pampamk

In need of some direction, served, answered, received interrogatories

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Revised answers for request for admisions...

 

Defendant’s answers to Plaintiff’s Requests for Admissions

 

REQUEST FOR ADMISSIONS

REQUEST NO. 1

Admit that you currently have or have had in the past a Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, which is the subject of this litigation, as evidenced by the statements attached and marked as Exhibit "A". If you deny, please state your reasons.

ANSWER:   After diligent inquiry no information is known or readily available to Defendant.  Plaintiff has not proven account is owed by Defendant, nor has Defendant admitted liability for the account. Therefore Defendant must deny.

 

REQUEST NO. 2

Admit that you owe the sum of $xxxx.xx for your Capital One Bank, N.A. credit card debt incurred by you for account #xxxx xxxx xxxx xxxx, as evidenced by the load data information sheet attached to the Bill of Sale, a copy of which is attached and marked as Exhibit "B". If you deny, please state your reasons

ANSWER:    Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

 

REQUEST NO. 3

Admit that you have not paid the balance due and owing in the amount of $xxxx.xx on your Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, which is the subject of this litigation, to either Capital One Bank, N.A. or plaintiff. If you deny, please state your reasons.

ANSWER:      Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

 

 

REQUEST NO. 4

Admit that pursuant to the Bill of Sale and Assignment of Assets and Affidavit of Sale of Account By Original Creditor, a copy of which is attached and marked as Exhibit "B", Capital One Bank, N.A. sold, assigned and conveyed your account to plaintiff, which is the subject of this litigation. If you deny, please state your reasons.

ANSWER:    The afore mentioned Bill of Sale and Assignment of Assets and Affidavit of Sale of Account by Original Creditor makes no mention of any specific account number or specific account holder name.  Therefore, Defendant must deny.

 

 

REQUEST NO. 5

Admit that you understood from the time your Capital One Bank, N.A. credit card account was opened that you were required and obligated to repay all loans represented as charges, balance transfers and/or cash advances you incurred on said credit card account pursuant to the cardmember agreement, which accompanied the credit card. If you deny, please state your reasons.

ANSWER:   Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

.

REQUEST NO. 6

Admit that because you used your Capital One Bank, N.A. credit card you could be subject to and responsible to pay finance charges (interest), over the limit and/or late charges under certain circumstances as stated in your cardmember agreement and monthly statements (Exhibit "A"). If you deny, please state your reasons.

ANSWER:   Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

 

 

 

REQUEST NO. 7

Admit that you currently reside at or had an address in the past of my address here as listed on the statements attached and marked as Exhibit "A" If you deny, please state your reasons.

ANSWER:   Defendant admits to currently residing at the address mentioned above.

 

REQUEST NO. 8

Admit that the last payment you made on your Capital One Bank, N.A. credit card, account # xxxx xxxx xxxx xxxx, which is the subject of this litigation, was on or about 07/15/2010, in the amount of $xx.00, as evidenced by the statement dated Jun. 19 - Jul. 18: 2010, a copy of which is attached and marked as Exhibit "A". If you deny, please state your reasons.

ANSWER:     Objection: to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

 

REQUEST NO. 9

Admit that you used or authorized the use of your Capital One Bank, N.A. credit card: acct #xxxx xxxx xxxx xxxx, which is the subject of this litigation. If you deny, please state your reasons.

ANSWER:     Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

 

REQUEST NO. 10

Admit that you made charges on your Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, as evidenced by the statements, a copy of which is attached and marked as Exhibit "A". If you deny, please state your reasons.

ANSWER:     Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has not admitted liability for the alleged account.   Without waiving the foregoing objection, after diligent inquiry, no information is known or readily available to Defendant.  Therefore, Defendant denies.

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I would work on # 7 (state the basis of the dispute the claim).  It sounds like your basis for dispute is that they can't prove it, rather than it's not true or yours, etc. You may be better off with an objection there. Why should you have to explain why you dispute?

 

Also; I would replace "not admitted" with "denied" anywhere that you used the terms, as well as any future writings. Judges "skim" read things, and "denied" has a nice ring to it.

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RFA  8 is a trick question. If you deny making a payment on a specific date; then you are admitting to making payments and the existence of the account. You may just want the objection only here.

 

There's probably more as well, I haven't looked very close at this stuff yet,

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RFA  8 is a trick question. If you deny making a payment on a specific date; then you are admitting to making payments and the existence of the account. You may just want the objection only here.

 

There's probably more as well, I haven't looked very close at this stuff yet,

 

I'm not sure I agree with that. Denial of a payment on a specific date doesn't imply you admit to making payments or the existence of the account. I think you're reading into the RFA too much.

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Okay more revisions.... what do ya think?

DEFENDANT’S ANSWERS TO PLAINTIFF’S FIRST COMBINED INTERROGATORIES AND REQUEST FOR ADMISSIONS PROPOUNDED TO DEFENDANT BY PLAINTIFF.

INTERROGATORIES

     1.     Please provide the following information:
             (a)       Full legal name and date of birth;
             ( B)       Social security number;
             ©       Current address, e-mail address, and telephone number;            
             (d)       Current place of employment, including address, and telephone number
                         of employer; and;
             (e)       Driver’s License number and State issued from.

     ANSWER:   My name and address here.   Objection to date of birth, social security number, e-mail address, telephone number, employment and drivers license. On the grounds that it is personal, confidential and private. This interrogatory seeks information that is not relevant to any issue in this action, information is not calculated to lead to the discovery of admissible evidence, information not relevant to any subject matter of this action, and would result in the disclosure of information where such disclosure would violate the privacy rights of the defendant..


     2.      Please state whether or not you have ever had a Capital One Bank, N.A. credit card with an account #xxxx xxxx xxxx xxxx, which is the subject of this litigation, as evidenced by the statements attached and marked as Exhibit "A".

 ANSWER: After diligent inquiry no information is known or readily available to defendant. Therefore, the response is No.


3.     Please reply with either a “yes” or “no” answer as to whether or not you have made any charges on your Capital One Bank, N.A. credit card, acct #xxxx xxxx xxxx xxxx, which is the subject of this litigation.

ANSWER: Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account. Defendant denies.


    
4.     Please reply with either a “yes” or “no” answer as to whether or not you have made any payments on your Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, which is the subject of this litigation, as evidenced by the statements attached and marked as Exhibit “A”.

ANSWER: Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies


5.     Please reply with either a “yes” or “no” answer as to whether or not you made at least your minimum monthly payment every month as required on your Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, which is the subject of this litigation.

ANSWER: Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies.


6.     If you deny Request for Admissions No. 2 below, please state the amount you contend the balance should be on your Capital One Bank, N.A. credit card, acct #xxxx xxxx xxxx xxxx, which is the subject of this litigation.

ANSWER: Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Objection Defendant refuses to make any such ridiculous incriminating statement. Defendant has not been provided with any evidence that Defendant is obligated to such a sum as 'due and owing', or that any debt is owed to Plaintiff, nor has plaintiff provided any foundation as such. Plaintiff fails to prove to be any holder in due course or any real party in interest

7.     Please state the basis of your dispute of this claim?

ANSWER: Plaintiff has not proven legal standing to enforce a contract in this dispute. Plaintiff has yet to prove any contract ever existed. Plaintiff has not provided any evidence in the record proving Defendant is obligated to this alleged account, nor that the alleged debt in question is owed to the Plaintiff
    



8.     Please respond with either a “yes” or “no” that you acknowledge that a letter of explanation addressed to you accompanied this discovery which set forth the entire credit card account number, which is the subject of this litigation.

ANSWER:   A letter accompanied this discovery which set forth the entire credit card account number with reference to Supreme Court Rule 123( B) as to why only the last four digits are used throughout discovery. If this is the “explanation” to which Plaintiff is referring then the answer is yes. If Plaintiff is eluding to any other “explanation” then the answer in No.


9.     Please respond with a “yes” or “no” answer as to whether or not the last payment you made on your Capital One Bank, N.A. credit card acct #xxxx xxxx xxxx xxxx, which is the subject of this litigation, was in the amount of $xx.00 on 07/15/2010, as evidenced by the statement dated Jun. 10 - Jul. 18, 2010, attached and marked as Exhibit “A”.

ANSWER:  Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant denies liability for the alleged account.   Defendant denies.




10.     Please reply with either a “yes” or “no” answer as to whether or not you made any charges on your Capital One Bank, N.A. credit card, acct #xxxx xxxx xxxx xxxx, which is the subject of this ligation, as evidenced by the statements, attached and marked as Exhibit “A”.

ANSWER:  Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.  Defendant denies.
 

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Revised...

 

Defendant’s answers to Plaintiff’s Requests for Admissions

 

REQUEST FOR ADMISSIONS

REQUEST NO. 1

Admit that you currently have or have had in the past a Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, which is the subject of this litigation, as evidenced by the statements attached and marked as Exhibit "A". If you deny, please state your reasons.

ANSWER:     After diligent inquiry no information is known or readily available to Defendant.  Plaintiff has not proven account is owed by Defendant.  Defendant has denied liability for the account. Defendant denies..

 

 

REQUEST NO. 2

Admit that you owe the sum of $xxxx.xx for your Capital One Bank, N.A. credit card debt incurred by you for account #xxxx xxxx xxxx xxxx, as evidenced by the load data information sheet attached to the Bill of Sale, a copy of which is attached and marked as Exhibit "B". If you deny, please state your reasons

 

ANSWER:    Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies

 

REQUEST NO. 3

Admit that you have not paid the balance due and owing in the amount of $xxxx.xx on your Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, which is the subject of this litigation, to either Capital One Bank, N.A. or plaintiff. If you deny, please state your reasons.

ANSWER:      Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies.

 

 

REQUEST NO. 4

Admit that pursuant to the Bill of Sale and Assignment of Assets and Affidavit of Sale of Account By Original Creditor, a copy of which is attached and marked as Exhibit "B", Capital One Bank, N.A. sold, assigned and conveyed your account to plaintiff, which is the subject of this litigation. If you deny, please state your reasons.

 

ANSWER:    The afore mentioned Bill of Sale and Assignment of Assets and Affidavit of Sale of Account by Original Creditor makes no mention of any specific account number or specific account holder name.  Defendant denies.

 

 

REQUEST NO. 5

Admit that you understood from the time your Capital One Bank, N.A. credit card account was opened that you were required and obligated to repay all loans represented as charges, balance transfers and/or cash advances you incurred on said credit card account pursuant to the cardmember agreement, which accompanied the credit card. If you deny, please state your reasons.

 

ANSWER:   Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies.

.

REQUEST NO. 6

Admit that because you used your Capital One Bank, N.A. credit card you could be subject to and responsible to pay finance charges (interest), over the limit and/or late charges under certain circumstances as stated in your cardmember agreement and monthly statements (Exhibit "A"). If you deny, please state your reasons.

 

  

ANSWER:   Defendant emphatically denies. Plaintiff must prove that the alleged 'cardmember agreement' (Exhibit "A") is a cardmember agreement Defendant was ever a party to.

 

 

 

REQUEST NO. 7

Admit that you currently reside at or had an address in the past of my address here as listed on the statements attached and marked as Exhibit "A" If you deny, please state your reasons.

 

ANSWER:   Defendant admits to residing at above address, but receives many articles of mail. It is not admitted that alleged billing statements were ever received

 

REQUEST NO. 8

Admit that the last payment you made on your Capital One Bank, N.A. credit card, account # xxxx xxxx xxxx xxxx, which is the subject of this litigation, was on or about 07/15/2010, in the amount of $xx.00, as evidenced by the statement dated Jun. 19 - Jul. 18: 2010, a copy of which is attached and marked as Exhibit "A". If you deny, please state your reasons.

ANSWER:     Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies.

 

REQUEST NO. 9

Admit that you used or authorized the use of your Capital One Bank, N.A. credit card: acct #xxxx xxxx xxxx xxxx, which is the subject of this litigation. If you deny, please state your reasons.

ANSWER:     Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies

 

REQUEST NO. 10

Admit that you made charges on your Capital One Bank, N.A. credit card, account #xxxx xxxx xxxx xxxx, as evidenced by the statements, a copy of which is attached and marked as Exhibit "A". If you deny, please state your reasons.

ANSWER:     Objection to plaintiff's reference to "your Capital One Bank, NA credit card debt" as it calls for a legal conclusion.  Defendant has denied liability for the alleged account.   Defendant denies.

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Not bad.

 

On RFA # 2 where you deny, I would say: defendant denies this amount as well as any other amount

 

Also, I would just DENY, not "emphatically" deny. The law recognizes admit, deny, admit in part, deny in part, and objection.

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I am thinking of filing a motion to dismiss based on suit being reinstated after SOL. They first filed suit within the SOL, but that suit was dismissed. It was first scheduled to be dismissed by the court for lack of prosecution, but then the plaintiff requested dismissal, and the court ordered it. It was dismissed Aug 15 2012. The plaintiff then requested reinstatement Aug 26,2013, over a year later, and past the SOL...   What do you think???

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I think you would be no worse off.  Nothing ventured, nothing gained.Make sure in your plea you state you were not notified of their file for reinstatement, so you could not oppose it.

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So.... I filed my motion to dismiss yesterday. I will post it later today when I have more time. Right now I have a quick question. Hoping all of you wonderful, brilliant people will help me. I would like to enclose an intent to sue letter with my motion I will be sending the opposing attorney, but would love some input as to the wording. I am assuming it should go something like this....

 

Dear Sir or Madam,

 

Enclosed you will find my motion to dismiss. If you decide to continue with this action you will leave me with no other recourse but to sue you in federal court as you have violated the (insert correct FTC/ FDCPA violations here, one referencing SOL, two maybe even throw in wrong venue?) As I am sure you are aware the federal penalties for such violations is $1000 per violation, and Kansas is $10,000 per violation. 

 

So what do you think..... tweaks???  Thanks. I'm looking forward to your replies! 

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Eh, I'd just sue them. While your letter is "encouragement" for them to drop the case, your better off just going after them.

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One correction that you need to make, the FDCPA only allows $1000 total in statutory damages, not $1000 per violation.  They could violate the FDCPA a hundred times, and the maximum they will have to pay in statutory damages will still be $1000. 

 

Also, I do agree with just going after them.  They have already committed the violations, I would pursue them at this point instead of sending an ITS letter.  But that's me.  You need to decide what your desired goal is in all of this.  if it were me, I would make them pay for their violations.  These companies live off of those violations because they know that VERY few people will ever file suit against them and win.  Most people do not even know when the JDB has violated these laws.  So the money that they would normally have to pay out in settlements or judgments against them is actually nothing more than the cost of doing business.  Think about it--for every 100 lawsuits they file, they MIGHT get sued once or twice in return.  So, they file 100 lawsuits, and probably 80-90% of them end up being default judgments in their favor.  The $1000 that they rarely have to pay is a very small price to pay when compared to the illegal judgments they get.  The only way to change this is to pursue these crooks when they pull stunts like this--make it too expensive for them to keep breaking the law and they will have no choice but to stop doing it.

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So.... I filed my motion to dismiss yesterday. I will post it later today when I have more time. Right now I have a quick question. Hoping all of you wonderful, brilliant people will help me. I would like to enclose an intent to sue letter with my motion I will be sending the opposing attorney, but would love some input as to the wording. I am assuming it should go something like this....

 

Dear Sir or Madam,

 

Enclosed you will find my motion to dismiss. If you decide to continue with this action you will leave me with no other recourse but to sue you in federal court as you have violated the (insert correct FTC/ FDCPA violations here, one referencing SOL, two maybe even throw in wrong venue?) As I am sure you are aware the federal penalties for such violations is $1000 per violation, and Kansas is $10,000 per violation. 

 

So what do you think..... tweaks???  Thanks. I'm looking forward to your replies! 

 

If you definitely have violations and Kansas is up to 10K I would hire an attorney and sue them. With a thousand on the line its not that big of deal, but with 10K I wouldn't want to make a mistake. Plus if you win or they settle they will have to pay your attorney fees. KK is correct in that the FDCPA is capped at 1K unless you have some actual damages. 

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I would hold off on mentioning your lawsuit against them and save it for later. It will give you leverage down the road

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Ah! Thanks for the correction! My problem is finding a consumer attorney. I have looked and looked for one in my area, and can't find one. There are some in the KC area, and hey for $20,000 I suppose I could make the drive.. Is anyone familiar with any in South East Kansas? He/she doesn't necessarily have to be consumer attorney, but I really wouldn't want a Ford qualified mechanic working on my Lexus, if I had one that is. Any suggestions on a good attorney???

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This will take a little work, but it may help you find a good consumer attorney in your area. All of these have FDCPA experience which is a plus. 

 

http://dockets.justia.com/search?state=kansas&nos=480&cases=mostrecent

 

http://dockets.justia.com/search?state=kansas&nos=890&cases=mostrecent

 

http://dockets.justia.com/search?query=Portfolio+Recovery+Associates+&state=kansas&nos=480&cases=mostrecent

 

http://dockets.justia.com/search?query=Portfolio+Recovery+Associates+&state=kansas&nos=890&cases=mostrecent

 

This link should come up in Kansas Federal. If it doesn't just use the drop down menu. The first set of case to look at are in the drop down menu under "consumer credit". Then check "other statutory actions". You can even put in Portfolio Recovery Associates to get more detailed. Both of these are for FDCPA type cases. Click on each case and then look under the plaintiff's name to find the attorney. Then Google the attorney's name to see if he/she is in your area. 

 

If you want to go further you can go to these websites and look up the cases you find above. This will tell you the outcome of many of them. 

 

http://www.rfcexpress.com/search.asp  Uncheck the first three boxes to the right. (patent, copyright, trademark) Then click on consumer credit and other statutory actions. Put Kansas in the drop down menu. 

 

http://www.lawsuitdata.com/lawsuit-data/search.php?caseNumber=&courtCode=&natureOfSuitCode&dateFiledStart=&dateFiledEnd=

 

Good Luck!

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Soooo... I am getting all anxious again.... The day I filed my motion to dismiss I received a motion for summary judgement in the mail from the opposing attorney. I am assuming our motions crossed in the mail. I had included with my motion a notice of hearing where I filled out a date and time or at the courts convenience. The opposing attorney had also included one in the paperwork I received from them. My date was for a week earlier than the date they had set. A few days ago I received notice from the court of the hearing set on the date they had requested. As I looked over things tonight I wonder if my notice wasn't seen, it was filed with my motion, but it was the last page, should I have put it in front? I will admit as each day grows closer, I get that much more nervous. I found good facts for my motion to dismiss, but I also know I am the odd ball here, the judge me knows me from Adam, and I am willing to bet he is on first name basis with the other side....  So, suggestions? Let's pretend, that won't be a far reach, I know nothing and please walk me through how this should happen. I am not talking about the judges order, but the steps I will take to get to that point. Is there something else I need to do, I should be doing?

 

I also think I should be prepared to fight the other side against their motion. What do I need to do to do that? Do I research and send my opposition in before hand? Their motion is based on my answer on the interrogatories #7. They state "That defendant denies certain question, but her position boils down to her answer in interrog no 7. No written agreement signed by the parties is required in a credit card situation" The thing is I was referring to their contract with the oc, not a contract between myself and the oc. Here I'll just attach their argument...Portfolio Recovery Associates vs. My Name Here

Case No.

Motion for Summary Judgment

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. SUPREME COURT RULE 141 STATEMENT OF UNCONTROVERTED FACTS

That on or about January 8, 2014, plaintiff received defendant's answers to a

Plaintiffs First Combined Interrogatories and Request for Admissions propounded to Defendant,

a copy of which is attached hereto and marked as Exhibit "1".     Plaintiffs First Combined

Interrogatories and Request for Admissions propounded to Defendant, a copy of which is

attached hereto and marked as Exhibit "2".

That defendant denies certain questions, but her position boils down to her answer

to Interrogatory No. 7.  No written agreement signed by the parties is required in a credit card

situation. See, K.S.A. 16-117 (See, Interrogatories and Request for Admissions, Exhibit 1).

That Plaintiff provided a copy of the Bill of Sale and its attachments to the

Defendant attached to  the  First  Combined Interrogatories  and Request for Admissions

propounded to Defendant that shows the legal standing to bring suit.   (See, Exhibit 2 and

response to Interrogatory No. 7 attached as Exhibit 1).

Defendant's answer does not contain a denial or affirmative defense and no

counterclaim has been included. Therefore, is an admission of the Petition filed herein.

That plaintiff is entitled to judgment against the defendant as a matter of law.

II. ARGUMENTS AND AUTHORITY

A Motion for Summary Judgment may be granted when there is no genuine issue as to any material fact. Hastain v. Greebaum, 205 Kan. 475, 470 P.2d 741 (1970). See also Barber v. Williams, 244 Kan. 318, 767 P.2d 1284 (1989); Noller v. General Motors Corp], 244 Kan. 612;

 

Help Please... I'm going to have an ulcer after all of this...

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It's sounds like it's possible you did not get your motion "on calendar" to be scheduled to be heard on the day you picked. Call the clerk and see if it's on calendar or look on the courts website.

 

It's not too big of  a deal if your motion is not on calendar. The bigger issue is to file an opposition to their summary judgment and go to the hearing and fight it. In your opposition you can add in the defendant's "prayer" that the case be dismissed with prejudice and you will be back on track with your motion to dismiss.

 

Most likely you will beat the MSJ but lose the motion to dismiss, and live to fight the case another day as it heads toward a trial. These cases can cause ulcer etc. you have to learn to control the stress and keep fighting.

 

In my opinion.

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So sounds as if I need some good oppositions.... The floor is open....

Indeed.

 

You have to raise genuine issues to material facts (like it says in their case law).

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Motion for Summary Judgment

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. SUPREME COURT RULE 141 STATEMENT OF UNCONTROVERTED FACTS

That on or about January 8, 2014, plaintiff received defendant's answers to a

Plaintiffs First Combined Interrogatories and Request for Admissions propounded to Defendant,

a copy of which is attached hereto and marked as Exhibit "1".     Plaintiffs First Combined

Interrogatories and Request for Admissions propounded to Defendant, a copy of which is

attached hereto and marked as Exhibit "2".

That defendant denies certain questions,

You denied everything not just certain questions. Point out your denials  to the RFA's etc, these are genuine issues to material facts

but her position boils down to her answer

to Interrogatory No. 7.  No written agreement signed by the parties is required in a credit card

situation. See, K.S.A. 16-117 (See, Interrogatories and Request for Admissions, Exhibit 1).

Your position does not boil down to your answer to rog 7 because the plaintiff says so. Your position boils down to the fact that you deny the alleged account in its entirety and want your day in court or a dismissal. You do need to include supporting evidence as well, discovery responses, affidavits ,etc. check your rules. You need to have triable issues and reasons for the case to go to trial. Kraftycrab raises some good points in the next post.

 

That Plaintiff provided a copy of the Bill of Sale and its attachments to the

Defendant attached to 

attack the bill of sale

the  First  Combined Interrogatories  and Request for Admissions

propounded to Defendant that shows the legal standing to bring suit.

Standing is disputed by defendant (list arguments you have for this)

   (See, Exhibit 2 and

response to Interrogatory No. 7 attached as Exhibit 1).

Defendant's answer does not contain a denial or affirmative defense and no

counterclaim has been included. Therefore, is an admission of the Petition filed herein.

I have to read your answer etc., but you would dispute this. Defendant has denied all allegations in the answer to the complaint as well as numerous denials in the discovery, material issues do exist.

 

That plaintiff is entitled to judgment against the defendant as a matter of law.

Genuine issues of material fact do exist and plaintiff is entitled to nothing. Defendant denies all allegations, plaintiff has not proven standing. Defendant has also filed with this honorable court a motion to dismiss showing a genuine issue of fact. If a dismissal ids not granted; defendant is entitled to trial. 

II. ARGUMENTS AND AUTHORITY

A Motion for Summary Judgment may be granted when there is no genuine issue as to any material fact. Hastain v. Greebaum, 205 Kan. 475, 470 P.2d 741 (1970). See also Barber v. Williams, 244 Kan. 318, 767 P.2d 1284 (1989); Noller v. General Motors Corp], 244 Kan. 612;

 

Help Please... I'm going to have an ulcer after all of this...

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You have genuine issues of material fact, and you need to hammer them home in this.  Otherwise they will win. 

 

KSA 60-256 is the statute in your state that deals with summary judgments.  You need to state the law and/or case law in your opposition to their MSJ.  Your statute makes it clear that you cannot simply rely upon previous denials, or you will lose.  In other words, you CANNOT and SHOULD NOT just respond by saying "I already did deny everything".  See KSA 60-256(e):

 

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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 

But there are some things here you can use....namely, where it says:

 

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.

 

If I recall, the plaintiff submitted an affidavit against you that cannot possibly have been made "on personal knowledge" because the person who made it has never had access to the OC's record-keeping ability and cannot possibly hope to testify as to anything about it.  The affiant is trying to claim that the records are true and accurate and is nowhere near able to make such a claim.  I would consider a separate motion to strike that affidavit as well, just to drive the point home. 

 

Also, as I pointed out in bold in the quote above, you cannot simply say "I denied their claims".  you need more.  And the place I would start is with this "bill of sale".  I would object to it's admission totally, if for no other reason for the fact that neither you nor the alleged account are actually identified anywhere in anything they have provided there.  This creates a genuine issue of material fact as to whether or not they even own the alleged debt, and therefore whether or not they have sufficient legal standing to actually bring this action against you.  You will want case law on this....

 

http://scholar.google.com/scholar_case?case=3302839716620746519&q=summary+judgment&hl=en&as_sdt=4,17

 

http://scholar.google.com/scholar_case?case=18401204022670651044&q=summary+judgment&hl=en&as_sdt=4,17

 

I could cite a lot of other cases....they all refer back to this specific standard that your state's courts have unanimously adopted when addressing an MSJ:
 

 

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.  On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

 

Two things here.....first, the court must view any evidence presented in the most favorable light to YOU, not to the plaintiff.  This will work in your favor...cite this case law and quote this specific paragraph.  Second, the last sentence that I highlighted....reasonable minds could definitely differ as to the conclusions you can draw from the "evidence" that they have presented.  A bill of sale that doesnt even identify you or this account in any way?  Absolutely an issue...

 

Also, since they highlighted one specific response that you made to their RFA, you need to do the same....namely, RFA #4:

 

 

REQUEST NO. 4

Admit that pursuant to the Bill of Sale and Assignment of Assets and Affidavit of Sale of Account By Original Creditor, a copy of which is attached and marked as Exhibit "B", Capital One Bank, N.A. sold, assigned and conveyed your account to plaintiff, which is the subject of this litigation. If you deny, please state your reasons.

 

ANSWER:    The afore mentioned Bill of Sale and Assignment of Assets and Affidavit of Sale of Account by Original Creditor makes no mention of any specific account number or specific account holder name.  Defendant denies.

 

I would argue that your previous response here already illustrates a genuine issue of material fact, that being the complete absence of your name or even an alleged account number that is claimed to be associated with you anywhere near the bill of sale.  The plaintiff's bill of sale does not, in fact, identify any single account, be it yours or anyone's.  You are able to refer back to documents that they have submitted.  I would definitely consider motions to strike both the affidavit and the bill of sale.  The reason for this is simple--you are arguing against an MSJ right now.  If you win your argument, you will have your day in court.  At that point, if you do not act to get those documents thrown out, they will be used against you.  Better to address it now, while you are already picking them both apart as deficient.  If you can get the court to side with you on opposition to MSJ by attacking these two documents, it's the perfect time to take it one step further and object to them completely. 

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Whoo,  love that info. Thank you so much @kraftykrab!  I am going to get to work on this right away, but in the meantime...

 

Concerning my motion to dismiss... even if my request for hearing was overlooked and not put on calendar the judge still has to take it into consideration, correct??? From what I found I don't see how the judge could not dismiss, albeit I am a tad biased. The statute of limitations is 3 years. They filed within the 3 years, but they then voluntarily dismissed. They then asked for reinstatement over a year from date of dismissal, but beyond the 3 year SOL.   Kansas has a saving statute but it only allows for 6 months to reinstate.. Statute 60-518: New action, when. If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.

 

I have found some even better case law since I filed my motion to support my case that I wish I had found before and used in my motion. Is it possible to add to a motion? Should I try? What do you think of the saving statute? I know it is really all up to the judge and I would not expect him to lean my way, but I can always dream, right? 

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