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Important question on a Continuance!


Crystal
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So my court date is next Fri. for my MSJ hearing and I sent out Discovery to the Plaintiff on Dec. 4th. Have not gotten anything back yet from them in terms of Discovery, but the attorney left me a message yesterday saying they wanted to talk to me about the Continuance I requested, and to find out what date is good for me.

 

The thing is I NEVER requested a continuance so I don't know if they're playing some sort of game or if they have me confused with someone else. They did call prior to leaving me a message and I hung up on them when they told me the call was being recorded and asked me to confirm my soc. sec. #, etc (which I didn't want to).

 

Can the fact that I sent them Discovery so late, be interpreted as asking for a Continuance? I thought it had to be a written request to the court.

 

So at this point not sure if I should call them back to clear this up. Any thoughts?

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Crystal,

I am not from Washington and not familar with your Rules of Civl Procedure. Given that here is a general answer to your situation-

It is fine that you don't want to speak on the phone, but having some form of communication is a must. Some stick strictly to written letters, altough this can cause an issue in a time crunch. Another method I have used is setting up a yahoo or gmail email account and giving them the address. This allows for easiar access and quicker responses when needed.

The reason for the last 4 of social, is the Collection Attorney is liabel under the FDCPA if they discuss your debt/case with a third party, so hence they have to have a process to confirm. As far as recording I am glad they record, because many times they may make a statement that is an FDCPA violation. Nothing better than knowing they are recording evidence you might use to collect from them.

Finally, MSJ is a big deal, not sure how long this case is going on or whether you have filed a response to the MSJ. I would concentrate on the MSJ, if you loose that case is over.

The discovery filing could have made the otherside consider a countinuace, best way to know is call them back, give them the information and a email address so you can comunicate with being on the phone. They maybe offering a stipulation to continue until discovery is completed.

Hopefully someone from Washington will chime in...

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Continuances are generally for trials or scheduled hearings, they have nothing to do with discovery. They are probably running  a game on you, they'll make you think there is a continuance so you don't come to court. Then they'll request a default judgment. Do NOT fail to attend that hearing, and tell the judge what they did. Also bring up the fact that they failed to respond to discovery, which kills MSJ out of hand. Use that exact language so the judge will think you know your stuff.

 

Wear a nice business suit and a pair of glasses, even if you don't need them. Very little makeup and a nice conservative hairdo. Stand tall and look directly at the judge when you speak. Be even, professional, and calm. State your facts concisely  and sit down. Don't ramble, don't go into long explanations. If the judge wants one he'll ask you for it. Never talk to opposing counsel, only the judge. Never call him  "judge," he is "your honor." If you want to make a point, say "If it please the court, I would like to say such and so....."  This will get you the respect of the judge. It will also terrify your opponent, who (guaranteed) will be some flunky who just got  his law degree by the skin of his teeth. When you leave, say "Thank you for your time, your honor, if there is nothing further I would request permission of the court to conclude my appearance." The other side is going to HATE you for this, which is what you want.

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This is great advice...thank you! I was very suspicious when they said they wanted to talk to me about the Continuance "I requested" which I know I didn't. I plan to be there no matter what. Will update everyone on the outcome after Fri.. Thanks everyone so much for all the help!

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So, I just received an overnight envelope from the Plaintiff's attorney with a copy of "Plaintiff's Response to Defendant's Motion for Continuance". In their response they state "The defendant requested that the Summary Judgment hearing be continued in her Opposition to Plaintiff's Motion for Summary Judgment. Then blah, blah, blah...and then they go on to request that the Summary Judgment hearing be continued to February 22, 2012.

 

Can they do this? The only thing I can think of in my Opposition to Summary Judgment that might cause them to say this is where I wrote in my introduction, " Granting Plaintiff's Motion for Summary Judgment prior to completion of any Discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action."

 

But this isn't the same as me requesting a Continuance is it? They filed this just 4 days before trial.

 

Are they still playing games and should I make big deal out of this to the judge? Also, I'm wondering if I should be stating court rules and case law, which I have in my opposition, when it's my turn to get up and talk about the triable issues of fact - or can I just refer the judge to my opposition for that? Don't want to say too much or too little.

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So my court date is next Fri. for my MSJ hearing and I sent out Discovery to the Plaintiff on Dec. 4th. Have not gotten anything back yet from them in terms of Discovery, but the attorney left me a message yesterday saying they wanted to talk to me about the Continuance I requested, and to find out what date is good for me.

 

The thing is I NEVER requested a continuance so I don't know if they're playing some sort of game or if they have me confused with someone else. They did call prior to leaving me a message and I hung up on them when they told me the call was being recorded and asked me to confirm my soc. sec. #, etc (which I didn't want to).

 

Can the fact that I sent them Discovery so late, be interpreted as asking for a Continuance? I thought it had to be a written request to the court.

 

So at this point not sure if I should call them back to clear this up. Any thoughts?

they are bluffing,,,they need a continuance because they know they have not completed discovery, which is an affirmative defense against a summary judgment. They do not want to make them selves look bad by asking for a continuance after they file for msj.  To look like a nice guy you call them back and say if you want a continuance then you need to file your motion and let the judge decide.

 

This case law is not from your state but it shows proof

Mohamed v. De Salvacion, 424 N.J. Super. 489, 499-500 (App. Div. 2012)

Generally, a trial court should not grant summary judgment when discovery on material issues is incomplete.

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They served me in June but did not file the MSJ until the middle of November, which is the reason I sent the Discovery so late. I just assumed they had dropped the case after I sent them my answer. So I sent Discovery a couple weeks after the MSJ was filed.

 

They just overnighted me a couple days ago, a Plaintiff's Response to Defendant's Motion for Continuance, in which they mention how they tried to contact me regarding the request for a continuance that I requested. As evidence they list my Opposition to their Summary Judgment. They said since I didn't respond (i.e. call them back) they are asking the judge to move the date to Feb. 22nd.

 

I really don't want a Continuance. I just want to get this over with. I'm just wondering if what they did is even allowed. It's like you said, it sounds like they want the continuance but are making it look like I asked for it.

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When it comes to the court, you can't assume anything.  That's why we always tell posters to read their court rules.

 

You had 5 months to make discovery requests.   The fact that you made the requests after the MSJ had already been filed might be considered an attempt at a continuance.  You would need an attorney to tell you if that's the case or not.

 

Since you didn't make the requests until after the MSJ was filed, it would be difficult to claim that MSJ is inappropriate right now because they haven't responded to your requests.  They didn't have a chance to respond before the MSJ was filed.

 

Look at it this way:  You have to show the court that the plaintiff hasn't proven their case and that MSJ should be denied.  The court could agree with you, but might merely give the plaintiff time to produce your requested documents.

 

OR the court could say that you didn't request discovery on time and grant the MSJ.  If you want to fight this, and if you think you need the documents you requested, a continuance might actually work in your favor.

 

You really need to speak to an attorney to get some questions answered.

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Guest usctrojanalum

Just want to point out,  discovery that is not completed is not always an affirmative defense to MSJ.  NY Courts actually prefer MSJ's prior to discovery to not waste the parties time.  Logic being if you have the exhibits and burden of proof to win an MSJ, discovery between the parties is moot.

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Guest usctrojanalum

Also what did your opposition state? If you stated in your opposition that discovery is needed between the parties before the MSJ can be decided... then without you even knowing, you did request a continuance.

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Below is what I have written in my Opposition. So you are saying that this is as good as requesting a Continuance? Does it hold any weight with the judge if I tell him that was not my intention? I was ready to deny making any request for continuance. I don't want to stick my foot in my mouth.

 

" Granting Plaintiff's Motion for Summary Judgment prior to completion of any Discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action."
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Guest usctrojanalum

It's kind of yes kind of no.  By making that statement, you are saying you want time to conduct discovery before having the MSJ decided.  Your remedy for such a request would be to have the motion for summary judgment adjourned (or continued) to allow the parties time to complete discovery.

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Well I showed up for my hearing this morning just to find out that the plaintiff had the hearing stricken supposedly because of the supposed request for continuance that I made. Can they do this without even notifying me? There was no continuance granted - it was just stricken so I didn't even have a chance to get in front of the judge.

 

I'm assuming this just means the hearing is cancelled until they decide when/if to reschedule? Anyone have any experience with this?

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