Discovery not answered by me - Received MSJ

[uu2sing]

Have I stepped in it?

Received summons November 2010

Answered December 2010

Received Discovery, Admissions and Interogs January 2011

Did not answer

(I did not ask for Discovery, Admissions or Interogs)

Received MSJ March 2011

Motion to be heard May 2011

This thread is in relation to my previous thread:

Midland Answer to be filed Saturday 12/4/10

With their Discovery request, I was sent a CC agreement (that was copied and so small that I couldn't even read it with a magnifying glass).

Their MSJ contained an affidavit by MCM's Legal spe ******t attesting to the fact that they "have access to pertinent account records for MCM, servicer of this account on behalf of plaintiff (which is Midland Funding, LLC)."

"Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's (OC) account."

(These were the only docs received from them.)

My answer was timely filed, but due to some health issues, the discovery has not been.

Have had no other hearings, conferences or pre-trial.

Do I have any viable options with this scenario?

Or ... If I've stepped in it, How deep is it and am I able to wade out???:'>

[BV80]

Read you Rules of Civil Procedure. See if there's anything about requesting more time for discovery as long as you're able to provide proof of your health issues.

[uu2sing]

Thanks for the reply BV.

I have found this:

Motion for Enlargement of Time – A party’s request that the Court extend the time allowed to respond or to perform an action.

I suppose that I could file this. Don't know how soon it would be granted or denied.

If not allowed, do you see any other recourse?

[BV80]

Try for an extension. It can't hurt to try. Since I'm not familiar with your state laws, I'll tell you what I would do. I'd go ahead a write up an Opposition to Plaintiff's Motion for Summary Judgment.

A summary judgment is granted when there is no genuine issue of material fact...in other words, you have no defense. You have to show there is a genuine issue of material fact...that you do have a defense.

1. They have not proven they own the account and have a right to collect. Do they have a bill of sale from the OC with your name and account number on it?

2. They haven't proven you had an account with the OC.

3. They haven't proven the amount in the claim.

You should also include case law in the Opposition. You will need to send a copy of this to the Plaintiff's attorney.

If a summary judgment is granted, you can immediately file a motion to vacate the judgment. Hopefully, there is someone else from Delaware on this forum who might be able to give you more information.

[fightemdontfold]

I suppose it will depend on whether or not the judge is one that is acustom to just giving the scumbags easy judgements or if he actually gives those few who anwser their suits a fair shot.

I would make a request,file with the court, for an extension of time, and I would advise having the discovery sent off to them before the hearing and bring a copy of all of it to the hearing. By the time the hearing comes up it will be 4 months since they sent it, if you still haven't sent anything to them, that will not look good.

I can tell you that in my case the idiot JDB got a 20 day extension and then was actually a day late in meeting that deadline, took them two months to get back with anwsers. Further those anwsers were complete with no documentation at all and repeated claims they were still searching for evidence.

The courts supposedly like for parties to settle discovery issues out of court. I think a double standard probably exists, it seems that when the JDB's in these matters don't comply with discovery rules, the defendant has to send them letters to confer and then file for a motion to compel, where then the idiot JDB's are given more time. Yet it seems that the JDB just goes for a MSJ when a defendant doesn't mean the discovery deadline, no letters, no MTC.

Again it may depend on the judge, but if by the time of the hearing you have sent them off discovery anwsers and have it with you at court (along with certified mail saying you sent them discovery) the judge should deny their motion. You have filed an anwser disputing their claim, and they have now the discovery they claimed was reason to give them a judgement, the judge should now allow the case to continue on. Personally, I will be more than offended if the judge rules in their favor after what has transpired in my case with the incessant delays by the plaintiff in my case.

Sometimes it really does just depend on the judge. Make sure you get that discovery sent out ASAP.

Edited March 19, 2011 by fightemdontfold

[fightemdontfold]

You also should send off discovery to them too, being sick is an excuse I suppose but you really need to get caught up on things if you are to effectively counter these people.

Midland is a joke and rarely produces what is needed to win, that is why they are trying to beat you on a technicality. Get moving!!!!