Wells Fargo-- Summary Judgement. Help

[cgerald]

I was sued by Wells fargo on my equity Line / felxability Account (2nd mortgage). while i was negotiation for a modified payment.

1. filed a motion to dismiss complaint for failure to state the cause. (motion denied)

2. I filed my answer jsut after the motion was dismissed (around 45 days).

3. Plaintiff filed Motion for summary judgement for failure to answer with affidavit.(did not send me copy)

4. I filed to dismiss summary judgement stating I did not get a copy and afffidavit is not an evidence. Also filed a request for admission

5. During MSJ I told the judge that the plaintiff has not proven all the elements of breach of contract and a affidavit cannot be accepted as an evidence.

Judge told me that he will decide on this case later. after 2 days He had granted the summary judgement.

The palintiff requested SJ on the grounds of Failure to answer. But teh judge gave summary judgement stating "Based on the arguements and evidences produced".

Things I did not do:

1. file a seperate motion to strike the evidence.

2. have a court recorder.

I am planning to Appeal.. ANy advices?

[cgerald]

The plaintiff collected Fi.Fa... will my motion to set aside Judgement stop the garnishment process or should i file a Notice of Appeal???.

If I file the Notice of Appeal.. wont the Judge deny my motion to set aside automatically..

Any suggestions.. I have to move quick on this..

[cgerald]

Can someone suggest me something????

[daybyday]

Have you searched any case law on lexione? You may be able to attack the MSJ itself. In Missouri case law see;

CITIBANK vs. DANNY H. WHITELEY 149 S.W.3d 599; 2004 Mo. App. LEXIS 1809

Very simple case and was verified again recently with:

U.S. Bank v. Lewis, 2010 Mo. App. LEXIS 1422 (Mo. Ct. App., Oct. 20, 2010)

On appeal you may be able to Vacate the Judgement.

I. Essential Tools for responding to a summary judgment motion

• Missouri Rule of Civil Procedure 74.04

• ITT Commercial Finance Corp. v. Mid‐America Marine Supply Corp., 854 S.W.2d 371

(Mo. banc 1993)

• Daugherty v. City of Maryland Heights, 231 S.W. 814 (Mo. banc 2007)

• MAI 31.24, and notes on use

II. Rule 74.04

Rule 74.04 provides the framework for summary judgment motions in Missouri.

Space Planners Architects, Inc. v. Frontier Town‐Missouri, Inc., 107 S.W.3d 398, 405

(Mo. App. 2003)(compliance with Rule 74.04 cannot be waived)

A. Filing

Moving party must file:

• motion summarily stating the legal basis for the motion

• statement of uncontroverted material facts – separate paragraphs, with

specific references to record. Including multiple facts in a single paragraph

is grounds for denial of motion Siemens Bldg. Technologies, Inc. v. St. John’s

Regional Medical Center, 124 S.W.3d 3, 9 (Mo. App. 2004).

• separate legal memorandum explaining why summary judgment should

be granted

C--1

Page 2 of 4

Defending party must file response admitting or denying moving party’s facts,

with support in the record. Failure to properly deny one of the paragraphs in a

statement of uncontroverted material facts is deemed an admission. Chopin v.

American Automobile a$$’n of Missouri, 969 S.W.2d 248, 250 (Mo. App. 1998).

Defending party may file:

• additional facts remaining in dispute

• legal memorandum

Replies and surreplies where needed.

B. Timing

Defending party has 30 days to respond; moving party has 15 days to file reply;

defending party has 15 days for sur‐reply.

C. New rule as of July 1, 2008

The statements of material facts must be served in electronic form

*

[Guest usctrojanalum]

I mean there is nothing you can really do a judge decided the case on the merits after a hearing and you lost? If you want to appeal that is fine, but tbh you are not likely to win on an appeal and they can be pretty costly. There is really no advice to give except read up on your the Federal and State exemptions you have and try to protect your assets as best you can.