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MSJ Denied


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I filed a msj in state court against cap 1 and the msj was denied. The msj was based off of the applicable law as well as SOL indicated in there customer agreement. What should be the next step to proceed in this case. I have a letter from cap 1 stating that the charge off date was 1/2002 why would judge not dismiss? Letter was included in the msj indicating the charge off date. I live in Ga and this is over 6 years.

I am confused. Any help is appreciated.

Thanks

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I don't mean to be negative about your case, but I see so many questions like this. I know that there is a lot of strong, credible advice available on these forums, but if I found myself in a courtroom, I would want a lawyer advising me. Not strangers on an internet forum.

Please don't take my comments personally. I just happened to pick your thread to post something that occurs to me every time I see a "what next" question regarding a pro se lawsuit. People go to school a very long time and study under the tutelage of bright minds, and read stuff written by even brighter minds to know "what next."

I wish you the best and hope you get the info you need.

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I have a letter from cap 1 stating that the charge off date was 1/2002 why would judge not dismiss?

No doubt the plaintiff has alleged somewhere, either directly or indirectly, that the SOL has not run on the account.

If that is the case, then the pleadings and other materials do not indicate that there are no questions of material fact. As such, the motion was rightfully denied.

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I'm not a lawyer, but, from what I've read you've got it backwards.

They file a motion for summary judgement...to which you reply with the SOL defense...and then their motion is dismssed with predjudice. The judge dismissed your motion because you don't really have a case against them.

You might want to see if there is a www.naca.net lawyer in your area that will help you understand.

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The document with the 2002 charge off date was what they submitted to me during discoveries. They also submitted old charge bill stating that I made a payment in 2003 which I did not. I am still lost of how the judge can over look a letter directly from the ca that clearly puts this account over 6 years.

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The SOL defense must be raised in the answer and has nothing to do with a summary judgment motion.

Once the complaint is filed and the answer is submitted - either party can file a motion for summary judgment. Now, if nothing has been filed except the complaint and answer, the motion is properly titled as a Motion for Judgment on the Pleadings. If any other filings have been made in addition to the complaint and answer, it will be titled a Motion for Summary Judgment.

If the pleadings and other materials show that there are no unresolved issues of material fact and only questions of law remain, then summary judgment is proper.

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A payment in 2003 would restart your statute of limitations period...

im confused.

I thought only if a payment that is made that brings the account current will restart the SOL...or is that just for credit reporting?

anyway, the CA has to prove you made a payment, ie: copy of the check, money order, or whatever....they cant just say you made a payment without any proof (well....they can....) but if they dont have any hard evidence of payment, I dont see that holding up...

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Once again I am confused. If OP has documentation that there was a charge off in 2002 and the Plaintiff has submitted an old charge bill for payment in 2003, how did the OC apply the funds to a closed account? OC would have had to reopen account to apply those funds. If the OC charged the account off and reported as a loss on their tax returns, it would be a "can of worms" for their accounting department.

Nascar wrote:

No doubt the plaintiff has alleged somewhere, either directly or indirectly, that the SOL has not run on the account.

If that is the case, then the pleadings and other materials do not indicate that there are no questions of material fact. As such, the motion was rightfully denied.

Nascar's thought process is logical and therefore I believe that you need to prove that the SOL has run and would raise some questions about the 2003 payment documentation that they have presented.

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The letter I received stated that the judge denied both msj because it was not bought about in the correct form. I am so lost. If I could afford an attorney I would get one but at this time I am unable. They have set up a non jury trial. No payments were made in 2003 and the letter from the ca was sent in April of this year.

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Once again I am confused. If OP has documentation that there was a charge off in 2002 and the Plaintiff has submitted an old charge bill for payment in 2003, how did the OC apply the funds to a closed account? OC would have had to reopen account to apply those funds. If the OC charged the account off and reported as a loss on their tax returns, it would be a "can of worms" for their accounting department.
"Charge off" is one of those phrases used in the credit business that doesn't mean what we think it means. Its only an accounting term the means "charge against accrued income for P&L purposes". It DOES NOT mean the OC no longer owns it, or that they will stop charging interest, or that they will stop trying to collect it. As far as the debtor is concerned, its a non-event.

On the other hand, if the account is listed on your reports "charged off / sold to another lender" and the balance is $0, then it has been sold. That's a whole different story.

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