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I just got a SOJ from the attorney representing Citibank. It came the same day as their answers to my discovery. Do I not have any time to read their answers and respond? Can I file for an extension of time to read the discovery answers?

Also, In my IROG's and Admissions, they pretty much objected to everything.

Even the admission as to whether or not Citibank loaned me any money.

Please Help.

Thanks in advance.

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Indiana Rules of Trial Procedure

Rule 56 covers summary judgment. Para. I covers extensions of time to respond to MSJ.

Under Rule 36, admissions, you can file a motion to compel. That will stop the MSJ, as discovery will still be ongoing. They always try this, hit you with a bunch of stuff at once and hope you won't know what to do. Point out that the MSJ arrived with the non responses they made. Of course you have to have valid reasons for saying they did not answer. A lot of the stuff people ask / ask for is way out of line and subject to objections.

The party who has requested the admissions may move for an order with respect to the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(A)(4) apply to the award of expenses incurred in relation to the motion.

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Rule 56. Summary judgment

© Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.

Check this link to make sure I've quoted the correct rule.

Indiana Rules of Trial Procedure

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You can find these on line, or ask the Gunny. BTO429, he is a law student from your state. These are simple one or two page documents accompanied by an order for the judge to sign and certifiaction.

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I have requested written agreements, along with other things. I have asked that Citibank loaned it's money or it's depositor's money to Defendant. They basically objected to everything with this:

Citibank, N.A. objects to this request on the grounds, among others, that it: 1) Is vague and ambiguous and that it fails to specify the type of information being sought; 2) Is overbroad, burdensome and harassing; 3) Is not limited to a time period relevant or even proximate to the events at issue in this action; and 4) The term “written agreement” is not defined with particularity.

Subject to, and without waiving this objection, this suit is not based on a written agreement, but rather a credit card account that was opened on or around November 22, 2007. Plaintiff has attached available account statements and the available Card Member Agreement. Citibank , N.A. also reserves the right to supplement it responses.

or a slight variation of this.

I am following up with this letter:

Attorney for Plaintiff,

I am in receipt of your supplemental responses. After reviewing your answers please review and respond to the following additional discovery requests:

Please verify that the terms and conditions that you have sent as supplemental are the original terms and conditions alleged in the complaint.

Please provide definitions for all codes and abbreviations contained in the alleged electronic/telephonic application.

On what date did the Defendant allegedly default under the terms and conditions you provided?

Please provide the exact date the alleged account was closed.

Are the terms and conditions you provided for a gold, platinum, diamond preferred, or other specialty card account?

Have you provided all statements up to the date the alleged account was closed as to establish any legitimacy of the balance sought?

Do you have any documents bearing Defendant’s signature?

Respectfully submitted,

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

Here is the support for MSJ. I'm not familiar with this case law, it is mostly regarding mechanics liens from what I can determine. Not sure how they are using it. Anyway, here is the MSJ supporting brief:

MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT

COMES NOW, Plaintiff, Citibank, N.A.,

(hereinafter “Plaintiff”), by counsel, and hereby files its Motion for Summary Judgment, hereby submits its Memorandum of Law in Support of its Motion for Summary Judgment against XXXX XXXX (hereinafter “Defendant”), and states the following:

A. STATEMENT OF THE CASE

Defendant was extended a line of credit through Citibank, N.A., under the account number *********1234. Defendant was required to make monthly payments upon his/her account to Plaintiff.As a result of this default, there remains due and owing by Defendant to Plaintiff in the sum of $xxxxx.xx. Despite demands from Plaintiff to liquidate the balance due and owing, Defendant has failed to do so.

Plaintiff thereafter filed its Complaint in this action seeking to recover the balance due and owing by Defendant. Defendant filed an Answer generally denying the allegations in Plaintiff’s Complaint. It is Plaintiff’s position that it is entitled to summary judgment in this matter because there are no genuine issues as to any material facts and Plaintiff is entitled to judgment as a matter of law.

B. LAW AND ARGUMENT

Summary Judgment is appropriate when evidence designated to the trial court demonstrates there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. T.R.56 ( C ); Shackelford v. Rice, 659 N.E.2d (Ind.Ct.App. 1996).

Generally, construction of a contract is a question of law for which summary judgment is particularly appropriate. Indiana Dept. of Transportation v. Shelly and Sands, Inc., 756 N.E.2d 1063 (Ind.Ct.App.2001).

Also, Trial Rule 56(E) of the Indiana Rules of Trial Procedure requires an adverse party to move forward by way of affidavits or other properly designated matter to establish the existence of genuine issues material fact and may not merely rest on the allegations and denials of pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992).

In the present case, there are no material facts in dispute. Plaintiff and Defendant entered into a line of credit agreement, and Defendant has failed to make the required payments as required under this agreement. Plaintiff has attached an affidavit from its representative supporting the outstanding balance due and owing on Defendant’s account. Plaintiff has also attached the history of Defendant’s account, which clearly shows his/her default. Therefore, there are no genuine issues of material fact in this case, and Defendant is liable for the outstanding balance due and owing to Plaintiff.

Plaintiff therefore respectfully requests that summary judgment be entered in its favor against Defendant, such that Plaintiff be awarded judgment in the amount of $xxxx.xx, with interest at the rate of 8% per annum from the date of judgment, and the costs of this action.

C. CONCLUSION

All issues of material fact have been resolved and pursuant to the materials designated to the Court, Plaintiff is entitled to judgment as requested in the Complaint.

Thanks Guys/Gals

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I'm not familiar with this case law

This is just to let the judge know they understand what MSJ is. The case they cite does not heve to be a credit card case.

I have asked that Citibank loaned it's money or it's depositor's money to Defendant.

This never works. No merchant ever complained that they didn't get paid by the credit card company. There is no direct loan to you, that's not how it works.

The term “written agreement” is not defined with particularity.

You should have quoted the South Dakota law that states this term.

"54-3-1.1. Rate of interest set by written agreement--No maximum or usury restriction. Unless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usury rate restriction between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities if they establish the interest rate or charge by written agreement.

They always duck this because they know where you are going when you ask for this. No agreement, no unlimited interest rate. Considering discovery is incomplete and you may have a counterclaim for illegal interest, MSJ should fail.

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Thanks legaleagle,

I am just not as adept as you and some of the other ones are at doing this. I don't know how to articulate it .

I'm in the same boat right now. If I can get my opposition statement to MSJ done and win this case, I plan on posting everything I have as far as templates, docs, etc., to help people in my position.

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You should have quoted the South Dakota law that states this term.

"54-3-1.1. Rate of interest set by written agreement--No maximum or usury restriction. Unless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usury rate restriction between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities if they establish the interest rate or charge by written agreement.

They always duck this because they know where you are going when you ask for this. No agreement, no unlimited interest rate. Considering discovery is incomplete and you may have a counterclaim for illegal interest, MSJ should fail.

54-3-1.1. Rate of interest set by written agreement--No maximum or usury restriction. Unless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usury rate restriction between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities if they establish the interest rate or charge by written agreement. A written agreement includes the contract created by § 54-11-9.
§ 54-11-9. Creation of contract between card holder and issuer. The use of an accepted credit card or the issuance of a credit card agreement and the expiration of thirty days from the date of issuance without written notice from a card holder to cancel the account creates a binding contract between the card holder and the card issuer with reference to any accepted credit card, and any charges made with the authorization of the primary card holder.

Source: SL 1983, ch 365, § 2.

Source: SL 1982, ch 341, § 1; SL 1987, ch 360, § 4; SL 1994, ch 351, § 147.

How do you get past the "use of the card is a written agreement".
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USC 85 is how. There is no language in the National Banking Act that allows national banks to export any of their contract laws, just their interest law, period. That is not an interest law, the word isn't even mentioned and it's in a different section. They think they're cute linking all this garbage together. Maybe they can link to this one too: CHAPTER 23A-27A They've tried this before, the court shot them down on it. Besides, that's use and acceptance. Unless Indiana has this on the books, it is useless anyway to even attempt it.

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