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Sued and Motion for summary of judgement immediately slapped on me


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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?

That is quoted exactly from the paperwork!

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That is quoted exactly from the paperwork!

Oh my gosh! I've never heard of that before. Wow.

Ok, you can definitely make opposing statements.

1. Defendant never opened a credit card account with Plaintiff.

2. Defendant has never used an LVNV Funding credit card.

3. As Defendant has never opened a credit card account with LVNV Funding, Defendant has not defaulted on an LVNV Funding card agreement.

I'd also add:

Plaintiff has not provided any business records evidencing the existence of an LVNV Funding credit card account.

Just for the heck of it, what were the allegations in the Complaint?

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Oh my gosh! I've never heard of that before. Wow.

Ok, you can definitely make opposing statements.

1. Defendant never opened a credit card account with Plaintiff.

2. Defendant has never used an LVNV Funding credit card.

3. As Defendant has never opened a credit card account with LVNV Funding, Defendant has not defaulted on an LVNV Funding card agreement.

I'd also add:

Plaintiff has not provided any business records evidencing the existence of an LVNV Funding credit card account.

Just for the heck of it, what were the allegations in the Complaint?

It states plaintiff and defendant enteresd into a contract for credit

defendant defaulted by failing to make payments in a timely manner

Attached is an affidavit saying they have purchased the account..

Thaaffidavit shows there is no material fact at issue in this litigation and summary of judgement is appropriate under rule 56 should be awarded

That really is all there is...

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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

So I'm reading this and thinking, like BV80, that seems like a real rookie boneheaded move. So I Google the attorneys, and find the website for Silverman/Borenstein.

Digging around, they are the apparent merger of two veteran law firms, 25 years + each. And they claim to be a Creditor's Rights law firm. They have 5 attorneys in Colorado and 2 in Wyoming. But the 2 in Wyoming, Dicky and Tillie, don't seem to have experience in this area. And Dicky got his JD in 2008, which makes him a relative newbie.

So I'm thinking even stronger that these guys are rookies, and they've botched this.

Nail their hides to the wall!!!!

Regards,

DH

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Ok so now I am thinking I a little differently. I know I need to refile my opposion for summary of judgement and my statement of undisputed facts. Plus my affidavit as the court requires. I have not recieved a court date for the summary of judgment hearing yet. So my thoughts right now are refile and file what is needed. beginning of the week. Then lay low until the hearing. At the hearing I ask if the affiant is available for cross examination and if not.. I ask for a motion to strike their statement of undisputed facts do to irrelevance because the affidavit doesn't state they have ever given me a credit card. Or that I signed into an agreement with them. It states they purchased a debt. After that I ask for a motion to strike affidavit as hearsay do to no witness and lack of supporting documents. Then ask for a motion to dismiss with prejudice???

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Another question I have is.. How do you file a motion to dismiss because this actually does falls under small claims in wyoming they want 3200 and Wyoming is a 5000 state, and I think I woulfd have a far greater chance there given the less stringent rules

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How does this sound for my amended opposion for summary of judgement?

It comes before me the plaintiff has asked for a Motion for Summary Judgement of this case. I ask for the Summary of Judgement be denied on the grounds of insufficient binding evidence that show the defendant and plaintiff ever did business or had any contractual obligation.

I have responded within the proper time frame to dispute this claim and disputed this entirely. I have never opened an account with LVNV Funding. I have never made one payment to LVNV Funding and I cannot default on a claim that is untrue

1 The Plaintiff does not have the proper supporting documentation for their claim. In order for the plaintiff to prove it’s case

2 No Bill of sale evidencing the sale of any alleged account related to Defendant from HSBC to LVNV Funding was provided. Therefore, Plaintiff has not proven ownership of the alleged account with standing to sue.

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)

3 No Complete Payment history starting with the original creditor. To include the amount of debt when the debt was assigned to collection company, What fees and interest have been added to the original debt and how they were calculated. This requirement was established by the case Fields v Wilber Law Firm, Donald L Wilber and Kenneth Wilber USCA-02-C-0072 7th District Court, Sept 2004

4 Proof the alleged account is still within the statute of limitations to be collected upon.

5 An affidavid under Rule 56 may be enough to ask for a Motion for Summary of Judgement however this case falls under contractual law which an affidavid is not enough for the Plaintiff to prove their case. With the evidence shown to date the Plaintiff would lose in a court of law and it is my belief a motion for Summary of Judgement is being asked is because they do not have the proper documentation to prove their case and want a quick judgement without having to come forth with the proper documentation. They have no merits and in my opinion asking for this Summary of Judgement is one of bad faith brought upon the courts.

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”).

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).

With the statements above again I ask for Summary Judgement be denied as this claim is invalid, factually untrue and is not supported by the documentation presented by the Plaintiff.

Edited by GoCavs1
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Guest usctrojanalum
Start discovery, then ask the court to delay any ruling on the motion until discovery has been completed.

noooooooooooooo!!!!!! absolutely not. first and foremost should be concentrating on opposing the motion for summary judgment. forget about discovery right now.

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Ok so if at the summary of judgement hearing if the plaintiff loses because they only have an affidavit which I intent to strike because the affiant will not be available for questioning and they have no other supporting evidence. Just a astatement of material facts. They have just the minimum requirement to file the motion. is that grounds to ask for a complete dismissal of the case with prejiduce?

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As always, this is just My Humble Opinion but...

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).

I think THIS is the most important statement, and belongs at the top.

Beyond that, I'm not sure your numbered points belong in an Opposition to MSJ. They may be more appropriate for you own MSJ in your favor, or they should be reserved for trial.

One more thing: In their MSJ, the plaintiff is saying that the judge can rule in their favor without trial because of facts that are not in dispute. In your Opposition, you are saying that there ARE facts in dispute, so it is not proper for the judge to grant the MSJ without trial. The result you are striving for is for the MSJ to be denied, then the case goes to trial where the plaintiff must show evidence and you have chance to challenge it. You are not going to get a dismissal at this time, just because the MSJ is denied. No offense intended, but you are falling into a trap that many inexperienced posters demonstrate here: they think that everything can be done at once. They want to storm into court waving the evidence in their fist and get an immediate decision in their favor. They don't understand that the legal process is a slow, carefully choreographed "dance", and each methodical step must be taken in turn before the next step is taken. Defendants need to learn to be VERY patient while the legal wheels turn.

Good luck.

DH

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Guest usctrojanalum
Ok so if at the summary of judgement hearing if the plaintiff loses because they only have an affidavit which I intent to strike because the affiant will not be available for questioning and they have no other supporting evidence. Just a astatement of material facts. They have just the minimum requirement to file the motion. is that grounds to ask for a complete dismissal of the case with prejiduce?

cross move for your own motion for summary judgment.

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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.

Googling phrases is excellent advice. Take it a step beyond things like "case law for collections WY" if you have to. I couldn't find any case law on a specific NM statute, so I started googling "any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client" and I hit the jackpot, leading me into some FDCPA history, how the NM statute was taken verbatim from the FDCPA as it was prior to 1986 and pre-1986 FDCPA case law on that exact statute under the FDCPA.

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As always, this is just My Humble Opinion but...

I think THIS is the most important statement, and belongs at the top.

Beyond that, I'm not sure your numbered points belong in an Opposition to MSJ. They may be more appropriate for you own MSJ in your favor, or they should be reserved for trial.

One more thing: In their MSJ, the plaintiff is saying that the judge can rule in their favor without trial because of facts that are not in dispute. In your Opposition, you are saying that there ARE facts in dispute, so it is not proper for the judge to grant the MSJ without trial. The result you are striving for is for the MSJ to be denied, then the case goes to trial where the plaintiff must show evidence and you have chance to challenge it. You are not going to get a dismissal at this time, just because the MSJ is denied. No offense intended, but you are falling into a trap that many inexperienced posters demonstrate here: they think that everything can be done at once. They want to storm into court waving the evidence in their fist and get an immediate decision in their favor. They don't understand that the legal process is a slow, carefully choreographed "dance", and each methodical step must be taken in turn before the next step is taken. Defendants need to learn to be VERY patient while the legal wheels turn.

Good luck.

DH

Ok Thanks so much for the advice. I have found that I get panicked and feel everything needs performed immediately. I still have recieved no paperwork from the court as to a date for MSJ hearing, just that it has been requested

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Here's some case law regarding affidavits:

"We have refused in the past to consider for summary-judgment purposes an affidavit made without personal knowledge of the facts by one who would not be competent to testify to such matter." Apperson v. Kay, Wyo., 546 P.2d 995, 996 (1976.)

"The affiant states he 'is familiar with the matters set forth herein, and they are true to the best of his knowledge, information and belief.' That statement does not meet the 'personal knowledge' requirement." Lámar v. FARMERS CO-OP OIL CO., 215 P. 3d 296 - Wyo: Supreme Court 2009.

If their affidavit mentioned documents, but they didn't provide those documents, use the following case law:

"We have examined that affidavit in light of the requirements of W.R.C.P. 56(e) that an affidavit (1) be made on personal knowledge; (2) set forth facts which are admissible in evidence; (3) demonstrate the affiant's competency to testify on the subject matter of the affidavit; and (4) have attached to it the papers and documents to which it refers." Lámar v. FARMERS CO-OP OIL CO., 215 P. 3d 296 - Wyo: Supreme Court 2009.

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If you screw up all the paperwork you'll lose. Judges don't care that much if you are pro se. They expect you to know the rules. Watch My Cousin Vinny. Judges are tired of pro ses who don't have a clue. The lawyer that advised you doesn't sound all that informed. Why transfer this to a lower court where the rules probably won't allow discovery, etc.?

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Ok Does this sound better?

Amended Opposition for Motion of Summary Judgment

Please accept this Amended Opposition for Motion of Summary Judgment in place of first filing dated March 19 2012.

It comes before me the plaintiff has asked for a Motion for Summary Judgment of this case. I ask for the Summary of Judgment be denied on the grounds of insufficient binding evidence that show the defendant and plaintiff ever did business or had any contractual obligation.

I have responded within the proper time frame to dispute this claim and disputed this entirely. I have never opened an account with LVNV Funding. I have never made one payment to LVNV Funding and I cannot default on a claim that is untrue

1 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).

2. An affidavit under Rule 56 may be enough to ask for a Motion for Summary of Judgment however this case falls under contractual law which an affidavit is not enough for the Plaintiff to prove their case. With the evidence shown to date the Plaintiff would lose in a court of law and it is my belief a Motion for Summary of Judgment is being asked because they do not have the proper documentation to prove their case and want a quick judgment without having to come forth with the proper documentation. They have no merits and in my opinion asking for this Summary of Judgment is one of bad faith brought upon the courts.

"We have examined that affidavit in light of the requirements of W.R.C.P. 56(e) that an affidavit (1) be made on personal knowledge; (2) set forth facts which are admissible in evidence; (3) demonstrate the affiant's competency to testify on the subject matter of the affidavit; and (4) have attached to it the papers and documents to which it refers." Lámar v. FARMERS CO-OP OIL CO., 215 P. 3d 296 - Wyo: Supreme Court 2009.

With the statements above again I ask for Summary Judgment be denied as this claim is invalid, factually untrue and is not supported by the documentation presented by the Plaintiff.

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You should probably point out why you're disputing the affidavit. It's not based upon personal knowledge. Did you say the affiant stated she was "familiar with" the records?

"The affiant states he 'is familiar with the matters set forth herein, and they are true to the best of his knowledge, information and belief.' That statement does not meet the 'personal knowledge' requirement." Lámar v. FARMERS CO-OP OIL CO., 215 P. 3d 296 - Wyo: Supreme Court 2009.

In the affidavit, did they state they own the account? If so, you need to refute that and provide supporting case law for a valid assignment.

What was their cause of action in the Complaint?

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What was their cause of action in the Complaint?

This is from the origiona complaint

Parties Jurisdition and Venue

Plaintiff is the owner of account which is the subject of this action

Defendant lives in the county of Natrona

The above captioned cause of action arisees out of defendants actions took place in the county of natrona

Natrona County Circuit Court has jusrisdiction

Cause of Action

Breach of Contract

Plaintiff incorporates and realleges the allegations set forth in paragrahs 1 thruy 4 as if set forth fully herein.. The amount claimed from defendant 191997.86 or according to proof, together with proper interes. costs, attorney fees and any other items allowable by statute or specific agreement. Such claims arise from the following events or transactions; breach of contract, to wit, failure to make payment on account with Plaintiff

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You have to show there are genuine issues of material fact.

"A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts." Doud v. First Interstate Bank of Gillette, 769 P.2d 927, 928 (Wyo. 1989) (quoting Garner v. Hickman, 709 P.2d 407, 410 (Wyo. 1985)).

The next citation is to dispute their breach of contract claim. They've presented no evidence to prove the existence of a contract.

"It is well established that an offer, acceptance, and consideration are the basic elements of a contract. The burden of proving a contract is on the one seeking to recover on it." Black & Yates, Inc. 248*248 v. Negros-Philippine Lumber Company, 32 Wyo. 248, 231 P. 398 (1924).

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Can someone give me their interpretation of this?

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served, or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served.

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Change it to "Defendant's Amended Opposition to Motion for Summary Judgment"

Take out the "please accept" and put in "Pusuant to Rule #### (the one you quote with the 20 days) the defendant in the above titled action respectfully submits this amended pleading."

Your opposition is all over the place, you're arguing the entire case.

It comes before me the plaintiff has asked for a Motion for Summary Judgment of this case. I ask for the Summary of Judgment be denied on the grounds of insufficient binding evidence that show the defendant and plaintiff ever did business or had any contractual obligation.

I have responded within the proper time frame to dispute this claim and disputed this entirely. I have never opened an account with LVNV Funding. I have never made one payment to LVNV Funding and I cannot default on a claim that is untrue

This above can go, it is unnecessary

2. An affidavit under Rule 56 may be enough to ask for a Motion for Summary of Judgment however this case falls under contractual law which an affidavit is not enough for the Plaintiff to prove their case. With the evidence shown to date the Plaintiff would lose in a court of law and it is my belief a Motion for Summary of Judgment is being asked because they do not have the proper documentation to prove their case and want a quick judgment without having to come forth with the proper documentation. They have no merits and in my opinion asking for this Summary of Judgment is one of bad faith brought upon the courts.

Argumentative, conclusory, unsupported legal opinions, scandalous and impertinent. Take it all out.

Put in something instead, like "Statement of Facts."

1. Plaintiff did so and so (submitted hearsay affidavit, etc)

2 Plaintiff's motion fails as a matter of law because of A B and C

3 Case law (not too much)

4 Plaintiff's motion fails as a matter of law to the extent that no supporting documentation for a breach of contract claim was appended to the original complaint

Use BV80's contract case law

5. Discovery is or may be incomplete

CONCLUSION

For the reasons set forth herein, defendant respectfully prays the court to deny the plaintiff's motion.

That's all you need. Don't try the whole case, don't make crazy accusations, don't sound angry. Keep it short and to the point, the judge will like that much better than a tirade.

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Change it to "Defendant's Amended Opposition to Motion for Summary Judgment"

Take out the "please accept" and put in "Pusuant to Rule #### (the one you quote with the 20 days) the defendant in the above titled action respectfully submits this amended pleading."

Your opposition is all over the place, you're arguing the entire case.

It comes before me the plaintiff has asked for a Motion for Summary Judgment of this case. I ask for the Summary of Judgment be denied on the grounds of insufficient binding evidence that show the defendant and plaintiff ever did business or had any contractual obligation.

I have responded within the proper time frame to dispute this claim and disputed this entirely. I have never opened an account with LVNV Funding. I have never made one payment to LVNV Funding and I cannot default on a claim that is untrue

This above can go, it is unnecessary

2. An affidavit under Rule 56 may be enough to ask for a Motion for Summary of Judgment however this case falls under contractual law which an affidavit is not enough for the Plaintiff to prove their case. With the evidence shown to date the Plaintiff would lose in a court of law and it is my belief a Motion for Summary of Judgment is being asked because they do not have the proper documentation to prove their case and want a quick judgment without having to come forth with the proper documentation. They have no merits and in my opinion asking for this Summary of Judgment is one of bad faith brought upon the courts.

Argumentative, conclusory, unsupported legal opinions, scandalous and impertinent. Take it all out.

Put in something instead, like "Statement of Facts."

1. Plaintiff did so and so (submitted hearsay affidavit, etc)

2 Plaintiff's motion fails as a matter of law because of A B and C

3 Case law (not too much)

4 Plaintiff's motion fails as a matter of law to the extent that no supporting documentation for a breach of contract claim was appended to the original complaint

Use BV80's contract case law

5. Discovery is or may be incomplete

CONCLUSION

For the reasons set forth herein, defendant respectfully prays the court to deny the plaintiff's motion.

That's all you need. Don't try the whole case, don't make crazy accusations, don't sound angry. Keep it short and to the point, the judge will like that much better than a tirade.

legaleagle Thanks I appreciate the help I'll get it cut down and right before I file it

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