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CountryLady
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One of these, "where do I post it" type of questions.

 

I am trying to send a document to someone in a private message. I was reading the "My Media" and it appears if I upload it then everyone can see it. This is NOT my intent.

 

Does anyone know how I can do this?

 

Thanks so much.

 

L

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Sometimes it is better to redact the thing then cut and paste it into the PM for example:

 

XXXXXXXXXX

XXXXXXXXXX

XXXXXXXXXX

XXXXXXXXXX

Self-Represented defendants

 

IN THE MANISTEE JUSTICE COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

 

 

 

MIDLAND FUNDING, LLC

Plaintiff

 

v.

 

XXXXXXXXXX AND XXXXXXXXXXXXXX

Defendants

Case No. XXXXXXXXXXXXXX

 

MOTION TO VACATE PLAINTIFFS MOTION FOR SUMMARY JUDGMENTAND JUDGEMENT DATED DECEMBER 20, 2012

 

HON. Judge name Presiding

 

 

 

TO ALL PARTIES AND WITNESSES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN the Defendant(s), XXXXXXXXXX and XXXXXXXXX, Self Represented Litigants, respectfully moves the Court to vacate it's order granting the Plaintiffs Motion for Summary Judgment and to issue a new order denying the same. This motion is supported by the Court record, the Memorandum of Points and Authorities attached hereto and incorporated by this reference herein. The defendant requests a Statement of Decision for the courts ruling.

 

On the 25th of December, 2012

 

 

 

 

XXXXXXXXXX Pro Per defendant

 

 

XXXXXXXXXXXXXX Pro Per defendant

 

 

 

 

 

 

 

 

 

MEMORANDUM OF POINTS AND AUTHORITIES

AUTHORITY FOR VACATION OF THE JUDGMENT.

The court has authority to vacate the Summary Judgment under terms that are just and Rule 60 (a) and ©. Rules 60 (a) and © read:

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on motion of any party and after such notice, if any, as the court orders. During pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.16 A.R.S. Rules of Civil Procedure, Rule 60(a)

 

On motion and upon such terms as are just the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(d); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be filed within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment or order was entered or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant served by publication as provided by Rule 59(j) or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.(Emphasis added)16 A. R. S. Rules Civ. Proc., Rule 60©

 

Defendants timely file the motion. Vacating a judgment is warranted when a judgment is granted based on a mistake Rule 60(a). Due to the posture of the case the court has discretion to vacate a summary judgment as plaintiffs motion was in error.

Defendants can also be granted the relief requested under Rule 60 ©(4),(5), and (6). The granting of summary judgment when the motion is based on inadmissible evidence can be characterized as void, or it is no longer equitable that the judgment should have prospective application, and finally if there is any other reason justifying relief from the operation of the judgment. “The need for finality [in judgments] must give way in extraordinary circumstances,” Park v. Strick, 137 Ariz. 100, 104, 669 P.2d 78, 82 (1983). This motion is well within and meritorious for the courts use of it's statutory power to vacate the granting of Summary Judgment.

Summary judgment is appropriate only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56©(emphasis added)

I. INTRODUCTION

Vacating the judgment is warranted to prevent errors in this matter

The Defendants both move this court Vacate its Judgment in this matter, because the plaintiffs filed a motion that should not have never been granted. Defendants have deemed admissions against plaintiffs and have the order of the court striking their evidence. This put defendants, not plaintiffs, in a position to have judgment against the plaintiff. The filing of the Motion for Summary Judgment when admissions are deemed against the moving party goes against the principals governing res judicata and collateral estoppel in the matter of the plaintiffs having deemed admissions against them.

a. The Courts order granting plaintiffs Motion for Summary Judgment was rendered due to to an error of the Plaintiff and it's counsel which prejudiced defendants.

Here the Court granted a dispositive motion making the Motion to Vacate the Judgment

mandatory as the last chance prior to appeal. It is this reason, to prevent having to file an appeal, that defendants hope the court vacates the Summary Judgment and prevent the granting of relief plaintiffs are not entitled to. The plaintiffs cannot attach stricken evidence to a motion. The Court cannot grant a motion with inadmissible evidence at it's base. For these reasons defendants object to the granting of the Summary Judgment as it was not founded by evidence that was admissible.

b. Plaintiffs Motion to Reconsider Shows that the Motion for Summary Judgment was filed in error by plaintiffs counsel who claims that a clerical error was the reason plaintiff was unaware the exhibits were rendered inadmissible.

The plaintiffs filed a Motion to Reconsider this Courts order striking alleged documents comprising the bulk of their exhibits attached to the Summary Judgment motion at issue. They stated that ”Do(sic) to a clerical error in Plaintiff's counsel's office, Plaintiff failed to respond” (Plaintiffs Mtn. For Recon. pg.2 at 4-5) allegedly, this was the reason that counsel failed to notice the Motion to Strike of Defendants and later the Courts order granting the same motion. It is defendants belief that this matter is easily solved with a reversal of the courts order granting the Motion for Summary Judgment because the Motion to Strike was granted prior to the filing of Motion for Summary Judgment.

Defendants at this point are extremely prejudiced in their position as they have relied on the courts original order on the motion to strike in their decision not to retain counsel for trial.

a. Procedural History

The procedural history will show that the plaintiffs filed the Summary Judgment in error and Bad Faith. The defendants request the court note that communications from defendants to the plaintiffs counsel have been sent Certified Mail Return Receipt Requested. This was to ensure that parties both have an effective, and documented line of communication. This history shows that communications between all parties have taken 1 day. It also fails to show any reason for a party not to receive notice of any motion or ruling.

The Court additionally made a ruling that defendants disclosure was timely. The Court had sent an amended order after its ruling on the motion to strike fixing a clerical error. The court has authority to fix errors in it's orders.

1. Plaintiff Documents/Correspondence

 

1. PLAINTIFF’S CIVIL SUMMONS. (Defendants were served on 10-13-12).

 

2. DISCLOSURE. (Dated on 11-02-12, received on or about 11-05-12).

 

3. MOTION AND ORDER FOR PERMISSION TO APPEAR TELEPHONICALLY FOR PRETRIAL. (Dated on 11-13-12, received on or about 11-14-12).

 

4. MOTION AND ORDER TO CONTINUE PRETRIAL CONFERENCE, AND MOTION FOR SUMMARY JUDGMENT. (Dated on 12-05-12, received on or about 12-06-12).

 

5. NOTICE OF SERVICE OF RESPONSES TO REQUEST FOR ADMISSIONS AND REQUEST OF PRODUCTION OF DOCUMENTS. (Dated on 12-13-12, received on or about 12-17-12, approximately 4:30 p.m.).

 

6. MOTION TO RECONSIDER DEFENDANTS MOTION TO STRIKE. (Dated on 12-18-12, received on or about 12-22-12).

 

2. Defendant(s) Documents/Correspondence

1. FILED PRO SE NOTICE OF APPEARANCE AND ANSWER TO SUMMONS. (On 10-15-12. Then sent copy, via Certified Mail/Return Receipt to Plaintiff on 10-15-12, signed for on 10-16-12).

 

2. SENT PLAINTIFF DEBT VALIDATION LETTER AND CEASE & DESIST LETTER. (Via fax, on 10-15-12, on or about 3:59 p.m.).

 

3. FILED FIRST REQUEST FOR ADMISSIONS AND REQUEST FOR PRODUCTIONS TO PLAINTIFF. (On 10-17-12. Then sent copy, via Certified Mail/Return Receipt to Plaintiff on 10-17-12, signed for on 10-18-12).

 

4. FILED MOTION TO STRIKE. (On 11-05-12. Then sent copy, via Certified Mail/Return Receipt to Plaintiff on 11-06-12, signed for on 11-07-12).

 

5. FILED DISCLOSURE, AND ANSWER/OPINION TO PLAINTIFF’S MOTION AND ORDER FOR PERMISSION TO APPEAR TELEPHONICALLY FOR PRETRIAL. (Both were filed on 11-20-12. Then sent copies, via Certified Mail/Return Receipt to Plaintiff on 11-20-12, signed for on 11-21-12).

 

6. FILED OBJECTION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, ANSWER TO PLAINTIFF’S REQUEST FOR PRETRIAL CONTINUANCE, REQUEST FOR DISMISSAL WITH PREJUDICE. (On 12-07-12. Then sent copy, via Certified Mail/Return Receipt to Plaintiff on 12-07-12, signed for on 12-10-12).

 

7. MEET & CONFER WITH PLAINTIFF, VIA PHONE, INITIATED BY DEFENDANT TERRA S GRAHAM. (Called on 12-17-12, at 10:19 a.m., then again at 11:26 a.m.).

 

8. SENT MEET & CONFER, VIA FAX TO PLAINTIFF, REGARDING TRYING TO FIGURE OUT ABOUT PLAINTIFF‘S NON-COMPLIANCE, DUE TO UNANSWERED DISCOVERY REQUESTS. (Faxed on 12-17-12, at 2:15 p.m.).

 

9. FILED MOTION FOR SUMMARY JUDGMENT, WITH ALTERNATIVE, AND REQUEST FOR TRIAL CONTINUANCE. (On 12-18-12. Then sent copies, via Certified Mail/Return Receipt to Plaintiff on 12-19-12, delivered on 12-21-12).

 

3. Court Correspondence/Documents

1. NOTICE OF COMPREHENSIVE PRETRIAL CONFERENCE HEARING DATE. (Dated 10-24-12, received on or about 10-27-12).

2. RULING ON MOTION (DEFENDANTS MOTION TO STRIKE). (Dated 11-29-12, received on or about 12-06-12).

3. RULING ON MOTION (PLAINTIFF’S MOTION AND ORDER TO APPEAR TELEPHONICALLY FOR PRETRIAL). (Dated 12-04-12, received on or about 12-07-12).

4. RULING ON MOTION (DEFENDANTS MOTION TO STRIKE). (Dated 11-29-12, received on or about 12-05-12).

5. AMENDED RULING ON MOTION (DEFENDANTS MOTION TO STRIKE). (Dated 12-06-12, received on or about 12-13-12).

6. RULING ON MOTION (PLAINTIFF’S MOTION AND ORDER TO CONTINUE PRETRIAL CONFERENCE). (Dated 12-10-12, received on or about 12-13-12).

7. NOTICE OF COURT DATE. (Dated on or about 12-13-12, received on or about 12-17-12).

 

II. ARGUMENT FOR GRANTING DEFENDANTS MOTION

a. The Court abused it's discretion by granting the motion after defendants opposition pointed out that the exhibits attached were previously stricken and rendered inadmissible.

In defendants Opposition to Motion for Summary Judgment at pgs. 2-3, and Statement of Disputed facts hereafter (S.D.F.) 1-5 it was pointed out that the exhibits attached were previously stricken and rendered inadmissible. The court would have to deny a Motion if it didn't have evidence attached that was admissible. 16 A.R.S. Rules of Civil Procedure, Rule 56(e) is controlling on affidavits used to support Summary Judgment. The federal Courts adhere to admissibility and the witness' personal Knowledge. These were the very reasons the court struck the exhibits in the first place. The issue of standing being at issue due to the striking of proofs of the plaintiffs this court cannot render judgment for the plainiff. The United States Supreme Court held in The case of Anderson v. Liberty Lobby, Inc.movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. New York Times Co. v. Sullivan, 376 U.S. 254 at Pp. 256-257”, 477 U.S. 242, 250 (1986).

1. Applicability of Fed. Rule 56(e) in contested matters

Authorities for Rule 56(e) are clear and unambiguous as seen in several important federal matters on summary judgment:

“Rule 56(e) states: "Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." As the language of the Rule plainly indicates the requirement of personal knowledge is mandatory. See Toro Co. v. Krouse Kern & Co. Inc. 827 F.2d 155 162 n.3 (7th Cir.1987). The facts presented in the affidavit also must be admissible evidence. "The policy of Rule 56(e) is to allow the affidavit to contain evidentiary matter which if the affiant were in court and testifying on the witness stand would be admissible as part of his testimony." Pfeil v. Rogers 757 F.2d 850 860 (7th Cir.1985) cert. denied 475 U.S. 1107 89 L. Ed. 2d 912 106 S. Ct.1513 (1986) citing 6 Moore's Federal Practice SEC. 56.22[1] at 1321-22 (1982); see also Randle v. LaSalle Telecommunications Inc. 876 F.2d 563 570 n.4 (7th Cir.1989) ("Rule 56(e) requires that evidentiary affidavits 'shall set forth facts as would be admissible in evidence.' Based on this requirement our cases have stressed that we are unable to consider hearsay statements that are not otherwise admissible at trial.")” Atkins supra and further on the issues of materiality for evidence The United States Supreme Court explained in Anderson v. Liberty Lobby: "Only disputes over facts that might affect the outcome of the suit" preclude summary judgment. Anderson v. Liberty Lobby Inc. 477 U.S. 242, 248 (1986). Defendants have fully and continually disputed the allegations. (S.D.F. 1-5)

 

2. Defendants have raised the dispute of Plaintiff's allegations since the beginning. Summary Judgment cannot be used to deny questioning of witnesses.

Defendants have a genuine dispute over every single allegation in the case.(S.D.F. 1-5) granting the Motion was an error and an abuse of discretion. “An abuse of discretion occurs when there is no evidence to support a holding or the court commits an error of law when reaching a discretionary decision.” Dowling v. Stapely, 221 Ariz.at 266, ¶ 45, 211 P.3d at 1250.

The Court had already used it's power as trier of fact to determine factual issues pertaining to the exhibits attached to the Summary Judgment motion. Therefore the court has already determined in it's prior ruling that the facts were still disputed. The United States Supreme Court tells us that it is necessary to first determine if “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). At a Summary judgment hearing the court cannot allow alleged evidence that has been previously excluded or resolved in defendants favor to be used to support an opposite conclusion.

b. The Motion for Summary Judgment has no support as the exhibits attached to it were already stricken by the court for all purposes. It appears that the filing of the motion was in bad faith.

The court granted the Motion to Strike. This foreclosed the plaintiffs attaching the stricken exhibits to a Motion for Summary Judgment a few days after plaintiff received the Order of the court from the motion to strike. “[A] motion for summary judgment should not be granted if there is evidence creating a genuine issue of material fact.” Gatecliff v. Great Republic Life Ins. Co., 170 Ariz. 34, 37, 821 P.2d 725, 728 (1991).

It shows bad faith that the Motion for Summary Judgment was filed. The generalized excuse proffered by plaintiffs counsel lacked candor and smacked of not honest contrition of a huge error but that the Motion for Summary Judgment was filed vexatiously, and to harass and annoy an unrepresented party. Rule 56 (g) has a remedy the court can give:

Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.16 A. R. S. Rules Civ. Proc.,” Rule 56(g)

 

The court has inherit power to grant the full relief that the law allows. The plaintiffs counsel has not shown what the exact error was for not getting the Motion nor the Order of the Court, Who is responsible for the error, when the error occurred, how it was discovered, and why they did not take the Motion for Summary Judgment off calendar or move to vacate.

The plaintiffs would gain a windfall if allowed summary judgment. Defendant believes the record shows enough bad faith in the filing of the Motion for summary judgment that it would be inequitable to Summarily grant judgment to the plaintiff.

 

CONCLUSION

The record shows and authorities support granting this Motion to Vacate. The Plaintiffs have not supported their Summary Judgment with admissible evidence to support the averments of plaintiffs counsel(S.D.F. 1-5). Further a statement of facts has to be signed by a person having first hand knowledge of the facts. Without admissible evidence to support the motion, the facts are resolved in favor of the non moving party. In this case the exhibits to the Statement of facts submit with the Motion for Summary Judgment were previously stricken by this Court. Without support the Motion has to be reversed. It has been shown that the Motion was submitted in bad faith with a lack of candor to this honorable court and defendants for all the reasons in this motion the court must for the sake of justice reverse it's ruling and reverse the courts order for Summary Judgment.

 

 

PRAYER

Defendants XXXXXXXXXX and XXXXXXXXXXXXXX pray this court vacate the order granting summary judgment for plaintiffs and and enter a new order denying the Motion for Summary Judgment. In the alternative, defendant requests a hearing on the matter and for trial. Defendants further pray for costs to defend and for any further relief the Court deems proper.

On the 25th of December, 2012

 

 

 

 

 

XXXXXXXXXX Pro Per defendant

 

 

XXXXXXXXXXXXXX Pro Per defendant

 

 

 

 

 

Original of the foregoing delivered on ______________ to:

 

Maricopa-Manistee County Justice Court

14264 West Tierra Buena Lane

Surprise, AZ. 85374

Copy of the foregoing mailed, faxed, and emailed on__________to:

Barry Bursey

BURSEY & ASSOCIATES, P.C.

6740 N. Oracle Rd. Suite 151

Tuscon, AZ 85704

Fax: (520)529-1001

Email: litigation@bursey.org

 

 

Signed___________________________________

 

 

The person can then cut and paste it into their pleading.

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