law and not interposed for the purpose of delay. This motion is based on the affadavit of Mic***l R***in which is filed herewith and the Points and Authorities subjoined below. POINTS AND AUTHORITIES A party is entitled to summary judgement: "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fat and that the moving party is entitled judgment as a matter of law." CRLJ 56© the Instant case arises out of breach of contract action wherein Palintiff alleges Defendant defaulted on a credit card debt and is now seeking to collect thereone. Defendant filed an Answer wherein he presents a blanket denial to the allegations set forth in the Plaintiffs Complaint. Additionally, Plaintiff provided the Affadavit of Mic***el Ru**n attesting to the amount due and owing as claimed by Plaintiff. Attached to Mr. R***n's affidavit are the Monthly Billing Statements, the bill of Sale documents, and the Credit Card Agreement, hereby incorporated as exhibits 1, 2, and 3 respectively. Based on the forgoing, there is no genuine issue as to any material fact and Plaintiff is entitled to a summary of judgement as a matter of law. What they attached: They attached some bogus affadavit from Florida...I have used huey pilots template to craft a counter affadavit. A bill of Sale which I have attached so that one may see. (Still haven't received any help in crafting a response) A bunch of statements. Any help would be deeply appreciated. Thanks everyone. NOTE: Here is the basics for those not familiar with my other thread. So I have been served by Daniel Gordon on behalf of Midland Funding for some Wamu account years old for an absurd amount that is like 3 times more than the actual credit card ever was. I filed my response that I denied this debt was mine and demand validation. They sent me and the court some photocopied bank statements showing default payments for maybe five months followed by an affadivt from Florida saying some **** like I owed Chase 1600 dollars ( The same as the last produced statement) before the account was sold to Midland. So as I prepare my defense, what do I do about these photocopied statements and the affadavit? Should I argue heresay? Here is the lowdown, thanks. 1. Who is the named plaintiff in the suit? Midland Funding LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Daniel Gordon 3. How much are you being sued for? 2600 4. Who is the original creditor? (if not the Plaintiff) Wamu then chase?? 5. How do you know you are being sued? (You were served, right?) served 6. How were you served? (Mail, In person, Notice on door) mailman in person 7. Was the service legal as required by your state? yea Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? never had contact with them 9. What state and county do you live in? Snohomish county, WA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2009 11. What is the SOL on the debt? To find out: 6 years in washington state?? Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I responded denying the debt, and demanded they provide me evidence I broke a contract. The responded by sending a bunch of statements saying I owe xx amount of dollars. Sent request for admittance and request for production to both which I have replied in denying everything using the templates provided here to answer the questions. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Too late 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 days, and I responded to the claims. It was pretty much the standard crap, customer got card from wamu xxxx blah used it to buy stuff, broke terms and conditions etc...it had 15 admittances/interrogatories Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent and affadavit from florida saying I owed 1600 dollars on the account when it was sold to midland funding. And sent like 5 photocopies of statements showing non payment from chase bank. 17. Read this article: Bill of Sale Scan0001.pdf
  4. I'm living in Florida. Sept 2012: I was served with complaint by American Express for $12K owed in CC debt. Oct 2012 I submitted an answer claiming the defendant is without knowledge regarding the allegations. 11/26/12 According to the county Clerk's website, AmEx filed: Motion for Summary Judgment Notice of Filing Affidavit of Costs Affidavit of Account 11/27/12 I received a large packet of paper including (not sure how these match up with above list exactly): Plaintiff's Motion for Summary Final Judgement Certification of Plaintiff's Attorney Affidavit Notice of Filing Affidavit in Support of Plaintiff's Motion for Summary Final Judgment Exhibit A - stamped on 1st page of CC agreement Exhibit B - stamped on one page of hundreds of CC statements (2007-present) Questions: 1. Would filing a Motion to Strike the Affidavit(s) based on a technicality end the case if successful? Should I try something else? 2. Should I expect to have a trial? If so, when would it typically occur? 3. If I file bankruptcy, would this end the case? Do I need to file bankruptcy before a Final Judgment is rendered? 4. If I want to try to negotiate a lower payment to end the case who do I contact? What should I offer? Notes: I have a client that owes me $35K in consulting fees since 2010. He has been in prison in another country for the last year so I will probably never see any of the money he owes me... Maybe I can file a suit against him or his US company? In the mean time, I was racking up CC debt and now am nearly broke. I rent (my house just went to my wife as our divorce was finalized last week) and I own a 10 year old van. 5. What assets are at risk if I lose this case? My bank accounts? My Van? My wages? (I am currently self employed, but my 10 year old business is near death and I'll probably have to get a new job soon). 6. If I were to somehow get a judgement against my client for $35K, and AmEx gets a judgement against me for $12K, can one be used to offset the other? Thanks for any help or guidance!
  5. I could reall use some help writing my opposition to a MSJ. I am CLUELESS!!!! I have a rough draft. Thank you in advance for your help! BG The MSJ MIDLAND FUNDING LLC PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BeerGoggles AND JANE DOE Goggles ) HIS WIFE AND EACH OF THEM ) ) ) Defendants,) COMES NOW, Plaintiff MIDLAND FUNDING LLC by and through counsel, and moves this Court for Summary Judgment against Defendant Beergoggles pursuant to Rule 56, Arizona Rules of • Civil Procedure. This motion is based on the grounds that there are no genuine issues of material fact and that Plaintiff is entitled to judgment as a matter of law. This Motion is supported by the attached Memorandum of Points and Authorities, Separate Statement of Facts, and all records and documents on file herein. RESPECTFULLY SUBMITTED this Feb Attorney for Plaintiff /LAW OFFICE, PC MEMORANDUM OF POINTS AND AUTHORITIES Summary Judgment may be granted when the pleadings, depositions, and admissions on file, together with the affidavits , if any show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Rule 56, Arizona Rules of Civil Procedure, Orme School v Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990).(Looking this up now!) Plaintiff's action against Defendant is for repayment of an outstanding credit card obligation in the principal amount of $XXXX. In the answer, the Defendant denied all allegations in the Plaintiff's complaint. Attached as Exhibit A (Credit card statements) to Separate Statement of Facts is a true and correct copy of Monthly Statements from April 20XX to September , 20XX. The Exhibit demonstrates that the Defendant made payments and credits to the account, but breached the contract by failing to pay the balance. Plaintiff also has provided the Affidavit of an employee of Plaintiff,(PRECLUDED) verifying the amount due and owing on Defendant's credit card account as $XXXX. (See Affidavit, attached to Plaintiff's Complaint.) Plaintiff has received no payments from Defendant between the time Plaintiff s Affidavit was made and the date of this motion. (See Separate Statement of Facts.) Based on the foregoing, Plaintiff has demonstrated that the Defendant breached the contract by failing to repay the outstanding obligations, and that Plaintiff's damages are equal to the outstanding principal of the debt, plus interest, court costs and attorney fees. (See Terms of Credit Card Agreement, attached to Plaintiff's Complaint.) Plaintiff respectfully requests that this Court enter summary judgment in favor of Plaintiff against Defendant for the principal balance of $XXXX, plus interest, court costs and attorney fees. RESPECTFULLY SUBMITTED this Feb , LAW OFFICE, PC Copy of the foregoing mailed February 2012 to: BeerGoggles 1 Barstool Alley Hungover Like Hell, AZ 8XXXX Attorney for Plaintiff LAW OFFICE, PC Attorney for Plaintiff LAW OFFICE, PC AZ STATE BAR NO XXXXX Name here AZ STATE BAR NO XXXX Phone number here Attorneys for- Plaintiff [email@numbnutslaw.com IN THE JUSTICE COURT OF STATE OF ARIZONA MIDLAND FUNDING LLC ) ) NO.Beergoggles Plaintiff,) V ) ) SEPARATE STATEMENT OF FACTS ) IN SUPPORT OF PLAINTIFF'S ) MOTION FOR SUMMARY JUDGMENT ) Beergoggles ) Defendants,) COMES NOW, Plaintiff, MIDLAND FUNDING LLC by and through counsel, and submits the following Statement of Facts in support of its Motion for Summary Judgment: 1. Attached hereto as Exhibit A is a true and correct copy of Monthly Statements from April 21, 2008 to September 21, 2009, regarding Defendant's credit card account. Not disclosed til now Defendant has made no payments regarding this credit card account between the time Plaintiff s affidavit was made and the time of this motion. The principal amount due and owing on Defendant's credit card account is $XXXX 4. The credit card account was granted to Defendant with the agreement that he was subject to the terms of the agreement which included liability for payments on the account, plus interest, court costs and attorney fees in the event collection action became necessary. RESPECTFULLY SUBMITTED this February 2012. Attorney for Plaintiff OFFICE, PC Copy of the foregoing mailed February 2012 to: Beergoggles (They might have mailed it but I did not receive it! picked it up from the court) Attorney for Plaintiff MY OPPOSITION ROUGH DRAFT BeerGoggles 1 Barstool Alley Hungover like Hell, AZ 8XXXX IN THE JUSTICE COURT OF XXxX PRECINCT COUNTY OF XXXX, STATE OF ARIZONA MIDLAND FUNDING LLC NO. BeerGoggles1 Plaintiff, Defendants REPLY and V OPPOSITION to PLAINTIFF'S MOTION for SUMMARY JUDGEMENT BeerGoggles Defendant, Comes now the Defendant, BeerGoggles, Pro Se, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment filed herein by Plaintiff, MIDLAND FUNDING L.L.C., as follows: The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law. The Plaintiff lacks standing to sue the Defendant, since at no time did the Defendant cause any harm to the Plaintiff. The Defendant has never had any sort of relationship, business or otherwise, with the Plaintiff. At no time did the Defendant become indebted to the Plaintiff, as such, the Defendant has no obligation to the Plaintiff, monetary or otherwise. Plaintiff has failed to discharge this responsibility in the MOTION FOR SUMMARY JUDGEMENT and the attached MEMORANDUM of POINTS AND AUTHORITIES 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. Defendant received the Plaintiff's Summons on XXXX Defendant answered the request on XXXX, and filed a Motion to Ammend Answer on XXXX Plaintiff Filed a Application and Affidavit of Default, and Notice of Intent to Seek Entry of Default on XXXX Defendant filed a Motion to Preclude Affivdavit on XXXX Mediation was set for XXXX Defendant sent Request for Production of Documents to Plaintiff on XXXX and was received by Plaintiff on XXXX. Documents requested from plaintiff included any documentation of relationship between plaintiff and Chase Bank N.A., the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff, a contract signed by the Defendant, The Permissibles Purposes for a Hard Inquiry on Defendants Credit Report by Plaintiffs Law Firm. Any evidence of a contract between the Plaintiff and the Defendant. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented. Defendant received Notice of Summary Judgement from the Court on XXXX, and promptly sent a letter to both the Plaintiff and the Court stating the Defendant did not recieve a copy from the Plaintiff on the next day. Pre Trial Conference is set for XXXX Statement of Facts 1. Plaintiff's Attached Exhibit A "true and correct Monthly Statements" have not been disclosed until Motion for Summary Judgement was filed. 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. 2. Plaintiff Claims no payments regarding the credit card account have been made between the time Plaintiff's affidaivt was made and the time of this motion. NEED HELP WITH THIS ONE!!! 3. Plaintiff has failed to produce a complete accounting over the life of the alleged account of how the amount sought was calculated. 4. Plaintiff has failed to produce any evidence of a "granted credit card". HELP WITH THIS ONE????? 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. WHEREFORE, Defendant,BeerGoggles, respectfully submits that the Court should deny the Plaintiff's Motion for Summary Judgment, filed herein by Midland Funding L.L.C. and prays for Dismissal of the complaint by the Plaintiff for damages of $XXXX and any further relief this court deems just and proper. Defendant's motion for dismissal of summary judgment submitted this ___________ day of March, 2012.
  6. Hey folks, I am in Indiana and I need help. Big time. I was served with papers from Midland in July, filed my responses, then waited a month and filed a Motion to Strike the Affidavit of Debt along with my Interrogatories, Requests for Admissions and Requests for Production of Documents. Today I received the request packet back from the attorney saying that he did not consider it "served" because of some crap details (I didn't leave enough space for him to answer, etc.) which i can fix and resubmit, no problem. However, I also received a Motion for Entry of Summary Judgement. Here is what it includes: Memorandum in Support of Summary Judgement The Complaint Affidavit of Debt Summons Filing Receipt An Account Information that shows transactions, says at the bottom that it was printed by Midland from electronic records, created, maintained and provided by Dell (OC) Letter to me: Notice of New Ownership (which i have never seen before) Generic Bill of Sale from Cit Bank to Webbank Generic Bill of Sale from Webbank to Dell Financial Services Generic addition to bill of sale stating that accounts were identified in a certain TXT file Generic Bill of Sale from Dell Financial Services to Midland 3 Affidavits of Sale of Accounts by Debt Seller that are copies but look like the originals were notarized A record page that at has my information on it and at the bottom says it was printed by Midland from electronic records provided by Dell in connection with the sale. WTF do i do now? I filled out an original post: creditinfocenter.com/forums/there-lawyer-house/315389-received-summons-now-what-sued-midland-funding-indiana-help.html
  7. Hello all! A couple months ago I started a thread about responding to a summons for an alleged CC debt. I received the summons in July of this year and responded with an Answer (Straight denial) within the time-frame (20 dys). Fast forward to now. I just received a "Motion for Summary Judgement" along with "Notice of Filing Supporting Affidavit". In this "Motion for Summary Judgement" it states: 1) Plaintiff has brought this action against defendant based upon defendant's failure to repay money owed pursuant to an extension of credit made to defendant 2) On 7/1/12 defendant was served with summons & copy of complaint 3) Defendant has answered complaint. Defendants answer fails to raise a genuine issue as to any material fact in this case. 4) Plaintiff supports this motion with the filing of an affidavit attesting to the defendant's indebtedness 5) Plaintiff is entitled to judgement as matter of law. In the "Notice of filing Supporting Affidavit" it states the evidence they are providing. This "evidence" is 2 years worth of CC statements showing charges, payments, etc etc. They have also attached a notarized copy of a 2 page letter showing a lady's name claiming she is authorized by the CC company as a "Document control officer". The letter states she pulled the records and I owe the amount. Then on page 2 is the notarized signature.... So here is my questions for you experts out there: - What do I do next? - Keeping in mind the 2 yrs worth off CC statements show a starting balance of $5,XXX can I use this against them stating they never provided me a breakdown from a "$0.00" balance? Any help will be much appreciated as I have read that I need to respond fairly quickly. Thank you very much!
  8. To All: Found this on the Web and thought I'd Share with Community... It has helped me,maybe it will help others... philipstern.com/files/Brief_sample_-_SJM_Debt_Buyer_Collection_Case.pdf Great stuff... Thanks Not Going Down
  9. I would like to know what my options are. I thought I had more time, but something told me to check the manilla envelope they sent me and I have to appear in court 5-14-12 9:30AM for an MSJ hearing. Here is the timeline in brief. I live in NY state, Queens County Early last year Cach LLC called and harassed me, and my mother about a debt. I tried to settle, cach bullied me, the terms were not fair. sent out debt validation letters they did not reply in 30 days(cannot prove mail wasn't certified) they sent envelope with account statements I mailed them a letter back, stating I needed more proof. they filed motion for lawsuit I responded with answers General denial I do not have business relationship with plaintiff Unconscionability Other: Harrasment [*]Conference was scheduled soon after [*]During the conference a trial date was set [*]I filed a motion for discovery [*]plaintiff filed motion for MSJ how do I strike the summary judgement?
  10. Hello, I am in Washington State, and I have a Summary Judgement hearing on 6/1 for a past debt. Creditor is Capital One thru an Attorneys office. The question I have is regarding the exhibits they intend to use in their case. Exhibit A is the sworn Affidavit from someone in Capital One. Exhibit B is a copy of an application (They had also sent me this in response to my DV, and had marked it on their header sheet as part of their verification). However, the application is not mine, its for someone else, clearly with a different name and ss#). Exhibit C is a large stack of account statements, copies of a few checks I had paid them with some years ago. My question is about Exhibit B. Is there anything I can do for an erroneous application sent as evidence? Can I file a motion to dismiss? I don't think I want to file a motion to strike, seeming Exhibit B might work for me somehow. Any insight or suggestions would be greatly appreciated.
  11. Portfolio's attorney and I agreed to mediation. Well, I sent an offer to the mediator and she said she would contact the attorney with the offer. So, I waited for a response and then a week later she sends me an email asking how I would like to handle the case? I told her I sent her an email with an offer, and I haven't heard back. She said she didn't receive it and for me to send it again. So I did. A few days later I get in the mail a motion for summary judgement. They also sent me a affidavit of sale of individual account, assignment and bill of sale, electronic record statement from HSBC BANK, NV. I was reading I should file a motion that opposes either the material facts or how the law is applied in the summary judgment. Organizing the argument into an affidavit. I'm thinking about filing for bankruptcy, and saying screw it. Help? Rob
  12. Many of us have been telling members just how to do this for a while. Many follow our comments and take action, others seem to always question us. Well here is a lawyer say the very same thing we have been saying for a long time. It is an article on JdSupra written by a consumer lawyer that is clear and to the point: Case Killer: How to Defeat a Motion for Summary Judgment | John Skiba - JDSupra Simple summary, reply to the Motion in time and pound away on the issues of: Standing, Amount owed and specific facts in your case. It is most interesting that a lawyer is saying he has never seen a JDB be able to prove standing.
  13. Why would the lawyer for Midland Funding LLC file for a motion for summary judgement and then remand the motion before the hearing? This has happened 2 times and I am getting fed up. Case is long story.
  14. I am at a point in a lawsuit in Florida where I intend to file either a Motion to Dismiss or a Motion for Summary Judgement. The issues that would support either motion vary a bit, but this case surrounds a claimed breach of contract by a bank. To date, they haven't proved the debt with any account statement or billing record, or any record that shows proof of a breach of contract on my part. They provided an Affidavit which was not made based upon personal knowledge of the affiant, and was declared hearsay at a prior hearing. My question is one I hope can help many here. What's the best way to get a case like this dismissed, filing a Motion to Dismiss, or a Motion for Summary Judgment? Which has a higher legal standard to meet, and which motion is more easily rebuffed by a determined Plaintiff? Thank you. Looking forward to hearing your opinions...
  15. In February I got a summons at my door from my county clerk of court that Midland funding were suing me as the successor to a BOA . no account #, no nothing. All that was attached with the summons was some MCM paper statement, never seen before this date, that says notice of new ownership and pre-legal review, it has MCM account number and says original creditor is BOA and amount of payment due. The next paper that they show as a statement is not from BOA, but says the above referenced account was purchased by midland funding LLC and is serviced by midland credit management. Date received 9-2010 and that this balance in excess of 7k is due by 10-2010. This is ALL for proof as said debt. I do not recognize this debt as mine and so I searched google and found ways to respond to the summons, some here, some other places. I am so stressing and don;t have a clue what I am doing, but here is what is done so far and their answers, I am begging for help here. I am not too bright and could sincerely use any help offered. This action is a civil procedure for Florida, so Florida rules due apply. This much I know ( understanding the rules and how to apply is another thing:( I wrote a response to complaint ( again with help of some google searches) The response denying the debt. Then my defenses one of them based on plaintiffs assertions FRCP 1.936 defendant is without sufficient facts to constitute this legal action. The next defense of my own from FRCP 1.933 says a copy of account showing items, time of accural of each and amount of each must be attached to complaint. This was NOT done, all attached to complaint and summons was what was stated here in 1rst paragraph. Plaintiff alleges with NO PROOF that plaintiff and defendant had business transactions in June 2008 and that plaintiff and defendant agreed to the resulting balance ( FALSE ) this never occurred!) In part of my defense and answers I asked the plaintiff to provide strict proof of debt and court to dismiss the complaint due to legally insufficient cause of action with prejudice. I was then served with discovery and interogatories. Midland funding never responded to my request for strict proof ( did I have to do that separately or was it okay to demand that in my answers to complaint?) and as said was served with discovery request and interrogatories , of which I answered in good faith. Midland funding was ASKING me to show them proof of this account??? That is all I could gather from the discovery request. They wanted canceled checks showing payments ( don't have ANY) They wanted so much and I had NOTHING to give them. I asked again for strict proof and for the court to dismiss and now................. They sent me a motion for final summary judgment or asking the court to grant them summary judgement, they never responded to my request for proof, nothing ( again did I have to ask separately, I provided this defense in my original answers and defenses as well as asked again in their discovery requests, but nothing, just was sent the motion for final summary judegment and they site case law in support as well as an affidavit from Shannon Mcclellan notarized saying SHE is aware of how MCM keeps records and is aware of such records ( if thats FACT, they why have they not shown me the records? ) They site case law in their defense for summary judgment: 1. there is no genuine issue as to any material fact and that plaintiff is entitled to summary judegment as a matter of law as shown by attached affidavit ( the shannon mcclellan affidavit) 2.plaintiff is entitled to summary judegment against defendant based upon the grounds that its claims is established by the complaint and exhibits thereto, the affidavits filed in support of this motion and the discovery filed inthis action. These documents establish evidentially the unpaid balance owing plaintiff by the defendant Martyn V. Arnold 19 So. 791 ( Fla 1895 ; Gendzier v. Bielecki 97 So. 2d 264 ( 4th DCA 1971) Edwards v trulis 212 So. 2d 893 ( 1rst DCA 1968) ( note no discovery was provided me except for silly affidavit by Shannon Mccellan and the MCM paper saying I owed x amount, they have no statements no nothing for proof of anything just saying they are a successor, they do have some account number listed, is it mine though...I deny this and am unaware of such account!) 4.Any affirmative defenses by the defendant have been specificaly rebutted in the affidavit by the affidavit ( assumming they mean shannon Mcclellan.) How can I respond to this in Florida court so that they do not get this summary judgement on me, this is horrible and fraud, please HELP!
  16. History: June 2009--Account charged off, 3869.00 August 2009---collection call from NCO. First and last time I heard from them. They asked a lot of questions about my access to other credit accounts and about a retirement account (which I didn't and don't have) February 22, 1010- complaint from Cap1 represented by Weltman, Weinberg, and Reis. First time I had ever heard of WWR. March 16, 2010--filed my answer with the court and mailed (by regular mail, a mistake) to plaintiff. April 2, 2010-received motion for default judgement and notice of hearing with no date. April 15, 2010--received judgement from courts. There were 2 dates on this document---one said tendered April 9, 2010 and the other said "entered" April 14, 2010 April 16, 2010--took a handwritten letter to the court asking why I had receved a default judgement when I had answered original complaint and had never received a court date. April 17, 2010--received by mail a copy of my handwritten letter with a handwritten note by the judge which said "reverse!" and yes it had an exclamation point after it. Also included was a court date for June 11th on the matter. May 14, 2010--received a notice from plaintiff lawyer to no objection to setting default judgement. (noted different attorney for Cap 1 now) May 12, 2011--MORE THAN A YEAR LATER Received verification of debt that I had requested in my answer to original complaint from March 16, 2010. This was a copy of the same account statement that had been included with the original complaint. They did not respond to any of my other affirmative defenses. June 6, 2011--Received motion for summary judgement. This included what I assume is usual stuff but it also included an affadavit dated March 1, 2010 from litigation support representative and agent of plaintiff about their record keeping practices. So......here I am. Called court and they said I didn't need to file an answer to this, just show up in court July 8. Court clerk said Plaintiff had almost hit their deadline. Questions: Should I file some sort of response so that the judge has seen it ahead of time? I need to say that as much as I would like to see this go away, the debt is mine and I have worked VERY hard this past year or so to fix credit. That is why when NCO originally contacted me they were interested in why I couldn't use other credit accounts. I explained, and maybe this was dumb, that I was not going to screw myself with another creditor to fix another one. I want to pay the debt I actually owe, so at issue for me is that the totals on the documents I receive keep changing. I am not talking about the interest, I am talking about the principal sum keeps changing. Can it do that? Shouldn't the prinicipal sum they are collecting be the amount they charged off? Also, of note I am on unemployment. Have a joint bank account with my husband. If they get judgement, what is timeline and how does their collection on account work?
  17. I need help. I have a claim that was filed againt me by American Express Centurion Bank World financial Center New york new york. My first mistake was when I answered the summon I did not include an affirmitive defence. Just replied with a deny to all paragraphs. I sent the answer to the court as well as the lawyer who is supposedly representing them. When sending the letter to the lawyer I also sent them (the lawyer) stating that I wanted copies of all contract and statements of anyone and anything that they would be using in this law suit. This was at the end of Nov. Then finally on April 8th 2011 I get a letter from the court stating that there would be a Telephone scheduling conference on 5/12/2011 at 8:45 am and that I was suppose to call the # and wait for the Judge to come on the line. On April 22 I get a package from the lawyer and in it is a letter stating that In your response to your correspondence dated 12/14/2010 we have verified the underlying debt. Proof of same is enclosed herin with Plaintiff's summary judment pleadings. Pleas not that there hav been no debt holders other then theplaintif American Express centurion Bank, P.O. Box 981535 El Paso Tx And then there is a copy of a letter that was drafted for The clerk of courts in My county which states Enclosed for filing please find. 1. Plaintiffs motice of Motion andMotion for Summary judgement, 2. Plaintiffs brief in Support of Motion for Summay Judgement 3. Affidavit of (attorney )in Support of Motion for Summary Judgment 4. Affidavit >>>>>> in Support of Judgment 5. Affidavit of Non-military Service 6. Original and on copy of Finding of Fact in, Conslusions of Law, Order for Judgment and Judgment and self- addressed Stamped encelope: and 7. Our fim check in the amout of $5.00 to docket the judgement. A hearing in this matter is scheduled before Judge_______ for 5/12/2011 And of course they are all there. My question is how do I now reply to the Motion for Summary Judgment. I have been researching and gathering things to build my case and now it looks like I will not get to plead my case. I need help. First My plaintiff is addressed as American Express Centurion Band New your NY. But on the letter sent to the clerk of courts it says Amex P.o. Box 981535 El Paso Tx. Then on the statements they sent me copies of it says Amex los angeles Ca. So Wich includes is attached to the affidavit in Support of Judgement. And it states that the custodian of records is and adult resident of NJ. Second in there original summons they stated that I failed and refuse to pay the amount owed. Which is false. I never refused to pay back the amount that was owed I was making payments to a United recovery systems and those payments are reflected on the affidavit is support of Judgment. But when asked to have the names of the others involved in trying to collect this debt they lawyer stated no one had the debt but Amex. Also on the Affidavit in support of Judgement it States after the last payment was processed by the collection agency Program completion. And there was a credit issued. Also after the program completion date the next statement says this account has been cancelled and suspended. About 2 weeks later I recieved a call on my cell phone for another person stating that they now held the debt and would settle for a little more then half if I could by them in the next couple of days. I said that was enroled in a payment plan and that I had been making payment to them. They said that they where now handling this debt and this is what they could offer. I said that I did not have that kind of money and they preceeded to tell me that I needed to ask someone to borrow the money. A relative or maybe friends so this could be taken care of otherwise it would have to go back to being the original debt amount owed with additional interest charges. I told them that I could not ask my family or friends for the money and she asked me what I could pay. And I had told her the amount that I was paying the other collection agency and that I could continue to make those same payments. She would have to have this much and if I did not have it I needed to borrow it from someone. Finally I hung up on her because she was just being rude. And then she just continued to call and call but I never answered. I then sent them a check for the amount that I was previously paying and stated that I would be happy to pay them this amount every month. I recieved that check back saying that they no longer had the debt and that any payments could be made to Amex directly. Then on August 30th 2010 I get a call at work from a man stating to be from a law firm. ( but first I had to hold while they got him on the line.) He stated that he was handling this debt for Amex and that he would like to work with me to start paying on this debt. I told him sure and then he asked me for an amount which would bring this below a certain mark and I of course gave it to him. This is also stated as and agency remit. on the affidavit in support of the motion for Judgment. I never heard from him again. So now that brings me to where I am today. what direction should I go. Please help
  18. Is it possible to get an extension to answer (motion for summary judgment) and if so is there a civil court form that needs to be filled out? could not find on my civil court web site. I have until the 5th of May before judge makes a decision. :Also do I need to present at that date? Thanks
  19. Hey everybody. I need your help8] I recieved a motion for summary judgement through a local law firm for Midland Funding LLC. I'm scheduled to appear in 20 days. I need to know what I should do in the meantime to stop this matter. Should I file a motion as a preemptive strike in hopes of getting them to drop the lawsuit? In a conversation with the law firm representing them, I caught the guy in a lie. He said he was collecting on behalf of WaMu. He also stated that he didn't have to tell me how much the debt was purchased for. They sent me a packet of information showing some account history but nothing complete and no contract with my signature. They also haven't proved that they have the right to collect based on the information given. I'm in need of help desperately and need your opinions. Thanks.
  20. My mother got a Motion for Summary Judgement in the mail today, from an apparent lawsuit from Citibank (but I think its from a third party debt collector--not sure). I really don't even know how this case has been progressing because she hasn't been opening her mail etc due to being sick. I doubt she has responded to any of this stuff. I am trying to help her because it seems that this can have scary repercussions and she thinks just ignoring it will make it go away/somehow go in her favor and I know this is not the case. My questions are, if they have a judgement against her what can happen? Can they take her house or garnish her wages? She lives in Florida. I would like to help her send in some sort of response. Is it too late for that? I have no idea how to proceed. It seems this is very much at the end and it might be too late to help her. What, if anything, can be done at this point? I have read some stuff on here about Arbitration but is it too late for that? I see here in the letter that it says something about "Defendant has admitted the allegations contained in Plaintiff's Complaint, An admission in an answer binds the party and no proof is required." I hope she really did not admit it and that she just didn't respond? If she did admit it is there no hope for her? Any help would be appreciated. Thanks.
  21. In March 2010 I received a summons I was being sued by GE Money bank via Zwicker and Associates in Texas for $1700. I resonded to all court documents I was required. I had paid the debt in full by August 2010. I sent a certfied letter with proof of payment and a request the case be dropped. Months went by and I heard nothing until November 22nd 2010 when I received a Motion for Summary Judgement claiming the amount sought was $273.00 + court cost, attorneys fee and interest. I wanted this to end, so I paid it and sent Zwicker a certified letter with proof of payment and asked why I now owed more than the original amount sued for. If it was going to take them scamming me out of $273 to end this, then so be it. I responded to the MSJ disputing their statement from the bookeeper at GE Money which stated I owed $_____. No amount was listed on the statement. I also responded with proof the debt was paid in full with proof of payment. On Dec 27th I checked court data online and find there is a submission hearing Jan 3rd. I was never notified. Am I allowed to attend the hearing or since it's by submission, is there a point?
  22. I sent plaintiff bILL OF pARTICULARS and only got a print out. Sent them a seccond letter to for BOP and didn't get a response. I'm thinking of filing for Summary Judgement since plaintiff hasn't produced enough evidence to win a case. What do you guys think? Should I ask for Summary Judgement?
  23. Can anyone explain to me the process of motion to file summary judgement? Is this better or worse than a default judgement? I responded to the summons, only hoping that tehy may not come back at me, or just to bide me some more time. It was with chase on a corporate credit line, w/my hubby & I as personal guarantors. I responded to the summons & complaint, they sent back a motion for summary judgement, saying that a corporation needed to be represented by an attorney & requests summary judgement against the corporation & guarantors. what will happen now? how long will it take to get a judgement & will a BK 7 discharge this judgement? I can't deny the fact that this was used by the corpoartion, which since has had no business, the plaintiff sent records dated back to 7-1999, when acct was opened. how long will this go in the court system before a judgement is granted & recorded? thanks for any input
  24. For this unknown debt, in the plaintiff's motion for summary judgement, they included a bill of sale affidavit. the affidavit is not notarized, just the one referencing it. -------------ACTUALLY, nothing in the mfsj is notarized. the acclained affidavit from the duly authorized agent of plaintiff was signed jan 2009 and the notary expired may 7th, 2010.----------------- the bill of sale goes exactly like this one, excluding names. bank ("Seller"), for value received and pursuant to the terms and conditions of credit card account purchase agreement dated Feb 20, 2009 between seller and plaintiff, llc ("purchaser"), its successors and assigns ("credit card account purchase agreement"), hereby assigns effective as of the file creation date of March 20, 2009 all rights, title, and interest of seller in and to those certain receivables, judgements or evidences of debt described in exhibit 1 attached hereto and made part hereof for all purposes. Amounts due to seller by purchaser in hereunder shall be paid u.s. dollars by a wire transfer to be received by seller on (the "closing date") March 27, 2009 by 2:00 PM seller's time, as follows: This bill of sale is executed without recourse except as stated in the credit card account purchase agreement to which this is an exhibit. No other representation of or warranty of title or enforceability is expressed or implied. name of seller by:___________________ DAte:_____________ Title:vice president name of purchaser by:_________________ date:____________ Title: General Counsel sure surprises me they could come up with this. Maybe they created it last week. well it actually shows fax data on top showing date they received it and signed it that day. anyway, any help would be greatly appreciated.
  25. I was served with a Motion for Summary Judgement and in the Statement of Facts it states: 'This matter arises out of an open account between the Plantiff and the Defendent. The Plaintiff filed this suit to recover the past due balance of $3,438 and other amounts set forth in the petition. In response to the Plaintiff's petition the Defendent filed an answer with defense that do not apply since this is not an assigned debt.' This confusing because on the law firm's correspondence it states that they 'represent' Capital One Bank and the OC is the plantiff. I made the assumption that they did not purchase the debt. If this isnt the case and they purchased the debt, then shouldn't the CA be the plantiff? I have read as much as I could on 'assigned' vs 'purchased' debt. But, their statement is throwing me for a loop. Can anyone help me decipher whats true?