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Trying to help a friend with her case vs. Discover


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A friend is being sued by Discover by counsel. Suit was filed in October 2008, friend answered and denied the charges. Court date was set for December 1, friend requested a continuance and it was granted until Jan 12, 2009. During this time period friend filed Production of Documents and Admissions. Plaintiff responded indicating they did not have Original App with signature, they did not have any purchase agreements with her signature or any other proof that SHE was the one that was issued the card...oh they did send a bunch of monthly statements. Friend then files a MTD. Judge sets a hearing for MTD for Jan. 12, 2009 (same date as initial Summary hearing). She goes to court and the Plaintiff does not show, but there is a request for a MTC because "he just go the date for the MTD hearing only days before and he had a schedule conflict." in the file dated on the 9th Friday, court date was Mon Jan. 12. Judge had not looked at it yet. Friend asked judge to dismiss this case because the date of Jan. 12 was set back in November with her initial request for a continuance and 6 weeks was either plenty of time to arrange his schedule or he should have filed for a MTC sooner. Case was Dismissed with Prejudice.

Now, Plaintiff files for Correction of Error. We did notice that the dates the judge put in the order were off (judge stated that the original court date was set back in Oct., it was not, the case was filed in Oct.) but records in the file are accurate. Hearing set for this coming Monday. In the meantime, friend filed Response to Plaintiff's Motion to Correct Error and State of the Case and again asked the judge to not change his decision and not re-activate the case.

Any suggestions when she goes to court on Monday? I have told her to stick by the points that the Plaintiff FTA at his own case furthermore he has no proof this is her account. BTW, in the MTD hearing she did make a request that it be dismissed because Plaintiff could not produce the Original App with signature or any purchases with signature and he kind of shrugged it off. I also think she should ask to see documents showing he either purchases the debt or it has been assigned. (Unfortunately we did not ask that in the Admissions/Prod of Docs, earlier on) Reason, when this case was filed back in Oct. she was also being contacted by Zwicker and Assoc on this same account. I also think Discover was also still contacting her.

Brainstorming appreciated.

I would Appreciate any HELPFUL:comments ( I already have this peanut gallery pegged)8-), as I am the one that has helped her along the way and gone to court with her for support. She is really freaked out and I have to try to calm her down almost daily. How I wish I could sit next to her at the Defendant's table, but alas, I am not lawyer.

Thanks all

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First of all, good for your friend.

In order for us to answer - what did the Plaintiff say in their request for "Correction of Error" (I must say that's a new on on me)? I would think they would be filing an appeal.

I would stick with her original affirmative defenses, and see what the judge says. If they can't come up with documentation, I don't see why the case would be re-opened.

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the Plaintiff moves the court to "vacate its order dismissing this cause of action"

Basically he claims that since my friend filed for the motion to dismiss and it was file stamped on December 30, 2008 and making claim that court was "closed January 1-4 and January 10th and 11th(the weekend) that he was not given ample time to respond to the Motion to dismiss. Friends contention is that the court date for Summary Judgment was set for January 12 and this was done by the courts back in November, there was no change of court date only subject matter i.e. Summary Judgment changed to Mission to Dismiss hearing and since a hearing for the motion to dismiss was set for that same day, she showed to court. Friend feels that if plaintiff was unable to file a response then he still should have showed to court and asked for a continuation, he did not show up. Friend filed a Response to Plaintiff's Motion to Correct Error and it was entered into the file. She filed a Request for Continuance last week and we are waiting to see if that will happen.

Oh yeah, when we were in court on January 12, the Plaintiff had mailed in for a Motion to Continue that was dated Jan 9 stating a scheduling conflict??? So my contention is he DID have enough time to respond and oh yeah, my other contention is doesn't matter the subject matter of the court date, if he had a scheduling conflict then he should have known of that before Friday the 9th. This guy is just all over the place, he has a motion for continuance that was not granted stating scheduling conflict but then responds to the case being dismissed in his correction of error indicating he didn't have enough time to respond

Finally, the last paragraph in his MTCE states: "Wherefore, Plaintiff requests tht the court's entry be set aside, and that defendant's motion to dismiss, which should be treated as a motion for summary judgment, pursuant to Trial Rule 56, be heard by this court"....OK buddy you still did not show to court for YOUR case???

I too think she should stick with the issues I mentioned in my OP, but any other ideas from the gallery is appreciated.

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