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Judge denied MSJ yesterday, but clerk says it was "continued". UPDATE: OC requests trial postponed for 3X?!


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My MSJ hearing yesterday was a mess.  The previous trial ran until 5:25pm and the judge was obviously annoyed.  He took

a 5 minute recess, and when he walked into the hearing he was ticked.  Without even saying hello to me or the OC's attorney,

he just started yelling. 

 

I was informed that my Opposition for MSJ was a few days late and should have been denied.  The judge told me

that I was "playing coy" by never admitting that the charges were mine. 

 

Then he tore into the OC's attorney saying that nothing in the MSJ amounted to evidence.  He told them to refile it with

evidence next time.  He said that the "motion was denied."  Then, he set another hearing for 03/04/13.  I assumed that

this meant that the MSJ was denied and to expect another one rather shortly.

 

Feeling a little weird about it, I called up the clerk today and found out that the original MSJ is still in the works, the judge

just continued it until March.  So....I have read the  Idaho Rules of Civil Procedure backwards and forwards but there

is nothing in there for when the judge goes off script.

 

If the OC is actually able to dig up statements that show some charges, will they have to provide them to me before the

hearing?  Certainly it's not normal for a judge to say "good try, but what I really want to see is this". 

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Playing coy, is pretending you do not know something, but you really do, and the other person knows you know it.You must have been wearing your creditinfocenter jacket.I would count that as a minor beatdown.Good job girl.

Sounds like oc is a jdb

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Nope, it's really Amex.  But, the attorney is from a city 13 hours away and works as the "on-staff lawyer" for a collection agency.

The "firm address" is at a Mailboxes Etc. store in a strip-mall in Portland, OR.

 

The attorney who showed up yesterday was a local attorney that showed up in sweat pants and changed into a suit in the bathroom.  He arrived with exactly 3 pieces of paper and told the judge that he knew nothing. 

 

I'm still wondering why they got a do-over and I got a lecture. 

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Next court day call in sick and reschedule 5 minutes before court.He will be in his car for 26 hours.American Express is usually good about having all the documents they need.

Thats why it seems like a jdb.I would do alot of googling just to make sure.

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Feeling a little weird about it, I called up the clerk today and found out that the original MSJ is still in the works, the judge

just continued it until March.  So....I have read the  Idaho Rules of Civil Procedure backwards and forwards but there

is nothing in there for when the judge goes off script.

==============================================================================================

 

Consider this a small but significant win.  You started with a potential judgement against you and ended up with plaintiff getting sent back to the cheap seats with a denial for no foundation for MSJ and a warning to bring supportive evidence next time. I wonder if you had interrupted his yelling and asked for a dismissal for failure to plead a cause which relief can be granted if you would have got it. Sounds like he was mad enough at opposing council. 

 

If acting Coy gets you a win then why not. Appearance lawyers are weird anyway.  You now know what to expect and have more than adequate time to prepare.

 

HP

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I borrowed a copy of the IRCP from an attorney friend and found the following...

 

I.R.C.P. 56©

 

MSJ must be filed 28 days before the date set for hearing.

 

If the judge scheduled another hearing for 03/04 doesn't that mean that they have to get me SOMETHING

by Monday 02/04/13?  I need to have 14 days to respond to any new evidence that they provide, right?

 

also  I.R.C.P. 56(a) 

 

MSJ must be filed 60 days prior to the date set for the trial.  Since trial is 04/10 they only have until next Friday 02/08/13

to file a completely new MSJ. 

 

Is this correct?  What in the world do I do if they do nothing at all?  A MTC might force them to dig deeper than I want them to. 

 

Also, if this goes away and I head for a trial, what do I need to do to make sure that nothing else is brought in as evidence? 

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If they do nothing further between now and the hearing, their MSJ will be denied and you can file your own. Their case is only as good as the lawyer who runs it, and you saw what you were up against in court. A local, know-nothing stand-in. I'd watch the web site to see if the judges renders a memo of decision. Clerks aren't always right.

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Next court day call in sick and reschedule 5 minutes before court.He will be in his car for 26 hours.American Express is usually good about having all the documents they need.

Thats why it seems like a jdb.I would do alot of googling just to make sure.

 

+1 agree 100%  Don't be surprised if NCO is running the show.

 

Visit NCO's website it states that NCO will act as OC even sends letters on OC's letter head. This is a scheme AMEX and NCO have been playing together for a long time.

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Thanks!  If you could win these things by just stressing about them, I'd be in business!

 

But...when do they have to give me copies of their evidence that the Judge asked them to bring to the next hearing? 

I don't think they have it or they would have given it to me 11 months ago in discovery. 

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Thanks!  If you could win these things by just stressing about them, I'd be in business!

 

But...when do they have to give me copies of their evidence that the Judge asked them to bring to the next hearing? 

I don't think they have it or they would have given it to me 11 months ago in discovery. 

 

Check your state rules under "Motion for Summary Judgment". I think it is 20 days before the hearing but check to be sure.

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Look, this OC can produce accounts going back to decades.I know and have dealt with it. BUT not after NCO takes over , in that case only a limited amount of documents will be passed on to this JDB.

 

Who you are dealing is probably JDB acting as OC and hiding under its shadow . Zwicker is also part of NCO's vast attorney network.

 

Did any of these documents come from NJ or PA ?

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 IdWrknGrl,

 

Have you found the MA laws regarding notaries and the taking of affidavits in that state?   Considering you're dealing with the OC, in my opinion, the affidavit issue is a biggie.  If you can show the affidavit is faulty or fraudulent...invalid in some way...it should be thrown out. 

 

In fact, if you can show the affidavit is not valid, I'd be speaking to an attorney.  Zwicker is a debt collection law firm.  They know what's required for a legal and valid affidavit.  For them to offer an affidavit that indicates the affiant was in one state and the notary was in another state might be a problem for them.  That's the ultimate indication of robosigning.  Who knows how many other consumer defendants you'd be helping.

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BV80-

 

I found the affiant's job description and it says that the Assistant Custodian of Records must be prepared to spend 50% of their working hours

in Andover, MA.  The rest of the time can be from anywhere.  So, this lady can work in multiple states, for Amex/Amex Centurion/Amex FSB/ Amex Travel Related Services Co and not leave her couch.

 

One good thing popped up.  The affiant not only had my name filled in wrong, she wrote that as of a certain date my balance was XXXXX, but if you look at the statement from that date it was about $673 different.  Yes, this was all in my opposition.  Too bad the judge refused to read it.

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Well, it must be shown that she was in MA on the date of the affidavit.  What her job description requires and what she actually did can be 2 different things.

 

 

The affiant not only had my name filled in wrong, she wrote that as of a certain date my balance was XXXXX, but if you look at the statement from that date it was about $673 different.

 

If her affidavit was used to authenticate the business records per Rule of Evidence 803(6), her mistakes would go to trustworthiness.  She allegedly works for the OC.  If she had really viewed the records, would she make those mistakes?

 

I'd argue this also applies to the "personal knowledge" requirement of an affidavit in support of summary judgment. 

 

1.  If she had personal knowledge and had truly reviewed the records, would she make those mistakes? 

 

2.  If she did review the records and her information was based upon those records, she could not have reviewed the same records that the OC has offered to you because the record that you have (that the OC supposedly provided to you) says something different.

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Today was the cutoff per the I.R.C.P. for Zwickr to re-file their MSJ with the courts "with some evidence this time"!  As of 4:59pm

the clerk had not received a thing.  So my next question is:

 

WHAT NOW?!?! 

 

Should I file a Motion to Compel Production of Documents and specifically list what the judge asked for at the last hearing? 

 

Should I file something stating that I did not get my information in time to prep for the next hearing and therefore it should be denied?

 

I have exactly 4 days left to file a MSJ of my own.  Should I? 

 

Also,  I've been pondering this discussion about Zwickr being a JDB.  In looking at the documents that they filed with the MSJ, they have waived all

attorney's fees.  That's not normal, right?

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I wouldn't file a motion to compel.  The judge already told them he wanted more evidence.  There's obviously nothing to compel.

 

If the case isn't dismissed in the next couple of days, you might need to file your own MSJ since you have a deadline.  If the court grants your MSJ, the JDB would have to try get the judgment vacated in order to keep the case going.  They wouldn't be able to just refile and sue you again.  If they don't try to get it vacated or if they do, but their motion is denied, it's over, and you win.  They can't bother you again.

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That's what I was thinking.  I keep finding little things with this case that just don't add up.

 

Just tonight I got looking at my credit reports from 2011 and 2012 and found that the account number listed on my

credit report is different than the account number they are suing on.    Also, my credit report shows it was charged

off in March of 2009 instead of November 2010, that's a huge difference on SOL.  But the amount remains the same.

 

Also, when I went back and re-read the original complaint, they are only suing me on breach of contract.  Nothing else.  If they

don't provide a contract (i.e. an agreement) that was written when these charges were filed, wouldn't a judge toss this?

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The date of charge off has nothing to do with the SOL.  One can continue to make payments after an account has been charged off.  It's the date of last payment that determines the SOL.

 

Some OCs, possibly all, apply a new account number to charged off accounts.  It could be that the account number on your CR is the new account number while the number in the complaint is the original account number before the account was charged off.

 

If they provided cc statements that were issued after the account was charged off, which number do they show?

 

In cc cases, a "contract" is not usually necessary.  Actions can imply a contract.  If one makes charges and payments, that implies a contract with the other party and an intent to pay.

 

As far as the cardmember agreement is concerned, yes, I'd make an argument for that document.  It details the terms and conditions of the account such as how interest is calculated and which fees will be charged.  Without a copy of that agreement, I'd argue they haven't proven that they abided by the terms of that agreement when calculating the balance on each billing statement or that any fees included were allowed by the agreement.

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My MSJ hearing yesterday was a mess.  The previous trial ran until 5:25pm and the judge was obviously annoyed.  He took

a 5 minute recess, and when he walked into the hearing he was ticked.  Without even saying hello to me or the OC's attorney,

he just started yelling. 

 

I was informed that my Opposition for MSJ was a few days late and should have been denied.  The judge told me

that I was "playing coy" by never admitting that the charges were mine. 

 

Then he tore into the OC's attorney saying that nothing in the MSJ amounted to evidence.  He told them to refile it with

evidence next time.  He said that the "motion was denied."  Then, he set another hearing for 03/04/13.  I assumed that

this meant that the MSJ was denied and to expect another one rather shortly.

 

Feeling a little weird about it, I called up the clerk today and found out that the original MSJ is still in the works, the judge

just continued it until March.  So....I have read the  Idaho Rules of Civil Procedure backwards and forwards but there

is nothing in there for when the judge goes off script.

 

If the OC is actually able to dig up statements that show some charges, will they have to provide them to me before the

hearing?  Certainly it's not normal for a judge to say "good try, but what I really want to see is this". 

What happened at the hearing was the court issued a tentative ruling and pushed the hearing back because the trial is going long. So this gives you time to sharpen sword and put on the nutcracking shoes. The Judge nows what time it is about the defense you are doing and he is mad. He obviously is gonna need to have his hands tied with authorities that do not let him use his "discretion". So what if you never admit the allegations and make them prove everything it is what any counsel defending would do remember in pro per you have to protect the interests of your "client".

 

Crush the other side in court. and I think the other side is kinda screwed. I think the judge was really mad at the trial attorneys and took it out on you guys. and nice Standing tall and not getting all nervous when the judge was on a fit.

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The whole time I was in the courtroom, I wrote notes to myself on my legal pad.  They read:

 

No matter what, keep your temper in check.

 

When you run your mouth, you sound like your crazy b*tch mother.

 

If you wish to speak, take a breath....and another....and ask yourself if it's really necessary. 

 

Look the judge in the eye (thankfully you took your contacts out).

 

His name is "your Honor" not Bob from church. :-) 

 

 

I guess the judge is going to be really pissed now since they didn't file any evidence like he told them to.  There are

fewer than 28 days until the hearing and I will not have time to review and object to anything new. 

 

Going to the court house tomorrow to look at my file again and double check that nothing arrived after hours on Monday. 

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I would prepare devestating opposition because if they refile the MSJ, which they cannot now as the motion time is up, Then they are going to argue that it is all evidence so you need to put them away with amended opposition. The court says your being "coy" but the defense is under no obligation to admit anything and can take their chances with plaintiffs proving their case. I would prepare based on all the cases which cite the lax "standards" which jdb's and even banks conduct their business.

 

There are alot of federal cases to show that stuff an cases al throught the 9th circuit(yours and my circuit) that show that jdb's practices do not hold up under scrutiny. and if he starts to go to far scolding you about your position then write it down and just fight your fight. The judge is mad that you are kicking a member of the bars azz and beating them at their own game.

 

If he really is bob from church I would not mingle in the same social circles as him, but be respectful if he speaks to you. maybe when you win he will come up to you and shake your hand.

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