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Trying to fight a “granted” judgment against me. . . do I have a case?


Lod
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Hello everyone! New to this whole process and hoping with all your vast knowledge someone can help me.

A summary judgment was recently granted against me (1/23/08) on a Capital One cc debt in the amount of $2,222.57. I used info found on this site to try and fight the action. In my response to the Motion for Summary Judgment, I stated that the SOL in this case was expired (Utah-4yrs). Also, that I did not live in the county that the lawsuit was filed in. R. Bradley Neff, attorney for Capital One, argued that since I signed a cc application, the 6 yr SOL applied (citing UT Code §78-12-23. . .upon an instrument in writing), and they filed seven days prior to the 6 yr mark (05/24/07). As far as the venue, said my (mailing) address proved that venue was correct. I live in a rural area, a mile past the county line, in the next county (Uintah not Duchesne). On all documents it states “in and for Duchesne County”.

When I received notice that the summary judgment was granted I contacted the court. I asked the clerk if the judgment was valid since I didn’t live in Duchesne County and was told that she would put the matter before the judge. Was later told the judge said that I needed to file a motion. Searching and reading everything I could, I put together several motions. Before filing I consulted a friend of a friend who owns a CA. He and his in-house lawyer told me the following: 1) Signing the cc application did make it written and the 6 yr SOL does apply. 2) The venue was not a big deal. The attorney for the cc company would simply have to file a motion to change the venue and that would be that. The new venue (Uintah) would be reflected with the original date the motion for judgment was filed.

They then told me that if I filed a motion on the above grounds it wouldn’t change a thing. Only add additional legal fees that in the end I would have to pay. After a few hours of feeling defeated, I decided that they had no intention of giving me useful information (. . .birds of a feather and all that - DUH).

Facts of case: DOLA on cc debt was 5/31/2001. They filed on 5/24/07. Summary Judgment was granted on 1/23/08.

Facts I am trying to use: 1) FDCPA violation - § 811(a)(2) Legal Actions by Debt Collectors and 2) SOL – citing UT Code §78-12-25, …within 4 yrs [also on an open account for goods, wares, and merchandise] and TILA Title 15 > Chapter 41 > Subchapter 1 > Part A > §1602(i) – Definitions and rules of construction.

Am I in the right???? If so, I’m TOTALLY confused about what motions to file, (Set Aside Judgment and Request Hearing, Stay Execution of Judgment or Order, Motion to dismiss or Vacate Judgment). Also, does it make any difference if the address on the summons in which to serve me was an address, unknown to me, a couple of miles away? I live in a small town and the uniformed police officer asked around and got my general location, then proceeded to go door to door until he found me.

Any help in this matter would be GREATLY APPRECIATED!!

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Did they have a witness?

Did you deny the debt? (at least until you can review the original signings, not a mere copy?) If not, that's why you got handed sumary judgment when the attorney blew up the SOL defense.

STATMENTS OF COUNSEL IN BRIEF OR ORAL ARGUMENT ARE NOT SUFFICIENT FOR SUMMARY JUDGMENT.

Many judges tend to ignore (Trinsey vs. Pagliaro), a US Supreme court case that applies to every case civil and criminal, in the constant grind of daily procedure in their court. They want to dispose of cases to get to the golf course, and not worry about hassling Supreme Court decisions. Pro Se' litigants need to constantly remind judges of this.

I reccomend you get a lawyer to vacate on grounds the other side lacked a proper witness and the judge's decision and judgment should be vacated as void, as a result.

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They had an affidavit from someone at Capital One, but the only evidence presented were photo copies. No originals or notarized copies.

In a letter accompanying my summons I denied the debt, but all communications after that focused solely on the SOL and venue issues.

I think you're right about needing a lawyer. All of this is so far over my head!! Trying now to find an attorney who is a debt collection defense specialist.

Thank you for your help!

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AFFIDAVIT........just because they filed an affidavit does not make it true...judges are bad about not paying attention to the fact that AFFIDAVITS have to be backed up by FACTS, the act of filing of an affidavit does not make it true.

Make them prove the affidavit.

What did the affidavit say?

That is what happened to me while on active duty. The ca file an affidavit of non military service. But they did not have FACTS to back it up. But I have FACTS to back up my counter claim and it is a FEDERAL DOCUMENT... my orders.

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AFFIDAVIT........just because they filed an affidavit does not make it true...judges are bad about not paying attention to the fact that AFFIDAVITS have to be backed up by FACTS, the act of filing of an affidavit does not make it true.

Make them prove the affidavit.

What did the affidavit say?

Both by a Capital One representative in Georgia.

First Affidavit, attached to summons, (5/24/07). Simply stated that to the best of the affiant's knowledge I owed Capital one $1,814.98.

Second Affidavit, attached to motion for summary judgment, (10/8/07). 1) by virtue of my position with Plaintiff, I have access to and personal knowledge of all relevant financial information and documents regarding the Defendant's account with the Plaintiff. All attached documents and reports (photo copies) were prepared and maintained in the regular course of business. [Exhibit A - credit application, Exhibit B - credit card statements.]

Then in Dec 07 in a memorandum by the Plaintiff's attorney (no affidavit), adds an exhibit - customer agreement.

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