tiredofthebs

What the Hell can I do

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I am being sued by a JBD. I filed a MSJ in which the judge has not ruled on yet. Today I received in the mail the JBD request for MSJ. The documents that were attached to their motion is completely falsified. When they responded to my MSJ they stated that the account was due on 3/2003 and that is when SOL started. I argued in my MSJ that it started on my last payment which was 1/2002 according to CR. Now in their MSJ they claim that I made a payment in 3/2003 which renewed the account and they sent me copies of all these statements with me ordering CD's and charging them to this account every month. The also had someone fill out an affadavit to verify that this is correct. I have never been so mad in my life because I can clearly see on the documents the difference in the typing that was used. They are lying and how can I answer? I would like to convey the dishonesty to the judge.

Thanks all

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This is just my opinion -- I think nascar can give you more specific legal advice.

This is personal to you. Take the personal out and you will do a better job of dealing with it. Mad never solved the problem.

I don't think you can attack this on the basis that they are lying. To do so you would need proof of the lie. My guess is that you don't have any such proof and, in my opinion, a copy of an old credit report is pretty weak as we all know CRs are full of errors.

You need to attack the affidavit on the basis of hearsay. The person who signed it needs to have intimate personal knowledge of your account. Does that person have intimate knowledge of these facts or are they puking up something from a computer file? If the latter, how to you know the file is accurate? What are their procedures for security, access, backups? Could any old person have changed data in their system? Could it be a mistake? Could it be fraud?

What I am trying to say is reframe the dispute. Calling them liars only results in them calling you a liar. Judges have a hard time dealing with that. But, you can make them dance long and hard to prove the factual accuracy of the affidavit. If they can do that, then they deserve to win.

My advice is to start thinking in those terms. You might take a look at www.nolo.com. They have some good reference sources of defending yourself in court.

Good luck.

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I just want to make the judge aware that these documents are fake. So I should do a brief in opposition making sure I point out everything as hearsay.

Here an example of one of the questions:

Defendant last payment was 1/2003

I am to say:

Plantiff stated in Opposition to Defendant MSJ account went into collections on 2/2003.

Something to that affect? They stated that the SOL was 2/2003

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First, you might get more help if you listed your location. I don't know where "N/A" is - somewhere east of L.A., I expect.

For the other side to pull an affidavit out at the last minute means that this whole thing got out of control real early.

Can you describe the timeline since you were served, in terms of what has happened - who did what, etc. If you filed a MSJ, there should not have been any questions of fact left. I think you jumped the gun and they're going to make you pay for your mistake.

With respect to the affidavit or evidence of payment or whatever it is they claim to have - you'll want to look at it in terms of creating doubt as to question of fact, not question of law. Unless you can establish that there is still unresolved questions of fact, the affidavit is going to stand.

Just how you're going to be able to do that depends on where you are and what you are allowed to submit at this point in the proceedings. Without knowing that, it's hard to help.

In some jurisdictions, you might get by with your own affidavit - in some, you won't. My first inclination is to get an extension of time to react to the newly presented evidence but, again, depending on where you are - you might not be able to do that either.

You need to give more info - or better yet, get an attorney - one who practices in the state of NA - to help argue against the motion.

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Sorry I am in Georgia

Time line

April 2008 summons filed

June 08 discoveries filed by plaintiff and defendant

July 08 defendant files MSJ based on SOL DOLP 12/01

Aug 08 plaintiff files MSJ stating DOLP 3/2003

Not true as I stated you can see the documents are fake but I need to know how to proceed from here.

If I could afford an attorney that is what I would have but currently I work for Burger King so you can imagine my take home pay for a family of 3.

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O.K., so it looks like you didn't extract the affidavit during discovery.

How was the issue of SOL addressed in the pleadings and discovery documents? Did anyone refer to it in any way or was it just brought up in the motions?

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Nascar,

I did address the SOL in discoveries. I did ask in the request for admissions if the account was over 3, 4, and 6 years from date of the last transaction. The plaintiff just objected to everything. I also asked them to provide names of the persons that will testify to the knowledge of this account but the response was that it violated attorney/client. In production of document they sent a copy of a customer agreement and nothing else. Then I filed the msj using the applicable law clause that was in Cap one agreement.

"This agreement is governed by Va and Federal law. Once again my DOLP was 12/01 but of course I don't have anything to prove that except the cr.

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There are several different ways for you to go - here's one -

1) Withdraw your Motion for Summary Judgment - as cause you can state that new evidence disclosed by p has rendered the motion premature.

2) Request a continuance - as grounds, you can state that despite your diligent efforts, you did not discover p's evidence (due to p's failure to disclose upon request) and you need time for additional discovery.

3) File a motion to compel - you asked for the names of parties who would testify and p did not comply - instead p attempted to use hidden witness testimony in MSJ

4) Submit a memo in opp to msj - there are still questions of material fact which exist so SJ is improper.

5) Re-open discovery.

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Do you have statements from the original creditor that the OC sent you? If not, can you get the statements directly from the OC? These will clearly show the forgery. As a backup, do you have copies of old credit reports from this time period that show when the last payment was made? They may also show the month to month balance. If no payment is reflected in the balance from month to month, that is an indication that no payments were being made. Ask for proof the payments were made, something like the check you wrote or mioney order. I think if you can show the different type style on the statements and they cannot provide a copy of the check, the judge may not believe them.

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