I faled to respond to Admission of Facts

[f15radar]

I have 4 cases and thru stupidity forgot to answer a request for admission of facts. I them received a MSJ. I am drafting a Request for Withdrawl of Admission of Facts.

Out of the 27 AOFs one said I had no defense for arbitration. I sent an agreement with my first answer to the lawsuit. Will just that one example allow me to get my Motion to Withdraw Admission of Facts passed or do I need more examples of the 27?

I am also drafting a MTC arbitration, but how can I answer the MSJ based on I didnt answer the AOF?

[Coltfan1972]

How can you with withdraw something you never answered. According to your own post, there is nothing to withdraw.

[legaleagle]

How over time are you? Usually there is a method to respond. Look up the rules, most of them require the opposition to pursue a meet and confer before filing a motion to have answers deemed admitted. If they did not follow procedure, you can get them on that. You also may be able to submit the answers late with an excuse, etc. If this is magistrate court, you're in, no discovery without permission of the court. Gotta give us all the info from the start. 4 cases? Any of them the same creditor?

[f15radar]

I'm in Georgia. O.C.G.A. 9-11-36 states if i dont answer in 30 days its admitted. It also states that if you dont meet the deadline you can ask for it to be withdrawn, but it must meet a two prong test.

I cant find anything about a meet and confer. I'm about 45 days late. This is the only one from FIA csrd services and i am in suprior court. I'll work on a post tonight describing everything. Thanks for the help!

[legaleagle]

I don't know what court you are in, you said superior, here are the superior court rules for discovery. These states all have several sets of rules, I think you got the wrong one. This came right from the state web site. It is a downloadable pdf.

Rule 5. DISCOVERY IN CIVIL ACTIONS1

1Rule 5 shall not be applied in any case prior to January 1, 1986.

Rule 5.1. Prompt Completion

In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery.

Amended effective January 18, 1990; January 31, 1991; designated as Rule 5.1 effective November 12, 1992.

Rule 5.2. Filing Requirements

(1) Depositions and other original discovery material shall not be filed with the court unless or until required by the provisions of OCGA § 9-11-29.1(a) (1) (5).

(2) A party serving Interrogatories, Requests for Production of Documents, Requests for Admission and Answers or responses thereto upon counsel, a party or a non party shall file with the court a certificate indicating the pleading which was served, the date of service (or that the same has been delivered for service with the summons) and the persons served.

Adopted effective November 12, 1992.

[f15radar]

Sorry for the delay in answering. I have been researching. I am in superior court in Georgia. First some background.

About 3 years ago I had an issue with my Corporations Credit Card Account with BofA. I stopped paying on the card to force them to fix the issue. Instead they went in to my checking and savings withdrawing everything and leaving me with a negative $1000. Because of that all of my personal debts could not be paid, I ended up defaulting on 5 personal cards (3 with BofA and 2 with HSBC). All have sued me. One was dismissed and I have four I am actively working on.

In November BofA (Hannah) sent me a Request for Admissions. I was in Magistrate Court for 2 others (JDBs) that week and just forgot to answer it. I received a MSJ based off of OCGA 9-11-36 last week. So I have been researching how to get out of the MSJ. Since they filed for MSJ, I assumed that the rule I was looking at was valid. I also have found many cases that were decided off that one statute and want to make sure they don't MSJ.

All I can find is that I have a right to request withdrawal, but have not found any actual motions that I could taylor to me. I also have not found any oppositions to MSJ that I could use. Where do people find the actual motions so that I could taylor them to my needs? Any help would be greatly appreciated.

[legaleagle]

Rules for MSJ

§ 9-11-56 - Summary judgment :: 2010 Georgia Code :: US Codes and Statutes :: US Law :: Justia

Sample opposition from district court, this should be acceptable format

http://www.georgiacarry.com/county/paulding_carry/Doc%2024-1%20Pla%20Resp%20for%20MSJ.pdf

This one below may be better, it is from Fulton Cty Superior Court

http://www.acluga.org/docs/docket/Anderson/PSJBrief.pdf

Be sure to follow all the statutory rules, one mistake and the thing will be fatally defective.

[MustangGrrL027]

Are you still within the discovery period (six months from the date of filing the answer)? If this is the case, you may be able to not only move to withdraw your admissions but also submit a response that motion for summary judgment is not proper at this time because your discovery has not completed.

I know this is not what you probably want to hear, but if you were to get a consumer attorney at this point in the litigation, they'd file an entry of appearance and likely respond to the MSJ stating something like the above. The debt collector lawyer will have to stop dead in their tracks and play nice with your newly hired lawyer.

Your failure to respond to the request for admissions could be absolutely fatal to your defense. I would get an attorney as soon as possible. If you are not successful in getting your admission withdrawn properly, the judge will likely grant the plaintiff's motion for summary judgment as it would be proper as a matter of law based on your admissions.

I totally encourage people to step up and defend themselves in debt collection cases, even pro se if they must, filing answer, propounding or answering discovery, stuff like that. But the position you are in is a seriously vulnerable one. Writing responses to motions for summary judgment isnt easily and there isn't a cut and paste way to do it. You must find facts that are in dispute in the case and raise those. They are likely writing their MSJ's as a matter of law, since they have you on the admissions.

Dont dig yourself in any deeper....I am aware of several consumer attorneys that can do this stuff in their sleep, especially kick hanna's a$$...if you want a referral, private message me.

Can you copy the MSJ they submitted onto the board?

[f15radar]

I cant PM yu as I only have 4 posts. Will try and get some posts so I can. I do want a referal so maybe you could PM me? I'll also try and upload the MSJ but I have to see if I need posts for that as well. Thanks.

[MustangGrrL027]

Can you tell me what county youre being sued in? That way, I kinda have an idea who to suggest, based on location.

[legaleagle]

How did they get away with raiding your bank account? Did they have a judgment against you or some agreement you signed that permitted this? That sounds like something that could be the basis of a counterclaim if it wasn't authorized.

[f15radar]

MustangGrrL027, I am in Hancock County Georgia. LegalEagle, they didn't have any sort of order. They said they could by right of offset but I was not a personal guarantor of the card so right of offset isn't legal.

[f15radar]

I filed a MTC, a Response to MSJ, and a Request to Withdraw Admission of Facts. They responded with my MTC saying the judge already stayed for 30 days. I went to the court house and there was a stay signed back in October but I didn't know. Had I had known I would have initiated in JAMS.

Now in their response to all of my motions they say I already had my chance. I don't know why I keep messing up this particular case but I have.

Am I supposed to receive a copy of any judges order or am I suppose to just know that he would sign it? Any suggestions on how to proceed now? Thanks.

[legaleagle]

You should either get something in the mail telling you the decision, or you may be able to access it on line. Offset usually means that there are mutual debts between the parties. For instance, you sue your mortgage company for some minor infraction in billing. The claim is worth let's say five grand. They will counter with offset, because you owe them more than that. If you win, they'll simply subtract the five grand from the mortgage balance. You won't get a check. I don't see how this applies here, I've never heard of anybody being levied without a court order. I would check this out with an attorney, you may be able to go after the bank as well if this is improper. Your case is a bit complicated. With all these mistakes you made, I don't think you have much of a chance of winning pro se. A good consumer atty may be able to file some counterclaims and fix this.

[f15radar]

The plot thickens. I didn't understand why there was a response to a MTC when i never filed one. So i went back to the court house and sure enough there was no motion, but the judge ruled on the response anyways.

I checked one of my other cases where i did file a MTC but it wasn't ruled on. However the same judge vacted my MTC that he didn't rule on! The opposing counsel said my motion was granted when it was not and since i hadn't filed arbitration my MTC should be vacated. He signed that. The court files show no MTC being granted.

I can only assume that whatever the opposing counsel writes the judge agrees with it. Will these blunders by the judge help me with an appeal if the other side gets their MSJ?

I did file with JAMS so I hope the judge will allow me to continue.

[legaleagle]

I have a vague idea of what you did. If you have more than one case, you may have filed the motion with the wrong case number. The clerk / judge / whomever would see that the case number does not match the names of the parties. This could be what happened. You have to go to the clerk's office and straighten this out, we have no clue as to what you have done. Once you figure this out, we can help you fix it.

[f15radar]

I checked. I did it right but maybe the opposing attorney did that.

[f15radar]

First I had two cases filed against me by the same lawyer. We will call them case #1 and case #2.

I filed a MTC in case #1. I filed nothing in case #2. I received a packet from the clerk with my motion for case #1 in it stating that the judge could not rule on my motion. I also received a response to my MTC from the opposing attorney. I thought it was for case #1, but after looking at it after the fact it turns out it was for case#2 even though I didn’t file any motions in case #2. (I did check this at the courthouse to be sure)

The judge ruled on the response granting a stay for me to initiate arbitration in case#2 however, I hadn’t filed anything and I never received the order so I never knew he had signed it. I believed nothing was happening in case #2.

Two months go by and I get a MSJ on case #2 stating I never answered the admission of facts which I didn’t and have no real defense other than I forgot. I fire back a response, a MTC, and a request to withdraw the admissions of facts.

Now Georgia law allows for me to request withdraw of admission of facts providing I can prove that one admission is a lie and its provable. The one admission was “You have no case for arbitration.” So I filed my motion based on it.

The other side fires back that there was an order and I had never acted on it, which is true because I didn’t know about the order.

I go down to the courthouse and find that there was indeed an order in case #2. I check case #1 and find out the other side filed a request to have the motion (which was never ruled on) vacated. The judge signed this order as well. I didn’t get copies of either. So I never knew about these until going to the courthouse.

I immediately file in JAMS last week. Well today, I get a letter from the judge’s office that he denied my motions and I lost the MSJ. I know I have to appeal but on what?

[legaleagle]

That's the question. Based upon what? You failed to follow the rules of procedure and you filed a bunch of improper motions which just clogged up the system. Appeals have to be based upon judicial error, not defendant error. This is the hard lesson pro ses occasionally have to learn. When you represent yourself, you are held to the same standards as an attorney. I followed your case, you made WAY too many mistakes. None of these issues are grounds for an appeal. If you file a frivolous appeal, you'll be in even more trouble. I suggest you try to negotiate some sort of deal with the plaintiff. Next time, pay attention to your case.

[f15radar]

I'm sorry but except for failing to answer the request for admissions how did i mess up? The judge ruled on motions not submitted. The clerk never sent me the results. Where does it say in the RCP that i am suppose to know a judge ruled on a motion i never sent? Where does it say i am supposed to know that a judge ruled on a motion that the clerk sent back to me saying he couln't rule. I'm sorry but i disagree with you. The court messed up not me.

[legaleagle]

Then cite these deficiencies in your appeal. I don't know how a judge can rule on a motion not submitted, this does not sound right, that is for you to prove. I hope you win, file your notice of appeal and follow the appeals prodcedure. Be prepared to go to appeals court for oral arguments.

[f15radar]

I agree with you. It does not sound right, but the clerks case file shows only the order. There is no motion from me. How i prove all of this is the question. Thanks for all your help.

[MustangGrrL027]

If it is within 30 days of the final ruling in magistrate court, you can appeal to state court and appeal de novo.

You had a few cases there, so I am not sure which ones you are talking about just finished, but maybe it could apply.

As much as I hate to say it, it is true that when you screw up procedural, they've got you. Thats the danger of going pro se. If difficult to play the games when you dont know what the rules are. Not to mention these judges likely deal with these lawyers day in and day out and it becomes a factory of stamping judgments. You become a cog in the wheel if you resist.

If you cannot appeal de novo, it is possible to try to set aside the judgment due to some error, no notice to respond to motion, etc. If you forget to, that wont do it though.

I know you tried really hard and things just didnt turn out the way you planned...keep your head up.

[f15radar]

After filing my Motion to Reconsider, the judge wont be able to hear it until August. If I don't file my appeal now the actual summary judgement wont be appealable but the Motion to Reconsider will be. Should I file the appeal now and maybe make the judge mad or wait and file the appeal on the MTR later?