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Filed MTC arb, no hearing, no ruling, Plaintiff files MSJ Ohio

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I'm reposting in this thread as things have changed and I hope to clarify for myself and others. All opinions are appreciated.

 

Brief overview:

 

1. I'm in Ohio.

 

2. OC  Fifth Third 2007-2008.

 

3. Debt $900.

 

4. Served by Asset July 2012.

 

5. Answered July 2012.

 

6. Mediation scheduled July 2012.

 

7. Filed MTC Arb August 2012.

 

8. Received discovery August 2012.

 

9. Mediation cancelled August 2012 on grounds that arb was elected.

 

10. MSJ filed by Plaintiff Janurary 2013 (included affidavit from an Asset "representative" with NO information not established in complaint.   

 

 

MSJ filed on the grounds that Defendant failed to respond to Discovery requests. Although the Plaintiff and the court received MTC arb prior to deadline. No hearing was set and no ruling was issued on MTC.

 

It's my understanding that (in Ohio) the trial court cannot rule on underlying claim until there is a ruling on the MTC. It is also my understanding that this would be the grounds for an Objection to MSJ.

 

In addition to this I have seen it suggested to argue subject matter jurisdiction as well as the issue of triable issues of material fact.

 

Most, if not all, of the contributors here are very well versed in civil procedure parlance while others (me) are quite the opposite. I have been operating under the "C.A.S.E." method:

 

Copy

And

Steal

Everything

 

That has worked great thus far. However, at this point, I am done slow dancing with Asset.

 

They have produced no evidence. No bill of sale, no receipts, no contract, no nothing. I don't think they can even produce the full account number. They've re-dated my credit report and the affidavit they submitted is nothing more than hearsay.

 

I want to hit them with anything and everything possible. I want the opposing council as well as the judge to know where I am coming from.

 

I plan to object to MSJ using Cap One v. Collins as precedent, but I want MOAR!

 

Can I file an affidavit to establish triable issues as well? I have no evidence either as I am unfamiliar with the alleged account.

 

Breach of contract? FDCPA violations? Anything I can do to shut them down, I will do. This is where I need opinions most.

 

Sorry for the length but I wanted to be as clear as possible. Any and all consideration is appreciated. Thanks

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Find out how your local court handles MTC hearings. Mine was a non-oral hearing where the judge read the motions and decided and the court set the date.  You may have to schedule the motion hearing to have the MTC decided.

 

As far as the Discovery and the MSJ write an objection to both. Send the objection to discovery to the plaintiffs attorney. Object to all discovery because there is a jurisdictional motion pending.  Write an Objection to Motion for Summary Judgement based on the argument there is still the triable argument of where the case should be heard, and include a copy of your Objection to Discovery as evidence of why you have not replied to the discovery request because that will be for the arbitration forum, not the court.

 

You can also file an affidavit stating the actions you took to move the case to arbitration as evidence for the Objection.

 

You are doing fine.  Everything they are doing to you, they tried to do to me when I filed my MTC.  I ate my own dogfood (what I suggested above) and got a court order to arbitrate the matter.

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Thank you for the response.

 

How elaborate do I need to be on both the Objection to Discovery and the Objection to MSJ?

 

The reason I ask is because I have trouble formulating my motions. I generally copy and paste and then move things around to fit my needs.

 

Is there an example on this site I could model these after? 

 

Essentially, I can read legal-eze ok, but I can't write it very well.

 

I just really want to file something solid so any nudge in the right direction is greatly appreciated.

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Update:

 

I just spoke to the Clerk to no avail. I asked if I needed to schedule a hearing on my MTC and they didn't know how to respond.

 

I told them that I was told "no" when filing and that no hearing was ever scheduled, nor was there a ruling.

 

They brought up my case and they immediately put me on hold. Upon return the answer was "you need to hire an attorney".

 

They went on to say that they can't give legal advice so I asked if there was a form to schedule the hearing myself and they said they weren't sure/ weren't aware of one. So, no help there.

 

The court has been pressuring me to settle since the beginning and railroading me into mediation hearings but refuses to rule on my motion. 

 

I'm feeling pretty overwhelmed here. Going forward, any assistance in writing an Objection to MSJ and an Objection to Discovery Requests would be very helpful. Thanks

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I had the exact same case. A big thanks to nobk4me, and Iheart for all the help, so listen to them.

I just had pre trial this morning, and case was dismissed.

 

You have to study, and make sure you can recite the Civil Rules you are pleading your case on.

When you do get to court you will have to tell the court your case. You will not have all the paperwork pleading for you, so make sure what you need to point out is memorized.

 

Check Rule 56 (E) it states "Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit."

 

http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

 

This is how I had the plantiffs affidavit struck. They did not file the "business records" that the affidavit was refering to. The judge struck the affidavit then denied the MSJ.

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Depending on who your OC is you should be arguing that the MSJ should be denied because you have elected arbitration and as such the court no longer has standing to hear the case.

 

You should demand a hearing on the motion to compel arbitration.

 

Your motion would definitely be granted if byt he time it is heard you have already initiated arbitration.

 

You need to read up on arbitration ...google it and you will find lots of information and other possible forums to read.

 

CASE has worked for you this far and lucky for you. NOW you need to actually do some serious reading and start doing some of your own paperwork...with plenty of help from people on this board...but you need to step up your game a little if you hope to win. Good luck!

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IF the JAMS arbitration forum is available in your agreement get it initiated as soon as possible...a few of the big OC's will try to do an end run around you and file in AAA.

 

If that happens your odds for a win just got much smaller..IMHO.

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I got a letter saying that I missed the deadline to respond to MSJ. I thought I had from the time I received the Motion. I guess it was from the time they filed it. I thought I had three more days.

 

I dummied up good here and I am well aware that it may have cost me the case.

 

I've been checking the case online and nothing has changed. Is there anything I can do? Motion for extension, or is that even worth the attempt? 

 

I should have done this earlier I know, but I got the letter and was devastated and just assumed it was over. Upon further reading I see that I am not the first person to do this and there may be something I can do to save this. Even if it is a long shot.

 

Thanks. 

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Memorandum in Opposition to Motion for Summary Judgment

You will need an affidavit denying that the account is correct, that you dont owe plaintiff (Asset) any money, Courts will grant the MSJ if there is not a credible opposing affidavit raising issues of material fact.
find something wrong with the plaintiffs claim. Recalculate the interest, find charges you say are not yours, object to the payments they show,you have elected arbitration,plaintiff has failed to establish a contract between defendant and plaintiff,

plaintiff has failed to present a proper accounting,plaintiff has failed to authenticate the purported bills of sale,The affidavit does not satisfy Evid.R. 803(6), as the documents were not plaintiff's business records but the business records of unaffiliated entities,
plaintiff failed to present a qualified witness,valid assignment agreement.

 

Civ.R. 56,You must show with specific facts that a genuine issue exists for trial.Put all of that in the affidavit and offer that at the hearing on the MSJ.

 

 

 

Note-Affidavits submitted to support or oppose a summary judgment motion

"shall be made on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the

matters stated in the affidavit." Civ.R. 56(E). "Information in affidavits that is not based

on personal knowledge and does not fall under any of the permissible exceptions to the

hearsay rule may be properly disregarded by the trial court when granting or denying

summary judgment."

Cincinnati Ins. Co. v. Thompson & Ward Leasing Co., 158 Ohio

App.3d 369, 2004-Ohio-3972, ¶ 13 (10th Dist.), citing

Pond v. Carey Corp., 34 Ohio

App.3d 109, 111 (10th Dist.1986).

 

see

Ohio Receivables, LLC

v.

Jdomenic Dallariva,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

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Thank you for the reply.

 

In the letter I received it stated that there will be no hearing on the MSJ and that the" judge would rule automatically", after the date which my response was due. I received the letter at 3pm on the day of the deadline and it said "You do not need to make an appearance today". 

 

So should I attempt to file for an extension? Cause at this point I get the feeling that there will be no other opportunity.

 

 

Also, I noticed some discrepancies in the dates in the case online. It says plaintiff's Discovery was filed on 8/21, and the certificate of service says 8/17. However I received Discovery on the same day I filed the MTC which was 8/29. I have no way to prove when I received it though, as the plaintiff does not use certified mail.

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I would file the extension.  Keep fighting!  If you do nothing, you will lose.  If you keep fighting, you may win.  They might cut you some slack as a pro se.

+1 I would ask for an extension and also state you believe your MTC needs to be ruled on before a MSJ.

Get a copy of your "Local Rules" to help you navigate this. Here an example from Cuyahoga County Common Pleas http://cp.cuyahogacounty.us/internet/localRules.aspx

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