Jump to content

opposition to motion summary judgement, nv


Recommended Posts

Hi,

I am filing a opposition to motion for a summary of judgement from capitalone bank. I need help with answering the statement of facts and and argument. I am on a time crunch, so any help would be appreciated. The attorneys provided my statements and an affidavit in support of summary judgement from someone in virginia, who is an authorized agent. Any advice would be greatly appreciated, the attorneys are saying that I am unjustly enriching myself, that no genunine issue remains, for a trial.

On the heading it is saying they are attorneys for the Plaintiff and not a file number.

thanks!

Link to comment
Share on other sites

You are late to the party, as they say. It is almost impossible for anybody to help you at this late stage of the game. You never posted anything about your case. Time crunch? You bet. File for an extension of time, then come back here and start from square one.

don't you have to a really good reason to file for an extension? I am not sure i qualify.

Link to comment
Share on other sites

My Capitalone Summons begins on 05/12/11, the original summons:

Complaint:

Capitalone complains against Defendant as follows:

Jurisdiction:

1. Plantiff is a foreigh corporation lawfully authorized to transact business within State of NV

2. Unpon information & belief, Defendant, insert my name, is/are (an) adult resident of xx township, xx county, NV is otherwise competent to enter into agreements and to proceed with this action.

General Allegations:

3. Plantiff rreasserts the allegations set forth in paragraphs 1 through 2 above.

4. Plantiff, Capitalone bank upon application of the Defendant issued its credit card bearing number to the defendant.

5. The above-mentioned card acount is the subject to a credit card account agreemnt between plantiff and defendant.

6.Upon information and belief, defendant on various and separate occasions, and/or other persons with the consent of defendant, used the card to make purchases and/or obtain services, and/or obtain cash advances from plaintiff.

Count I: Breach of credit card account agreement

7. Plantiff reasserts the allegations set forth in paragraph 1 thru 6 above.

8. Plaintiff further alleges that the above mentioned account is an account stated because the Defendant regularly used the car to incur charges, or obtain cash advancements from Plaintiff.

9. Plaintiff has mailed Defendant, monthly statements required by the credit card account agreement, which have been accepted without objection.

10. Plaintiff has made demand of payment of the balance, however, defendant has/have defaulted under the terms of the charge account agreemnt by failing and/or refusing to make payment on said account, with the date of the last payment having made before the account was charged-off or the date the account was charged off being 02/11/08.

11. The current balance of debt due on the card account is the sum of $4,168.03

Count II: Unjust Enrichment

12. Plaintiff reasserts the allegations set forth in paragraphs 1 through 11 above.

13. Plaintiff further alleges that defendant received monetay benefit from plaintiff

14. that defendant accepted the above-mentioned benefits

15. Defendant's use of the card to solict for funds constituted a knowing and willful request for the funds at issue, and/or knowing and willful acceptance of the benefits bestowed.

16. The theory of unjust enrichment requires that the person who has been unjustly enriched at the expenses of another must make restitution to the other. Therefore, it would be inequitable for this court to allow defendant to retian benefits of the funds or to be unjustlay enriched at the expenses of plaintiff, or to allow defendant to retain value of the funds at issue without replaying plaintiff the value of the same.

Wherefore plaintiff requests the following relief:

1. A judgement against the defendant for the sum,, plus the interest accruing after judgement at the legal rate

2. that plaintiff recover all costs incurred in this action

3. reasonable attorney fee, and

4. for such other and further relief as the court may deem just and equitable.

Link to comment
Share on other sites

1. Defendant admits Allegation 1

2. Defendant admits allegation 2

3. Defendant denies the allegations contained in paragraphs 3-9 of the complaint as defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements

4. Defendant denies the allegations contained in Paragraph 3-9 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and defendant.

5. Defendant lacks knowledge about the truth and therefore denies allegations contained in paragraphs 3-9, plaintiff has failed to provide defendant with any kind of account or documentation for alleged debt.

1. Plaintiff fails to state a cause of action against the defendant

2. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.

3. The action is barred by the Statue of Frauds

4. The action is barred by the Statue of Limitations

5.The court would unjustly enrich the plaintiff by granting the relief sought herein

6. the plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the priniciapl, interest, collection costs, attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up wiht all contract, account statements and purchase receipts to prove amount of debt.

Wherefore, the defendant asks the court for judgement:

a. dismissing the complaint herein with prejudice.

Link to comment
Share on other sites

Then the attorneys for capitalone one replied with a a motion for summary judgement:

Motion for Summary Judgement

Comes now, plaintiff , Capitalone by through it attorny of record files a motion of summary judgement. This motion is based on the attached memo of points and authorities, an affifavit of xx with all supporting documens, Exhibit 1, monthly billing statements; and the pleadings and documents on file with this court and any arguemnt of counsel at the hearing in this matter.

Points and Authority

1. On or about date, defendant applied for a credit card with plaintiff, see affidavit of xx with attachments consisting of exhibit 1 , monthly billing statements.

The summons & complaint were served on defendant 6/13. the affadavit of service is contained in the court's file. Defendant subsequently served a written answer on plantiffs attorneys, which failed to raise any genuine material facts for trial.

Because the evidence clearly shows that there are no genuine issues for trial, plaintiff has brought this moion for summary judgement.

II. Arguement

A. Standard Governing summary judgement

B. No genuine issue remainds for trial on plaintiffs breach of contract clain, and therfroe plaintiff is entitled to summary judgement.

C. No genuine issue remainds for trial on plaintiff's unjust enrichment, and therefore plaintiff is entitled to summary judgement as a matter of law.

D. Plaintiff has established defendants liablilty and the amount owed pursant to NRS 97A.160

III. conclusions

Based on the foregoing plaintiff respectfully request that the court grant the subject motion for summary judgement.

Link to comment
Share on other sites

Nevada Rules of Civil Procedure

(B) Enlargement.  When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the parties, by written stipulation of counsel filed in the action, may enlarge the period, or the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(B), 50©(2), 52(B), 59(B), (d) and (e) and 60(B), except to the extent and under the conditions stated in them.

[As amended; effective January 1, 2005.]

© Reserved.

(d) For Motions—Affidavits.  A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by rule or order of the court. Such an order may, for cause shown, be made on ex parte application. When a motion or opposition is supported by affidavit, the affidavit shall be served with the motion or opposition.

[As amended; effective January 1, 2005.]

(e) Additional Time After Service by Mail or Electronic Means.  Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon the party and the notice or paper is served upon the party by mail or by electronic means, 3 days shall be added to the prescribed period.

[As amended; effective January 1, 2005.]

Drafter’s Note

2004 Amendment

Subdivision (a) is revised to extend the exclusion of intermediate Saturdays, Sundays, and nonjudicial days to the computation of time periods less than 11 days consistent with the 1985 amendments to the federal rule. Additionally, the ‘‘inaccessibility of the court’’ provision found in subdivision (a) of the federal rule is added to Rule 6(a). Subdivision (a) is further amended, by adding language referring to ‘‘proceedings filed under Titles 12 or 13 of the Nevada Revised Statutes,’’ to avoid any changes to current procedures in probate, guardianship and trust proceedings.

Subdivision (B) is amended to preclude the district court from extending the time for taking any action under Rule 50©(2), except to the extent and under the conditions stated in that rule. The revision is consistent with the federal rule.

Subdivision (d) is amended to require that an affidavit in support of an opposition to a motion must be served with the opposition. The revised rule is based on local rules in several districts. The revised rule does not incorporate language in the federal rule that requires opposing affidavits to be filed 1 day before the hearing.

Subdivision (e) is amended to provide an additional 3 days to act in response to a paper that is served by electronic means under new paragraph (2)(D) added to Rule 5(B).

RULE 10.  FORM OF PLEADINGS

(a) Caption; Names of Parties.  Every pleading shall contain a caption setting forth the name of the court and county, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. A party whose name is not known may be designated by any name, and when the true name is discovered, the pleading may be amended accordingly.

[As amended; effective January 1, 2005.]

(B) Paragraphs; Separate Statements.  All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

© Adoption by Reference; Exhibits.  Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

Drafter’s Note

2004 Amendment

Link to comment
Share on other sites

  • 2 weeks later...

I filed my extension of time, I am waiting to see if the plaintiff will respond, they have until 02/13, I asked for a 60 day extension as was recommended.

What should be my next step? I want to thank everyone for their help, this process can be very frustrating, and I would have just gave up if it wasn't for this board, so thank you!

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.