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1.

Here comes Defendantpro-se, hereby moves the court to deny Plaintiff’s motion for summary judgement on the grounds that Plaintiff’s affidavit of declaration is hearsay submitted by Plaintiff’s own cousel stating that the records are “made and prepared” by her in the course of business.

Memorandum and points of authority

Comes now the Defendant, and files this opposition to Plaintiffs Summary Judgment and also files a Motion for dismissal with prejudice. The Defendant attests under the penalty of perjury that the following facts are true.

1) The Plaintiffs Cause of action is insufficient as a matter of law.

2) The complaint does not set forth the true facts upon which the Plaintiff seeks Summary Judgment.

3) The Plaintiff is a third party debt collector. The Plaintiffs attorney failed to provide any proof of a relationship between themselves and the original creditor, specifically the authority of to collect the debt on behalf of the original creditors

4) The Defendant maintains the Plaintiffs attorney misled the court and perjured themselves by withholding the fact that they have no relationship with the original creditor.

6) Since Plaintiffs council is a third party to the proceedings, all evidence brought to the court by them should be considered hearsay under the hearsay rules of Oregon ORS 40.415.

7) The actions of the Plaintiffs attorney has prejudiced the Defendant.

Wherefore the Defendant submits that the court should deny the Plaintiffs Summary Judgment and dismiss the case with prejudice.

2.

FACTS

The Plaintiff has failed to prove standing.

"Standing" is a legal term that identifies whether a party to a legal proceeding possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties. (3) See Eckles v. State of Oregon, 306 Or 380, 383, 760 P2d 846 (1988) (discussing principle). A party who seeks judicial review of a governmental action must establish that that party has standing to invoke judicial review. The source of law that determines that question is the statute that confers standing in the particular proceeding that the party has initiated, "because standing is not a matter of common law but is, instead, conferred by the legislature." Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 566, 919 P2d 1168 (1996).

The plaintiff’s affidavit declaration is hearsay.

"Subject to the provisions of ORS 40.415 [regarding expert testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness."

Affidavits supporting motion for summary judgment that merely deny allegations in complaint do not establish that there is no genuine issue of material fact. Beachcraft Marine Corp. v. Koster, 116 Or App 133, 840 P2d 1336 (1992)

Where affidavit sought to set forth facts by incorporating portions of another document but did not identify specific document statements being incorporated or excluded, affidavit was inadequate to demonstrate compliance with requirements of personal knowledge, admissible facts and competency to testify. Jeffries v. Mills, 165 Or App 103, 995 P2d 1180 (2000)

Plaintiff is not entitled to summary judgment as a matter of law.

Summary judgment is inappropriate where disputed issue of fact exists as to diligence in discovery of fraud so as to commence limitations period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977)

Where plaintiff, a prisoner, was prevented by Oregon State Penitentiary from obtaining medical opinion needed for affidavit opposing motion for summary judgment, denial of continuance to obtain medical opinion and acceptance of summary judgment motion was abuse of discretion. Harris v. Erickson, 48 Or App 655, 617 P2d 685 (1980)

Trial court did not err in granting defendants’ motion for summary judgment despite defendants’ failure to support their motion with affidavits or other evidence, where defendants relied on affidavits and depositions submitted by plaintiffs in support of plaintiffs’ motion for summary judgment and where plaintiffs’ evidence showed no genuine issue of material fact. Harris v. Nordquist, 96 Or App 19, 771 P2d 637 (1989)

Affidavits supporting motion for summary judgment that merely deny allegations in complaint do not establish that there is no genuine issue of material fact. Beachcraft Marine Corp. v. Koster, 116 Or App 133, 840 P2d 1336 (1992)

Where affidavit sought to set forth facts by incorporating portions of another document but did not identify specific document statements being incorporated or excluded, affidavit was inadequate to demonstrate compliance with requirements of personal knowledge, admissible facts and competency to testify. Jeffries v. Mills, 165 Or App 103, 995 P2d 1180 (2000)

Plaintiff failed to complete discovery.

GENERAL PROVISIONS GOVERNING DISCOVERY

RULE 36

A Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

B Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

B(1) In general. For all forms of discovery, parties may inquire regarding any matter, not privileged, which is relevant to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Edited by purplebb
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B(2) Insurance agreements or policies.

B(2)(a) A party, upon the request of an adverse party, shall disclose:

B(2)(a)(i) the existence and contents of any insurance agreement or policy under which a person transacting insurance may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment; and

B(2)(a)(ii) the existence of any coverage denial or reservation of rights, and identify the provisions in any insurance agreement or policy upon which such coverage denial or reservation of rights is based.

B(2)(B) The obligation to disclose under this subsection shall be performed as soon as practicable following the filing of the complaint and the request to disclose. The court may supervise the exercise of disclosure to the extent necessary to insure that it proceeds properly and expeditiously. However, the court may limit the extent of disclosure under this subsection as provided in section C of this rule.

B(2)© Information concerning the insurance agreement or policy is not by reason of disclosure admissible in evidence at trial. For purposes of this subsection, an application for insurance shall not be treated as part of an insurance agreement or policy.

B(2)(d) As used in this subsection, “disclose” means to afford the adverse party an opportunity to inspect or copy the insurance agreement or policy.

B(3) Trial preparation materials. Subject to the provisions of Rule 44, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection B(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party's case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain, without the required showing, a statement concerning the action or its subject matter previously made by that party. Upon request, a person who is not a party may obtain, without the required showing, a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person or party requesting the statement may move for a court order. The provisions of Rule 46 A(4) apply to the award of expenses incurred in relation to the motion. For purposes of this subsection, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

3.

ARGUMENT

Plaintiff argues that Defendant’s answer does not raise a genuine issue of material fact, where as in fact the Plaintiff’s summons failed to put forth any material facts warranting a judgement. Plaintiff also failed to halt collection efforts including legal proceedings during debt validation. The material supplied as “facts” in the plaintiff’s motion for summary judgement were invoices that were created on March 30th 2012.

"Summary judgment is appropriate only if the pleadings and designated materials considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Yates v. Johnson County Bd. of Comm'rs., 888 N.E.2d 842, 846 (Ind. Ct. App. 2008).

"Generally, summary disposition is premature if granted before discovery on a disputed fact issue is complete." Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009).

"There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

"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

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).

This plaintiff-debt buyer’s summary judgement motion is as deficient as in Davis v. County of Clackamas, 134 P. 3d 1090 - Or: Court of Appeals 2006. Held before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges affirm that "Subject to the provisions of ORS 40.415 [regarding expert testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness."

This plaintiff-debt buyer’s opposition to this summary judgment motion is as deficient as the debt buyer’s opposition in New Century Financial Service, Inc., vs, David Shaler, MRS-L=001265-10. In both cases, the debt buyer relied on a hearsay certification of its counsel. Although Shaler involved a different debt buyer and a different defendant, counsel for the plaintiff and defendant are the same. In Shaler, the Honorable Robert J. Brennan, J.S.C decided that the opposition to defendant’s summary judgment motion in the form of a certification from the plaintiff’s counsel was insufficient.

“There is no certification here, or affidavit, from [the original creditors] that would speak to any of the inssues in the terms of its relationship with [ the defendant]. In fact, there’s no certification at all offered by the plaintiff, except hearsay certification of counsel.” Judge Brennan state further, “We have the certification of Counsel, which attaches certain documents. But the Counsel’s certifcation, of course, is hearsay, and does not establish anything as a matter of a record upon which a court can reply in terms of a motion for summary judgement.” Id. Judge Brennan’s decision was consistent with Sellers v. Schonfeld, 270 N.J. Super. 424 (app. Div. 1993), where the appellate Division rejected counsel’s attempt to admit documents under his own certification:

There is nothing that suggests the certifying attorney had any firsthand knowledge concerning the exhibit or facts contained therein. The documents were at best hearsay, once or more removed. One who has no knowledge of a fact except for what he has read or for what another has told him cannot provide evidence to suport a favorable disposition of a summary judgement. See Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (1994), and the cases cited therein.

Sellers at 428-29

Thus, th eopposition here fails to submit any admissible evidence.

Instead, Plaintiff raises specious arguments which misconstrue the purpose of the summary judgement motion. For the reasons set forth in Defendant’s Motion Plaintiff, bearing the burrden of persuasion, could have defeated this motion only by showing there is admissible evidence to establish its prima facie case. Therefore, summary judgement should be granted dismissing the complaint.

Plaintiff fails to recognize that the rules expressly allow for summary judgement motions prior to filing an answer. As an answer precedes discovery, the Rules anticipate that an early summary judgement motion could be filed prior to any discovery. See R. 4:6-1 (a) incorporated by R. 6:3-1. Plaintiff has not identified what discovery it needs. To the contrary, by signing the Complaint, Plaintiff’s counsel certified that he conducted a reasonale investigation and concluded that there was evidentiary support for each factual allegation. R.1:4-8. Plaintiff should not be heard to argue that it lack evidence.

Plaintiff offers no explanation as to the absence of an affidavit from the original creditor, as Plaintiff must satisfy the same evidentiarty burden as the original creditors would have if it still owned the account.

Finally, In LVNV Funding, LLC., v. Colvell, A-1313-10T3, _A.3d _, 2011 WL 2682826 (App. Div. July 12, 2011), the appellate Division announced that a debt buyer’s proof which fails to satisfy the requirements for obtaining a default judgment also fails to establish a debt buyer’s prima facie case.

“A creditor must prove more than merely the toal amount remaining unpaid. Instead, as required to obtain a default judgement by Rule 6:6-2(a), the ceditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of the billing cycle, and the new balance.” [slip OP. at 2 (emphasis added).]

3.

Plaintiff’s submission does not satisfy the Colvell standard and, therefore, is insufficent to defeat the motion.

Conclusion

For the foregoing reasons and those set forth in the Defendant’s Motion, Defendant respectfully requests that the Court grant her Motion for Summary Judgement with prejudice.

Defandant Pro Se.

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Right out the gate you need to change "here comes Defendant" It sounds cool, but something like, "comes now the Defendant, Your Name, and his/her reply to Plaintiff's Motion for Summary Judgement.

You really need to do more than just copy and paste. I did not read it all as it all ran together and I got the general idea of what you were saying. A lot of your arguments are irrelevant, for example, "A party who seeks judicial review of a governmental action must establish that that party has standing to invoke judicial review"

What does this have to do with your case. Unless I missed something there is no governmental action that has taken place. There are a lot of other irrelevant arguments.

Not saying you should not copy and paste. I do it all the time, but this is obvious that you just selected all and then copy and pasted. Your arguments don't flow and are all over the place.

I'm not sure why you copy and pasted the rules of discovery.

You've raised no issue of dispute other than just arguing the other side did not prove their case.

"There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

What are those material facts in dispute? They need to be clearly listed after you make this statement. Also, you are citing a case that has nothing to do with your argument. You don't need a case cite in your final argument, you are wrapping things up.

"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"

This is a true statement, but you don't do anything with this correct statement. It's like saying the state has to prove their case to send a criminal to prison. All you have done is stated a fact that is basically universally already known and used by every court in the country.

I would expect a quick granting of the other sides motion for summary judgement. You are have just copy and pasted and you are citing cases and the narrative of the judge(s), however, you are not showing how those cases are arguments apply to your case. Citing cases if very important, in fact you usually lose if you don't, however, you have to show how what you cited is relevant to your specific case and argument.

You've cited cases that involve fraud, government regulations and default judgements. Those have zero to do with your case, yet you not only cited those cases, but actually have the narrative of what the judge said, all of which is totally irrelevant.

Sorry, it's just my opinion, does not mean I'm right.

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I don't have time to read the whole thing, but I'll offer a few suggestions.

A party who seeks judicial review of a governmental action must establish that that party has standing to invoke judicial review. The source of law that determines that question is the statute that confers standing in the particular proceeding that the party has initiated, "because standing is not a matter of common law but is, instead, conferred by the legislature." Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 566, 919 P2d 1168 (1996).

I'm not sure the above is appropriate for your case. The case law is about a governmental action.

Affidavits supporting motion for summary judgment that merely deny allegations in complaint do not establish that there is no genuine issue of material fact. Beachcraft Marine Corp. v. Koster, 116 Or App 133, 840 P2d 1336 (1992)

That case law definitely does NOT support you. The Plaintiff isn't denying allegations in the Complaint. You are. That case was about defendants who had filed an MSJ and who had merely denied allegations in the Complaint.

You're the one who has to show that there IS a genuine issue of material fact...reasons the MSJ should be denied.

Where plaintiff, a prisoner, was prevented by Oregon State Penitentiary from obtaining medical opinion needed for affidavit opposing motion for summary judgment, denial of continuance to obtain medical opinion and acceptance of summary judgment motion was abuse of discretion. Harris v. Erickson, 48 Or App 655, 617 P2d 685 (1980)

I don't understand where you're going with the above case law.

Affidavits supporting motion for summary judgment that merely deny allegations in complaint do not establish that there is no genuine issue of material fact. Beachcraft Marine Corp. v. Koster, 116 Or App 133, 840 P2d 1336 (1992)

You don't want this one.

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Thank you!

I used the sterns template but then tried to find a bunch things that may apply in my state, which is why I posted it cause I would rather not look like an idiot when I file it.

They stated in their MSJ that I have no genuine issue of material fact, but they have not responded to my answer or to any affirmative defenses just file the MSJ.

I can prove that I don't owe them, on most all of these. I am waiting on it to be mailed to me. But I need to file before I get it.

Can you tell me what should be my focus to defeat the MSJ? I was going for standing and heresay mainly. But I guess I got a little carried away.

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They're not going to reply to your answer or affirmative defenses. The only thing they would do is send discovery requests.

Is this a JDB or an OC? What's going to be mailed to you?

It is a CA possibly JDB haven't figured that out yet. I think this is the first CA to pick up this debt but the OC still seems to have power over what the CA does.

I have requested proof from the OC of the dates I was on financial assistance covered at 100%. And proof of the dates I had insurance being mailed to me.

I have recieved one of the letters stating that they had wrote off the entire past due balance as of 2009.

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You've got me on this one. You could attack standing, but if they're suing for the OC, it won't fly. However, you could still bring it up.

Check your rules to see if you can request more time to reply to their motion based upon the fact that you're awaiting evidence in your defense. Hopefully, someone here in the forum will have some suggestions for you.

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You've got me on this one. You could attack standing, but if they're suing for the OC, it won't fly. However, you could still bring it up.

Check your rules to see if you can request more time to reply to their motion based upon the fact that you're awaiting evidence in your defense. Hopefully, someone here in the forum will have some suggestions for you.

Thanks!

The OC's are not named as the plaintiffs, that's what confuses me because it seems they should be if they still have authority over the debt. But actually I only was getting somewhere with one of them, the other said they could not doing anything.

They have not produced any kind of contract (which they would need to come up with 3 different ones since they are suing on behalf of 3 OC's). They filed for MSJ immediatly after sending my discovery responses which only included invoices that was dated march 30th 2012 and due march 31st 2012....which are not the dates on the originals.

So I am thinking they are trying to shut me down before I have time to complete discovery,they also said in the motion that I am "not entiled to trial on the possibility that a material fact may turn up at that time."

Any thought on that?

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The Plaintiffs Cause of action is insufficient as a matter of law.

You do not make a legal conclusion like this, that is the court's job. If we could just swear to our own opinions as fact we wouldn't need anything past this sentence. I would delete it.

The Plaintiff is a third party debt collector. The Plaintiffs attorney failed to provide any proof of a relationship between themselves and the original creditor, specifically the authority of to collect the debt on behalf of the original creditors

They don't have to prove a relationship, just that they have a juris number. It seems that you are unclear as to who is suing you. You can't write an effective brief if you don't know who the plaintiff is.

The Defendant maintains the Plaintiffs attorney misled the court and perjured themselves by withholding the fact that they have no relationship with the original creditor.

Delete this, it is an accusation of criminal activity and will just make trouble for you. It is also based upon an unproven allegation which may not even be true considering you can't figure out who the plaintiff is.

Since Plaintiffs council is a third party to the proceedings, all evidence brought to the court by them should be considered hearsay

Delete this, it is also unproven and conclusory

Where plaintiff, a prisoner, was prevented by Oregon State Penitentiary

Don't use criminal case law in civil cases

GENERAL PROVISIONS GOVERNING DISCOVERY

RULE 36

Unnecessary to quote this

Insurance agreements or policies

This is for malpractice cases, not yours, take it out

I think you should start over, I couldn't even re-write this for you if I wanted to. I think your format is wrong, too. Overall I think this will be denied.

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You've raised no issue of dispute other than just arguing the other side did not prove their case.

to be honest i am not sure how i go about it, i thought i was raising issues to that could be seen as issues of material fact

"There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

What are those material facts in dispute? They need to be clearly listed after you make this statement. Also, you are citing a case that has nothing to do with your argument. You don't need a case cite in your final argument, you are wrapping things up.

I want them to prove they own the debt, i want to complete discovery, they are trying to shut me down before i can prove i dont owe it, the OC has alerted them that I dispute that I owe these amount and that I am trying to prove it via insurance and financial assistance ect.

"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"

This is a true statement, but you don't do anything with this correct statement. It's like saying the state has to prove their case to send a criminal to prison. All you have done is stated a fact that is basically universally already known and used by every court in the country.

what can i include, what would be considered fact besides me stating a fact, i really dont have any evidence yet except one paper, and also proof they doctored the invoices after the intial ones they sent me.

i went through and deleted everything you all said i should not include or is irrelevant, but I think my format still sucks. I would just go with the sterns template but the case law is not in my state.

Thanks for all your help everyone! I really need it and it's much appreciated!

Edited by purplebb
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i went through and deleted everything you all said i should not include or is irrelevant, but I think my format still sucks. I would just go with the sterns template but the case law is not in my state.

Thanks for all your help everyone! I really need it and it's much appreciated!

Can anyone give me any pointers??

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I think it's just a matter of time before they get their summary judgement unless you pretty much devote the next few weeks of hours of day learning this stuff. We kind of put down collection lawyers on this board a lot, but the fact is, there is a reason you have three years of law school.

Out of everything you have written this is what I think, and this is assuming you have asked for discovery properly. You can defeat their motion by arguing discovery is not complete. That will get you a temp stay. But is discovery not complete or are you just alleging what they provided is incomplete. If so, you have to frame that argument into a motion to compel or use their incomplete responses to tear holes in their case and show where material facts are disputed and a trial is needed. However, you are going to have to get caught up in record time or they will get their judgement.

You appear to have the locating the information down, which is great. However, you are not applying it to your case. Also, generally speaking, criminal arguments don't work for civil cases. In other words you are quoting a lot of law, decisions, some relevant, some not, but leaving it at that.

See if this makes sense. I'm the police and I arrest you for kidnapping. Then I argue all the kidnapping laws to the court and I am dead on with all them. Then I roll case after case where the court has upheld certain rulings, ruled certain evidence as admissible or not, and do a brilliant job of citing dozens of kidnapping cases and how they played out.

Then I rest my case. You walk of course because I never correlated anything that I argued to your case and how your case was the same or similar. I just basically gave a lecture on the kidnapping laws and how courts have ruled in kidnapping cases.

That is where you are right now. You are throwing around a lot of fancy sounding terms and case cites, which is great, I do it all the time, but you are not bringing it all together. The courts call if framing your arguments. You have all this info and arguments and mixed in it is a lot of relevant and irrelevant things. However, your not framing your arguments correctly. In fact your not really making arguments.

What Legal correctly pointed out were conclusory statements you are making. In other words you are not backing up what you are saying. It's like Ford saying we have the best cars on the road today. Might be true, might not be, but just because Ford says it does not make it true.

That works both ways though. Collectors and creditors are also very famous for doing this. The only time it's applicable is in the initial complaint. The initial complaint just needs to make a claim that if true means the party suing wins.

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I think it's just a matter of time before they get their summary judgement unless you pretty much devote the next few weeks of hours of day learning this stuff. We kind of put down collection lawyers on this board a lot, but the fact is, there is a reason you have three years of law school.

.

Thank you! I have decided to answer each thing separately and try and mimic what they have laid out. I still have to do my own affidavit, i need to file this tomorrow or ask for an extention I am also up against mandatory arb. So here is it..

Response to plaintiffs summary judgement

1.

Comes now the Defendant pro-se in response to Plaintiff Motion for summary judgement. Hereby moves the court to deny Plaintiff’s motion for summary judgement. Plaintiff is not entitled to summary judgment as a matter of law.

2.

Points and Authorities

In support of it’s motion, Defendant relies upon ORCP 47. Defendant’s Memorandum in Support of motion to deny Plaintiff’s Summary judgment, the declaration of , filed concurrently herewithen, and the pleadings and papers on file in this case.

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Response to Plaintiff's Memorandum in support of summary judgement

1.

OPPOSITION OF SUMMARY JUDGEMENT

Pursuant to ORCP 47, Summary judgment is inappropriate where disputed issue of fact exists as to diligence in discovery of fraud so as to commence limitations period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977). I Defendant, Deny the alleged debt, which creates a genuine issue of material fact.

2.

FACTS

The plaintiff’s affidavit declaration is hearsay.

The Plaintiff’s affidavit of declaration is hearsay submitted by Plaintiff’s employee stating that the records are “made and prepared” by her in the course of business. The statements are dated March 30th 2012 and are due March 31st 2012. Declarant has no personal knowledge of the alleged debt.

"Subject to the provisions of ORS 40.415 [regarding expert testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness." And “Where affidavit sought to set forth facts by incorporating portions of another document but did not identify specific document statements being incorporated or excluded, affidavit was inadequate to demonstrate compliance with requirements of personal knowledge, admissible facts and competency to testify. Jeffries v. Mills, 165 Or App 103, 995 P2d 1180 (2000)

Plaintiff is not entitled to a Summary Judgement.

In a letter dated April 20th 2012 Plaintiff filed for Summary Judgment.“Trial court did not err in granting defendants’ motion for summary judgment despite defendants’ failure to support their motion with affidavits or other evidence, where defendants relied on affidavits and depositions submitted by plaintiffs in support of plaintiffs’ motion for summary judgment and where plaintiffs’ evidence showed no genuine issue of material fact. Harris v. Nordquist, 96 Or App 19, 771 P2d 637 (1989). I am respectfully requesting the Plaintiff’s motion for Summary judgement be denied while discovery is still being conducted. Plaintiff also failed to halt legal proceedings during the debt validation process pursuant to FDCPA § 809.5B.

Plaintiff failed to complete discovery.

The Plaintiff failed to respond to production of documents in a timely matter. Per Oregon Rule 36. "Generally, summary disposition is premature if granted before discovery on a disputed fact issue is complete." Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009). I request a motion to compel discovery. The first request of production of documents and verification of debt was filed in my answer to Plaintiff’s complaint dated March 6th 2012. They responded with in a letter dated April 10th 2012. According to Rule 43 (B)2; within 30 days after service of a request in accordance with subsection. Plaintiff failed to produce first production of documents in a timely matter and filed a motion for summary judgment 10 days later.

3.

ARGUMENT

Plaintiff argues that Defendant’s answer does not raise a genuine issue of material fact, where as in fact the Plaintiff’s summons failed to put forth any material facts warranting a judgement. Plaintiff also failed to halt collection efforts including legal proceedings during debt validation. The material supplied as “facts” in the plaintiff’s motion for summary judgement were invoices that were created on March 30th 2012 and due on March 31st 2012.

"Summary judgment is appropriate only if the pleadings and designated materials considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Yates v. Johnson County Bd. of Comm'rs., 888 N.E.2d 842, 846 (Ind. Ct. App. 2008).

"There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

"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

"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).

This plaintiff-debt buyer’s summary judgement motion is as deficient as in Davis v. County of Clackamas, 134 P. 3d 1090 - Or: Court of Appeals 2006. Held before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges affirm that "Subject to the provisions of ORS 40.415 [regarding expert testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness."

This plaintiff-debt buyer’s opposition to this summary judgment motion is as deficient as the debt buyer’s opposition in New Century Financial Service, Inc., vs, David Shaler, MRS-L=001265-10. In both cases, the debt buyer relied on a hearsay certification of its counsel. Although Shaler involved a different debt buyer and a different defendant, counsel for the plaintiff and defendant are the same. In Shaler, the Honorable Robert J. Brennan, J.S.C decided that the opposition to defendant’s summary judgment motion in the form of a certification from the plaintiff’s counsel was insufficient.

“There is no certification here, or affidavit, from [the original creditors] that would speak to any of the inssues in the terms of its relationship with [ the defendant]. In fact, there’s no certification at all offered by the plaintiff, except hearsay certification of counsel.” Judge Brennan state further, “We have the certification of Counsel, which attaches certain documents. But the Counsel’s certifcation, of course, is hearsay, and does not establish anything as a matter of a record upon which a court can reply in terms of a motion for summary judgement.” Id. Judge Brennan’s decision was consistent with Sellers v. Schonfeld, 270 N.J. Super. 424 (app. Div. 1993), where the appellate Division rejected counsel’s attempt to admit documents under his own certification:

There is nothing that suggests the certifying attorney had any firsthand knowledge concerning the exhibit or facts contained therein. The documents were at best hearsay, once or more removed. One who has no knowledge of a fact except for what he has read or for what another has told him cannot provide evidence to suport a favorable disposition of a summary judgement. See Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (1994), and the cases cited therein.

Sellers at 428-29

Thus, th eopposition here fails to submit any admissible evidence.

Instead, Plaintiff raises specious arguments which misconstrue the purpose of the summary judgement motion. For the reasons set forth in Defendant’s Motion Plaintiff, bearing the burrden of persuasion, could have defeated this motion only by showing there is admissible evidence to establish its prima facie case. Therefore, summary judgement should be granted dismissing the complaint.

Plaintiff fails to recognize that the rules expressly allow for summary judgement motions prior to filing an answer. As an answer precedes discovery, the Rules anticipate that an early summary judgement motion could be filed prior to any discovery. See R. 4:6-1 (a) incorporated by R. 6:3-1. Plaintiff has not identified what discovery it needs. To the contrary, by signing the Complaint, Plaintiff’s counsel certified that he conducted a reasonale investigation and concluded that there was evidentiary support for each factual allegation. R.1:4-8. Plaintiff should not be heard to argue that it lack evidence.

Plaintiff offers no explanation as to the absence of an affidavit from the original creditor, as Plaintiff must satisfy the same evidentiarty burden as the original creditors would have if it still owned the account.

Finally, In LVNV Funding, LLC., v. Colvell, A-1313-10T3, _A.3d _, 2011 WL 2682826 (App. Div. July 12, 2011), the appellate Division announced that a debt buyer’s proof which fails to satisfy the requirements for obtaining a default judgment also fails to establish a debt buyer’s prima facie case.

“A creditor must prove more than merely the toal amount remaining unpaid. Instead, as required to obtain a default judgement by Rule 6:6-2(a), the ceditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of the billing cycle, and the new balance.” [slip OP. at 2 (emphasis added).]

3.

CONCLUSION

Plaintiff’s submission does not satisfy the Colvell standard and, therefore, is insufficent to defeat the motion.

For the foregoing reasons and those set forth in the Defendant’s Motion, Defendant respectfully requests that the Court grant her this opposition to Plaintiffs Summary Judgment and also files a Motion for dismissal with prejudice.

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You're getting there. If you could get that delay, you could probably get where you need to be.

A major, major concern. You are just now asking for a motion to compel in your reply for summary judgement. I'd be filing a proper motion to compel, per the rules, tomorrow morning. You're not there, but you are a ton closer.

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You're getting there. If you could get that delay, you could probably get where you need to be.

A major, major concern. You are just now asking for a motion to compel in your reply for summary judgement. I'd be filing a proper motion to compel, per the rules, tomorrow morning. You're not there, but you are a ton closer.

I have a few questions....

My states rules say I have 20 days to respond to an MSJ My calculations were that tomorrow would be the last day to file (still need to call the court to confirm their date of filing).

"The adverse party shall have 20 days in which to serve and file opposing affidavits or declarations and supporting documents. The moving party shall have five days to reply. The court shall have discretion to modify these stated times. The court shall grant the motion if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law."

It was dated the 20th but I recieved it regular mail on saturday the 21st.

As for the affadavit/declaration it is not notorized and it was not sent with proof of service.

F(2)© Making and certifying affidavit. The affidavit of service may be made and certified before a notary public, or other official authorized to administer oaths and acting as such by authority of the United States, or any state or territory of the United States, or the District of Columbia, and the official seal, if any, of such person shall be affixed to the affidavit. The signature of such notary or other official, when so attested by the affixing of the official seal, if any, of such person, shall be prima facie evidence of authority to make and certify such affidavit.

F(2)(d) Form of certificate, affidavit or declaration. A certificate, affidavit, or declaration containing proof of service may be made upon the summons or as a separate document attached to the summons.

So my questions are

If served on a saturday would the following business day be the date to file...i.e. the 10th?

And is the declartion not being noterized an issue I can attack?

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It all depends on exactly how the rule is worded. Many courts allow five days for mailing. I would guess at a very minimum you have 20 days from your receipt and probably about five more days.

If you are saying the affidavit is not noterized, which that is what I read, then heck yeah, you argue the affidavit should be given no weight (probative value). That is huge.

On a side note, you're starting to catch on it appears. You want to attack the subject matter of their evidence for sure, but you want to attack procedural matters, like this, also.

Most of these type cases are won by arguing the other side can't meet their burden of proof, not that the other side is wrong. It's like not guilty, and how not guilty does not mean innocent.

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It all depends on exactly how the rule is worded. Many courts allow five days for mailing. I would guess at a very minimum you have 20 days from your receipt and probably about five more days.

If you are saying the affidavit is not noterized, which that is what I read, then heck yeah, you argue the affidavit should be given no weight (probative value). That is huge.

On a side note, you're starting to catch on it appears. You want to attack the subject matter of their evidence for sure, but you want to attack procedural matters, like this, also.

Most of these type cases are won by arguing the other side can't meet their burden of proof, not that the other side is wrong. It's like not guilty, and how not guilty does not mean innocent.

Great thanks! I am preparing a motion to compel as well.

In my personal declaration would I request a motion to strike the opposing declaration? Should I go through and deny everything she wrote in it? Do I use the word challenge or do I just deny?

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So after finding out that the Plaintiff never filed any of this with the court and calling the arbitrator to ask if we were supposed to file our documents with him (which he said yes because he is the court right now). I wrote up a request for a continuance of arbitration and was going to bring it in person with my fee. After writing all that up I couldn't bring myself to do it.

I felt as though it was like when I was a kid and we would play school, and I got to be teacher for the day (oh the power)...and felt like I was just setting myself up to fail by paying the fee and jumping in to a lawyer getting to play judge for a day.

So i figured if they get a judgement then I could appeal it and go from there.

This is what I found:

ORS 36.425 - Filing of decision and award - 2011 Oregon Revised Statutes

The failure of a party to appear or participate in the arbitration proceeding by reason of failing to pay the arbitrator fee or obtain a waiver or deferral of the fee does not affect the ability of the party to appeal the arbitrators decision and award in the manner provided by ORS 36.425

ORS 36.400 - Mandatory arbitration programs - 2011 Oregon Revised Statutes

(a) Within 20 days after the filing of a decision and award with the clerk of the court under subsection (1) of this section, a party against whom relief is granted by the decision and award or a party whose claim for relief was greater than the relief granted to the party by the decision and award, but no other party, may file with the clerk a written notice of appeal and request for a trial de novo of the action in the court on all issues of law and fact. A copy of the notice of appeal and request for a trial de novo must be served on all other parties to the proceeding. After the filing of the written notice a trial de novo of the action shall be held. If the action is triable by right to a jury and a jury is demanded by a party having the right of trial by jury, the trial de novo shall include a jury

I also found this on another forum (still need to look it up)

36.625 Petition to compel or stay arbitration. (1) On petition of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

(a) If the refusing party does not appear or does not oppose the petition, the court shall order the parties to arbitrate; and

(B) If the refusing party opposes the petition, the court shall proceed summarily to decide the issue as provided in subsection ( of this section and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

(2) On petition of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue as provided in subsection ( of this section. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(3) If the court finds that there is no enforceable agreement to arbitrate, it may not order the parties to arbitrate pursuant to subsection (1) or (2) of this section.

(4) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

(5) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a petition under this section must be made in that court. Otherwise, a petition under this section may be made in any court as provided in ORS 36.725.

(6) If a party makes a petition to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

(7) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

( A judge shall decide all issues raised under a petition filed under ORS 36.600 to 36.740 unless there is a constitutional right to jury trial on the issue. If there is a constitutional right to jury trial on an issue, the issue shall be tried to a jury upon the request of any party to the proceeding. [2003 c.598 §7]

Thoughts??

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I'm simply not following your logic. Are you saying you are going to take a defeat and then appeal?

Yes simply stated.

Oregon arbitration is mandatory but according to these rules my, take is that if I file an appeal then I can request a trial de novo and actually get in front of a judge.

I am not in a financial position where I can justify a $500 arbitration fee (which can exceed that amount and I would be billed) and then get a MSJ and then have to appeal anyway and pay more fees. The alleged amount is only $2xxx.xx and I am still awaiting documents to prove my case, And still need to work on my case. The amount of the fees I would have to pay from filing my answer to the jury trial exceed more then half of the alleged debt.

So those are my thoughts/logic...feel free to tell me this is a bad idea and why...thats why I posted :)

Thanks Coltfan!

EDIT:

I should also mention this is over an Implied Contract and I never signed anything agreeing to any type of arbitration so I may be able to file some sort of motion with the court before arbitration happens to appeal the actual arbitration.

The attorneys on my case file hundreds of lawsuit per week they brag about that on their website, so there must be a reason why they like arbitration and they ended up getting the arbitratior they chose so they have probly dealt with him before.

Edited by purplebb
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I think you are confusing mandatory court arbitration with private non-mandatory arbitration.

Of course I could be wrong, it's just an educated guess (well the educated part is up in the air :)

However I did check and yes you are correct, you can appeal de novo, which is very good. But check and see if you really have to pay for mandatory court arbitration and if you are confusing it for JAMS or private arbitration.

If you don't have to pay then go through the process. You will get a free preview of their case and then know how to defend better on appeal de novo.

Of course try to win, but you don't have to do anything you are nervous about if you are guaranteed a de novo appeal.

Check those fees and then you can probably better form a plan. De Novo appeal right does kick rear. In our district courts in Arkansas we have a guaranteed De Novo appeal to circuit. I've know some attorney's to just sit and watch the case unfold and not even try to win because they are going to appeal and stand no chance to win with certain judges for certain cases, and they are just getting a free peek.

Your plan now makes a ton more sense now, but if you can do it for free (which I bet you can)then use it practice for the "higher court"

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I think you are confusing mandatory court arbitration with private non-mandatory arbitration.

Of course I could be wrong, it's just an educated guess (well the educated part is up in the air :)

However I did check and yes you are correct, you can appeal de novo, which is very good. But check and see if you really have to pay for mandatory court arbitration and if you are confusing it for JAMS or private arbitration.

If you don't have to pay then go through the process. You will get a free preview of their case and then know how to defend better on appeal de novo.

Of course try to win, but you don't have to do anything you are nervous about if you are guaranteed a de novo appeal.

Check those fees and then you can probably better form a plan. De Novo appeal right does kick rear. In our district courts in Arkansas we have a guaranteed De Novo appeal to circuit. I've know some attorney's to just sit and watch the case unfold and not even try to win because they are going to appeal and stand no chance to win with certain judges for certain cases, and they are just getting a free peek.

Your plan now makes a ton more sense now, but if you can do it for free (which I bet you can)then use it practice for the "higher court"

It's a mandatory arb in Oregon (hope i'm not confusing anything)...I'd love to watch it unfold but I cannot appear or have anything heard if I don't pay the $500 fee which could be more if it gets drawn out...confirmed that with the arbitrator yesterday.

My guess is that oregon judges don't like them very much, I would be pissed too if I have 100's of cases going accross my desk a week from the same lawfirm. Maybe they will fold after I appeal.

Will be working on this, this weekend. Going to send discovery demands and see if there is something I can file before the hearing with the court. The arb date is not for 2 weeks but I'd like to be ready when i find out what happens :)

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