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MSJ Hearing Tomorrow - Need Help


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In short, was served with a petition from FIA Card Services represented by LBN in mid 2011. I filed an appropriate answer in the correct amount of time. Last month I was sent a fat envelop containing many things including a Motion for Summary Judgement with a hearing set for tomorrow (1/16/13). In looking through the documentation, I realized that I missed something and may have screwed myself over. I apparently completely missed a Request for Admissions, Interrogatories and Request for Production of Documents that came back at the end of 2011 which I did not answer. I am in OK and from what I am reading in the MSJ they provided the OK law states that by not responding to their request I have admitted to everything they outlined in it. 

 

I denied everything in my original answer on the grounds of a lack of standing and proof of account ownership, but with this unanswered interrogatory request am I screwed? What can I do other than just show up tomorrow and take it? I know this is short notice, but any and all help is much appreciated. Please help!

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I apparently completely missed a Request for Admissions, Interrogatories and Request for Production of Documents that came back at the end of 2011 which I did not answer.

 

Meaning you got them and just did not respond.  If so, yes, you're pretty much screwed.   I'd still show up and do the best you can do.  Throw yourself on the mercy of the court as a pro-se litigant that just needs another shot at answering them.   That's a long shot because pro-se litigants get a little help from the court, but are treated as licensed attorney's as far as knowing the rules and procedures.  

 

You'll lose 100% for sure if you don't show up and you have at least a slim chance if you do show up. 

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If you don’t respond to discovery (or get an extension from the creditor’s attorney) two things will happen. First, if you are served with requests for admissions they will be deemed admitted. Why is this important? Because you’ve just admitted every fact the creditor needs to prove his case. Since all the facts are true (because you didn’t respond) then the creditor will file a motion for summary judgment and say that there are no facts in dispute (remember, because you didn’t respond) so there is no need for a trial in this case. That is the summary judgment set up.

Second, any legitimate objection you may have to responding is waived; that is, you’re giving up your right to use any legitimate objections to the creditor’s discovery.

Finally, if you don’t respond, the creditor can file a motion to compel responses, which will get the issues in front of the judge. If the judge sees you didn’t respond, he will order you to respond and can order you to pay a fine, called a sanction, and that you pay for the creditor’s attorney fees. If you ignore the court, you answer can be stricken (it would be as if you never filed the answer) which will allow them to file a default judgment against you.

Creditors know that the majority of people they sue are going to ignore the discovery. If you ignore it, you’re doing exactly what they want you to do.

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I don't have any words of advice but I want to offer you encouragement as you go to court. It can be intimidating and going pro se you often wonder if you are handling things appropriately or not. If you are open to settling, I imagine the attorney will still try to settle beforehand. If the amount is low enough, this may be worthwhile.

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In short, was served with a petition from FIA Card Services represented by LBN in mid 2011. I filed an appropriate answer in the correct amount of time. Last month I was sent a fat envelop containing many things including a Motion for Summary Judgement with a hearing set for tomorrow (1/16/13). In looking through the documentation, I realized that I missed something and may have screwed myself over. I apparently completely missed a Request for Admissions, Interrogatories and Request for Production of Documents that came back at the end of 2011 which I did not answer. I am in OK and from what I am reading in the MSJ they provided the OK law states that by not responding to their request I have admitted to everything they outlined in it. 

 

I denied everything in my original answer on the grounds of a lack of standing and proof of account ownership, but with this unanswered interrogatory request am I screwed? What can I do other than just show up tomorrow and take it? I know this is short notice, but any and all help is much appreciated. Please help!

I believe you only have one chance at this, answer the discovery and use these arguments for the MSJ. also you are going to be sucking hind teat here and you will have to get up to speed quickly.

 

One you have to get them the admissions tonight by fax. second you have to file the opposition first thing in the morning. third you have to find OK caselaw for denial of SJ and admissions tardy answers.

Forth you have to be able to argue all this tomorrow.

 

So rolling up the sleeves at this point admissions answers are denied. I believe that you cannot make objections at this point. Also the interrogatories have to be answered. So we work backward admissions, interrogatories, RFPD, then Opposition to there sj.

 

Are you up to it? You have less than twelve hours to get this I am going to bed at 2 am PST so lets get busy we have most of the stuff already and can dust off and update alot of it. The bad thing is if you do get the court to overturn the admissions he may make you pay sanctions. If they haven't proven standing then you got them on the ropes

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Step one What discovery? They never sent me any discovery? The MSJ was the first I heard of it here is my response. Do they have a cmrrr or express mail or fedex? No? then they f'ed up the post office loses things all the time. I just heard a story about a love letter from world war 2 getting to a lady after her husband died of old age.

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Did they send the discovery certified mail back in 2011

Most plaintiffs dont send certified.If they did not like sea said letter from world war 2 getting to a lady after her husband died of old age.If your a good actor you could say they were never sent to me and ask for proof of the mailing.That would be a issue of material fact that would stop summary judgement or default judgement.Then ask the court to have plaintiff give you the discovery and you will have it ready in 10 days.

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To answer the questions on the discovery being mailed, yes it was mailed certified and they have included that receipt with the summary judgement. My wife signed for it and it got lost in a pile of documents before I had the opportunity to look at it and respond. Believe me, it was not on purpose.

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And now I am getting called into work. Figures. I greatly appreciate the offer of help Seadragon, but it looks like I wont be able go through it tonight. Sigh. Well, I'll show up tomorrow for the hearing and hope for the best but be prepared for the worst. It's my mistake so I need to endure the results of that. Thanks again for all the fast replies and advice. I'll let everyone know what the results are, but I think we all already know what they will be.

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Step 2 The opposition to their SJ.

The Standing issue is not enough because the court if they are on their side will interpret the documents they show for standing using their own discretion unless you have authorities that say they have to have this and that.

So even with admissions YOU are not a witness to their business transactions and thus your admission is hearsay of hearsay. You have no knowledge to make an admission about that stuff. Goose and Gander.

They have to prove their case first.

Business records exceptions

Palmer v. Hoffman,

318 U.S. 109; 63 S. Ct. 477 (1943)

"the proponent of the document must demonstrate that the other requirements of Rule 803(6) are satisfied." Cunningham Charter Corp., 2012 WL 1565532, at *3; see also Datamatic Servs., Inc., 909 F.2d at 1033 ("if the source of the information [contained in the business record] is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record" (internal quotation marks and citation omitted));

and for summary Judgment

Summary judgment is appropriate only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56©(emphasis added)

The issue of standing being at issue due to the striking of proofs of the plaintiffs this court cannot render judgment for the plainiff. The United States Supreme Court held in The case of Anderson v. Liberty Lobby, Inc.“movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. New York Times Co. v. Sullivan, 376 U.S. 254 at Pp. 256-257”, 477 U.S. 242, 250 (1986).

United States v. Borrasi, 639 F.3d 774, 780 (7th Cir. 2011) ("courts may not permit the introduction of hearsay contained within hearsay unless each layer is properly admitted under an exception to Rule 802" (citing Fed. R. Evid. 805)); 2 Kenneth S. Broun, McCormick on Evidence § 290 (6th ed.) ("The common law exception for regularly kept records required that . . . [t]he entrant . . . be acting in the regular course of business, and if the information was supplied by another, that person also was required to be acting in the regular course of business.").

A review of Minford's declaration demonstrates that defendants have failed to lay the requisite foundation for admission of Exhibits A through F. Minford does not claim to be knowledgeable in the record keeping procedures of any of the non-defendant entities. Moreover, when asked at his deposition whether he had any information about what records Sherman Originator and LVNV maintain and how Sherman Acquisition keeps its records, Minford responded no or that he did not know. (See Minford Dep. 21:11-18; 31:1-25.) Thus, by his own admission, Minford is not qualified to testify as to the process by which Sherman Originator, LVNV, and Sherman Acquisition created and maintained Exhibits A through D. As to Exhibits E and F, which include a bill of sale signed by representatives of Sherman Originator III and Citibank South Dakota and credit card statements issued by Sears, Minford does not claim to be knowledgeable in the record keeping procedures of either Sherman Originator III or Citibank and admitted under oath that he did not know anything about Citibank's computer system. (Id. 32:13-15.) Based on this record, it is clear that Minford lacks personal knowledge of the procedure used to create and maintain Exhibits A through F, and he is not capable of testifying as a qualified witness under Rule 902(11). See Reese, 666 F.3d at 1017. The court therefore declines to admit Exhibits A through F as records of regularly conducted business activity, and will not consider them in ruling on defendants' motion.[8]

Without Exhibits A through F, defendants cannot show an unbroken chain of assignment entitling them to stand in Citibank's shoes and enforce the arbitration provision contained in Webb's credit card agreement. All that is evident from the record is that Citibank sold Webb's account to Sherman Originator III on or about March 30, 2009, and that at the time of the sale, Citibank's records indicated that Webb owed an outstanding balance. (Handy Aff. ¶¶ 6, 8.)[9] Defendants motion to compel arbitration must be denied.[

A cursory review of the literature demonstrates that the possibility of a debt collector attempting to collect a debt that it does not actually own, either through assignment or otherwise, is very real. See, e.g., Peter A. Holland, The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases, 6 J. BUS. & TECH. L. 259 (2011); Rick Jurgens & Robert J. Hobbes, The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts, THE NAT'L CONSUMER LAW CTR.(July 2010), http://www.nclc.org/images/pdf/pr-reports/debt-machine.pdf; FED. TRADE COMM'N, REPAIRING A BROKEN SYSTEM: PROTECTING CONSUMERS IN DEBT COLLECTION LITIGATION AND ARBITRATION (2010), http://www.ftc.gov/os/2010/07/debtcollectionreport.pdf

See Mary Spector,

Debts, Defaults and Details: Exploring the Impact of Debt Collection Litigation on

Consumer and Courts, 6 VA. L. & BUS. REV. 257 (2011).

("Rule 56(e) requires that evidentiary affidavits 'shall set forth facts as would be admissible in evidence.' Based on this requirement our cases have stressed that we are unable to consider hearsay statements that are not otherwise admissible at trial.")” Atkins supra and further on the issues of materiality for evidence The United States Supreme Court explained in Anderson v. Liberty Lobby: "Only disputes over facts that might affect the outcome of the suit" preclude summary judgment. Anderson v. Liberty Lobby Inc. 477 U.S. 242, 248 (1986). Defendants have fully and continually disputed the allegations. (S.D.F. ¶1-5)

“[A] motion for summary judgment should not be granted if there is evidence creating a genuine issue of material fact.” Gatecliff v. Great Republic Life Ins. Co., 170 Ariz. 34, 37, 821 P.2d 725, 728 (1991).

So you are going to have to first answer the admissions without objection which is easy ie.

Denied.

Then work on the SJ Opposition and if you have time answer the interrogatories. So you gotta make a copy of the MSJ motion in pdf format so we can see what they are saying or you can type it.

These points will help us to craft an opposition. Anybody oppose SJ in OK? Any one have anything?

Put on a pot of coffee and be part of the miracle don't wuss out on us let us help you to win if you do it will be epic.

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Did they send the discovery certified mail back in 2011

Most plaintiffs dont send certified.If they did not like sea said letter from world war 2 getting to a lady after her husband died of old age.If your a good actor you could say they were never sent to me and ask for proof of the mailing.That would be a issue of material fact that would stop summary judgement or default judgement.Then ask the court to have plaintiff give you the discovery and you will have it ready in 10 days.

Dude I cannot believe how you made the best arguement to get everything taken care of in a few sentences that is cool, While me on the otherhand I am like a caselaw gunship spuewing out stuff.

Maybe that would be best. dude awesome.

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And now I am getting called into work. Figures. I greatly appreciate the offer of help Seadragon, but it looks like I wont be able go through it tonight. Sigh. Well, I'll show up tomorrow for the hearing and hope for the best but be prepared for the worst. It's my mistake so I need to endure the results of that. Thanks again for all the fast replies and advice. I'll let everyone know what the results are, but I think we all already know what they will be.

No worries answer the admissions and fax them to them before the hearing anything not your address =denied. the rest can be answered or go with racecars suggestion and keep it simple that they have to prove their case. Sorry we tried Use the caselaw from the post to help you dig out. I wish you came to CIC sooner

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Good luck today. I was in court a few weeks ago and saw a judge (against Midland) deny 4 motions for summary judgement where the defendant didn't show.  :ROFLMAO2:  It was awesome!  This young attorney was sooo confused.  The judge told the attorney that the defendant filed an answer and probably didn't know they had to respond to the motion. He had him send the 4 defendants letters explaining that they needed to respond to the MSJ or they would lose. Priceless. It was an old judge "filling in" during the holidays.

 

Do I have a point? Oh, yeah. If you get the right judge and throw yourself on the mercy of the court as Coltfan suggested, you have a shot.

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He has a chance if they never filed motions to have admissions deemed admitted or any motions to compel. Makes them look just as bad as him....he forgot to answer, they did nothing about it. Guess they weren't too concerned.

 

Great point Bruno, I hope the judge brings it up for him.

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Well, I can report that court went surprisingly well today. The judge was very coorperative and granted a continuance of the hearing to 3/6 to allow me to file the discovery and answer to the msj out of time. I now have a couple of weeks to get things put together correctly and make a case of this. I know someone was watching over me today and I cannot tell you how grateful I am to everyone that has posted so far. 

 

I'm taking the night off from this to get some rest, then I am going to start tomorrow with getting everything scanned and posted, as well as beginning to get my documents drafted so that I can get them filed as quickly as possible. Any and all help is greatly appreciated.

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The Immaculate reception all over again one of the most famous plays in cic litigation history.I will talk to the admin about you being admitted to the cic hall of fame.

I'd call it 11th Hour Justice....  :)

 

Good for you NeedHelpInOK...

Now, lets get this thing going!

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You all see that is why I like to help when the odds are only 1%. You must have summoned up the blood. I stand ready for opposition to their SJ. Did you have the discovery requests ready for them? anyway take the day off you deserve it I am putting a touch of whiskey to me lips to honor your good news.

 

Can you believe this the guy works all night goes to court and pulls off the most epic upset in CIC History. 11th hour hell 11:59 You rock.

 

So you need an opposition to MSJ and tomorrow you get that info on here and we will crush them.

 

We have to give the judge a full plate he is expecting it now.

 

You see miracles do happen and a fair judge to boot. I am jealous.

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