Search the Community

Showing results for tags 'motion for summary judgment'.



More search options

  • Search By Tags

    Type tags separated by commas.
  • Search By Author

Content Type


Forums

  • Announcements
    • Polls
    • PLEASE READ BEFORE POSTING / Board Announcements
    • Resources
  • Credit Repair Forums
    • Credit Repair
    • Collections
    • Credit Bureaus/Reports/Scores
    • Credit Article of the Week
  • Legal Issues
    • Is There a Lawyer in the House
    • Bankruptcy Q and A
  • Debt Validation
    • While You are In It Debt Validation Q and A
    • Debt Settlement
  • Loans and Banking
    • Obtaining Credit Cards, Auto Loans and Financing
    • Mortgages
    • Student Loans
    • Banking and Finance
  • Non Credit
    • Off Topic
    • Wine

Find results in...

Find results that contain...


Date Created

  • Start

    End


Last Updated

  • Start

    End


Filter by number of...

Joined

  • Start

    End


Group


Location


Biography


Interests


Occupation

Found 6 results

  1. Can a motion for summary judgment be filed in a case in which an answer has already been filed?
  2. I have edited this post to include this introductory statement because there's a lot here and I feel it's important to read through this saga knowing ahead of time how it will end. You will see how much work and attention to detail I gave this case but it was not enough to come out on top. I lost in Justice Court when the Plaintiff filed a Motion for Summary Judgment (MSJ) and was unable to get the appellate court to reverse the lower court's ruling. Here is the thread for my appeal: http://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/ I have learned several things along the way. The most significant one is that in most cases, there is no "absolute" way a Justice Court judge has to rule on evidence. He can rule one way on admitting certain evidence and another judge can rule the exact opposite way. If both cases went to appeal, the appellate court can rule that neither judge committed error. To wit, winning in Arizona is mostly luck of the draw and as time marches on, good luck seems to be evermore diminishing . The reason for this is because appellate courts in AZ (and most other places) review the admission of evidence for an "abuse of discretion". This means they are not looking for a specific outcome with the admission of evidence (admitted or rejected), but instead are looking for something to indicate the judge had a basis for his decision. Furthermore, if there is nothing on the record that shows the judge had no basis for his ruling, the appellate courts usually won't assume facts that aren't there. This means the evidence itself must be lacking some fundamental element in order to have the appellate court reverse the Justice Court decision. The next important thing I learned is that there is a case here in Arizona named Parker that appeals courts have been applying to JDB lawsuits. Parker says that a witness can testify about business records even if that witness did not create the records or has no knowledge of the person that created them or the manner in which they were created. The way this is being applied to JDB lawsuits is an employee of a JDB can testify about your credit card statements even though the JDB's employee has never seen the records before reviewing them in preparation of giving her testimony. The only criteria for giving this testimony is that the testimony must state 1.) the witness is a custodian of the JDBs records; 2.) the witness has reviewed the records being introduced (and specifically identifies them); 3.) the records were incorporated into the JDBs own records; and 4.) the JDB relied on the records in its normal course of business. If all 4 of those things are present in the witness testimony (or affidavit on MSJ), the Justice Court is free to admit the evidence and the appellate court won't reverse that decision on objections of hearsay or lack of foundation. This doesn't mean the evidence admission cannot be reversed based on some fundamental defect with the evidence itself, however. Examples of this would be a date that doesn't match up with other dates or dollar amounts among the records are discrepant with no rational explanation. It's YOUR job to raise these questions with the lower court. If you don't address them with the lower court, the appellate court won't consider them on appeal. The last important thing I learned is that JDBs are now entering into 'capped legal fee' agreements with their attorneys. This means that the lawyer agrees to represent the JDB for a modest fee if the defendant does not contest the lawsuit (including defaults) and then a maximum amount the JDB will pay on contested lawsuits. In my own case the cap was set at $1,500. The lawyer submitted an affidavit that they spent over $11,000 in time, but stated that due to 'contractual arrangements' they could only charge $1,500 of that to Cavalry. The significance of this is that a few years ago, if a defendant contested the lawsuit and started running up the JDB's legal tab, the JDB would be more inclined to drop the case and walk away. Now, when they know they will spend no more than $1,500, once they reach that $1,500 limit (right around the 2-3 month mark of the lawsuit when discovery takes place), they have no incentive to back down. It will cost the JDB the same to litigate the case all the way to trial and beyond (I appealed and Cavalry never paid more than $1,500) as it would to settle the case once the cap is reached. The cautionary tale here is that JDBs (at least here in AZ) have figured out exactly what they need to do in order to keep a Justice Court decision in their favor from getting reversed. My philosophy is to do whatever you can to keep the Arizona Court System from deciding your fate on a debt collection lawsuit. At this time, the most effective way to do that is via arbitration. There is an arbitration forum here on CIC. I suggest asking for advice there. Also, here is an example of how arbitration was used in Arizona to beat a JDB: http://www.creditinfocenter.com/community/topic/326349-retired-and-being-sued-by-unifund/ Here is a Justice Court Appeals Ruling discussing the use of arbitration in debt collection cases. http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf Update 12-21-2015: The CFPB smacked Midland and Portfolio Financial Services (PFS) pretty hard in a consent order earlier this year. You can read the details here: http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/ The reason this is significant is some of the Justice Courts here have reconsidered how they are treating Midland and PFS when consumers contest the lawsuits they bring. This is from a Justice Court case that was reversed on appeal: http://www.courtminutes.maricopa.gov/docs/Lower%20Court/102015/m7064645.pdf There have been a couple reports of the Justice Courts taking it upon themselves to reject the evidence, even when the defendant doesn't raise the issues of the CFPB findings. Of course, if you are sued by Midland or PFS, certainly address the CFPB findings when objecting to summary judgment or at trial when Midland/PFS tries to introduce their evidence. Update 04-06-2016: It seems the Justice Court appellate court has had a change of heart: http://courtminutes.maricopa.gov/docs/Lower%20Court/022016/m7204120.pdf Ok, on to my story.
  3. Introduction: Sued by JH Debt Portfolio Equities, LLC (JDB2), debt purchased from Oliphant Financial, LLC (JDB1) whom purchased from OC (Capital One) Account and Debt are unknown to me (Pro Se Defendant) Responded to Petition with General Denial and Special Exceptions, requested Disclosures from Plaintiff (required multiple additional requests to comply to get documents) Responded to Plaintiff's Request for Admission with Denials. Current Delimma: Plaintiff (JDB2) filed Motion for Summary Judgment. In the motion the Plaintiff specifically refers to Bussiness Record Affidavit and an Affidavit for Attorney Fees. The motion fails to enumerate the facts at issues and which pages of attached evidence address the facts, it does have documents attached as evidence, all of which fail to show a direct link between the Plaintiff and account. (Attached) How do I specify issues of fact and objections if the motion is stated in a general manner? Strategically, if I go through all of the pleadings and motion and identify related evidence + weaknesses I do myself a disservice. I would be stating the grounds for their case, giving them all the info they need to strengthen their case, and it providing them with information regarding my strategy, knowledge base, and abilities. Can someone please help me with how best to address this issue? I know that I can request revisions by specifying things that are vague or ambiguous, but that my request is too general it will be denied, and am again unsure because their entire motion is too vague and ambiguous. I welcome your related experiences and advice. Thank you in advance. JDB-MSJ.pdf
  4. I received a request for admissions, interrogatories, production, etc.. from the Plaintiff LVNV on June 19th. The Plaintiff also filed a Motion for Summary Disposition on June 30th. My question is, do I need to respond to the discovery request, or should I simply focus on my opposition to their MSJ? I am not sure what can be deemed admissible if I don't respond in 28 days. The Plaintiff has not responded to my discovery request and so I feel I shouldn't respond to theirs. I am looking for some advice. Please help!
  5. I could really use some help writing a response to an Order on Motion for Summary Judgment (MSJ) filed in Hamilton County, Indiana against my wife. A Civil Suit was filed against my wife on November 13, 2013 for which we submitted Answers and Affirmative Defenses on December 3, 2013. We answered the suit as per the description of several others throughout the forum. (I also received similar paperwork for a related case). Apparently, Cavalry SPV also submitted a Notice of Filing on December 24, 2013 for: 1) Plaintiff's First Set of Interrogatories to Defendant, and 2) Plaintiff's First Request for Admissions to Defendant. We have not responded to either item. I have reviewed the rest of the forum topics and realize that we will have to respond. Also attached to the MSJ, is an "Order," which I will also list below. Thank you in advance for your help! Hoosier46060 Motion for Summary Judgment Filed February 19, 2014 (Received via USPS March 8, 2014) STATE OF INDIANA COUNTY OF HAMILTON IN THE HAMILTON COUNTY SUPERIOR COURT 3 CAUSE #29D0_-____-__-_____ CAVALRY SPV I, LLC Plaintiff(s) vs. WIFE of HOOSIER46060 Defendant(s) ORDER ON MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Indiana Rules of Trial Procedure, the Court hereby finds as follows: 1. Plaintiff filed a Motion for Summary Judgment, Designation of Material and Memorandum of Law in Support of Motion for Summary Judgment. 2. Any party opposing the above referenced Motion for Summary Judgment shall have 30 days after service of the Motion to respond in accordance with Trial Rule 56 to file affidavits, to produce other admissible evidence, and/or submit a brief showing cause why movant should not be granted judgment, as a matter of law. 3. If no timely response is filed as prescribed by Trial Rule 56, the Motion may be granted without further notice of hearing, and counsel for the movant shall thereafter submit for the Court's consideration a proposed Order of Summary Judgment. 4. If a response is timely filed, and either or both parties request a hearing as set forth in Trial Rule 56, the Court will not rule on such Motion until the matter is heard. SO ORDERED: February 18, 2014 Signed by the Magistrate DISTRIBUTION TO ALL PARTIES OF RECORD Order Filed February 19, 2014 (Received via USPS March 8, 2014) STATE OF INDIANA COUNTY OF HAMILTON IN THE HAMILTON COUNTY SUPERIOR COURT 3 CAUSE #29D0_-____-__-_____ CAVALRY SPV I, LLC Plaintiff(s) vs. WIFE of HOOSIER46060 Defendant(s) ORDER Plaintiff, by counsel, files it Motion to File Discovery Requests and Responses. The Court, having reviewed, now grants same. Said discovery is hereby filed in conjunction with plaintiff's Motion for Summary Judgment. Date: 2/18/14 Signed by the Judge (Magistrate), Hamilton Superior Court Distribution: Name of Attorney 123 Address Rd, Suite 456 City, IN 46xxx 123-456-7890 Attorney for the Plaintiff Wife of Hoosier 46060 123 Address Ct City, IN 46xxx Defendant
  6. Hi Everyone, Just curious, is there a effective way by Pro(s) like you all, to pull case law ( in California) ? I feel like finding a pin in the ocean,... I am trying to find some case law that the defendant files for motion summary judgment Vs. plaintiff, as they plaintiff does not have any contract with defendant. Million thanks,