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Trial tomorrow!! What do I do?


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Hey all

Trial is set for tomorrow and I have no clue what to expect or say???

Being sued by Midland of course... Thanks

Going to need a ton more details and what has gone on up to this point to offer last minute help. Allegations, defenses, discovery, witnesses, motions granted or denied, communications with the other side and what they said, amount of claim? Just to name a few.

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Reading all these posts won't help us. We have NO idea where you are in this case,or what you know about procedure. My best recommendation is that you ask the judge for a postponement until after the holidays so that you can appear in his court with some level of expertise. Explain that you need time to study procedure. You'll probably get a continuance.

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From reading those threads it looks like a hearing for summary judgement tomorrow. You were given good advice in those threads. Did you do the following?

It means just what it says, they filed for summary judgement and attached an affidavit to support their motion and position.

It means they are trying to end the case without a trial. You don't necessarly have to prove or win your case at this stage. You must show the court there is an issue for trial.

They have an affidavit, you need your own affidavit. Dueling affidavits can be argued as needing to be settled with a trial. It all depends on the subject matter of the affidavit. You can't just say, I dispute in an affidavit and be done with it.

I would look at their motion and go line by line in your reply to their motion. I would dispute, then I would lay out the dispute, such as, what is missing in their arguments. Once again, you need only show the need for a trial that there are issues that are not so cut and dry a trial is needed.

There are elements they must prove to win there case. They have to meet all those to win. Attack each element. For example If I say you hurt me in a car wreck. I have to show you were driving the car that hit me, you did a certain action, that action was illegal, I was hurt by your action, your action was the proximate cause of my injury, I did not contribute to my own injury, and the amount of my injury you should pay.

If I don't prove you were at fault then everything does not matter. If I can't prove how much you owe then that is my problem. Same with there case. They need to prove a debt, a contract, a meeting of the minds, they own the debt, you defaulted, you were given notice, the alleged purchases were for certain household items, your liable to them, and what amount your liable to them for.

They build their case and you knock the legs out from under it piece by piece. Not a general I don't owe you statement. That is fine for the lawsuit answer, now you have to not necessairly prove you don't owe them, you have to show there is enough in dispute for there to be a trial.

You defeat their MSJ then you most likely are going to win at trial, because there will probably be no trial. Summary Judgement is where most creditors win their case.

Attack, attack, attack, every piece of info and submitted exhibit with the motion. Raise all types of issues for a trial. Don't admit to anything and leave everything disputed. In my opinion, your reply needs to be flooded with examples of what is in material dispute and needing a judge or jury to decide (trier of the facts is what you will call it).

LOL. Calm down.

Discovery requests are requests to find out what evidence the opposing party may have against you.

Requests for Interrogatories

Interrogatories are requests to which they must provide an answer. For example: "State the date of last payment on the alleged account." They must state the date of last payment.

Requests for Production of Documents

This is a request for documents they haven't already sent. Bill of Sale, all account statements showing all charges, payments, interest, and fees, the cardmember agreement, etc.

Requests for Admissions

These are statements they must admit or deny. For example: "Admit that JDB, Inc. does not have access to the original records created and maintained by OC Credit Card Company." They have to admit or deny.

The requests are sent to the Plaintiff's attorney. The format is the same as their complaint and your answer...court header, case number, title (Request for_______), etc.

A Request for Production of Documents might begin with:

___________(your name), Defendant Pro Se, hereby submits the following Requests for Production of Documents to _____________(name of JDB), Plaintiff pursuant to Rule ___ of the Ohio Rules of Civil Procedure (or whatever court you're in).

You then list your requests for the documents you want them to present. Your Rules of Civil Procedure regarding discovery will give details. Some courts only allow a certain number of requests. Other courts don't specify. The rules will also state if the requests must be filed with the court. In my state, we don't file discovery requests, but we do include a certificate of service stating that the requests were sent by certified mail on whatever date and file that certificate with the court.

Here's some examples of Interrogatories:

http://www.creditinfocenter.com/forums/there-lawyer-house/307901-iterrogatories-utilize-when-dealing-oc-jdb.html

Here's some sample admissions: (the 1st 13 can be sent to any JDB)

http://www.creditinfocenter.com/forums/there-lawyer-house/308184-request-admissions.html

Coltfan is right about the need to show there is an issue that needs to be settled by trial, and that you must dispute the items in their motion line by line. The key phrase is "Summary judgment may only be granted when no triable issue exists as to any material fact."

You should be receiving a copy of their motion, or go to the courthouse to get a copy, to start examining.

What you want to file is "Opposition to Motion for Summary Judgment." Do a Google search for this phrase; I found one for California that would probably be helpful.

Good luck.

DH

Indonesia! I love it. I know what you mean. As for dismissal, I don't know what the law is in Ohio, but most states' Practice Book rules are virtually identical. Here, in Connecticut, you file a motion to dismiss because you think the court does not have jurisdiction over the matter: Sec. 10-31. —Grounds of Motion to Dismiss

(a) The motion to dismiss shall be used to assert

(1) lack of jurisdiction over the subject matter, (2)

lack of jurisdiction over the person, (3) improper

venue, (4) insufficiency of process, and (5) insufficiency

of service of process

It doesn't mean you're going to win the case, that's a different motion altogether called summary judgment. Don't start filing stuff you don't understand, you'll just make the clerk and the judges mad at you and they'll stick it to you.

Apparently the plaintiff has not been pursuing the case? And the magistrate (who handles these cases in Ohio Muni courts) has isued an order directing them to file a SJ motion or else.

As noted above, you will need to respond to their motion. Are you engaging in discovery?

You never answered.

Did you follow up with the opposition and discovery? You asked a lot of questions in the threads and were given advice, but never updated the threads or let us know what you did or what was their response.

So once again, what has taken place to this point. What have you done and what has been their response to what you have done or filed.

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If it is trial:

look over my trial brief here:http://www.creditinfocenter.com/forums/1121026-post40.html

Find the motion in limine part use that as a guidline for evidence exclusion using your own motion in limine according to your statutes.

use the rest of the trial brief as a guidline for your trial brief.

If it is summary judgment.

first off if you didn't file opposition you are kinda screwed. You are going to have to make opposition motion tonight, hand a copy to the P's counsel after having filed it with the court and orally argue your opposition for the usual reasons No personal knowledge, affiant is recycling hearsay, no mesne(yes that is correct spelling)assigment particulars, foundational knowledge, and finally you are going to have to make your own affidavit to counter theirs and file it in the morning with the court and hand it to them.

So make a pot of coffee look up the case law for evidence admissability, foundation, reliability, and admissability.

You know I am a very positive person, but it is not fair to us emotionally for you to come a few hours before either a major trial or the major SJ and say what what do i do.

What were you doing these past months? It doesn't matter. we help everyone so do what I said and try to salvage your case.

exclude evidence before trial starts as the witness has not shown the required knowledge or foundation to elevate their averments above the level of heasay.

And something for the back pocket, on the bill of sale it says without recourse. This creates an inference that the records are unreliable, the account validity is not being authenticated and they refuse to certify them. The bill of sale doesn't reference your account, and doesn't transfer a right to sue. Kinda like an as-is car. so keep that for the bill of sale.

If you want to win at all. You will listen to us now. I do have to say where midland is beaten many times by proper prep and good knowledge of the statutes and evidence rules If you don't look up anything and sleep thinking you can generally just throw objections out there the court just might hand them your scalp for their wall.

I truly do hope that midland sends a schlub attorney so you can win.

and as a last ditch effort if it is going bad for you tomorrow. say they never supplied you with the evidence in the summary judgment in discovery so you could subpoena the alleged signatories for any of this stuff, the court was going to dismiss the case and plaintiff failed to give the discovery prejudicing me by not giving time to conduct discovery of the affiants personal knowledge, their qualifications and job duties, and the information that they relied on to form the conclusory opinions averred by affiant.

The SJ is not well taken as there are several key issues for trial:

The alleged records handling and storage procedure

the alleged records authentication and verification status

the affiants job discription and relevant training and education

the affiants actual knowledge of the account validity, maintenance, accounting practices,

The Standing of the plaintiff's to sue.

The bill of sales authenticity(who witnessed the transfer and whether the account at issue was included in the alleged sale), any Mesne assignments.

The affiants personal stake in these proceedings and whether they recieve compensation for their testimony.

The actual validity of the underlying alleged account.

Use that and do the other research Summary Judgment does have one good advantage it creates a defendant favored atmosphere. with your denial in the answer. and an affidavit of yours it could go favorably.

Stand by for the judge to not be happy about the last minute submissions. hopefully you can argue your way out of it.

Understand alot of people are kinda angry with the lack of investment of your time to looking all this up but if you survive tomorrow we will help you to prep for trial if you will invest Your time into looking up caselaw.

I was just going to "pass" on this post but I think you have adequately learned the lesson of the grasshopper and the ants. I have faith you can pull out the hail mary. Tomorrow after hearing if you are still going to trial stick them with discovery. if it goes bad for you prep for post trial procedures

Edited by Seadragon
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I did attempt to file a Contigency... and this is what I got in response:

MAGISTRATE'S DECISION This matter came for hearing on the 18TH day of November , 2011. The Magistrate finds as follows: Service on the named defendants is proper and the parties are properly before the court. This matter came for review of the defendant’s motion for continuance filed at 10:48 AM on the day of the hearing on plaintiff’s motion for Summary Judgment. The defendant seeks more time to “…acquire necessary documentation, study legal procedure…” The record indicates that the motion was served on the defendant at the address provided by the defendant by ordinary U.S. Mail on 24 October 2011. While the defendant stated by phone that he did not receive the motion, the Civil Rules have been complied with. Defendant now lists a different address in the motion. No other notice of a change of address has been supplied. The record also reveals that the defendant did file an answer in this case in the form of a general denial with affirmative defenses. The answer was filed in July 2011. Defendant has had more than adequate time to acquire documents and prepare a defense. If defendant secures consent of the plaintiff, a continuance will be granted. If no consent is obtained, the hearing will proceed.

So...? How do I secure consent from the plaintiff? And is this even realistic?

Thanks again for all the help!

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Continuance I believe you are running out of time though. The court has basically said that you haven't been diligent. The other side has absolutely no reason to continue this. prepare for orally arguing your opposition for the areas in my posts and the others.

It seems as if You can already see how the court plans to rule. So you are going to have to have a better second half.

Good luck and keep your emotions in check.

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This is legalese for "you're screwed." Sorry, I know you don't want to hear that, but courts are fed up with litigants who do not know the rules of procedure and then expect leniency. If you appear pro se, you are basically agreeing that you will follow the rules of procedure the same as any member of the bar would do. If you do not know how to do it, that is not the fault of the court, it is your fault. Courts will grant a little slack to pro se litigants, but not this much. It appears from this memo of decision that your request for a continuance arrived the day of the hearing. This is a bad procedural move. You should give the court more notice than this. Last minute continuances are not normally granted for this type of reason, as you can see. The court is telling you that you had 4 months, which is adequate time to prepare.

It appears that you have come up against a judge who does not appreciate people coming into his court who do not follow procedure. See "My Cousin Vinny...." remember judge Chamberlain Haller? He told Joe Pesci that he was expected to know the rules of Alabama when he appeared in court. You too. Do otherwise, and you will incur the polite wrath of the judge.

At this hearing, you must raise a genuine issue of material fact which is in dispute. Forget the continuance argument, that will be objected to and sustained. The court already ruled against you on that.

The opposition will NEVER consent to a postponement. This is like attacking an enemy position and all of a sudden the enemy asks you to stop until they have time to reload their weapons. Would you do it? All you can do now is give the judge a good reason why this MSJ should not be granted. That does NOT include time limits.

Edited by legaleagle
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Something doesn't make sense.

This matter came for hearing on the 18TH day of November , 2011

This is the day of the hearing for the plaintiff's motion for summary judgment, if I read this correctly. You posted on the 19th that they denied your continuance. That means the heraig went forward as scheduled that day, the 18th. Is this right? Did they have the hearing? What happened?

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