Case dismissed but now a trial?

[kygirlneedsomehelp]

Hello,

Iv posted a few times about this case over the past few years.

Iv been fighting this tooth and nail.

Well I got letter in the mail and it said,

"Motion for summary -Denied Existence and terms of Capital one {Writing illegible} facts,summary judgment Inappropriate"

"-Parties may {Writing illegible} for trial date"

It does not say With or without prejustice.

So even tho i'v been fighting this for years and it is now finally dismissed I have to go to trail?

What do I need to expect and what should my next move be?

I'm so confused I thought that if the judge dismissed it I was done.

Thanks for your time.

[BV80]

A denial of summary judgment doesn't necessarily mean a case has been dismissed. If the judge didn't dismiss it, perhaps he instructed Cap1 to come up with better evidence.

You need to get a better copy of the letter to know exactly what is written.

[Coltfan1972]

Defeating summary judgement does not mean you won. It means you have a great chance to win. Summary judgement can be defeated if material facts are in dispute and one of the parties shows this to the court.

Summary judgement is used a lot of times where the parties agree on all the facts. The Plaintiff will say the Defendant violated whatever and the Defendant will say they didn't but both parties use the same set of facts. The court then decides if the undisputed actions are a violation of the law or not and then gives on side or the other summary judgement or sometimes partial summary judgement.

Don't get me wrong, it's a good sign, a very good sign, but it does not mean you've officially won.

[1stStep]

You will probably be scheduled for trial...

[kygirlneedsomehelp]

Thank you for your replies.

What is coming next ?

Do I need to add more defense or just stick with what I have and state the facts iv been fighting on?

Will this be in front of a jury?

Is this going to be informal like it has been?

sorry for all the questions I just never new it would go to trail.

I feel like I have just been blind sided,and don't know where to start.

I feel defeated right now.

After dealing with this for a few years now I thought I was in the home stretch.

I really thought the last time I went to court win or lose was my last time.

Thanks again for your replies

Edited September 4, 2012 by kygirlneedsomehelp

[Seadragon]

So if you haven't done discovery you may need to do a little to find out the name of the witness they intend to call.

you have to do pre trial preperation now. getting your trial brief, subpoenas, and all that other stuff should be front and center on your agenda to win this.

So you defeated summary judgment now you need to defeat them. They think they have the goods on you but know now they do not because they would have won SJ.

So now you have to understand the statutes and caselaw that will totally defeat them.

Ky I believe has some good laws such as they cannot collect more than 500 dollars for debt collection case.

so you can look those up. You may need to take a couple days off and research at the law library. Who knows you may meet a cute lawyer. Not a bad thing. and then you could also check winning strtegies hear for Ky.

You have got to kick it in gear for trial.

[kygirlneedsomehelp]

Thank you very much Seadragon:D

[Guest usctrojanalum]

when you win a summary judgment, that just means there are issues of fact in dispute that need to be determined at trial. cases can be dismissed during the summary judgment phase but you would have had to bring a cross motion for summary judgment showing that there is absolutely no facts in dispute that you do not owe the money.

Now for trial, the burden is much less on the plaintiff. They just have to prove that the likelihood that you owe them the money is greater than the likelihood that you don't.

You wanna try and discredit their witness, that really the best attack on OC's at trial.

[BV80]

Ky I believe has some good laws such as they cannot collect more than 500 dollars for debt collection case.

I don't understand the above statement. Why would a debt collection case be limited to $500?

[Guest usctrojanalum]

I'm pretty sure that is what attorneys fees are capped at.

[BV80]

Thank you for your replies.

What is coming next ?

Do I need to add more defense or just stick with what I have and state the facts iv been fighting on?

Will this be in front of a jury?

Is this going to be informal like it has been?

sorry for all the questions I just never new it would go to trail.

I feel like I have just been blind sided,and don't know where to start.

I feel defeated right now.

After dealing with this for a few years now I thought I was in the home stretch.

I really thought the last time I went to court win or lose was my last time.

Thanks again for your replies

What was the cause of action stated in the Complaint? Are they suing for breach of contract? Account stated?

In an unpublished case, the KY Court of Appeals ruled that Discover Bank had failed to prove a breach of contract because they didn't provide a copy of the signed application.

An unpublished case wouldn't be binding on your court, but it still shows what the KY Court of Appeals believes is necessary to prove breach of contract in credit card cases.

[Coltfan1972]

I highly recommend you go to that same court and watch a few trials. We could type one hundred pages of advice and scenerios about the trial, but the best and quickest way to get caught up to speed quick is to go watch.

[kygirlneedsomehelp]

What was the cause of action stated in the Complaint? Are they suing for breach of contract? Account stated?

In an unpublished case, the KY Court of Appeals ruled that Discover Bank had failed to prove a breach of contract because they didn't provide a copy of the signed application.

An unpublished case wouldn't be binding on your court, but it still shows what the KY Court of Appeals believes is necessary to prove breach of contract in credit card cases.

1.It says the defendants are indebted to the plaintiff under the contract, account statements and/or, as shown on the attached exhibit A

2. Said obligation is past due, and the defendants owes said amount.

[Seadragon]

I don't understand the above statement. Why would a debt collection case be limited to $500?

It was something to do with the collection statutes. I will look further because it was touted alot.

I know it is important. If I am wrong I will gladly print a verbose and public retraction

[BV80]

1.It says the defendants are indebted to the plaintiff under the contract, account statements and/or, as shown on the attached exhibit A

2. Said obligation is past due, and the defendants owes said amount.

Here's some quotes from Discover Bank, v. Sea:

"The Bank responded by producing internal documents related to the account, but did not provide a signed contract or accounting of the alleged transactions. The Bank stated in its response that the account application was not available, but would be provided if it became available."

"Discover Bank did not produce a credit card application bearing Sea's signature, nor any proof that a contract existed between the Bank and Sea, and upon which a claim for damages could be based. While the Bank did produce partial internal documentation, the Clark Circuit Court implicitly determined via its entry of Summary Judgment that this internal documentation, taken alone, would not sustain the Bank's action if the matter went to trial. At trial, the burden would rest with Discover Bank to demonstrate the existence of a valid contract and to show damages arising from Sea's breach thereof."

Did the Plaintiff in your case provide any cc statements?

Discover Bank v. Sea - Google Scholar