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  1. First off, thank you to everyone who provides info on this forum. I never would have gotten to where I am with my defense against Midland Funding. I'm being sued by Midland Funding in MN civil court. They filed a motion for summary judgment and the hearing is next week. I did not file anything during discovery and instead elected to elect arbitration with AAA (alleged contract with Citibank NA states AAA is only option). At the same time I filed a motion to dismiss/compel arbitration. Anyway, the firm representing Midland was served properly and with enough notice and the motion hearing was this morning. No one from the firm showed up. The judge was not too happy obviously, and said that the date originally for the summary judgement next week will now be used for my motion, she will discuss what happened with the judge scheduled for that hearing and also mentioned the possibility of a default judgement in my favor due to no one showing up. So, they are in trouble. My question is what should I do to keep the boot on the throat, so to speak. I believe I have some momentum in my favor, I want to be able to take full advantage. At a minimum, they wasted my time and the court's time -- how do I hold them accountable and demonstrate to the court I respect the court's time, unlike the firm suing me. Thanks in advance.
  2. I recieved a motion for summary judgement and am unsure how to reply, I know that the affidavit of the plaintiff is complete and total heresay, because how could she have any knowledge of how any of the original creditors docs were made. The bill of sale is inconlusive because it does not specifically mention and account in my name, and references some forward flow recieveable agreement I'm a little puzzled on what comments I can make about the validity of the affidavit of sale of account by creditor, other than it doesn't mention any specific accounts and also mentions the forward flow thing. Exhibit C is a bunch of statements which I did not include here. Any help on how to draft a response here would be greatly appreciated, I only have 19 days left to respond. I included their docs for help.
  3. 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 DISCOVER BANK C/O DISCOVER PRODUCTS INC. 6500 New Albany Rd. New Albany, OH 43054 Plaintiff v. Case Number: xxxxxxxx (lokie999) xxxxx xxxxxxx Ct. Louisville, KY xxxxx Defendant 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.
  4. I had a car accident - other persons fault with no insurance. My own insurance company is paying my bills. I had to have surgery and let the dr. know that I had work insurance and my own car insurance company would pay the balance. I got the one and only bill in nov. that showed it was sent to my work insurance. Waited for another statement, didn't get one so I called in Feb. to ask if they had submitted it to my adjuster, gave them the info again and told them to submit it to get paid in full. Thought it was a done deal. Never heard anything back from them. In Aug. I got a summons and was being sued by a collection agency. I contacted the collection agency and the attorneys office and was told they would only take the full payment plus their attorneys fees. I called the original creditor (dr's billing office out of state) and paid the bill . they told me I still might owe attorney fees. They said they had sent me a statement in Feb. I told them NO that is when I called in and told you to submit to the adjuster, since I had not heard back from them since the only statement in Nov. . Asked why I never received a phone call or statement to let me know there was a problem they said they did... yet it didn't happen - If I had know there was still an issue I would have taken care of it after all the adjuster was paying the balances in full. When I got the summons - I replied and denied everything - basically any relationship with the collection agency. I also sent a letter to validate the debt to the lawyer, who is not just the lawyer , but the registered agent for the collection agency llc with the state. Also the collection agency is owned by members of or family members of the law firm, thus why they didn't want to discuss fees and demanded full payment plus lawyer fees- they are in league together. There was no reply to the validation request, only a motion for summary judgement. The exhibits were a letter from the manager of the collection agency saying they had a right to collect and a statement from the original creditor that showed I had a $0 balance that was paid just after the summons was issued. Now, How do I defend this? Last week on the 13th I had a status hearing before the judge. He told me I had to put something in the file in order to defend their motion for summary judgement, and that I would be held to the same standards as a lawyer, and I had to know the rules for civil procedure. That I had to have something in the file before the hearing on the 24th (yes ONE week away.) But when I finally found the Idaho rules of civil procedure 56, It tells me that I have to file a response to the motion 14 days before the hearing. SO I ALREADY MISSED THE DEADLINE, even when I met with the judge as according to this I would have had to have a response in by the 10th. So now what do I do? Do I ? 1. Turn in my opposition to the motion even though I am past my deadline? was the judge giving me an extension of time to get it in? or did he need to specifically say it was an extension? 2. Do I need to file to ask for the hearing to be moved, so I would have time to response and be in compliance with the rules ? 3. Also I don't know what I would turn in for my opposition as well? Help I'm so confused, but I hate to have to pay $600+ dollars to the collection agency and the lawyers for what? The judge I felt realized that they were trying to get money for nothing... since he realized that the original creditor had been paid in full within days of finding out there was a bill and the summary judgement was only to pad their bill and hike up attorneys fees. Again I am less than 10 days out before the hearing. Thanks for your help.
  5. After spending countless hours researching these forums, and hundreds of dollars for a ghost written response to the plaintiff's claim, the judge granted the motion for summary judgement at the hearing in favor of the plaintiff. I am still not certain what I did wrong, but my well crafted answers to the complaint were not even considered because I did not have an affidavit to support them. Entire hearing was over in 4 minutes. I clearly thought I was prepared to argue standing in court, but was not. Can anyone tell me exactly what I type of affidavit I needed in addition to my response that would have resulted in either a denial or at best in my favor? Hopefully it will help others going through this. Thanks.
  6. Can someone point me in the right direction as to how to proceed. Is it too late for me for arbitration? I've sent a notice to appear, and filed an answer. Next thing I got in the mail is note for motion docket with summary judgement. Is it too late for me to mtc arbitration? Attached is the agreement they want to use not the one I have.
  7. Looking for some help on the paperwork that was recently included in the attorney's Motion for Summary Judgement. It included an Affidavit of Plaintiff that states the following: I, "OC grunt", the undersigned and the Assistant Custodian of Records at OC (address in Utah) certify and affirm that the claim and cause of action against IdWrknGrl (not the name that I ever held a credit card in, ommitting my middle name) is in the sum of $XX, XXX. I am familiar with the records of the account in this action, and I am of legal age and competency and am authorized to make this certification for the Plaintiff. In my capacity of "OC grunt" I have access to records regarding the account of the above reverenced Defendant and I have personally inspected said Accountand statements regarding the balance due on said account. OC maintains these records in the ordinary course of business and it is the regular practice to record all transactions at or near the time of occurance. I am the "OC grunt" and can testify as to their authenticy. Defendant applied for and was issued a credit account with Plaintif which is the subject of this suit Defendant used or authorized the use of the credit account to purchase goods and or services or cash advances Defendant was provided with the credit account agreement and monthly billing statements that described the amount due. The credit account agreement and billing statements are attached (an agreement from 2009 and a couple of statements showing an even amount of charges and payments were attached). If currently available, the application and or copies of payments made by defendant to plaintiff on this account are attached hereto as composite exhibit C ( Nothing attached) By use of the credit account, Defendant agreed to the terms and conditions set forth in the agreements. As of Oct 1, 20XX the balance on this account was $XX, XXX for which an account was stated for such amount. Declarant has reviewed the account records and there is no unresolved notice or claim that the balance is incorrect etc..... I declare under penalty of Perjury of the state of (My home state) that the foregoing is true and correct. Signed OC Grunt and notarized in MA. There is nothing on here that references the account number, and even though they say that available applications are attached as exhibit C, there is nothing. Is there anything to pick apart here??
  8. 1. Who is the named plaintiff in the suit? Equable Ascent Financial LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Tara Muren ESQ SBN 260154 Michael Mixer ESQ SBN 99073 John Clinnin ESQ SBN 153881 3. How much are you being sued for? $4000 4. Who is the original creditor? (if not the Plaintiff) CHASE BANK USA 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) IN PERSON 7. Was the service legal as required by your state? YES as far as i know 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? They mailed one letter saying i owed them money. i responded with something to the theme of, who are you and how do i owe you money. Show me proof and i will establish a payment plan 9. What state and county do you live in? CA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) im within statute of limitations i think 11. What is the SOL on the debt? To find out: CA listed as 4 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). current status is Jury trial set for january, last action was DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT TRIAL CCP98 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) yes, they said that the debt appeared valid 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. i asked them to validate debt. not sure if it was the right way though. I did request the credit agency to do debt validation and they said it appeared valid 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? Ive already answered with a general denial 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. exhibits are as follows : generic member agreement with handwritten chase an no sig ; bill of sale with no account number or name ; old credit card statements ; affidavit in lieu of live tetimony (latest) 17. Read this article: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits So right now i was going to put a motion in limine (after i reasearch the format) and motion to strike the exhibits for hearsay, lack of standing, a few other points i have compiled. I saw this thread and im not sure if the defendant just left all the evidence and compiled a pre trial brief as indicated http://www.creditinfocenter.com/community/topic/311682-they-quit-dismissed-with-prejudice/ the scenarios is exactly the same except i am in California. It even has the same witness I also want to know how to look up other cases in california to use as reference - or am i allowed to reference the colorado cases the defendant used.?
  9. This has been going on since April and they sent me a MSJ last week. I did some digging and came up with this. I am going to file a motion to dismiss too, not sure how to word it. I know this is LONG but please someone look over and help me make it LAWYERISH ....THANKS IN THE STATE COURT OF HOUSTON COUNTY STATE OF GEORGIA some company Assignee of First USA Bank, N.A. Plaintiff, vs. ME Defendant. DEFENDENTS RESPONSE TO PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT COMES NOW, ME, Defendant and responds some company Motion For Summary Judgement as follows According to Plaintiffs letter to Defendant Exhibit A the account was charged off on January 25th 2004. This statement does not show last payment made by defendant. According to the Cardmember Agreement paragraph titled Default/Collection Cost (Exhibit B pg 4 of 6) account is in default if “(1) in any month we do not receive your minimum monthly payment by the payment due date”. Plaintiff has failed to provide any evidence as to when account went into default, but yet continues to claim that last payment on account was dated May 5, 2003 (Exhibit C). Defendant has requested proof of this claim but Plaintiff has failed and refused to provide such proof. Defendant made payments for disability and unemployment protection services offered by First USA. Defendant requested these services take affect after being medically discharged from the Air Force. Her request was denied for both disability and unemployment. First USA is at default for denying services as agreed upon. Per Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgement paragraph 6, “On or about November 17, 1995, Defendant applied for a Visa credit card”. Defendant was a resident of the state of Florida during this time and continued to be until, or about, September 2003(see Exhibit D Florida DMV Record), said account was in default prior to then. According to Florida State Law the Statute of limitation is 5 years . Under the Federal Truth in Lending Act § 15 a credit card account is legally defined as an "open" account which is defined as credit extended by a business to a customer, charge account, credit account, charge account credit, open-end credit, revolving credit - a consumer credit line that can be used up to a certain limit or paid down at any time, revolving charge account - a charge account that does not have to be paid to zero balance. The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). The Regulation has effect and force of federal law. Open-end Credit Transactions: Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts. Typical features: Creditors reasonably expect the consumer to make repeated transactions. Creditors may impose finance charges on the unpaid balance. As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer Federal Law supersedes State Law or a State Court's interpretation. OCGA § 7-5-2(4) and OCGA § 44-14-3(a) define a credit card as revolving, thus making it an open account. As indicated, the Federal Truth in Lending Act clearly defines credit cards as open end accounts and in the state of Georgia, that would be a four year statute. Georgia's statutes provide, OCGA § 11-2-725. Statute of limitations in contracts for sale (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. and § 9-3-25. All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11. Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgement paragraph 7 states that the terms and conditions of the contract are set forth in the current Credit Card Agreement (Exhibit B titled cardmember agreement). According to the Cardmember Agreement under paragraph titled Assignment (Exhibit B pg 5) “Governing Law: This agreement and your account will be governed by the Law of the State of Delaware and, as applicable by Federal Law.” This makes Plaintiff's claim moot for two reasons 1) claim was filed in the State of Georgia not Delaware and 2) 10 Del.C. § 8106. Actions subject to 3-year limitation provides that Statute of limitations in Delaware is three years for open accounts, written contracts and oral agreements. Conclusion Defendant disagrees that Plaintiff is entitled to a judgement as a matter of law and further states that O.C.G.A. § 9-11-56(e) provides that “nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined.” Because the Defendant was not a Georgia resident and the account is governed by the State of Delaware, Defendant respectfully submits that the Court should dismiss, deny and find invalid the Plaintiff's complaint and Motion for Summary Judgement, and prays for Dismissal of the complaint by the Plaintiff.
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