dodgetruxman

Summary judgent filed against me after Oregon arbitration appeal... now what!

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Ok so I am new to the forums but have been reading them for some time now to help me with my case so here it goes.

 

I was sued by DNG Daniel N. Gordon P.C. out of Eugene on behalf of Portfolio Recovery Associates, for just under 2,500 for an old Bank of America Account dated from about 4 years ago.

 

I file an answer with the court.

 

Case got sent to Oregon mandatory Arbitration

 

DNG sent me a Request for admissions and productions

 

I responded within the time frame (with help from these forums), and the only thing I admitted in this whole thing was my ss# and that the stated account number was part of an account number I used to have.

 

I had my day in Arbitration and I lost, Arbitrator didn't care what I had to say.

 

I appealed the decision and filed with the court along with the fee.

 

About a month passed, and now on Friday I received from DNG a packet with their copies of a Request for Summary Judgment they just filed with the court. In it they included all of my Original answer and my response to their request for admissions along with billing statements from Bank of America ( The billing statements are incomplete with months missing). Can they even legally include all of this? I thought once I filled my appeal and request for a trial PRO SE that it was a clean fresh start and everything starts over until it goes to trial or gets dropped.

 

Any help on how to respond to this or advise is appreciated greatly. I need to get my ducks in a row and end this nightmare!

 

Sorry if im missing info that you need, I am new to the forum and will answer any of your question. Thanks!

 

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I don't know the ins and outs of the Oregon court system but what you are thinking about as a clean slate is an appeal by de novo.   Those are pretty rare and sometimes the full appeal might not be a de novo review.   So look for that term in the court.  That is at least a starting point for you.  

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This is how my appeal was worded minus the beginning stuff with plaintiff defend case legal stuff.

 

 

THE ARBITRATION AWARD IN THE ABOVE CAPTIONED CASE WAS FILED ON THE 25TH DAY OF FEBUARY, 2013. A NEW TRIAL FOR ALL PARTIES ON ALL ISSUES IS HEREBY REQUESTED BY ___________________, DEFENDANT,

THIS APPEAL IS FILED WITHIN 20 DAYS OF FILING OF THE AWARD AS PROVIDED BY ORS 36.425 (2) (a), AND THE TIME PROVIDED BY ORCP 10C, IF APPLICABLE, AND IS ACCOMPANIED BY THE REQUIRED FIRST DAY TRIAL FEE AND DEPOSIT.

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Looks good as a start you probably need to brief the court on your position and list you authorities which you base your appeal.   For example, what rule of procedure you are relying on for your appeal and any other authority that supports the appeal.  I'm not talking about arguing your whole case, just an outline of the issues for the appeal and why you are entitled to what you are asking for. 

 

Another example would be something like, per Oregon rule of procedure 555.5555 the Defendant is appealing from whatever court to this court.   You have it in your appeal where it says, if applicable.   Show the court why it's applicable what you're asking for.  

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I am not from Oregon either, so you will need to do some research or hope someone from Oregon chimes in.

Given that SJ is beaten by "creating a triable issue of material fact". SJ is generally done on pleadings and is not a full blown trial. It is presented via pleadings from both sides. Plaintiff has presented it case now you have to file pleadings in opposition.

You should be able to use their filing as a guide whatever they have filed you will need to file a similar document.

Example- Plaintiffs Motion for SJ, pleading is title Defendants Opposition to Plaintiffs MSJ

They may have included something called: Plaintiffs Undisputed Facts, you will file Defendants Oppostion to Undisputed Facts.

You need to poke holes in what they have filed, create as many triable issues of material facts as you can. You will need to file and affidavit in support of your oppostion, just as they should have an affidavitt in support.

Starting to make sense, lots of paper, tough to answer these, but can be done. Hard to offer help without knowing the Undisputed facts they are claiming....

Hope this helps you get started....

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I will gather there paper work and write up a summary of what they are saying. yes they did include an affidavit with it. From my understanding a Summary Judgment is there way of asking the court to grant them judgment and not go to trial, they think they have all the evidence they need. This DNG really is a persistent pain they wont stop at all, and I am going to go all the way with this if it gets to that point and I think it will unfortunately.

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You're basically on the right path about summary judgement.   Summary judgement is where the moving party (in this case them, the Plaintiff) basically says, Judge here are the undisputed facts where reasonable minds would not differ and this is so clear cut that a trial is not needed.  

 

Where most people get tripped up is they try to win their case in their summary judgement reply.   If you have a strong defense that can be fine.   Generally speaking, in cases like this, that is not the case.   So what you want to do is argue there are material facts in question and a trial is needed.   You don't have to say I would win at trial, you just have to show there is a need for a trial. 

 

You want to argue the facts are not so clear cut and a more formal and full blown trial is needed to get to the bottom of this.  Pick at their case and raise legit disputes, don't concede anything and dispute and fight every step of the way, but you can't just say I dispute and leave it at that.   You have to explain why, and I would recommend part of that explanation would require live witness testimony and/or some evidence that needs a trier of the facts (judge  or jury ) to hear all sides and get more details. 

 

You basically have to show the court this is not a slam dunk and let's have a trail.   And again, that does not require that you show the court you can win your case.   You simply need to show the court there needs to be a trial and if 10 people looked at the evidence as it's presented in the motion for SJ that there would be several different conclusions drawn after examining that evidence, and those conclusions need a follow up, a trial. 

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Guest usctrojanalum

You requested basically what is the equivalent of a trial de novo. when the court system has mandatory arbitration, the loser can often pay a fee and have the case decided by a judge not an arbitrator. once you file that de novo, you are right you get a clean state and start over as if you were in regular court. and this is what happens in regular court, plaintiffs typically try to win on summary judgment motions. you just what to present your facts that there is an issue that only a trial can decide. you do not have to show them you are going to win.

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I have attached a template for a Michigan example of Opposition to Motion for Summary Judgment.

 

Also I fought a battle with DNGPC and lost in the Mandatory Arbitration "Dress Rehearsal"  which is an automatic win for the Plaintiff here in Oregon. It's a kangaroo court and the attorneys close ranks. You can't win unless you are out of the SOL. Period. There is no attorneys that will even bother to represent you or any debtor for Oregon Arbitration. It's just cost prohibitive. 

 

Now that you are in appeal and dealing with a real judge in a real court most attorneys will represent you. I would start there and most will take your case on contingency. 

 

I filed a MSJ against Midland/DNGPC and it was denied because the Arbitrator allowed their discovery to be filed 3 weeks late. I have a copy of their response to my Motion for Summary Judgment and you might find that useful to reply to theirs. I've attached it also. It only takes one issue of triable fact to defeat their motion and usually you can come up with four or five just to be sure.

 

HP

Rebuttal to Motion for Summary Judgement.pdf

Opposition to Summary Judgement NJ.pdf

JDB Response to Defendants MSJ_Huey Pilot.doc

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Thanks HP! how did your battle with DNG turn out. This info helps a lot, I need to get crackin and get this sent off, as I believe I only have 14 days to respond to SJ.

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I lost in arbitration. I got a motion for dismissal without prejudice immediately after I appeal.  DNGPC or Midland didn't want to continue the expense in appeal. They have to fly witnesses in and go through all the expense and time to prepare dozens of documents all over again. 

 

HP

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I Think after I file my response to their MSJ I will file for a Motion for dismissal without Prejudice, If I can Im not sure if that can be files after a MSJ. does anyone know? these rules and laws rly can get complicated.

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Dismissals are usually procedural, not argumentative. They are also almost never granted without a rock solid reason. If their MSJ is denied, the next step would probably be a trial or arbitration, depends on your court rules.

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR LANE COUNTY

 

PORTFOLIO RECOVERY ASSOCIATES, LLC,

                  Plaintiff,

vs.

me,

                  Defendant

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Case No.:

DEFENDANTS OPPOSITION TO PAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

 



     Comes now the Defendant, pro-se in response to Plaintiff’s Motion for Summary judgment. Hereby moves the court to deny Plaintiff’s Motion for Summary Judgment. Plaintiff is not entitled to summary judgment as a matter of law.

     In the opinion of Defendant, this opposition is well founded in law,and is not interposed for the purpose of delay.


1.
POINTS AND AUTHORITIES
     In support of its motion, Defendant relies upon ORCP 47. Defendant’s Memorandum in Support of motion to deny Plaintiff’s Summary judgment, the declaration of, filed concurrently here within, and the pleadings and papers on file in this case.

 

2.
OPPOSITION OF SUMMARY JUDGEMENT
     Pursuant to ORCP 47, Summary judgment is inappropriate where disputed issue of fact exists as to diligence in discovery of fraud so as to commence limitations period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977). I Defendant, Deny the alleged debt, which creates a genuine issue of material fact.

 

a. Defendant’s Answer did not admit key allegations of the Complaint.

b. Defendant did not admit additional allegations through Discovery.

c. There is no Substantial admissible evidence against Defendant.

     Plaintiff’s documentary evidence in this matter consists of random account billing statements, in which do not show account from zero balance to close. Furthermore there is no contract between Plaintiff and defendant.

3.
FACTS
     The Defendant still must complete discovery. Per Oregon Rule 36. "Generally, summary disposition is premature if granted before discovery on a disputed fact issue.”  Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009).

4.
ARGUMENT
Plaintiff argues that Defendant’s answer does not raise a genuine issue of material fact, where as in fact the Plaintiff’s summons failed to put forth any material facts warranting a Judgment.

                                           

"Summary judgment is appropriate only if the pleadings and designated materials considered by the Court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

     "There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).
     "The moving party bears the initial burden of showing that there are no genuine issues of material fact to be decided at trial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548
     This plaintiff-debt buyer’s summary Judgment motion is as deficient as in Davis v. County of Clackamas, 134 P. 3d 1090 - Or: Court of Appeals 2006. Held before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges affirm that "Subject to the provisions of ORS 40.415 [regarding expert testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness."
 

     There is nothing that suggests the certifying attorney had any firsthand knowledge concerning the exhibit or facts contained therein. The documents were at best hearsay. One who has no knowledge of a fact except for what he has read or for what another has told him cannot provide evidence to support a favorable disposition of a summary Judgment. See Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (1994), and the cases cited therein.
Sellers at 428-29
     Thus, the opposition here fails to submit any admissible evidence.
Instead, Plaintiff raises specious arguments which misconstrue the purpose of the Summary Judgment motion. For the reasons set forth in Defendant’s Motion Plaintiff, bearing the burden of persuasion, could have defeated this motion only by showing there is admissible evidence.
 

     Default Judgment also fails to establish a debt buyer’s prima facie case.
     “A creditor must prove more than merely the total amount remaining unpaid. Instead, as required to obtain a default Judgment by Rule 6:6-2(a), the creditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of the billing cycle, and the new balance.”

5.
CONCLUSION
     Plaintiff’s submission does not satisfy the standard and, therefore, is insufficient in its motion.
For the foregoing reasons and those set forth in the Defendant’s Motion, Defendant respectfully requests that the Court grant him this opposition to Plaintiffs Summary Judgment and also files a Motion for dismissal with prejudice.

 

 

The foregoing with the attached papers, constitute the total response of this Motion Defendant, and the undersigned certifies to the filing of the original thereof and service upon the Plaintiff of a true, correct and complete copy thereof, including all attachments.

 

 

I hereby certify, under penalties for perjury, that the foregoing answers are true, correct and complete.

 

________________________________________

                           Signature            

 

________________________________________

                                                 Name Typed or Printed 

 

________________________________________

                                                     Capacity in which signing                                    

 

SUBSCRIBED AND SWORN to before me on April 16, 2013

 

 

________________________________________                                   

                                              Notary Public for Oregon                                                                                               My Commission Expires:______________

 

                                                                                               

 

        

 

Lane County Circuit Court

CERTIFICATE OF MAILING

 

On April 16, 2013, I caused to be served the foregoing documents described as DEFFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT  via Certified Mail Return Receipt on the following:

 

Daniel N. Gordon, PC

Attorneys and Counselors at Law

4023 W 1st Ave / P.O Box 22338

Eugene, OR 97402

 

I declare under penalty of perjury under the laws of the State of Oregon that the above is true and correct.

 

Dated APRIL 16, 2013

 

  •  

me (Defendant)

 

The foregoing is an original document.

 

  •  

me (Defendant)

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If you can scan it into a PDF file, you could then copy that into a file to paste here or place it as a PDF file. Either way.

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If you haven't filed your opposition to summary judgment maybe you can post for edit what you have and we can help review/edit it for you. Usually you only have a few days to respond and you want to do it correctly or you could receive a judgment against you.

 

HP

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Now that I have filed my response, DNG has filed a response to my response. This is a major headache! The hearing is on the 6th on Monday. Im not sure there is anything I can do besides wait and see if it goes to trial or the Judge grants their MSJ

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