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1st suit petition, now citation for judgement, what next


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Back in July, 08 I was served a petition in suit of open account. At that time I went to county clerk and responded in writing, w/o sufficient know and demands proof. (this is with a lawyer with a cc). At that time I sent a letter of discovery to the attorney which is allowed in my state. I did send return and certified. I did it a second time. Neither time with no response. Now I just got served with a Citation Motion for Summary Judgement. I have to file pleadings in 10 days and then have a court date later. I do not believe I owe this money. Attached to the motion is a memorandum of support (legal stuff). Also attached is Affidavit of Debt and Verified Bill of Particulars. It says who the original creditor was (never heard of) and was sold to the CC. At bottom of letter it says this communication if from a debt collector. The final attachment is an account balance from the credit collection(Atlantic Credit & Finance), not original creditor, but only shows my name address, old business phone number, amount due and last pay date to creditor.(which in this July SOL is up).

How do I respond to the county clerk on this and I am sure I need to go to my court date in a couple of months, but what do I need to do or have then

Thanks for help

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I would file an objection to motion for summary judgment or a motion to dismiss summary judgment, depending on court procedure in your state.

You can restate what you said in your answer. Just because they file a motion does not mean it will be granted.

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They have already set a court date for me to be there, but have to do the response before then. Date is in 2 months and response in 10 days. Do I just answer the same as first time, don't admit or deny request info or let them know I sent letters for more information, but did not receive response from law firm.

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Help me. I went to the court house because I have ten days to respond to summary judgement (ends thursday) and have a court date in two months. When I went to the clerk of court she told me to just keep contacting the lawyer who filed judgement to get proof of account (even though have twice already w/o response) she said that wasn't enough. I told her my ten days is up thursday and she said it didn't matter because no judge would rule against me when I was trying to get proof. I am just leary about not answering summary in writing and just bringing to court date. Please help running out of time

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I would definitely file the motion before you go to court. It's good to have that in front of the judge when you go in. The other thing is that you can possibly get the judge to rule on your motion before your court date.

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I have ten days to respond to summary judgement

Respond to the MSJ in the time allowed. The judge could rule on the MSJ before the court date.

no judge would rule against me when I was trying to get proof

How would the judge know you are trying to get proof unless you respond to the MSJ?

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I thought I should file something, but the clerk just kept telling me to call the lawyer everyday to find out what it is and to get proof. She just didn't help with filing anything. I will get my response to citation motion for summary judgement done today and will post for any input and take it back to the clerk of court. Once again thank you for your response.

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Here is my response, I am looking for input.

Couple of questions:

1. is it too long and much

2. On dates to I recieved summons I used date of summary of judgement, but I had gotten a petition of suit on open account a few months further, should I have used that date instead and also after the petition I sent a letter to lawyer requesting documents and received not reponse, should that be in there somewhere.

Need help

thanks

Response to Citation For Summary Judgment

=============

IN THE SUPERIOR COURT OF THE STATE OF XXXXXX

IN AND FOR THE COUNTY OF XXXXXX

Case No.XXXXX

ABC, INc

Plaintiff

Vs.

John Doe

Defendant(s)

MOTION FOR DISMISSAL OF SUMMARY JUDGMENT

Comes now the Defendant, XXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment filed herein by Plaintiff, XXXXXXXXXXX, as follows:

1. Defendant received the Plaintiff's Summons on XXXXXXX. Defendant answered the request on tomorrow

2. Trial was set for XXXXXXX

3. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

4. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

5. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

6. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person

7. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant

8. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff

9. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits

10. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

11. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date

WHEREFORE, Defendant, XXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion for Summary Judgment, filed herein by National Check Bureau and prays for Dismissal of the complaint by the Plaintiff for damages of $XXXXX and any further relief this court deems just and proper.

Defendant's motion for dismissal of summary judgment submitted this day of XXXX. __________________

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It looks o.k., I am learning on this site there are significant differences in what is expected and how documents are filed from state to state and probably county to county. Make sure all the info you have in there is accurate. I would get this filed tomorrow than submit a Production of Documents. The lawyer has to respond otherwise you can ask the judge to dismiss based on him not following a court order.

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