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Court-Annexed Arbitration- Motion to dismiss SJ Today!!!


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In an 1 1/2 hours, I am appearing by phone to fight a SJ filed by F&S in Alb, NM.

They used the original affidavit (filed with summons), then used about 200 statements since 2004 and an agreement from 2010.

This was my response. I'm terrified, so if anyone has gone through this before...any advice would be appreciated. Not sure what I should say or how to respond.

MOTION FOR DISMISSAL OF SUMMARY JUDGMENT

COMES NOW the Defendant ME and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGMENT in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, Capital One Bank (USE), N.A., as follows:

1. Defendant affirms the matter arises out of a credit card debt. Defendant denies it’s a valid credit card debt.

2. Defendant denies being subject to Credit Card Agreement attached as Exhibit “B”.

3. Defendant denies agreeing to Credit Card Agreement attached as Exhibit “B”.

4. Defendant denies agreeing to Credit Card Agreement attached as Exhibit “B”.

5. Defendant denies a breach of Credit Card Agreement attached as Exhibit “B” and denies that the Affidavit attached as Exhibit “C” bears any proof that agreement was breached.

6. Defendant affirms they have not reported any credit cards lost or stolen.

7. Defendant affirms address has not changed.

8. Defendant affirms they have not protested for unauthorized charges or defective merchandise on any credit card.

9. Defendant affirms that Credit Card Agreement attached as Exhibit “B” states that card member is responsible for court costs and reasonable attorney fees. Defendant denies that Credit Card Agreement attached as Exhibit “B” dated 2010 has any bearing on an alleged account that was opened in 2004 according to statements attached as Exhibit “A”.

10. Defendant denies that account balance is $1231.XX.

ARGUMENT

1. The Motion for Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment filed with the Arbitrator, LXXXXX SXXXXX. The Motion does not set forth the true facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only that “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law” Motion for Summary Judgment should be denied.

2. Defendant received the Plaintiff's Summons on January XX, 2011. Defendant answered the request on February XX, 2011.

3. Plaintiff requested Court-annexed arbitration on October XX, 2010. Order of Referral to Court-Annexed Arbitration was filed by the court on March X, 2011. Order Appointing Arbitrator for Court-Annexed Arbitration was filed on March XX, 2011 by the court.

5. The Plaintiff has failed to provide any contract or an agreement bearing the signature of the Defendant which would constitute intimate knowledge of the creation of the debt.

6. The Plaintiffs affidavit is insufficient under New Mexico Rule 11-803 (f). The Affidavit attached as Exhibit “C” does not specify they are familiar or have knowledge of Credit Card Agreement attached as Exhibit “B” nor does it specify they have specific knowledge of Credit Card Statements attached as Exhibit “A”.

7. New Mexico Rule 11-902 (k) requires the affidavit to set forth facts that would be admissible in evidence. The plaintiff’s affidavit does not comply with any of these requirements. The Affidavit attached as Exhibit “C” does not specify specific knowledge of Credit Card account, only that it is familiar with the way Capital One Bank (USA), N.A. maintains its normal business books and records, including computer records of defaulted accounts. Exhibits are hearsay and do not fall under the business record exception.

8. The Credit Card Statements attached as Exhibit “A” and the Credit Card Agreement attached as Exhibit “B” does not fall within any of the hearsay exceptions. The Affidavit attached as Exhibit “C” never makes mention of Exhibit “A” or “B” and therefore cannot be introduced into evidence. See New Mexico Rule 11-902 (k)(1).

9. The Affidavit attached as Exhibit “C” signed XX June 2010 states the account balance for credit card account number XXXXXXXXXXXXXX is $1366.XX yet the Plaintiffs Motion for Summary judgment dated XX August 2011 via the Transmittal Memorandum states under Statement of Undisputed Facts, number 10, that the account balance is $1231.XX.

Since the Plaintiff is requesting the Motion for Summary Judgment based on records that were not specified in the Affidavit attached as Exhibit “C” the documents are not admissible as evidence. The Plaintiffs Exhibits “A, B & C” along with the Plaintiff’s Motion for Summary Judgment seem to contradict each other and are therefore incompetent and insufficient. I must conclude that the request entered for Summary Judgment without the benefit of any facts be denied. Accordingly, Motion for Summary Judgment was improper.

WHEREFORE, Defendant, ME, respectfully submits that the Arbitrator should deny the Plaintiff's Motion for Summary Judgment, filed herein by Capital One Bank (USA), N.A. and prays for Dismissal of the complaint with prejudice.

Defendant's motion for dismissal of summary judgment submitted this XX day of September, 2011.

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I hope you kill'em. If you don't, you have the opportunity for a trial de novo. There is one thing for you to look out for in this, and that's some relaxing of the rules of evidence in LR2-603, which governs the court annexed arbitration. They won't be able to sneak them in under the original affidavit in real court, but they may be able to here.

Let us know how it goes, and the best of wishes to you.

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If that's the case, I'm wondering if I can throw that back in their face. In their request for a SJ, they have a section titled Law and the first one is this:

Pro Se litigants, having chosen to represent themselves, are held to the same standard of conduct and compliance with court rules, procedures, and orders as members of the bar. Newsome v. Farer, 103 N.M. 415, 708 blah blah

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according to some paperwork I have from the court, Civil procedures and rules of evidence still apply during referral to arbitration unless specifically waived by written court order. The arbitrator may waive rules of evidence only upon agreement of both parties. Hmmm! Local Rule 2-603(V)(A)(3)

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C. Evidentiary exceptions. The following exceptions apply during referral to arbitration.

(1) Depositions. The arbitrator may hear testimony by deposition.

(2) Documentary evidence. The following documents, if relevant, shall be admitted in evidence without further proof provided a copy of said documents is served upon all parties no later than ten (10) days prior to the hearing or trial:

(a) Estimates and bills for services and products, if dated and itemized.

(B) Reports of experts, if dated and signed.

© Records and reports as described in Rule 11-803 NMRA, Paragraphs (F), (H), (I), (K), (L), and (N) through ® NMRA.

This is the part of LR2-603 that I'm talking about. It basically throws the authentication requirement for records of regularly conducted activity out the window, so long as the records were served upon you at least 10 days before the hearing.

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If that's the case, I'm wondering if I can throw that back in their face. In their request for a SJ, they have a section titled Law and the first one is this:

Pro Se litigants, having chosen to represent themselves, are held to the same standard of conduct and compliance with court rules, procedures, and orders as members of the bar. Newsome v. Farer, 103 N.M. 415, 708 blah blah

You'll have to tell us how they used this case. Out of context, it appears that they are just trying to scare you, but it may be very different in context. IMO, they should start following the rules themselves before they start telling Pro Se litigants to.

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Yeah, I'm curious how it went too.

I would have posted that portion of the rule earlier, but I was sitting in a dentist's chair having my gums peeled back so that some of my mandible could be ground away not too long after my first post ITT. I hope that the attorney was too disorganized to bring up that section of LR2-603. I hope you didn't get blindsided with it. If you did, like I say, you have 15 days to file a notice of appeal for a trial de novo.

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Sorry I took so long to get back. The Motion for SJ was denied :) Our hearing for the actual issue is on the 21st. My lawyer who I hired for an FDCPA violation of another account told me to continue to raise the issue of hearsay. because they have attached the documents in lieu of the affidavit which does not state that the "witness" has any knowledge of actual statements or the card agreement...they cannot be considered business records nor can they be entered in as evidence.

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If that's the case, I'm wondering if I can throw that back in their face. In their request for a SJ, they have a section titled Law and the first one is this:

Pro Se litigants, having chosen to represent themselves, are held to the same standard of conduct and compliance with court rules, procedures, and orders as members of the bar. Newsome v. Farer, 103 N.M. 415, 708 blah blah

I would put some of the business and professions codes for attorneys in with such things as attorneys have a duty to review the evidence in good faith prior to filing a suit, attorneys shall not use motions to harras or oppress.

You get the picture.

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