Tococattle

(PROPOSED)Order for judgement pursuant to motion for judgment on the pleadings

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Who is the named plaintiff in the suit? ASSET ACCEPTANCE

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

FULTON FRIEDMAN & GULLACE, LLP

3. How much are you being sued for? 13,213.48

4. Who is the original creditor? (if not the Plaintiff)CITIBANK

5. How do you know you are being sued? (You were served, right?) SERVED

6. How were you served? (Mail, In person, Notice on door)IN PERSON

7. Was the service legal as required by your state? YES


8. What was your correspondence (if any) with the people suing you before you think you were being sued? MY HUSBAND TALKED TO THEM TELLING THEM OUR HARDSHIP

9. What state and county do you live in? CA. STANISLAUS COUNTY

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)JAN 4, 2011

11. What is the SOL on the debt? To find out: 4 YEARS


12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

WE HAVE A COURT CASE APRIL 3 , 2013 BUT THEY ARE TRYING FOR JUDGEMENT KNOW

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  NO TIME FRAME, PROOF OF SERVICE  JAN 14 2013


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. MEMORANDIUM OF POINT AND AUTHORITIES IN SUPPORT OF  MOTION FOR JUDGEMENT ON THE PLEADINGS

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Did u respond to the lawsuit? They will get default judgment if you fail to answer the lawsuit. I am not sure of the requirement in CA on how many days you have to answer.

I am bumping for you so people from CA will respond.

Who is the named plaintiff in the suit? ASSET ACCEPTANCE

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

FULTON FRIEDMAN & GULLACE, LLP

3. How much are you being sued for? 13,213.48

4. Who is the original creditor? (if not the Plaintiff)CITIBANK

5. How do you know you are being sued? (You were served, right?) SERVED

6. How were you served? (Mail, In person, Notice on door)IN PERSON

7. Was the service legal as required by your state? YES

8. What was your correspondence (if any) with the people suing you before you think you were being sued? MY HUSBAND TALKED TO THEM TELLING THEM OUR HARDSHIP

9. What state and county do you live in? CA. STANISLAUS COUNTY

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)JAN 4, 2011

11. What is the SOL on the debt? To find out: 4 YEARS

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

WE HAVE A COURT CASE APRIL 3 , 2013 BUT THEY ARE TRYING FOR JUDGEMENT KNOW

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? NO TIME FRAME, PROOF OF SERVICE JAN 14 2013

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. MEMORANDIUM OF POINT AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGEMENT ON THE PLEADINGS

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It appears that you answered and didn't deny the debt. I have noticed that an uptick in these Judgement on the pleadings. It means that you have not denied the allegations in the complaint and they think they are entitled to judgment. I believe that you have to fight it like summary judgment opposition.

and you have to attack their standing right off the bat.

 

Post the stuff after the caption which is the names and such redat the personal info and lets look at it this is the first one we have seen on the board. Lets get a good look to help people about this new scourge.

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Seadragon helped me with my opposition, which Utah Rules of Civil Procedure is very strict on exactly how to answer. I just filed my opposition last week. If you can type the plaintiff's motion out on the board you will have plenty of people to guide you in the right direction. I can also give you examples of my opposition.

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Section 438

a) As used in this section:
   (1) "Complaint" includes a cross-complaint.
   (2) "Plaintiff" includes a cross-complainant.
   (3) "Defendant" includes a cross-defendant.
   (1) A party may move for judgment on the pleadings.
   (2) The court may upon its own motion grant a motion for judgment
on the pleadings.
   (c ) (1) The motion provided for in this section may only be made
on one of the following grounds:
   (A) If the moving party is a plaintiff, that the complaint states
facts sufficient to constitute a cause or causes of action against
the defendant and the answer does not state facts sufficient to
constitute a defense to the complaint.

   If the moving party is a defendant, that either of the
following conditions exist:
   (i) The court has no jurisdiction of the subject of the cause of
action alleged in the complaint.
   (ii) The complaint does not state facts sufficient to constitute a
cause of action against that defendant.
   (2) The motion provided for in this section may be made as to
either of the following:
   (A) The entire complaint or cross-complaint or as to any of the
causes of action stated therein.
   The entire answer or one or more of the affirmative defenses
set forth in the answer.
   (3) If the court on its own motion grants the motion for judgment
on the pleadings, it shall be on one of the following bases:
   (A) If the motion is granted in favor of the plaintiff, it shall
be based on the grounds that the complaint states facts sufficient to
constitute a cause or causes of action against the defendant and the
answer does not state facts sufficient to constitute a defense to
the complaint.
    If the motion is granted in favor of the defendant, that
either of the following conditions exist:
   (i) The court has no jurisdiction of the subject of the cause of
action alleged in the complaint.
   (ii) The complaint does not state facts sufficient to constitute a
cause of action against that defendant.
   (d) The grounds for motion provided for in this section shall
appear on the face of the challenged pleading or from any matter of
which the court is required to take judicial notice. Where the motion
is based on a matter of which the court may take judicial notice
pursuant to Section 452 or 453 of the Evidence Code, the matter shall
be specified in the notice of motion, or in the supporting points
and authorities, except as the court may otherwise permit.
   (e) No motion may be made pursuant to this section if a pretrial
conference order has been entered pursuant to Section 575, or within
30 days of the date the action is initially set for trial, whichever
is later, unless the court otherwise permits.
   (f) The motion provided for in this section may be made only after
one of the following conditions has occurred:
   (1) If the moving party is a plaintiff, and the defendant has
already filed his or her answer to the complaint and the time for the
plaintiff to demur to the answer has expired.
   (2) If the moving party is a defendant, and the defendant has
already filed his or her answer to the complaint and the time for the
defendant to demur to the complaint has expired.
   (g) The motion provided for in this section may be made even
though either of the following conditions exist:
   (1) The moving party has already demurred to the complaint or
answer, as the case may be, on the same grounds as is the basis for
the motion provided for in this section and the demurrer has been
overruled, provided that there has been a material change in
applicable case law or statute since the ruling on the demurrer.
   (2) The moving party did not demur to the complaint or answer, as
the case may be, on the same grounds as is the basis for the motion
provided for in this section.
   (h) (1) The motion provided for in this section may be granted
with or without leave to file an amended complaint or answer, as the
case may be.
   (2) Where a motion is granted pursuant to this section with leave
to file an amended complaint or answer, as the case may be, then the
court shall grant 30 days to the party against whom the motion was
granted to file an amended complaint or answer, as the case may be.
   (3) If the motion is granted with respect to the entire complaint
or answer without leave to file an amended complaint or answer, as
the case may be, then judgment shall be entered forthwith in
accordance with the motion granting judgment to the moving party.
   (4) If the motion is granted with leave to file an amended
complaint or answer, as the case may be, then the following
procedures shall be followed:
   (A) If an amended complaint is filed after the time to file an
amended complaint has expired, then the court may strike the
complaint pursuant to Section 436 and enter judgment in favor of that
defendant against that plaintiff or a plaintiff.
   If an amended answer is filed after the time to file an
amended answer has expired, then the court may strike the answer
pursuant to Section 436 and proceed to enter judgment in favor of
that plaintiff and against that defendant or a defendant.
   © Except where subparagraphs (A) and apply, if the motion is
granted with respect to the entire complaint or answer with leave to
file an amended complaint or answer, as the case may be, but an
amended complaint or answer is not filed, then after the time to file
an amended complaint or answer, as the case may be, has expired,
judgment shall be entered forthwith in favor of the moving party.
   (i) (1) Where a motion for judgment on the pleadings is granted
with leave to amend, the court shall not enter a judgment in favor of
a party until the following proceedings are had:
   (A) If an amended pleading is filed and the moving party contends
that pleading is filed after the time to file an amended pleading has
expired or that the pleading is in violation of the court's prior
ruling on the motion, then that party shall move to strike the
pleading and enter judgment in its favor.
   If no amended pleading is filed, then the party shall move for
entry of judgment in its favor.
   (2) All motions made pursuant to this subdivision shall be made
pursuant to Section 1010.
   (3) At the hearing on the motion provided for in this subdivision,
the court shall determine whether to enter judgment in favor of a
particular party.


 

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A motion for judgment on the pleadings may be made on the grounds that the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.” (Code of Civil Procedure (C.C.P.) §438©.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, citations omitted.) “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) Reduced to plain English, a Motion for Judgment on the Pleadings lets the court enter judgment when the pleadings on file with the court show that their is no legal or factual dispute between the parties.

 

Common mistakes which triggered a Motion for Judgment on the Pleadings. Generally speaking, these case-killing mistakes are rooted in a good faith belief in a defense which is held by the consumer but is not authorized by the law.

The most common event leading to the filing of a Judgment on the Pleadings is when a consumer files their Answer to the Complaint. If the Answer admits the material facts alleged in the Complaint but fails to set forth a valid defense, a Motion for Judgment on the Pleadings will be triggered. A common defense which is alleged by pro per consumers is the inability to pay on the account, but this is not a valid defense. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 479, and AB Group v. Wertin (1997) 59 Cal.App.4th 1022, 1028.) Conversely, pro per consumers will sometimes admit the existence of an agreement but attempt to dispute the exact amount owed. However, unless accompanied by the allegation of a valid defense, a court will simply interpret this type of response as an admission that an agreement existed and grant the Motion for Judgment on the Pleadings. (Bank of America v. Hirsch Mercantile Company (1944) 64 Cal.App.2d 175, 181.)

Another common situation that leads to the filing of a Motion for Judgment on the Pleadings is the failure to properly respond to discovery requests from a debt collection company’s attorneys, particularly Plaintiff’s Requests for Admissions. If a consumer fails to adequately respond to the Requests for Admissions or responds only with admissions, the court will grant a Motion for Judgment on the Pleadings in addition to the imposition of monetary sanctions for the failure to properly comply with the discovery statutes.

 

 It is important to draft an Opposition to Plaintiff’s Motion for Judgment on the Pleadings because the failure to do so can be construed as yet another admission that there is no legal or factual defense to the claim. See Super. Ct. San Diego County, Local Rules, rule 3.2.1©(5) "Failure of the responding party to serve and file points and authorities within the timepermitted without good cause may be considered by the court as an admission the motion is meritorious.” See also Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.

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Thanks Racecar:

Step 1 define the problem

Step 2 find what caused the problem

Step 3 fix the problem

Step 4 counterattack

 

If your answer is the problem you can amend your answer prior the hearing on the JOP. you can oppose it and amend the pleading at anytime to state a defense.

 

If you admitted the debt you can at that time attack jurisdiction via arbitration or the Coltfan defense of "I owe it just not to them"

 

Don't be embarrased let us or maybe just me look at the JOP and see what can be done.

 

They misuse these all the time in LA County mostly Dept. 77 so there are things to be done.

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Tococattle did you see anything in the complaint like account stated,breach of contract,unjust enrichment?

 

"MY HUSBAND TALKED TO THEM TELLING THEM OUR HARDSHIP"(Dont talk to the creditors out of court)

They dont care about your hardship they want your money for the next 5 or 7 years.The plaintiff is ASSET ACCEPTANCE a junk debt buyer,The law firm FULTON FRIEDMAN & GULLACE, LLP is a debt buying law firm and uses asset as their proxy plaintiff.

You should start to study ca rules of civil prodedure,rules of the court,you are the one that has to deliver the message to the court.

If you do nothing you will lose,you get out of a lawsuit what you put in it.

 

You need to beat this judgment on the pleadings,or you will be paying a lawfirm that paid mabey $400-500 for your charged off debt and wants the whole amount plus interest and attorney fees.Even if you pay a junk debt buyer for three or four years they will sell the debt to another junk debt buyer who will sue you again.So i would take some time to learn as much as you can.Dont wait till they are driving away in your new car.

 

http://www.stanct.org/content.aspx?page=self_help_center

AAA California Legal Aid
209-537-0359

The Stanislaus County Law Library provides free access to legal information for the judiciary, members of the State Bar, public officials, and to all residents of the county for the purpose of education and research.1101 13th Street,(209) 558-7759


 


 

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Motion for judgment on the pleadings is a party’s request to the court to rule in his/her favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court's interpretation of the law.

 

A function of a motion for judgment on the pleadings is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. A motion for judgment on the pleadings is the proper procedure when all of the material allegations of fact are admitted in the pleadings and only questions of law remain. When the pleadings do not resolve all factual issues, judgment on the pleadings is generally inappropriate. [Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974)]

 

 

 

The existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for summary judgment from one for a judgment on the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending party’s answer to raise an issue. On the other hand, in the case of a summary judgment, issues apparently exist – i.e. facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer – but the issues thus arising from the pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions

 

Summary judgement vs judgment on the pleadings

Simply put; what distinguishes a judgment on the pleadings from a summary judgment is the presence of issues in the Answer to the Complaint. When the Answer fails to tender any issue, that is, if it does not deny the material allegations in the complaint or admits said material allegations of the adverse party’s pleadings by admitting the truthfulness thereof and/or omitting to deal with them at all, a judgment on the pleadings is appropriate.

 

when the Answer specifically denies the material averments of the complaint or asserts affirmative defenses, or in other words raises an issue, a summary judgment is proper, provided that the issue raised is not genuine. “A ‘genuine issue’ means an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is fictitious or contrived or which does not constitute a genuine issue for trial.

 

Now that you know the deference between the two, you can determine your best defenses.

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