NJdefendant

PLEASE HELP WITH SUMMARY JUDGMENT!

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I have to object this summary judgment! I have no clue how to proceed. I have been working on objections that I'll post shortly. bellow you will find a link to plaintiffs summary judgment and supporting documents they sent.

I have to respond by tomorrow! PLEASE HELP ME!

https://docs.google.com/document/d/1Ai7JeeK1xHnu9OAgu4pg_7RYB5pSpC8haNtsMKb5E-w/edit

THANK YOU!

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JDB is suing me for less than 2k in nj civil part. all the answer i have filed are in the link I provided above

I sent letters to attorney to provide me with details of the account before I filed my answer but they told me they are not legaly obliged to give me such information because validation period was up.

I also filed a motion for production of documents but that was my mistake I didn't follow rules. NJ civil part is limited to interrogatories.

My court date is at the end of this week.

They adjourned trial once. They have a request for a 2nd adjournment.

If I finish my objections to the motion tonight I plan to go to the court clerk tomorrow to file it and also see if anything has changed such as my amended answer,court date etc.

We also need to see a copy of the complaint. Also, any answer you may have filed. There is a list of question in a sticky in this forum that you should answer.
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I have posted my case in a another thread but I started a new one because I needed help with summary judgment.

Here is a link for the copy of the complaint

https://docs.google.com/document/d/1DmUB9HkXqN-RPpcBM_QP290e5nO2zp0gzu7Sod5CHbA/edit

THANK YOU

We also need to see a copy of the complaint. Also, any answer you may have filed. There is a list of question in a sticky in this forum that you should answer.
Edited by NJdefendant
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http://www.lawrenceweinberg.com/samples/brief.pdf

Here is a sample, change it to suit your situation. Your reason should be that discovery has not been completed. Tomorrow? Doesn't give us much time.

Yes they gave me 10 days to respond and I received it on 1/31 so 10th day is 2/9. I just wanted to be safe and file sooner that's why I said tomorrow.. On top of that I have court end of the week..

What about their evidence??? From what I read in the posts it's hearsay? And the affidavit what's up with that? I am totally confused now!

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http://www.lawrenceweinberg.com/samples/brief.pdf

Here is a sample, change it to suit your situation. Your reason should be that discovery has not been completed. Tomorrow? Doesn't give us much time.

Here is a link to what I have found so far.

https://docs.google.com/document/d/1UBwgD4xwuDHZ3pQpHSkavO7OKj-YVdkDhDHrBpjkNBU/edit

Am I going in the right direction?

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Yes they gave me 10 days to respond and I received it on 1/31 so 10th day is 2/9. I just wanted to be safe and file sooner that's why I said tomorrow.. On top of that I have court end of the week..

What about their evidence??? From what I read in the posts it's hearsay? And the affidavit what's up with that? I am totally confused now!

Did Midland provide a bill of sale? Does it show your name and the alleged account number? If not, point that out. Midland has to prove they have a valid assignment from the OC in order to prove their ownership of the alleged account.

Here's some NJ case law that states in order for an assignment (bill of sale) to prove ownership, it must clearly show what's being assigned. If Midland's bill of sale doesn't reference your name or the alleged account number, then it doesn't meet the requirements of a valid assignment and doesn't prove they own the account.

"A valid assignment must contain clear evidence of the intent to transfer the person's rights and `the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.'" (citing Williston, Contracts ยง 404 at 4 (3 ed. 1957); Transcon Lines v. Lipo Chem., Inc., 193 N.J. Super. 456, 467, 474 A.2d 1108 (D.Ct. 1983)).

"The assignment is valid if there is clear evidence of the assignor's intent to transfer her rights and if the subject matter of the assignment is described so that it is readily identifiable." Berkowitz v. Haigood, 256 N.J.Super. 342, 606 A.2d 1157, 1159 (1992).

Where's the evidence from the OC that any account related to you was sold to Midland? If your name isn't on the bill of sale, then the subject matter (the account) is NOT readily identifiable.

So what if Midland has some cc statements. Where's the proof that those statements came from the OC? Midland provided a "computer generated" document. So? I can create a document on the computer that says I own your car. Does that make it true?

Midland wants you to pay money on an alleged account they claim they own. They have to prove the OC sold that specific account to them.

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Did Midland provide a bill of sale? QUOTE]

As of today I haven't recived anything from them that looks like a bill of sale. Everything they provided is in the link above I litteraly copied and paste it in a doc format.

Except for a couple of statements and the affidavit from that lady that works for midland there is nothing else..

Thank you for your info I'll add that to my motion...

Edited by NJdefendant
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1. Who is the named plaintiff in the suit?

Midland

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

pressler & pressler

3. How much are you being sued for?

<2k

4. Who is the original creditor? (if not the Plaintiff)

citibank

5. How do you know you are being sued? (You were served, right?)

served in the mail(certfied)

6. How were you served? (Mail, In person, Notice on door)

certified mail

7. Was the service legal as required by your state?

I think so

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

I sent them 2 letters asking about the debt and letting them know I am not sure what they are talking about. Their response was I had a chance to validate debt but time was up.

9. What state and county do you live in?

NJ-Passaic

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

not outside of the statute of limitations ...according to their statements they sent $50 on2/28/2009

11. What is the SOL on the debt? To find out: I think 6 yrs

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

filed answer,filed amended answer,answered interrogatories,requested discovery

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO .I just checked my credit report and both are listed. Citibank is listed as charged off and Midland's has a comment on the bottom that says disputed

It also reports that Pressler has requested my report back in 09/11

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

NO.But I don't remember ever seeing the notice until after I received a phone call from a representative from presslers office. She wanted me to verify my SSN in order to speak to me but I said no way.She said fine she'll send it in the mail. When I got the info about this debt in the mail they have already filed the lawsuit. Date on debt validation letter was before the conversation occured but I sent them "good will" letters (look at #8) anyways.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I responded on time. Here is a link of their claim:

https://docs.google.com/document/d/1DmUB9HkXqN-RPpcBM_QP290e5nO2zp0gzu7Sod5CHbA/edit

Here is what they served me with so far(including my responses):

https://docs.google.com/document/d/1Ai7JeeK1xHnu9OAgu4pg_7RYB5pSpC8haNtsMKb5E-w/edit

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

WIth the summons nothing!

The have sent me the following with the summary judgment:

Computer generated report of financial information from 10/04/09 to 12/0611

It has my name,original creditor name and Acct#,present owner name and acct # ,and how finance charges were computed there is a little chart on the bottom.

Four monthly statements from original creditor. Two where a payment of $50 is made, One where a payment of $70 is made(in the following order Jan,Feb and March of 2009) and one statement showing that the account is closed

They also sent and affidavit from a legal spe******t that has access to midlands record...

all of this is posted in the link bellow

https://docs.google.com/document/d/1Ai7JeeK1xHnu9OAgu4pg_7RYB5pSpC8haNtsMKb5E-w/edit

Edited by NJdefendant
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Did Midland provide a bill of sale?

Midland wants you to pay money on an alleged account they claim they own. They have to prove the OC sold that specific account to them.

There is no bill of sale at all!!! They refused to give me anything so far...

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Did Midland provide a bill of sale? QUOTE]

As of today I haven't recived anything from them that looks like a bill of sale. Everything they provided is in the link above I litteraly copied and paste it in a doc format.

Except for a couple of statements and the affidavit from that lady that works for midland there is nothing else..

Thank you for your info I'll add that to my motion...

Be sure to use the case law. Also, you're not writing a motion. You're writing an Opposition to the Plaintiff's Motion for Summary Judgment.

No bill of sale? They haven't provided anything from the OC that says they purchased anything at all from the OC. There's no proof they purchased any accounts period. They have no proof of assignment or sale.

Here's some case law for summary judgment:

"The moving party bears the initial burden of showing that there are no genuine issues of material fact to be decided at trial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548

The above case law means that the moving party (in this case, Midland) must show that there's no facts to be debated. You can show there are genuine issues of material fact.

1. There's no proof of assignment or sale of the alleged account from the OC to Midland.

2. There's no proof the OC sold any accounts to Midland.

3. Midland has not proven they purchased any account related to you. Therefore, they haven't proven ownership of the alleged account.

If they can't prove they own an account, they can't prove they're entitled to the value of that account.

Case Law for Evidence:

"We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

You are the non-moving party. Midland is the party who moved for summary judgment. The above case law states that evidence must be looked at in favor of the non-moving party (you). Midland has presented NO evidence of ownership of the account.

Their computer generated document is just that...a document created by them. It's hearsay. They have no evidence that the information they say is from Citibank is actually from Citibank. The reason? No bill of sale from Citi stating that any account was sold to Midland.

The cc statements are hearsay. Since there's no bill of sale proving Citi sold any account, much less yours, to Midland, there's no proof those cc statements came from Citi.

The case law states that the evidence must be viewed in a light most favorable to you. Considering they can't prove any of the cc statements and information (computer generated document) came from Citi, their evidence is insufficient for summary judgment. Therefore, you have shown there ARE issues of material fact enough to deny their MSJ.

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There is no bill of sale at all!!! They refused to give me anything so far...

If it were me, I'd include that I sent discovery requests (Production of Documents???) on whatever date. Then point out they haven't responded to your requests.

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I will include it definitely that's all the proof I have!

No it's just interrogatories..I have sent them proof of production but I made a mistake we are limited in civil part I didn't read the rules...and trust me they let me know :) I felt so stupid..thank God it's only between us and I didn't send a copy to the court to irritate the judge!

If it were me, I'd include that I sent discovery requests (Production of Documents???) on whatever date. Then point out they haven't responded to your requests.
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Thank you for the information..I will work on my opposition and I will post it before I file it.

Be sure to use the case law. Also, you're not writing a motion. You're writing an Opposition to the Plaintiff's Motion for Summary Judgment.

No bill of sale? They haven't provided anything from the OC that says they purchased anything at all from the OC. There's no proof they purchased any accounts period. They have no proof of assignment or sale.

Here's some case law for summary judgment:

"The moving party bears the initial burden of showing that there are no genuine issues of material fact to be decided at trial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548

The above case law means that the moving party (in this case, Midland) must show that there's no facts to be debated. You can show there are genuine issues of material fact.

1. There's no proof of assignment or sale of the alleged account from the OC to Midland.

2. There's no proof the OC sold any accounts to Midland.

3. Midland has not proven they purchased any account related to you. Therefore, they haven't proven ownership of the alleged account.

If they can't prove they own an account, they can't prove they're entitled to the value of that account.

Case Law for Evidence:

"We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

You are the non-moving party. Midland is the party who moved for summary judgment. The above case law states that evidence must be looked at in favor of the non-moving party (you). Midland has presented NO evidence of ownership of the account.

Their computer generated document is just that...a document created by them. It's hearsay. They have no evidence that the information they say is from Citibank is actually from Citibank. The reason? No bill of sale from Citi stating that any account was sold to Midland.

The cc statements are hearsay. Since there's no bill of sale proving Citi sold any account, much less yours, to Midland, there's no proof those cc statements came from Citi.

The case law states that the evidence must be viewed in a light most favorable to you. Considering they can't prove any of the cc statements and information (computer generated document) came from Citi, their evidence is insufficient for summary judgment. Therefore, you have shown there ARE issues of material fact enough to deny their MSJ.

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I will include it definitely that's all the proof I have!

No it's just interrogatories..I have sent them proof of production but I made a mistake we are limited in civil part I didn't read the rules...and trust me they let me know :) I felt so stupid..thank God it's only between us and I didn't send a copy to the court to irritate the judge!

Then point out they didn't respond to your interrogatories.

Regarding proof, concentrate on the fact that there's no bill of sale and their lack of proof of ownership of the debt. As I stated before, I can write an affidavit and claim that whatever company produced your car sold me the title and, therefore, I own your car. Unless I provide proof that they sold me the title, do I have proof I own your car? No.

Even if Midland did provide a bill of sale, it wouldn't prove any account related to you was sold to Midland unless it referenced your name and the alleged account number.

They haven't shown they bought anything from Citibank.

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bellow is my opposition. I have the correct form and this will be the attachment

https://docs.google.com/document/d/1ydVgDE3XrirzlzbqlkarBamAloEBe2Dy6XHq1ZcDROU/edit

PLEASE TELL ME IF IT"S OK TO FILE .I appreciate your input guys. Thank you

Then point out they didn't respond to your interrogatories.

Regarding proof, concentrate on the fact that there's no bill of sale and their lack of proof of ownership of the debt. As I stated before, I can write an affidavit and claim that whatever company produced your car sold me the title and, therefore, I own your car. Unless I provide proof that they sold me the title, do I have proof I own your car? No.

Even if Midland did provide a bill of sale, it wouldn't prove any account related to you was sold to Midland unless it referenced your name and the alleged account number.

They haven't shown they bought anything from Citibank.

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I've never had to write an Opposition, so I'll leave the comments on the construction of the document to the more knowledgeable members of the forum.

Regarding the evidence of an assignment, I'd add:

Plaintiff has failed to provide proof of a valid assignment from Citibank to Midland Funding. There is no evidence that Citibank sold the alleged account in question to Plaintiff. In fact, there is no evidence Plaintiff purchased any accounts at all from Citibank.

At the end you stated that "Defendant challenges whether such evidentiary support exists." I'm not sure I'd say that. I'd simply deny that it exists.

Plaintiff has failed to prove ownership of the alleged account and, therefore, lacks standing to sue. Something like that.

Also, you requested the motion be dismissed. Actually, the motion should be "denied".

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OK Thank you for your input!

I've never had to write an Opposition, so I'll leave the comments on the construction of the document to the more knowledgeable members of the forum.

Regarding the evidence of an assignment, I'd add:

Plaintiff has failed to provide proof of a valid assignment from Citibank to Midland Funding. There is no evidence that Citibank sold the alleged account in question to Plaintiff. In fact, there is no evidence Plaintiff purchased any accounts at all from Citibank.

At the end you stated that "Defendant challenges whether such evidentiary support exists." I'm not sure I'd say that. I'd simply deny that it exists.

Plaintiff has failed to prove ownership of the alleged account and, therefore, lacks standing to sue. Something like that.

Also, you requested the motion be dismissed. Actually, the motion should be "denied".

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Plaintiff has failed to provide proof of a valid assignment from Citibank to Midland Funding. There is no evidence that Citibank sold the alleged account in question to Plaintiff. In fact, there is no evidence Plaintiff purchased any accounts at all from Citibank.

What about the affidavit they provided from the legal spe******t? sha swears they bought the account from citibank

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What about the affidavit they provided from the legal spe******t? sha swears they bought the account from citibank

I could swear I'm her mother. Does that make it true? In all seriousness, was the "spe******t" present when Citi and JDB conducted business? How does she know the JDB conducted any business with Citi? Because the JDB told her so.

If my neighbor #1 (JDB) told me another neighbor #2 (Citibank) robbed a bank, I could only testify that I heard it from a neighbor #1. I didn't get the information directly from neighbor #2, nor did I witness the robbery. My testimony would be hearsay.

Read the links Patz provided from the Stern site. I'm sure he has arguments regarding affidavits in his motions.

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Yes that's where I got all the info from sterns web..it's great info..he won his case against the same attorney,same plaintiff,same oc as my case...I am even thinking of filing the motion myself :)

How come I am not getting input from other people on the forum do I have to quote them each time I need their response?

I could swear I'm her mother. Does that make it true? In all seriousness, was the "spe******t" present when Citi and JDB conducted business? How does she know the JDB conducted any business with Citi? Because the JDB told her so.

If my neighbor #1 (JDB) told me another neighbor #2 (Citibank) robbed a bank, I could only testify that I heard it from a neighbor #1. I didn't get the information directly from neighbor #2, nor did I witness the robbery. My testimony would be hearsay.

Read the links Patz provided from the Stern site. I'm sure he has arguments regarding affidavits in his motions.

Edited by NJdefendant
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