Can an OC Attorney file a new MSJ after being over-ruled the first time?

[debtfighter]

I have a case with an OC [Cap1] who filed a MSJ last year and was over-ruled by the Judge. For some, meaning the case was ruled to have material issue of fact that are disputed and triable.

After letting the case sit for over a year, the Attorney for the OC filed the exact same MSJ over again. The memorandum of law changed slightly and the affidavit changed also. However, the same issues are being contested by both sides.

How to respond is the question?

Edited September 19, 2011 by debtfighter

[Coltfan1972]

If it is just the same argument I would counter with a Res judicata defense.

[debtfighter]

If it is just the same argument I would counter with a Res judicata defense.

That is a great point. But how would it be responded and pled? On Motion or Response?

[Coltfan1972]

Personally, I would file a motion to dismiss, with prejudice, along with a brief. I would attach the first motion that was denied. Then I would point out all of the same legal arguments and argue there were no new issues and the matter had already been settled.

I would then ask for a dismissal, with sanctions, for abuse of process, and request the case be dismissed with prejudice for the sanction.

I'd try to play the victim role as long as you could. Your not an attorney and it's obvious they are not expecting you to know the law and how to defend this second bite at the apple.

If any of their so called new arguments are just different ways of saying the same thing, I would defiantley point that out. If the affidavit is the same except a new date and interest that has been added since the last affidavit, I would hammer on that also.

Depending on how quick you could get that motion heard, would determine if you even needed to address the second motion for summary judgement.

[debtfighter]

Personally, I would file a motion to dismiss, with prejudice, along with a brief. I would attach the first motion that was denied. Then I would point out all of the same legal arguments and argue there were no new issues and the matter had already been settled.

I would then ask for a dismissal, with sanctions, for abuse of process, and request the case be dismissed with prejudice for the sanction.

I'd try to play the victim role as long as you could. Your not an attorney and it's obvious they are not expecting you to know the law and how to defend this second bite at the apple.

If any of their so called new arguments are just different ways of saying the same thing, I would defiantley point that out. If the affidavit is the same except a new date and interest that has been added since the last affidavit, I would hammer on that also.

Depending on how quick you could get that motion heard, would determine if you even needed to address the second motion for summary judgement.

In my jurisdiction a MTD is treated as a MSJ. There has to be a better angle of attack since the Judge ruled on this once already. I'll be damned if I can find anything that references this topic. Surely, they cannot just keep filing the same MSJ.

[Guest usctrojanalum]

If it is just the same argument I would counter with a Res judicata defense.

No.

[debtfighter]

No.

Care to elaborate? I think the sticking point for Res Judicata in this type of instance is of the requirments for Res Judicata. One being, it has to be a final judgment. Which a denial of a MSJ is not.

[jackson212]

i think what you want is collateral estoppel, not res judicata. (dont quote me)

but in any event, without getting into all the legalese, your response will be that the court has already decided this issue. attach the prior court order as an exhibit. also attach their prior motion and say that they are filing the same motion. you dont necessarily have to use legal terms (collateral estoppel, res judicata, etc) in order to win the motion because then they'll just argue that you're using the wrong term, which will confuse everyone and you wont be able to get your point across.

just explain your point of view, attach the prior documents as exhibits, and you should be good to go. you can quote parts of the court order, if there was a written decision and quote parts of their first and latest motion to show similarity in the relief they seek.

when in doubt, go simple.

Edited September 27, 2011 by jackson212

[legaleagle]

What was left to sit for a year? There are always time limits for court cases. You have 30 days to do this, etc. The plaintiff sets the pace as he is the aggressor. If noting happens, eventually the court will step in and order a deadline. Absent this, check what has happned so far. In CT, if you let the case languish, the opponent files a Motion for Nonsuit based upon lack of dligence.

[debtfighter]

What was left to sit for a year? There are always time limits for court cases. You have 30 days to do this, etc. The plaintiff sets the pace as he is the aggressor. If noting happens, eventually the court will step in and order a deadline. Absent this, check what has happned so far. In CT, if you let the case languish, the opponent files a Motion for Nonsuit based upon lack of dligence.

It has been 12 months since any activity on the case occurred. That being a hearing on their MSJ in which the Judge ruled against them, stating he believed there are issues of material fact in this case. Nothing has changed the issues are the same.

They had to do something or the case would be dsimissed for lack of prosecution. So they filed the same MSJ again.

[BV80]

It has been 12 months since any activity on the case occurred. That being a hearing on their MSJ in which the Judge ruled against them, stating he believed there are issues of material fact in this case. Nothing has changed the issues are the same.

They had to do something or the case would be dsimissed for lack of prosecution. So they filed the same MSJ again.

I don't know if this is correct or not, but could you provide the same opposition to their MSJ that you did a year ago, and then file your own MSJ? If you could do so, and your MSJ was granted, that would end it once and for all.

[debtfighter]

I don't know if this is correct or not, but could you provide the same opposition to their MSJ that you did a year ago, and then file your own MSJ? If you could do so, and your MSJ was granted, that would end it once and for all.

Thanks for the response, I was hoping you would answer. Yes, I can file the same response. If anything my argument is stronger now than before. Actually, I opted out of a class action suit involving the same or similar circumstances involved here. I did not file a countersuit, which I should have. I thought they would drop it. They know I got them, I do not see how they could not. Actually, this case is almost 2 years old now. I want it to go to trial.

[BV80]

Thanks for the response, I was hoping you would answer. Yes, I can file the same response. If anything my argument is stronger now than before. Actually, I opted out of a class action suit involving the same or similar circumstances involved here. I did not file a countersuit, which I should have. I thought they would drop it. They know I got them, I do not see how they could not. Actually, this case is almost 2 years old now. I want it to go to trial.

When I read your post, my first thought was "I can't believe they did that", but then I caught myself. Of course, I can believe they did it. Nothing done by JDB attorneys surprises me anymore.

Some might consider that waiting a year to refile the same MSJ that was already dismissed the previous year to be harassment, but a counterclaim is too late now.

If you're allowed to file an MSJ, that's what I'd do. Wouldn't it be a kick to get the same judge?

[usagi555]

Can't you say something about wasting judicial resources?

[Seadragon]

as they haven't given discovery and haven't requested trial, there mustn't be ant triable issues. also request sanctions for the first MSJ. then file cross complaint for credit damage, abuse of process, and any other things.

Trial should have been set shortly after the MSJ was denied. without the cross complaint they are just going to dismiss without predjudice. They know they cannot use a bad affidavit and just hope the court dismisses for them to avoid a claim of abuse of process.

Start looking for an attorney to leverage them for attorneys fees after you file the cross=complaint to lock them in. See how it works?

[Guest usctrojanalum]

Care to elaborate? I think the sticking point for Res Judicata in this type of instance is of the requirments for Res Judicata. One being, it has to be a final judgment. Which a denial of a MSJ is not.

bingo. a decision on a motion for summary judgment is not a final disposition and therefore res judicata would not apply.

[debtfighter]

Do not want to say to much, but this is an OC, Cap1. I was able to stop them on 3 points. FYI, the account is not disputed, but the transactions involving the account are.

Although not elected I brought up the arbitration clause and claimed a right to arbitrate at any time before trial.

This account had a payment protection policy. This is the interesting part. It is deep and complex, but opted out of the class action that was brought for this.

Third, I raised the unfair, deceptive and unconsciousable practice of the deliberate under billing and over the limit fee.

The Judge agreed on all three points.

Of course they dodged discovery and objected to most of things I ask for. I did not push it intentionally. They waited 5 months to answer discovery. I don't really need their evidence, I have my own. I did want the phone records and recordings, but the objected. The sticky part to all of this is it involves a third party, the company Cap1 uses for payment protection, Stonebridge Financial..

[debtfighter]

I didn't file a counterclaim, but in KY if you raise the issues that will constitute a counterclaim in the affirmative defenses, then it is up to the court to treat them the same way. So even with all this time that has passed I think I have preserved any counterclaim.

[Seadragon]

Hoisted them on their own petard for payment protection they forced on everyone and now sticking it to them.

bravo you are reeling that line in really slow:)

That crap the make everyone take so they get paid then not credit your account now they are going to have to roll that ole belly over now.

Excellent.

I like how the court has to consider potential counterclaims as if they are plead thing.

[Seadragon]

In my jurisdiction a MTD is treated as a MSJ. There has to be a better angle of attack since the Judge ruled on this once already. I'll be damned if I can find anything that references this topic. Surely, they cannot just keep filing the same MSJ.

Is it possible to get an evidentiary sanction for frivolous filing?

[calawyer]

I have a case with an OC [Cap1] who filed a MSJ last year and was over-ruled by the Judge. For some, meaning the case was ruled to have material issue of fact that are disputed and triable.

After letting the case sit for over a year, the Attorney for the OC filed the exact same MSJ over again. The memorandum of law changed slightly and the affidavit changed also. However, the same issues are being contested by both sides.

How to respond is the question?

I don't know what the answer is under KY law, but I think I know the right question. When the same or similar motion is filed for a second time, the question is whether it must be filed as a "motion for reconsideration" of the first order. Often there is a statute saying that a motion for reconsideration must be based upon new law or facts that were not available when the initial motion was made. See if KY has such a statute or any case law on the subject.

[debtfighter]

Thank you, Thank you, Thank you. That is what I thought when I posted this question, but was not sure. Coming from you, I know I must be onto something. I still have about 20 days to respond. Not sure quite how to attack it just yet. I know I have them set up, but I have to keep it alive in court. I cannot believe they didn't drop it yet.

[debtfighter]

I think a year is to long to file a motion to reconsider. But no where does the RCP spell that out. If anything, discovery has made my arguemnt stronger and so does their MSJ they filed now.

[debtfighter]

This is my two main points that the judge agreed the first time. One I was covered on payment protection for a life threatening illness. That lasted for almost a year. I can prove it with no problem.

Second, I argued they intentionally underbilled the account to collect over the limit fees even though the minimum payment was made, which I can prove by their own evidence. I argued this is unfair, deceptive and unconsciousable to the point it voids any contract.

The Judge did not rule in my favor, but told the Plaintiff's attorney he agreed with me and that it sounds like a material fact to him. Then told the attorney, you better work this out. In turn, the attorney leaves the courtroom and throws his folder across the room. I was like, wow, how unprofessional and immature.

[BTO429]

collateral estoppel:

A prior judgment, arrived at by stipulation with no issues actually litigated, does not preclude another action, because the face of the judgment does not show the parties so intended. (See Rappenecker v. Sea-Land Service, Inc. (1979)

Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude re-litigation of the issue in a suit on a different cause of action involving a party to the first case.

Ordinarily, collateral estoppel is an affirmative defense that must be raised by the party seeking to use it, or else it is waived.

Collateral Estoppel is ISSUE preclusion.

RES JUDICATA - Lat."the thing has been decided" The principle that a final judgement of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action.

The general rule is that a plaintiff who has prosecuted one action against a defendant and obtained a valid final judgment is barred by res judicata from prosecuting another action against the same defendant where

(a) the claim in the second action is one which is based on the same factual transaction that was at issue in the first;

( the plaintiff seeks a remedy additional or alternative to the one sought earlier; and

© the claim is of such a nature as could have been joined in the first action. Underlying this standard is the need to strike a delicate balance between the interests of the defendant and of the courts in bringing litigation to a close and the interest of the plaintiff in the vindication of a just claim.

I think what you are missing is the fact that this is not another cause of action it is still the same cause of action.

What you really need to look at is estoppel by laches.

Estoppel by laches is an equitable doctrine by which courts can deny relief to a claimant who has unreasonably delayed or been negligent in asserting a claim. A person invoking laches should assert that an opposing party has slept on his/her rights and that the party is no longer entitled to his/her original claim. Laches is a form of estoppel for delay.

Laches is similar to ‘statute of limitations’ except it is equitable rather than statutory and is a common affirmative defense raised in civil actions.

Edited October 3, 2011 by BTO429