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Same Court Case Filed Again, What's Up?


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O.K. I am baffled. The same credit collection agency filed the same case from Crap One in the same court that the judge has already ruled that the case was not within the municipal jurisdiction. What gives? :?:

The case was dismissed for lack of jurisdiction and the credit collection agency was required to transfer the case to a different municipality that would have jurisdiction. They did not transfer the case and filed for dismissal, which was granted by the judge.

Now, here they come filing the same case in the court which has already ruled that they have no jurisdiction. Did the credit collection agency make a mistake or is this intentional? Can I sue them for violation of the FDCRA, because they have filed the case again in the wrong court?

In the final stages of the initial court case, I sent them a copy of the FDCRA code which stated clearly that they have to file in the court which has jurisdiction, and filed a copy with the courts.

In my answer to this current filing from them do I have a counterclaim and if so, is the claim against Crap One or against the attorney from the collection agency.

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Yes, same lawyer. I would like to believe that this is a mistake, but that would be too much like right. I feel like I am playing a chess game. I would like to contact the judge and tell them that this lawyer is not following her ruling and should be smacked upside the head.

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You should have counter-claimed for the FDCPA violation on the first suit, as suing in the wrong jurisidiction is a violation. No biggie, it offended them that you didn't and they are giving you a second chance, plus a free gift!

Had you counter-claimed the first time, they would have raised the bona fide error defense. By suing you a second time in the same court that defense is shot to hell, thus the free gift.

You need to get this case dismissed, and then pay the $250 to file in federal court. Chances are you'll get screwed if you stay in Municipal/state court and I would file in federal before they refile somewhere else.

So, don't be rude and turn down the free gift. Instead be gratefull and say thanks with a summons of your own.

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I would not counter claim in this case, if you do you are then submitting to the jurisdiction of the court. File for dismissal with sanctions. File seperate action, possibly in Federal Court. Since you have one ruling againest them you have a slam dunk.

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Thank you all for responding. I will do my research and file a motion to dismiss with sanctions and at the same time file the federal lawsuit for violation of the FDCPA in federal court. Now, can I sue them for 2 violations-one for the first and then one for the second? In my answer to the first complaint and then my answer to their discovery I sent them all the information they would need to come and sue me in the right municipality.

Also, in my answer to the intial complaint one of my defenses was that the statue of limitations had run out. As I understand, and with some research, the statue of limitations for an open ended account (credit card account) is four years in Ohio. So I have to do some more research to support my case, but I was getting ready in the event that they did file in my municipality.

So, my defenses will be improper venue, open ended account is past the SOL, and sanctions for filing case again with prejudice. Correct? And simultaneously, file in federal court for violation of FDCPA. Oh and malicious prosecution research.

Thanks again. As these cases progress I will post the outcomes. If it were not for the members of this board I would be lost in the sauce. Now I can at least put up a good fight. :)

Thanks Again

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They were in violation on both suits. The second go around just eliminates any chance of them being able to successfully argue bona fide error. I would say that their tactics likely inflicted a lot of emotional distress. :D

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Malicious prosecution does not apply solely to criminal proceedings. Repeatedly bringing dismissed actions, even civil is malicious prosecution. What is your basis for stating that it does not apply to his case (other than maybe not *quite* enough bogus suits)?

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In NYS, the better term is " abuse of process." Malicious prosecution is left to criminal proceedings.

But the mere issuance of a summons and complaint is not abuse of process. Beyond the issuance of process, one must show the intent to harm without excuse or justification and use of teh process in a perverted manner to obtain a collateral objective. So, if they are making a genuine attempt to collect a debt within the SOL, it is not abuse of process. If there is harm to person or property ( e.g., seeking and getting a preliminary attachment over property without base) , then you get to abuse of process. The plainitff isn't trying to harm here, just collect a debt. Was anything taken? If no, no case.

If teh SOL hasn't run, and if the original action was not dismissed with prejudice, this second suit may be annoying, but not abusive. If they are making the same mistake by suing in the wrong court, I would say i tis frivilous, but not abusive.

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Thanks again for all the advise. The first instance of the attorney filing in the wrong court was in February of 2005. So I am researching the civil procedures of the federal court so that I can file on both instances of violations. Is filing in federal court any more difficult than filing in municipal court?

In my answer to the initial summons, how do I word the "sanctions" part. Again, my answer to the complaint will be :

Improper venue

Lack of jurisdiction

past the statue of limitations for open ended accounts.

What do I say about the sanctions part?

Thanks

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  • 2 months later...

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff, ____________, by and through himself undersigned counsel, requests that this Court grant his Motion for Partial Summary Judgment, and motion for sanctions finding that;

Plaintiff is entitled to summary judgments as a matter of law, no unnamed entities are at fault, and Defendants are accordingly and fully liable as a matter of law in these violations of Fair Debt Collection and Fair Credit Reporting Act, And Civil rights Violation Act case involving a malicious practices acts brought by defendants.

I. FACTUAL BACKGROUND

On or about May 24, 2004, the Plaintiff, _________, has filed his complaint ________ herein attached and annexed, accompanied by these motions. Plaintiff, _________was advised of and subjected to unlawful lawsuit brought against him by the defendants ___________________, on or about ___date_____,2004 .This notification of summons(fake IF NO ADVISORY RIGHTS DISPLAYED FOR DEFENDANT) was the first dunning letter which was delivered to plaintiff with no index number assigned , no name of person who sent such ,was indicated outside the envelope except its address which later was linked to ___________allegedly linked to another collection agency (?) who has send the alleged documents with attorney signature of AN ATTORNEY who is full time employed by COLLECTION AGENCY , demanding payment and interest thereof in which they were not legally entitled and in such fake summons continued to threat the plaintiff with a law suit against the plaintiff without any justification made forward ,advising plaintiff about his legal rights to dispute and or validate such alleged account.

The envelope which bears only the senders address but no name and or indication of index number and statement missing that such document is and or was personal and confidential, contained seven pages of documents are as follows:

1. Alleged Summons Letter signed by an attorney at law and defendandt collection agenciy Summoning the plaintiff on the behalf of original crditor ,without index number assigned by the Civil Court of _____ County of City Of ______and or any advisory of consumer rights of the alleged debtor in which such alleged debt could be disputed and if the plaintiff had any rights, but instead to threatening him that his property ,salary can be garnished, his credit can be destroyed when in fact such action’s legality was in question and should it be lawful to do so.

2. Verification Complaint Letter which was not signed by the attorney ______ Ca Defendant .(2 pages)

3. Verification Letter which looks like an affidavit made by the of legal Department manager of collection agenci defendant which exclusively signed by him .(1 page)

4. Citation (means summons in Spanish)signed by attorney who actually threaten the plaintiff once again in Spanish and it is signed by the attorney himself.(two pages)

Plaintiff respectfully request that this letter and envelope, to be admitted to evidence before the trial court as Exhibit One (1) Furthermore; Defendants did not stop at the very advise of plaintiff’s debt validation notification of dispute which was drafted __date____,2004 and duly requested of validation within thirty (30) days made pursuant to FDCPA 15 U.S.C 1692 (g)(B)(2) . The Defendants, despite the fact that Plaintiffs validation notice(please see exhibit two )was requested and afforded thirty (30) days validation by under FDCPA section 1692 et seq ,which was sent on Date______,2004 ,has sent another same typical summons with index number tyhe case you won ____# on Sept ___DATE ,2004 and violating the FDCPA section 1692 et seq and Fair Credit reporting Act section 1681 et seq in a willfully negligence and careless manner, with reporting the this alleged account as an adverse account to Experian ,Equifax , Transunion (who are also named as defendants in above caption ,which simultaneously violated the Federal Credit reporting act when plaintiff ,in fact disputed these alleged account and or accounts with them,)without the consent of the plaintiff and requesting the Plaintiffs Credit files from Consumer reporting Agencies without warning and consent of the plaintiff , causing him deprivation mental, stress and aggravations with Plaintiffs causing injuries from these illegitimate acts when the plaintiff advised the defendants ,precisely not to do so pursuant to subject applicable laws.

Defendants has sought to sue the plaintiff on Date _____,2004 which later on the same date ,the case was to be in quested and were scheduled to be tried at trial court on DATE ,2004

On DATE ____ 2005 the trial begun and commenced before the Honorable justice NAME who in at the end of such day, asked the defendants to bring a BANK authorization document which duly authorizes the defendants, in order to continue trial (such unlawful action against the plaintiff who then was defendant )Trial was re-scheduled to if SO DATE , 2005. On that specific date defendants ,has once again in a accord of law ,failed to prove ,and or provide any type of documentation of such as requested by the justice NAME which than in return, advised the clerk of the court who has asked the defendant’s representative to ATTORNEY OF DEFENDANTS ;what is their position in order to continue to trial which will be dismissed, or to stipulate the case to discontinuance with prejudice. Defendants ;none of the times, appeared before the honorable court but except Attorney who regularly on daily basis brings these illegitimate cases in Civil Courts of ____as these actions were several times witnessed by the plaintiff ,then agreed to discontinue this malicious practice against the Plaintiff YOUR NAME with prejudice . See Plaintiff `s Exhibit 3, The Case was discontinued with prejudice on (STIPULATION PAPER, 2005)

In their Answers, Defendants filed with the Honorable Court a complete general denial. Yet, they are fully aware of such and have no proof thereof. Defendants deny all allegations made in plaintiff’s complaint with responses that defendants asserts affirmative unsupported defenses which must be stroked in all as they appear.

Plaintiff respectfully states that Defendants under applicable Federal Rules 4 , They will not comply with waiver of service for summons ,which were addressed them on several times by certified mail, in which they simply refuse to respond in writing and verbally, failed to cooperate in such issues and diligently cause to plaintiff with cost of service, attorney fees, court cost and transportation and preparing extra summons causing him aggravations.

Plaintiff respectfully request from the honorable Court that under applicable rules and regulation of Federal Civil Rules 4 and 11 ,that the court issue an order to impose upon the defendants, sanction for fees of service for summons ,together with the cost of this action , attorney fees and further such relief, may the honorable court deem just and proper.

II. LEGAL AUTHORITY

ISSUES

1. Plaintiff ________ may bring these actions in revenge for malicious prosecution of the defendants to pay or else and /or plaintiff’s attorney fees, cost, actual & statuary damages, injunctive, punitive and equitable relief. Although the law disfavors these type of actions but nevertheless such action is necessary in and for public interest.

2. Plaintiff _____________ may bring these actions private and FTC or pursuant to Clayton act for unfair debt collection practices, unfair credit reporting, violations of ones individual rights, as well as deceptive practices act, exedra.

DISCUSSION SUMMARY

1. Plaintiff ____________does indeed have a claim for malicious prosecution against the defendants when in fact the debt collection action was actually resolved in plaintiff’s favor on DATE , 2005.Plaintiff _________ proves the court the required elements of the tort by filing an action for complaint and this action for sanctions in connection with plaintiff `s motions yields a more satisfactory results.

2. All the Federal and State Fair Debt Collection Act and Federal credit reporting Act, Deceptive trades Act and Clayton Act which gave birth to FTC Act perfectly fits the case. Some differences does exist as to actions of defendants that constitutes violations, and which the parties are violators as “debt collectors” “deceptive act performers”

DISCUSSION

1. Action for malicious prosecution

A. Proceedings on Which plaintiff bases the action

Actions for malicious prosecution may be predicated on malicious civil action. Webb V. Youmans(1967) 248 Cal. App.2nd 851,854. Because The claim was more than $5000.00, it could not be filed in small claim court, but filing the claim in municipal court, the defendants created the potential for a claim for malicious prosecution.

B. Elements of the Tort

Defendants did indeed, established the cause of action for malicious prosecution, and the plaintiff hereby pleads and proves the court that the prior action: (1) Was actually commenced by defendants on or about September 23,2004;(2)was pursued to a legal termination in plaintiffs favor ( see exhibit three);(3)was brought without probable cause afforded under FDCPA section 1692 et seq.Brennan vs . Spears, Appeal court indiana; and (4)was initiated with malice which the defendants pursued the action even though plaintiff was disputing thereof .Sheldon Appel C. V. Albert&oliker (1989)47 cal.3d 863,871.Plaintifff did in fact suffer detrimental injury , actual & mental damage to self character and credit standing due to malice of the said actions which was detrimental to plaintiff’s well being and self esteem as a results of the other elements of the cause of action.Maxon v. Security ins.co.(1963) 214 Cal.app.2nd 603,613,29 cal.rptr.586..Plaintiff clearly proves along with credit reports (Exhibit four) which were retained on august 2004 after denial of credit in order to purchase a single family dwelling in queens County of New York.

i. Action Initiated by defendants

The gist of a claim for malicious prosecution lies in commencing an action and or issuing process without justification. In the very Contrast, abuse of process involved misusing and or misapplying process justified in itself for an end other than that for which the process was intended; THUS, the purpose for which the process was issued becomes the key element. Spellens V.Spellens(1957) 49 cal.2nd 210,232.

ii. Favorable termination

The Plaintiff, in malicious prosecution action hereby pleads and proves the Court that the prior Judicial proceedings of defendants which he complains, was actually terminated in Plaintiff’s favor.(See Exhibit Three).Babb v. Superior Court (1971) 3 Cal.3d 841,845.

The favorable termination of the allegedly malicious proceedings need not be a final determination of the controversy: it is adequate to show that the former litigation was legally terminated. On the contrary, Former proceeding was terminated by defendant’s discontinuance with prejudice. For Example, The defendant’s voluntary dismissal of a civil action, even though expressly made “without prejudice,” is a favorable termination that will also support an action for malicious prosecution. On the contrary, defendants discontinued the case with prejudice which plaintiff actually had the favorable termination.

Iii. Lack of Probable cause

As it applies to the malicious prosecution of civil actions, “probable cause” is defined a “a suspicion founded on circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.” Davis V. Local Union No.11, Int’l Brotherhood of elec. Workers Afl-Cio (1971) 16 Cal.App.3d 686,692.

Since the existence of the probable cause acts as an action to malicious prosecution and where there are no disputed facts relied on to show probable cause, the honorable court then must use the “reasonable attorney” standard to determine whether probable cause existed.

The adequacy of an attorney’s research is irrelevant to determination of probable cause, because this improperly shifts the focus of inquiry to the attorney’s performance rather than to the claim’s objective tenability, and contradicts the rule that the attorney’s duty of care runs to his or her client rather than the client’s adversary.

The precise fact of this particular case suggest that existence of probable cause to institute the action will depend on an determination of the attorneys knowledge concerning the Collection agency defendant NAME Legal Department manager NAME `s verification of the debt when it filed the complaint in ______ Civil Court.

Plaintiff _________declares that ,he received the fake summons notifications on DATE 2004 and filed a responses to defendants with debt validation notices pursuant to FDCPA section 1692 et seq ,that the alleged debt and any portion of it, was being disputed and validation was requested, during such period of time any legal activity( suing, reporting adverse information on plaintiff file and or obtaining plaintiff file was forbidden except to report the alleged account with credit bureaus ,closed ,collection, no balance indication, along with statement of disputed notified by Collector is allowed by the federal law ) should have been ceased and desisted, as the FDCPA applied. Martinez V. alberque collection in Texas

Moreover, plaintiff subsequently finds that based on the decision various decisions filed in many district courts such as Martinez V. alberque collection in Texas, brenann v. spears, the adequacy of the Defendants ’s investigations of the facts are totally irrelevant.

iv. Malice

The tort of malicious prosecution requires evidence of conduct more blameworthy than mere negligence. Thus, proof of malice becomes necessary. Maxon V. Security ins.co(1963) 214 Cal.App.2d. 603,615. In this very Context, malice is defined as actual ill will or some proper motive or purpose, express or implied. Grindle V.lorbeer (1987)196 Cal.App.3d 1461 ,1465.

Indeed, It is not necessary for the plaintiff prove that the prosecution was motivated by personal hostility, a grudge, or ill will. It is precisely sufficient if it appears that the previous action was instituted in bad faith to vex, annoy or wrong the adverse party. Weber v. Leuschner (1996) Cal.App.2d 829,837.

The Facts of this case suggest that proof of malice in any action for malicious prosecution will likely depend on an inference of bad faith from lack of probable cause.

It also reveals that the filing of the prior lawsuit involved more than mere negligent investigation of the underlying debts validity. Defendants actions violated the Fair debt Collection Act , Fair Credit reporting Act ,Clayton Act ,FTC act, civil right act in which the plaintiff is able to claim malice per se.

V. Damages

Pursuant to FDCPA,FCRA, FTC ,Clayton ,Civil rights Act , the measure of actual ,statuary and compensatory damages for a Civil Action’s malicious prosecution includes attorney’s fees and court costs for defending the prior action and compensation for emotional distress ,mental suffering, and impairment to reputation, defamation caused by the action’s initiation and prosecution. Bertrero v. National Gen. Corp.(1974) 13 Cal.App.3d. 43, 51,59.

Plaintiff __________ may also recover damages for loss of time, deprivation of liberty, injury to character, general impairment of business ,personal standing, injury to credit, and any other losses to plaintiff’s self and business that directly resulted from the malicious proceedings. Davis, Supra, 6 Cal. App.3d. at 695-696.

Particularly, Plaintiff injuries primarily stem from all above and attorney’s fees and court cost, filing a motion for sanctions may prove more effective means of redressing these injuries. There should be and that is no time limit on a party’s ability to file a motion for sanctions under rule 128.7 and 11, although the court may consider the moving party’s diligence. Code Civil 128.7 © (1).The 30 day waiting period imposed on a party between the serving of the motion and its filing in court offers the defendant the opportunity to dismiss its complaint to avoid the imposition of sanctions, but this result may preferable to spending time and resources on litigating both the collection suit and the subsequent malicious prosecution.

2. Liability for Unfair debt Collection Practices

A. Persons Liable for violations

A substantial body of Federal and State Laws restrains “unfair” or “deceptive” debt collection practices and “INACCURATE” credit reporting. The facts here narrow the parameters of available causes of action under these laws.

An attorney who regularly collects consumer’s debts while engaged in practice of law is not considered an attorney but a debt collector .Thus precisely is subject to Fair Debt Collection act and its responsibilities including false representation of attorney and that communication is from an attorney but not a debt collector. For example, an Attorney who falsely represents himself as attorney but not as debt collector, that he /she is and must be aware that is subject to state bar disciplinary action for collection abuses and may also be liable under Federal Debt Collection Act,15 U.S.C. section 1692 (a)-1692(o).The State Bar requires that law firms and their employees comply with the Federal and State FDCPA, FCRA, and subjects those who do not to disciplinary penalties.Bus.& Prof.Code section 6077.5(I).

Plaintiff___________ brought this complaint and, stated in such complaint the cause of action for damages in injunctive and equitable relief as afforded by law (stated his claims) and fully 100% relies and believes thereof his complaint and actions under applicable laws of Federal acts against the defendants. Defendants are definitely debt collectors who operates on same level of building their offices are connect to each other and credit reporting agencies, through their home state host computers allows access from any computer located in your State NAME , making services available to all STATE NAME PEOPLES , including those collection agencies for a nominal fee, in which Defendants are asserting as Equifax, hopelessly trying to dismiss plaintiff complaints base on the jurisdiction which they have not a single grounds to stand. Jurisdiction is based on Jurisdiction proper under .American Network,Inc V Acces America/ Connect NYSD and Citigroup Inc, V. City Holding Co.,97 F .SUPP.2ND ,549,565,1124 (SDNY 2000) , National Football League V . Miller in NYSD.NO.99 CIV.11846,2000 WL 335566 SDNY 2000 , Haddad Bros.Inc, V. Little things Mean a Lot, Inc. NYSD and People V.Lipsitz .These cases should adequate enough to satisfy permanently their one of the incompetent defenses of jurisdiction under various matters.

B. Prohibited Debt Collector Activities under Federal Act

The FDCPA prohibits debt collectors from threatening or harassing consumer debtors, moreover limits their communications with debtors and others in circumventive ways, and furthermore bars them from making false or misleading representations .FDCPA 15 U.S.C. section 1692 et seq.

It also prohibits acts that abuse the judicial process or disregard the attorney –client relationship. Civil Code section 1788.10 -1788.13 and 1788.14-1788.16.

The FDCPA prohibits a debt collector from falsely representing that attorney fees, investigation fees, finance fees, interests, and or other fees which may not be added to the amount due.

The FDCPA also provides that a false representation that a legal proceeding will be filed unless the debt is paid violates the act. But in this case, claim was false, because prior legal action was actually filed, later discontinued with prejudice by defendants.

C. Damages under the Federal Act, Clayton Act

A debt Collector and its firms who violates the FDCPA ,FCRA are liable for the alleged debtor’s actual ,compensative damages , and may also be liable statutory penalties. If the Alleged debtor prevails, she / he is entitle collect attorney fees and court cost. Also Clayton Act provides that upon deceptive act ,equitable relief in the amount of threefold should be adequate.

D. Pleading considerations

The remedies available are cumulative, and exist in additions to any other provision of law. Civ.Code section 1688.32.Thus a Federal FDCPA, FCRA, Civil Rights, FTC Act Actions presumably will not preclude a state action or an independent tort action. Hence The Statue of Limitation is one year from the date of violation.

Plaintiff , absolutely and fully reserves all the right to sue in state courts .If plaintiff obtains relief from this complaint and action ,Plaintiff than should be able to file a cross complaint for violations of State FDCPA,FCRA ,Civil rights ,Tort Claims ,Malicious prosecution .

CONCLUSION

The facts herein suggest that Plaintiff does have a claim for malicious prosecution, when underlying debt action was resolved in plaintiff favor.

A. Summary Judgment Standard

Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Maryland Rule 2-501(e). The Court of Appeals discussed the summary judgment procedure in Hartford Ins. Co. v. Manor Inn. 335 Md. 135, 642 A.2d 219 (1994), explaining the “purpose of the summary judgment procedure is to decide whether there is an issue of fact sufficiently material to be tried, not to try the case or to resolve factual disputes.” Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 (1993). See Foy v. Prudential Insurance Company of America, et al., 316 Md. 418, 422, 559 A.2d 371, 373 (1989); Coffey v. Derby Steel Company, 291 Md. 241, 247, 434 A.2d 564, 568 (1981). Thus, the review of the grant of summary judgment involves the determination whether a dispute of material fact exists, Gross, 332 Md. at 255, 630 A.2d at 1160.

Pursuant to MARYLAND Rule 2-501(e), when the motion and response show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, the trial court shall enter summary judgment for the moving party. Gross, 332 Md. at 255, 630 A.2d at 1160. The determination of whether a genuine dispute of material fact exists and, if not, what the ruling of law should be, requires the reviewing court to resolve all inferences to be drawn from the pleadings, admissions, and affidavits, etc., against the moving party. Id. at 256, 630 A.2d at 1160.

B. Defendants Has Not Overcome the Rebuttable Presumption that the complaint which Was Caused by their Negligence

In this case, it is undisputed fact that Plaintiff was wrongfully sued .Despite the facts, notification on the defendants and that thereafter defendants continued to sue, report adverse information about the plaintiff. Other named defendants and entities in the action were also involved in causing this negligence, willful defamations. Defendants should be found fully liable as a matter of law for all damages proximately flowing from their negligence.

An evidentiary presumption of negligence arises where a defendant trusted the inaccurate information from by other defendants who are also liable as charged in complaint. Andrade v. Housein, 147 Md. App. 617, 623 (2001). Defendants cannot rebut this fact with their unsupported affirmative defenses by suggesting without any foundation.

III. CONCLUSION

For all the reasons set forth above, this honorable Court should enter an order granting Plaintiffs' Motion for Partial Summary Judgment and motion for sanctions because Plaintiff is fault-free and Defendants fully are liable for causing the claims and all damages proximately flowing from their actions against the plaintiff.

Respectfully submitted

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