MSJ...Please Help

[Bluesie]

I have been reading these boards but haven't seen my particular situation addressed.

At the end of 2009, Discover filed a lawsuit against me. They included an affidavit from DFS Services and one copy of a statement.

I read the court rules, answered the complaint, and sent them my own interrogatories and request for production of documents. All were sent by certified mail with return receipt requested. They sent me their requests for admissions, requests for production of documents, and interrogatories a couple of months after they filed the suit. I answered everything and sent them back to the attorney.

They have never responded to my interrogatories or request for production. Two weeks ago, the court sent out a Notice of Alternative Dispute Resolution which they say is mandatory. Still didn't hear anything from the attorney.

Today, I got a Motion for Summary Judgment in the mail. Attached were statements from 2003 and a cardmember agreement. This account was opened in 1999. Almost 4 years of statements are missing. No answers to my interrogatories or any acknowledgement that they had never responded to my requests.

Also, they included an Offer of Judgment. The attorney sent a letter with it that says that I can offer Discover the final amount on the debt and the attorney will waive the interest and attorney's fees. He also states that I can pay any amount I can afford every month and send the payments to him.

The Offer of Judgment is in legal form with the court header and states that I am offering an amount to Discover which SHALL accrue interest according to S.C. Code 34-31-20 (in the letter he stated he would waive the interest), and that I would waive any and all counterclaims, defenses, objections, and set-offs. All I have to do is sign it and send it back to him.

Also, the affidavit signed by the person from DFS Services was dated 11 months before the suit was filed. Maybe that's normal, but I find it strange.

His office typed that offer as if it were written by me. Is that legal? All of this has me very confused.

Edited September 9, 2010 by Bluesie
Forgot to include something

[BoscoMama]

I am starting to detest Discover Bank. You need to do searches for SC laws/civil procedure rules. See if the account has been sold to a JDB or if Discover still owns the account. When was the last time you paid?

Right now, find out how quickly you need to answer again. Then start working on attacking all they have sent to you.

Good luck. We are fighting Discover in FL.

[Bluesie]

Discover owns the debt, and it's within the SOL.

The Offer of Judgment has me confused. If I had made the offer myself, they would have 20 days to accept or reject it. But, since THEY typed it to make it look like I am making the offer, I don't know how long I have to sign it, if I agree to offer it to them. Does that even make sense?

[Bluesie]

I've already figured out how I'm going to attack the affidavit. The "account manager" stated that her duties and responsibilites allowed her access to the books and records of the account, that to the best of her knowledge and belief all payments, etc. were credited to the account, and I owe XXXX amount.

1. If she had access to the books and records, did she also have access to the statements from 1999 to 2003 (which were not included in the statements sent to me)? If so, why did I not get copies of those statements? What happened to them in the 11 months between the time she signed the affidavit and the date the suit was filed?

2. If the statements are not available, did the account manager actually see them? If she didn't, she cannot truthfully state that all payments were credited to the account.

Discover can't have it both ways. Either she saw the records, and therefore, they should be available for me to see, OR she didn't see them, and her statement in the affidavit was not truthful.

Therefore, provide the statements or strike the affidavit.

[Bluesie]

Does anyone have any suggestions about the fact they never responded to my interrogatories or requests for production (except for the statements included with the summary judgment)? Or about the Offer of Judgment that they created to appear that I am offering X amount to Discover Card?

[admin]

Did you send things to the lawyers or file your answers with the court. You need to file with the court.

[Bluesie]

Did you send things to the lawyers or file your answers with the court. You need to file with the court.

Oh, yes. I filed them with the court and sent everything to the attorney CMRRR. I have the signed green card and filed it with the court as Certificate of Service.

[KentWA]

Actually from what I am reading the SOL for Open Account in SC is 3 years, see SC Code 15-3-530. Attack this in many ways, first on the basis of SOL. Next depending on what you requested in interrogatories and request for production you can bar any and all evidence they want to bring forth. Since they did not produce the affidavit in discovery, they can not use it now. They will claim they did not receive them, so cut them off before hand on that and include it as an exhibit.

I would first file an objection to their MSJ. Then file your own MSJ.

[Bluesie]

Hi Kent,

The OC is the Plaintiff and it is within the SOL. They sent the affidavit with the complaint, but I'm attacking it based on the fact that the person who signed the affidavit claimed she had reviewed the records, yet they didn't send all the records (statements) to me.

My point is, if she reviewed all the records, why didn't I get them? OR did she really review all the records? If they are not available, then her statement in the affidavit is not truthful.

[KentWA]

You are missing the point on SOL. The only proof they provided is 2003, and the SOL is 3 years. That makes it SOL. Since they provided nothing else in discovery, they can not introduce new evidence.

[Bluesie]

I apologize. I meant to say in the first post that they provided statements from 2003 to 2008.

I'm sorry about that.

[BTO429]

Your next move would be to file a MOTION TO COMPEL DISCOVERY.

A motion is a request asking a judge to issue a ruling or order on a legal matter. A motion to compel discovery is filed when a party who has propounded discovery to either the opposing party or a third party and believes that the discovery responses are insufficient or have not been made. The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction the non-complying party for their failure to comply with the discovery requests.

In your case I would definitely ask for sanctions against them as the court sees fit.

Now the MSJ

In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case.

A party moving (applying) for summary judgment is attempting to eliminate its risk of losing at trial, and possibly avoid having to go through discovery, by demonstrating to the judge, by sworn statements and documentary evidence, that there are no material issues of fact remaining to be tried. If there's nothing for the jury to decide, then, the moving party asks rhetorically, why have a trial? The moving party will also attempt to persuade the court that the undisputed material facts require judgment to be entered in favor of the moving party. In many jurisdictions, a party moving for summary judgment takes the risk that, although the judge may agree there are no material issues of fact remaining for trial, the judge may also find that it is the non-moving party who is entitled to judgment as a matter of law.

In order to defeat a motion for summary judgment, the non-moving party only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence.

CA's do this all the time, they bank on the average person not knowing what and MSJ is or how to approach defeating it. They also hope that the average person will be scared of this order and simply quit fighting.

Edited September 12, 2010 by BTO429

[Bluesie]

Thank you. Motion to Compel it is, along with my objections to their motion for summary judgment.

[Bluesie]

I really need some help here.

I'm going to file a Motion to Compel Production of Documents and Answers to Interrogatories.

I'm also going to file Objections to Request for Summary Judgment. Here's what I'm not sure about:

They never responded to my Interrogatories and never formally responded to my Requests for Production of Documents (they sent statements along the with the Motion for Summary Judgment, but never actually responded to the Request for Production).

Should my Objections to Summary Judgment strictly focus on the fact that they did not respond to my Interrogatories and Request for Production, or should I also include other objections as well? Also in my Objections, should I include a statement that I'm filing a Motion to Compel?

Thank you.

[Bluesie]

I mentioned before that Discover never responded to my interrogatories or request for production of documents. I asked for all documents showing charges and payments to the account.

When they sent me a copy of the MSJ, they included the last 5 years of statements and a cardmember agreement. Is that considered an answer to Production? Or does the answer have to be a formal reply using a court header?

Does anyone have a sample of an Order to Compel Answers to Interrogatories and Production of Documents? I don't want a motion. I would like an Order for the judge to sign.

[FL4answer58]

Should my Objections to Summary Judgment strictly focus on the fact that they did not respond to my Interrogatories and Request for Production, or should I also include other objections as well? Also in my Objections, should I include a statement that I'm filing a Motion to Compel?

Then, 1st understand Summary Judgments. Plaintiff may have moved to SJ to stop your MTC Arb or just the usual boiler plate motion to get the court to 'rubber stamp’ a verdict.

A motion for summary judgment is generally filed with supporting evidence. In many state Small Claims Courts it doesn't take much evidence and in fact very little to file a SJ. They are gambling on a quick 'rubber stamp' verdict on SJ to avoid a costly and time consuming trial. This is why they have taken effort to 'slow' your requests for discovery, interogs and docs.

Take your mind off their attempt to burden you and focus on material facts they claim basis for MSJ. Some lawyers refer to this as 'slight of hand' pleading - against a Pro Se defendant - while your attention is drawn to 'misdirection' youv'e lost your case.

If that evidence includes a contract agreement, and for example the validity or interpretation of the agreement becomes part of summary judgment evidence, then ‘material facts exist with controversy’. [keep your eye on the ball, if you designate it be MTC Arb] When a contract agreement includes an Arbitration Clause that has not been established – thus controversy, no SJ.

Review your RCPs [on Summary Judgment]. Your RCP will read something like this - "the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy." See also, 'Case Not Fully Adjudicated on Motion'.

You can move to amend your answers or 'affirmative defenses'. Amendments to pleadings to defeat Summary Judgment are usually never too late! I will say it again - It is never too late to amend your complaint or another pleading in order to defeat a motion for summary judgment. [Many states are the same]. Check your RCP [Rules of Civil Procedure] Keep in mind this step important for any appeal or opportunity for appeal.

Appeals based on filing of motions are important. IF THE MOTION IS UNTIMELY. EVEN IF GRANTED, THE ORDER WILL BE REVERSED. IF DENIED MORE THAN 20 DAYS FROM NOW, THERE WILL BE NO WAY TO APPEAL BECAUSE THAT MOTION DID NOT EXTEND YOUR TIME TO APPEAL! Pay attention to the difference between deadlines for "service" and "filing" of pleadings.

The judge may not grant it on the day of SJ hearing, but your rules may allow up too and include the day before. Check your complaint before the hearing on a Plaintiffs motion for summary judgment, to see if there is affirmative defense you could have pled to the cause of action but did not. Did the JDB lawyer, for example, move for SJ on a Breach of Contract, you could avoid by pleading ‘Failure to Pursue Alternative Dispute Resolution’ or “Failure of Condition Precedent’, in your Reply.

There are a variety of ways to defeat and oppose an SJ, it all depends on your options and always rely on your RCP, they often point to the most effective way to avoid the SJ altogether. While this is a simplified answer to SJ, nothing is written in stone, except the RCP's

I do not recommend Arbitration as the end all beat all situation for consumer litigation in the Pro Se arena - on the contrary - I favor the courts in strategy and appeals. I merely use Arbitration as a tool to provide justice against judicial prejudices and abusive debt collectors like JDBs.

Edited September 19, 2010 by FL4answer58

[Bluesie]

Thank you, FL4. You've definitely given me some good food for thought. I'll be reading up on my state's RCPs for summary judgment.

[Savoir]

You said that the plaintiff's affidavit was dated 11 months prior to suit being filed .....

I just beat a MSJ due to the very fact that plaintiff's affidavit was untimely.... it was dated 15 days prior to suit being filed and my state says it has to be within 10 days.

[FL4answer58]

You said that the plaintiff's affidavit was dated 11 months prior to suit being filed .....

I just beat a MSJ due to the very fact that plaintiff's affidavit was untimely.... it was dated 15 days prior to suit being filed and my state says it has to be within 10 days.

Yep 10 days.....its to your advantage to pay attention to the difference between RCP deadlines for "service" and "filing" of pleadings as well ... different in each state.

Eaxample:

If the motion is UNTIMELY. EVEN IF GRANTED, The order will be REVERSED. [On appeals] If denied more than 20 days from now, there will be no way to appeal. BECAUSE THAT MOTION DID NOT EXTEND YOUR TIME TO APPEAL!

Same applies to your MSJ - your window may be 20 days.

Edited September 21, 2010 by FL4answer58