Jump to content

How bad did I screw up? MSJ Opposition

Recommended Posts

So I forgot to answer some interrogatories during the holidays. I got distracted.


I did answer the complaint and denied everything though.


They have (naturally) filed a MSJ. I need to fight it if I can.


Can I move for a motion to extend the time period on the Interrogatories? Or Can I answer them with my motion against SJ?


I thought I had them dead to rights until I realized I didn't file that answer.


The other thing that could impact this, is that I'm filing bankruptcy next month. I've already met with the lawyer and am in the process of compiling his requested documents. I have not retained him yet though nor have I mentioned this case to him. I can barely afford to file the BK.


During my original answer I raised the following affirmative defenses...


  • The Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The Plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct and agreed to in the alleged contract, and that the Defendant has been lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements, and purchase receipts to prove the amount and validity of the alleged debt.
  • Plaintiff, as the Defendant is informed and believes, lacks the legal standing to bring and maintain this action.
  • The Complaint fails to state a claim upon which relief may be granted.



Here is what I've come up with so far, I really don't know where to go from here.

Comes now the Defendant, XXXXXXXXXXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Plaintiff’s Motion For Summary Judgment.
 1. Summary judgment is appropriate when the court finds that the following factors have
been established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed in his or her favor. [Civ.R. 56. See Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; Harless v. Willis Day

Warehousing Co. (1978), 54 Ohio St.2d 64, 66; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411.]

2. The burden of showing that no genuine issue of material fact exists falls upon the
party requesting summary judgment.[Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115.]
The moving party bears this burden even for issues that the nonmoving party may have the burden of proof at trial.[Morehead v. Conley, 75 Ohio App.3d at 413.}
3. Defendant received the Plaintiff's Summons answered the request within the time allowed by law. In that answer the Defendant raised several affirmative defenses. In addition the Defendant insisted that the plaintiff come up with the contract, account statements, and purchase receipts to prove the amount and validity of the alleged debt.
4. Documents requested from plaintiff included any documentation of relationship between plaintiff, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented. The appeals court overturned the default summary judgement in Spears vs. Brennan because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g (B) Validation of Debts.[Spears vs. Brennan Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509]
5. Because the Plaintiff has failed to provide any contract or an agreement bearing the signature of the Defendant that would establish the agreed upon terms there is no account to dispute.
6. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 
WHEREFORE, Defendant, XXXXXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion for Summary Judgment and prays for Dismissal of the complaint by the Plaintiff. 
Any advice?
Thanks in advance!



Link to comment
Share on other sites

You have a few problems:

1. Any interrogatories not answered will be deamed admitted to. Missing this was HUGE!

2. You denial in your answer is not enough to overcome a SJ. You will need to present evidence to contest what the plaintiff is claiming. This can be done in an affidavit.

3. Your response needs to present that evidence in the context of the objection. Mearly denying knowledge is not enough.

Search the forum for other threads on Objection to Motion for Summary Judgement.

Link to comment
Share on other sites

All moot, filing BK in a few weeks.  I just don't get it I guess.   Nothing wrong with filing BK if you need it, but why get in fight mode and then file BK?   It makes no sense to fight this stuff if you are filing BK in a few weeks.  If the court worked in world record time, it would be 90 days before any judgement and/or garnishment/and/or levy would affect sombody, and that is if world record time happens. 


The BK white flag has been thrown up so pretty much it does not matter what happens in this case, it's getting nuked no matter what. 

Link to comment
Share on other sites

  • 3 weeks later...
This topic is now closed to further replies.

  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.