Still needing help with my Motion

[copperarab]

Hi all thought I would start a new thread..

I am working through my Motion to Dismiss. After much reading, Federal statute claims that Motions can only be filed before any pleadings..and I am thinking it says the same for our local statutes:

B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

1. Lack of jurisdiction over the subject matter;

2. Lack of jurisdiction over the person;

3. Improper venue;

4. Insufficiency of process;

5. Insufficiency of service of process;

6. Failure to state a claim upon which relief can be granted;

7. Failure to join a party under Section 2019 of this title;

8. Another action pending between the same parties for the same claim;

9. Lack of capacity of a party to be sued; and

10. Lack of capacity of a party to sue.

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment. A motion to dismiss for failure to state a claim upon which relief can be granted shall separately state each omission or defect in the petition, and a motion that does not specify such defects or omissions shall be denied without a hearing and the defendant shall answer within twenty (20) days after notice of the court's action.

In my Motion TO Strike, the opposing turd used this against me, saying that since further pleading did happen, that my Motion should be struck down due to my filing it late..etc....

Also the opposing turd states that: "Further, Defendant has wholly failed to cite any mandatory authority supporting her Motion to Strike Plaintiff's Affidavit. Defendant specifically failed to cite any of the enumerated provisions of Title 12 ).S. 2002 2012 of the Oklahoma Code of Civil Procedures in support of her claim."

He them goes on to say " Finally, Defendant's motion was not accompanied by a brief in support or a list of authorities upon which she relied to reach her conclusion. Rule 4 of the District Courts of Oklahoma state:

Every motion shall be accompanied by a concise brief or a list of authorities upon which movant relies. Unless the court directs otherwise, neither a brief nor a list of authorities shall be required with respect to any of the following motions:

(1) Motions for extensions of time, if the request is made before expiration of the time period originally prescribed, or as extended by previous orders,

(2) Motions to continue a hearing, pretrial conference or trial,

(3) Motions to amend pleadings or file supplemental pleadings,

(4) Motions to appoint a guardian ad litem,

(5) Motions for physical or mental examinations,

(6) Motions to add or substitute parties,

(7) Motions to enter or vacate default judgments,

(8) Motions to confirm sales,

(9) Motions to stay proceedings to enforce judgments,

(10) Motions to shorten a prescribed time period, and

(11) Motions for scheduling conferences and other settings.

d. If the motion does not comply with the requirements of b and c above, the motion may be denied without a hearing, and if a responsive pleading is required, the moving party shall serve any pertinent responsive pleading within twenty (20) days after notice of the court's action.

Okay..so my Motion To Strike the Affidavit may be bogus..this is what I had filed in court:

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIDAVIT AND MOTION TO DISMISS

Now comes Defendant, xxxxx, and respectfully moves the court to strike the Affidavit of xxxxxxxxxxxxx.,. Contingent upon granting Defendant’s Motion to Strike Affidavit, Defendant respectfully moves pursuant to the Federal Rules Of Civil Procedure, U.S. Code, Rule 901. Requirement of Authentication or Identification:

(a) General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.

Plaintiff can prove no set of facts nor evidence supporting a claim entitling Plaintiff to relief and that the case be dismissed with prejudice.

Memorandum

Defendant respectfully submits this motion to strike Plaintiff’s affidavit for the Court’s consideration. The following facts are significant to this motion.

Facts

1. As alleged in Plaintiff’s Complaint and the attached Affidavit of Plaintiff’s representative, Defendant owes Plaintiff a sum certain due an alleged debt.

2. Plaintiff failed to attach a copy of the original written instrument as an exhibit to the Complaint and failed to recite relevant information. In the case of Sollami v. Eaton, 2002 Ill. Lexis 331, Docket Nos. 91284, 91378, it states:

"The court also reviewed the requirement that the affidavit attach sworn or certified copies of records upon which the affiant relied. Plaintiff argued that this requirement was merely technical. But the court disagreed. ". . . [T]his requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself . . . We are unwilling to allow the simple production of an expert’s conclusion ‘to become a free pass to trial.’" In this case, striking plaintiff’s expert affidavit was upheld because of the failure to attach the pertinent records. Plaintiff thus had no expert affidavit."

3. Although Plaintiff claims to “have access to records pertaining to the account”, Plaintiff has not attached those records, and has attached an affidavit by Lynn Hale in lieu of a written instrument or any records pertaining to the account.

4. On information and belief, the affiant, xxxxxxxxxxx, was never employed by the original creditor.

5. On information and belief, the affiant, xxxxxxxxxxxxxx, was never in a fiduciary or any other position to examine the original creditor’s open books for the account of the alleged debt .

6. On information and belief, the affiant, xxxxxxxxxxxcan not have personal knowledge of the original creditor’s creation, maintenance, issuance, and tracking of the billing or statements.

Analysis

Although Plaintiff claims to have access to “records” pertaining to Defendant’s alleged debt, Plaintiff refused to comply with rules of civil procedure which states:

“When a claim or defense is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.”

The attached affidavit does not suffice for a written instrument and Plaintiff’s affidavit constitutes heresay and is not admissible under Oklahoma Rules of Evidence.

Conclusion

Federal Rules of Civil Procedure requires a copy of a written instrument be attached to the Complaint when it is the basis of the Plaintiff’s claim. When not attached, a valid reason for its omission must be given. Plaintiff’s claim that it has access to Defendant’s records when it does not may constitute a “misrepresentation” and as such, evidence of further violations of the Fair Debt Collection Practices Act.

Plaintiff’s Complaint alleges that Defendant is in default under the terms and conditions of an alleged written instrument, but fails to disclose the terms and conditions under which Plaintiff acquired said instrument.

Plaintiff alleges that this written instrument forms the basis for Plaintiff’s right to sue and demand judgment against Defendant.

The written instrument is the best evidence of any transactions that allegedly occurred between Defendant and Plaintiff or Defendant and another creditor. Without the written instrument, Plaintiff cannot prove what terms and conditions Defendant allegedly defaulted on. Additionally, Defendant is harmed because Defendant does not have an opportunity to raise affirmative defenses that may rise from any defects in the written instrument.

Motion To Strike and Dismiss submitted and filed this _____ day of May, 2005.

Soooo...I am doing something wrong. WHAT is a 'BRIEF IN SUPPORT'? or a "LIST OF AUTHORITIES?

IF my Motion To Strike was way off..so will my Motion To Dismiss...I need some legal minds to help me!!!

Sorry this post is so long. I have been at my wits end. Today, I am 'sitting' 2 unhousetrained puppies AND both grandkids..CALGON take me awayyyyyyyyyyyyyyy.

Thanx

[copperarab]

This is what I found in a student law program regarding 'BRIEFS'

STUDENT BRIEFS

These can be extensive or short, depending on the depth of analysis required and the demands of the instructor. A comprehensive brief includes the following elements:

1. Title and Citation

2. Facts of the Case

3. Issues

4. Decisions [Holdings]

5. Reasoning [Rationale]

6. Separate Opinions

7. Analysis

1. Title and Citation

Title. The title of the case shows who is opposing whom. The name of the person who initiated legal action in that particular court will always appear first. Since the losers often appeal to a higher court, this can get confusing. The first section of this guide shows you how to identity the players without a scorecard.

Citation. This tells how to locate the report of the case in the appropriate case reporter. There are case reporters for every region of the country.

2. Facts of the Case

A good student brief will include a summary of the pertinent facts and legal points raised in the case. It will show the nature of the litigation, who sued whom, based on what occurrences, and what happened in the lower court or courts.

The facts are often conveniently summarized at the beginning of the court's published opinion. Sometimes, the best statement of the facts will be found in a dissenting or concurring opinion. WARNING: Judges are not above being selective about the facts they emphasize. This can become of crucial importance when you try to reconcile apparently inconsistent cases, because the way a judge chooses to characterize and "edit" the facts often determines which way he or she will vote and, as a result, which rule of law will be applied.

The fact section of a good student brief will include the following elements:

A one-sentence description of the nature of the case, to serve as an introduction.

A statement of the relevant law, with quotation marks or underlining to draw attention to the key words or phrases that are in dispute.

A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct.

A summary of actions taken by lower courts, for example, defendant convicted; conviction upheld by appellate court; Supreme Court granted certiorari

3. Issues

The court often states the issues or questions of law raised by the facts peculiar to the case explicitly. Again, watch out for the occasional judge who misstates the questions raised in the lower court's opinion, by the parties on appeal, or by the nature of the case.

Constitutional cases frequently involve multiple issues, some of interest only to litigants and lawyers, others of broader and enduring significance to citizens and officials alike. Be sure you have mastered both.

With rare exceptions, the outcome of an appellate case will turn on the meaning of a provision of the Constitution, a law, or a judicial doctrine. Capture that provision or debated point in your restatement of the issue. Set it off with quotation marks or underline it. This will help you later when you try to reconcile conflicting cases.

When noting the issues, it may help to phrase them in terms of questions that can be answered with a precise "yes" or "no."

Example: The famous case of Brown v. Board of Education involved the applicability of a provision of the 14th Amendment to the U.S. Constitution to a school board's practice of excluding Black pupils from certain public schools solely on account of their race. The precise wording of the Amendment is "No State shall... deny to any person within its jurisdiction the equal protection of the laws." The careful student would begin by picking out the key phrases from this Amendment and deciding which of them were really at issue in this case. Assuming that there was no doubt that the school board was acting as the State, and that Miss Brown was a "person within its jurisdiction," then the key issue would be "Does the exclusion of students from a public school solely on the basis of race amount to a denial of 'equal protection of the laws’?”

Of course, the implications of this case went far beyond the situation of Miss Brown, the Topeka school board, or even public education. They cast doubt on the continuing validity of prior decisions in which the Supreme Court had held that restriction of Black Americans to "separate but equal" facilities did not deny them "equal protection of the laws." Make note of any such implications in your statement of issues at the end of the brief, in which you set out your observations and comments.

Note: More students misread cases because they fail to see the issues in terms of the applicable law or judicial doctrine than for any other reason. There is no substitute for taking the time to frame carefully the questions, in order that they actually incorporate the key provisions of the law in terms capable of being given precise answers. It may also help to label the issues, for example, "procedural issues," "substantive issue," "legal issue," and so on. Remember, too, that instructors may use the same case for different purposes, so the pain of briefing is to identify those issues in the case, which are of central importance to the topic under discussion in class.

4. Decisions

The decision, or holding, is the court's answer to a question presented to it for answer by the parties involved or raised by the court itself in its own reading of the case. There are narrow procedural holdings, for example, "case reversed and remanded," and broader substantive holdings, which deal with the interpretation of the Constitution, statutes, or judicial doctrines. If the issues have been drawn precisely, the holdings can be stated in simple "yes" or "no" answers or in short statements taken from the language used by the court.

5. Reasoning

The reasoning, or rationale, is the chain of argument, which led the judges in either a majority or a dissenting opinion to rule as they did. This should be detailed in a point-by-point fashion.

6. Separate Opinions

Both concurring and dissenting opinions should be subjected to the same depth of analysis to bring out the major points of agreement and disagreement with the majority opinion. Make a mental note of how each justice voted and how he or she lined up. Knowledge of how judges of a particular court normally line up on particular issues is essential to anticipating how they will vote in future cases involving similar issues.

7. Analysis

Here the student should evaluate the significance of the case, its relationship to other cases and the subject being studied, its place in history, what it shows about the Court, its members, its decision-making processes, or the impact it has on litigants, government, or society. It is here that the implicit assumptions and values of the Justices should be probed, the "rightness" of the decision debated, and the logic of the reasoning considered.

A CAUTIONARY NOTE

Don't brief the case until you have read it through at least once. Don't think that because you have found the judge's best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, how does this case relate to other cases in the same general area of law? What does it show about judicial policy making? Does the result violate your sense of justice or fairness? How might it have better been decided?

Okay then..since my last Motion DID cover much of this 'brief,' WHERE did I grossly errrrr?

[hoapres]

With the caveats 1. I am not a lawyer 2. My litigation experience is as a California pro se litigant 3. Have no knowledge of OK procedural rules 4. Taking as an offer of proof that the OP's references are factually accurate, I suspect that :

1. The motion to dismiss or demurr along with the motion to strike need to be the first filed responsive pleadings. Usually the motion to strike and demurr will stay, i.e. postpone, the requirement of filing the answer. Although, a very safe course of action may be to file the motion to strike, demurr and answer at the same time.

2. A typical motion requires :

a. Notice of motion - States the date and time of hearing.

b. motion - The motion itself stating what you want.

c. Declarations-sworn statements from witnesses

d. Memorandum of Points and Authorities-The points being facts and authorities being case law and statutes supporting your position.

a. and b. above are often in the same document notice of motion and motion.

You need to consult a law form book for the proper format and style of motions in your jurisdiction.

It takes TIME to write a motion. My experience is that most individuals, including lawyers, spend little or no time in EDITING their written briefs. What often can be concisely put down in a page on many occassions ends up being many pages of needless verbage.

Unfortunately, as a pro se litigant you are often held to a higher standard than an attorney. If you can meet or exceed the judge's expectation, which I admit is not an easy task, then eventually you will get everyone's respect.

[copperarab]

Hey hoapres..It appears that you are right, and I am reading it correctly, that I cannot file a Motion To Dismiss this late in the game.

My Motion to Compel was filed 2 weeks ago. I am not wanting to set a Hearing as my daughter will most likely not cooperate OR blow it.

At this point I feel like I am stuck in a corner. I guess I'll just sit for a while and see what happens next.

Thanks for your answers!!

[c m chase]

I just wanted to say....you are doing IMPRESSIVELY well with this. Even with a technical oops now and then, you're doing some excellent research and filing. Good job, Miss Lisa!!

[copperarab]

I just wanted to say....you are doing IMPRESSIVELY well with this. Even with a technical oops now and then, you're doing some excellent research and filing. Good job, Miss Lisa!!

HEY!! Only in NC was I called MISS LISA..and that was by the black children (it was weird getting use to)

Soooo Do I sit..and wait..and wait? I am going to assume by my call to the opposing turd that I may SOMEDAY get my Discovery from him. No hand slap or anything. This is the guy who filed for an SJ ONE day after I was late and that was with my Extension request to him AND the court.

Soooo...If I cannot file a Motion to Dismiss..then do I file an SJ of my own? I have read up some on it..and it COULD be done, but is it appropriate?

AND if it's something I should consider..do I use peices of all my Motions (failing to state a claim (Affidavit) failure to answer Discovery as my reasons?

Thanks...I dont want to appear like I am filing Frivolous Motions (a big no-no) BUT at the same time, I want this over.

[Sued-in-Texas]

I'm filing pro se (in Texas) and I did file a Motion to Dismiss on the same day I filed my Original Answer. But I was going to file more motions soon and I'm wondering what I need to know in re this. Does this affect how I need to file further pleadings? I was planning to file another motion tomorrow (in opposition to a motion for default judgment against me that jumped the gun, because I did answer in a timely manner -- but the lawyer who is out of state seemed to not be familiar with exactly how much time I had to answer). I was also going to file a Motion for Summary Judgment soon, and also an Amended Original Answer with Counterclaims.

oooooh....this is so complicated. It's like playing chess, and I never liked playing chess. Mexican Train, yes; chess, no.

[hoapres]

I just wanted to say....you are doing IMPRESSIVELY well with this. Even with a technical oops now and then, you're doing some excellent research and filing. Good job, Miss Lisa!!

HEY!! Only in NC was I called MISS LISA..and that was by the black children (it was weird getting use to)

Soooo Do I sit..and wait..and wait? I am going to assume by my call to the opposing turd that I may SOMEDAY get my Discovery from him. No hand slap or anything. This is the guy who filed for an SJ ONE day after I was late and that was with my Extension request to him AND the court.

You should expect discovery responses fairly quickly as you have won your motion.

Soooo...If I cannot file a Motion to Dismiss..then do I file an SJ of my own? I have read up some on it..and it COULD be done, but is it appropriate?

A motion for summary judgment is probably one of the most -(probably the most) - difficult to write. In complicated, not being a routine debt collection case, the motion for summary judgment often is a significant legal expense. If you win the motion for summary judgment then barring an appeal the case is over. If you lose the motion then you have laid your cards on the table.

A motion for summary judgment probably should only be tried when you have either a "slam dunk" case or you wish to force the other side to expose their legal theories.

You may simply be better off waiting to go to trial.

AND if it's something I should consider..do I use peices of all my Motions (failing to state a claim (Affidavit) failure to answer Discovery as my reasons?

A motion needs to stand by itself. While you can piece other motions in new motions, one should make sure that the new motion stands on its own merits. The judge most likely will not read prior motions.

Thanks...I dont want to appear like I am filing Frivolous Motions (a big no-no) BUT at the same time, I want this over.

This may be resolvable only with a trial.

[copperarab]

Hi hoapres

Thank you for your reply..you must have seen on CM Chases thread that I DID have my Motion To Compel granted...the opposing turd has 15 days to comply..I guess this is where we will see what they have.

My Motion To Strike was denied. I know it was based on my filing it inappropriately (too late) but am now wondering where I go from here in regards to the Affidavit. If you remember, it is a simple statement from a CA employee saying my daughter owes $$$..no bills..no statements etc. Guess I'll find out in the Discovery eh?

I am positive I will receive it soon. There is no way this attorney would ever let a pro se'er push a judge to santioned him for refusing an order.

I am sure when I get the Discovery in my hands I will be on here asking all kinds of questions again!

[hoapres]

I'm filing pro se (in Texas) and I did file a Motion to Dismiss on the same day I filed my Original Answer.

Probably in most jurisdictions, motions to dismiss or demurrs along with motion to strike need to be filed first or with the answer.

But I was going to file more motions soon and I'm wondering what I need to know in re this.

Usually, a motion must stand on it's own merits.

Does this affect how I need to file further pleadings?

The fate of prior motions often affects future motions.

I was planning to file another motion tomorrow (in opposition to a motion for default judgment against me that jumped the gun, because I did answer in a timely manner -- but the lawyer who is out of state seemed to not be familiar with exactly how much time I had to answer).

To be precise, you are not filing a motion but opposing a motion for default judgment. You may want to write a letter to the lawyer asking for him to voluntarily withdraw the motion for default judgment.

If you trully answered on time and have a "slam dunk" win then the lawyer may be willing to withdraw the motion.

I was also going to file a Motion for Summary Judgment soon, and also an Amended Original Answer with Counterclaims.

You need to check court rules. An amended answer may require the approval of the court. Most likely the counterclaim was due with the original answer -(although you did file a motion to dismiss)- and to file a counterclaim will require a motion.

oooooh....this is so complicated. It's like playing chess, and I never liked playing chess. Mexican Train, yes; chess, no.

A complicated case involving numerous pre-trial motions is like a chess game as you should have plans for future motions based on your current motion.

[Sued-in-Texas]

Thanks, hoapres! (sp)

I did find out (read the Texas statute or law or whatever it was called) that I have 30 days from the time my Answer was due to file counterclaims. In that case do you still feel I would need a motion in order to file counterclaims? If yes, what would I call that motion? Would I call it Defendant's Motion to File Counterclaims?

Thanks much!

[iviguy]

Thanks, hoapres! (sp)

I did find out (read the Texas statute or law or whatever it was called) that I have 30 days from the time my Answer was due to file counterclaims. In that case do you still feel I would need a motion in order to file counterclaims? If yes, what would I call that motion? Would I call it Defendant's Motion to File Counterclaims?

Thanks much!

Sorry I am thread hijacking here but, hey so did you..

I am also in Texas and also in the same boat. I need to answer the complaint but need some standard format or form letter on how to do so. Did you make your own format or find a form for Texas? Can you point me in the right direction?

Thanks

[hoapres]

EVERY state has different procedural rules. If Texas allows 30 days from filing an answer to file a counter claim then that will be different from California which requires the cross-complaint, notice the difference in terminology!, to be filed with the answer.

YOU need to become aware of YOUR particular state and local court rules. Always be SKEPTICAL of any generalizations statements "...The procedures are..." as most likely the responder is NOT familiar with the procedures of YOUR state.

[Sued-in-Texas]

Haha, yes, I have been learning that.

Quite a trick -- learning to separate the wheat from the chaffe and learn law practice at the same time, without classroom or teacher!

Thanks again.

[Jeff]

Copperarab,

Your thread really got hijacked by these Texas guys, huh?!?

I see that you're quoting federal law but opposing counsel refers to Oklahoma law. The only time you use both is when you're in federal court and then OK law applies only substantively, not procedurally. So unless it's something like how long you have to file a case (Statute of Limitations), etc., you should be researching OK law if you're in dealing with a procedural question about motions, or are in OK state court to begin with. Quoting federal procedure rules in state court waives a HUGE RED FLAG that you don't know what you're doing and can be easily kicked in the pants with civil procedure.

Your case is sounding pretty complicated since you don't know how to do MPA's (Memorandum of Points and Authorities), etc. MSJ's (Motion for Summary Judgments) are an enormous pain in the butt and I wouldn't go there. (Sorry if I picked that up from the Texas hijacking and got confused.)

You should be able to find plenty of stuff online of sample forms to file, but really I'd suggest you go down to the local law library and ask for the Rutter Guide - Civ Pro Before Trial or something similar. Spend a few hours reading and then you'll know better what to do.

Of course, you could hire a lawyer, but that might cost more than the original claim against you.

I'm in CA so I don't know at all what your rules are.

Good luck,

Jeff

DISCLOSURE: I have a JD degree and passed the CA bar, but awaiting licensure by the State Bar of CA. Hence, I am NOT a licensed attorney and the above information should NOT be relied upon as legal advice.