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Sued and Motion for summary of judgement immediately slapped on me


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1. Who is suing you? LVNV Funding LLC represented by Silverman and Boenstein Wyoming

2. For how much? $3200.00

3. Who is the original creditor? HSBC

4. How do you know you are being sued? Summons and Complaint served 2/25/2012

5. How were you served? Served upon my person at residence.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None,

7. Where do you live? Natrona COunty 7th District Wyoming

8. When is the last time you paid on this account? I have no clue

9. What is the status of your case (if anything has been opened)? Received Summons and Complaint on 2/25/2012 filed answer on 3/7/2012. No date for Motion for summary of Judgement yet

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, unaware of alleged debt with HSBC

11. Did you request debt validation before the suit was filed? Yes, to the plaintiffs attorney

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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.

Yes

After replying and denying the claim by LVNV I was immediately hit with a motion for summary of Judgement and teh plaintiff introduced an affidavit of debt. They also sent me a stateent of undisputed material facts. I have sent an opposition to summary of judgement but not sure if that will work and I have tried to respond to the statement of undisputed facts but can't find how to do the right format for that. Since they are going for summary of Judgement what should I do first in order to slow that down or live thru it? Thanks in advance!

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Ok I have my request to produce documenttion ready to go. How and when do I ask for the court to delay their ruling? Can I ask for a delay of the summary of judgement hearing until discovery is complete?

There is no date for the MSJ hearing yet, correct ? Prepare a written motion for continuance and state that many of the alleged "facts" of the case are are, in fact, in question and that you would request the court grant a continuance of the MSJ to allow for proper discovery and disclosure.

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You also have to provide an opposing affidavit:

Rule 56. Summary judgment.

(e) Form of affidavits; further testimony; defense required. -

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

What evidence did they include? Bill of Sale? CC statements?

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Ok so I will work on an affidavit today and motion for contiuance as well. Any idea as to how to prepare the motion for continuance? DO I need to title it motion for continuance of summary of judgement? I do have my production of documents ready, should i work on addmissions as well? If so do you have any good admissions I should use in a case like this? Also does my affidavit need to be notorized?

Thanks

Edited by GoCavs1
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IN THE CIRCUIT COURT OF THE 7TH JUDICIAL DISTRICT

OF AND FOR NATRONA COUNTY, WYOMING

LVNV FUNDING LLC

Plaintiff

vs AFFIDAVIT

Defendant

Docket NO

I being of full age, and of sound mind on his oath, deposes and says:

1. I am the defendant in the above matter.

2 I have no recollectionof being indebted to HSBC, Arrow Financial Services LLC or LVNV Funding LLC

3 I have never opened a credic card account account with LVNV Funding LLC

4 I have never used an LVNV Funding credit card

5 I have not defaulted on an LVNV Funding credit card agreement

March 23 2012

XXXXXXXX

Does this sound good enough for an affidavit? It's crazy that their Undisputed material facts say I have opened an account directly with them. Is that normal??

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This is my motion to strike affidavit.. Should I file it? or wait?

MOTION TO STRIKE AFFIDAVIT OF DEBT IN SUPPORT OF PLAINTIFFS CLAIMS

Comes now, Defendant and respectfully states the following

1. Plaintiff has submitted into evidence an affidavit claiming that the affiant is familiar with the manner and method by which the Plaintiff or their agent creates and or maintains its normal business books and records including computer records and or data of it’s purchased credit accounts, in the ordinary course of it’s business(hereinafter referred to as “Exhibit 1”)

2. The affiant writing the AFFIDAVITE OF DEBT (exhibit1) does not state with specifics as to where the information of debt came from except that it could be the original creditor or it’s assignee

3. The affiant writing the AFFIDAVITE OF DEBT (exhibit1) does not claim to have personal knowledge of how business records were kept at the original creditor

4. The affiant writing the AFFIDAVITE OF DEBT (exhibit1) does not claim to have personal knowledge of the sale or assignment of the debt from the original creditor to Arrow Financial Services LLC

5. The affiant writing the AFFIDAVITE OF DEBT (exhibit1) does not claim to have personal knowledge of how business records were kept at Arrow Financial Services LLC

6. Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent; rather, the records must be introduced after a proper foundation is provided. New England Savings Bank v. Bedford Realty

Corp., 238 Conn. 745, 680 A.2d 301, 308-09 (1996), later opinion, 246 Conn.

594, 717 A.2d 713 (1998)

7. It is the business records that constitute the evidence, not the

testimony of the witness referring to them. In re A.B., 308 Ill.App. 3d 227, 236,

719 N.E.2d 348 (2nd Dist. 1999) (“Under the business records exception . . . it is

the business record itself, not the testimony of a witness who makes reference to

the record, which is admissible . . . . In other words, a witness is not permitted to

testify as to the contents of the document or provide a summary thereof; the

document speaks for itself. M. Graham, Cleary & Graham's Handbook of Illinois

Evidence § 803.10, at 825 (7th ed. 1999).”); Topps v. Unicorn Ins. Co., 271 Ill.

App. 3d 111, 116, 648 N.E.2d 214 (1st Dist. 1995) (“under the business record

exception to the hearsay rule, only the business record itself is admissible into

evidence rather than the testimony of the witness who makes reference to the

record”).

8 Nor is such an affidavit made sufficient by omitting the fact that it is based on a

review of loan records, if it appears that the affiant did not personally receive or

observe the reception of all of the borrower’s payments. Hawaii Community

Federal Credit Union v. Keka, supra, 94 Haw. 213, 11 P.3d 1, 10 (2000). If the

underlying records are voluminous, a person who has extracted the necessary

information may testify to that fact, but the underlying records must be made

available to the court and opposing party. In re deLarco, 313 Ill.App.3d 107, 728

N.E.2d 1278 (2nd Dist. 2000).

WHEREFORE, the Defendant prays upon the Honorable Court that Plaintiffs “Exhibit 1” be stricken from evidence in the above action.

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You need to include WY case law, if possible. That would be more persuasive than case law from other states.

In addition, since they've filed for summary judgment, you may need to write an Opposition to Plaintiff's Motion for Summary Judgment. By filing a motion for summary judgment, LVNV is claiming there's no genuine issue of material facts in the case. In other words, you have no defense, and they should win.

You have to show there ARE genuine issues of material fact as to why they should not be granted summary judgment. One issue could be that discovery has not been completed. Another could be they haven't proven ownership of the debt. By not proving ownership, they haven't proven they even have the right to sue you. Therefore, they haven't proven standing to sue.

First Timer suggested you request a continuance. That may be the way to go.

If you want, you can call the lawyer referral service at the WY Bar Association. Tell them you need to speak to a consumer attorney. They'll provide the name of an attorney in your area who'll give you a consultation either for free or at a reduced rate. He/She can tell you exactly how to proceed.

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Ok Thanks.. Now I did file an opostion for summary of judgement and a statement of material facts but I am not sure if I filed it correctly. Can I refile with a corrected version? Also should I file a continuance before of after I recieve the date for Summary of Judgement hearing?

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Ok Thanks.. Now I did file an opostion for summary of judgement and a statement of material facts but I am not sure if I filed it correctly. Can I refile with a corrected version?

That's the reason for speaking with an attorney. You can find out exactly what you can and can't do according to the rules.

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In addition, since they've filed for summary judgment, you may need to write an Opposition to Plaintiff's Motion for Summary Judgment. By filing a motion for summary judgment, LVNV is claiming there's no genuine issue of material facts in the case. In other words, you have no defense, and they should win.

You have to show there ARE genuine issues of material fact as to why they should not be granted summary judgment.

Yes, yes, yes, this is what I was going to say, but since BV80 has done it for me, I will just concur emphatically.

To me the key point it that you don't want the decision on the Motion for Summary Judgment postponed, you want the MSJ denied. And the key to that, again, is to argue there are material issues in dispute. Point by point, whatever they said is not in dispute, you have to say IS in dispute.

Good luck.

DH

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Motions for summary judgment are arguable, which means you get to go to court and make your case to the judge. After he hears both sides, he will make a decision within a few days in most cases. You have a small population, I assume things move faster as there is probably no overloaded court docket. When you go to the hearing, point out the lack of evidence of ownership and the hearsay affidavit.

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Motions for summary judgment are arguable, which means you get to go to court and make your case to the judge. After he hears both sides, he will make a decision within a few days in most cases. You have a small population, I assume things move faster as there is probably no overloaded court docket. When you go to the hearing, point out the lack of evidence of ownership and the hearsay affidavit.

Ok so even if I sent an opposition for motion of summary of judgement that is in the wrong format and my statement of undisputed material facts is in the wrong format I would still be ok to argue the motion in court?

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Is there a place to start to find Wyoming Case Law?

I'm not trying to be a smarta** but Google.

Just start Googling phrases, like whoever is suing you and WY law.

case law for collections WY

third party collections case law WY

You get the point, you can basically put yourself through law school with a lap top, internet connection, and Google. You just have to weed through all the b.s. that is on the internet, but all the info is there. You can pull U.S. Supreme Court cases off the internet, does not get any better than that.

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Ok I spoke with a local attorney. the only local attorney for collections that is on the debtor side and he say's I can amend anything by filing an ammended copy. He also says I am doing good and not to file a motion to strike until I get to court. Also he says that I could file for dismissal as it falls into small claims jusrisdiction.. Would you file a dismissal and take it to small claims?

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Is this superior court or small claims? The amount is borderline. If you want to tackle a MSJ objection, read up here.

Odd, Google Scholar only lists the WY Supreme Court. Maybe at the lower level they just take you outside and shoot you. Just kidding.

I am in Circuit Court. The actual amount on the affidavit states I owe 1997.00 less credits, together with interest and fees as applicable by law

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I'm not trying to be a smarta** but Google.

Just start Googling phrases, like whoever is suing you and WY law.

case law for collections WY

third party collections case law WY

You get the point, you can basically put yourself through law school with a lap top, internet connection, and Google. You just have to weed through all the b.s. that is on the internet, but all the info is there. You can pull U.S. Supreme Court cases off the internet, does not get any better than that.

You're never a smarta**. :twisted:

If the OP is allowed to amend his Opposition, file a motion to strike, whatever:

An assignment is an act or expression (e.g., a writing) of intention by which one person causes to transfer, set over or vest in another a right or property or an interest therein. Matter of Estate of Boyd, 606 P.2d 1243, 1246 (Wyo.1980)

No bill of sale evidencing the sale of any account related to Defendant from _____(original creditror) to LVNV Funding was provided. Therefore, Plaintiff has not proven ownership of the alleged account with standing to sue.

Summary Judgment

A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. We, of course, examine the record from a vantage point most favorable to that party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (2001).

Edited by BV80
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You're never a smarta**. :twisted:

If the OP is allowed to amend his Opposition, file a motion to strike, whatever:

An assignment is an act or expression (e.g., a writing) of intention by which one person causes to transfer, set over or vest in another a right or property or an interest therein. Matter of Estate of Boyd, 606 P.2d 1243, 1246 (Wyo.1980)

No bill of sale evidencing the sale of any account related to Defendant from _____(original creditror) to LVNV Funding was provided. Therefore, Plaintiff has not proven ownership of the alleged account with standing to sue.

Summary Judgment

A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. We, of course, examine the record from a vantage point most favorable to that party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (2001).

BV80

THANK YOU!!! I hae another question.. Obviously. LVNV has a Statement of Undisputed Material facts. Am I thinking correctly that my statement of undisputed material facts should say the opposite of theirs?

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BV80

THANK YOU!!! I hae another question.. Obviously. LVNV has a Statement of Undisputed Material facts. Am I thinking correctly that my statement of undisputed material facts should say the opposite of theirs?

I'm not sure if your facts should be the exact opposite of theirs or not. It might depend upon what they stated. You haven't told us what they claimed in their statement.

For example, one of your facts would be that LVNV has not proven the existence of the account claimed in the Complaint. (They haven't provided anything that shows the account ever existed)

Another would be that Plaintiff has not provided a bill of sale or assignment evidencing their purchase of any account related to you.

A 3rd would be that because LVNV has not proven their purchase of a specific account related to you, they haven't proven ownership of any account allegedly owed by you.

A 4th MIGHT be that because Plaintiff has not proven ownership of any account allegedly owed by Defendant, LVNV has not proven standing to sue.

Those are facts.

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They claim 4 things in their undisputed facts statement

1 Defendant opened a credit card account with Plaintiff

2 Defendant used the LVNV Funding credit card

3 Defendant defaulted on LVNV Funding card agreement

4 Defendant is responsible for cost of collectioin

That's it in a nutshell.. verbatim.. I never had a card from them personally, I never had an agreement from them either

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They claim 4 things in their undisputed facts statement

1 Defendant opened a credit card account with Plaintiff

2 Defendant used the LVNV Funding credit card

3 Defendant defaulted on LVNV Funding card agreement

4 Defendant is responsible for cost of collectioin

That's it in a nutshell.. verbatim.. I never had a card from them personally, I never had an agreement from them either

Wait...did they specifically state "LVNV Funding credit card" and "LVNV funding card agreement"?

Or did they state Defendant opened a credit card account with Plaintiff's predecessor...something like that?

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