Please help with drafting a response to Daniel Gordon Motion For Summary Judgement date set July 29

[mkhal]

I know there are many templates on these forums for countering motions for summary judgement but I wanted to make sure my response was catered to my exact motion in Washington state.  Please help me draft it here.  I have a hearing in ten days and they sent me the motion stuff just at the tenth day.  Just to get people up to date, got the summons, and the plaintiff discovery responded..denied all, sent my first discovery...got half a$$ stuff back no original signed contract agreement...so now they have sent me the motion for summary judgment..

 

Here is there motion:

 

Comes now the plaintiff, by and through its attorney, and moves the court for summary judgement on Plaintiffs' claim against the defendant.

 

 

In the opinion of counsel this motion is well founded in law and not interposed for the purpose of delay.  This motion is based on the affadavit of Mic***l R***in which is filed herewith and the Points and Authorities subjoined below.

 

 

POINTS AND AUTHORITIES

 

A party is entitled to summary judgement:

 

"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fat and that the moving party is entitled judgment as a matter of law."

CRLJ 56©

 

the Instant case arises out of breach of contract action wherein Palintiff alleges Defendant defaulted on a credit card debt and is now seeking to collect thereone. Defendant filed an Answer wherein he presents a blanket denial to the allegations set forth in the Plaintiffs Complaint.

 

Additionally, Plaintiff provided the Affadavit of Mic***el Ru**n attesting to the amount due and owing as claimed by Plaintiff. Attached to Mr. R***n's affidavit are the Monthly Billing Statements, the bill of Sale documents, and the Credit Card Agreement, hereby incorporated as exhibits 1, 2, and 3 respectively. 

 

Based on the forgoing, there is no genuine issue as to any material fact and Plaintiff is entitled to a summary of judgement as a matter of law.

 

 

                                                                                                                                                                                                                                                                   

 

 

 

 

What they attached:

 

They attached some bogus affadavit from Florida...I have used huey pilots template to craft a counter affadavit.

 

A bill of Sale which I have attached so that one may see.  (Still haven't received any help in crafting a response)

 

A bunch of statements.

 

 

 

Any help would be deeply appreciated.  Thanks everyone. 

 

 

 

 

 

 

NOTE: Here is the basics for those not familiar with my other thread.

 

 

So I have been served by Daniel Gordon on behalf of Midland Funding for some Wamu account years old for an absurd amount that is like 3 times more than the actual credit card ever was.  I filed my response that I denied this debt was mine and demand validation.  They sent me and the court some photocopied bank statements showing default payments for maybe five months followed by an affadivt from Florida saying some **** like I owed Chase 1600 dollars ( The same as the last produced statement) before the account was sold to Midland.

 

So as I prepare my defense, what do I do about these photocopied statements and the affadavit?  Should I argue heresay? 

 

 

Here is the lowdown, thanks.

 

1. Who is the named plaintiff in the suit? Midland Funding LLC

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

Daniel Gordon 
3. How much are you being sued for?

 

2600
4. Who is the original creditor? (if not the Plaintiff)
Wamu  then chase??
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)
mailman in person
7. Was the service legal as required by your state? 
yea
Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
never had contact with them
9. What state and county do you live in?
Snohomish county, WA
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
2009
11. What is the SOL on the debt? To find out: 
6 years in washington state??
Statute of Limitations on Debts

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).
I responded denying the debt, and demanded they provide me evidence I broke a contract.

 

The responded by sending a bunch of statements saying I owe xx amount of dollars.

 

Sent request for admittance and request for production to both which I have replied in denying everything using the templates provided here to answer the questions.

 

 

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.

Too late

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? 

 

30 days, and I responded to the claims.  It was pretty much the standard crap, customer got card from wamu xxxx blah used it to buy stuff, broke terms and conditions etc...it had 15 admittances/interrogatories 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

 

They sent and affadavit from florida saying I owed 1600 dollars on the account when it was sold to midland funding. And sent like 5 photocopies of statements showing non payment from chase bank.

17. Read this article: 

Bill of Sale Scan0001.pdf

[Huey Pilot]

Here is an opposition from FlyerFan from years ago:

 

Opposition to Motion for Summary Judgment

 

In an MSJ you only need one genuine issue of material fact. Just one to get to trial. No personal knowledge is huge. Here is what I used and I won my MSJ. 

 

Feel free to tear it apart but it was a winner:

 

Use the same header (plaintiff vs you , case # and title Opposition to MSJ)

 

Your opposition should match their paragraphs allegations so don't follow mine exactly. Just refute their paragraph with your same numbered paragraph.

 

I, Flyerfan, presents to this Court the following opposition to motion for summary judgment filed by the Plaintiff.

1. The Plaintiff in the above referenced case has filed a motion for Summary Judgment which was not signed. In the motion, Plaintiff states that there are no issues in dispute over material fact. There is now and has been a dispute to all alleged “facts” maintained by the Plaintiff as recorded in the defendant’s Answer, Response to Interrogatories and Sworn Denial.

2. The defendant has submitted to Plaintiff and to this Court an Answer to the complaint denying the allegations submitted by the Plaintiff. The defendant has also filed with this Court, and served to the Plaintiff, a Sworn Denial of Debt which the Plaintiff failed to reference in the Motion for Summary Judgment which is a clear dispute to the alleged debt and the “bill of sale” which does not specify the alleged account number and should be addressed at trial. Plaintiff contends the “bill of sale” clearly establishes Plaintiff’s standing to sue in this action but it nowhere states the account number in question and is therefore conclusory.

3. Plaintiff has failed to attach the admissible, documentary evidence required by Delaware Civil Rules of Procedure 56(e) which states that “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” This lack of foundation makes the affidavits of Affiant 1, Affiant 2 and Affiant 3 submitted by the Plaintiff hearsay which does not qualify under the business exception to hearsay as the business records to properly support the allegations as a matter of law are not attached and this needs to be addressed at trial.

4. Both parties have served discovery demands in this matter. The Plaintiff’s motion for summary judgment was delivered to me (1) day before the Plaintiff’s response to the defendant’s request for the production of documents was delivered. Plaintiff objected to all requests which the defendant requires to prove the Plaintiff’s lack of standing. The Plaintiff claims these necessary documents are in the custody of the original creditor and not the party claiming standing in this case. That fact is suspicious and needs to be addressed at trial.

5. The Plaintiff has not sustained its prima facie burden on this motion. Simply claiming standing is not sufficient for a decision by this Court to grant a motion for summary judgment. Proof of standing is required by law and must be proven through documentary evidence. The documents that are supplied with the affidavits of Affiant 1, Affiant 2 and Affiant 3 do not show documentary evidence of the alleged specific account in regard to the sale from Chase to Midland Funding. This key piece of information, which is critical to the Plaintiff’s standing in this case, is lacking and necessary for a summary judgment for the Plaintiff as a matter of law. The “bill of sale” does not prove standing in this case as it is not specific to the account in question. An affidavit cannot create a business record where on does not exist. If the affiants claim that an account was sold under a specific bill of sale, the record of the sale specifically stating the account number must be attached as required by Delaware Civil Rules of Procedure 56(e).

6. Rule 56© is quoted but only applies if the Plaintiff has proven that there are no issues of a material fact regarding standing to sue, that the debt is valid and that the amounts are correct. The defendant has filed a Sworn Denial with the Court denying these facts. The affidavits purporting these claims by the Plaintiff are faulty and lacking the necessary documentary evidence and foundation and are therefore hearsay and do not qualify under the business records exemption to hearsay. Because Plaintiff’s moving papers are insufficient to establish entitlement to judgment as a matter of law, the burden of production has not shifted to Defendant to raise an issue of fact, and therefore the motion simply must be denied.

7. Every document the Plaintiff has submitted has not been supported by fact and is conclusory. Affidavits submitted by the Plaintiff make claims without admissible documentary evidence, with redacted information and a lack of foundation. Under the “best evidence rule,” when a party seeks to prove the contents of a writing or recording or photograph, the party offering the evidence must produce the original writing, recording or photograph unless otherwise provided by statute or under the rules of evidence. The purpose of the best evidence rule is to ensure that the most accurate evidence practicable is presented in those situations where informed judgment has concluded that precision is essential. Secondary evidence is excluded under this rule not because it is necessarily inferior in probative value, but because it presupposes that direct primary evidence is being held back. I believe the Plaintiff has not produced the “best evidence” and has not proven standing in this case and the motion for summary judgment must be denied.

Conclusion
The Plaintiff received an affidavit of sworn denial from the defendant on {DATE}. This affirmed statement is in direct opposition to the affidavits submitted by the Plaintiff yet the Plaintiff is stating that there remains no genuine issue of material fact. The debt has been denied, if determined by this Court that the debt is valid, the amount has been denied and standing has been denied and absolutely no admissible documentary evidence has been submitted by the Plaintiff to prove these allegations. Under the spirit of the Administrative Directive 2011-1, this Court requires the Plaintiff to submit documentary evidence and not simply statements made without the necessary documents and foundation to prove the allegations made in said statements.
The Plaintiff’s motion is dated {week prior to ROGS} at the bottom of its motion making it clear that it was written prior to the filing of the defendant’s response to interrogatories and sworn denial and is an attempt by the Plaintiff at shifting the burden of proof to the defendant in this case.
The defendant respectfully requests that this Court deny the Plaintiff’s motion for summary judgment and strike the affidavits of Affiant 1, Affiant 2 and Affiant 3, together with such other and further relief the Court may find appropriate.

Respectfully submitted,
Flyerfan

 

 

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Here is another one with focus on the affidavit:

 

Opposition to MSJ (Focus on affidavit)

 

I know how frustrating this is, however, the key to defeating/getting denied a MSJ is to show there is in existence of trial-able material facts. One is all that is needed but it's a good idea to have several. A counter affidavit is a good idea (although not necessary) and becomes a piece of evidence for you. It also preserves your right to argue and defend your objection to plaintiff's affidavit's reliability and trustworthiness (which is paramount).

I sent you counter affidavit earlier that worked for me and I when didn't have time to get it notarized so I used a declaration. (Sworn Statement Subject to Purgery)

Here is an example of a MSJ answer Countering Affidavit from Indiana. You could also use the language that applies in your objection to plaintiff's affidavit.

Cut and paste the parts that pertain to your MSJ in the appropriate order and use the same general boiler plate and apply your Texas Rules for Proceedure. I doubt you will have to change much JDB lawyers are not very original.

MATERIAL ISSUES OF FACT - AFFIDAVIT OF SALE

I. Plaintiff Does Not Establish It’s Standing In This Matter.

The standing doctrine of modern jurisprudence embraces several judicially self-imposed limits on the exercise of jurisdiction, such as the general prohibition on a litigants raising of another persons legal rights. A lack of standing renders the litigation a nullity, subject to dismissal. An assignee has the burden to prove the assignment; an assignee must tender proof of assignment of a particular account or, if there was an oral assignment, evidence of consideration paid and delivery of the assignment. Plaintiffs pleadings do not meet any of these admonitions.

submitting a “sworn” affidavit to the Court alleging certain facts. However, said affidavit fails to meet even the basic mandates for admissibility as evidence. Rule 56 of the Indiana Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit”.

plaintiffs affidavit fails to meet the requirements of the very Rule that plaintiff invokes to seek judgment, plaintiff has failed to bring forth any evidence warranting the court to rule in its favor.

Plaintiff has submitted into evidence an “Affidavit Of Sale Of Account By Original Creditor” in which the Affiant, XXXX, makes reference to “a pool of charged-off accounts.” The affidavit does not specify the Defendant, nor the Defendant’s alleged original account number with alleged original creditor, nor reference in any way any other document which could be associated with the Defendant. These are in fact generic documents without specificity that could apply to any defendant. 

The Plaintiff's reliance upon the documents it submits is insufficient to make out a prima facie case entitling the Plaintiff to summary judgment. Simply annexing documents to the moving papers, without a proper evidentiary foundation, the “Affidavit Of Sale” is therefore conclusory, and should be stricken from evidence in the above action. Where a statement contained in an affidavit is merely conclusory, the trial court should disregard it Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990).

II. Plaintiff Fails To Lay a Proper Foundation to Admit Records of a Third Party

Plaintiff alleges that the Defendant owes XXXX to Midland Funding LLC as an “assignee” to OC. Plaintiff asserts that it is the successor-in-interest or assignee of OC. In her answer, defendant asserts that she does not owe any money to OC, and further that Defendant does not owe any money to Midland Funding LLC.

In the original complaint, Plaintiff relies exclusively on an affidavit executed by XXXX who identifies herself as an employee of Midland Credit Management, Inc (“MCM”) as “servicing agent” for the Plaintiff, and as such, she claims to be qualified to make statements on behalf of the plaintiff. Ms. XXXX claims familiarity with the recordkeeping practices of MCM, and has “reviewed records kept in the normal course of MCM’s business.” She then annexes information and discusses or references other documents. 

However, Ms. XXX does not advance any documents admissible as evidence. Moreover, Ms. XXX does not discuss any documents produced by the plaintiff, but rather she annexes and discusses documents apparently originated by the alleged assignor, OC.



Ms. XXXX affidavit as a Midland Credit Management employee is not adequate to establish any of these facts. Rather, when the text of the affidavit is compared with the Plaintiff’s attachments, it is apparent that the affidavit is merely a boilerplate recitation unconnected to the underlying documents. As such, the affidavit lacks trustworthiness.

Defendant states that the Plaintiff’s affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, OC. At no time was the affiant nor any of the Plaintiff’s employees present to witness any purported acts or creation of the records of transactions and communications occurring between the Defendant and OC; As such, the affidavit of XXX falls under the hearsay rule In. R.E. 802 and is inadmissible as evidence.

Defendant further states that the affidavit is not subject to the hearsay business records exemption In R.E. 803(6) because it was not made at or near the time of the purported acts or events, and ; the information contained in the document is merely an accumulation of hearsay, and; upon information and belief, the creator of the document in Plaintiff’s affidavit is not currently and has never been employed with OC and therefore cannot have personal knowledge of how OC’s records were prepared and maintained and; is unqualified to testify as to the truth of the information contained in Plaintiff’s affidavit

“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

Indiana courts applying Indiana Rule 803(6) have held that the person who records the information in the regular course of business must also have personal knowledge of the information recorded in order to make it reliable. D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.Ct.App.1995) (the event recorded must have been within the personal knowledge of someone acting in the course of regularly conducted business activity). 

Defendant further claims that the underlying data used for the summary compilation of Plaintiff's Affidavit of the alleged account were not records kept in the course of regular business by Midland Funding LLC, but were records kept by OC, who is not a party to this suit. Wilson v. Jenga Corp., 490 N.E. 2d 375, 377 (Ind. Ct. App. 1986) (a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge to ensure reliability). There is no record of who compiled the underlying data specifically, therefore no way to challenge and cross-examine the accuracy of this data in the course of a trial.

While Ms. XXXX may very well be Midland Credit Management’s custodian of records, the mere acceptance or incorporation of electronically transferred data from OC info Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of R.E. 803(6); hence the need for In R.E 902(9). The source of information or the method or circumstances of preparation indicate a lack of trustworthiness and reliability.

As Plaintiff has not advanced any factual basis or evidence that the Court is obliged to consider in support of its complaint, the Defendant asks they Court to deny the Plaintiff’s Motion for Summary Judgment. Further, the Defendant requests that the Court review the Plaintiff’s actions in this case in conjunction with Rule 56(G) of the Indiana Rules of Civil Procedure and grant the Defendant equitable compensation.

By the Defendant acting pro se. 
Dated: 10/21/2011

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Here is an opposition and some links from Arizona:

 

Arizona

 

Opposition to Motion for Summary Judgment

 

http://statecasefiles.justia.com/documents/arizona/court-of-appeals-division-one-unpublished/1-ca-cv-11-0679-0.pdf?ts=1351747709

 

Excellent Motion in opposition from New York. Maybe you can find Arizona Caselaw

http://www.jdsupra.com/legalnews/memorandum-in-opposition-to-motion-for-s-24281/

 

 

Traffic Stop however well laid out template wise:

https://www.checkpointusa.org/roadblock/lawsuit/docs/p9/sj2/defendants/response/defSjResponse.pdf

 

Arizona examples - use the case law:

http://scholar.google.com/scholar_case?case=7367629699652877396&q=Arizona+%2B+opposition+to+Summary+Judgement&hl=en&as_sdt=2,38&as_vis=1

 

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE.doc

[hot in az]

Hi, Check Washinton Rules for how soon before trial motions have to be filed. They file MSJ on me 10 days before  and that is for a REGULAR motion. MSJ has to be filed in my state 90  days before.  HMMMM?   I got it overturned easily. Altho you still have to answer line by line their stuff. It took me a whole day but worth it.

[mkhal]

Thanks for all the great advice, so am I answering line by line the motion?  Because I posted the motion above and it was very brief what they wrote to the court.   @hot in az   @hueypilot

 

 

Secondly, in my counter affadavit, I can't find the affadavit rule in washington state courts civil procedures like you put in your Oregon state law huey,  "pursuant to the laws of the state or Oregon and Oregon Rules of Civil Procedure 1E"

 

 

All I found was this: http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=ER

[mkhal]

Also Huey, why did you use Delaware Civil Rules of Procedure 56(e) when you are in Oregon, please explain how that came to be so that I may research it.  Thanks

[hot in az]

Hi,  You should get all your posts in one thread so we can help. I can.t see who is suing you because its not here but I'm assuming it's chase and their SOL is based on Delaware law which is 3 years. So you could be out of SOL but I don't know because your initial questions aren't here. Just work on your motion to oppose SJ and post it so we can see. Is your hearing a pre-trial conference??  Also look at rules of evidence for washington and you should find out how soon before trial they have to file MSJ on you. And use that in your MOSJ. 

[mkhal]

@hot in az 

 

 

Okay I updated it so that you can see what I'm working with but again I don't understand what am I replying to in MOSJ, because I posted their motion statement in my initial post and it is very brief.  But the initial account was not Chase it was washington Mutual which became Chase???.  

 

Honestly I don't know if this is a pre trial conference.  All I got was a paper saying "Please take note that a hearing has been scheduled on Plaintiffs' Motion for Summary Judgement."

 

Date: Monday July 29

[hot in az]

Oh Ok, Standard hearing to decide the motion. I found your other thread so I got up to speed, You need to google some WA case law regarding broken chain of custody between Wamu and Chase. I have some Az law I could shoot you on that but it helps to have your state law too. I will look through my MOSJ and find it. Really just to start go line to line. Set your format to oppose the same as their is

I did mine at the librart on the same numbered paper format . TY librarians that helped.

I will find my case law and post it for you. Aren't there any other people in your state you can private message for help?

[mkhal]

No no one from WA state that I've met on these forums..

[hot in az]

Defendant submits this Statement of Material Facts in support of his opposition to Motion for Summary Judgement. As this opposition peirces the pleadings and tests the insuffieciency of Plaintiff's evidence, Plaintiff ,who bears the burden of proof, must submit a record of admissable evidence to grant summary judgement.

 

Statememt of Material Facts:

1. there is no admissable evidence as to the purchase by Plaintiff of the alleged account which is subject of this Complaint either directly from  (your plaintiff)  or through intermediate debt buyers.

 

2. Defendant has not made payments due to the fact the Defendant does not owe the alleged debt, and no evidence has been provided to prove otherwise.

 

So you take each of their claims in MSJ  and match them with you defenses. Just start one at a time and if you are not sure on one then ask for more help.

If you PM Calawyer or NASCAR  and ask them to read you thread for help. The MOSJ takes alot of work but it shows the judge your case if you have to appeal.  So you have to throw in Case law in your state.  Google the questions they should come up.

Like case law on opposition to SJ in Washington state.

[mkhal]

Okay thanks I'm doing research on the Case law now.

[mkhal]

@hot in az, I looked at the Washington State rules of civil procedure and found this:

 

c) Motion and Proceedings. The motion and any supporting affidavits,
memoranda of law, or other documentation shall be filed and served not
later than 28 calendar days before the hearing.

 

I was served these documents on Friday 19th of July..just ten days before the hearing and they claimed they filed it with the court on 12th of July, which is not even 28 days before the hearing..

 

I put this as my first point in my summary because it states I have to respond 11 days before the hearing and I didnt even get the motion until 10 days before.

 

PS: Am I interpreting this correctly?

[nascar]

Review court's discussion on Rule 56(f) in  McKay Chadwell, PLLC v. Stamper, No. 68153-2-I (Wash. Ct. App., Apr. 29, 2013) 

[hot in az]

They did the smae thing to me so I still had to answer their MSJ because  10 days before trial they filed a motion for a continuance. I shot that down as well as MOSJ.  My MOSJ was due one day after trial which is why they asked for continuance.

 

IN my MOSJ in my conclusion  I put this:

 The matter of summary judgement is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissable evidence to sustain it's burden as to each element of it's cause of action.

Plaintiff's motion for Summary Judgement should not be granted as there are genuine disputed issues of material facts.

 

Plaintiff's are not compliant with Rule 56©  (NOT SURE IF THIS IS YOUR RULE. It will be the rule nascar gave you.) that states the Plaintiff must file a motion for summary judgement 90 days before trial (INSERT YOUR NO OF DAYS HERE)Az is 90 days

 

Plaintiff file their motion on  insert date. Trial is set for insert date. ( This is trial right and not mediation??)

 

Therefore based on the the previouse arguments and this rule Plaintiff should be denied Summary Judgement

 

The Defendant respectfully asks this Honorable Court to DENY Plaintiff's motion for Summary Judgement.

 

So that was my ending after I answered all their stuff line by line. 

[hot in az]

Oh also I forgot,  Since there doesn't seem to be anyone from your state in here if you have a college or law library near you you can usually get the librarian or a pre law student to help you with the wording or case law in your state.