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Can you use Case Law from a different State?


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You can use any law that is relevant to your case that you want. However, you should always use your state law/case precedent first and from the highest court to the lowest court.

It won't do you much good citing a case from the Arkansas Supreme Court that 100% is in favor of the argument you are making if your opponent cites a case from the Minnesota Supreme Court that is 100% in favor of the position they are arguing. You will lose that argument.

Generally speaking you only want to cite cases from another state if the issue has not been addressed in your state courts. If you are in federal court, you can stretch it out to your federal circuit and you have a lot better opportunity since federal law is across the board. However, even with that, the federal circuits rule different on the same set of facts argued under the same law.

I doubt you have to pay a fee to file your reply to MSJ but check the rules and/or call the clerk of the court and ask them if there is a fee, I bet there is not.

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Here are the Minnesota rules for summary judgment.

Do I need anything else besides my opposition to summary judgment? What is the affidavit they are referring to?

Rule 56.Summary Judgment

56.01For Claimant

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the service of the summons, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.

(Amended effective March 1, 1994.)

Advisory Committee Comment - 1993 Amendment

The amendment to Rule 56.01 is intended to correct a typographical or grammatical error in the existing rule. No change in meaning or interpretation is intended.

56.02For Defending Party

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

56.03Motion and Proceedings Thereon

Service and filing of the motion shall comply with the requirements of Rule 115.03 of the General Rules of Practice for the District Courts, provided that in no event shall the motion be served less than ten days before the time fixed for the hearing. Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(Amended effective March 1, 1994.)

Advisory Committee Comment - 1993 Amendment

The amendment to Rule 56.03 is intended to make clear the relationship between this rule and Minn. Gen. R. Prac. 115. Rule 56.03 includes a strict ten-day notice requirement before a summary judgment motion may be heard. This minimum notice period is mandatory unless waived by the parties. See McAllister v. Independent School District No. 306, 276 Minn. 549, 149 N.W.2d 81 (1967). The rule is intended to provide protection before claims or defenses are summarily determined by requiring a minimum of ten days' notice.

56.04Case not Fully Adjudicated on Motion

If, on motion pursuant to this rule, judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing on the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

56.05Form 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 or by further affidavits. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere averments or denials of the adverse party's pleading but must present 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.

56.06When Affidavits are Unavailable

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

56.07Affidavits Made in Bad Faith

Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party submitting them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits causes the other party to incur, including reasonable attorney fees, and any offending party or attorney may be adjudged guilty of contempt.

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Here it is......... Thank you!

State of Minnesota District Court

County of Ramsey Second Judicial District

------------------------------------------------------------------------------------------------------------------------------------------

xyzjunkdebtbuyer Case Type: Contract

Plaintiff, Court File No:

v

xxxxxxxxxxxxx,

Defendant,

COMES NOW the Defendant, xxxxxx, pro se, and files this Reply and Opposition to Plaintiff’s Motion For Summary Judgment in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, xyzjunkdebtbuyer, as follows:

1. The Motion for Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment and Supplemental Motion filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only, “That there are no genuine issues of material fact and that Plaintiff is entitled to Summary Judgment.” Motion for Summary Judgment should be denied.

2. Defendant alleges the evidence is not conclusive and there are genuine issues of Material Facts clearly present.

“The moving party bears the burden of showing the absence of genuine issues of material fact.” Independent Sch. Dist. No. 197 v. Accident and Cas. Ins. of Winterhur, 525 N. W. 2d 600, 605 (Minn. Ct. App. 1995) (citing Celotex, 477 U.S. 317, 323 (1986)). “A fact is material if its resolution will affect the outcome of a case.” O’Malley v. Ulland Bros., 549 N.W. 2d 889, 892 (Minn. 1996) (citing Zappa v Fahey, 245 N.W. 2d 258, 259-260 (1976)). “When a summary judgment motion is brought, facts must be viewed in a light most favorable to the nonmoving party.” Grondahl v Bullock, 318 N.W. 2d 240, 242 (Minn. 1982).

3. Plaintiff has submitted into evidence ‘Exhibit A: Credit Card Account Agreement’ which is simply a photocopy of general terms which lacks the Defendant’s name, account number, signature, or other identifying statements which would connect the proffered agreement with the Defendant in this action. “Plaintiff must tender the actual provisions agreed to, including any and all amendments.” MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148A, 841 N.Y.S. 2d 826 (N.Y.Civ. Ct. 2007)

3. Plaintiff has submitted into evidence ‘Exhibit B: Bill of Sale’ which contains transfer documents, none of which specify the Defendant, nor the Defendant’s alleged original account number with alleged original creditor, nor reference in any way any other document which could be associated with the Defendant. These are in fact generic documents without specificity that could apply to any defendant. The Bill of Sale is therefore conclusory, and should be stricken from the evidence in the above action. “Assignments must be specific and precisely identify what is being assigned.” Nw. Nat’l Bank of Minneapolis v. A. M. Cameron Co., 210 F.2d 398, 402 (8th Cir. 1954).

Designated Evidence:

A. “Credit Card Account Agreement” Exhibit “A” to Defendant’s Response.

B. “Bill of Sale and Assignment of Assets” Exhibit “B” to Defendant’s Response.

Conclusion

The Plaintiff has failed to offer competent evidence that xyzjunkdebtbuyer is the holder, successor in title, or owner of the indebtedness upon which this litigation is based or to otherwise prove any claim based thereon.

WHEREFORE, The Defendant has raised a triable issue of fact in pointing out discrepancies on documents submitted by the Plaintiff and as such, the summary judgment has to be denied as a matter of law. Defendant also requests that the Honorable Court dismiss Plaintiff’s complaint with prejudice because the Plaintiff lacks standing to pursue the claim.

Respectfully submitted this day, May 24, 2012

xxxxxxxxxxxxxxx

Defendant

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Usually in an opposition to MSJ, the opposing party must address each of the alleged facts in the MSJ. Did you do that?

Also, did the JDB present an affidavit? If so, did it state that the records were created in the regular course of business, etc?

Minn. R. Evid. 803(6) sets forth the business-records exception to the hearsay rule. To qualify for the exception, the evidence must meet three requirements: (1) the evidence was "kept in the course of a regularly conducted business activity"; (2) "it was the regular practice of that business activity to make the memorandum, report, record, or data compilation"; and (3) the foundation for this evidence is shown by the custodian or other qualified witness. Minn. R. Evid. 803(6).

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There is an affidavit of plaintiff in support of motion for summary judgment.

He is the CFF of plaintiff. In preparing this affidavit, he has relied on his own knowledge, as well as information contained in the records kept by the plaintiff.

There is also an affidavit of claim and certification of amount due. "Exhibit C"

The affiant is employed by the OC. His responsibilities are to serve as bookkeeper of the bank

The bill of sale and assignment of assets were sold to JDB 1, The affiant is on record stating this.

JDB 1 then sold it to jdb 2 who has the MSJ against me

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Did they include that the records were made in the regular course of business, etc. as stated above? The reason for my question is if they didn't, there's a possibility the records were not authenticated. It wouldn't be enough on it's own to prevent a judgment, BUT it would be an issue of material fact. The more you have against the JDB and his evidence, the better.

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I'd leave the law lesson in 1 & 2 out. The judge knows what summary judgement is and who has the burden.

It looks like a generic copy and paste where you just fill in the blanks. That does not mean the content is not valid. You start to go down the right path in 4 when you attack the bill of sale, but you don't go far enough in my opinion. Your argument is very weak.

I would not cite that case that says this, "“Assignments must be specific and precisely identify what is being assigned.” The assignment is specific and precisely identifies a bulk sale, a group of accounts.

In my opinion you need to argue the assignment is not specific enough, which you are basically doing, but the case you cite, at best, does not hurt or harm you, and at worst lets the other side say we agree and it's specific, it states what we bought.

You need to hammer the sale from JDB 1 to JDB 2. Your argument is there, but you don't go way far enough in my opinion. It would really help if you could post the affidavit.

As BV80 stated, you really need to go line by line and point by point and attack each one in the order they argued them.

Like I said, does not make it wrong but your reply seems cookie cutter copy and paste.

I'd use a ton more arguments, the word alleged a lot more, and wear out "material dispute" and "reasonable minds would differ" and go point by point and pick them off like a sniper.

Needs work but it's a decent start, but I would not file it as is. That's just my opinion, does not mean I'm right.

I think your ace in the whole is JDB1 to JDB2.

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I'd leave the law lesson in 1 & 2 out. The judge knows what summary judgement is and who has the burden.

I have to respectfully disagree with that statement. Not because I think you're wrong...I don't. But every MSJ or opposition to MSJ I've ever seen has case law regarding summary judgment. Even though the judge knows what's required, the case law must be required for some reason.

I think paragraph 2 should remain.

Billoflading,

Was the bill of sale and cardmember agreement the only evidence they included? What was the cause of action? Breach of contract, account stated? I found some more case law.

Edited by BV80
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I have to respectfully disagree

You can dis-respectfully disagree if you want Pal, you're wrong !! :thefinger:

Just kidding, I don't know what I was thinking. I agree, leave it, I'm sure you have to lay the proper foundation under the law/theory which you are basing the arguments and it's not the Judge's job to apply the right law/rule to the particular argument one is making.

I just filed a federal lawsuit where I explained federal law to a Federal Judge in the body of the lawsuit. I'm sure a Federal Judge knows what the FDCPA is.

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I have to respectfully disagree with that statement.

I also must repectfully disagree. OH NO!!!! Well, just a little bit. My take is based on CT law. Here, you always cite in an MSJ "Legal standard; Summary judment." Under that you put a paragraph in which you cite your authority and case law. All this does is tell the judge that you understand MSJ and that you are basing what follows on previous case law acceptable to the court. It does not mean you're right or that your argument is any good, all it does is to establish to the court that you understand the basic premise. The case law can work against you if you screw up your argument. Maybe some states don't require this, but it can't be a bad idea to include it. Like Coltfan said, the judge knows the law, but he wants to make sure YOU know the law.

See: BV80 v. Deadgirl Number 203334, County Morgue drawer number 6, Commission of a prurient crime upon a deceased individual involving the use of lubricants and power tools, annotated at SC 305555567, Certiorari denied. Court of appeals SC number 4664656565656. Yeah, go look THAT one up.

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You can dis-respectfully disagree if you want Pal, you're wrong !! :thefinger:

Just kidding, I don't know what I was thinking. I agree, leave it, I'm sure you have to lay the proper foundation under the law/theory which you are basing the arguments and it's not the Judge's job to apply the right law/rule to the particular argument one is making.

I just filed a federal lawsuit where I explained federal law to a Federal Judge in the body of the lawsuit. I'm sure a Federal Judge knows what the FDCPA is.

8-) I'm just glad I'm not the only one who has "brain burps". :D

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I have to respectfully disagree with that statement.

I also must repectfully disagree. OH NO!!!! Well, just a little bit. My take is based on CT law. Here, you always cite in an MSJ "Legal standard; Summary judment." Under that you put a paragraph in which you cite your authority and case law. All this does is tell the judge that you understand MSJ and that you are basing what follows on previous case law acceptable to the court. It does not mean you're right or that your argument is any good, all it does is to establish to the court that you understand the basic premise. The case law can work against you if you screw up your argument. Maybe some states don't require this, but it can't be a bad idea to include it. Like Coltfan said, the judge knows the law, but he wants to make sure YOU know the law.

See: BV80 v. Deadgirl Number 203334, County Morgue drawer number 6, Commission of a prurient crime upon a deceased individual involving the use of lubricants and power tools, annotated at SC 305555567, Certiorari denied. Court of appeals SC number 4664656565656. Yeah, go look THAT one up.

How did you find that!!! There was a non-disclosure clause!!!! :twisted:

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Not sure what you mean by non disclosure, I was just citing standard procedure here. If you even fail to cite the rule of procedure upon which you rely, your motion will be denied.

Oh. THAT one. Now I know. The judge involved in that decision was brought up on charges. Seems he was brought in from Montana just to rule on this one case, and his experience involved cases that involved the commission of a crime against an animal. He based his ruling upon the number of pairs of high heels found in the defendant's car, the presence of mint jelly, and several jars of Woolite. In the instant action, the defendant (some guy named BV80) pleaded insanity (I'm just crazy about doing this stuff) and violation of his civil rights under the search and seizure clause. Seems they searched while he was having a seizure, induced by a catastrophic (or catatonic) form of pleasure which in most courts will be viewed as a plenary review of the facts based upon the prevailing law, which clearly states that (and I quote) that no man (or reasonable facsimile thereof) shall engage in any carnal pleasures with any such entity as defined as non human under SC 49495969696 (the "fuggeddaboudit" statute) and or any pancake sucking Beefaroni gobbling pig with ears who fits the abnormal description of a subhuman female under USC 22 145, Fat Woman Statute, under such conditions that may apply (or may not apply if she is stuck in the drive up window at Mickey D's) or such other information that may be heretofore gathered and thereafter presented at evidence at trial of such deviates as named herein, or any such parties who may have an interest in getting away with this stuff. Summary Judgment is appropriate if there are no material dead girls' pictures (with defendant on top) or material facts in dispute, such as credit card bills from the defendant (which he never paid and is being sued by Midland for) showing purchases of the following: heating pads, (she's cold but we can fix that) Icy Hot Rub, (you know where I'm going to put that) Wesson oil, (we don't want to know) and two boxes of linguine cooked for 8 minutes. (????? fetish) or the ultimate insult under any known standard of law; a pair of jumper cables, two nipple clamps, a cork, and a jar of hot sauce. I rest my case.

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I agree in ways and i do not agree in some ways.

I have learned in law school that even though the judge should know the law we still state what rule number of the law we are using to challenge the opposing party. We then use two or three cases laws to back up what the rule states.

What this does is shows the judge that YOU know the rules and the appropriate cases and are not just wasting time with the court arguing something that you can not prove.

Every court order I have typed for class has always had to have the pleading, what rule of trial procedure or fact of law you are using to defend the MSJ, and then the explanation as to why you think the rules and the facts of law should be examined by the court.

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The Gunny nailed it. Citing rules of practice, statutes, (required in most venues if you mention one you better include the number) just shows the court that you are claiming to know your stuff. Cite the wrong case law or statute and you're going to be denied.

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Yeah, I've read some criminal cases, and if the defense attorney's cite Miranda, I guess you have to cite just about anything.

I mean is there really anybody in the whole country, maybe whole non third world country, that does not know what somebody means when they say "Miranda Rights/Warning" You really need the case citations?

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I'd leave the law lesson in 1 & 2 out. The judge knows what summary judgement is and who has the burden.

It looks like a generic copy and paste where you just fill in the blanks. That does not mean the content is not valid. You start to go down the right path in 4 when you attack the bill of sale, but you don't go far enough in my opinion. Your argument is very weak.

I would not cite that case that says this, "“Assignments must be specific and precisely identify what is being assigned.” The assignment is specific and precisely identifies a bulk sale, a group of accounts.

In my opinion you need to argue the assignment is not specific enough, which you are basically doing, but the case you cite, at best, does not hurt or harm you, and at worst lets the other side say we agree and it's specific, it states what we bought.

You need to hammer the sale from JDB 1 to JDB 2. Your argument is there, but you don't go way far enough in my opinion. It would really help if you could post the affidavit.

As BV80 stated, you really need to go line by line and point by point and attack each one in the order they argued them.

Like I said, does not make it wrong but your reply seems cookie cutter copy and paste.

I'd use a ton more arguments, the word alleged a lot more, and wear out "material dispute" and "reasonable minds would differ" and go point by point and pick them off like a sniper.

Needs work but it's a decent start, but I would not file it as is. That's just my opinion, does not mean I'm right.

I think your ace in the whole is JDB1 to JDB2.

Do you have a different case law I could use for the bill of sale?

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