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Summary Judgement issued BEFORE trial?


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Okay, so I've been fighting Midland Funding (with this sites help!) since July 2010. Same story as most here, debt is unknown to my husband and I'm evidently "Jane Doe" for court.

We have done all paperwork required, answers, verif. of debts, etc. We had a telephonic hearing in November 2010, at which point the judge (well, he likes to call himself a judge, but he's a justice of the court) said we would have the trial in 90 days. One of the reasons we didn't settle, my husband's ex has used his social sec. number to obtain other credit, and we know identity theft has been happening. We filed an affadavit for that, and sent it to lawyer and filed it with the court.

December 30, we received a "motion for summary judgement" and a "supplemental statement of facts" from the lawyer. Along with the statement of facts, there was one page, the cover of a credit card bill, with my husband's name, a 5-year old address, and the balance due. That was it for proof that this debt was his?

BTW, the summary for judgement and other paperwork were copies, no signature of either scumbag lawyer or judge. No sign of filing.

I, being new to the judicial system, assumed (I know, I know) that the motion for summary judgement would be decided at our court date of March 28 (Monday). When my husband and I arrived 1/2 hour early for our court appearance, we were told by the court clerk that the issue had been adjudicated on March 9, with a judgement approved by the judge!!! HUH?????we never received ANY paperwork on this. Nothing, nada!!! Also, court clerk would NOT give me copies of the paperwork in our file. why?? Aren't those public record?????

I was shocked. At this point, she said all I could do was file a motion to vacate, so I did, right then and there.

Can someone please explain, how can we have a court date assigned (by the COURT) and yet not be able to stand up for ourselves or ask any questions of this rip off collector? Was I that stupid?? I know maybe I screwed up by not "answering" the motion.....but I honestly thought that would be addressed at our HEARING. I am fuming mad. :evil:

Do the "justice of the peace"'s get kickbacks? Why weren't we allowed to face the judge and our 'executioners' ????? Makes me understand why people go crazy in the courthouse.....

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Most likely the MSJ had instructions that you didn't follow in order to defend yourself against it. It probably had a date you had to file something by or answer by. I doubt you were to wait til the trial date to answer it because the purpose of a MSJ is so the plaintiff can avoid trial and get a judgment against you without going to trial and thats what they did.

I just went thru a CM hearing and the judge warned all of us about this sort of thing. Said to watch your mail and be sure to pay attention. When you got the MSJ you should have looked up the rules of your court regarding it to see what you had to do. I don't know if your judge will vacate or not but I know mine wouldn't. He claims we get no preferential treatment just because we are not lawyers or have a lawyer.

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Jo

Sorry to hear how this went down, this is why court is so difficult. I am not from AZ, but you need to get a copy of your courts Rules and Civil procedures. These will be hard to understand and many times are like a cob web. Because you didn't respond the the MSJ entered by the plaintiff, judge had to rule on what was before him, he had no choice based on procedures of the court.

Given that there will be similar rules on your motion to vacate, generally there will be reasons that allow the court to vacate. You need to check and see what they are for your jurisdiction. I will tell you identy theft, is something that may help you in getting this vacated, but you will have to frame or position it correctly. There isn't usually leeway on procedures for pro se that is why the systme is rigged. Hiring an attorney cost more than the case in most instances....

Good Luck

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Can someone please explain, how can we have a court date assigned (by the COURT) and yet not be able to stand up for ourselves or ask any questions of this rip off collector? Was I that stupid?? I know maybe I screwed up by not "answering" the motion.....but I honestly thought that would be addressed at our HEARING. I am fuming mad. :evil:

What was the hearing date you attended supposed to be for? I'm assuming it was for the trial b/c you mentioned in November the trial was scheduled for 90 days out.

A Motion for Summary Judgment is supposed to come before trial. In fact from what I've read on these boards, and a ton of other sites, a Motion for Summary Judgment is almost standard procedure in these cases. It's one of their final steps before trial b/c it gives the plaintiff one more opportunity to get a cheap and easy win if the Defendant fails to properly oppose the motion.

On the most basic level the person filing the Motion for Summary Judgment is stating to the court there is no reason to have a trial or for the proceedings to continue. They are basically telling the court, "I"m entitled to what I asked for in the complaint and here is why".

When you received the copy of the Motion for Summary Judgment you mentioned they were copies w/ no signature and no sign of filing. That's really all the plaintiff is required to send you....and if it was filed electronically there probably was no signature. While its generally true that any motion filed with the court has to be signed by the attorney, what constitutes a signature varies in today's world. A lot of things are filed electronically these days. I'm pretty sure if the attorney filed it electronically then they don't technically need to put pen to paper and sign their name. The login name and password they use for electronic filing is essentially their signature.

Also many times at the end of a document you'll see the attorney typed a name with something like:

/S/ before it

"/S/Johnny Law"

That's the equivalent of an electronic signature.

Back to the more important issue at hand. Your trial is just ONE of your days in court and usually one of the last in a loooong road of days in court. When you received the motion for summary judgment from the attorney did it have any notice of hearing with it? Was there a hearing on the Motion for Summary Judgment? If there WAS a hearing and you honestly received no notice of that hearing then you may have a valid point to argue why the judgment should be vacated. The plaintiff is required to send you a notice of hearing when they schedule a hearing for a motion. It's usually nothing more than a single sheet of paper that lists a hearing date and time on it. Most often it's included with the actual motion and informs the other party that on such and such date at such and such time the moving party will be arguing the motion to the court. There is usually a deadline and the plaintiff has to send a notice of hearing so many days prior to the actual hearing.

A dirty Plaintiff's attorney may have intentionally "forgot" to send you the notice of hearing. Then unless you checked the filings daily you'd have no idea there was a hearing on the motion. In the courts eyes that doesn't forgive you from knowing how to properly respond/object to a motion for summary judgment and the rules that apply to the situation however. Generally you have so much time allotted to you to respond to any motion.

If you weren't informed of the hearing or had no knowledge of the hearing then you might also have a valid argument for while you failed to respond to the motion. In many states the time you have to object or respond to a motion is often based on deadlines so many days before the hearing on the motion. For example in MI, general motion practice when responding to a motion is that you have to file your response to the motion 3 days before the hearing and serve it on the plaintiff at least 5 days before the scheduled motion hearing (if via mail). (These are for my state and the deadlines might even be different for "special" motions like motions for summary judgment.) If motion practice in your court is similar you may have an argument why you never responded. If the lawyer truly didn't send a notice of hearing then they likely didn't follow proper motion practice either and you have yet another reason to possibly argue why the judgment should be vacated.

One other note. You are also technically responsible for checking the filings with the courtl. When you received the motion for summary judgment the court might feel you should have checked the filings for any scheduled hearings related to it. :confused:

I've also read where some courts allow motions to be ruled upon without an actual hearing or oral arguments...so it may be that there was never an actual hearing? I'm not sure if that is possible/permitted with a motion for summary judgment.

Finally you mentioned that you never received paperwork regarding the judgment that was granted. Since the motion for summary judgment was granted back on the 9th of March the most likely scenario is simply that you haven't received it yet. If Summary Judgment was granted back on the 9th of March then you likely wouldn't have any paperwork from the court by the 28th. It can take courts weeks or even months to get paperwork sent out. I know it took me over a month to receive my official verdict/judgment papers from the court (and the case was decided the day of trial).

Edited by SingleDadJames
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Guest usctrojanalum

Unfortunately, you got caught in the system of being an inexperienced pro se litigant. Yes, motion for summary judgments are almost always held before a trial. That's the point of an MSJ, to avoid trial. An MSJ is basically like a "mini-trial" that is done on papers with affidavits and exhibits as supporting evidence. Often times if these MSJ's are contested, you can easily beat a JDB. But if one party does not respond to an MSJ, the judge really has no choice it is out of his hands.

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Thanks for the info...even though I think it's so unfair that they can get away with it, I am at least informed now.

I went through my paperwork, and nowhere was it mentioned that there was a trial date (or hearing) for the MSJ. Probably wasn't necessary, so they can get the judgement without your knowledge.

It's all so horrible. I am contacting my local news organizations, hopefully it can get out there to the thousands of people this is happening to. Somehow, the laws need to change.....

My husband and I are just trying to survive in today's economy. I'm unemployed, have been for almost a year. My husband is a disabled Veteran, and we survive on a week to week basis.... we're not trying to sleeze out of debts, not running from our creditors...but I refuse to pay for something that is NOT ours!!! And, I believe that we as American "law abiding" citizens should have the opportunity to defend ourselves ..

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Well, I wouldn't give up. You filed a motion to vacate. You might consider amending that with some arguments with the help of the forum here. Like was there a date set to decide the MSJ? A date you needed to reply by? Etc. If there was something missing you might be able to get the judgment vacated and go back to having a trial. It's worth a shot.

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