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@BV80 got it! Thanks!

After all of this I'm going to be pissed if they end up dismissing before I have a chance to get a ruling from a judge. :-)

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Ok, here's my first draft Opposition to Motion for Summary Judgment.

 

I plan to file another Motion to Strike if my first one isn't responded to by the deadline to file my response to the MSJ. When I started my Opposition I was thinking I could include the Motion to Strike within my Opposition (thus the reference to it) but I think I will need to file this as a separate Motion.  I'll correct this on my next draft.

 

@BV80, @UCL, @Beergoggles and @Seadragon, please let me know what changes I need to make to this.

 

Thanks!

 

[deleted. see post #95 for final draft]

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@Harry Seaward

 

In my opinion, you need to focus a little more on the JDB's claim of ownership of the account.   You mention the bill of sale, the fact that it doesn't reference your name or account number, and that's it.

On page 7, line 20, instead of "in support of its motion"  (its, not it's), if it were me, I might include something like this:

"The only evidence submitted in support of Plaintiff's claim of ownership of the alleged account is a boilerplate bill of sale that does not name the defendant or identify the account that Plaintiff claims was allegedly sold and/or transferred.   No documentation  has been provided from _________(original creditor) that explicitly shows that any account allegedly owed by Defendant was included in any sale to Plaintiff."

I would then include AZ Rule 56(e).  After that:

The affidavit of Paul Saland, an employee of Plaintiff, has been submitted to support the Motion for Summary Judgment.  In his affidavit, Mr. Saland claims that the alleged account in question was sold to Cavalry SPV (or whatever is shown in the bill of sale).  The only evidence to support Mr. Saland's statement is the aforementioned indeterminate bill of sale that does not reference the name of Defendant or identify any account number whatsoever.  Therefore, Mr. Saland's statement which attempts to support Plaintiff's claim of ownership of the alleged account in question is not a fact that would be admissible in evidence as required by Arizona Rule 56(e).  

Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts. Granite State Insurance Corp. v. Mountain States Telephone & Telegraph Co., 117 Ariz. 432, 573 P.2d 506 (App. 1977).

Since no evidence has been submitted that proves an account allegedly owed by Defendant was included by ________ (OC) in a sale of accounts to Plaintiff, Cavalry SPV's claim of ownership of the account which is the subject of this action is in doubt and is an issue of material fact.  Accordingly, Plaintiff has failed to prove its standing to sue, and summary judgment should not be granted in favor or Plaintiff.

 

Something like that.

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Ok, here's my first draft Opposition to Motion for Summary Judgment.

 

I plan to file another Motion to Strike if my first one isn't responded to by the deadline to file my response to the MSJ. When I started my Opposition I was thinking I could include the Motion to Strike within my Opposition (thus the reference to it) but I think I will need to file this as a separate Motion.  I'll correct this on my next draft.

 

@BV80, @UCL, @Beergoggles and @Seadragon, please let me know what changes I need to make to this.

 

Thanks!

 

attachicon.gifFirst Draft Opposition to Plaintiff's MSJ_Redacted.pdf

Plaintiffs alleged evidence is suspect at best, and does not show or allege that they original complaint allegations are more than Ipse Dixits.

 

That was the only thing that might trip you up where you said "Plaintiffs evidence is questionable at best." that leaves an acknowledgement that it is evidence and that you are merely questioning it. a little harsher tone gets the ball across the goal line.

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I'll get back to the MSJ, but they countered my Motion to Strike with a Motion to Continue.  I'm countering with an Opposition.  Both are below.

 

Plaintiff's Objection to Motion to Strike_Redacted.pdf

Objection to Plaintiff's Motion to Continue_Redacted.pdf

 

Let me know if my Objection reads ok.  I'm worried about sounding to aggressive with the "conspiracy" verbiage.

 

Thanks!

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@Harry Seaward

 

I'm not an attorney, so the following is simply my opinion.

I have a problem with your use of the words "conspire" and "ex post facto".  To conspire implies illegal activity.  You DON'T want to even imply that the court would do such a thing.

Ex post fact means "after the fact".  Something that was legal is now illegal, or vice versa, and the new law is applied retroactively.

The rule that provides for a 90-day time limit  has not been changed.  In my opinion, if you use the term "ex post facto", you'd be accusing the court of rejecting and changing the rule.  Or at least, you'd be accusing the court of bending the rules.  I'm not sure that's a good idea.

There has to be a good reason for a court to bend the rules.  As far as I know, that reason has to be founded in law.  Cavalry's motion offered nothing in the way of case law to show that their objection was founded in law.  The way it looks to me, the motion is based on Cavalry's opinion and desire.

If I were the one being sued, I'd cite the precise rule  (Arizona Justice Court Rules of Civil Procedure Rule 129(b) and support it, if possible, with case law.   If there's no case law, concentrate on the rule.

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Being blunt to be your compadre here: I don't like your motion at all. I think Plaintiff's motion is stupidly worded and makes a stupid request, but your approach will make the judge wonder how he's going to choose between a stupid lawyer and a snarky pro se litigant.

Make the choice easier for him than that. Leave out the snark and insinuations and be the good guy.

A. Plaintiff concedes that its motion is untimely. On those grounds alone the motion to strike should be granted.

B. Plaintiff is now apparently asking to move the trial date, with the sole basis for the request being that it wants its untimely MSJ ruled on. This is on its face a meritless argument for a continuation. The court should proceed to trial. The end.

The JDB appears here to be terrified of going to trial. You're not. Let's rumble!

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Being blunt to be your compadre here: I don't like your motion at all. I think Plaintiff's motion is stupidly worded and makes a stupid request, but your approach will make the judge wonder how he's going to choose between a stupid lawyer and a snarky pro se litigant.

Make the choice easier for him than that. Leave out the snark and insinuations and be the good guy.

A. Plaintiff concedes that its motion is untimely. On those grounds alone the motion to strike should be granted.

B. Plaintiff is now apparently asking to move the trial date, with the sole basis for the request being that it wants its untimely MSJ ruled on. This is on its face a meritless argument for a continuation. The court should proceed to trial. The end.

The JDB appears here to be terrified of going to trial. You're not. Let's rumble!

Very well put.

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@UCL

 

I like your point that the motion is stupidly worded.  Not being an attorney, I'm not sure that I could make such an assessment.  I simply recognized that Cavalry offered nothing to support the motion other than opinion.

 

I don't think HarrySeaward is being snarky in his opposition.  I think he just didn't think about his implication when he used the word "conspire". 

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As I've said, I hope I'm not offending anyone here. I'm just trying to help.

Lawyers, great lawyers even, always have to combat temptations to be snarky in legal briefs. When an opponent makes me really mad, snark will usually makes its way into at least an initial draft of something I'm writing. But in almost all situations, snark is bad and should be eliminated. Being factual, courteous, and rational is virtually always the better approach when you're trying to persuade a judge.

The rules change when you're persuading a jury. Sometimes they like a little bit of drama too, though not in JDB cases.

Btw, have you considered requesting a jury trial? Is it too late to do so?

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Thanks, guys (and gals?).  That was exactly what I needed to hear and I welcome and appreciate the candor and constructive criticisms.  I questioned what I was typing as I was typing it, but as UCL pointed out, that's what first drafts are for.

 

Here is the revised version sans snark (at least I think so).

 

[deleted. see post #95 for final draft]

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It looks good to me.

Trial continuances are firmly "within the sound discretion of the trial courts" by Arizona law. Your best shot here is to hope that Plaintiff's motion annoys the judge less than whatever your position you would take.

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@UCL I found a lot of AZ caselaw with "motion to continue" and "motion for continuance" but none of it that I saw was based on making previous motion timely.  I also noticed most of it cited the "sound discretion" you mentioned and I got the distinct impression the higher courts don't like reversing trial court decisions on continuances but don't seem to have as much of an objection to reversing other rulings made by trial courts.

 

 

It seems a lot of things happen following a request for a continuance and changing the outcome of that request could affect a lot of the other things.  Maybe there's some other reason, but "unraveling the fabric of time" stands out to me.

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The Plaintiff did the exact same thing to me. Filed MSJ 2 weeks before trial and a continuance motion.

 

I used the statement ther are material facts it issue neccessitating a trial.  Summary judgement is not a substitution for trial.This motion prejudices the Defendant as it creates a preference for summary judgement over trial on the merit's, which is the opposite of what the statutes are designed for.

Therefore the Defendant's respectfully pray for the court to deny the Plaintiff's Motion and Order To continue Trial and ask for the date of xxxxx to be upheld.

 

The judge granted my motion and denied their MSJ as well.

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Unfortunately the JP hearing my case is... something. I don't know if it's lazy or biased against defendants in debt cases or what. In another case he granted every plaintiff motion and denied every one of my motions. He finally granted plaintiff's MSJ 10 days after they filled it when I was supposed to have 30 days to respond. And then my motion for reconsideration was denied. It was a complete sand bagging from the onset. I should have stuck it out and then appealed but I was less experienced then and less confidant because I was up against an OC so I went for arbitration to get it away from the JP.

So far there's not a lot of difference in this case. I'll know more when the rulings on the biggies start coming in.

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I'll get back to the MSJ, but they countered my Motion to Strike with a Motion to Continue.  I'm countering with an Opposition.  Both are below.

 

attachicon.gifPlaintiff's Objection to Motion to Strike_Redacted.pdf

attachicon.gifObjection to Plaintiff's Motion to Continue_Redacted.pdf

 

Let me know if my Objection reads ok.  I'm worried about sounding to aggressive with the "conspiracy" verbiage.

 

Thanks!

Find a few cases to show you are right, make sure they are binding.

 

The Case cited is directly on point for the matters presently before the court and are binding precedent on the court and both parties. The case is Wells Fargo Bank, N.A., v. Cola D. Allen and Lisa M. Allen 1 CA-CV 11-0572 (December 4, 2012). The Court held that ”We hold that a plaintiff cannot shift the burden of proof to the defendant by filing a motion for summary judgment. A plaintiff’s motion must stand on its own and demonstrate by admissible evidence that the plaintiff has met its burden of proof and that it is entitled to judgment as a matter of law. Because the plaintiff always bears the ultimate burden of persuasion to prove its claim, the plaintiff cannot

simply rely on deficiencies in the defendant’s response to a motion for summary judgment. In this case, Wells Fargo’s motion did not independently demonstrate its entitlement to summary judgment as a matter of law.” Wells Fargo Bank, N.A., v. Cola D. Allen and Lisa M. Allen 1 CA-CV 11-0572 (December 4, 2012) at¶1.

 

 that kind of stuff.

 

the rest looks good just need authorities to support your position and to bring up that plaintiffs do not control the court, and that they cannot try to subvert the judicial process by trying to dodge trial. mention also that pushing for a continuance of trial is equally using judicial resources and that trial is preferred in contested matters.

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My gut reaction here is that the analysis of whether to continue a trial date just isn't very complicated. Since it's in the court's sound discretion, the judge simply does what his own gut tells him to do. The law gives him that freedom.

There is less discretion, in fact NO discretion, when it comes to striking the untimely MSJ. This improper move by Plaintiff will hopefully be the catalyst to annoy the judge enough to tip that "gut reaction" in your favor on the continuance issue.

I'm no expert on appealing justice court rulings to the superior court, but this is a very attractive option you should be prepared to exercise if you don't like this JP. And, have you thought about asking for a jury trial?

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JCRCP 133(b ): "A demand for a jury trial must be made before the start of trial."

This is a simple request you file in court. The sooner the better. "Defendant hereby requests a trial by jury on all triable issues, pursuant to JCRCP 133(b )."

I say you do it, especially if you don't like the JP. This will royally screw up the JDB's strategy. :)

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@Seadragon I already filed my response to their Motion to Continue a la the Second Draft... I posted.

 

@UCL I have toyed with the idea of demanding a jury trial.  Do you think this is something a jury would be appropriate for?  If there were an inexperienced me in the box, and the plaintiff waived all kinds of documentation around, I'd be inclined to conclude they proved their case.

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In a jury trial, the judge applies the exact same rules of evidence (and indeed has to be even MORE careful about applying them correctly).

If the judge incorrectly refuses to strike an exhibit as inadmissible, you actually get a second bite at the apple: you get to directly argue to the jury that the exhibit is worthless. And if the jury disagrees, you get to argue the issue yet again on appeal.

Also consider: a jury of your peers judging a JDB. JDBs are possibly the least sympathetic entities that could appear before a jury. And I say this as someone who had to defend insurance companies in my past.

From my lawyer perspective, I'd pick a jury over a bench trial to battle a JDB any day. You're not a trial lawyer so I know your perspective is different. It's your call. But I'd seriously consider it.

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p.s. There's a good chance that your opposing counsel has close to zero or actually zero experience with jury trials.

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I'll do it.  I'm going to wait until I get rulings on my Motion to Strike and Plaintiff's Motion to Continue.  I don't want my request for a jury to be used as an excuse to demand the continuance while the timeliness of their MSJ is hanging in the balance.

 

I should have rulings on these in the next couple of weeks.

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Good for you! Juries are your constitutional right (not always in low value claims, but in Arizona it's still a statutory right) for a reason. They are the ultimate weapon against the perceived or real institutional biases of judges. This is literally arguing your case directly to "the people". It's an adrenaline rush, you don't lose any legal rights by doing it, and I'd say you increase your odds of victory.

And opposing counsel will probably pee his pants.

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@Seadragon I already filed my response to their Motion to Continue a la the Second Draft... I posted.

 

@UCL I have toyed with the idea of demanding a jury trial.  Do you think this is something a jury would be appropriate for?  If there were an inexperienced me in the box, and the plaintiff waived all kinds of documentation around, I'd be inclined to conclude they proved their case.

Arguments for the hearing, I mostly posted that for the benefit of people in the similar situation who are lurking the posts also. No worries just trying to be helpful.

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