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Lost Summary Judgment


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Was being sued by Portfolio. Original was Cap One. I did all work at the begining of the case on my own, answers, interogatories etc. When I got the MSJ case i consulted an attorney and had him write objections and appear in court. Portfolio had few statements and normal bs paperwork and affadavits all of which he opposed. The plaintiff attorney had several cases on the docket that day and judge was very cordial with plaintiff attorney. All cases that were heard were lost that day. There were a few attorneys, several pro se, and several no shows.

Now i am trying to weigh options on appealing. after research it appears most of these types are overturned on appeal. Attorney tells me the cost may be to much to appeal as original debt amount was around 1500 + attorneys fees

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Was being sued by Portfolio. Original was Cap One. I did all work at the begining of the case on my own, answers, interogatories etc. When I got the MSJ case i consulted an attorney and had him write objections and appear in court. Portfolio had few statements and normal bs paperwork and affadavits all of which he opposed. The plaintiff attorney had several cases on the docket that day and judge was very cordial with plaintiff attorney. All cases that were heard were lost that day. There were a few attorneys, several pro se, and several no shows.

Now i am trying to weigh options on appealing. after research it appears most of these types are overturned on appeal. Attorney tells me the cost may be to much to appeal as original debt amount was around 1500 + attorneys fees

Just curious, how did you answer their discovery? Did you send them requests for admissions? Not sure how you lose to a junk debt buyer, especially that scum Portfolio Recovery Associates.

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I answered with standard formats found on various websites. I asked for contract and all documentation. i also asked for proof they were able to collect, they gave me a generic bill of sale for a bulk of recievables but no proof that mine was included in that. They had an affadavit that the person knew the records. I thought we would have at least gotten past summary judgment to trial as there were material issues at dispute. I am trying to weigh settling with them now or appealing it. I want to appeal but not sure what lawyer will charge me to do it.

I did the same forms and documents that i did a few years back with LVNV and they dismissed on day before due to go to court.

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I answered with standard formats found on various websites. I asked for contract and all documentation. i also asked for proof they were able to collect, they gave me a generic bill of sale for a bulk of recievables but no proof that mine was included in that. They had an affadavit that the person knew the records. I thought we would have at least gotten past summary judgment to trial as there were material issues at dispute. I am trying to weigh settling with them now or appealing it. I want to appeal but not sure what lawyer will charge me to do it.

I did the same forms and documents that i did a few years back with LVNV and they dismissed on day before due to go to court.

Here's your problem

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I answered with standard formats found on various websites. I asked for contract and all documentation. i also asked for proof they were able to collect, they gave me a generic bill of sale for a bulk of recievables but no proof that mine was included in that. They had an affadavit that the person knew the records. I thought we would have at least gotten past summary judgment to trial as there were material issues at dispute. I am trying to weigh settling with them now or appealing it. I want to appeal but not sure what lawyer will charge me to do it.

I did the same forms and documents that i did a few years back with LVNV and they dismissed on day before due to go to court.

I know of no authority that would grant a jurist the power to grant judgment on a dispute where no authenticated evidence of a bill of sale was produced. That is one of the key aspects of a valid cause of action, ownership. Did you object to the "bill of sale?" Hell, original creditors struggle to prove authenticated ownership once securitization has been exposed. That judge had no authority to grant summary judgment and should vacate the bogus judgment upon your request.

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I answered with standard formats found on various websites. I asked for contract and all documentation. i also asked for proof they were able to collect, they gave me a generic bill of sale for a bulk of recievables but no proof that mine was included in that. They had an affadavit that the person knew the records. I thought we would have at least gotten past summary judgment to trial as there were material issues at dispute.

Did you submit on a timely basis a sworn denial to counteract their sworn affidavit? Sounds to me like you missed an important step in your defense. The sworn denial is an extremely powerful tool that eliminates the effect of the plaintiff's sworn affidavit on which the judge relied. As you have just found out the hard way, many creditors receive a judgment in court without providing a credible witness. When a sworn denial is filed the debt collection attorney cannot rely on their sworn affidavit of account and must produce a live witness which changes the entire dynamic of the case in your favor. I'm sorry to see yet another pro se bite the dust due to a critical oversight.

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Did you submit on a timely basis a sworn denial to counteract their sworn affidavit? Sounds to me like you missed an important step in your defense. The sworn denial is an extremely powerful tool that eliminates the effect of the plaintiff's sworn affidavit on which the judge relied. As you have just found out the hard way, many creditors receive a judgment in court without providing a credible witness. When a sworn denial is filed the debt collection attorney cannot rely on their sworn affidavit of account and must produce a live witness which changes the entire dynamic of the case in your favor. I'm sorry to see yet another pro se bite the dust due to a critical oversight.

Glad I filed mine with my answers!

I almost missed this step though, seems like a checklist for new folks might help.

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Did you submit on a timely basis a sworn denial to counteract their sworn affidavit? Sounds to me like you missed an important step in your defense. The sworn denial is an extremely powerful tool that eliminates the effect of the plaintiff's sworn affidavit on which the judge relied. As you have just found out the hard way, many creditors receive a judgment in court without providing a credible witness. When a sworn denial is filed the debt collection attorney cannot rely on their sworn affidavit of account and must produce a live witness which changes the entire dynamic of the case in your favor. I'm sorry to see yet another pro se bite the dust due to a critical oversight.

I haven't had to use the sworn denial, but am recommending it be used as another effective weapon.

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Glad I filed mine with my answers!

I almost missed this step though, seems like a checklist for new folks might help.

You're right, a checklist would be really great. When I first came here the beginning of August after being served I knew NOTHING about how to defend myself in a lawsuit. I'm so thankful for this site and the people who contribute to help others.

However, on the issue of submitting a sworn denial and the reasons for it I must give credit to a debt collection attorney named Michael Herrin who wrote an ebook on how to defend yourself in credit card lawsuits. I used Mr Herrin's graduated denial format word for word and it was critical in my defense on a case that was just recently dismissed when the plaintiff's bogus, rubber stamp affidavit was rendered useless. Best ten dollars I ever spent in my life!!!

http://debtcollectionlawyer.blogspot.com/

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I haven't had to use the sworn denial, but am recommending it be used as another effective weapon.

Glad a nube could be of service in your never ending pursuit of justice!

I credit a debt collection attorney named Michael Herrin for this critical bit of information. In spite of the glaring weaknesses of creditor lawsuits, many pro se litigants get crushed in court because of the rubber stamp affidavits turned out in the JDB factories that claim personal knowledge of the affair along with a "take my word for it, we own the rights to the debt" sworn statement. Bullpoop to that!!!

A graduated sworn denial from the defendant which has been notarized and properly served to all parties counteracts the only tool a JDB has to make a case without a signed contract (a phony sworn affidavit) and makes it a "he said, she said" situation that will require a live witness.

That is what I stated directly to the plaintiff attorney five minutes before trial. I said the affidavit is flawed and I'm going to seek a continuance so that we can get your affiant on the witness stand via the telephone. I've got some very important questions to ask this person under oath.

Case dismissed!!!

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Guest usctrojanalum
Disheartening.

I would definitely file for an appeal. You have nothing to lose.

If OP was in NY, you'd have about $250 in appeal filing fees, court reporter transcript fees, and any other fees I can't think of off the top of my head associated with the appeal process to lose.

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Ok great advice but does anyone have an example of this sworn denial or a link to one?

Should it be filed with a motion to strike?

I'm at this point right now. Plaintiff has filed for SJ based on an affidavit signed before the lawsuit was filed.

I keep getting "check your local court rules" however my local court rules aren't specific. They reference back to Ohio rules of civil proceedure which are pretty general.

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  • 2 weeks later...

That is what I stated directly to the plaintiff attorney five minutes before trial. I said the affidavit is flawed and I'm going to seek a continuance so that we can get your affiant on the witness stand via the telephone. I've got some very important questions to ask this person under oath.

Have you found a way at least in your state to subpoena the affidavit if in a different state. At least that is the issue I am running into from my AZ research.

Can someone testify at trial by phone? That is interesting if possible since otherwise I think you have to pay his/her travel costs.

You can pay big bucks for a local Court reporter in his city and go there for a disposition but can be expensive it seems.

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If they have no evidence--of course appeal it.

I am in a similar case in an Arizona Justice Court with all my extensive response, memorandum of law that was very extensive from tons of research Summary Judgment using all the arguments from here and many books still got Summary Judgment (was original creditor)

One attorney told me very unusual to get Maricopa Superior Court to reverse a Summary Judgment and if lose they will probably get very large attorney fees on top of the judgment.

Oddly on another case in the same Justice Court I got the affidavit tossed but I think it was done by a clerk not judge.

With all my arguments including 9th Circuit Appeals cases on point was amazed could lose on a Summary Judgment with so many legal issues raised as to validity.

I have filed Motion to reconsider and also exceptional new evidence argument based on the Robo form signing of the same bank on mortgages. Would be interested if any evidence they "robo-sign" on credit cards. At least I raised the issue.

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I know of no authority that would grant a jurist the power to grant judgment on a dispute where no authenticated evidence of a bill of sale was produced. That is one of the key aspects of a valid cause of action, ownership. Did you object to the "bill of sale?" Hell, original creditors struggle to prove authenticated ownership once securitization has been exposed. That judge had no authority to grant summary judgment and should vacate the bogus judgment upon your request.

Massive can you school me a little bit on what secritization is, and can that be applied to defaulted debts? Be Bless! S.A.

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Securitization is where a number of debts is budled up and sold as bonds in on "Wall Street". That's part of what the whole robo-signer mess is about in mortgage foreclosures, and I'm surprised judges aren't more skeptical of JDB affidavits as well, but I digress...

The issue is that if your credit card balance was securitized, now some trust owns the debt, and the credit card issuer was probably sloppy documenting the chain of ownership. This opens up the question of who has standing to bring suit, and an affirmative defense against suit.

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I agree with Dr Evil on both his points.

If you appeal the MSJ, the Court will look at it de novo, but you cannot add anything new to your appeal, the court will ignore it. Ask teh lawyer if maybe the judge misread some law or other significiant fact and maybe a motion to reargue or renew will work. And be cheaper than an appeal. Lots of times we have to school the judges.

I would say this: If what they submitted statements with your name adn address on it showing both charges and payments, you may be s-o-l

Massive's securtiization theory is interesting, but you bring it to a local judge for a $1500 case and you won't get the time of day, imo

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Massive can you school me a little bit on what secritization is, and can that be applied to defaulted debts? Be Bless! S.A.

Here's a link to a video explaining credit card securitization:

http://www.paymentsnews.com/2008/11/how-credit-card.html

Basically, what the banks did with the mortgages, they also did with the credit cards. Pooled them and sold them off to investors.

Which means, to me, that the banks suffered no loss when you stopped paying them. Any statement that they did incur a loss is a falsehood. If an alleged OC sues you they are not the real party in interest.

They are collecting money for another party, the real owner, the master trust. Which I think makes the OC subject to the FDCPA.

Yes, it's a novel argument. But that's how new law is made, by being creative and pushing the envelope. If you use this strategy, you will have to carefully document your argument, using the OC's own documents filed with the SEC.

Securitization explains the reckless lending behavior in both the mortage industry and the credit card industry. About 4 years ago I got a call from an credit card company, apparently using a call center in India, with the caller practically begging me to take a $6000 cash advance. I didn't take it, but this behavior has always left me baffled. If the banks were acting as if they had nothing to lose by lending money, it's because that was exactly the situation.

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Here's a link to a video explaining credit card securitization:

http://www.paymentsnews.com/2008/11/how-credit-card.html

Basically, what the banks did with the mortgages, they also did with the credit cards. Pooled them and sold them off to investors.

Which means, to me, that the banks suffered no loss when you stopped paying them. Any statement that they did incur a loss is a falsehood. If an alleged OC sues you they are not the real party in interest.

They are collecting money for another party, the real owner, the master trust. Which I think makes the OC subject to the FDCPA.

Yes, it's a novel argument. But that's how new law is made, by being creative and pushing the envelope. If you use this strategy, you will have to carefully document your argument, using the OC's own documents filed with the SEC.

Securitization explains the reckless lending behavior in both the mortage industry and the credit card industry. About 4 years ago I got a call from an credit card company, apparently using a call center in India, with the caller practically begging me to take a $6000 cash advance. I didn't take it, but this behavior has always left me baffled. If the banks were acting as if they had nothing to lose by lending money, it's because that was exactly the situation.

Thanks that was very helpful. One last question can a bank that has acquired another banks assets through a merger convert or securitize accounts that are in permanent default by changing account numbers re-aging and creating new credit history in other words can they make dead accounts look marketable then bundle them in with the legitimate ones. Be Bless! S.A.

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