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In the process of beind sued. Midland has asked for a Summary Judgement.


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Hello everyone,

 

I have asked for help on this forum before and have been patiently sitting and waiting to see what would happen in my case. After a few months of waiting, the attorney's have made their move and filed a motion for summary judgment.

 

This is a link to my original post: [post=http://www.creditinfocenter.com/community/topic/319912-being-sued-by-midland-funding-llc-halfway-through-hit-a-snag-in-discovery/]Previous Post

 

I will post the 20 questions pertaining to this suit below. Including in the envelope with my copy of their motion, they included over 30 pages of Credit Card statements, a bill of sale and a sworn affidavit of debt.

 

The motion says I have 30 days to respond and is dated July 26th. There is also a court document saying a hearing is set for September. I am under the assumption that if I do not reply within 30 days they will win their motion and there will be no hearing in September?

 

I need some help, please. No idea what my move is or if there is a move. The amount isn't large, only $1008. However, that's $1008 I don't have.

 

 

20 Questions

 

1. Who is the named plaintiff in the suit? Midland Funding LLC as Successor in Interest to Chase Bank NA

2. What is the name of the law firm handling the suit? Bowman, Heintz, Boscia and Vician Professional Corporation, Attorneys at Law

3. How much are you being sued for? 1008.00

4. Who is the original creditor? Chase Bank

5. How do you know you are being sued? (You were served, right?) I was served by mail at my previous address. (Parent's house)

6. How were you served? Mail

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I am aware of.

9. What state and county do you live in? Indiana, Porter Co.

10. When is the last time you paid on this account? I checked my credit report and have found no payments in the last 4 years. The plaintiff states I payed in 2010.

11. What is the SOL on the debt? 6 years

12. What is the status of your case? Suit served? Motions filed? Served, Motions Filed.

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? No, have never been contacted by Midland before.

15. How long do you have to respond to the suit? Yes

      Did you receive an interrogatory (questionnaire) regarding the lawsuit? No.

Plaintiff is claiming

 

        1. I'm indebted for goods or services, etc. in the amount of 1008.21.

 

        2. That plaintiff is the actual and bonafide owner of the account.

 

        3. That the sum of 1008.21 is now due and unpaid together with interest and costs pursuant to Indiana law.

 

WHEREFORE, plaintiff demands judgment against the defendants for the sum of $1008.21 plus accrued interest in the amount of $0.00, plus additional interest at the rate of .00% per annum from November 19, 2012 and costs and all other proper relief.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? They sent an Affidavit of Debt and a Affidavit of Non-Military Service.

 

 

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You must file an opposition to their motion for summary judgment (within 30 days) that creates a triable issue of material fact.

One issue.......... that's all it takes to defeat a MSJ.

 

Thanks for the response.

 

Anyone have any input on how I do that? I've found several examples on Google but I'm not sure what I would change or if they sound too "internet lawyer".

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You need to file an opposition to their MSJ.

You should also file a motion to strike the evidence they've cited to in their MSJ as inadmissible. Why is it inadmissible? Because of the hearsay rule. Indiana's hearsay rule is similar to most states' rules, in that it contains an exception for business records. However, a record must meet certain standards to meet that exception. What are those standards? They're a bit wordy:

"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. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

Rule 803, Indiana Rules of Evidence.

It seems to me, then, that any set of affidavits and account statements must properly track the language of Indiana Rule 803(6). In Arizona, which has a similar rule, a creditor didn't know how to properly track Arizona Rule 803(6), so the affidavit and account statements were stricken as inadmissible. You can read the chain of logic for how the court concluded that, here, and then use similar logic in your motion to strike:

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

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