Motion for Judgment Summary

[Nikro]

Hello everyone! I think you have some great information on this site. I have found some information I can use, but unfortunately I haven't found anything quite specific to our situation. This is why I am posting now.

In April 2006 my husband received a summons from said "assignee" of OC. We called the OC and they said this debt had been sold long ago to a JDB who was not who sent the summons. This summons has a few holes. Including: the agreement they attached claims the 23.99% rate as being applicable beginning with a statement date of 4/2002, but the account was closed by that time. Another hole is that his credit report shows that the alleged account was opened in 4/2001 and closed in 12/2001. Last alleged activity is reflected on that document as 5/2002. However, the JDB is claiming a CO in 8/2002. That simply does not comport.

Regardless, he answered the summons within the allotted time with a "alleged debt not defendants" answer.

Fast forward to late November 2006. We receive information on a calendar call for the 19th. DH called the clerk and explained that he could not attend and she asked him to fax a note as to why etc and that we HAD to send one to the opposing attorney. Done.

He called the clerk the night of the 19th and ask about the outcome of the calendar call and the opposing attorney did not show up and they sent a fax after court had ended for the day and chances are that the judge would dismiss the case b/c of the attorney not showing. She said we would receive something in the mail. Nothing showed up until....

Last Thursday we receive a Motion for Summary Judgement.

In it is an affidavit from "jane doe". Jane is an employee for Plaintiff who is an authorized signatory (all fill in the blank answers) She said she has reviewed the docs and believes the debt to be hubby's. In this affidavit is sites 2 exhibits. One is an alleged OLD statement with DH's OLD OLD address, no charges, nothing noted when DH supposedly paid the last bill. The other exhibit is not attached.

I know we need to oppose the summary judgement. I am fairly prepared to do that--any tips would help.

Now my questions---

1) Can we use the fact that opposing attorney did not show up to the calendar call?

(O.C.G.A. § 9-11-16) Failure of counsel to appear at the pre-trial conference without legal excuse or to present a proposed pre-trial order shall authorize the court to remove the action from any trial calendar, enter such pre-trial order as the court shall deem appropriate, or impose any other appropriate sanction, except dismissal of the action with prejudice.

2) Can we use the fact that they did not show exhibit B in the affidavit in the opposing to summary judgement?

O.C.G.A. § 9-11-56

(e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties.

3) What about this person who signed the affidavit? Who the heck is she besides an employee of theirs? Her signature was "notorized" by a notary in British Columbia. No seal, nothing.

Anyway, that's it for now. Keep in mind there is no trial date (that we know of--DH will call clerk tomorrow) b/c they didnt show up, but we still have 20 days to answer.

Thanks for any advice, ideas, suggestions.

[Nikro]

Oops. I forgot:

1. Who is suing you? Assignee for Providian...though Providian claimed to not have any records when we called them---they said all had been turned over to who bought the account.

2. For how much? 1700.00 plus 1900.00 interest plus court fees, etc

3. Who is the original creditor? Providian

4. How do you know you are being sued? Received a summons

5. How were you served? Were you served? Served by sherrif at home

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

7. Where do you live? GA

8. When is the last time you paid on this account?

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).Need to call tomorrow since the other party did not show to the calendar call.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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? Already replied to summons, no interrogatory.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Summons attached with a cc agreement which was printed after the alledged account was closed.

14. What is the SOL on the debt? To find out: 4 years