Doggybiscuits

Opp Plaintiffs Motion for summary judgment

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I am being sued by Midland Funding. They were able to strike my request for admissions due to me not supplying a hard copy. I plan on using this one I found in the forum They are trying to dismiss my counterclaim for not validating my debt I need help with that one. They only have a lawyer statement saying that they did validate.

Plaintiffs Motion for Summary Judgment

Plaintiff, Midland FUnding LLC as asignee of MBNA, by counsel, provides the following for its Motion for Summary Judgment:

1. Plaintiff moves the Court, pursuant to Indiana Trial Rule 56, to enter judgment for Plaintiff and against Defendant for Plaintiff's COmplaint, in the amount of 2559.75 all costs with relieft and statuatory post-judgment interest.

2. Plaintiff further moves the Court, pursuant to Indiana Trial Rule 56, to enter judgment for Plaintiff and against Defendant for Defendant's COunterclaim. Plaintiff request that Defendant take nothing by way of her Counterclaim.

3.Plaintiff designates the following documents for which it relies for purposes of this motion:

a. Plaintiffs Complain and Exhibits

b Plaintiffs Motion for SUmmary Judgment

c Memorandum in Support of Plaintiffs Motion for Summary Judgment

d Affidavit of Ashley Hoffman Exhibit A legal spe******t

e Affidavit of Attorney

4. Plaintiffs Motion of Summary Judgment establishes a prima facie showing that no genuine issue of material fact exists and that Plaintiff is entitled to judgment as a matter of law.

5 Pursuant to Indiana Trial Rule 56C Plaintiff requests a hearing on its Motion for Summary Judgment.

Wherefore, Plaintiff request that the Court, pursuant to Indiana Trial Rule 56 (1) enter judgment for Plaintiff and against Defendant for Plaintiffs Complaint in the amount of XXXs all cost with relief and statutory post judgment interest; ENter judgment for Plaintiff and against Defendant for Defendants Counterclaim. and 3 award Plaintiff all proper relief.

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Have you sent them any other discoveries?

Did they attach a bill of sale and what appears to be a line from an excel sheet containing your name, address, alleged account number, date of default and the original creditor? If so post the exact words of the bill of sale.

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Cach, LLC has enterd into a purchase Agreement dated May 28, 2010 with a Closing Dtae of May 28, 2010. as amended by the closing Statement dated May 28, 2010 for the sale of Accounts described in the electronic Account Schedule provided to MIDLAND FUnding upon the terms and conditions set forth in that Agreement.

Now therefore, for good and valuable consideration, Seller hereby sells, assigns and transfers to Buyer all of the Sellers rights title and interest ineach and every one of the Accounts described to Exhibit A to the Agreement

THis bill of sale is executed without recourse or Warranties except as stated and provided for within the purchase and sale agreement.

Buyer and Seller agree tht the PUrchase Price shale be as stated in the Closing Statment, attached to the agreement.

THis first restated assignmnt and bill of Sale amends restates and superseds in its entireey thta certain assignment and Bill of Slae dated May 28th 2010 by cach llc in favor of midland funding

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Doggy,

Generally, speaking you will need to resspond to their MSJ. Your response should be title-

Defendants Opposition to Plaintiffs Motion for Summary Judgement

You should file a similar documents as the plaintiff filed all with a similar title as above.

To win or beat Summary Judgment you must point out "triable issues of fact", or said another way you need to show the court in your opposition that their are "genuine issue of material fact".

Attack their "Standing to bring the suit", where is your name and account number regarding this bill of sale. Do the documents provided show your account or the account referenced in the complaint.

What is the affiant for their side testifying about, you should be able to poke some holes there also.

Finally, you will need to file an affidavit yourself, to support your contentions in your motion. If you don't you will loose...

Best of Luck, not from Indiana so cant help on your civil procedure...

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Read your state rules of civil procedure. There should be something about an adequate period of discovery before a MSJ can be filed. It should be mentioned in your response that the affidavit from an employee of the plaintiff is not admissible as the affiant has no knowledge of the alleged account records before they were assigned to the JDB.

This is a classic example of one JDB pawning off what they could not collect on to another. You did not say what other "evidence" they attached to their MSJ. If it is a credit card statement stating just an amount due (no account activity like purchases or payments) then there is no way to determine how that amount was arrived at. A generic credit card agreement does not have your name or account number on it and has no proof taht you ever received it etc. Find case law from your state to support anything in your response.

Send them another discovery for production of documents requesting the complete bill of sale including all exhibits and attachments including the "purchase and sale agreement" referred to in the bill of sale and flow agreements related to the bill of sale.

Request for admissions- Ask them to admit the alleged accounts were purchased without any guarantee that the information regarding them was accurate or complete. If they attached what appears to be one line of a spread sheet labeled "Exhibit A" with the bill of sale ask them to admit that the one they attached is not the "Exhibit A" referred to in the bill of sale.

Edit: What else did they attach to their MSJ anyway?

Edited by texasrocker

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You can have a field day with admissibility, one JDB selling off garbage accounts to another JDB? Now you have two worthless affidavits and bills of sale to pick apart. Did you fill out the 20 questions? If Cach sold this 2 years ago, this could be zombie debt, sounds like a pretty old account, no?

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Doggy,

Generally, speaking you will need to resspond to their MSJ. Your response should be title-

Defendants Opposition to Plaintiffs Motion for Summary Judgement

You should file a similar documents as the plaintiff filed all with a similar title as above.

To win or beat Summary Judgment you must point out "triable issues of fact", or said another way you need to show the court in your opposition that their are "genuine issue of material fact".

Attack their "Standing to bring the suit", where is your name and account number regarding this bill of sale. Do the documents provided show your account or the account referenced in the complaint.

What is the affiant for their side testifying about, you should be able to poke some holes there also.

Finally, you will need to file an affidavit yourself, to support your contentions in your motion. If you don't you will loose...

Best of Luck, not from Indiana so cant help on your civil procedure...

I, too, am filing an opposition this week. I need to know how to format it? Do I go line by line from their Motion and note my opposition/agreement to their points? Or can I just state my own oppositions by my own format? They admitted, in their affidavit that they CAN NOT produce the application, nor have they been able to provide the original agreement. They were only able to provide an updated cardmember agreement from 2011 (card opened in 2005). My point of attack here is that they are charging fees and interest based on an agreement that they can't find. And, this is AMEX. They have just been required to refund Blue Sky customers (my kind of card) late fees and interest. How do I include this new news into my motion, if possible???

Thanks everyone - any help/suggestions appreciated.xangelx

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I, too, am filing an opposition this week. I need to know how to format it? Do I go line by line from their Motion and note my opposition/agreement to their points? Or can I just state my own oppositions by my own format? They admitted, in their affidavit that they CAN NOT produce the application, nor have they been able to provide the original agreement. They were only able to provide an updated cardmember agreement from 2011 (card opened in 2005). My point of attack here is that they are charging fees and interest based on an agreement that they can't find. And, this is AMEX. They have just been required to refund Blue Sky customers (my kind of card) late fees and interest. How do I include this new news into my motion, if possible???

Thanks everyone - any help/suggestions appreciated.xangelx

Sorry So late! I just had my Summary Judgment hearing against Midland today. I formatted my opposition just like theirs. But I titled it Defendations Opposition to Plaintiffs Motion to Summary Judgment. In their Introduction I countered what they were saying. If you have more questions let me know!

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What happened at the hearing? Did the judge rule AT the hearing, or will he rule later? I have some timing issues here - I will have to file BK if he goes for a judgment, but I will have to do it before a judgment is rendered in order to avoid it.

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What happened at the hearing? Did the judge rule AT the hearing, or will he rule later? I have some timing issues here - I will have to file BK if he goes for a judgment, but I will have to do it before a judgment is rendered in order to avoid it.

When we got to the hearing the lawyer tried to get me to settle with him, I said no thanks. When we got into the court room the Judge looked at him and said its your motion so you go first. He said that the Defendant(me) shows in her opposition for summary judment that there are genuine issues for trial. So we go to trial Nov. 12. They however wanted a motion on my summary judgment on my counterclaim. The judge said we should have our ruling in about a week or so.

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Didnt MBNA close its doors in 2006? I bet the broken chain of title is over a mile long.

Edited by racecar

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So I guess I will be taking a big risk, then. If the motion goes through and my opposition gets denied, will the judgment be placed AT the hearing? I guess what I don't know, is if the judge will approve the opposition prior to the hearing?

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So I guess I will be taking a big risk, then. If the motion goes through and my opposition gets denied, will the judgment be placed AT the hearing? I guess what I don't know, is if the judge will approve the opposition prior to the hearing?

When I first got sued, I was so scared. But after reading this forum and following everyones lead that has gone through this. Midland Funding is very easy to beat, don't give up! Im not in California so I don't know much about your law but I am sure if you look around the site you will come across a great example. What I have found in my fight against Midland is just mimick their paperwork. Just like my motion for summary judgment I countered everything in my paper to what they are saying. YOu have to show at least one material fact of dispute. Be prepared to state that at the hearing. Make sure you submit your:

1.) notarized affidavit

2.) have some case law to back up your claim.

I dont know what they included in your case but I challenged their affidavit as well as the contents in that I did it in my conclusion and I made subpoints like they did.

***I am in Indiana if I understand your question will judgment be entered at the hearing. Meaning they can start collecting from you right away. From my experience no they have another motion of some sort to have you answer to asset and wages. So that would buy you some time if you wanted to file BK and not have to deal with the headache of appearing and warrants issued. But if you have other debts or you financial situation is strained. I would look into seeing a BK attorney and discuss your options such as a Chapter 7 or 13 that way you can rest easy and get your life back on track.

Edited by Doggybiscuits

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You can have a field day with admissibility, one JDB selling off garbage accounts to another JDB? Now you have two worthless affidavits and bills of sale to pick apart. Did you fill out the 20 questions? If Cach sold this 2 years ago, this could be zombie debt, sounds like a pretty old account, no?

Yes this is an old debt. When we went for the Motion for Summary Judgment the lawyer got in court and said Judge the Defendant has presented that there are genuine issues for trial. But they want summary judgment for my counterclaim for violation of the FDCPA. We are set for trial next month. If you can give me some pointers on questions for trial or anything you can offer would be great.

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We'd have to see the counterclaim. Personally, I'm not much of an expert with the FDCPA, never did one. Coltfan is your go to guy there. I do know that the validation claim is one of the weakest you can pursue, just about anything constitutes validation.

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