Jenniferinneed

Midland funding motion for summary Judgement HELP PLEASE

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In February I got a summons at my door from my county clerk of court that Midland funding were suing me as the successor to a BOA . no account #, no nothing. All that was attached with the summons was some MCM paper statement, never seen before this date, that says notice of new ownership and pre-legal review, it has MCM account number and says original creditor is BOA and amount of payment due. The next paper that they show as a statement is not from BOA, but says the above referenced account was purchased by midland funding LLC and is serviced by midland credit management. Date received 9-2010 and that this balance in excess of 7k is due by 10-2010.

This is ALL for proof as said debt.

I do not recognize this debt as mine and so I searched google and found ways to respond to the summons, some here, some other places.

I am so stressing and don;t have a clue what I am doing, but here is what is done so far and their answers, I am begging for help here. I am not too bright and could sincerely use any help offered.

This action is a civil procedure for Florida, so Florida rules due apply. This much I know ( understanding the rules and how to apply is another thing:(

I wrote a response to complaint ( again with help of some google searches)

The response denying the debt. Then my defenses one of them based on plaintiffs assertions FRCP 1.936 defendant is without sufficient facts to constitute this legal action.

The next defense of my own from FRCP 1.933 says a copy of account showing items, time of accural of each and amount of each must be attached to complaint. This was NOT done, all attached to complaint and summons was what was stated here in 1rst paragraph.

Plaintiff alleges with NO PROOF that plaintiff and defendant had business transactions in June 2008 and that plaintiff and defendant agreed to the resulting balance ( FALSE ) this never occurred!)

In part of my defense and answers I asked the plaintiff to provide strict proof of debt and court to dismiss the complaint due to legally insufficient cause of action with prejudice.

I was then served with discovery and interogatories.

Midland funding never responded to my request for strict proof ( did I have to do that separately or was it okay to demand that in my answers to complaint?)

and as said was served with discovery request and interrogatories , of which I answered in good faith.

Midland funding was ASKING me to show them proof of this account??? That is all I could gather from the discovery request. They wanted canceled checks showing payments ( don't have ANY) They wanted so much and I had NOTHING to give them. I asked again for strict proof and for the court to dismiss and now.................

They sent me a motion for final summary judgment or asking the court to grant them summary judgement, they never responded to my request for proof, nothing ( again did I have to ask separately, I provided this defense in my original answers and defenses as well as asked again in their discovery requests, but nothing, just was sent the motion for final summary judegment and they site case law in support as well as an affidavit from Shannon Mcclellan notarized saying SHE is aware of how MCM keeps records and is aware of such records ( if thats FACT, they why have they not shown me the records? )

They site case law in their defense for summary judgment:

1. there is no genuine issue as to any material fact and that plaintiff is entitled to summary judegment as a matter of law as shown by attached affidavit ( the shannon mcclellan affidavit)

2.plaintiff is entitled to summary judegment against defendant based upon the grounds that its claims is established by the complaint and exhibits thereto, the affidavits filed in support of this motion and the discovery filed inthis action. These documents establish evidentially the unpaid balance owing plaintiff by the defendant Martyn V. Arnold 19 So. 791 ( Fla 1895 ; Gendzier v. Bielecki 97 So. 2d 264 ( 4th DCA 1971) Edwards v trulis 212 So. 2d 893 ( 1rst DCA 1968)

( note no discovery was provided me except for silly affidavit by Shannon Mccellan and the MCM paper saying I owed x amount, they have no statements no nothing for proof of anything just saying they are a successor, they do have some account number listed, is it mine though...I deny this and am unaware of such account!)

4.Any affirmative defenses by the defendant have been specificaly rebutted in the affidavit by the affidavit ( assumming they mean shannon Mcclellan.)

How can I respond to this in Florida court so that they do not get this summary judgement on me, this is horrible and fraud, please HELP!

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First of all, take a breath. Just because Midland filed a motion for summary judgment doesn't mean they are going to get it granted. You've done everything you can.

Did you send a discovery request to them? IF not, I would, ASAP. I might also ask for a bill of particulars.

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First of all, take a breath. Just because Midland filed a motion for summary judgment doesn't mean they are going to get it granted. You've done everything you can.

Did you send a discovery request to them? IF not, I would, ASAP. I might also ask for a bill of particulars.

I guess I did not send a formal request for discovery. I have no idea how to do that :( I answered in the original complaint and defenses and requested strict proof and sited FRCP 1.936 ( as defense that ) they must attach statement of bills, time of each accural and such as outlined in the statute) Is it too late to do so formally if I can figure out how to? I also respnded in their discovery request ( them wanting me to validate the account basically , of which I could not and continue to deny, but asked again fro proof they are successor, that the bill is mine and so on) Thank you for responding so quickly, I am about to lose it.

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You might want to look into filing a counter affidavit in denial,

and as admin says send them your discovery requests, production of documents and interrogatories for the affiant

do you have a court date set for a hearing on their motion?

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You might want to look into filing a counter affidavit in denial,

and as admin says send them your discovery requests, production of documents and interrogatories for the affiant

do you have a court date set for a hearing on their motion?

Thank you Dave. Does anyone know the proper way to send discovery requests in Florida for this instance? What I should ask, how it should be detailed and subtitled. I am a mess and have no clue what I am doing.

When I answered complaint and discovery requests I was able to use googls search documents and the plaintiffs outline in response and faxed my documents right tot he clerk of court and they recorded them. The discovery answers also faxed to court, but sent to Midland by certified, so they could not say they never got it.

Is there any Florida template already here somewhere that I can use and have not found it yet?

There is no court date set for this summary judgment, just their motion was sent to me and as of today it is not yet filed in the clerks office according to online access where I can watch what is going on.

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I was where you are at not that long ago, the search for templates and state specific information can be frustrating, I put in hundreds of hours reading this winter in an effort to try and understand what I needed to do.

you need to keep reading your states rules of civil procedure so that you understand the process as much as possible, its good that there is not court date set yet,

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In February I got a summons at my door from my county clerk of court that Midland funding were suing me as the successor to a BOA . no account #, no nothing. All that was attached with the summons was some MCM paper statement, never seen before this date, that says notice of new ownership and pre-legal review, it has MCM account number and says original creditor is BOA and amount of payment due. The next paper that they show as a statement is not from BOA, but says the above referenced account was purchased by midland funding LLC and is serviced by midland credit management. Date received 9-2010 and that this balance in excess of 7k is due by 10-2010.

This is ALL for proof as said debt.

I do not recognize this debt as mine and so I searched google and found ways to respond to the summons, some here, some other places.

I am so stressing and don;t have a clue what I am doing, but here is what is done so far and their answers, I am begging for help here. I am not too bright and could sincerely use any help offered.

This action is a civil procedure for Florida, so Florida rules due apply. This much I know ( understanding the rules and how to apply is another thing:(

I wrote a response to complaint ( again with help of some google searches)

The response denying the debt. Then my defenses one of them based on plaintiffs assertions FRCP 1.936 defendant is without sufficient facts to constitute this legal action.

The next defense of my own from FRCP 1.933 says a copy of account showing items, time of accural of each and amount of each must be attached to complaint. This was NOT done, all attached to complaint and summons was what was stated here in 1rst paragraph.

Plaintiff alleges with NO PROOF that plaintiff and defendant had business transactions in June 2008 and that plaintiff and defendant agreed to the resulting balance ( FALSE ) this never occurred!)

In part of my defense and answers I asked the plaintiff to provide strict proof of debt and court to dismiss the complaint due to legally insufficient cause of action with prejudice.

I was then served with discovery and interogatories.

Midland funding never responded to my request for strict proof ( did I have to do that separately or was it okay to demand that in my answers to complaint?)

and as said was served with discovery request and interrogatories , of which I answered in good faith.

Midland funding was ASKING me to show them proof of this account??? That is all I could gather from the discovery request. They wanted canceled checks showing payments ( don't have ANY) They wanted so much and I had NOTHING to give them. I asked again for strict proof and for the court to dismiss and now.................

They sent me a motion for final summary judgment or asking the court to grant them summary judgement, they never responded to my request for proof, nothing ( again did I have to ask separately, I provided this defense in my original answers and defenses as well as asked again in their discovery requests, but nothing, just was sent the motion for final summary judegment and they site case law in support as well as an affidavit from Shannon Mcclellan notarized saying SHE is aware of how MCM keeps records and is aware of such records ( if thats FACT, they why have they not shown me the records? )

They site case law in their defense for summary judgment:

1. there is no genuine issue as to any material fact and that plaintiff is entitled to summary judegment as a matter of law as shown by attached affidavit ( the shannon mcclellan affidavit)

2.plaintiff is entitled to summary judegment against defendant based upon the grounds that its claims is established by the complaint and exhibits thereto, the affidavits filed in support of this motion and the discovery filed inthis action. These documents establish evidentially the unpaid balance owing plaintiff by the defendant Martyn V. Arnold 19 So. 791 ( Fla 1895 ; Gendzier v. Bielecki 97 So. 2d 264 ( 4th DCA 1971) Edwards v trulis 212 So. 2d 893 ( 1rst DCA 1968)

( note no discovery was provided me except for silly affidavit by Shannon Mccellan and the MCM paper saying I owed x amount, they have no statements no nothing for proof of anything just saying they are a successor, they do have some account number listed, is it mine though...I deny this and am unaware of such account!)

4.Any affirmative defenses by the defendant have been specificaly rebutted in the affidavit by the affidavit ( assumming they mean shannon Mcclellan.)

How can I respond to this in Florida court so that they do not get this summary judgement on me, this is horrible and fraud, please HELP!

Two PM's on the way. Look who the Notary is on the "Affidavit" of MCM, look familiar?? Robo-signers!! Frauds & Swindles.

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Shannon McClellan has personal knowledge of nothing and her affidavit is a robo-signer and inadmissible as a business record due to being total hearsay. She was never an employee of the original creditor and had zero knowledge of any account during the life of the alleged account when alleged charges were made and when payments were made. Midland has no admissible evidence by way of an authenticated bill of sale specifically stating your name and account number and the amount of valuable consideration paid for the alleged account, and the alleged current balance due. Shannon McClellan had no knowledge of this alleged account until it was charged off and bundled up with hundreds or thousands of other accounts and "sold" to Midland for pennies on the dollar.

They simply don't have the requisite evidence to prevail. But they sure do try to create it with untruthful "Affidavits in Support of Default Judgment".

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Two PM's on the way. Look who the Notary is on the "Affidavit" of MCM, look familiar?? Robo-signers!! Frauds & Swindles.

The notary and the affiant are 2 different people.

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The notary and the affiant are 2 different people.

Do you really think you had to inform me of that??

The Affidavit I sent her has Shannon McClellan as the notary. Shannon McClellan is the affiant on the Affidavit they provided to her. I imagine it is word for word exactly the same other than debtor and account balance. Please!!

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Do you really think you had to inform me of that??

The Affidavit I sent her has Shannon McClellan as the notary. Shannon McClellan is the affiant on the Affidavit they provided to her. I imagine it is word for word exactly the same other than debtor and account balance. Please!!

You didn't mention anything about sending her a copy of an affidavit, did you??

Is Shannon McClellan the notary or the affiant on Jennifer's affidavit? Sometimes people don't realize the difference between the 2 signatures.

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You didn't mention anything about sending her a copy of an affidavit, did you??

I referred to a PM to Jenniferinneed, she knew what I was talking about.

Is Shannon McClellan the notary or the affiant on Jennifer's affidavit? Sometimes people don't realize the difference between the 2 signatures.

Read Jenniferinneed's post and it will tell you that McClellan is the affiant.

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You didn't mention anything about sending her a copy of an affidavit, did you??

I referred to a PM to Jenniferinneed, she knew what I was talking about.

Read Jenniferinneed's post and it will tell you that McClellan is the affiant.

I know what her post said. Just asking so there would be no misunderstanding.

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I'm going to say this with the upmost repsect and consideration of the knowledge that you both have.

I love a good passionate discussion but I would hate to see the thread degenerate and be closed like the one earlier this week

I'm new on the forum, with a lot to learn but I have seen forums where posters had opposing viewpoints where they let their personal battles with each other overwhelm the discussions and when that happens it hurts what we are trying to do which is to help people.

IF that is not what is starting to happen here I apologize but it does happen on the forum. Disagreement is fine, passionate discussion is wonderful, if someone is saying something that is wrong they need to be called out on it but no one has cornered the market on what works.

Edited by antiquedave
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I appreciate whole heartedly ALL help. I can learn from all. Void I got your PM's ,the site won't let me respond until I have 10 posts under my name here.

The legal spe******t as described in the affidavit is different then the notary just to clarify that point. That was just received with motion for summary judgment 5-11-2011 is one of their exhibits they are using as proof to uphold the summary judment................and

The pre legal thing ( notice of new ownership and pre legal review as it is described they attached to original complaint in FEB 2011 they say they sent in 10-2010, ( never saw it before) which shows MCM account number and an account number ( asssuming its a credit card number? for BOA?) is all they have as exhibits and using as evidence for final summary judgment.

My acting pro-se, does that hold any weight as far as proper requests for discovery, pertaining to my asking for strict proof in when I provided my response to original complaint? Or do I have to ask for discovery and such separate and formal. I was able to FAX my response, and answers to court, will I be able to do same if I must formally request discovery ????

I am very overwhelmed with this, sorry to be such a pain!

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I appreciate whole heartedly ALL help. I can learn from all. Void I got your PM's ,the site won't let me respond until I have 10 posts under my name here.

The legal spe******t as described in the affidavit is different then the notary just to clarify that point. That was just received with motion for summary judgment 5-11-2011 is one of their exhibits they are using as proof to uphold the summary judment................and

The pre legal thing ( notice of new ownership and pre legal review as it is described they attached to original complaint in FEB 2011 they say they sent in 10-2010, ( never saw it before) which shows MCM account number and an account number ( asssuming its a credit card number? for BOA?) is all they have as exhibits and using as evidence for final summary judgment.

My acting pro-se, does that hold any weight as far as proper requests for discovery, pertaining to my asking for strict proof in when I provided my response to original complaint? Or do I have to ask for discovery and such separate and formal. I was able to FAX my response, and answers to court, will I be able to do same if I must formally request discovery ????

I am very overwhelmed with this, sorry to be such a pain!

you are not a pain, we are all struggling at times to learn what we need to in order to protect ourselves. Most people seem to ask for discovery at the pre-trial, I made a formal motion and paid the 20.00 fee, if both parties agree to discovery that is okay too, personally I want the Judge involved.

most of the time you can expect the Judge to hold a pro se's nose to the grindstone, and expect you to know the rules and follow the procedures, they can't appear to show favoritism,

My request for discovery was the first and last thing we covered at my pre-trial, I did not confer with the other attorney, we set the discovery at 90 days and the trial at 120 days out, everyone has a different experience.

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The legal spe******t as described in the affidavit is different then the notary just to clarify that point. That was just received with motion for summary judgment 5-11-2011 is one of their exhibits they are using as proof to uphold the summary judment................and

The pre legal thing ( notice of new ownership and pre legal review as it is described they attached to original complaint in FEB 2011 they say they sent in 10-2010, ( never saw it before) which shows MCM account number and an account number ( asssuming its a credit card number? for BOA?) is all they have as exhibits and using as evidence for final summary judgment.

The purpose of the affidavit is to lay a foundation for the introduction of the "pre-legal thing" and any other document which is attached.

You need to respond to their MSJ with a Motion in Opposition to Plaintiff's MSJ and include a Memorandum of Law. To worry about discovery at this point is a distraction for you.

Personally, I would also file a MTS the affidavit. A point I raised in striking in an affidavit from Midland was the fact Midland is the Plaintiff and thus an affidavit from MCM employee is improper without a foundation establishing their claim as servicer of the account on behalf of Midland. Also, the affidavit is hearsay upon hearsay.

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The purpose of the affidavit is to lay a foundation for the introduction of the "pre-legal thing" and any other document which is attached.

The pre legal notice supposedly sent in 10-2010 requesting payment to MCM WAS the only thing attached as proof with the summons. I find it ODD after I answered the original complaint, with ONLY that pre legal notice attached as proof and when answering that complaint in 2-2011 and requesting strict proof and then MLF sends me discovery request in 3-2011 they send that AFFIDAVIT from Shannon Mcclellan. That affidavit is stamp dated 3-25-2011 ( not hand written like the signature of Shannons and the notary and then on one page of the affidavit, there is a date WRITTEN 4-6-2011 at top of page.

My curiosity is, is IF they had that affidavit as proof beforehand, why did they not send it with original complaint and only send it after and use it for proof in summary judgment. It almost appears as IF they produced the AFFIDAVIT in answer to my request for strict proof. Also, if this affidavit was legit you are correct, your right Shannon has no knowledge of original creditor or records and according to FRCP 1.936 or 1.933 ( forget which) is states a copy of account showing items, time of accural of each and amount of each must be attached to complaint. This affidavit was obviously not attached to original complaint, and if this Shannon has access to all records and reviewed them, WHY conceal them? Why were they not attached to original complaint and why in their defense for summary judgment do they claim they rebutted all my defenses and answers with this affidavit. They sited case law. I need some case law to site for my summary judgment and to somehow put all this in words. I am not good at this obviously. They are scamming me and I must stop them somehow.

You need to respond to their MSJ with a Motion in Opposition to Plaintiff's MSJ and include a Memorandum of Law. To worry about discovery at this point is a distraction for you.

Any ideas or wording to use?

Personally, I would also file a MTS the affidavit. A point I raised in striking in an affidavit from Midland was the fact Midland is the Plaintiff and thus an affidavit from MCM employee is improper without a foundation establishing their claim as servicer of the account on behalf of Midland. Also, the affidavit is hearsay upon hearsay.

Thanks so much, this sounds like heading in right direction, it is very scary though dealing with these law matters, if it wasn't such a scam and it would not hurt me so bad I would let it go, but they are playing dumb!

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Most importantly...........I see some are saying I should file a motion of oppostion of the SJ and motion to strike affidavit. Does anyone had a template in mind on how to do both, like what I should write in words as to my defense in this. I have searched the board here and do not find any templates for my particular instance :( This is Florida too, so I have to go by Florida rules.

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VOIDJUDGEMENT AND OTHERS WHO I MAY HUMBLY AND DESPERATELY ASK FOR HELP.

I did write up a request for discovery of documents from a template here, hope its not too late since they have recently filed a motion for summary judgment. I want to ANSWER, respond, defeat, strike, dismiss or other allowed by Florida law in opposition to their motion for summary judgment and want to send both requests ( the discovery for evidence mentioned above and any motions for the MSJ. Their defense for the MSJ was ( I will copy below) but I need to rebutt each of these defenses ( 4) as listed, keeping in mind they sent one of those robo affidavits that they were sued for recently but in another state, my state is Florida however, so this is tough!

I also requested in my recent template for discovery request that the agent who signed the affidavit ( the robo signed affidavit be available to testify or other in person, not telephonically as to her proof as she alleges of these records and to produce written proof of same.

PLEASE PLEASE what can I say to the 4 defenses they listed below in their motion for summary judgment.

They site case law in their defense for summary judgment:

1. there is no genuine issue as to any material fact and that plaintiff is entitled to summary judegment as a matter of law as shown by attached affidavit ( the shannon mcclellan affidavit)

2.plaintiff is entitled to summary judegment against defendant based upon the grounds that its claims is established by the complaint and exhibits thereto, the affidavits filed in support of this motion and the discovery filed inthis action. These documents establish evidentially the unpaid balance owing plaintiff by the defendant Martyn V. Arnold 19 So. 791 ( Fla 1895 ; Gendzier v. Bielecki 97 So. 2d 264 ( 4th DCA 1971) Edwards v trulis 212 So. 2d 893 ( 1rst DCA 1968)

3. Plaintiffs prima facie case, is rebutted only by the defendants general denial and is insufficient to avoid judgment against the defendant Sherman vs. weitraub 132 So 2d 421 ( 3rd dca 1961) accurate metal finishing corp vs. carmel 254 So 556 ( 3rd dca 1969) Ham vs. Heintzelmans food inc. 256 So 264 ( 4th dca 1971) Edwards vs. Trulis 212 So 2d 893 ( 1rst dca 1968)

( note no discovery was provided me except for silly affidavit by Shannon Mccellan and the MCM paper saying I owed x amount, they have no statements no nothing for proof of anything just saying they are a successor, they do have some account number listed, is it mine though...I deny this and am unaware of such account!)

4.Any affirmative defenses by the defendant have been specificaly rebutted in the affidavit by the affidavit ( assumming they mean shannon Mcclellan.)

Edited by Jenniferinneed
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In order to defeat SJ , a defendant MUST show genuine issue(s) of Material Fact ......so "I" would submit something similar to:

1.) Affidavit is hearsay and does not meet the requirements for the business records exemption including but not limited to , the Affiant (SM) was not present during the creation of the alleged debt and cannot therefore provide testimony the alleged debt is true and correct, nor that the amount(s) specified are accurate . The affiant has no knowledge of this alleged debt prior to Midland/MCM purchasing the alleged debt, testimony on basis of a computer screen is not admissible and in fact is clearly hearsay under the applicable RCP (cite the hearsay rules )

2.)Defendant alleges the evidence is not conclusive and there are genuine issues of Material Facts clearly present.

3.)Plaintiff has failed to prove their case to any extent. The evidence offered to this point is not sufficient for judgment as a matter of law. Plaintiff has failed to show : including but not limited to , standing to sue, ownership of alleged debt, unbroken chain of custody on alleged debt, accounting of alleged debt from a zero balance to present, including all fees, charges etcetera .

Research case law in your state and add it, that should be enough to thwart their MSJ , at which point I suspect they'll dismiss (w/o prejudice)

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In order to defeat SJ , a defendant MUST show genuine issue(s) of Material Fact ......so "I" would submit something similar to:

1.) Affidavit is hearsay and does not meet the requirements for the business records exemption including but not limited to , the Affiant (SM) was not present during the creation of the alleged debt and cannot therefore provide testimony the alleged debt is true and correct, nor that the amount(s) specified are accurate . The affiant has no knowledge of this alleged debt prior to Midland/MCM purchasing the alleged debt, testimony on basis of a computer screen is not admissible and in fact is clearly hearsay under the applicable RCP (cite the hearsay rules )

2.)Defendant alleges the evidence is not conclusive and there are genuine issues of Material Facts clearly present.

3.)Plaintiff has failed to prove their case to any extent. The evidence offered to this point is not sufficient for judgment as a matter of law. Plaintiff has failed to show : including but not limited to , standing to sue, ownership of alleged debt, unbroken chain of custody on alleged debt, accounting of alleged debt from a zero balance to present, including all fees, charges etcetera .

Research case law in your state and add it, that should be enough to thwart their MSJ , at which point I suspect they'll dismiss (w/o prejudice)

Thank you, but I am a dunce. I can copy what you say here in in the defense for MSJ, it sounds good to me, but on the last you said about case law, do you mean me find cases such as what they used siting case law codes, if so, I am DOOMED , have no clue how to cite or understand cases. Must I present case law as they have ?

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IMO you should find cases where it's been ruled that "x' is not enough evidence , etc. I won't say you "must" but IMO it's a great idea.

Use Google Scholar and research cases where SJ was denied and better yet overturned on appeal and see WHY it was, trying to find cases similar or just like your own. It is time consuming but will most certainly help you in the SJ and IF they continue forward in the future.........

I would most definitely at a min cite the Hearsay Rules from the Rules of Civil Procedure .

Some from Fla may be able to point you in the right direction?

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