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Citi Motion for Summary Judgment in 7 days!!!!


florider
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I was wondering if you could help me with some questions regarding a Law suit from Citibank (South Dakota) credit card Being the OC.

The problem is that I don’t know how to proceed in my Credit Card Case with Citibank in FLORIDA.

-They have file a Motion for Summary Judgment, as evidence they presented Statements from 2000 thru 2010 and two Card Agreements with 2 bank clips, but no affidavits from any affiant working for the bank that has personal knowledge about the statements that were attach to the Motion, although they make reference that there is an affidavit included as an exhibit within the same motion when in fact there is none.

I sent the Plaintiff Discovery on Sept 27 2011, and the Motion for Summary Judgment Hearing is On October 7, 2011.

1-Should I Just show up to the hearing and tell the Judge, it would be reversible error to grant summary judgment because discovery is outstanding. Specifically I have served interrogatories and a request for production and the bank has not responded. I am entitle to discovery prior to a summary judgment hearing. (citing case law which i have , about 5 cases where summary Judgment were reversed because it was awarded SJ to the plaintiff while Discovery was still outstanding)

2- Should I strike the original complaint at the hearing ?, When they filled the original complaint they only attached one statement only showing the full amount alleged, no Credit card agreement was attached at this point, one month after the original complaint was filed an they served me they went ahead and fetched the 9 years of billing, i can see n top of all those bills the time stamp from when they printed, Have they file a lawsuit without evidence or prove? can i attack that ?

3- Should i verbally object to Strike the statements to try to exclude them and show the judge that they don’t qualify as evidence or fall under the business record exception to the hearsay rule since no affidavit has been produced and was not included as an exhibit to the MSJ filed. (I know that good old judge will give them more time to produce the affidavit.

4- Should I File my motion in opposition to summary judgment raising issues of material fact along with my affidavit to defeat summary judgment.

5- Should I file my own Motion for Summary Judgment separate from theirs, would this be a good action? to force the Judge to make a ruling right then in there. (my MSJ will be better than theirs since they have no affidavit to back any of the alleged evidence which will be considered Hearsay, so all i need to do is rise 1 issue of material fact.)

Question : If I don’t have my objections in writing and filed before the summary judgment hearing do I wave those objections for an appeal or can I object them verbally on the record at the Hearing for Summary Judgment.

i want to decide this at the Summary Judgment hearing while the scale is tipped in my favor. if i let them ask for a continuance and introduce the affidavit later...... it will be tough. So i need to Craft my Arguments really good and know exactly how im going to go about to end the whole thing at that Hearing !!!!

Thanks for your Help in Advance.

Edited by florider
correct date
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If discovery is outstanding, then you file a reply to their MSJ. In the reply, you need to write that your discovery was never answered and summary judgment is inappropriate since there are genuine issues of fact outstanding.

Also, challenge the authenticity of the statements included -another trialable issue which precludes summary judgment.

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1-Should I Just show up to the hearing and tell the Judge, it would be reversible error to grant summary judgment because discovery is outstanding.

I would not say that, even if your right. Maybe if you were arguing a motion to compel arbitration and you were referencing ATT V Concepction. The only reason I say that is because it is a new Supreme Court ruling.

4- Should I File my motion in opposition to summary judgment raising issues of material fact along with my affidavit to defeat summary judgment.

If you have time allowed, I would do this.

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With 7 day limit and no opposition you have to file opposition or request Oral arguements and orally argue the opposition.

You need to do this today and file tomorrow AND file notice requesting oral arguements.

Check for a tentative ruling on the courts website and call the clerk to notify them you are requesting oral arguements AND Call the plaintiff and try to get a continuance stipulation for an aditional 7 days for the opposition.

You have to be getting that opposition filed as quickly as possible.

No opposition means the get SJ just like a default judgment.

You are definetly going to need some coffee.

Get the stipulation written up faxed to them and mailed or served to them.

Call the court for a continuance for opposition if they will ask for 10 days make up good excuse for not doing it sooner.

check the tentative ruling to see if the court is going to deny it.

Work on SJ for the points towards triable issues(issues that can be resolved by trial)

ask for as much help here as possible.

Get it done soon.

Wish you had more time. Hope you make it possible to defend.

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An inexperienced pro se litigant lecturing a judge about reversible error? Just bring a rope to court so you can finish hanging yourself! You need to write up an Objecton to their Motion, in which you BRIEFLY state the issues you mentioned here. Get it filed before the hearing date. Discovery is incomplete, therefore triable issues of material fact still exist, the evidence (statements) provided by the plaintiff are not accompanied by the proper affidavit and are therefore not admissible evidence, etc. Filing a cross motion for SJ won't accomplish anything. How can incomplete discovery disqualify their motion but not yours? Forget all this stuff about forcing a judge to do this or that. You have no idea wht you are getting into. That is way too obvious. Any judge who hears stuff like this will chew you out in court for the fun of it. The best approach is to be respectful, humble, and brief. Tell the judge you are doing the best you can considering your situation. Ask him to give you a little slack because you are not an attorney and cannot afford one to go up against Citibank. NEVER take on a judge in open court and challenge him unless you are a lawyer and have absolute solid ground upon which to stand. Even then, there is a way to do it. You have gotten off to a bad start with your attitude. Proceed with it at your own peril.

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Here's some FL case law for your Opposition:

Summary Judgment

"It is well established that in order for a plaintiff to obtain a summary judgment when the defendant has asserted affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency." The Race, Inc. v. LAKE & RIVER REC. PROPS., INC., 573 So. 2d 409 - Fla: Dist. Court of Appeals, 1st Dist. 1991

“Summary judgment should not be granted when record raises even slightest doubt that issue of fact might exist.”

Sfeir v. Equitable Life Assur. Soc. of U.S., 595 So.2d 971 (Fla. 2nd DCA 1992)

Pending Discovery

"We have previously held that a summary judgment should not be entered when good faith discovery is still pending." UFF DAA, Inc., v. Towne Realty, Inc., 666 So.2d 199 (Fla. 5th DCA 1995).

Regarding the absence of an affidavit, cite the court rule referencing affidavits and business records.

Edited by BV80
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An inexperienced pro se litigant lecturing a judge about reversible error? Just bring a rope to court so you can finish hanging yourself! You need to write up an Objecton to their Motion, in which you BRIEFLY state the issues you mentioned here. Get it filed before the hearing date. Discovery is incomplete, therefore triable issues of material fact still exist, the evidence (statements) provided by the plaintiff are not accompanied by the proper affidavit and are therefore not admissible evidence, etc. Filing a cross motion for SJ won't accomplish anything. How can incomplete discovery disqualify their motion but not yours? Forget all this stuff about forcing a judge to do this or that. You have no idea wht you are getting into. That is way too obvious. Any judge who hears stuff like this will chew you out in court for the fun of it. The best approach is to be respectful, humble, and brief. Tell the judge you are doing the best you can considering your situation. Ask him to give you a little slack because you are not an attorney and cannot afford one to go up against Citibank. NEVER take on a judge in open court and challenge him unless you are a lawyer and have absolute solid ground upon which to stand. Even then, there is a way to do it. You have gotten off to a bad start with your attitude. Proceed with it at your own peril.

Legaleagle, im not trying to lecture anyone specially a judge, i apologize if came off that way but in fact i am talking to all of you to plan my strategy, that does not mean that i will offend anyone in court needless to say , a JUDGE for that matter, im taking out of confidence to you guys like we are a team, When i stated this law suit i did not know what the word "plaintiff" meant, so instead o rolling over and die, i decided to fight otherwise this lawsuit should of being a slam dunk for the plaintiff long time ago, but i decided to fight, Probably for nothing , probably im just delaying the inevitable or probably i will win, but im least im trying. but going back to what you implied about me lecturing a judge about irreversible error well,For instance, Florida law is replete with appellate court decisions that reversed a lower court’s entry of summary judgment where the defendant had not had an opportunity to complete discovery.

This is really basic law, the Defendant is entitled to a fair chance to procure discovery from the bank prior to entry of adverse summary judgment, Here are some cases related to that, See Kimball v. Publix Supermarkets, Inc., 901 So. 2d 293 (Fla. 2d DCA 2005) (“before Publix complied with the discovery order, the trial court granted summary judgment in favor of Publix. This award of summary judgment was error.”); Sanchez v. Sears, Roebuck & Co., 807 So. 2d 196 (Fla. 3d DCA 2002) (“summary judgment was granted before the facts of the case were sufficiently developed to enable the trial court to be reasonably certain that no genuine issue of material fact existed”); St. Fort v. Fla. Dept. of Trans., 688 So. 2d 469 (Fla. 4th DCA 1997) (“at the time of summary judgment, discovery was still ongoing, and the facts were not so crystallized that nothing remained but questions of law”); Henderson v. Reyes, 702 So. 2d 616 (Fla. 3d DCA 1997) (“the trial court erred in granting summary judgment in favor of Reyes while there were depositions that had not been completed and an outstanding request for the production of documents.”); Abbate v. Publix Super Markets, Inc., 632 So. 2d 114 (Fla. 4th DCA 1994) (“We are at a loss to understand how the summary judgment was entered with the plaintiff’s motion to compel still pending.”)

So you see, It's the case law that really backs everything up, nothing made up here, i totally understand what you are saying about when you stand infront of the judge not to sound like a morron about it when you say it , but the judge will "hopefully" see that what im saying has merit, because it's been a precedent of other cases where it was totally useless to award summary Judgment when Discovery was outstading, So if you’re trying to prevent a bank from getting summary judgment serve some discovery! Defendants are perfectly entitled to obtain answers to interrogatories and documents from the bank before a final judgment is entered

Some people would argue that this discovery is unnecessary and should not preclude summary judgment. That argument goes like this – “it’s undisputed the Defendant is in default; discovery won’t change anything.”

A well Respected lawyer from Florida Begs to Differ and i Quote "I understand that argument, but I totally disagree. Defendants aren’t required to accept what the bank says as true. Even if non-payment of the debt is disputed, that doesn’t mean that the defendant doesn’t get to challenge the amount owed. Banks are notorious for including fees and charges that should not be included. This is one legitimate purpose of discovery – to see if the amount the bank says is owed is accurate. . What I’m saying is that defendants can and should force the bank to produce discovery to prove/support the claims in its lawsuit before rolling over and allowing the bank to procure a Final Judgment.

Thanks.

Ps. I will rephrase it to "Your Honor, Defendant is entitled to a fair chance to receive discovery from the bank prior to entry of adverse summary judgment. (it does sound better)

Edited by florider
wording
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I know you are under a time constraint, so you are going to need help.

I will look it up.

OK here is a post From Linda7,Chuckygee, Massive,Jackson212, And coffeemama That may help(mad props to all).

http://www.creditinfocenter.com/forums/there-lawyer-house/303606-please-critique-opposition-summary-judgment.html

Just in case it goes bad.

http://www.creditinfocenter.com/forums/there-lawyer-house/308634-grounds-oppose-msj.html

I will work on this more.

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True about appellate courts overruling judges, but you don't want to bring that up in open court in any fashion. Here, at least, there is a proper procedure for taking care of bad decisions made by judges. Within 14 days, you can file (in CT anyway) a Motion to Reargue. Otherwise, you have to "preserve" the issue for appeal. For instance, if the other side files a Motion for Summary Judgment and you don't object to it, you can lose the right to use that particular issue on appeal. Of course this varies from state to state. If the judge hands down a bonehead decision, and sends out a memo of decision, you can appeal the case based on that decision, but only after you lose the case. You generally can't appeal decisions as they happen. After all, you may win the case, then it becomes irrelevant. A lot of the issues you have raised here seem like they could be resolved by simply following court procedure. Here in CT, you don't have to answer the complaint in any specific number of days as long as something else is going on, like discovery. How can you answer a complaint if you don't even know what the other side has? I think a simple objection to their MSJ, citing a few of the cases above, would solve this. They may even withdraw the motion rather than look like a fool in front of a judge. A lot of the tactics these collection lawyers use are based on the fact that you are pro se, and they think you won't know any better. It's not exactly abuse of process in the strict legal sense, because if you choose to represent yourself, you are supposed to know what you are doing. The judge won't help you, he isn't there to give legal advice. See my other posts on Citibank; all their BS about you being bound by South Dakota law but not them, etc. Oh yeah, that's in the credit card agreement they can't prove you agreed to. They'll try by invoking more SD law, which won't fly if you attack it correctly. SD has the weakest consumer laws around, and no usury limit as long as there is a written agreement between parties. Citi can export the interest rates of their home state, but not the rest of their laws. They tried that one already and lost. Check into that angle.

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  • 2 months later...

Well, i have being extremely busy , so i could not post the outcome of the summary Judgment hearing before. sorry for that.

I showed up early to the hearing and i noticed a long line of well dressed people, i waited to be called and everyone went in inside the courtroom, i sat in a corner, they started with fire insurance cases first and then they switched to creditcards, all uncontested lawsuits were granted to the plaintiffs, so far everything was going their way, 2 Defendant had representation , and the lawyers did rise some good arguments about affidavits not being presented and at one point the attorney for one of the defendants said to the judge, "your honor i promise you that my client is not a game player, everything we are asking is for a reason", to which the judge smiled softly. I noticed with all the cases before me that the judge was just too nice, i have heard horror stories about other judges , and i was glad that this was't my case. This judge was soft spoken, was polite and apply the Florida rule of civil procedure to the dot, (allthough

giving a lot of brakes to pro se litigant and sometimes using the court discretion to cut the prose some slack.

Then my turn, i was the last one and the only one in the court room, the clerck called the plaintiff and while we waited in those 5 mins, i made a remark to the judge about the motion for continuance that i filed days earlier and he politely stopped me and said " that would be considered and exparte communication, lets wait for the plaintiff to join us", i felt like an a$$, but right after that he kindly gave me a complement and said ," it's rare to have a pro se defending a credit card lawsuit , we dont get those very often here". Finally the Plaintiff appeared telephonically and we began ,

the judge immediately started flipping thru pages and stopped the rent a lawyer in cold in their tracks and said " Where is the affidavit", to which the rent a lawyer replied ", we have being trying to get th affidavit you honor", and the Judge said, " you have 20 days to produce the affidavit" i will order a continuance on the case to give the plaintiff time to provide the required affidavits in support of summary Judgment". then he went on to say that if i required an extension of time , just to let him know , that the holidays were coming and the whole case will be postpone for after xmas. after that i Told him that the plaintiff have not responded to my Discovery and even before the judge could open his lips , the rent a lawyer jumped and said , "your honor we sent the answers 2 days ago", and the judge said that i should wait for it . and that was my day in court. I survived this Summary Judgment hearing !!!!!!!!!and getting ready for 2nd round.

I will post again to give you and update ,....since the end of that summary judment the plaintiff has objected to interrogatories (my mistake, i put more questions than 30 which is the limit)im going to have to amend and reduce the amount of questions in my interrogatories , and also i will post here the affidavits that the rent a lawyer sent me after that hearing and what he attached to those affidavits.

Thanks a bunch guys , i feel confident (even if i lose).

round 1 for the dead beat (:mrgreen:!!!!!!!!!

round 2 we will see.......

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