Lost on SJ with no evidence or hearing

[indigoesagain]

So just got a letter in the mail that court granted motion for SJ for Midland crooks. Bogus affidavit, no evidence they owned the debt or how they arrived at that figure.

Answered all motions on time. Still got SJ.

So lets see if anyone can figure out where we went wrong.

Plaintiff filed motion for SJ and included a Brief in support. In that brief were attached the bogus affidavit and a copy of account statement showing charge-off and acct. with 0 balance and a general "we bought a bunch of bad debt" letter..non specific.

I responded with my Objection to SJ and requested a motion to strike the Bill of Sale and Affidavit.

Plaintiff responded with a brief in opposition to defendants motion to strike saying my motion should be denied because (1) The motion is not authorized by rule Civ. R. 12(F). Filings can either be in the form of pleading or motion, by rule a pleading is a complaint, answer, reply to counterclaim (I didn't file a counterclaim).

Plaintiff's affidavit and bill of sale are not pleadings nor attached to pleadings they were attached to a motion. Since Civ R. 12(F) only applies to pleadings my motions is inappropriate.

(2) Second reason: unsupported by evidence or finding. My motion and allegations contain no facts supported by evidence.

So all of you out there going after these Midland crooks and their a$$hole lawyers beware and don't make my mistakes. Hopefully someone else here can fill in the gaps where I went wrong. I've got too much time invested in this already. :(

[indigoesagain]

The good news here is that I still have an ace in the hole. The only income is 100% disability.

I think we may have room to negotiate. Think it might be in my best interest to hire someone for that. Any suggestions?

[nascar]

The good news here is that I still have an ace in the hole. The only income is 100% disability.

I think we may have room to negotiate. Think it might be in my best interest to hire someone for that. Any suggestions?

Why negotiate with thieves? If your income is exempt and you have no attachable assets, tell them to pound sand.

As to your loss, over the years I've tried really hard to impress upon folks that simply denying that you don't owe the debt, and trying to strike evidence is rarely a winning combination. Now, I don't know if that's all you did here, but unsupported denials just don't cut it.

Again, I'm not familiar with your case, and you may have done all these things -- hopefully, at least a sworn affidavit in support of your denials.

If you believe your case is strong enough, perhaps you should consider appealing. With your DIB income, you should be able to avoid having to post a bond.

[calawyer]

Did you object to the affidavit on the ground that there was no foundation? If so, and if the affidavit was like some that I have seen, you may have a good appeal.

Summary judgment is a bear to respond to. Every Court has its own procedure and you must do your homework. What really helps is to go to the law library and find a "practice guide" for your jurisdiction. The guide will give you exemplars and tell you all of the documents you must file in opposition and when you must file them. Here is a link to some guides for Ohio but every state has them:

http://www.law.csuohio.edu/lawlibrary/resources/lawpubs/FormsandPracticeMaterials.html#B.__Ohio_Practice_Sets

[Guest usctrojanalum]

Another common mistake I see people making on this forum is bringing motions to Strike Affidavits and Bills of Sale. In most jurisdictions, MSJ's stay everything and no other motion is heard before the MSJ. So filing motions to strike something that is in the MSJ is futile because the MSJ gets heard first anyway, and it seems from what their opposition states that you did not attack the bill of sale and affidavit appropriately.

[nascar]

In most jurisdictions, MSJ's stay everything and no other motion is heard before the MSJ. So filing motions to strike something that is in the MSJ is futile because the MSJ gets heard first anyway, ...

I want to add that this is by no means the is the rule and would not apply to federal proceedings. I suspect that the proceedings to which usctrojanalum is referring are those in which no formal scheduling order has issued. And in all fairness, this incorporates a very healthy percentage of civil actions filed.

Where scheduling orders are in place, a motion for summary judgment, regardless when filed, will generally not be heard until the close of discovery.

[goingalone123]

If you believe your case is strong enough, perhaps you should consider appealing. With your DIB income, you should be able to avoid having to post a bond.

For educational purposes HAVING TO POST A BOND?

[ladybug412]

A jurisdictional motion, such as a motion to compel arbitration, would have to be heard before a motion for summary judgment. The court would need to settle a matter of jurisdiction before it could hear any other motions on that case.

Just schedule the MTC to be heard before the MSJ. Our local court prefers to do this on the same day and don't forget to have your order ready for the judge to sign if your motion is granted.

[nascar]

If you believe your case is strong enough, perhaps you should consider appealing. With your DIB income, you should be able to avoid having to post a bond.

For educational purposes HAVING TO POST A BOND?

If you, as the defendant, appeal the judgment, you generally must post a bond in the amount of the judgment against you. This guarantees the plaintiff will be paid in the event you lose your appeal.

[calawyer]

I have never heard of a summary judgment motion "staying" other motions. Seems counterintuitive to me since often one party files the motion while refusing to respond to discovery. In those cases, you have to bring your discovery motion as well as object that you haven't been given necessary discovery.

However, in most jurisdictions I am aware of, a party's response to an insufficient affidavit filed in support of a summary judgment motion is an objection to evidence not a motion to strike. So, for example, if there is an affidavit from a JDB purporting to authenticate documents from the OC, you prepare written objections to the appropriate paragraphs of the affidavit (no foundation, no personal knowledge, violates hearsay and best evidence rules, etc).

In my view, this just highlights why you must run to a law library and get your hands on a practice guide if you have such a motion filed against you. These are complicated motions and if you use the wrong format or file too late, you can end up losing the case.