MTD dismissed by Judge - what next

[requester123]

My MTD was denied by a judge on a pre=printed form prepared by the Plaintiff's lawyer, Dan Greene (Fred Hanna). I don't understand why as this Plaintiff refused to provide statements, validate accounts or even answer/provide information I requested thru discovery stage...CAN'T Understand...this is what I had sent in

These were the same people I filed Request For Admission & they still won't provide anything & responded to wrong case# and lied throughout; 've left several phone messages & they blew me off wt no response. So I thought I'll just file for MTD...I'm not sure if I'm breaking Forum Rules here but this is my rough draft

R DISMISSAL

Comes now the Defendant Novice Defender, files this Request for Dismissal of Plaintiff’s Complaint, for the following reasons:

a) Plaintiff’s failed to state a claim upon which relief can be granted and no genuine issue of fact exists, as authorized by Federal Rule of Civil Procedure 12((6) and pursuant to OCGA § 9-11-12 ( (6).

Plaintiff did not provide a contract and agreement at Defendant’s request violating the Federal Truth-in-Lending Act, 12 C.F.R, 225.5-225.16 , 15 U.S.C §1601,§1637.

c) Plaintiff failed to provide into evidence validated, verified and authenticated billing statements with itemization from zero balance that links the Defendant to the alleged debt.

d) Defendant believes Plaintiff did not attach along with Plaintiff’s Complaint an authentic notarized evidence by a person with original knowledge of the alleged debt as it was constituted. There have been several misleading instances where affidavits are purported to be made on personal knowledge but in fact are based on reading a computer screen. See following cases:

I. Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 Tex.App. LEXIS' 7096 (2nd Dist. Ft. Worth Aug. 31, 2007).

e) The affiant writing the AFFIDAVIT OF DEBT (Exhibit A) that was produced by the Plaintiff does not explain how the business records came into her possession.

f) The affiat writing the AFFIDAVIT OF DEBT (Exhibit A) that was produced by the Plaintiff does not claim to have personal knowledge of how business records were kept at the original creditor.

g) The affiant writing the AFFIDAVIT OF DEBT (Exhibit A) that was produced by the Plaintiff does not claim to have personal knowledge of the sale or assignment of the debt from the original creditor to Polymer Larry Associates Ltd.(Exhibit and NCO Financial Services, Inc.(Exhibit C).

h) At no time was the creator of the Affidavits, or any of Plaintiffs employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and ACCUSRR Card Services.

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

j) Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some other person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.

k) Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement.

INTRODUCTION

Plaintiff, ACCUSRR Card Services, N.A. commenced this action on Feb XX, 2010 against the Defendant, Novice Defender seeking to recover an alleged debt in the sum of $xx,xxx.xx, cost expended per Plaintiff’s Complaint, relief to which the Plaintiff may appear entitled. Defendant move for dismissal in the above referred complaint.

ARGUMENT

Defendant’s motion begins with the alleged written instrument Plaintiff claims to base its complaint on, then addresses documents or lack of pertinent information Plaintiff produced through Defendant’s discovery request.

The plaintiff must expressly show his “title” to whatever relief is requested. I.e., the plaintiff must show that it’s possible for him to prove a “set of facts” in court that proves he has “title” to the relief requested.

If this alleged relief is equitable, the plaintiff must show that he could possibly prove a set of facts that proved he had EQUITABLE TITLE to the “relief” (benefit) requested. This, in turn, implies that the plaintiff must allege 1) facts sufficient to prove the existence of a fiduciary relationship between himself and the defendant wherein he is the beneficiary and the defendant is the fiduciary; and 2) a breach by the defendant of his/her fiduciary obligations relative to the plaintiff.

Pursuant to Federal and state regulations governing the issuance, billing and collection of credit cards, credit cards are governed by contract law which is enforceable in a court of law. Agreement is said to be reached when an offer capable of immediate acceptance is met with a “mirror image”. Contract law is based on pacta sunt servada where contract is recognized by the law and remedies can be provided. The Plaintiff seeks remedies for an alleged debt but the Plaintiff fails to provide contract and agreement that links the Defendant to the alleged debt. The Plaintiff fails to provide an agreement between the Plaintiff and Defendant that bears the signature of the Defendant. The Plaintiff fails to provide into evidence such pertinent documents as the contract or agreement along with validated, verified and authenticated billing statements with itemization from zero balance that links the Defendant to the alleged debt.

Furthermore, within the Plaintiff’s original Complaint filing, the Plaintiff failed to attach a notarized evidence by a person with original knowledge of the alleged debt as it was constituted, and who can testify or be so interrogated in a deposition that the alleged debt was incurred legally. Defendant believes Plaintiff did not attach along with Plaintiff’s Complaint an authentic notarized evidence by a person with original knowledge of the alleged debt as it was constituted.

During Plaintiff’s Response to Defendant’s Request for Admissions, the Plaintiff responded to a different Case#. This mistake may be excusable in some court of law by a lenient judge via a claim of excusable negligence by the Plaintiff HOWEVER if this same Plaintiff puts the wrong case number down and puts incorrect facts down, I would suspect this to be inexcusable negligence. The Defendant has used due diligence to contact the Plaintiff’s attorneys but they were nonresponsive -

First attempt – 7/28/2010 at 10.00 am. I was repeatedly redirected from receptionist to an automated voice message option selector.

Second attempt – 7/29/2010 @ 11.01 am: I left voice message for Debt Collector Lawyer 1 ,attorney for Plaintiff informing of a possible problem with response to case#s10c-XXX-XXXXXXX and XXX-XXXXXXX

Third attempt – 7/29/2010 @ 11.15am: I left voice message for Debt Collector Lawyer 2, attorney for Plaintiff informing of a possible problem with response to case#s10c-XXX-XXXXXXX and XXX-XXXXXXX

Fourth attempt – 7/30/2010 at 10.40 am. I was repeatedly redirected from receptionist to an automated voice message option selector.

The Plaintiff provided inaccurate response and inaccurate facts to Defendant’s Request for Admission of Case#XXX-XXXXXXX on xx/xx/xx by addressing it to the wrong case # XXX-XXXXXXX in Plaintiff’s Response to Defendant’s Request for Admission on xx/xx/xx:

-Denied that Plaintiff has not provided Defendant with account numbers and pertinent information of the alleged debt (Defendant was never provided)

-Denied that Plaintiff has not provided Defendant, at Defendant’s request, the alleged credit card contract upon which Plaintiff’s Complaint is based (Defendant was never provided).

-Plaintiff has not provided Defendant within Plaintiff’s Complaint a notarized evidence by a person with original knowledge of the alleged debt as it was constituted, and who can testify or be so interrogated in a deposition that the alleged debt was incurred legally (Defendant was never provided. Please review Plaintiff’s Original Complaint Filing).

-Denied that Plaintiff has not complied with the disclosure requirements, the exact format and content of disclosures that are required with every credit card application compliant to §1637 of the Act and implementing regulation found at 12 C.F,R, 225.5-225.16 (the Plaintiff has violated this by not providing the basic statement information Defendant is requesting).

- Denied that Plaintiff has not complied with the disclosure requirements that defines the exact manner and timing of such disclosures irregardless of the manner by which the credit card offer was made, whether in print, by telephone, or electronically via the internet 15 U.S.C. §1637§(1)-(7). Additional disclosures are required in monthly statements, 12 C.F.R. 226.7, when certain terms of the account agreement are changed, 12 C.F.R. 226.9, and before the card renewable date, 12 C.F.R. 226.9(e) (the Plaintiff has violated this by not providing the basic statement information Defendant is requesting).

-Denied that Plaintiff received request from Defendant to validate alleged debt however the Plaintiff has not provided any information linking the defendant to the alleged debt (Defendant was never provided and this is in violation of the FDCPA regulation).

Defendant, Defender, respectfully submits that the Court should dismiss the Plaintiff's complaint with prejudice.

Edited September 22, 2010 by admin
edited for readability

[FL4answer58]

It may have been in the timing…

What was the Plaintiffs objections to your MTD, or did Fred Hanna refuse to supply that as well.

What was the judges reasons - no opinion, just order?

Judge agreed with what ever they said.

[colormeruby]

I would almost bet this is a nidland case, huh? The connections these people have among each other is disgusting. FH literally filed 63 cases in one day this past month in one county. They all disgust me. Good luck fighting him. Clearly he is part of the good ol' boy system. I believe that the local govt should put out a FREE book for pro se litigants with forms and examples to clear up confusion. Otherwise it just appears they are all on a team against you. You should check out the article I posted in the case law section of this forum about motions. Maybe it will help you understand the basics.

One day, my dream will be to rid the world of these bottom feeders.

[requester123]

The objection the plaintiff had was that they (FIA Card Service) were the original creditor even though they never once confirmed this through my discovery and they were never able to present any billing or statements to show they were OC. They also largely claimed they don't need to show me anything according to Georgia Law for Open Account and only a short plain statement of claim is required OCGA 5-7-4 (a)(2). They also claimed largely they don't need to validate my debt!!! HOW CAN THIS BE?

It almost seemed the Judge didn't even read my MOTION! I am thinking maybe I didn't support my arguments with all Georgia Laws.... I don't understand this.

There was no reason from the Judge -- he just signed over the form that had been prepared by the plaintiff. I presume this will now go onto Trial...I don't know that this is fair and I think something is very wrong here....how do I continue to fight?

[admin]

I'm thinking that you placed too much emphasis on whether or not the Plaintiff was the OC or not.

In addition,

Plaintiff’s failed to state a claim upon which relief can be granted and no genuine issue of fact exists, as authorized by Federal Rule of Civil Procedure 12((6) and pursuant to OCGA § 9-11-12 ( (6).

Is not actually applicable here. Account stated is good enough for basis of claim. Also:

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

j) Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some other person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.

k) Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement.

If you concentrate only on the bogus affidavit, it might go better for you.

[FL4answer58]

I'm thinking that you placed too much emphasis on whether or not the Plaintiff was the OC or not.

In addition,

Is not actually applicable here. Account stated is good enough for basis of claim. Also:

If you concentrate only on the bogus affidavit, it might go better for you.

The OP need only correct and amend his affirmative defenses to include these you stated (and others applicable). This will stop the coming SJ and if the OP strikes first [notice or motion] require the Plaintiff to provide evidence of the 'material facts' on a more substantial level.

A party in a claim may object to evidence not supported by material fact to have them stricken.

Motion to strike - now a MTD has more 'bite'.

[requester123]

I don't have a great legal mind like you all do. I am more confused by your comments...can you please explain in plain language what all these previous comments mean....Wasn't i making any sense wt my MTD & if not, how can i continue to fight this situation which i believe is completly unfair by the judge....simply what do i do next?

[colormeruby]

One point I think they are all trying to make is that a motion to strike the affidavit is in order NOW and should have been done before the MTD. And perhaps a Motion for Summary Judgment would have been more appropriate. please read

http://docs.google.com/viewer?a=v&q=cache:E5WElXk98lgJ:www.skedsvoldwhite.com/new/docs/Topic%252013%2520-%2520Motions.pdf+skedsvold+%26+white+motion+practice+in+GA&hl=en&gl=us&pid=bl&srcid=ADGEEShYnVt44J1Ecfda-2SyQlgKFr6llv538ayLkjJlLtD5XgJ4HWkzxAUYomLCDkESC77ffLDhyDdeGFFu5Uan1cWsmYqWJ9zUPXvnitzbj7QIJ5uea8oSFuOEnfUCuHlAMRiNanY8&sig=AHIEtbQL2I3yMUzUoXKDTF5nLwwZZT4B5w

While this is for GA, and it does explain how the motions work and should be a starting place, only, for understanding how to use them. Most of us here are still learning, and it is confusing. I know a lot of what you are trying to learn sounds like greek, but just keep reading and it will start to make sense. Keep fighting.

[FL4answer58]

One point I think they are all trying to make is that a motion to strike the affidavit is in order NOW and should have been done before the MTD. And perhaps a Motion for Summary Judgment would have been more appropriate. please read

Thank you colormeruby

My effort TMI - hard to digest when a simple suggestion would have been best.

I can't help to think, when I was new - I wished just one individual would expound in more detail instead of what I thought was code.

I now understand them as definitions, and they have excelled my education.

Edited September 22, 2010 by FL4answer58

[requester123]

Do I file a Motion To Strike now or a Motion Summary Judgement or do I just sit and wait until the Plaintiff tries to file for SJ at which point I will object because there's material fact in dispute and Plaintiff never provided me any material fact to prove its case during discovery...I just need a guideline on what i should be doing right now as I don't know what strategy the Plaintiff and the judge have up their sleeves. Thanks

[colormeruby]

Of course you should file the motion to strike now. the MSJ is up to you I guess and what kind of hand you want to play. but the MTS NOW.

[FL4answer58]

Of course you should file the motion to strike now. the MSJ is up to you I guess and what kind of hand you want to play. but the MTS NOW.

Yes motion strike - everything you can -

read, read and re-READ everything here and everywhere you can on how - whats required - to stike.

Admin - "concentrate on the bogus affidavit"

A key - inadmissable, hearsay and material fact.

Edited September 22, 2010 by FL4answer58

[medicbone]

You say they didn't respond to your discovery...did you file a motion to compel? Motion for sanctions?

[requester123]

I didn't file a Motion to Compel, I just filed Admission of Facts which they replied to addressing it to wrong case # and lying in the Admission of Facts that they've provided me verified & authenticated statements, contract, etc.-they never did!

Guys, please forgive me if I sound stupid and a little slow. I am just trying to follow the sequence of comments. Would my filing a MTS now not be a moot point to this hostile Judge because I now understand I should have filed this before the MTS according to previous comments?

Would my MTS concentrate on evidence that was never presented to me, authenticated statements that was never provided me - I had mentioned these several times in my MTD and won't this anger the judge the more...what then would my basis to file MTS be if i don't state these obvious reasons

Thanks

[FL4answer58]

I didn't file a Motion to Compel, I just filed Admission of Facts which they replied to addressing it to wrong case # and lying in the Admission of Facts that they've provided me verified & authenticated statements, contract, etc.-they never did!

Would my MTS concentrate on evidence that was never presented to me, authenticated statements that was never provided me -

First:

You don't sound stupid and or slow. I am a slow learner and must read everything twice and often get my first assumption wrong. I don't absorb the info as quick as others. The kind people here correct my direction to all 'four corners' of the doctrine. I do my homework as prescribed until I 'get it'.

Yes - Concentrate on evidence - EXAMPLE and form to the 'elements' of an argument.

---------------------------------

5. Additionally plaintiff makes allegations in its complaint that conflict with the

documents attached thereto as to who owned the [assignment, who has jurisdition, lacks proof, etc]..

6. When exhibits are inconsistent with the plaintiff ’s allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp.,

441 So. 2d 1114 (Fla. 3rd DCA 1983).

7. Florida Rule of Civil Procedure 1.130( provides in pertinent part: “Any exhibit attached to a pleading shall be considered a part thereof for all purposes.” Because the facts revealed by Plaintiff ’s exhibit are inconsistent with Plaintiff ’s allegations as to its ownership of the subject [assignment], those allegations are neutralized and Plaintiff ’s complaint

is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983).

8. Florida Rule of Civil Procedure 1.210(a) provides in pertinent part:“Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.”

9. The Plaintiff in this action meets none of those criteria. Because the exhibit

attached to Plaintiff ’s complaint is inconsistent with Plaintiff ’s allegations as to ownership of the subject [assignment], Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action.

-----------------------------------------

Again - Just an example of the lead in and 'elements' to support your argument - while this example noted above was in fact on a motion to vacate - a motion to dismiss has many of the same 'elements'

You strike evidence using elements of law, Georgia RCPs and cite case examples to support your argument (like hearsay, etc)....judge will not get angry – the court expects this - it’s your right of due process.

Edited September 23, 2010 by FL4answer58

[admin]

Do I file a Motion To Strike now or a Motion Summary Judgement or do I just sit and wait until the Plaintiff tries to file for SJ at which point I will object because there's material fact in dispute and Plaintiff never provided me any material fact to prove its case during discovery...I just need a guideline on what i should be doing right now as I don't know what strategy the Plaintiff and the judge have up their sleeves. Thanks

You need to also read your rules of civil procedure for your court. The people here on this board do not know the answers to your questions. The timing and the type of document to file vary state to state and sometimes county to county.

[requester123]

Thanks guys....I have some direction to start working on with your recent comments. Does any one out there know the best place or url to pull Georgia cases so i can reference them when i am building my case.

[FL4answer58]

Thanks guys....I have some direction to start working on with your recent comments. Does any one out there know the best place or url to pull Georgia cases so i can reference them when i am building my case.

Search pull down menu - enter PACER or LEX, read what others do, these will help.

I think there is a step-by-step guide to PACER here, if not

use this one --> http://www.debtorboards.com/index.php/topic,5783.msg58676.html#msg58676

I can send you a complete list of the ones I use.

If you'd like, I will PM you.

Edited September 23, 2010 by FL4answer58

[admin]

I can send you a complete list of the ones I use.

If you'd like, I will PM you.

Can you post them here so all will benefit?

[FL4answer58]

Can you post them here so all will benefit?

As promised -

'FL4answer58' short list of case law search engines. ENJOY !

Pacer

Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts, and the PACER Case Locator via the Internet. PACER is provided by the federal Judiciary in keeping with its commitment to providing public access to court information via a centralized service.

For other interested parties, take a look at:

Top Page:

http://pacer.psc.uscourts.gov/

Register:

http://pacer.psc.uscourts.gov/register.html

------------------------------------------

JUSTIA

You can search by the Judge's name in your case and read previous opinions. You need a PACER account to access the documents. PACER itself provides no mechanism to search for a Judge;

www.justia.com … Justia itself is free!

-----------------------------------------

PLOL

The Public Library of Law -- to make it easy to find the law online. PLoL is one of the largest free law libraries in the world, because we assemble law available for free scattered across many different sites -- all in one place. PLoL is the best starting place to find law on the Web.

http://www.plol.org/Pages/Search.aspx

------------------------------------------

BOOK: NCLC Consumer Law Pleadings

Consumer Law Pleadings Website and Index Guide, 2009 Edition

Order NCLC Consimer law pleadings index. $120. Gives you access to over 1900 actual pleadings online. The research for every posssible subject is there.

https://shop.consumerlaw.org/index.asp?PageAction=VIEWPROD&ProdID=16

If you need state court case law...the annotated statues have all published case law.

-----------------------------------

Findlaw.com

FindLaw's Cases and Codes section contains resources and links for both state and federal laws. This includes resources pertaining to constitutions, statutes, cases and more. Run a search for case summaries or select a jurisdiction to browse applicable laws.

http://www.findlaw.com/casecode/

---------------------------

Google Scholar

Legal Opinion and Journals

Link is here. http://scholar.google.com/

Article about scholar. http://googleblog.blogspot.com/2009/11/finding-laws-that-govern-us.html

----------------------------------

Cardholder Agreements

'LUEser's blog site for many cardholder agreements

downloads … teh402.blogspot.com

----------------------------------------

recapthelaw.org with PACER

Docs FREE if you use firefox and have the recap add on installed.

This is the link to recap if you need it:

https://www.recapthelaw.org/

--------------------------------------------

LexisOne some call it LexbyCC

Search Free Case Law, Search the last ten years of State & Federal Courts and U.S. Supreme Court from 1781 to present.

The down side of LexisOne is that you have to hone your searching skills... much like google it can be finicky. But at least it free LOL

http://www.lexisone.com/caselaw/freecaselaw

---------------------------------------------

Arbitration Laws

Also Justia BlogSearch Arbitration

http://blawgsearch.justia.com/tag/Arbitration-Law

And,

Arbitration Search LawMemo.com http://www.lawmemo.com/arb/

Despute Resolution & Arbitration Cases: http://caselaw.findlaw.com/summary/search?topic=cs_24

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ADD YOURS

Edited September 24, 2010 by FL4answer58
sp

[honeybucket99]

To the OP

You filed the wrong motion. From what I gather you filed a 12((6) cluttered with extraneous arguments. Such a motion is examined by the court with all inferences in favor of the nonmovant; that is, is there any set of facts under the pleadings in which theh plaintiff can prove a claim? I have never seen a case kicked on this in all of my years of practice in Ga.

Is the plaintiff the original creditor? If you say no, then bring a proper party motion. Cite Wirth v. Cach and, if the plaintiff does not amend the pleadings to attach a proper assignment, you just may get the case dismissed without prejudice--this would not be on the merits. Good luck