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Help with Summary Judgment!! And Motion for Brief in Support


Kaos2lex
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1. Who is the named plaintiff in the suit?

Main Street Acquistion corp

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

None Listed Just Main St

3. How much are you being sued for?

Original debt was $2990 now with interest at 22% over $5,000

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

Wells Fargo

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

served in the mail

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 one letter asking for validation.

9. What state and county do you live in?

OK -Grady

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 ...last payment 11/2008

11. What is the SOL on the debt? In oklahoma written contracts are 5 years. I have heard of people trying to fight as a oral/open account which in OK is 3 years.

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).

Suit served Asked for validation. They sent me a computer print out of some statements with my name & debt owed. Last payement made with interest calculated on it. I went to court for the motion for summary judgment and brief in support, the judge gave me 20 more days to get educated or a lawyer.

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. Wells fargo is listed as charged off.

14. Did you request debt validation before the suit was filed? yes I did and they responded with a court date and some validations paperwork. Which seems very sketchy. It has a notarized paper from an employee at Main st stating they own my debt but nothing from Wells Fargo stating this. There is a bill of sale but it just states that Main aquired over 6,000 acts from Wells Fargo.

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?

The Jedge gave me 20 days to reappear in court.

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

It has my name,original creditor name and Acct#

Four monthly statements from original creditor. One where a payment of $50 is made and one statement showing that the account is closed

They also sent and affidavit from a the State of Georgia stating a affiant from Main St Aquisition Group stating that Main St bought my acct from Wells Fargo and listed my name & act # . It was notarized.

So now what do I do...I know that in a sense they don't have proof from Wells Fargo meaning a real statement or a signed original contract.

How do I fight it with the judge?? It is in civil court.

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You are way too late here. You have to file an Objection and memorandum of law in support of your position, in which you establish that the plaintiff is not entitled to a judgment as a matter of law for the reasons you set forth. The most common reasons are that discovery is incomplete or that the palintiff has failed to provide documents that establish that they are entitled to a judgment. This is also related to discovery. Read your rules and see if you can find a sample of a proper pleading here on the forum.

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All you have to do to beat a MSJ is show to the cort that there are still material facts that are in dispute, I. E. the total amount of the bill, chain of custody(do they really own the debt and do they have the legal right to collect on the debt)

This is right out of my learnings from law school.

Attack the Legal Argument

The first place to look for a weakness in your opponent's motion is at their legal argument. Assuming the evidence is what they say it is, is the legal argument correct? Research and analyze their cases. Are they still good law? Is there a case squarely in opposition to the cases they cite? Is there a case with the opposite holding from a higher court? If the legal argument is incorrect, bring that to the court's attention as your first order of business.

Attack the Evidence

Examine, very closely, and determine if the evidence supports their claim. Do the declarations have an adequate foundation? Do all declarants have a basis of knowledge to declare the things they are declaring? in other words do they have first hand knowledge of the account. Do the declarations contain hearsay? If so, are there any applicable exceptions?

Hearsay A legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone else. Is the deposition testimony based on an adequate foundation of law? Chances are your opponent is offering evidence with at least one major admissibility problem.

Now here is where most pro se litigants get it wrong.Make sure that you include a separate pleading setting forth objections to your opponent's evidence. Do Not and I mean do not shotgun every single piece of evidence, courts do not like that. select the one critical flaw with the one dispositive piece of evidence and bring it to the judge's attention. MAKE SUREyou get your objections on the court record by either filing a written objection or stating an oral objection during court. This is the only way to preserve your objections if you file an appeal. REMEMBER any objection is waived if you do not GET IT ON THE COURT RECORDS.

Attack the Separate Statement

Focus your attention on your opponent's separate statement of undisputed facts. Find the one fact that if disputed with competent admissible evidence would defeat the motion. Then, offer evidence to dispute that fact. Make sure to focus the court on the key dispute in the record, and be sure that your evidence is admissible, and that the fact in dispute is material, not trivial. In other words, it should be a fact that if found your way by a jury, it would turn the case.

Does your Opponent's Motion Meets its Burden

Remember this case its in every law book I have had while in school for burden of proof for a MSJ. Under Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App.4th 64, you need not submit any evidence in opposition to a motion for summary judgment if the motion fails to meet its burden in the first instance. When examining the motion ask your self this question: Would the motion, if standing unopposed, be granted by a court of law. If the answer is NO then state the case of Scheiding and state that you need not support any evidence in support of your opposition. The motion should be denied because it is moot and has no material facts that support the claim. Your second argument should be that in any event, your evidence creates a triable issue.

If you need more time to present your case ask for a continuance courts give continuances all the time, just make sure your reason for the continuance is sound and not just, because I want one.

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In order to fight with the facts of them not having enough evidence...is there any thing I need to file with the court or just show up again and show that they do not have the signed aggrement, no acutal itemized bills, nothing from wells fargo saying that they bought my specific account....is there anything I need to file with the court??

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