Is it Time for a MTD?

[getmeouttahere]

My husband was sued by Arrow financial a year ago. He filed a motion of discovery several months ago and all the collection law firm could come up with was an affidavit from an employee with Arrow. This was orginally a 6k debt but they're asking for 14k, which is absolutely ridiculous!! He spoke with the opposing attorney in court last week and apparentely, the attorney has nothing else except the affidavit. Should my husband file a MTD at this point?

[getmeouttahere]

Can someone please help me? Should he file a Motion to Strike affidavit as hearsay or a MTD? Which will get the case dismissed?

[fightemdontfold]

You are kind of in the situation I am in right now, except that the response to my discovery requests provided no documentation and repeated claims that they were still trying to find evidence and proof.

It really depends on how long the idiot JDB suing you wants to drag it out. I would suggest sending them a communication, if you haven't already, to notify them that they failed to properly anwser your discovery requests, which I assume you asked for pertinent evidence and proof to back their claim. You then need to write on there that they have 10 days or so to get back with amended anwsers. I am going item by item, specifying what I want amended, again demanding proof.

Technically the idiot JDB can still claim you both are in the discovery mode even though they have answered you. Did they make claims that they were still searching for information?? If not and they are pretty much saying this is all we have, then you might go with a MTD or even a motion for summary judgement. You can file the motion to strike the affidavit with that to support your motion to dismiss or MSJ I would think.

I guess it depends on the judge but you need to be able to get it to a point where they can't claim it is still in the discovery process, again the JDB suing you might not be as assinine as the one suing me but they can avoid the case being dismissed by simply claiming discovery process has not ended. From what I understand efforts at confering with the morons are what is needed, then you can go into court and show them that you have tried to get them to provide evidence and they refuse to.

[fightemdontfold]

Just so you know, and i am pretty sure about this, the motion to strike the affidavit needs to acompany the MSJ or MTD, just filing for that won't end it necessarily even if it is struck. I would suppose some decent judges might then take the initiative to throw it out right there, but striking the affidavit is not in itself asking for the case to be resolved in your favor without a motion to dismiss or motion for summary judgement.

[BV80]

What did the affidavit say?

[getmeouttahere]

What did the affidavit say?

It was just the standard affidavit stating that someone from Arrow has personal knowledge of this debt.

[getmeouttahere]

You are kind of in the situation I am in right now, except that the response to my discovery requests provided no documentation and repeated claims that they were still trying to find evidence and proof.

It really depends on how long the idiot JDB suing you wants to drag it out. I would suggest sending them a communication, if you haven't already, to notify them that they failed to properly anwser your discovery requests, which I assume you asked for pertinent evidence and proof to back their claim. You then need to write on there that they have 10 days or so to get back with amended anwsers. I am going item by item, specifying what I want amended, again demanding proof.

Technically the idiot JDB can still claim you both are in the discovery mode even though they have answered you. Did they make claims that they were still searching for information?? If not and they are pretty much saying this is all we have, then you might go with a MTD or even a motion for summary judgement. You can file the motion to strike the affidavit with that to support your motion to dismiss or MSJ I would think.

I guess it depends on the judge but you need to be able to get it to a point where they can't claim it is still in the discovery process, again the JDB suing you might not be as assinine as the one suing me but they can avoid the case being dismissed by simply claiming discovery process has not ended. From what I understand efforts at confering with the morons are what is needed, then you can go into court and show them that you have tried to get them to provide evidence and they refuse to.

It's not in the discovery phase anymore. My husband went to trial last week and the attorney tried to settle with him, but all they have is some bogus affidavit. We're definately not paying 14k to Arrow financial if we don't have to!

So, are you saying he needs to file a MTS with the MTD?

[BV80]

If it were me, I'd file an MTD. They haven't provided any statements, no accounting of the alleged debt, so no proof of the amount they claim in the Complaint. They haven't shown a chain of ownership, so they haven't even proven they own the debt and have standing to sue.

It would be best if you include case law if you file an MTD.

[getmeouttahere]

If it were me, I'd file an MTD. They haven't provided any statements, no accounting of the alleged debt, so no proof of the amount they claim in the Complaint. They haven't shown a chain of ownership, so they haven't even proven they own the debt and have standing to sue.

It would be best if you include case law if you file an MTD.

What is case law?

[BV80]

Case law is decisions made by higher courts that supports your case. I'm sure you've heard lawyers on TV cite other cases to support a motion. That's case law. You can include case law from the Mississippi Supreme Court, the Mississippi Court of Appeals, the Fifth Circuit Court of Appeals (that court includes your state) and from the U.S. Supreme Court.

I'll see if I can find anything for you.

[HoppinMad]

Here is an excellent case law from MS http://scholar.google.com/scholar_case?case=2489697245966611846&q=hearsay+affidavit&hl=en&as_sdt=4,25

In part the appeals court affirmed the lower courts decision to exclude an affidavit as hearsay for lack of first hand knowledge:

The First Issue: The Excluded Affidavit

¶ 8. MDHS proposed to introduce an affidavit from Michele Wall, a child support enforcement officer for ACSED, which, among other things, purported to detail contacts between Mr. Fargo and ACSED during the period prior to May 1994 when ACSED was gathering financial data as a part of its evaluation of the appropriateness of a child support adjustment. The chancellor excluded the affidavit as hearsay. MISS. R. EVID. 802; Hyatt v. Leslie, 10 So. 672, 673 (Miss.1891). On appeal, MDHS urges that the chancellor erred in that ruling because the affidavit was a record kept in the course of a regularly conducted business activity within the meaning of Mississippi Rule of Evidence 803(6) and that it was self-authenticated pursuant to Rule 902(11). That contention by MDHS is plainly wrong. The affidavit is a special document prepared in anticipation of litigation. The fact that certain information contained in the affidavit may have been obtained from other records that perhaps would qualify for admissibility under the "business records" exception to the hearsay rule does not transform the affidavit itself into a business record. Neither can this litigation-inspired document be considered a public record within the meaning of 803(8).

You would use this as your support for your argument to have it dismissed. There are a lot of case laws on this subject (lucky you!). You can go to google scholar advanced search. If you enter "affidavit" and "hearsay" into the search box, choose MS as the state to search, you will get pages and pages of decisions. Just scim the cases, the words will be bolded you searched for, and find cases that support your argument. Remember, the case does not need to be one regarding debt, it just must pertain to the area of law you are looking to reference.

Hope this helps, good luck!

[nrgins]

If you went to trial last week, then what was the outcome? Usually that's the end of the road. Did the judge give a ruling? Did the opposing attorney ask for an extension? What happened.

And, yes, I would file a motion to dismiss, noting the affidavit is invalid because it is not from someone with personal knowledge of the ORIGINAL debt (who cares about knowledge about the JDB's file). There's an excellent example of how to dispute the affidavit in the example section of this forum.

I would also argue that they've provided no proof of ownership, so they have no valid claim to the debt.

Also note that they have not responded to discovery, and note the things you requested that they did not respond to.

Ask for a motion to dismiss WITH PREJUDICE so that they can't refile later.

[chiquita55]

If you went to trial last week, what was the outcome???? Isn't the case over?? Did the judge rule?

[getmeouttahere]

If you went to trial last week, what was the outcome???? Isn't the case over?? Did the judge rule?

I may be mistaken as I don't know very much about the court system, but it was my understanding that this was the "trial". The judge didn't rule on anything. However, the judge asked my husband and the attorney to step outside and try to come to an agreement. The attorney asked my husband if this was his debt and my husband answered "I don't think it is." The attorney then asked him if his identity was stolen and my husband stated there was a security breach in something to do with his Army National Guard service. The attorney told my husband he would send him an affidavit to sign about having his identity stolen. Of course, I told him not to sign ANYTHING from the opposing attorney. And that was pretty much it. After my husband mentioned he would be filing a MTD, the attorney quickly changed the subject. That's it. Nothing really came out of it. The only thing they have is an affidavit from an employee with Arrow. There's no statements, no bill of sale...NOTHING. Yet, they expect us to fork over 14K for a debt that was only around $5500. I don't see how they can get away with that.

[Guest usctrojanalum]

This actually seems ripe for a motion for summary judgment. Discovery is completed and all they have produced is an affidavit? I think you should be able to win that motion pretty easily.

Plaintiff has produced no statements, no bill of sale (proof that they bought the account), the only piece of evidence disclosed was an affidavit which is hearsay and should not be considered.

[getmeouttahere]

So, MTD or MSJ? And add a case law? Which one should we do?

I just want to say thanks to everyone on this amazing forum. I don't know what we would have done if it wasn't for sites like this!

[BV80]

Here is an excellent case law from MS http://scholar.google.com/scholar_ca...en&as_sdt=4,25

Very good, Hoppin.

[BV80]

In a MTD, you're asking the judge to dismiss because the Plaintiff has failed to prove their case. In a MSJ, you're claiming there is no genuine issue of material fact. In other words, the Plaintiff has no facts that prove or support their claim.

If you file an MTD, and the case is dismissed WITH prejudice, they can't come after you again. If it's dismissed WITHOUT prejudice, they can file again. If you win an MSJ, and they wanted to come after you again, they would have to file a motion to vacate the MSJ, and they would have to win it before they could do anything else.

Read up on both and see which one you feel more comfortable with. Either way, you need to include case law. The case law Hoppin provided would be used in both a MTD and a MSJ, because you would be pointing out the insufficiency and inadmissability of the affidavit.

[getmeouttahere]

Thanks so much BV80! I think we're gonna go for the MTD since the SOL on this debt expired this past November. Either way it's dismissed, with prejudice or without, we'll have an absolute defense with the SOL. Unfortunately, they sued him before the SOL expired. Does that seem like the thing to do?

[Guest usctrojanalum]

A successful motion for summary judgment is actually better then a dismissal with prejudice.

[BV80]

Thanks so much BV80! I think we're gonna go for the MTD since the SOL on this debt expired this past November. Either way it's dismissed, with prejudice or without, we'll have an absolute defense with the SOL. Unfortunately, they sued him before the SOL expired. Does that seem like the thing to do?

Unfortunately, when a lawsuit is filed, it tolls (stops) the SOL clock. Once the suit is dismissed, the SOL clock starts again. In other words, if you had 1 year left on the SOL, when the suit was filed the SOL clock stopped. If the case is dismissed, the SOL clock starts again with 1 year to go.

USCTrojan says a MSJ is best. That's what I'd go for.

[BV80]

A successful motion for summary judgment is actually better then a dismissal with prejudice.

USC,

I know it is, but I'm not sure of the reasons why. Could you explain, please?

[Guest usctrojanalum]

Because a successful motion for summary judgment, you get - judgment for the defendant. The case is adjudicated on it's merits and a Court has found, on the merits, that the defendant does not owe the money. It can be argued that they an MSJ and motion to dismiss with prejudice are practically the same thing. But if you bring a motion to dismiss with prejudice, there is no guarantee the judge is going to give you the "with prejudice" part. A motion for summary judgment, your case is adjudicated and can never ever be adjudicated again, any future actions would be res judicata.

[BV80]

Because a successful motion for summary judgment, you get - judgment for the defendant. The case is adjudicated on it's merits and a Court has found, on the merits, that the defendant does not owe the money. It can be argued that they an MSJ and motion to dismiss with prejudice are practically the same thing. But if you bring a motion to dismiss with prejudice, there is no guarantee the judge is going to give you the "with prejudice" part. A motion for summary judgment, your case is adjudicated and can never ever be adjudicated again, any future actions would be res judicata.

Thank you. The JDB would then have to file a Motion to Vacate...correct?

BTW, smartie, I had to look up "res judicata" just to make sure I understood you correctly.

[Guest usctrojanalum]

JDB would have to appeal. A motion for summary judgment is like a mini trial. Where I'm from you are not allowed to bring a motion to vacate unless the judgment was a result of a default, (sometimes the Courts will let you bring the motion but you will lose since the case was decided on the merits)