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Ok, first post I explained I was summons. I replied with answer to complaint and the attorney had 10 days for his reply. Attorney replied with "Motion for Summary Judgemnt". What does this mean? Do I not get my day in court to defend myself or am I automatically hung? (His reply is 11 pages including medical logs)

In my answer I stated :

1. Plantiff has demanded payment on debts that are questionable without actual verification.

2. Defendant is designated as "assignee of record" of supposed debt, therefore lack standing in the court as original creditor.

3. Defendant sees complaint with prefiling interest, interest and attorney's fee unnecessary and frivolous.

4. Plantiff has harassed defendant and violated FFDCPA Section 805(a)(3) by contacting place of employment many times after cease and desist request.

I must have p@*ss this attorney off, because he's asked the court to move for entry of summary judgment based upon the pleadings and paper on file herein, (some stupid justice court law) and the attached points and authorities etc.

They try to show validation with printouts of medical bills, two that don't even have my name on them. Then he spouts alot of case examples. Not once did he address the FFDPRA violation issue.

I guess I have to start looking up his case references and the law he states to, but in the mean time do I file a counter-claim NOW?

Thanks for you input.

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You really need to see a lawyer if they are going for a summary judgment. Unless you give a blanket denial in the answer to a summons you give the other side the ammo to file a msj.

FDCPA violations are not the answer here. In fact, there is some case law that accepts computer printouts as validation of medical debt. The prevailing theory is this is how money flows from insurance carriers to health care providers on a daily basis. This is a reasonable and customary pratice in this industry and courts are not going to change this method of doing business.

I'd get some real legal advice. If that msj is granted you're dealing with a judgment.

BTW, a msj means he is telling the judge that his evidence is so overpowering and grounded in statue the a trial is unnecessary that, the judge will have no choice but to find for the planiff. As I say, you really screwed something up in yoour response.

[Edit by bingo on Tuesday, February 4, 2003 @ 09:08 AM]

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I probably did mess up, but without the years of law education what choice do I have but roll over and take it? I'm trying to stand up for myself as best as possible. My next step is to answer the motion for summary judgment with the 10 day period. What is a blanket denial?

Thanks for your input. If I lose, I'm going to create my own small claims case for calling my work and harassing me (have witnesses).

:eek:

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A balnket denial refers to the orginal summons where you just deny all allegations in the complaint. That forces the other side to come to court and prove everything they allege.

When you start to go into detail in your response you lock yourself into a defense. This gives the lawyer the chance to really do some research and find cases to support his position and counter all of the objections that you listed.

I really feel like you need to see a lawyer and see what they advise.

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Thanks, the judgment they are trying to collect is around $600 bucks. They (CA&lawyer) are going for a lot of work for such a small amount. To see a lawyer will probably double that or more. If they win on this one, I'll just file for BK. Then all of those slimy attorney's and CA's can kiss my behind.

:upsidown:

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Why file bk for a $600 judgment? Bk on record 10 yrs. Judgment on 7.

Bingo,

Could you get in trouble with the court (perjury) if you go with the blanket denial defense?

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No. The burden of proof should be on the plantiff. A general denial or a claim of no recollection won't get you in trouble.

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As you can see in my answer to summons, I really didn't say anything. (i.e. correction: #1 stated that the debts were questionable without verification). Isn't that more or less saying your not sure if they are indeed yours because you have no recollection, so prove it?

After researching my "MOTION FOR SUMMARY JUDGMENT", the attorney keeps pointing out case laws that "Denial, by answer, does not create issue of material fact sufficient to preclude summary judgment. NRCP 56(e)". He's now asking ME to present a genuine issue of material fact that I don't own the debts! He's stating that NJCRCP 56 provides that parties seeking to recover upon a claim may move with or without supporting affidavits for the summary judgment in their favor.

Now that I look back to my response to summons, I realize that just "denial" is not good. I should have written my anwser to complaint much more thoroughly. All the attorney did was look up laws, cut & paste to make it look overwhelming.

I am preparing my response AGAIN for motion. The debt are question, there are 3 total medical bills. Two very small ones that I know aren't mine. The last is around $550, which was the remaining amount after surgury. The doctor was adding in my deductible to their debt, when I was paying off the hospital too. So my $250 deductable applied to hospital and doctor refused to rebill insurance for an accurate billing. So, this is where I stand. Still don't think I should have to pay maybe over $1,000 for a debt of $300, which I would have gladley paid if the billing dept could do their jobs correctly.

Thanks again.

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Another question that could help is if the CA has hired attorney for these debts doesn't that violate FDCA 805(B) communication with third parties where pretrial depositions are violated. In reality, this is a fourth party now involved!!

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I really have no idea how to help. A response to an msj really needs a lawyers input.

Personally, I think had you just flatly denied everything in the initial summons you'd at least be certain of a trial. You sort of hedged a little with the "questionable without verification". Just say I deny it now you prove it. {referring to a reply to the initial summons}

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oneshot,go to this website and do some reading, might be a fdcpa case there that could help you out

http://www.consumerjusticecenter.com/court.htm

FAIR CREDIT REPORTING ACT - ORAL ARGUMENTS

Phillips v. Grendahl, Court Of Appeals, Court File No.01-2616

FAIR DEBT COLLECTION PRACTICES ACT

Attorney Fee Award:

Armstrong v. Rose Law Firm, USDC Minnesota, Court File No. CV-00-2287 MJD/SRN, 2002 WL 31050583

Soto v. Cabrera & Rephen, USDC Minnesota, Court File No. cv-00-1731 ADM/SRN

Sonmore v. CheckRite, USDC Minnesota, Court File No. CV-99-2039 DDA/FLN

False or Misleading Representation in Communications:

Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir.) (Minn. 2001)

Duffy v. Landberg, 215 F.3d 871 (8th Cir.2000)

Sonmore v. CheckRite Recovery Services, Inc., Case No. 99-2039 DDA/FLN, *7 (D.Minn.2001)

Collection Fees:

Kojetin v. C.U. Recovery, Inc., Court File No. 97-2273 (D.Minn. Feb. 17, 1999)

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Thank you so much Georgiaboy & Ironman. I'm searching these caselaws like crazy. Would like input on my states law for creditor's rights.

TRANSFER OF CREDITOR’S RIGHTS -NRS 100.075 Creditor’s rights transferable without consent of debtor. Any creditor may, without the consent of the debtor, transfer all or any part of his rights against the debtor to any third party. The assignee is entitled by virtue of an assignment or transfer to sue in his own name as a real party in interest. This section does not preclude a contract between the parties prohibiting the assignment or transfer of the creditor’s rights against the debtor to a third party.

(Added to NRS by 1975, 1343)

Does this law states that the CA can sue me personally with an attorney. I would love to have it read like Cal. assignee law!! (I should get the assembley to see it changed).

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Oneshot,

You must (if I'm not too late in my response) file a MOTION OF OPPOSITION FOR SUMMARY JUDGMENT. This will stop their summary judgment dead in its tracks. I can't believe your attorney didn't suggest or file this! I would recommend you use some violation of the FCBA (fair credit billing act). I had a "client" that we used this with and the judge actually chastised the opposing attorney for not properly putting together the complaint! Plus, we were able to get the whole thing dismissed! I had my friend bombard them with motions for discovery and motions for definite statements. It cost the bank a lot of money and we ended up proving them wrong! That attorney was PISSED!!! Imagine me, a high school drop out, against a doctorate of jurisprudence, and prevailing! It was sweet! Good luck!

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file a "MOTION OF OPPOSITION FOR SUMMARY JUDGMENT"?

I didn't quite word it that way and wished I had checked the board today. I filed today with "RESPONSE TO MOTION FOR SUMMARY JUDGEMENT

AND MOTION TO DISMISS JUDGEMENT". It was pretty extensive in my answers and I asked to have the whole thing dismissed per voilations. Hope it has the same effect as your suggestion. The crazy thing is this attorney is trying to collect his fee's with this judgement and per my states laws, he's not allowed to in small claims. I definetly pointed that out along with many FDCPA violations. And am waiting to see vincent's response on the statement question.

Thank you everyone for your help so far.

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Got the "NOTICE OF TRIAL DATE", after disputing the MSJ. My trial date is set for May. That's good. At least the judge didn't go ahead with the attorney's motion to just garnish my wages without a trial! I can't wait. I think when May hits, I'll file an extention for the trial and really drag it out. I must have really pissed them off good but the good news is the CA Attorney can't collect his fees in small claims and I'll make him work for this one. I'll be asking a lot more questions. Thank God I have my briefing 80% completed thanks to Ironman.

Wish me luck and I'll post the results!! :p

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Motion for Definite Statement is filed to obtain some type of information that normally can't be obtained by discovery. The motion should point out the defects complained of and the details desired.

The opposing party is stating that your response is too vague or ambiguous. So when you file, make sure you're clear and use a similar, points-numbered format to state your facts.

Look under Small Claims Results for some ideas. If you had filed a small brief using that format, their motion would have probably been denied. This is their way of nailing you down and creating extra headache for you.

Don't forget, they have to meet their burden to prove that you owe the debt and substantiate their complaint.

(if your case is the one where they filed the affidavit of lost document)

Don't forget to argue that they haven't produced any instrument to tie you to the debt, then under UCC / Contract law you have no obligation. Statement of lost document is BS. That means that anyone can use this remedy to misuse the justice system in collecting debts that people aren't sure of. ARGUE THIS!

Always keep the other avenues open that you can use in your defense. They can't produce any document that you tendered any items or obligated yourself to any security agreement, etc.

Cheers!

[Edit by IronMan on Wednesday, February 19, 2003 @ 10:49 AM]

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Thanks for the info again Ironman. Sorry I haven't been around, been fooling around with my comp. (new hard drive etc.) and had it crash. Lost everything and should know better to back up, back up, back up...! Had a good 12 page briefing typed up, now I have to start over. Good thing courts in May not next week. I am on a quest for justice!!

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For Vincent;

In my state (Nevada)-no lawyers per our Nevada Revised Statues :(NRS)73.040 Attorney's fee not allowable in actions for small claims. The only exception to this would be for shoplifting adult or minor. Found this when cruzing for the "assigment for creditors". So that will help me at least if I lose, not to get hit by that expense on top of the ridiculious fees the CA charges.

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wow, lawyers are allowed in small claims some places? not here.

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