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Whats my next step with Midland?


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Midland sued me, I answered, they sent me Production/Rogs/Admissions, I answered everything on time and sent them mine. So far they answered the admissions within the 30 days but nothing else, it is now at 66 days and I was waiting for them to make the next move.

I sent in motions to strike affidavits and anything else they presented. I gave them nothing to help with their case and they gave me nothing in return, I don't think they have a case and that is why they are stalling.

My question is, I have read on these boards that it is unwise to try to MTC them to answer and not to push them. But then I read that I should not just sit here and do nothing? SO what should I do next, so far everything is on the courts website from both sides and nothing has been ruled on by the judge.

We have had no meetings or anything from the courts and there is nothing scheduled.

What to do now?

Thanks

Edited by Carvone
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Your the Defendant so you get the luxury of them having to prove their case. If what you said is correct, and it appears to be the case, and all rules and procedures have been followed, then yes the next move is theirs or the courts.

Don't be surprised if that next move is not about ten months from now and in the form of a dismissal on the courts own motion due to lack of prosecution (that is great for you).

Very important. Check the case weekly. If you have online access all the better. You don't want them slipping some motion or pleading in, saying they sent you a copy, and then trying to get a summary judgement due to you not responding. If they move forward you have to strike quick.

That means asking for oral arguments on the motions. Then in my opinion filing a motion to preclude anything they did not provide you in discovery. Some, as you have noted, will say a motion to compel should be the next move. That is your call. I go with motion to preclude, but see the argument for MTC as it gets you a definate answer or better, non answer.

The key is just watch the case. You have done your part it is their time to do something. You can call the clerk of the court and just ask if there are any new pleadings that have been filed or any activity on the case. Never ask for legal advice just basic information like that.

Don't do that too often but won't hurt. The bottom line is to just watch and be ready. It is not uncommon for them to pull some b.s. at about six months. They think you have chalked up your victory and they will try to slip some other discovery or summary judgement motion.

You appear to have them at this time. Simply fighting back against Midland and appearing to know the court rules probably won you the case. A person fighting back, not being intimidated, and complying with the rules of procudure, do not fit into their business model. They want easy defaults and scared too death litigants that will immediatley settle or enter into a stipulated judgement.

Good job, but keep an eye on this and don't let your guard down. !!

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Your the Defendant so you get the luxury of them having to prove their case. If what you said is correct, and it appears to be the case, and all rules and procedures have been followed, then yes the next move is theirs or the courts.

Don't be surprised if that next move is not about ten months from now and in the form of a dismissal on the courts own motion due to lack of prosecution (that is great for you).

Very important. Check the case weekly. If you have online access all the better. You don't want them slipping some motion or pleading in, saying they sent you a copy, and then trying to get a summary judgement due to you not responding. If they move forward you have to strike quick.

That means asking for oral arguments on the motions. Then in my opinion filing a motion to preclude anything they did not provide you in discovery. Some, as you have noted, will say a motion to compel should be the next move. That is your call. I go with motion to preclude, but see the argument for MTC as it gets you a definate answer or better, non answer.

The key is just watch the case. You have done your part it is their time to do something. You can call the clerk of the court and just ask if there are any new pleadings that have been filed or any activity on the case. Never ask for legal advice just basic information like that.

Don't do that too often but won't hurt. The bottom line is to just watch and be ready. It is not uncommon for them to pull some b.s. at about six months. They think you have chalked up your victory and they will try to slip some other discovery or summary judgement motion.

You appear to have them at this time. Simply fighting back against Midland and appearing to know the court rules probably won you the case. A person fighting back, not being intimidated, and complying with the rules of procudure, do not fit into their business model. They want easy defaults and scared too death litigants that will immediatley settle or enter into a stipulated judgement.

Good job, but keep an eye on this and don't let your guard down. !!

Court rules include a Motion to Compel. We've advised posters to send a reminder letter to the attorney, and if there's no response, to file a MTC. I like a Moton to Preclude, but would a judge be favorable to such a motion if the OP hasn't followed other procedures?

As has been stated before, Pro Ses are held to the same standards as attorneys when it comes to procedure. If a Defendant knows enough to file a motion to strike documents, would a judge feel that Defendant should also follow the discovery procedures before filing a Motion to Preclude?

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Admin - Actually it really doesn't bother me, I have been waiting for over two months since I sent them my requests and all I have received is their admissions which were lame at best.

Coltfan - It was your replies in other posts that led me to make this new thread, saying not to MTC then saying don't just sit around doing nothing. I am fine waiting on them to make the next move. I check the courts website daily and it lists everything about the case.

This is all being done through an in-state lawyer of course, they did send me an "offer to settle" about a month ago.

I will admit I was a total noob on civil law but this site is now a daily read for me, I am having fun with this litigation stuff. All the better since it seems MCM has acquired yet another alleged account bearing some semblance of my name and I had to send another DV letter to them.

I thank you both for your replies.

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If you read my threads I say to do totally nothing and wait for a trial and then object. However, I've agreed with posters like BV80 that a motion to compel has it's place and see the benefit.

What I mean by not sitting around is if the other side is making moves you counter. For example, if you have a motion to strike and then the other side goes with a motion for summary judgment, don't just sit around wondering about your motion to strike and how it has been ruled. You then need to be proactive and call the court, get a hearing and then get a ruling on your motion to strike.

Personally, I do nothing and wait on the other side to act, then I make a move. If your going to go for a MTC, or any other pleading, then yes, follow the rules of the court. In my state there is actually no rule against filing a MTC without a f/u letter. It just means you can't get costs or fees associated with the motion. I'm not getting atty costs anyway so I don't care.

If you notice in the thread where the poster got beat by Midland after MSJ, I even pointed out, in my opinion, the procedural errors. Those were all errors, in my opinion, made after Midland had made the next move.

In my opinion, if you are watching the case and are ready to act immediatley if Midland makes a move, your doing great (my opinion). Personally, I make a strategic move to do nothing and take them on in court and use their lack of procedure against them. I'll do that until I lose. However, the alternate has great merit. Whatever you do, I stand by statement to do nothing, assuming you have 100% followed the rules to this point, and let Midland make the next move. Then strike fast and hard when they do and make them wish they had just forgotten about you.

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Coltfan,

I'm asking the following because I'm still learning. I agree there are times when we can sit back and do nothing. If a Defendant has answered the Complaint, the discovery requests, sent his own requests, and those requests have been answered by the Plaintiff, the Defendant can wait.

BUT, if the Plaintiff has not answered discovery requests and the Defendant does nothing, what happens if 6 months down the road the Plaintiff files a MSJ? The Defendant can file an opposition, include a MTS evidence, and point out that the Plaintiff never responded to discovery.

Would the judge then ask the Defendant why he/she waited until the hearing for summary judgment to point out that discovery requests were not answered? Would the judge ask why the Defendant never filed a MTC discovery or at least sent the attorney a reminder letter?

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The rules of procedure determine what you should do. Most states have a requirement that before filing any motions connected to discovery, the two sides must meet and confer. If they do not respond to your request, THEN you are within your rights to file a motion to compel, motion to deem as admitted, whatever. Don't jump the gun and file motions before studying the rules, that just leads to an objection by the other side that will probably be sustained. The plaintiff is the aggressor and must initiate the main action, but the defendant has a part in this as well. You have a right to demand the other side proceed with diligence. It's up to you to determine which actions will benefit your case. Personally, I would not give them any more time than the book says where discovery is concerned, you're just giving them more time to play "catch up" and find the evidence they need to beat you. If you force them to abide by the court's schedule, you may be helping yourself. Coltfan has it right, as usual! I like his approach.

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BV80,

My theory, and what has worked, is that while I'm held to the same standard as an atty, I still use the fact I'm not an atty. I flip that question on the other side and even the judge if necessary. Why did I wait? How about why a member of the bar did not properly answer discovery? Why am I, a non atty, having to address an issue of a licensed atty not following the rules? Why am I forced into this position by somebody that knows better? Is it possible that the other side is trying to not comply with the rules and use my non atty status against me and hope I will not catch their violation of the rules?

I've done this before and worked great. I've had the judge look at the other side and ask well? It's an agressive defense. Strike when you have to and lay low until poked by the other side.

I love a few good men. It's a movie of course but still, in my opinion, has great strategy. When Kevin Bacon asks the Marine to point out in the rules where it talks about a code red and he can't, and then Cruise grabs the book and asks him where it tells him where the mess hall is, is great. Cruise looks confused saying, you never get a meal?

He paints Jack into a corner with how mighty and powerful Jack is and how nobody dare defy his authority. Then after getting that all on the record, then asks, why did he need to be transferred and why was he in danager if you ordered nobody to touch him.

In my opinion, there is a time to be agressive and that can actually be by doing nothing. Your basically telling the other side, I can kick your a$$ whenever I want. You can also do nothing and this will all go away on the courts own motion to dismiss. However, if you want to press the issue I'm ready to fight and winning is not good enough for me, I want to also embarass you in the process. Once again, using the non atty status against them. I've told them, I'm expected to lose and won't even raise an eyebrow if I lose, can you say the same thing if I win against you?

I admit, I do not file motions to compel and I wait. I do not address any issue that the other side did not comply with per the rules. There are some risks I guess, but I have faith in the appeals court. I've never even once had a remote issue with procedure. It is usually the other side having to explain.

When pressed and the other side answers or files a motion, you better believe I'm on it and I don't let it sit around. It's a combo of doing nothing and the bare min required and knowing the perfect balance. It works for me is all I can say.

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  • 2 months later...

UPDATE TIME...

I sat back and did nothing for the last four months and out of the blue Midlands lawyers file a "Motion for final Summary Judgment", Go figure. They even had the chutzpah to attach the same robosigned affidavit in their support that I already filed a motion to strike on the first time they used it for a MSJ. :roll: the nerve I tell ya.

Here is what is in the MSJ.

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 the attached affidavit.

2.plaintiff is entitled to summary judgment 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 605 (Fla.1975).

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

4.Any affirmative defenses by the defendant have been specificaly rebutted in Plaintiffs affidavit.

5. Plaintiff has previously filed their affidavit in support of their MSJ with this court.

Obviously I am going to file another Opposition to Summary Judgement.

Question is, should I send the last Opposition and Motion to strike along with the new one? Do I file another "motion to strike the affidavit"? And what is my move after that to put a stop to this? Should I file a motion to dismiss? Or??

I still have not received anything back from my discovery except the denial of admissions and that was back in September and NOTHING has been ruled on by the judge and NO court dates or anything have been scheduled? Does this sound strange to anybody else?

Thanks for your time.

Edited by Carvone
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Routine B.S. As their motion states, a general denial won't defeat their MSJ. You don't have a general denial. You have specific denials. Your main one is their lack of standing. Attaching their own affidavits does not create a slam dunk with no material issues to decide.

There should be a law against these type of frivilous MSJ. I know it won't ever happen because they work most of the time because people don't fight, but this is absurb. They don't answer discovery and then they want summary judgement based on their own self serving statements and bogus affidavits, that even if they were not bogus, would prove nothing other than an account.

There is actually a Youtube video of a member that defeated Midland in court. It's the actual MSJ hearing. He beat them in a few minutes and Midland basically had no response to the defense. He just attacked standing and like you, the fact he had unanswered discovery pending. You might want to search for that video of if he is reading this thread he might PM it to you or post the link.

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I think you have an easy objection for MSJ, this is standard form for these clowns, they act out of desperation and hope they can get away with it. Who knows what they were waiting for. Did the judge change? Some lawyers will do that if they like a particular judge better. Ask for sanctions and costs for filing a frivolous MSJ when they haven't complied with discovery.

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"Because the affidavit contains only conclusory statements of ultimate fact, it is insufficient to sustain the movant's burden of demonstrating the absence of any genuine issue of material fact." Nour v. All State Pipe Supply Co., 487 So.2d 1204, 1205 (Fla. 1st DCA 1986)

I don't know what they stated in their affidavit, but if they stated "information and belief" instead of "personal knowledge", here's some case law for your Opposition:

"An affidavit based soley on "information and belief" does suggest that the oath or affidavit is merely swearing to a belief based on hearsay information provided by others and is insufficient to meet the requirements of Rule 1.510(e)." First Nat. Entertainment Corp. v. Brumlik, 531 So. 2d 403 - Fla: Dist. Court of Appeals, 5th Dist. 1988.

"An affidavit based on information and belief is not admissible into evidence and should not be considered by the trial court on a motion for summary judgment." Thompson v. Citizens Nat'l Bank of Leesburg, 433 So.2d 32, 33 (Fla. 5th DCA 1983)

Summary Judgment

"To be entitled to a summary judgment, a party moving for summary judgment must conclusively demonstrate the nonexistence of an issue of material fact, and the court must draw every possible, reasonable inference in favor of the party against whom the summary judgment is sought." Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75 - Fla: Dist. Court of Appeals, 5th Dist. 2006

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Midland sued me, I answered, they sent me Production/Rogs/Admissions, I answered everything on time and sent them mine. So far they answered the admissions within the 30 days but nothing else, it is now at 66 days and I was waiting for them to make the next move.

I sent in motions to strike affidavits and anything else they presented. I gave them nothing to help with their case and they gave me nothing in return, I don't think they have a case and that is why they are stalling.

My question is, I have read on these boards that it is unwise to try to MTC them to answer and not to push them. But then I read that I should not just sit here and do nothing? SO what should I do next, so far everything is on the courts website from both sides and nothing has been ruled on by the judge.

We have had no meetings or anything from the courts and there is nothing scheduled.

What to do now?

Thanks

In this case use the time to sharpen your knowledge of the issues ie. Standing, lack of personal knowledge, improper authentication, so the only real thing you can do is motion to accelerate trial. Use that if you know how to defend the issues.

If not you have to wait for trial. use the time to gather relevant case law to force them to either go away or lose. make sure you read procedure for any paperwork that is required before trial and make sure you stick to the deadlines for those.

when is your trial date? that will determine what is going to happen.

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Coltfan: I viewed that video back when he made it and will review it again if I ever get a chance to go to court.

Legaleagle: I found another member here that had the same MSJ from a different lawyer so it is definitely a standardized form for them. No change in judge that I have seen?

BV80: Thanks for the case law, I was able to use the last one.

Seadragon: I think you missed my update post. No trial date or anything has been set yet.

Thanks all, printing out my Opposition now and it looks good.

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Don't forget your memo of law, or points and authorities, whatever they call it in your state. This is a separate document setting forth your case law. Put all the arguments from the motion into the memo. Just copy and paste. Otherwise they'll try to nail you for case law that doesn't support any argument. Some states require that any argument made in the motion be included in the memo. Better safe than sorry. You can also look for some samples on line or get some samples, lots of FLA posters here.

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  • 2 weeks later...

Another Update -

I filed my Opposition to their second MSJ and within a week or so they file to have a hearing??? WTH are they trying to pull here? They have provided me with nothing in the discovery phase, which is technically still ongoing and now they want a hearing....they appearing telephonically of course. Nothing is signed by the judge yet though and probably wont be.

Can I file a motion to dismiss this whole thing based on them not providing any proof? If not what other motion can I ram down their throat? Cant wait to see these guys in court.

Thanks

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Another Update -

I filed my Opposition to their second MSJ and within a week or so they file to have a hearing??? WTH are they trying to pull here? They have provided me with nothing in the discovery phase, which is technically still ongoing and now they want a hearing....they appearing telephonically of course. Nothing is signed by the judge yet though and probably wont be.

Can I file a motion to dismiss this whole thing based on them not providing any proof? If not what other motion can I ram down their throat? Cant wait to see these guys in court.

Thanks

The hearing is probably for their SJ motion. That's where you'll both get to present your arguments to the judge.

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The hearing is probably for their SJ motion. That's where you'll both get to present your arguments to the judge.

That's exactly what it is and I look forward to it but what can I do or file in the mean time to make them look worse than they already do?

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That's exactly what it is and I look forward to it but what can I do or file in the mean time to make them look worse than they already do?

I can't think of anything. Just have your ducks in a row. Hopefully, you included applicable case law in your opposition.

If you have time, you might want to check the court docket see if the attorney representing Midland has hearings any time soon, and go sit in on them. It helps to know the enemy.

Preferably choose cases where the Defendant answered the Complaint and is presenting a defense. You don't want to waste your time on hearings where there's only a bunch of default judgments. It would be even better if there is a case where the defendant has an attorney representing him/her.

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