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TX Granted a new trial after Summary Judgment signed--what now?


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Hello -- I am a newbie here so if I am in the wrong place please let me know and I will make the correction immediately.
My question is simple I am pretty sure---I am in Texas and I had a debt collector get a summary judgment on me (they were tricky--they hid the hearing date from me so I was not in attendance).
 
I made a motion for a new trial and it was granted.  I have looked everywhere and cannot find anything about what my next move is.  I found one appeals court case that said getting a new trial granted is like starting all over again however---I doubt the debt collector is going to serve me again with an Original Petition.
 
So what should my next move be....The actual trial is set for sometime in April of next year.  I don't think it would be wise to wait for this date knowing how aggressive this collector is.
 
I was not going to list what I have done so far in an effort to keep this simple but after some thought, I have decided to go ahead and include the contents of a Certified Mailing I just sent to the court and to the debt collector (attorneys) a couple of days ago.  The mailing included:
1.       Defendant's (my) Answer to Plaintiff’s Original Petition (denying all and including a bunch of applicable affirmative defenses)
2.       Plea to the Jurisdiction (The original petition only says the plaintiff owns the debt--but not how they came to own it--a lack of standing issue).  
3.       Exhibit A Plaintiff’s Original Petition (3 Pages)  (as a courtesy to the judge -- trying to make it easier on him)
4.       Order for Dismissal/Non-Suit (probably wishful thinking on my part but just in case)
5.       Request for Disclosure (In the Summary Judgment the plaintiff had 4 affidavits that are all pretty weak---most of my discovery centers around denouncing the affidavit information even though I know they don't exit legally yet)  which also included the following:
a.       Defendant’s Request for Admissions,
b.      Defendant’s Request for Production of Documents and
c.       Defendant’s Request for Interrogatories.
d.      Affidavit: Plaintiff’s Answers to Defendant’s Interrogatories (Notarized)(for the Plaintiff to sign)
 
Hopefully what I have done so far does not over complicate the issue for some person who answers---my question is simply...if I had done nothing so far, what would my first move be??  What would you do??
 
I want to thank you in advance for any information that comes my way---I am so impressed with many of the folks who make up this forum!

 

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So you served discovery on them, production of documents, have they answered? What evidence did they send you in the M s j?

What did you ask for in your discovery? Have they asked for discovery?

So glad to see you taking a look at this shellie---I have seen many of your other writings and they were all great!

My outline above details everything I have sent so far (I put additional comments in the parenthesis)

1. yes I served discovery on them as noted above but they have not answered

2.  As noted in #5 above I did send a request for disclosure----I sent it both to the court and to the plaintiff---I could be in trouble over this--the Texas Code of Civil Procedure (around 500) says I am supposed to get permission to send discovery first from the judge and if I don't I could be faced with sanctions whatever that means???)  This  note in the procedures manual runs contrary to all the previous notes in the procedures relative to discovery that pretty much states you are free to send it.

3.  The only evidence they came up with on the MSJ was the affidavits which supposedly proved their ownership of my account---my discovery was aimed at the big holes is this transfer of ownership from one debt collector to another.

I thinks that answers your questions....let me know if there is anything else please!!!

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Well sort of lol.

In order to win a case against you they will need a few things, not just affidavits.

Details of the account they are suing you on, such as at the very least a charge off statement from the original creditor.

Depending on what they are suing you for ( the cause of action) a contract, or credit card agreement that governs the account.

They need a bill of sale from the original creditor to the JDB, along with that some sort of data sheet, and an affidavit from the original creditor who under oath says your account xxxxx was sold in a pool of accounts, you owed xxxx.xx at the time of sale, and it come from someone with personal knowledge of how they kept and maintained their records, they reviewed yours, and amounts are correct.

Then if the account was sold to JDB #2 they need all that same stuff as the first one, and so on.

They can win unless you object to all this stuff, if any of that stuff is let into evidence. Your main mission will be to keep it out while following the rules of your court.

So what do your rules say...do you have a disclosure rule? If you don't, you would jump right into discovery.

If you have regular discovery (colorado only has disclosure unless court orders discovery) then they only had 30 days to answer your discovery. Find out your rules, then pursue that discovery by sending them a meet and confer letter giving 10 more days, and by filing a motion to compel, or preclude in the alternative.

Read your rules on admissions....if they don't answer them are they deemed admitted? Or does it say they may be deemed admitted? (Makes a difference). Did you have any damming admission requests such as " admit the defendant is not indebted to xxxx for the amount of xxxx.xx.) ?

What did you ask for in your doc requests?

Had to crack up you said you've seen me all over, maybe I'm spending a little to much tome on here lol. I usually have my I pad handy, so it's easy to check in.:) I really do have a life.

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I believe that you will be ok on the discovery things unless you went above thirty five requests total. also disclosure was most important. I think you are doing well because you got a texas judge to overrule himself/herself. Good job, prepare for trial, read this: http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

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I believe that you will be ok on the discovery things unless you went above thirty five requests total. also disclosure was most important. I think you are doing well because you got a texas judge to overrule himself/herself. Good job, prepare for trial, read this: http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

 

 

  This, from everything I've heard, a successful motion for a new trial is like the legal equivalent of defeating gravity, a lot of judges would just prefer to have it go to the appeals courts and let them worry about it, if it gets there at all, this is awesome to hear!!!!

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Well sort of lol.

In order to win a case against you they will need a few things, not just affidavits.

Details of the account they are suing you on, such as at the very least a charge off statement from the original creditor.

Depending on what they are suing you for ( the cause of action) a contract, or credit card agreement that governs the account.

They need a bill of sale from the original creditor to the JDB, along with that some sort of data sheet, and an affidavit from the original creditor who under oath says your account xxxxx was sold in a pool of accounts, you owed xxxx.xx at the time of sale, and it come from someone with personal knowledge of how they kept and maintained their records, they reviewed yours, and amounts are correct.

Then if the account was sold to JDB #2 they need all that same stuff as the first one, and so on.

They can win unless you object to all this stuff, if any of that stuff is let into evidence. Your main mission will be to keep it out while following the rules of your court.

So what do your rules say...do you have a disclosure rule? If you don't, you would jump right into discovery.

If you have regular discovery (colorado only has disclosure unless court orders discovery) then they only had 30 days to answer your discovery. Find out your rules, then pursue that discovery by sending them a meet and confer letter giving 10 more days, and by filing a motion to compel, or preclude in the alternative.

Read your rules on admissions....if they don't answer them are they deemed admitted? Or does it say they may be deemed admitted? (Makes a difference). Did you have any damming admission requests such as " admit the defendant is not indebted to xxxx for the amount of xxxx.xx.) ?

What did you ask for in your doc requests?

Had to crack up you said you've seen me all over, maybe I'm spending a little to much tome on here lol. I usually have my I pad handy, so it's easy to check in. :-) I really do have a life.

I can tell my efforts not to over burden you (or others) in an attempt to keep it simple and avoid confusion is not going to work---my fault---I should know that the more simple I try to keep it, inquiring/intelligent minds are going to have questions---so here we go with the explanations to your questions (and I want to thank you again for having questions)!  Here are the answers and some statements to the questions you have posed.

  1. This is not a credit card debt.  It is a business debt.  They (the plaintiffs) have all the statements since day one (including the charge off statement) and they have a signed agreement with the borrowing company signed by me AND they have a Guarantor agreement signed by me which is supposed to be secured by a UCC1.   
  2. Yes it does appear (on the surface) they have all the goods to win however where they fall way short is in their affidavits for ownership (and that chain of ownership) that you do mention (from original creditor to debt buyer/three times).  This is pretty much my only hope for winning—but my chances are good for reasons I can detail later if you would like.  In short, my stance is they lack standing on this matter.  I believe I would be successful using a Motion to Strike (their ownership affidavits).  If I am successful with that, their other affidavits will crumble too (like attorney’s fees).  And I should win as a result.
  3. I have studied the Civil Procedure Rules for Texas extensively and sometimes they do become a little confusing because some rules seem to run contradictory to other extremely similar rules.  Please note: my main question is I HAVE BEEN GRANTED A NEW TRIAL.  NOW WHAT?  But to address your questions I can only give answers as if this was round one (the original trial) and not round 2 (the new trial) which is where all my confusion is coming from):
    1. Yes there is a disclosure rule: this is one of those rules that show up in two different places—one place in the Civil Procedures Manual addresses all the types of questions you are asking here.  Then way down in the procedures manual around rule 500 it gets much more complicated and states something like if you don’t get your request for disclosure signed by a judge first—you could get hit with sanctions???????   I need to study this further which I will do.  
    2. I am aware of all the procedures to Compel.  I asked for all the information you noted plus quite a bit more for that matter.  And in the admissions—if a person does not answer these it is considered admitted.
  4. I think I have a pretty good handle on this sort of thing but the GRANTING OF A NEW TRIAL and the WHERE DO I GO FROM HERE is what is sending me into a tailspin because I can find nothing on it.  One of the responses I got on this site stated something like getting a judge to grant a new trial is similar to defying gravity (talk about making me feel good about self) which would mean this situation seldom happens so there is not much for me to read and learn from.  If I search the forums on this site and others for “new trial granted” nothing comes up.  So let me cut to the chase with the questions confusing me:
    1. Should I expect to be served again??  I don’t think so.  I am assuming that the new trial is based on the original petition.  That is why I prepared a 29 page response (outlined above) as if I had just been served.  Am I right or wrong in this approach?
    2.  Should I again answer the discovery questions presented to me by the plaintiff along with the original petition (this time I would answer them with more detail and understanding)?  I have read a couple of decisions from Texas appeal courts where the appealing party lost (after a new trial had been granted) for failure to answer the questions.  I can only assume at this point those “questions” were the questions posed during discovery.  Should I break out those old disclosure documents from the plaintiff and answer them again only better this time???
    3. Can I file a motion to strike the chain of ownership affidavits now?  I do not believe I can at this point because those affidavits showed up in the last trial in a MSJ so I do not believe they actually exist yet in this trial.  However I will say, my discovery questions are aimed at the holes in their claim to ownership as a backup plan.
    4. Do the plaintiffs even have to answer my discovery question this time around?  I am not sure one way or the other and nothing in the Civil Procedures address this in a New Trial scenario to the best of my knowledge.  Does anybody else have any insights as to the finer points in matters relative to “how to approach a new trial granted”?

If I could know the answers to these four questions above, I believe I could get on to the path of the righteous (trying to add some humor here).  If this entry was not so long already I would throw in a rather humorous antidote the judge elaborated on right after he granted me the new trial but I will spare you this time.  And as you may be able to tell Shellie I am not lucky like you….I obviously have no OTHER life.  LOL        

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Well I had to check in on this thread because you posted to it. But! I have made a fabulous Italian dinner tonight, and while I cook with wine,. I managed to drink a good nit of it also.(angel icon here) <------------.

So I am going to refrain from any advice I might have until tomorrow.

That being said did the judge sign an order for a new trial, or rather an order for vacating the MSJ? That would make a difference.

Oh and listen to my friend @Seadragon . He is very smart, and is the one person who helped me when I was a newbie. It is because of him that I took on reading and studying not only my rules, but other state rules in an effort to help. I think I am different here because I tend to explain things in a layman way more people can understand, but I in know way know it all. Talk more tomorrow.

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Well I had to check in on this thread because you posted to it. But! I have made a fabulous Italian dinner tonight, and while I cook with wine,. I managed to drink a good nit of it also.(angel icon here) <------------.

So I am going to refrain from any advice I might have until tomorrow.

That being said did the judge sign an order for a new trial, or rather an order for vacating the MSJ? That would make a difference.

Oh and listen to my friend @Seadragon . He is very smart, and is the one person who helped me when I was a newbie. It is because of him that I took on reading and studying not only my rules, but other state rules in an effort to help. I think I am different here because I tend to explain things in a layman way more people can understand, but I in know way know it all. Talk more tomorrow.

Shellie, one of my favorite lines in Shakespeare is “discretion is the better part of valor” and anybody who manages to drink a good “nit” of it---is brilliantly applying this rule of thumb.  LOL

Your question “did the judge sign an order for a new trial, or rather an order for vacating the MSJ?” is a good one because I do not know the answer to that one.  I believe when a judge grants a new trial it automatically sets aside the judgment.  Here is a link that I think adequately explains the situation http://www.ehow.com/info_8082579_reasons-vacate-judgment-texas.html

I will go into the rules again based on the information in this link to see if I can define exactly what “set aside” is supposed to mean.  For instance does it mean the SJ is still out there and can raise its ugly head at any time in the new trial?  If that is the case I need to check to see if I can institute a Motion to Strike the affidavits at this point??  I believe a new trial means that a summary judgment must be introduced again but I am definitely not sure of that one.

You’re so right about Sea Dragon.  I have read a lot of his stuff and often stand in awe due to the high quality content of his shared information and his obvious unselfish commitment to helping others; pretty amazing actually.

Looking forward to…”talk more tomorrow”.

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In your rules there is this.

(B) Motion to Set Aside Default. A defendant against whom a default judgment is granted may file a motion to set aside the judgment no later than 14 days after the judgment is signed. The defendant must serve the plaintiff with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The court may set aside the judgment and set the case for trial for good cause shown.

© Motion for New Trial. A party may file a motion for a new trial no later than 14 days after the judgment is signed. The party must serve all other parties with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The judge may grant a new trial upon a showing that justice was not done in the trial of the case. Only one new trial may be granted to either party.

So it can be confusing. I would be inclined to look at the file at the court, ask the clerk, going forward would depend. In my opinion, I would think you pick up the case right where you left off, but if it is really a new trial, I think you start over.

(Wow I'm a lot of help).

So look at the file, does it show a ruling that would require plaintiff to start over? talk to the clerk, if the file looks like the case is still ongoing, your trial date still looks like it is set, I would continue the steps on getting the plaintiff to answer my discovery requests. I'm sure they are late by now. ;) I don't think you use a meet and confer in tx, but a note to the other side is always good. And there are 2 people here that are very knowledgable in your rules giving a shout out to. @texasrocker, @TomnTex

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In your rules there is this.

( B) Motion to Set Aside Default. A defendant against whom a default judgment is granted may file a motion to set aside the judgment no later than 14 days after the judgment is signed. The defendant must serve the plaintiff with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The court may set aside the judgment and set the case for trial for good cause shown.

© Motion for New Trial. A party may file a motion for a new trial no later than 14 days after the judgment is signed. The party must serve all other parties with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The judge may grant a new trial upon a showing that justice was not done in the trial of the case. Only one new trial may be granted to either party.

So it can be confusing. I would be inclined to look at the file at the court, ask the clerk, going forward would depend. In my opinion, I would think you pick up the case right where you left off, but if it is really a new trial, I think you start over.

(Wow I'm a lot of help).

So look at the file, does it show a ruling that would require plaintiff to start over? talk to the clerk, if the file looks like the case is still ongoing, your trial date still looks like it is set, I would continue the steps on getting the plaintiff to answer my discovery requests. I'm sure they are late by now. ;-) I don't think you use a meet and confer in tx, but a note to the other side is always good. And there are 2 people here that are very knowledgable in your rules giving a shout out to. @texasrocker, @TomnTex

Thank you so much Shellie for your input.  You are so right, it can be confusing.  There are other places in the Texas Rules that use other number of day limits---ex: some say you have 30 days to place a motion for new trial after the SJ is signed.  My big concern is that I cannot seem to find anything in writing that deals specifically with the rules for "after a new trial is granted".

 

I truly appreciate your recommendation to the two folks who are very knowledgeable about the TX rules.  I will do my best to figure out how to contact them--I am sure it can't be that hard.  Thanks again and if you don't mind---I will keep you posted!  

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I believe if the new trial motion is granted then yes everything is set aside. Prepare for actual trial so check your state rules concerning witnesses and make sure you force the "witness to trial.

Seadragon, please forgive me for not replying sooner (on your previous post).  You simply have so much great/useful/helpful information on this site, I wanted to read bunches of it before I replied and so I did.

 

You are so right on your note here about "set aside" and forcing "witnesses to trial".  Unfortunately subpoenas are only good for 150 miles here in TX and Dallas (where their witnesses are) is 240 miles from Houston.  So I am left with Motions to Strike the affidavits that were used in the MSJ in the last case that I understand do not exist in this case as of yet.  Sheesh!!

 

I need to find the rules that tell how to proceed after a new trial is granted---I am not even sure those rules actually exist at this point! 

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  • 2 weeks later...

Seadragon, please forgive me for not replying sooner (on your previous post).  You simply have so much great/useful/helpful information on this site, I wanted to read bunches of it before I replied and so I did.

 

You are so right on your note here about "set aside" and forcing "witnesses to trial".  Unfortunately subpoenas are only good for 150 miles here in TX and Dallas (where their witnesses are) is 240 miles from Houston.  So I am left with Motions to Strike the affidavits that were used in the MSJ in the last case that I understand do not exist in this case as of yet.  Sheesh!!

 

I need to find the rules that tell how to proceed after a new trial is granted---I am not even sure those rules actually exist at this point! 

Exactly if you look in the rules then you will probably see that affidavits executed in excess of the courts jurisdiction 150 mile limit would necessarily be invalid if YOU MAKE A WRITTTEN OBJECTION TO IT IN A MOTION IN LIMINE based on constitutional right to cross examine.

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as for how to proceed, proceed as if the trial was continued for a long time. Read the caselaw, and this to help http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

 

work on your trial brief for the stuff that regularly pops up. issues that are fruitful: The witnesses lack of personal knowledge, the inaccuracies of the records, and the lack of evidence concerning the account ie. lack of evidence of authorized charges, vagueness.

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as for how to proceed, proceed as if the trial was continued for a long time. Read the caselaw, and this to help http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

 

work on your trial brief for the stuff that regularly pops up. issues that are fruitful: The witnesses lack of personal knowledge, the inaccuracies of the records, and the lack of evidence concerning the account ie. lack of evidence of authorized charges, vagueness.

I have been mislead a bit by some of my previous readings---I saw and appellate court comment that the granting of a new trial is like starting all over again but.....I think your take is much more accurate....it looks like it just extends the case.  

 

Your message on a Motion in Limine is something totally new to me so I had to go and study up on that...so far it appears that is a very good way to solidify my defense since my total defense revolves around getting the horrible affidavits discredited.  Those affidavits all use an attorney in the law firm that claims to be a manager in the collection company.  Also the chain of transfer from one company to another (4 times) is very weak.  

 

I found this PDF which I am sure you will find very interesting and something you may want to add to that great arsenal of information you have (and it has Texas application that should interest you too).   http://www.bakerlaw.com/files/publicdocs/news/articles/litigation/kruse-expert_witness_update.pdf

 

Two questions in closing:

Have you seen a good example of a motion to strike debt centered affidavits or/and

A good example of a Motion in Limine relating to debt case affidavits???

 

Sorry but I had to ask.  Thank you so much for all your comments!

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  This, from everything I've heard, a successful motion for a new trial is like the legal equivalent of defeating gravity, a lot of judges would just prefer to have it go to the appeals courts and let them worry about it, if it gets there at all, this is awesome to hear!!!!

If you want a copy of what I sent to the court, I will be glad to send it to you.  But let me warn you, it is about 30 pages long!! 

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I can tell my efforts not to over burden you (or others) in an attempt to keep it simple and avoid confusion is not going to work---my fault---I should know that the more simple I try to keep it, inquiring/intelligent minds are going to have questions---so here we go with the explanations to your questions (and I want to thank you again for having questions)!  Here are the answers and some statements to the questions you have posed.

  1. This is not a credit card debt.  It is a business debt.  They (the plaintiffs) have all the statements since day one (including the charge off statement) and they have a signed agreement with the borrowing company signed by me AND they have a Guarantor agreement signed by me which is supposed to be secured by a UCC1.   
  2. Yes it does appear (on the surface) they have all the goods to win however where they fall way short is in their affidavits for ownership (and that chain of ownership) that you do mention (from original creditor to debt buyer/three times).  This is pretty much my only hope for winning—but my chances are good for reasons I can detail later if you would like.  In short, my stance is they lack standing on this matter.  I believe I would be successful using a Motion to Strike (their ownership affidavits).  If I am successful with that, their other affidavits will crumble too (like attorney’s fees).  And I should win as a result.
  3. I have studied the Civil Procedure Rules for Texas extensively and sometimes they do become a little confusing because some rules seem to run contradictory to other extremely similar rules.  Please note: my main question is I HAVE BEEN GRANTED A NEW TRIAL.  NOW WHAT?  But to address your questions I can only give answers as if this was round one (the original trial) and not round 2 (the new trial) which is where all my confusion is coming from):
    1. Yes there is a disclosure rule: this is one of those rules that show up in two different places—one place in the Civil Procedures Manual addresses all the types of questions you are asking here.  Then way down in the procedures manual around rule 500 it gets much more complicated and states something like if you don’t get your request for disclosure signed by a judge first—you could get hit with sanctions???????   I need to study this further which I will do.  
    2. I am aware of all the procedures to Compel.  I asked for all the information you noted plus quite a bit more for that matter.  And in the admissions—if a person does not answer these it is considered admitted.
  4. I think I have a pretty good handle on this sort of thing but the GRANTING OF A NEW TRIAL and the WHERE DO I GO FROM HERE is what is sending me into a tailspin because I can find nothing on it.  One of the responses I got on this site stated something like getting a judge to grant a new trial is similar to defying gravity (talk about making me feel good about self) which would mean this situation seldom happens so there is not much for me to read and learn from.  If I search the forums on this site and others for “new trial granted” nothing comes up.  So let me cut to the chase with the questions confusing me:
    1. Should I expect to be served again??  I don’t think so.  I am assuming that the new trial is based on the original petition.  That is why I prepared a 29 page response (outlined above) as if I had just been served.  Am I right or wrong in this approach?
    2.  Should I again answer the discovery questions presented to me by the plaintiff along with the original petition (this time I would answer them with more detail and understanding)?  I have read a couple of decisions from Texas appeal courts where the appealing party lost (after a new trial had been granted) for failure to answer the questions.  I can only assume at this point those “questions” were the questions posed during discovery.  Should I break out those old disclosure documents from the plaintiff and answer them again only better this time???
    3. Can I file a motion to strike the chain of ownership affidavits now?  I do not believe I can at this point because those affidavits showed up in the last trial in a MSJ so I do not believe they actually exist yet in this trial.  However I will say, my discovery questions are aimed at the holes in their claim to ownership as a backup plan.
    4. Do the plaintiffs even have to answer my discovery question this time around?  I am not sure one way or the other and nothing in the Civil Procedures address this in a New Trial scenario to the best of my knowledge.  Does anybody else have any insights as to the finer points in matters relative to “how to approach a new trial granted”?

If I could know the answers to these four questions above, I believe I could get on to the path of the righteous (trying to add some humor here).  If this entry was not so long already I would throw in a rather humorous antidote the judge elaborated on right after he granted me the new trial but I will spare you this time.  And as you may be able to tell Shellie I am not lucky like you….I obviously have no OTHER life.  LOL        

To your answer,,,you have a new trial, a do over you start from the beginning 

While they may have all those documents, do they have proof that they are authentic? An affidavit is a piece of paper, what is written on it is moot unless the person that wrote the affidavit is in court to attest to everything in the affidavit. No affiant in court it becomes hearsay and you motion to have those affidavits precluded as evidence. Now did they send those affidavits to you in discovery or were they attached to the complaint? If they attempt to introduce them and they did not attach them to the complaint or send them in discovery you also have grounds to motion for them to be precluded. How do you or the court know who generated those documents if some one from the original creditor can testify they are authentic. If the person attesting to the evidence is not from the original creditor they cannot attest to them be authentic and accurate, for all we know the Plaintiff could have generated them.

 

Question1) no they do not have to serve you again.

Question 2) Only if they send them to you again,,,,check your rules of trial procedure to make sure.

Question3) You could, but why let them know in advance what you plan to do, wait until the trial, unless your rules of trial procedure say other wise.

Question 4) YES

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