OverThis

HELP! Court Tomorrow MSJ and My Oppose MSJ and MTD

Recommended Posts

Hi, Rookie here.... this site is amazing, I've learned so much just since last night... unfortunately, after the fact...

I am being sued by an attorney representing FIA Card Services for an unpaid BOA credit card charged off as of 11/09.

After two court appearances, in which I was the only one in front of the judge, the attorney filed a Motion for Summary Judgement. I started digging through old paperwork, and found three credit agency demands for payment on this account. The 3rd, was a very intimidating and explicitly demanding letter from the attorney now suing me. Her letter said "acting as a debt collector".

"Demand is hereby made upon you for the payment in the amount of $4xxx.xx (PRINCIPAL). Your payment should be made by certified check, cashiers check, or money order paid to the order of:

HER, at HER address."

It occurred to me, that BOA had charged off the acct, and sold it to JDB pool. The attorney (the 3rd collection agency)  tried to get it from me, and failing that, filed suit naming FIA as the plaintiff. She submitted an AFFIDAVIT from an FIA custodian of record. 

To make a long story short, I filed a Motion to Oppose Summarry Judgement, and attached an exparte motion to Strike the Affidavit, and Motion to Dismiss. I completely misunderstood the court clerk, and sent the lawyer the attached motions,(so all 3 can be heard in court at once on 6/27) a day late of the 3 day order. Court clerk said she'll probably know anyway from online court calendar, but I'm thinking it will get continued for my late mailing. The main premise of my motion to oppose and dismiss is alleging that the real plaintiff is the attorney, and that FIA is a third party to the action, but has assisted the atty. 

But my main question, after finding this site, is....... what can I expect in court on 6/27? The attorney has never been in court. 

Over This

 

FIA has an inquiry on my credit report, BOA shows it 'charged off'.

The attorney sent a demand letter for the amount to be paid to HER.

Next thing I get is court summons with her representing FIA.

There is so much distrust, and I know it makes no difference, but the banks got bailed out, I didn't. I feel like this attorney rolls the dice and sends out demands to a hundred people, knowing 90% wont show up in court. I watched 8 people before me, (who werent there) get default judgements against them. Then its my turn, and for the 3rd time, the attorney isn't there. So, I filed the Motion to Oppose the Summary Judgement, etc. Do you think I made the wrong move?

Link to post
Share on other sites

6/26

Attorney has filed an amended supplemental memorandum to support summary judgement. I havent gotten a copy, and court is tomorrow.. SO STRESSED about this. 

Can anyone offer some direction, critique, suggestions ? I had this posted in the Credit Repair forum. Thanks!

Link to post
Share on other sites

Aside from the letter saying they are working as a debt collector, what makes you think the lawyer is the plaintiff? In my experience, all attorneys, who deal with debt collection primarily, are required to have that disclaimer on their correspondence. Because they are essentially the last person attempting to collect on their client's behalf once it gets to the point of needing to file a lawsuit, they are debt collectors.

Further, what does your credit report say about who owns the debt? I know you said it is charged off, but that's an accounting thing, not a guarantee they sold it. If you see BofA/FIA shows a zero balance and then see another business with either the same amount or one really close to it, then chanes are they sold it. But if you see there is still a balance with BofA/FIA, then they likely are the real party in interest (plaintiff) and the attorney is abiding by the law and providing the disclaimer they are acting as debt collectors.

And if I missed something , please point it out and accept my apologies.

Link to post
Share on other sites

It occurred to me, that BOA had charged off the acct, and sold it to JDB pool. The attorney (the 3rd collection agency)  tried to get it from me, and failing that, filed suit naming FIA as the plaintiff. She submitted an AFFIDAVIT from an FIA custodian of record. 

To make a long story short, I filed a Motion to Oppose Summarry Judgement, and attached an exparte motion to Strike the Affidavit, and Motion to Dismiss. I completely misunderstood the court clerk, and sent the lawyer the attached motions,(so all 3 can be heard in court at once on 6/27) a day late of the 3 day order. Court clerk said she'll probably know anyway from online court calendar, but I'm thinking it will get continued for my late mailing. The main premise of my motion to oppose and dismiss is alleging that the real plaintiff is the attorney, and that FIA is a third party to the action, but has assisted the atty. 

 

That's the only premise of your opposition to summary judgment?  What about the affidavit?

Link to post
Share on other sites

A motion (or request) for summary judgment allows plaintiff or defendant to argue to the

court that the undisputed facts in the case require judgment to be entered in favor of the party

A party moving (applying) for summary judgment is attempting to prove to

the judge (by sworn statements and documentary evidence) that there are no material issues of

fact remaining to be tried, and the moving party is entitled to judgment as a matter of law. In

response, a party opposing summary judgment must show that factual questions exist for a judge

or jury to decide. If a trial could result in the jury (or judge in a bench trial) deciding in favor of

the party opposing the motion, then summary judgment should not be granted.

A court will grant a summary judgment motion only if it finds (1) that there are no

genuine issues of material facts to be resolved at trial and (2) that, when the law is applied to the

undisputed facts, one party is clearly entitled to judgment. A “genuine issue of material fact”

means that a critical fact in the case is in dispute. For example, in a case to collect money owed

on a contract, if one party is claiming the money hasn’t been paid, but the other party is claiming

that it has (and assuming both parties can support their positions with some evidence), whether

the money has or has not been paid is a genuine issue of material fact that would prevent the

court from granting summary judgment.

To establish the facts, the party moving for summary judgment must submit a statement

of undisputed facts to the court. The party can refer to any evidence that the court could consider

if there were to be a trial, such as depositions, admissions, and documents received during

discovery. The party opposing summary judgment must then introduce evidence that contradicts

the moving party’s version of the facts. In deciding whether to grant or deny the motion, the

court will consider all materials in the light most favorable to the party opposing the summary

judgment motion. However, the party opposing the motion bears the burden to “do more than simply show that

there is some metaphysical doubt” as to the operative facts in order to avoid summary judgment being entered

in the moving party’s favor. The nonmoving party “must, by affidavit or

otherwise, set forth specific facts demonstrating the existence of a genuine issue

in the moving party’s favor. The nonmoving party “must, by affidavit or

otherwise, set forth specific facts demonstrating the existence of a genuine issue

doubt” as to the operative facts in order to avoid summary judgment being entered

in the moving party’s favor. The nonmoving party “must, by affidavit or

otherwise, set forth specific facts demonstrating the existence of a genuine issue for trial or have summary

judgment entered against him.” The nonmoving party “is not entitled to build a case on the gossamer threads of

whimsy, speculation,and conjecture.”The opposing party’s opposition must also contain a memorandum of law that

explains to the court Why summary judgment shouldn’t be granted. The court will likely require oral argument

on the motion so the judge can question the lawyers or parties on issues in the case.

If you’re opposing a summary judgment motion that has been filed against you, you should familiarize yourself with rule 56.

http://www.courts.state.hi.us/docs/court_rules/rules/hrcp.htm#Rule 56

http://www.courts.state.hi.us/docs/court_rules/rules/hrcp.htm HAWAI‘I RULES OF CIVIL PROCEDURE

Rule 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY.

(a) Real party in interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in its own name without joining with it the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Link to post
Share on other sites

Thank you for the replies, and my apology for the late response. I received a supplemental memorandum in support of Plaintiffs motion for Summary Judgement today in the mail (hearing is tomorrow) , and the attorney for FIA speaks to the above references you have each made, and defense of the Custodians' Affidavit. In haste and ignorance, I concede you are all correct, and the attorney is attesting to the accuracy of records available to the custodian.

 

Her main argument being 'Banks and credit card issuers have a very reliable electronic record retention systems because such entities are subject to extensive government regulation. These government regulations are also the reason why federally insured banks always sell their bad debts. After the defaulted debt is written off to zero, the card issuer must sell the debt in order to realize a small margin of profit. The companies that buy the charged off debt receive electronic records from the assignor-bank, and therefore, the assignee's electronic records are the exact equivalent of the banks' electronic records'.

 

However, I do maintain that the Affidavit from the FIA record custodian, while rightfully submitted for the 'correct plaintiff', is not accurately proven by 2 bank statements, both showing a different Total Balance Due, from the amount I'm being sued for. I would think if their record keeping is so reliable, there would be an explanation for the differing amounts.

And, isn't she saying that the debt was sold off, and charged off by the bank? And If the debt was sold off, then who owns it?

 

I hope that someone is still awake, since we are in different time zones. I've basically conceded at this point, and expect the judge to rule in favor of the Plaintiff. But I feel like I'm missing something in this story. 

 

And if I am to lose the case, where do I stand as far as bankruptcy and discharging this debt? Not that it is such a large amount, but because although I hate to admit it, it was from a time where job layoffs in California, and 6 unsuccessful attempts to find employment led to another default on a larger debt. ($10k)

 

Any thoughts on this are welcome and sincerely appreciated. I feel kind of stupid about the whole thing now... OverThis

Link to post
Share on other sites

(^ 6 unsuccessful months of job hunting...... ) 

I'm wondering how quickly they may freeze my bank account since I have to pay rent soon.

Thanks everyone, I sure feel like an idiot bringing you all into this not knowing well enough what I was doing...

Link to post
Share on other sites

First off, we all started somewhere.

My biggest fight was against Crap1, where we battled for a year. It wasn't easy but beating them felt amazing! Don't give up.

Finally, her argument seems to definetly imply a third party buyer. So I'm also confused on who the real party in interest. I wonder if you can object to her amendment for it being untimely barring your ability to properly respond? Read your rules and determine timing for filing motions/amendments to motions to see if you can object.

Link to post
Share on other sites

Ah, glad you bet them, I imagine they will be after me next.

Yes, although I was wrong, it seems what she's saying makes

everything more unclear than it was. The custodian maintains

perfectly accurate records which is what the buyer of said records

can expect. WHAT buyer?!? If banks routinely sell the debt, and FIA is

assuring the records are accurate for the new owner, then who's the owner.?!

I plan to go in with what I've got and will be surprised if she's there. I wonder if

the question of a third party buyer somewhere would be enough to satisfy my

Motion to dismiss? I just feel like there's something not right going on. Anyway, thanks

for making me feel a little better and a little less dumb in all this. We're all rookies

til we're not anymore, I guess. Thanks so much!!!!

Link to post
Share on other sites

She is the one implying a different owner than the plaintiff, and the onus is on you to ensure that's brought up. You HAVE to make it known to the judge that there exists a triable issue, and, a question to who the real party in interest is just happens to be a significant one I'm sure. First I would bring up the fact that they did their amendment too late and you were not given the proper amount of time to handle it. Then, if that's no enough (you need to prepare for the judge to not care whatsoever) bring up how it doesn't even seem that counsel knows who the real party in interest is as they are using interchangeable terms. It can't possibly be both an original creditor and an assignee of the original creditor!

Expect her, or someone in her stead, to be there. Also, records need to be authenticated by the custodian and you have every right to question them. (I subpoenaed their witness, who was, surprise, a no-show) How are you supposed to know if the records were authenticated by the right person based on their confusion on actual plaintiff? I mean, either way it has to be an employee of the OC but I'd certainly question it.

Keep us posted. And good luck!

Link to post
Share on other sites

Yes. I have most of those points written down to present to the judge. And so appreciate your points I wasn't sure how to say. I wish I knew how the proceeding will go, as she's never been in court when I have. I will let you know how it goes, I hope I can stay focused and not forget anything. It was easier having time to type out the form even though I could've done better. I don't know if or when I can object, the code is lengthy, and so far courtroom procedures don't flow like they describe in all the sites I've checked out. It will be interesting. Any thoughts on BK7 if I lose? Unfortunately, I have been getting letters from the other cc I stopped paying when I lost my job. Just hoping they don't garnish my wages. Thanks again I so appreciate your help, it calmed me down a bit.

Regards

Link to post
Share on other sites

Attorney has filed an amended supplemental memorandum to support summary judgment.

See if you can get leave of court to respond to the supplemental memorandum.

Link to post
Share on other sites

Should I bring up her statement "

 

Banks and credit card issuers have a very reliable electronic record retention systems because such entities are subject to extensive government regulation. These government regulations are also the reason why federally insured banks always sell their bad debts. After the defaulted debt is written off to zero, the card issuer must sell the debt in order to realize a small margin of profit. The companies that buy the charged off debt receive electronic records from the assignor-bank, and therefore, the assignee's electronic records are the exact equivalent of the banks' electronic records'.

Before requesting a continuance or not mention it before asking so she won't realize yet why I'm asking for it?

Link to post
Share on other sites
Guest
This topic is now closed to further replies.