browniebrownie141

is there a effective way to pull case law ....I feel like finding a pin in the ocean...

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Hi Everyone, 
 

Just curious, is there a effective way by Pro(s) like you all, to pull case law ( in California) ? I feel like finding a pin in the ocean,...

 

I am trying to find some case law that the defendant files for motion summary judgment Vs. plaintiff, as they plaintiff does not have any contract with defendant. 

 

Million thanks, 

 

 

 

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@browniebrownie141

 

Go to http://scholar.google.com/schhp?sciui=2&hl=en&as_sdt=0,41

 

Click on "legal documents".  It will then show that you can "select courts".  Select CA.  Then click "Done".  After that, enter your search terms. 

 

Find out to which court you would appeal if you lost your case.  The best case law would come from that court and the CA Supreme Court.

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Hi Everyone, 

 

Just curious, is there a effective way by Pro(s) like you all, to pull case law ( in California) ? I feel like finding a pin in the ocean,...

 

I am trying to find some case law that the defendant files for motion summary judgment Vs. plaintiff, as they plaintiff does not have any contract with defendant. 

 

Million thanks, 

 

Besides Google Scholar, also do a regular Google search.  It will sometimes pull up cases not on Google Scholar, or it may give you pleadings or comments about the subject you are interested in.

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When citing case law, you do need to include if a case is published or unpublished.  Even if the ruling is from your court of appeals or state Supreme Court, if it's unpublished, it's not binding precedent.

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I must doing this wrong ?? 5400 + cases. but unrelated ..? how can I every read all????

 

and ....all seems crazy, really ....anything with the word "motion" show up, anything with the word "summary" show up.... 

 

OMG ! Must be a better way , right ?

 

FYI, I walked in to Law Library, they have only west law classic.  but I was able to try lexis nexis , the website recommended by debtzapper.

 

What if, the motion for summary judgment that I bring, do not carry "case law", as a Pro Se, will that considered "dead -on-arrival" ??

 

Million thanks

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spent my lunch time @ law library, then, went back after work....and just came home....
 
I got a very nice lady who walked me thru on how to use West-Law classic, checking different court and unchecked those I don't want want, put in search keywords,....spent more than 20 mins with me....

I think I am doing this wrong, most of the case law(s), are FDCPA & FCRA,...( when I used defendant's motion for summary judgment to conduct the search)

Most of the motion for summary judgment were filed by JDB-the plaintiff, not from defendant. ( more than 4500 + cases)

Other case-law(s) are defendant's response/ reply to plaintiff 's MSJ.

I tired "lack of privity", lack of legal standing"....does not work....

I found 2 cases that I could use for FDCPA/ FCRA violations later.

I even found a free link for using lexus-nexis:

http://www.lexisnexis.com/clients/CACourts/

But I could'nt find what I need !!!

What I am doing it wrong ? There must be some case law(s) that JDB don't have the contract and someone filed MSJ Vs them....

Why could'nt I find it huh.gif? Any suggestions huh.gif
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You have to be careful if you plan on filing a MSJ on them because they don't have a contract.  Depending on what type of account is is, they don't need a contract, acceptance and use of the card is the contract.  If they can prove you recieved and used a card, that is all they need if they are original creditor.  If they are a jdb, they need to prove assignement, and need to lay foundation to get the records entered into evidence.  If you do not know how to defend that, they may oppose your MSJ, and file their own. 

Do you have a thread here about your case?

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...

But I could'nt find what I need !!!

What I am doing it wrong ? There must be some case law(s) that JDB don't have the contract and someone filed MSJ Vs them....

Why could'nt I find it huh.gif? Any suggestions huh.gif

My guess is that it may not exist. Case law is not penned in the trial court. If someone has a valid and convincing MSJ granted against a JDB it is unlikely it would make sense for them to appeal that adverse decision considering the cost and risk versus the 5% of face they invested. Win most, lose a few. Not a bad business model for the JDB.

 

If it was a weak MSJ odds are no judge would have granted it to a pro-se so no appeal and no case law is likely to be created.

 

Having defeated 3 MSJs brought by plainitff mega-bank lawyers and been denied one poorly done defendant's MSJ I am not a fan of time-wasting pre-discovery MSJs. They seem to have some minimal value in ridding the court of an occasional frivolous suit. Their main utility seems to be in pumping up attorney billables and inappropriately slaughtering unprepared defendants in collection cases.

 

If discovery has taken place I would want to be well versed at litigation (or have a competent attorney draft and file it) prior to filing an MSJ.

 

If pre-discovery, I would want to make sure my time would be better spent on an MSJ than spent in discovery efforts, developing defenses, counter-claims, staying up on procedures (for both sides) and deadlines before pursuing a defendant's MSJ.

 

That said, if I found some controlling defendant's MSJ case law precisely mirroring my situation I would serious look into replicating that MSJ win.

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@browniebrownie141

 

While it's possible that you could find a case in which the defendant filed an MSJ, it's not necessary.   You can study cases in which a plaintiff filed an MSJ and lost.   Study the court's reasoning for the plaintiff's loss.  That reasoning could include some useful case law.  Even if the plaintiff won, you'd want to know why the court ruled in favor of the plaintiff. 

 

What exactly are you looking for?

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@browniebrownie141

 

While it's possible that you could find a case in which the defendant filed an MSJ, it's not necessary.   You can study cases in which a plaintiff filed an MSJ and lost.   Study the court's reasoning for the plaintiff's loss.  That reasoning could include some useful case law.  Even if the plaintiff won, you'd want to know why the court ruled in favor of the plaintiff. 

 

What exactly are you looking for?

While this is a very useful methodology (digging through case law cited by the court in their decisions) that I have used in various situations I would caution that in some jurisdictions that a denied plaintiff's MSJ may have minimal relationship to a granted defendant's MSJ. They are not necessarily two sides of the same coin.

 

IMO The judge is going to need a lot of "guidance" to grant a pro-se defendant's MSJ (especially pre-discovery) in a collection case. I believe case law cites will likely be necessary to prevail YMMV. A denied MSJ is typically not an appealable event since it lacks finality. I would personally prefer pouring my blood, sweat, and tears into making an appealable trial court record.

 

I would search this forum and the Internet to locate a similar situation where a defendant was granted an MSJ (that was not reversed on appeal) in a collection case. Such a search should provide some insights.

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While this is a very useful methodology (digging through case law cited by the court in their decisions) that I have used in various situations I would caution that in some jurisdictions that a denied plaintiff's MSJ may have minimal relationship to a granted defendant's MSJ. They are not necessarily two sides of the same coin.

 

I didn't know that she was filing an MSJ.

 

I understand that they're not necessarily two sides of the same coin.  However, studying both sides is both instructive and useful.

 

In any case, whether one is filing or opposing an MSJ, studying court rulings in which the courts granted or denied motions is instructive in determining the courts' criteria for a successful MSJ. 

 

In cases in which the courts ruled in favor of the moving parties, one studies what evidence and arguments were presented by the moving parties.  Study the referenced case law.  Pay attention to the reasons the courts give for the others parties' failure to defend against the motion.

 

If an MSJ was denied, again, study the courts' reasoning.  What evidence, affidavits, etc. was insufficient to support the motion?  What arguments by the other parties' were sufficient to show that there were still issues of material fact that needed to be resolved?  Were there any procedural errors?

 

All of the above can also be helpful in creating an appealable record.

 

I would search this forum and the Internet to locate a similar situation where a defendant was granted an MSJ (that was not reversed on appeal) in a collection case. Such a search should provide some insights.

 

 

Yes, it would provide some insights if the issues in the case are the same as your issues.  If any of the issues are the same, one would definitely use any case law that was cited whether binding or not binding.  But, one also has to take into consideration that judges don't always agree with each other.    Another judge may not agree with the ruling in the successful defendant's case.  In addition, if the ruling for the successful defendant was in a county court, the judge's opinion would not be binding in other courts.  

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...

I am trying to find some case law that the defendant files for motion summary judgment Vs. plaintiff, as they plaintiff does not have any contract with defendant.

...

didn't know that she was filing an MSJ.

...

If an MSJ was denied, again, study the courts' reasoning.  What evidence, affidavits, etc. was insufficient to support the motion?  What arguments by the other parties' were sufficient to show that there were still issues of material fact that needed to be resolved?  Were there any procedural errors?

 

All of the above can also be helpful in creating an appealable record.

...

Yes, it would provide some insights if the issues in the case are the same as your issues.  If any of the issues are the same, one would definitely use any case law that was cited whether binding or not binding.  But, one also has to take into consideration that judges don't always agree with each other.    Another judge may not agree with the ruling in the successful defendant's case.  In addition, if the ruling for the successful defendant was in a county court, the judge's opinion would not be binding in other courts.  

I read it as the OP wished to file a defendant's MSJ.

 

The best I can tell this is not a highly trafficked path with scores of successful stories in a collection context. Thus my reluctance to recommend proceeding without serious consideration and research.

 

A denied defendant's MSJ is not likely to be an appealable event.

 

Opposition to a plaintiff's MSJ is a well traveled road and should be an appealable event assuming a proper record has been made and the MSJ is granted to the plaintiff.

 

Since I have not seen a successful defendant's MSJ in a collection context *I* would want to start by determining if I was blazing a new trail that is mostly untraveled. Assuming I am unable to find any indication of others successes I may wish to choose a different (better odds) approach and not waste a lot of time piecing together distinguished case law that may provide some insight on how to proceed.

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Since I've been back, I've noticed too many members from California relying solely on the federal FDCPA. Take the time to study California's own FDCPA, known as the Rosenthal, located at California Civil Code 1788.1 et seq. Yes, it's content follows the federal, overall. Yes, you may use it instead of the federal. Read federal FDCPA 816. As long as the state is not inconsistent, and offers more protection, you're fine. Go to the California Department of Consumer Affairs. Type in "Summary of the Rosenthal", and go. If still there it should take you to the summary. We used to have it here in our old "Sticky', but, it stopped working some time back. It is about 32 pages long and explains California's position on this. For example, an OC is liable if they attempt to collect their own debt. And, can be held liable under federal if the violate state. As an add look up "Ironman" here and rad his posts. He was relentless in his pursuits and shared a lot of good info for all of us. I haven't talked to him in a few years. Another is "ADSOFT" who did some incredible research. Both are here in So. Cal.

Regarding the court decisions, I wrote a post on this a few years ago. Many courts will "look to their neighbors", in and out of state, to see how they are handling cases. One has to know that there are variables involved that do get overlooked too many times. A decision from one court, no matter the jurisdiction, is not a guarantee of prevailing in another court, even in the same jurisdiction. Again, it all depends on the argument presented, and how it applies to your situation. Another being if the decision is from another state or district. An example is A$$et who won a decision in Michigan that claimed since they now own the debt, they are not liable under the FDCPA. They tried it in other states and lost, one being Florida. In short, take the time to understand the arguments and decisions, compare to your situation, and decide if they apply, even in the slightest. Just because it is from another state or district does not matter. BUT, if from another state or district, it is not a guarantee you will prevail. BUT, you could if you can sway the judge with your argument. Just be positive your argument does fit the statutes in that jurisdiction. REMEMBER, the argument lost is the argument not presented. And, you must present an argument to even have a chance at prevailing. By this, you would write your outline, citing the foreign decision, as the judge most likely ask where you got the info, being sure to comment as to how near their statutes are in relationship to the jurisdiction you are in. Your goal is to assure the claim is resolved in an amicable manner, with you being the winner. Even if the claim is valid, within statute, and due, your goal is to settle for less than claimed. The most important thing to remember, is to argue only on items that can be honestly disputed, such as, does a contract exist, is this the correct amount. Forget the claim that you were never notified by mail. Majority of the itme, the judge sides with the CA/JDB/ATTY, as all they have to say is they did mail you a letter to your last known address. And, since in their daily operations, send mail by USPS, it is a done deal.

Lastly, if you get some free time, spend time in the courtroom of all small claims in your jurisdiciton to see how each of the judges handle things. This way you will have some insight on what you need to do to be fully prepared to argue in front of them.

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First of all, thanks for all the input, I mean it.

 

Perhaps I did'nt explain my situation enough, so here it is:

 

Original creditor sold the account to 2nd junk debt buyer (JDB) then, sold it to 3rd JDB ( = plaintiff), filed lawsuit Vs. me.  

 

Common count,open account,  less than $5K, refused to validation of debt, refused cease desist letter. When I first sent completed set Discovery to them ( I case filed stamped and proof os service for my protection) , they refused to reply. Then I sent Meet & Confer letter, they refused to reply. I filed motion to compel, then they replied.

 

From their reponse, they admitted that they do not have any contract, nor any agreement from OC, no user agreement....the only thing they have is a so -called 1 page Bill of Sale/ assignment, which by the way, does not even reference to my name / account on it. But the Bill of sale/ assignment, was signed with OC, which does not making any sense. if it's the real Bill of Sale, it would be from 2nd JDB. My bet is, this 1 page Bill of sale, more like ....you know what I mean...

 

I am thinking "about double barrel shooting" , First subpoena the person who signed the Bill of Sale ( OC) for hearing appearance and production of documentation to break their Bill of Sale assignment, then...filing for MSJ as they themselves admitted, they don't have any other evidance.

 

No contract with plaintiff and defendant; no contract / agreement no other evidance/ Bill of Sale crashed, chain of custody broken = Lack of Privity.

 

This is the reason why I am now looking for case law.

 

when I did the search, I find many case ( the type I am lookinf for, defendant's MSJ Vs. platiniff ) turns out to be FDCPA/ FCRA related, while they are useful to me, as I do filed a separated lawsuit Vs. the plaintiff.

 

But I could ONLY found 1 that is similar to what I want, but it was a case in GA, not California....this case, I was hoping I could use because it was indeed very very interesting....

 

The plaintiff actually filed MSJ Vs. defendant, because they had 1 page of Bill of Sale, ( similar to my case), the Judge granted the MSJ to plaintiff.

 

Then, the defendant appealed, stating the Bill of Sale was not referencde to his name & account #. So, they crashed that MSJ, and granted the defendant.  

I think I am in a better position than that defendant 's ( the GA's case-law) :

 

WIRTH v. CACH, LLC. 300 Ga. App. 488, 685 S.E.2d 433 (2009)

WIRTH v. CACH, LLC. -- October 15, 2009
William R. Carlisle, Sugar Hill, for appellant.Fred J. Hanna, James T. Freaney, for appellee.In this action on an open account, we granted Donald Wirth's application for an interlocutory appeal to review whether the trial court erred in granting summary judgment in favor of Cach, LLC (³Cach´) omits claim to recover past due sums under a credit card account agreement Wirth allegedly entered intowith Providian National Bank (³Providian´). Wirth appeals, arguing that Cach was not entitled to summary judgment because the record failed to include or reference a written assignment proving that Cach was the real party in interest, as assignee of Providian. Finding that

Cach failed to show that it was entitled to file suit to recover the outstanding debt against Wirth, we reverse. ³Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

OCGA § 9-11-56©.´ (Citation and punctuation omitted.)Rabun v. McCoy, 273 Ga.App. 311, 615 S.E.2d 131 (2005). ³We review the grant or denial of summary judgment de novo, construing the evidence in favor of the non movant.´ Id.So viewed, the evidence shows that Cach, alleging it was the assignee of Providian, brought this suit to collect the principal amount of $2,310.72 owed on a credit card account agreement allegedly entered into by Wirth and Providian. Attached to the complaint was a standard cardmember agreement entitled ³PROVIDIAN NATIONAL BANK VISA AND MASTERCARD ACCOUNT AGREEMENT.´ Wirth filed an answer to the complaint, in which he asserted that Cach was not the real party in interest

(OCGA §9-11-17(a)) and also filed a counterclaim under the Fair Debt Collection Practices Act. 15 USCS §1692e.

Thereafter, Cach filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on its complaint. Attached to its motion was an affidavit from Tiffany Corrales, who identified herself as an authorized agent of Cach and business records custodian of its credit card accounts, including that belonging to Wirth. Corrales stated that Providian ³assigned all rights and interests of [Wirth's account] to [Cach].´ Cach also moved for partial summary judgment on Wirth's counterclaim, arguing that Wirth failed to prove any genuine issue of fact to support such claim. Finding ³no genuine issues of material fact and [that] Cach is entitled to judgment as a matter of law,´ the trial court granted Cach's motion for summary judgment and entered judgment in its favor and against Wirth in the principal sum of $2,310.72, plus interest,attorney fees and court costs. The trial court also granted Cach's motion for partial summary judgment and dismissed Wirth's counterclaim with prejudice.Wirth argues that the trial court's order was not supported by any evidence of a written assignment to prove that Cach was the real party in interest. We agree.

³THE DOCTRINE OF PRIVITY OF CONTRACT requires that only parties to a contract may bring suit to enforce it. [Cit.]´ Scott v. Cushman & Wakefield of Ga., Inc., 249 Ga.App. 264, 265, 547 S.E.2d 794 (2001);

OCGA §

9-2-20(a). ³A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.´ (Punctuation and footnote omitted.) Nyankojov. North Star Capital Acquisition, 298 Ga.App. 6, 8, 679 S.E.2d 57 (2009). Further, the writing ³must identify the assignor and assignee.´ (Footnote omitted.) Id. To prevail on its motion for summary judgment, Cach, as movant, has the burden of ³establishing the non-existence of any genuine issue of fact,´ including Wirth's assertion that Cach is not the real party in interest, and ³all doubts are to be resolved against [Cach].´ (Citation and punctuation omitted.) Sawgrass Builders v. Key, 212 Ga.App.138(1), 441 S.E.2d 99 (1994).Here, Cach relies on the Corrales affidavit to show that Providian assigned to it ³all rights andi nterests [to Wirth's account].´ The affidavit, however, fails to refer to or attach any written agreements which could complete the chain of assignment from Providian to Cach. Further, the account invoices upon which Corrales relies reflect that Wirth's account was with Washington MutuaL

 

I need to have case law that defendant's filed MSJ that plaintiff does not have evidance.....I really wish I could use this one....honestly I was :yahoo: and then little almost cry....its's from GA , not california.

 

 

Ladies,  Gentlemen, anyone can give me a helping hand, lead me to the right direction ? Million thanks

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Listen to others, but did you get your motion to compel granted? What specifically did you ask for in the motion.....what documents?

They should have bill of sale OC to JDB 1, then bill of sale JDB 1 to JDB 2. They need an affidavit from oc to JDB one that states your account with acct number listed was part of that sale referenced, and how much you owed, and the records were correct and the affiant has personal knowledge of how they ( the OC) kept and maintained those records for accuracy. Then another one from JDB 1 to JDB 2 that says basically the same thing.

If you didn't get any of that, you are in a good position. What docs did you ask for that they did not supply?

Unless you have admissions deemed admitted because they didn't reply, that had things in it like " admit defendant does not owe plaintiff xxxx". Or something to that effect, and they didn't send you documents you requested after a compel motion was granted, I am not so sure I would file a MSJ. Your case would be very winnable, but don't look for the easy way out as it could backfire on you.

As someone once said here " it is a marathon, not a sprint"

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@shellieh98:

 

-yea, "motion to compel" to response discovery ( all 3 admission, interrogatories and requestion for doc to be produced) was granted because they did not responsed / their attorney did not responsed.

 

-but no sanction was granted as I was respresenting myself.

 

-"They should have bill of sale OC to JDB 1, then bill of sale JDB 1 to JDB 2. They need an affidavit from oc....." No, they just sent me a 1 page "Bill of Sale/ assignment, signed by OC to them,and that was so brief, that it only occupied 1/3 of the paper,  Bill of sale / assignment does not referenced to my name nor any account #.....this is why I think, I am in a better position.

 

Yeh,...it is a endurance race. I agree with you. Most of the time, too many people ignored the Summon, they resulted in getting default judgment, salary garnishment,.....all these and that....for those who fight.....is a marathon.

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As explained on Wikipedia ( https://en.wikipedia.org/wiki/Summary_judgment ):
...

Issuance of summary judgment can be based only upon the court's finding that:

1. there are no disputes of "material" fact requiring a trial to resolve, and
2. in applying the law to the undisputed facts, one party is clearly entitled to judgment
.

 

I would want to determine the required elements to prove an "open account" in California. Admission by the plaintiff of any missing element should be grounds for a grant of a defendant's MSJ.

 

Based on the lack of an assignment, assuming they are properly challenged, opposing would seem to have a real party in interest issue to surmount. It is unclear how the OP caused any damages to the party suing.

 

A competent consumer attorney would be a nice addition to tip the scales in favor of the OP by driving up costs and risks to opposing which, as indicated here, ought to know they have an unprovable case. Discussing the case with a few consumer attorneys might be worthwhile.

 

Still not convinced *I* would pursue a defendant's MSJ if I was similarly situated. I suppose I am just not a fan of them. :-)

 

Best of success to the OP.

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In a recent state court case, a Missouri court similarly reversed a judgment originally entered in CACH, LLC’s favor. See CACH, LLC v. Askew, 358 S.W.3d 58 (Mo. 2012). Specifically, the court found that CACH had not proved that it owned the debt in question when it sued Plaintiff and therefore had no standing to sue Plaintiff. The same result obtained in See Wirth v. CACH, LLC, 300 Ga. App. 488 (Ga. Ct. App. 2009), where the Court reversed the trial court’s grant of summary judgment in CACH’s favor, having found that CACH was not a real party in interest to the debt. In a state court case in Georgia, the Court likewise reversed summary judgment originally entered in favor of CACV of Colorado, LLC after finding that CACV was not a real party in interest to the debt sued upon and therefore had no standing to sue Plaintiff.. See Hutto v. CACV of Colo., LLC, 308 Ga. App. 469 (Ga. Ct. App. 2011

 

From the web page of Schlanger and Schlanger, a NY consume law firm

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I think if you decide to go the route of MSJ, you need to make sure you have your arguements in order if they produce any  triable issues of material fact.  Like the defendant they only need one.  If they can produce 1 CC statement, that could be a issue of a triable material fact.  So MSJ could be denied. Unless you can get them on standing, I would be inclined to see it to the end.  that means asking for a ccp96, then subpoena the ccp98 witness and win it that way.  you already said you were filing FDCPA and other violations in a separate case, so that does not come into play.  File your other case now, and they may fold before you do anything with this one.

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