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About to file this, need feedback!!!!


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I know that these things can be a looooong read, but I am filing it today (Friday) and wanted some feedback before printing it out....

THANKS!!!!!!!!!!!

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DEFENDANT’S REPLY AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Comes now the Defendant, XXXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgement And Supplement filed herein by Plaintiff, Tulsa Adjustment Bureau, Inc., as follows:

1. The Motion For Summary Judgement 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.

Tulsa Adjustment Bureau, Inc., (TAB) has failed to discharge this responsibility in the

Motion for Summary Judgment and Supplemental Motion 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.

2. Defendant received the Plaintiff's Requests for Combined Discovery on March 3, 2005. Defendant requested an Extension Of Time, in good faith, to answer the Plaintiff's Discovery requests. This request was faxed to the Plaintiff's attorney, XXXXXXXX, on March 24, 2005. (attached as exhibit 'A'); On April 1, 2005, Defendant also filed a request with the Court for said Extension Of Time (attached as exhibit 'B');

a) Plaintiff claims that Defendant's Request for Additional Time did not state the reason for the request, that Defendant did not state whether the opposing party had been contacted in regards to the request, and that Defendant did not notify the Court of the Plaintiff's opposition of the request for time (refer back to exhibit 'B');

B) Plaintiff did not answer Defendant's Request for Extension of Time. Defendant did not receive a letter from the Plaintiff, did not receive a phone call from the Plaintiff, nor did Defendant receive an email from the Plaintiff. Plaintiff has not shown proof of any contact regarding an opposition to Defendant's Request For Additional Time. Defendant filed a Request with the Court due to lack of Plaintiff's Answer.

c) Plaintiff claims that Defendant was aware of the opposition of Extended Time request during Defendant's filing with the Court. This is untrue. Plaintiff also claims that Defendant did not send a copy of the Request to the Court, this is also untrue.(Defendant sent copy of Request and Certificate of Service to Plaintiff's attorney, XXXXXX, on April 1, 2005, by first-class U.S. Mail).

Under Federal Rules Of Civil Procedure, Rule 6 states:

(B) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion

(1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order.

Therefore, Defendant has followed the Rules Of Civil Procedure under both Oklahoma and Federal guidelines, and has not failed to respond, act, or notify under the law.

3. Plaintiff claims, by Rule 13, "All material facts in support of Plaintiff's Petition have been verified by Plaintiff's Affidavit."

This document should be found as inadmissible based on the fact that the affiant does not have original nor personal knowledge of the account and therefore his testimony is hearsay. A MOTION TO STRIKE the affidavit has been filed with the Court.

[The appeals court overturned the default summary in Spears vs. Brennan Court of Appeals, Indiana No. 49A02-0003-CV-169; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g(B) Validation of Debts.]

4. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements or billing of said debts.

5. In Plaintiff's Supplement to Motion For Summary Judgement, Plaintiff claims that Defendant objected to a majority of Interrogatories. Defendant answered the Interrogatories that were relevant to this lawsuit to the best of Defendant's knowledge. Defendant does not possess the majority of the documents that would be considered evidence or proof of debt. Defendant requested in Answer to the Summons and Petition, strict proof of debt. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

a) Plaintiff's Interrogatory requests regarding previous lawsuits or crimes that Defendant has been a party to are irrelevant to this lawsuit. Defendant has recently turned 20 years old, is a college student, is employed part time, and has a dependant child. Defendant has never been charged with a crime nor has been a party to any lawsuit as she just does not have the time for criminal behavior.

6. Defendant was a minor when one of the services, included in this lawsuit, was performed. O.S. §, Title 15, Chapter 1, sec. 11 states: "All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights."

a) Plaintiff quotes Baker v. Witten, 1 Okla. 160, 30 P. 491 (1892); Jersey Shore Medical Center-Filkin Hospital v. Estate of Baum, 84 N.J. 137, 417, A.2d 1003, 1005 (1980); and Trident Regional Medical Center v. Evans, 454 S.E.2d 343, 344 S.C.App. 1995, as claims to support his case. All three cases are under the Doctrine Of Necessaries, and have only to do with a marital couple supporting one another where medical responsibility for billing and payments are concerned. These cases do not support Plaintiff's claim of 'necessaries'.

B) Defendant was under her stepfather's medical insurance and under State Medicaid. (attached as exhibits 'C' and 'D').

c) Defendant has no knowledge of signing any forms stating responsibility to pay if insurance claims were not submitted correctly or in a timely manor.

d) Plaintiff has failed to state the basis for the cost of the goods and services provided the Defendant. Plaintiff has not proven that charges were for a reasonable amount for items that may have been charged erroneously.

7. Defendant has seen her credit reports from TransUnion, Equifax, and Experian. The account numbers and amounts do not correspond to what is being reported to these agencies, nor what is reported in the Petition by the Plaintiff.

a) Defendant has one legitimate billing statement and a copy of insurance payments to that statement. The alleged debt amounts reported by the Plaintiff's Affidavit do not correspond to that amount.

B) Defendant does not possess most all original statements nor billing of services to conclude the balance of debt, if any, is payable and due.

WHEREFORE, Defendant, XXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion and Supplemental Motion for Summary Judgement, filed herein by Tulsa Adjustment Bureau, Inc., and prays for Dismissal of the complaint by the Plaintiff for damages of $1,155.73 and any further relief this court deems just and proper.

Defendant's Reply and Opposition submitted this ___________ day of May, 2005

_____________________________________

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The Spears Citation you want to replace the case file number with the real citation Spears v Brennan 745 N.E.2d 862; 2001 Ind. App. LEXIS 509

Only thing I see in my quick read.

Thats It?!? Come come come....I need a little more trashing here! LOL!!!

How about this part?

Under Federal Rules Of Civil Procedure, Rule 6 states:

How would I write that correctly?

Okay...My printer decided to say it is 'busy' and put my papers to be printed into queue..so I did NOT get them filed this morning,

That leaves me ALLLLLLLLLLLLLL weekend to strengthen, cut, alter my Motion...

Course I was up til 3 AM writing this up...so I am a bit disappointed I couldnt file it today :(

Anybody else wanna take a stab??

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