chjlfox

Hearing Set for Summary Judgment, now what?

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I received a request for summary judgment. I answered a summons with a dv letter 2 years ago. I received a motion for summary judgment and attached was an affidavit from citibank signed by a Misty McConnell, stating she was an employee of citibank, blah, blah blah. I went to hearing and asked for an extension. Judge ruled in my favor and gave me 60 more days and set another hearing for summary judgment. Since then, citibank has offered to setttle for 50% of 11,000 balance. I am trying not to file Ch 7. I tried to offer a lump sum payment of $4500 (on phone and in writing) , but CA attorneys office, Zakheim and LaVrar, will not even take my offer to citibank. I asked for a supervisor and she was even more rude. They say pay 50% or We will see you in court. I have tried to contact the actual Lawyer, but to no avail. Should I take settlement or keep fighting?

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Are you being sued by the Original Creditor (OC)? If not, fight it. Junk debt buyers don't have nearly as much pull as an OC. If you are going against the OC, you should fight it too but it may be more difficult. If you file BK Chp 7, they get zip. If you file 13, you will be paying them for the next 5 years.

Good luck.

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If all you did is answer the complaint wih a DV letter, no answer and did not file an opposition to their MSJ....it is time to accept your fate and you are getting hit with a judgement.

You had your chance to fight it with filing the proper pleadings....

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Like the other poster said - if you didn't file an adequate answer with the court, you are pretty much screwed. Sorry.

I had assumed, since you went to court already and a judge gave you more time, that you had followed the process? If so, start looking on this site for some more help on how to file your opposition to the motion. How far out is the hearing? In California, you only have until 14 days prior to the hearing to file an opposition.

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I believe the original creditor still owns debt, lawyer works for Citibank. Citibank listed as plaintiff. I answered the summons two years ago and denied all charges - reason stated was no debt validation. I have not filed an opposition to MSJ. I honestly am just trying to settle for less with Law Office, but they won't even take my offer to plaintiff. Should I file opposition, or is it too late?

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Hearing set for End of this month.

You are too far into litigation to elect arbitration so ...... the only option I see is to file an opposition to the plaintiff's Summary Judgment Motion.

Your rules of civil procedure should tell you how to do this and the time frame required.

Do it or accept the fact that you're headed for judgment.

Fight hard and you MAY get the opposition to consider your settlement offer or some amount less that the full amount they will get with a judgment.

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Don't roll over. That's what all of these creditors are counting on. They get the bailout money, sue you for more money and don't have to spend much on legal because most people are too intimidated by their tactics.

Check online for the Florida rules of civil procedure. Their motion should include a "statement of facts". You need to go line by line and either list as disputed, or undisputed, and then list why. If they list in their statement that they have 'damages' - you can dispute that they have failed to mitigate their damages. Did they attach an affidavit to the motion? If so, did the person who signed it state they have 'personal knowledge of the account'? This is fightable. In CA, the affiant has to have signed within 150 miles of the trying court, if not, it is inadmissable as evidence. Start checking now - you won't have much more time to file your opposition.

Good luck!

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They did not validate the debt....that is a counter claim for a FDCPA violation...not an answer. Citibank can still get a summary judgement fairly easily from what you posted and trying to negotiate a settlement that is favorable to you at this stage is futile, cause their attorney if by chance he looks at your case file prior to a court date knows they have you on the hook for the full amount they claim you owe since you did not put up a defense.

Either file an oppostion to summary judgement the proper way per your states RCP to rebut their claims with some proof or if applicable affidavits or face a judgement.

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FDCPA does not apply to OCs, you'd have to try to figure a way to use it against their attorneys. If they provided you with the name of the creditor and the amount, they satisfied debt validation. They probably sent you a bunch of collection letters, they always do. The standard for DV is pretty low. What is your defense, if you have one? I think by the rules of professional conduct, an attorney must present all offers to their client.

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When I received the original summons 2 years ago, I answered all of the points like this: " Answer: Lack of knowledge to fully answer - no debt validation - therefore DENY." I thought this was an answer. When I received a Motion for Summary Judgment a few weeks ago, they attached a copy of a credit card statement and an affidavit in which the affiant does state that she has knowledge of this account. Affidavit was signed in Missouri in June of 2011, Hearing is in Florida. I can not find where Affidavit must be within 150 miles of court. They do not list damages in Statements. I just realized the amount they are asking for is more than what is stated on the account statement - probably attorney fees. I can not get through to their lawyer, just a supervisor. She says she will not take offer to client. I tried calling citibank directly, but get kicked back to law firm. I faxed a letter and sent it via registered mail to law firm with my settlement offer. How do I know if the lawyer even takes offer to citibank for consideration? How do I know if they accept or deny? Just take supervisors word or does it need to be in writing? Supervisor told me I could not negotiate this, accept their offer of 50% or go to court. I don't really know if I have a defense - that's why I'm posting here. Thanks to all of you for all of your input thus far!

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FDCPA does not apply to OCs, you'd have to try to figure a way to use it against their attorneys. If they provided you with the name of the creditor and the amount, they satisfied debt validation. They probably sent you a bunch of collection letters, they always do. The standard for DV is pretty low. What is your defense, if you have one? I think by the rules of professional conduct, an attorney must present all offers to their client.

That was what I was referring to...the attorney acting as a debt collector..sending dunning letters or intent to sue letters...collection reps making numerous calls...etc.

As far as the OP...what you mentioned in your last post, using DV as a defense is not a defense.

The MSJ you mentioned....you still have to file an opposition or you will show up to that hearing...the attorney will have a judgement typed up for the judge to sign and your next post will state, what just happened? I was slapped with a judgement.

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I was slapped with a judgement

I think we all know this is going to be the outcome, especially in Florida, which is just as tough as Michigan.

I don't really know if I have a defense

Says it all. Poster should have come here a lot sooner.

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So general consensus is I should just quit fighting and accept 50% payment offer? I have it in writing good until Oct 12th.

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Normally we would advise you to fight and we would teach you how. The error you made was your failure to follow procedure and raise a proper defense. This comes within the purvey of the court, not us. We cannot do anything about that.

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When I received the original summons 2 years ago, I answered all of the points like this: " Answer: Lack of knowledge to fully answer - no debt validation - therefore DENY." I thought this was an answer. When I received a Motion for Summary Judgment a few weeks ago, they attached a copy of a credit card statement and an affidavit in which the affiant does state that she has knowledge of this account. Affidavit was signed in Missouri in June of 2011, Hearing is in Florida. I can not find where Affidavit must be within 150 miles of court. They do not list damages in Statements. I just realized the amount they are asking for is more than what is stated on the account statement - probably attorney fees. I can not get through to their lawyer, just a supervisor. She says she will not take offer to client. I tried calling citibank directly, but get kicked back to law firm. I faxed a letter and sent it via registered mail to law firm with my settlement offer. How do I know if the lawyer even takes offer to citibank for consideration? How do I know if they accept or deny? Just take supervisors word or does it need to be in writing? Supervisor told me I could not negotiate this, accept their offer of 50% or go to court. I don't really know if I have a defense - that's why I'm posting here. Thanks to all of you for all of your input thus far!

"...I received a Motion for Summary Judgment a few weeks ago... Affidavit was signed...in June of 2011"

Anyone see something wrong with this??????????

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They do not list damages in Statements. I just realized the amount they are asking for is more than what is stated on the account statement - probably attorney fees. I can not get through to their lawyer, just a supervisor. She says she will not take offer to client. I tried calling citibank directly, but get kicked back to law firm. I faxed a letter and sent it via registered mail to law firm with my settlement offer. How do I know if the lawyer even takes offer to citibank for consideration? How do I know if they accept or deny? Just take supervisors word or does it need to be in writing? Supervisor told me I could not negotiate this, accept their offer of 50% or go to court. I don't really know if I have a defense - that's why I'm posting here. Thanks to all of you for all of your input thus far!

Have they provided you a copy of the agreement? You can file an opposition stating that the actual damages are disputable as you have no contract to confirm or deny (since the amount is more than the balance - attorneys fees and such would be referred to in the contract/agreement). That's really all you can argue, if it is the case.

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All they sent was a cc statement from 2009.

Just one? That seems like nothing for them to go on...is it a junk debt buyer? How many points do they have in their motion (usually, it goes line by line, stating what is undisputable)? If they haven't provided you with anything, you should try shooting out a bill of particulars request. Not sure if it is too late for that, though. If they can't provide you everything you request, they can't include it as evidence. And if your time for discovery isn't up, you still have a right to request it. Check your civil code of procedure. Seems like they couldn't have won on this had you fought it more timely, so maybe try asking for a continuance or something. One statement is not enough for them to sue on...what is the complaint? Breach of contract? Common counts?

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"...I received a Motion for Summary Judgment a few weeks ago... Affidavit was signed...in June of 2011"

Anyone see something wrong with this??????????

When an affidavit is sent a defendant should file an affidavit in objection to plaintiff's affidavit. It sounds like OP did not timely object or request interrogatories and production of documents.

I faxed a letter and sent it via registered mail to law firm with my settlement offer

So what did you deny..... if you have affirmed that you owe the debt and want to settle for 50%? See what I mean. The Court will look at the evidence of your offer as validity of the said debt.:o

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I can only speak from my experience in California, but, Motion for Summary Judgments are very tricky and technical animals. You really need to read your state rules regarding MSJ's. Different states have different time lines and they are usually NOT flexible so you really need to read everything you can find about the MSJ procedure in your state.

Good luck,

rt

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"...I received a Motion for Summary Judgment a few weeks ago... Affidavit was signed...in June of 2011"

Anyone see something wrong with this??????????

What I'm suggesting is that it seems very suspicious that the affidavit for the summary judgment was signed over a year before the defendant received the notice for summary judgment in the mail. That can't possibly be ok regarding procedure, can it?

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Hi ya Softwear8 !!

What I'm suggesting is that it seems very suspicious that the affidavit for the summary judgment was signed over a year before the defendant received the notice for summary judgment in the mail. That can't possibly be ok regarding procedure, can it?

OP said "When I received the original summons 2 years ago," it sounds like there was no discovery questions.So they prepared a year ago in anticipation the defendant would not request discovery( thats what they will imply probably).

But even if that is a subjective statement ,the OP already stipulated payment. that means an objection to the affidavit is moot. Unless the OP can show how they were under duress ,thus stipulated a payment offer .and can show good reason for an objection to an MSJ or furnish answers for just their basic denial to the suit.

Looks like the Plaintiff let things lie low and hoped for a default judgment.

Here is a Citi with Misty ...

https://docsdms.pulaskiclerk.com/DocsDMS/default.aspx/?A=/ck_image.present?DMS_ID=60100030150020

Here is another with Misty...

https://docsdms.pulaskiclerk.com/DocsDMS/Default.aspx?A=3/ck_image.present?DMS_ID=60100039132014

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That can't possibly be ok regarding procedure, can it?

There is no procedure for not asking the Plaintiff questions.They don't want you to fight and ask for documents that way they don't have to take time to do their job. And just hold on to something that was never asked for by the defendant.

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