pampamk

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

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Here is my MTD... I'm sure it is not stellar, but I had this sense of impending action required. I hurriedly put it together so as to file the next day... not the best idea, I know.  It's much more professional looking on paper, it always pastes funky...

 

Legal Jargon

 

 

•DEFENDANT'S MOTION FOR DISMISSAL

 

 

COMES NOW, the Defendant, my name here, pro se, moves the court for a dismissal of the above entitled action pursuant to K.S.A. 61-2912, K.S.A. 60-241, K.S.A. 60-512, K.S.A. 60-518. The defendant submits the Statute of Limitations expired before the plaintiff filed the petition, and before the defendant was served, and thus, is entitled to dismissal of above entitled action.

In support of said motion, defendant respectfully refers the Court to the following Memorandum in Support of Motion for Dismissal together with copies of document filed stamped by the Court.

 

page 2

 

MEMORANDUM IN SUPPORT OF MOTION FOR DISMISSAL

 

 

1. Plaintiff claims defendant is indebted to plaintiff on a Capital One Bank, N. A., original

creditor, account. According to documents sent to defendant by plaintiff the last payment on said

account was July 15,2010, thus starting time for calculating Statute of Limitation for bringing

suit. Please see attached and marked Exhibit 1.Exhibit 1 is a copy of a bill they sent me along with the bill of sale, etc.

 

60-512: Actions limited to three years. The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing. (2) An action upon a liability created by a statute other than a penalty or forfeiture.

2. Plaintiff initially filed suit against defendant April 30, 2012, however, July 24, 2012 the

Court sent notice of dismissal. August 15, 2012 plaintiff, by oral motion, voluntarily requested

dismissal of above entitled action. Please see attached and marked Exhibit 2, 3, 4. 2 is a copy of the first petition they filed showing courts file stamp date. 3 is a copy of the notice of dismissal from the court to them. 4 is the order of dismissal showing the file stamp date

Statute 60-241: Dismissal of actions, (a) Voluntary dismissal; effect thereof. (1) By plaintiff; by stipulation. Subject to the provisions of subsection (e) of K.S.A. 60-223 and amendments thereto and of any statute of the state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated hi the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

3. Plaintiff then filed a Motion to Reinstate on August 26, 2013, and the Court ordered

reinstatement of the action on August 27, 2013, over a year from the date of dismissal of

initial petition. Please see attached and marked Exhibit 5 & 6. 5 is copy of motion to reinstate with file stamp date. 6 is copy of order reinstating with file stamp date.

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.

 

page 3

ARGUMENTS and AUTHORITY

 

Plaintiff failed to bring suit against defendant in the specified time by Kansas law. Underbill v. Thompson, 37Kan. App. 2d870, 874, 158P.3d987, rev. denied285 Kan. _ _ (2007); see K.S.A. 60-212(B). Handy v. Reed, 32 Kan. App. 2d247, 254, 81 P.3d450 (2003), rev. denied 277 Kan. 923 (2004) Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992)

 

 

CONCLUSION

Defendant prays that her Motion to Dismiss be granted. Given the fact the plaintiff failed to bring action against her within the time frame specified by the Supreme Court of Kansas.

 

 

I have since found some really good case law on the saving statute... I'm thinking I will include it in my objection to summary judgement

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I dont think that bringing up improper venue at this point will do any good.  The court would simply say "if you knew about the improper venue, why didnt you bring it up at the proper time?"  It could actually backfire--many judges do not look favorably upon pro se litigants already, and if this judge does not, then he/she could construe this as mere complaining, outside the scope of how things work in court.  OP already agreed to be subject to this venue by answering and not objecting, so I do not see any value personally in bringing it up.  The court will not look upon that as a strike against the plaintiff, since the court will not entertain discussion on venue at this stage.  It could have been a simple error at best, and at worst, it could end up looking bad on the OP.  If I were the plaintiff's attorney, the moment that venue would be brought up now, I would simply object, and state that the time for making such an argument has long passed.  This is just my opinion, but I want as few objections against me and my case being sustained by the judge....I want to win the judge over on my claims, not against me.  And some judges will not pay it any attention, but others will remember things like this for the duration of the case.

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I dont think that bringing up improper venue at this point will do any good. The court would simply say "if you knew about the improper venue, why didnt you bring it up at the proper time?" It could actually backfire--many judges do not look favorably upon pro se litigants already, and if this judge does not, then he/she could construe this as mere complaining, outside the scope of how things work in court. OP already agreed to be subject to this venue by answering and not objecting, so I do not see any value personally in bringing it up. The court will not look upon that as a strike against the plaintiff, since the court will not entertain discussion on venue at this stage. It could have been a simple error at best, and at worst, it could end up looking bad on the OP. If I were the plaintiff's attorney, the moment that venue would be brought up now, I would simply object, and state that the time for making such an argument has long passed. This is just my opinion, but I want as few objections against me and my case being sustained by the judge....I want to win the judge over on my claims, not against me. And some judges will not pay it any attention, but others will remember things like this for the duration of the case.

In his motion to dismiss. Plaintiffs filed in the wrong venue, dismissed, thenfiled again in a different venue. They dismissed when they realized that to was the wrong venue. They were then past the sol. Rather than lose trying to collect on the account, they reinstated a year later, still in the wrong venue so they could make the sol. I say bring it up so it shows the court the plaintiffs knew it was the wrong venue, but did it anyway. That is abuse of process. There is some case law Barquis v. Merchants collections assn. 496 P. 2d 817 cal

That case merchants filed wrong venues on multiple accounts in order to collect defaults. But they did it knowingly.

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I am working on my opposition to MSJ now, I hope to get it finished and post it for tweaking. I am struggling with the affidavit, I am having a hard time coming up with good opposition. I was hoping someone here could possibly lead me in the right direction. I would greatly appreciate it.... 

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That affidavit is a bit tough, and I don't know your rules, but you could research them and check some things I noticed:

 

1)   he says the information is true to the best of his knowledge, not that he knows it to be true. Find out how your state feels about that, it wouldn't fly in Cali.

 

2)    he says a pool of accounts were sold but (unless I missed it) it does not reference your name or account number specifically.

 

3)    again, unless I missed it, he does not sign under the laws of perjury to your state. I would want to know what your state rule are on that. 

 

4)    I don't know your rules on this or if it pertains to MSJ, but, he does not give an address where he can be served a subpoena or say that he is willing to testify at trial if need be. See what your rules are about that.

 

Read your rules for MSJ's (I'm sure you have) Hope this helps some.

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Well here it is..... it's rough, I need to clean it up, but wanted to wait until I made changes after from all of you.  Thanks so much for your help...

 

 

I

 

 

DEFENDANT’S OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT

 

      

     COMES NOW, the Defendant,my name here, pro se, opposing the above stated

Plaintiff’s motion for summary judgement. The Plaintiff’s claim that there are no genuine issues

of material fact is ludicrous. Defendant,in her Answer to Plaintiff’s Petition, stated Plaintiff fails

to state a proper cause of action and specifically denied all allegations contained in Plaintiff’s

Petition. Defendant also reserved her right to file affirmative defense and counter claims

after discovery was completed. Plaintiff has not proven legal standing, a genuine issue of

material fact. The Bill of Sale and its attachments make no mention of Defendant, nor the alleged 

account number associated with the Defendant, it merely shows a transaction took place between

 

Capital One Bank, NA. and Portfolio Recovery Associates, LLC.  Furthermore, Defendant

 

asserts the Statute of Limitations had expired before Plaintiff filed said action with the Court,

 

another genuine issue of material fact,  Defendant respectfully directs the Courts attention to

 

Defendant’s Motion to Dismiss filed with this honorable Court on January 15, 2014.

      

     In support of said opposition, defendant respectfully refers the Court to the following

 

Memorandum in Opposition to Motion for Summary Judgement. 

 

 

 

 

Portfolio Recovery Associates vs. xxxxxxxx

Case No. xxxxxxxx

Opposition to Motion for Summary Judgement

 

 

MEMORANDUM IN DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT

 

I. SUPREME COURT STANDARD FOR SUMMARY JUDGEMENT

1. Plaintiff’s Motion for Summary Judgement, a copy of which is attached hereto and marked as Exhibit “A”, is based wholly on defendant’s answer to Interrogatory No.7 (see Exhibit “A” pg.2, No.2) from Plaintiff’s First Combined Interrogatories and Request for Admissions propounded to defendant, a copy of which is attached hereto and marked as Exhibit “1".  Plaintiff stating no written agreement signed by the parties is required in a credit card situation, citing K.S.A. 16-117, (see Exhibit “A” pg. 2, No.2), is irrelevant, in this instance, and is merely Plaintiffs futile attempt to distract the Court from the genuine issues of this case.  The Defendant asserts the Plaintiff completely understood that Defendant’s answer to No.7 was referring to a contract between the Plaintiff and the Capital One Bank, NA.,( henceforth to be known as OC, original creditor), not a contract between the Defendant and the OC, by Plaintiff’s third response in Plaintiff’s Motion for Summary Judgement (see Exhibit “A” pg. 2, No.3).

2.        Plaintiff claims a copy of a Bill of Sale and its attachments, a copy of which is attached hereto and marked as Exhibit “B”, show legal standing to bring suit. Defendant’s previous response to Request for Admissions No.4(see Exhibit “1" pg.5, No.4) already illustrates a genuine issue of material fact, that being the complete absence of Defendant’s name or even an alleged account number that is claimed to be associated with Defendant anywhere near the bill of sale or it’s attachments, namely the Affidavit of Sale of Account by Original Creditor (see Exhibit “B” pg. 2).  The Plaintiff's bill of sale does not, in fact, identify any single account, be it defendant’s or anyone's. 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 Defendant.  Being that the bill of sale does not prove the account in question was included in the sale of accounts and doesn't specify which records were included with each account, any records submitted by the Plaintiff are unauthenticated, inadmissible hearsay. Defendant respectfully makes a Motion to Strike plaintiff’s bill of sale, its attachments, and all billing statements.  (See, Motion to Strike, attached)

 

 

3.   Plaintiff states 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.

 

Defendant denied all allegations in her answer to the complaint , a copy of which is attached hereto and marked Exhibit “C”,. as well as numerous denials in the discovery. Defendant admits nothing, as Plaintiff has yet to prove legal standing, which is a genuine issue of material fact.  Furthermore, Defendant reserved her right to file affirmative defense and counter claims after discovery was completed.

 

 

 

5.Genuine issues of material fact do exist and plaintiff is entitled to nothing. Plaintiff has not proven standing.

 

6.  Plaintiff knew full well the Statute of Limitations had expired before the filing of said Petition of this action. Defendant has  filed with this honorable court a motion to dismiss showing a genuine issue of fact. If a dismissal is not granted; defendant is entitled to a trial and request such. 

 

 

II. ARGUMENTS AND AUTHORITY

 

 

This court must view any evidence presented in the most favorable light to DEFENDANT, not to the plaintiff, and if reasonable minds could reach differing conclusions from the evidence presented, summary judgement must be denied. (see quote and citations below).  It is the Defendant’s stance that reasonable minds could definitely differ as to the conclusions one could draw from the "evidence" the plaintiff has presented.  A bill of sale that doesn’t even identify Defendant or the alleged  account in any way?  Absolutely an issue...

 

Quote:

 

“This court's standard of review when a motion for summary judgment has been granted is well established and often recited:

 

    "`"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." (Emphasis added by defendant) Korytkowski v. City of Ottawa, 152 P. 3d 53 - Kan: Supreme Court 2007. See also Mitchell v. City of Wichita, 12 P. 3d 402 - Kan: Supreme Court 2000, Scott v. Hughes, 281 Kan. 642 - Kan: Supreme Court 2006, State ex rel. Stovall v. Reliance Ins. Co., 107 P. 3d 1219 - Kan: Supreme Court 2004.

 

 

 

   

 

The Statue of Limitations had expired before Plaintiff filed it’s Petition. Using Plaintiff’s own admission in it’s Memorandum in Support of Motion for Summary Judgement stating no written agreement signed by the parties is required in a credit card situation, citing K.S.A. 16-117 (see Exhibit A, pg. 2 No. 2) proves the Statute of Limitations is 3 years see K.S.A. 60-512. Defendant hesitates to repeat to this Honorable court everything already stated in Defendants Motion to Dismiss, filed previously, thereby asking the Court to read everything twice. Therefore, the Defendant respectfully directs the Courts attention to her Motion to Dismiss. However, defendant would like to bring to the Courts attention to nothing in the savings statute justifies the interpretation that a new action could be brought more than 1 year after that prior disposition. 976 Kan. at 91). A new action begun more than 1 year after the dismissal, whether it was a second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. (76 Kan. at 92). Furthermore, While K.S.A. 1998 Supp. 60-241 permits multiple dismissals, it does not, by its plain terms, make any provision for altering or extending any statute of limitations. See, Clanton v. Estivo, 988 P. 2d 254 - Kan: Court of Appeals 1999.

 

 

 

III. CONCLUSION

 

     In that the Plaintiff has not proven legal standing to bring suit against Defendant, but more importantly Plaintiff failed to bring suit within the time frame of the Statute of Limitations stated in Kansas Statutes, the Defendant respectfully submits to the Court that its Opposition to Plaintiff’s Motion for Summary Judgement must be sustained.

 

     WHEREFORE, defendant, xxxxxxxxxx, prays that her Motion for Dismissal be granted with prejudice.

 

                                                                 Submitted by:

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 It has long been recognized that standing imparts justiciability and must be determined as a threshold issue. See, e.g., Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 (1987).

Standing to sue means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Tri-County Concerned Citizens, Inc., v. Board of Harper County Comm'rs, 32 Kan. App. 2d 1168, 1173, 1174 95 P.3d 1012 (2004) (citing  Dutoit v. Board of County Commr's., 233 Kan. 995, 1003, 667 P.2d 879 (1983)).

Without proof of ownership of the account, they have not proven that they have a "sufficient stake" in the outcome.

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Well here it is..... it's rough, I need to clean it up, but wanted to wait until I made changes after from all of you.  Thanks so much for your help...

 

 

I

 

 

DEFENDANT’S OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT

 

      

     COMES NOW, the Defendant,my name here, pro se, opposing the above stated

Plaintiff’s motion for summary judgement. The Plaintiff’s claim that there are no genuine issues

of material fact is ludicrous. entirely without merit Defendant,in her Answer to Plaintiff’s Petition, stated Plaintiff fails

to state a proper cause of action and specifically denied all allegations contained in Plaintiff’s

Petition. Defendant also reserved her right to file affirmative defense and counter claims

after discovery was completed. Plaintiff has not proven legal standing, and genuine issue of

material fact do exist. The Bill of Sale and its attachments do not reference the defendeant, nor the alleged 

account number associated with the Defendant, it merely shows  alleges a transaction took place between

 

Capital One Bank, NA. and Portfolio Recovery Associates, LLC.  Furthermore, Defendant

 

asserts the Statute of Limitations had expired before Plaintiff filed said action with the Court,

 

another genuine issue of material fact,  Defendant respectfully directs the Courts attention to

 

Defendant’s Motion to Dismiss filed with this honorable Court on January 15, 2014.

      

     In support of said opposition, defendant respectfully refers the Court to the following

 

Memorandum in Opposition to Motion for Summary Judgement. 

 

 

 

 

Portfolio Recovery Associates vs. xxxxxxxx

Case No. xxxxxxxx

Opposition to Motion for Summary Judgement

 

 

MEMORANDUM IN DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT

 

I. SUPREME COURT STANDARD FOR SUMMARY JUDGEMENT

1. Plaintiff’s Motion for Summary Judgement, a copy of which is attached hereto and marked as Exhibit “A”, is based wholly on defendant’s answer to Interrogatory No.7 (see Exhibit “A” pg.2, No.2) from Plaintiff’s First Combined Interrogatories and Request for Admissions propounded to defendant, a copy of which is attached hereto and marked as Exhibit “1".  Plaintiff stating no written agreement signed by the parties is required in a credit card situation, citing K.S.A. 16-117, (see Exhibit “A” pg. 2, No.2), is irrelevant, in this instance, and is merely Plaintiffs futile attempt to distract the Court from the genuine issues of this case.  The Defendant asserts the Plaintiff completely understood that Defendant’s answer to No.7 was referring to a contract between the Plaintiff and the Capital One Bank, NA.,( henceforth to be known as OC, original creditor), not a contract between the Defendant and the OC, by Plaintiff’s third response in Plaintiff’s Motion for Summary Judgement (see Exhibit “A” pg. 2, No.3).

2.        Plaintiff claims a copy of a Bill of Sale and its attachments, a copy of which is attached hereto and marked as Exhibit “B”, show legal standing to bring suit. Defendant’s previous response to Request for Admissions No.4(see Exhibit “1" pg.5, No.4) already illustrates a genuine issue of material fact, that being the complete absence of Defendant’s name or even an alleged account number that is claimed to be associated with Defendant anywhere near the bill of sale or it’s attachments, namely the Affidavit of Sale of Account by Original Creditor (see Exhibit “B” pg. 2).  The Plaintiff's bill of sale does not, in fact, identify any single account, be it defendant’s or anyone's. 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 Defendant.  Being that the bill of sale does not prove the account in question was included in the sale of accounts and doesn't specify which records were included with each account, any records submitted by the Plaintiff are unauthenticated, inadmissible hearsay. Defendant respectfully makes a Motion to Strike plaintiff’s bill of sale, its attachments, and all billing statements.  (See, Motion to Strike, attached)

 

 

3.   Plaintiff states 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.

 

Defendant denied all allegations in her answer to the complaint , a copy of which is attached hereto and marked Exhibit “C”,. as well as numerous denials in the discovery. Defendant admits nothing  denies all allegations, as Plaintiff has yet to prove  lacks legal standing, which is a genuine issue of material fact do indeed exist.  Furthermore, Defendant reserved her right to file affirmative defense and counter claims. after discovery was completed.

 

 

 

5.Genuine issues of material fact do exist and plaintiff is entitled to nothing. Plaintiff has not proven  lacks standing.(these two sentences should each have their own number in front of them as separate lines) 

 

6.  Plaintiff knew full well the Statute of Limitations had expired before the filing of said Petition of this action    Is barred from the bringing of this suit by the running of the Statute Of Limitations.

 

7. Defendant has  filed with this honorable court a motion to dismiss showing a genuine issue of fact. If a dismissal is not granted; defendant is entitled to a trial and request such

 

 

II. ARGUMENTS AND AUTHORITY

 

 

This court must view any evidence presented in the most favorable light to DEFENDANT, not to the plaintiff, and if reasonable minds could reach differing conclusions from the evidence presented, summary judgement must be denied. (see quote and citations below).  It is the Defendant’s stance that reasonable minds could definitely differ as to the conclusions one could draw from the "evidence" the plaintiff has presented.  A bill of sale that doesn’t even identify Defendant or the alleged  account in any way?  Absolutely an issue...

 

Quote:

 

“This court's standard of review when a motion for summary judgment has been granted is well established and often recited:

 

    "`"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." (Emphasis added by defendant) Korytkowski v. City of Ottawa, 152 P. 3d 53 - Kan: Supreme Court 2007. See also Mitchell v. City of Wichita, 12 P. 3d 402 - Kan: Supreme Court 2000, Scott v. Hughes, 281 Kan. 642 - Kan: Supreme Court 2006, State ex rel. Stovall v. Reliance Ins. Co., 107 P. 3d 1219 - Kan: Supreme Court 2004.

 

 

 

   

 

The Statue of Limitations had expired before Plaintiff filed it’s Petition. Using Plaintiff’s own admission in it’s Memorandum in Support of Motion for Summary Judgement stating no written agreement signed by the parties is required in a credit card situation, citing K.S.A. 16-117 (see Exhibit A, pg. 2 No. 2) proves the Statute of Limitations is 3 years see K.S.A. 60-512. Defendant hesitates to repeat to this Honorable court everything already stated in Defendants Motion to Dismiss, filed previously, thereby asking the Court to read everything twice. Therefore, the Defendant respectfully directs the Courts attention to her Motion to Dismiss. However, defendant would like to bring to the Courts attention to nothing in the savings statute justifies the interpretation that a new action could be brought more than 1 year after that prior disposition. 976 Kan. at 91). A new action begun more than 1 year after the dismissal, whether it was a second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. (76 Kan. at 92). Furthermore, While K.S.A. 1998 Supp. 60-241 permits multiple dismissals, it does not, by its plain terms, make any provision for altering or extending any statute of limitations. See, Clanton v. Estivo, 988 P. 2d 254 - Kan: Court of Appeals 1999.

 

 

 

III. CONCLUSION

 

     In that the Plaintiff has not proven legal standing to bring suit against Defendant, but more importantly Plaintiff failed to bring suit within the time frame of the Statute of Limitations stated in Kansas Statutes, the Defendant respectfully submits to the Court that its Opposition to Plaintiff’s Motion for Summary Judgement must be sustained.

 

     WHEREFORE, defendant, xxxxxxxxxx, prays that her Motion for Dismissal be granted with prejudice.

 

                                                                 Submitted by:

You should list all exhibits in as letters only "EXHIBIT A"  etc. I think you have exhibit "a" and then exhibit "1". Usually the defendant list exhibits in alphabetical order while plaintiff exhibits in numerical order.

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Just some things I've been pondering... If the OP (opposing party?) were going to fight my motion to dismiss, shouldn't I receive a copy of their opposition that they file with the court? Which brings me to my next question. When should I file my opposition to MSJ? The hearing is the 14th. OH, when is plaintiff and defendant capitalized and when is it not? Thanks for your help, again!!!

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Also the " memorandum in defendant's opposition.........." should just be MEMORANDUM IN SUPPORT

 

If it were mine I would change "arguments and authority" to:  POINTS AND AUTHORITY

 

 

Just to nit pick it a little.

I pulled "arguments" directly from the OP MSJ... I just tried to mirror theirs as much as possible. I appreciate all the nit picking...

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In his motion to dismiss. Plaintiffs filed in the wrong venue, dismissed, thenfiled again in a different venue. They dismissed when they realized that to was the wrong venue. They were then past the sol. Rather than lose trying to collect on the account, they reinstated a year later, still in the wrong venue so they could make the sol. I say bring it up so it shows the court the plaintiffs knew it was the wrong venue, but did it anyway. That is abuse of process. There is some case law Barquis v. Merchants collections assn. 496 P. 2d 817 cal

That case merchants filed wrong venues on multiple accounts in order to collect defaults. But they did it knowingly.

I've been trying to figure out how to add this, wording, etc. I would love to accuse them of wrong doing, without seeming accusatory, if that makes any sense. The OP claims the first attempt at service the Sheriff in that county told him it was in other county, then the other counties Sheriff told him it was in first county. OP is putting it off as a mistake on the sheriffs... Any suggestions???

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I pulled "arguments" directly from the OP MSJ... I just tried to mirror theirs as much as possible. I appreciate all the nit picking...

I would stick with what you had then. The mirroring and using what they give you against them is exactly what you need to be doing.

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Then why did they not refile the moment they realized the mistake? Move believable if they had not waited a year. The sol was done then also, but they would have been within their 6 month window...they should know the rules, they are the lawyers, so why did they reinstate it? Because they didn't think you would object.

Not sure how to word it, writing was never my strong point lol

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I've been trying to figure out how to add this, wording, etc.

The wording you were commenting on from Shellie's post is just about what you need. You might work with it a bit; I would think it's a pretty good argument.

 

You need to look up your local rule and find out how long you have to file the opposition, there is usually not a large window here (9 days or so). If it's already late I would wrap it up and file it anyway.

 

Also, some people capitalize plaintiff / defendant and some don't, personal choice. Pick one and stick with it.

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I've been trying to figure out how to add this, wording, etc.. Any suggestions???

1)        Plaintiff originally brought this suit in the wrong venue, but corrects the error by it's dismissal.

 

2)        Repeating the same error, plaintiff once again files in the wrong venue. Plaintiff applies the same remedy to this error as well, with yet another dismissal.

 

3)        Now after these fatal errors in the plaintiff's claim; the running of the statute of limitations bars the plaintiff from filing any further actions against the defendant, regardless of whether or not it chooses the correct venue.

 

4)        Plaintiff should not be allowed to reinstate the original lawsuit, now knowing that it is indeed the wrong venue, and is now barred by the running of the statute of limitations. Plaintiff is litigating with unclean hands and depriving defendant of due process.

 

 

The best way to write is a number then an important fact. Another number, another important fact that helps you win your case, and on and on. When you run out of #'s and facts that help you win STOP. Judges can only be expected to skim read at best. 

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OH, my gosh.... I am going to have to rewrite some of it. I can't believe I missed this before. Since plaintiff did file suit and dismissed it twice he shouldn't be able to reinstate...  If I am reading this correctly...  I just called the other court and they are emailing me a copy of the dismissal from their court and I have a copy from the present court!

 

Statute 60-241: Dismissal of actions. (a) Voluntary dismissal; effect thereof. (1) By plaintiff; by stipulation. Subject to the provisions of subsection (e) of K.S.A. 60-223 and amendments thereto and of any statute of the state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

 

      (2)   By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

 

      (B)   Involuntary dismissal; effect thereof. (1) For failure of the plaintiff to prosecute or to comply with these sections or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under K.S.A. 60-219 and amendments thereto, operates as an adjudication upon the merits.

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So here is the beginning, it's rough... I still have to work with the arguments and authority, but I thought I would go ahead a post this part

 

 

OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT

 

      

      Defendant, xxxxxxxx, pro se, opposing the above stated plaintiff’s Motion for Summary Judgement. The plaintiff’s claim that there are no genuine issues of material fact is entirely without merit. . Defendant, in her Answer to plaintiff’s Petition, stated plaintiff fails

to state a proper cause of action and specifically denied all allegations contained in plaintiff’s

Petition. Defendant also reserved her right to file affirmative defense and counter claims

after discovery was completed. Plaintiff has not proven legal standing, and genuine issues of

material fact do exist. 

Furthermore, Plaintiff has brought and voluntarily dismissed this same claim twice against defendant. Therefore, the court has made an adjudication on the merits of the case and a final disposition, barring the plaintiff from bringing a new lawsuit based on the same subject. K.S.A. 60-241, a genuine issue of material fact.

Defendant, also asserts the Statute of Limitations had run before plaintiff filed said action with the Court, thus barring plaintiff from bringing suit, another genuine issue of material fact.

Plaintiff brought suit against defendant twice, both filed in the wrong venue, a genuine issue of material fact.

   Defendant respectfully directs the Courts attention to Defendant’s Motion to Dismiss filed with this honorable Court on January 15, 2014.

      

     In support of said opposition, defendant respectfully refers the Court to the following

Memorandum in Opposition to Motion for Summary Judgement. 

 

 

 

 

MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT

 

I. SUPREME COURT STANDARD FOR SUMMARY JUDGEMENT

 

1. Plaintiff’s Motion for Summary Judgement, a copy of which is attached hereto and marked as Exhibit “A”, is based wholly on defendant’s answer to Interrogatory No.7 (see Exhibit “A” pg.2, No.2) from Plaintiff’s First Combined Interrogatories and Request for Admissions propounded to defendant, a copy of which is attached hereto and marked as Exhibit “B".  Plaintiff stating no written agreement signed by the parties is required in a credit card situation, citing K.S.A. 16-117, (see Exhibit “A” pg. 2, No.2), is irrelevant, in this instance, and is merely Plaintiffs futile attempt to distract the Court from the genuine issues of this case.  The Defendant asserts the Plaintiff completely understood that Defendant’s answer to No.7 was referring to a contract between the Plaintiff and the Capital One Bank, NA.,( henceforth to be known as OC, original creditor), not a contract between the Defendant and the OC, by Plaintiff’s third response in Plaintiff’s Motion for Summary Judgement (see Exhibit “A” pg. 2, No.3).

 

2.        Plaintiff claims a copy of a Bill of Sale and its attachments, a copy of which is attached hereto and marked as Exhibit “C”, show legal standing to bring suit. Defendant’s previous response to Request for Admissions No.4(see Exhibit “B" pg.5, No.4) already illustrates a genuine issue of material fact, that being the complete absence of Defendant’s name or even an alleged account number that is claimed to be associated with Defendant anywhere near the bill of sale or it’s attachments, namely the Affidavit of Sale of Account by Original Creditor (see Exhibit “C” pg. 2).  The Plaintiff's bill of sale does not, in fact, identify any single account, be it defendant’s or anyone's. 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 Defendant.  Being that the bill of sale does not prove the account in question was included in the sale of accounts and doesn't specify which records were included with each account, any records submitted by the Plaintiff are unauthenticated, inadmissible hearsay. Defendant respectfully makes a Motion to Strike plaintiff’s bill of sale, its attachments, and all billing statements.  (See, Motion to Strike, attached)

 

 

 

3.   Plaintiff states 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.

 

Defendant denied all allegations in her answer to the complaint , a copy of which is attached hereto and marked Exhibit “D”,. as well as numerous denials in the discovery. Defendant denies all allegations, as Plaintiff lacks legal standing, genuine issues of material fact do indeed exist..  Furthermore, Defendant reserved her right to file affirmative defense and counter claims.

 

4. Plaintiff has brought same claim against defendant twice, and twice the claim has been dismissed.

 

5. Plaintiff should not be allowed to reinstate the lawsuit, knowing that a dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. Plaintiff is litigating with unclean hands and depriving defendant of due process.

 

4.     Genuine issues of material fact do exist and plaintiff is entitled to nothing.

 

5      Plaintiff lacks standing.

 

6       Plaintiff originally brought this suit in the wrong venue, but corrects the error by it's dismissal.

 

 

7        Repeating the same error, plaintiff once again files in the wrong venue. Plaintiff applies the same remedy to this error as well, with yet another dismissal.

 

 

8       Now after these fatal errors in the plaintiff's claim; the running of the statute of limitations bars the plaintiff from filing any further actions against the defendant, regardless of whether or not it chooses the correct venue.

 

 

9      Plaintiff should not be allowed to reinstate the original lawsuit, now knowing that it is indeed the wrong venue, and is now barred by the running of the statute of limitations. Again, Plaintiff is litigating with unclean hands and depriving defendant of due process.

 

 

10 Plaintiff is barred from the bringing this suit by the running of the Statue of Limitations.  Defendant has  filed with this honorable court a motion to dismiss showing a genuine issue of fact. If a dismissal is not granted; defendant is entitled to a trial. 

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