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Motion for Summary Judgement Pressler &Pressler


kmercy
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Hi Everyone!

 

 

I am in the middle of the back and forth with Pressler &Pressler with a non-jury trial set for January 10th..

 

 

I am being sued for a small amount of $1,056.27 and in another post i posted all of the information for the case. However, this past weekend I received a letter stating that Pressler and Pressler is ordering a summary judgement entered against me as of December 20, 2013.

 

I made a mistake of not sending out my own discovery and I'm not sure if they can do this before the trial date.. I'm not sure what to do.. please help!

 

Is it too late to send out my own set of discovery? Can i reschedule the trial date? They had sent me a packet full of old statements from Chase and a bill of sale but the bill of sale did not contain my account information on it.

 

 

1. Who is the named plaintiff in the suit?

Midland Funding LLC

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Pressler and Pressler

 

3. How much are you being sued for?

>1300

 

4. Who is the original creditor? (if not the Plaintiff)

CHASE

 

5. How do you know you are being sued? (You were served, right?)

Served with summons

 

6. How were you served? (Mail, In person, Notice on door)

In person, through postal service

 

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

Yes

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

May have spoken to them on the phone

 

9. What state and county do you live in?

Hudson County, New Jersey

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

2010

 

11. What is the SOL on the debt? To find out:

I believe 6/7 years

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Summons was delivered, Answer filed.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have already responded to the suit.

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

None.

 

 

 

 

 

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You need to oppose the MSJ. 1 st in your other thread (you should post only in that thread so everyone can keep up, all your case info, advice etc. in one place) I gave you a list of document requests. Pick some, and send them to the plaintiff ASAP. You want to create triable issues of material fact. Then work on your opposition.

You can do a forum search of examples of an opposition, that will give you an outline, and info on as to why it should be denied as a matter of law. Here is a thread that may help from your state, but it does not have an MSJ example. http://www.creditinfocenter.com/community/topic/310073-my-nj-crap1-case-newbie-help-please/?view=findpost&p=1131804&hl=%2Bopposition+%2Bsummary+%2Bjudgement+%2Bjersey

Important thing is to send off those doc requests, and get your opposition filed before your alloted time to respond.

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I am simply not conversant enough with your courts and rules to help you write your opposition. I do know that if you don't oppose it they will get a Summary Judgement. That should be your focus, not Rogs at this point. Go read your rules of civil procedure quickly. You should have about 10 days total to get a response in. Look on your court calendar to see when the motion hearing is sent. IMHO you are too far behind the learning curve to be effective in time. Consider at least getting an attorney to help write the motion or take over. You must act quickly, the clock is getting ready to run out for you. Wish I could do more.

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Here is a great example, but you will need to find NJ case law instead of AZ. You can find some by searching google scholar. This has all the elements of a successful MSJ. Creating issues of material fact is what will defeat this.

http://www.creditinfocenter.com/community/topic/317482-need-fast-help-court-next-week/?p=1205385

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All that needs to be done to beat a motion for summary judgement is show that there are issues of fact that have not been resolved.

The first issue is the fact they have not yet established standing to sue, and the court does not have subject matter jurisdiction. Subject matter jurisdiction cannot be waived, United States v Cotton, 535 U.S. 625, 630 (2002). Once jurisdiction is challenged the court must prove it on the record, Lantana v. Hopper, 102 F2d 188. There is also no discretion to ignore lack of jurisdiction, Joyce v. US, 474 F2d 215.

Before a court can even hear the merits of a case the person seeking to invoke the courts jurisdiction must establish standing to sue see Whitmore v Arkansas, 495 U.S. 149 (1990).

In order to state a claim for which relief can be granted plaintiff must provide evidence upon which the court can look at and base relief upon.

Plaintiff has failed to do this and has not stated a claim for which relief can be granted.

Plaintiffs motion for summary judgment is a procedural and substantive nullity. Plaintiff has placed no facts on record. either by affidavit or deposition, or answer to interrogatory to suggest or to support the averments of plaintiff pleadings.(this statement says that the only person that has said anything in this matter is the attorney). Documents proffered by plaintiff are unverified, out of date, irrelevant, and inadmissible. An attorney has an obligation under oath to make an inquiry, reasonable under the circumstances, to determine whether or not there is an obligation. Defendant states that plaintiffs attorney has failed to perform this duty. Attorney cannot advance documents expecting another person to rely on them in which they would have to surrender, money, property and rights that they had to know, or had reason to suspect, were false. Statements of council in brief or in argument are not sufficient for purposes of granting a summary judgment, see Trinsley v Pagliaro, 229 F.Supp 647(1964).

Wherefore defendant ask the court in this matter to deny plaintiffs motion for summary judgement.

 






 

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@BTO429
 

 

An attorney has an obligation under oath to make an inquiry, reasonable under the circumstances, to determine whether or not there is an obligation. Defendant states that plaintiffs attorney has failed to perform this duty. Attorney cannot advance documents expecting another person to rely on them in which they would have to surrender, money, property and rights that they had to know, or had reason to suspect, were false.

 

 

I'll ask again.  How is an attorney supposed to verify the business records?  Contact the OC? 

 

What law says that an attorney must verify business records?  That is supposed to be done by the custodian of records or other qualified witness.

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http://scholar.google.com/scholar_case?case=12347089951873888061&q=credit+card+summary+judgment&hl=en&as_sdt=4,31

This is a leading NJ debt collection case, discussing what the Plaintiff must prove to win at summary judgment.  Here, the court said the Plaintiff did not prove its case.  You can use this as a guide for your response.  

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Hey there, please see my previous posts. I am fighting a case with Pressler & Pressler for far more money. You DO need to file an affidavit in opposition to summary judgment (aka why they shouldn't win) and a memorandum of law (facts supporting your claim). In a super nutshell, all you have to prove are that there are material facts that are unresolved. As long as you file, at the very least you will be given a conference, but if you don't file, you may screw yourself and have it entered. It all depends on your judge. What county are you in? I am in NY and you're in NJ, so I'm sure there are differences, but the tactics of P and P are usually the same. Also, what did you write in your answer? Basically, your affidavit will repeat anything you brought up in your answer (i.e. time barred, lack of standing, amount in dispute, not my debt, etc.), please look at my initial posts, as I have included there both my affidavit in opposition and my memorandum of law. You are free to use whatever helps. Let me know how it goes. -K

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You misunderstand attorney has a duty under oath to make an inquiry and determine if there is actually an obligation.  In other words he must perform due diligence to determine if the obligation even exists. An attorney is not supposed to file a suit and hope for the best. He must have some sort of concrete facts that will raise the level of belief pas a speculative level. If he has to contact the OC then that's what he should do.

@BTO429
 

 

I'll ask again.  How is an attorney supposed to verify the business records?  Contact the OC? 

 

What law says that an attorney must verify business records?  That is supposed to be done by the custodian of records or other qualified witness.

It is well known that statements of attorneys are not facts until they are proven by admissible evidence. If the attorney thinks for a minute that the evidence may not be admitted and he may not have a case, he needs to find reliable evidence before he files a case. There is no public law, it is in the attorney canons, Cannon 22, 8, and 15

 

Canon 22. Candor and Fairness.

The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness. It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a textbook; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely. It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes. A lawyer should not offer evidence which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the Judge arguments upon any point not properly calling for determination by
him. Neither should he introduce into an argument, addressed to the Court, remarks or statements intended to influence the jury or bystanders.These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.

 

Canon 8. Advising Upon the Merits of a Client’s Cause.
A lawyer should endeavor to obtain full knowledge of his client’s cause before advising thereon, and he is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation. The miscarriages to which justice is subject, by reasons of surprises and
disappointments in evidence and witnesses, and through mistakes of juries and errors of Courts, even though only occasional, admonish lawyers to beware of bold and confident assurances to clients, especially where the employment may depend upon such assurance. Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation.

 

Canon 15. How Far a Lawyer May Go in Supporting a Client’s Cause.
Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of
that full measure of public esteem and confidence which belongs to the proper discharge of its duties than does the false claim,
often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client’s cause.
It is improper for a lawyer to assert in argument his personal belief in his client’s innocence or in the justice of his cause.
The lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability, to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is
entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in the mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of
him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.
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@BTO429

 

; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed;

 

 

The words you highlighted does not support your argument.  Take a look at the entire section...not just the highlighted words.  

 

It is not candid or fair for an attorney to cite as precedent a decision that has been overruled or a statute that has repealed if he knows that the decision or statute is invalid.  

 

A lawyer should not offer evidence which he knows the Court should reject

 

 

You tell people to request that the court sanction the attorney, but you leave out some details.  First, it must be shown that the court should reject the evidence.  If the court rejects it, then you'd have to show the attorney knew it should be rejected.  

 

If what you've posed is as important as you claim, I would think that the attorneys who frequent this site would have mentioned it by now.

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It happens all the time in these debt collection cases. Courts do not do anything because the defendant does not bring it up. When an attorney advances a document, whether or not he tampered with it, makes no difference. Before an attorney advances any docs or evidence that attorney has a duty to investigate where that evidence came from and verify its authenticity. Any one can look at a document or other evidence and see if it has been tampered with, all that has to be done to find out if the attorney verified his evidence is ask in open court, once asked he has to prove he did.

There are some rules that are not written down on paper, there are also some laws and rules that the general public does not get to see. Attorneys know they are not supposed to offer evidence into court that is not accurate. If there is a remote chance it will not be accepted they are not supposed to offer it as evidence, but the courts let them get away with it. Not enough people challenge this practice. I have had more than one professor and attorney state in class that attorney cannot advance documents that they have a reason to suspect are not true, but they do it any way. It is fraud,

When an attorney allows his client to give false sworn testimony or file false sworn affidavits, he is sanctioning the crimes of perjury and obstruction of justice by his client, and this violates the Rules of professional conduct. If evidence is found to possibly, or actually be fraudulent an attorney is supposed to take all reasonable measures to correct the falsity. These junk debt buyer obtain evidence that has some of the information on the document crossed out so it can not be read, this if an altered document, but these attorneys go ahead and rely on them and advance these documents to the court and expect the judge to rely upon them. This is fraud, upon the court and upon the defendant.

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@BTO429

 

I have no doubt that JDBs are dishonest.   But, you're advice fights the attorney's behavior...not the cause of action alleged by the plaintiff.   If you make an allegation, it's yours to prove. 

 

Again, if this is as easy and as important as you claim, the attorneys who frequent this site would have mentioned it.

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Amalfitano v. Rosenberg, No. 01069, slip op. (N.Y. Feb. 12, 2009)

The district court awarded treble damages in the amount of $268,245.54 for opposing parties attorney who tried to deceive the court, the court stated that an attorney does not even have to succeed only to attempt deceit.

 

Am. Airlines, Inc. v.Allied Pilots Association, 968 F.2d 523 (5th circuit 1992)

finding violation where an attorney submitted deceptive documents to support his motions.

 

In re Selmer, 568 N.W,2d 702, 704-705 Minn 1997

suspending an attorney for knowingly offering false evidence during discovery.

 

Meyn n State N.W.2d 31, 34 (Iowa 1999)

Prohibiting an attorney from introducing false and deceptive documents.

 

I have more where these came from.

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@BTO429

 

I never said that an attorney can knowingly submit false documents, did I?  But the operative word is "knowingly".  In each of the cases you cited, it was proven that the attorneys knowingly attempted to deceive the court.

 

Again, whoever makes the allegation has the burden of proof.

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You know and I know that these jdb's submit documents they know are false.

Amalfitano v. Rosenberg, No. 01069, slip op. (N.Y. Feb. 12, 2009) stated that an attorney does even have to succeed with the attempt he only has to make an attempt to deceive the court. 

If an attorney examines a piece of evidence and he suspects that it may be fraudulent, buy he advances that evidence and asks the court to rely on it, the he knew about the potential fraud. If he advances documents and then those documents are proven to be fraudulent but he still stands on them as evidence and does nothing to correct the mistake(yea right) he still attempted to pass fraudulent evidence, even though he did not know at the time he offered them for evidence.

The fact I an trying to get across is that the attorney has a duty to verify and document that verification before he decides to offer it for evidence. These jdb attorneys do not do this the just offer whatever the plaintiff gives them and then tries to prove in court that it is authentic, it should be done before it is offered to the court as evidence.

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@BTO429

 

You know and I know that these jdb's submit documents they know are false.

 

 

Not all documents submitted by JDBs are false.   Most consumers know whether or not they had the account for which they're being sued.  They also know whether or not they made charges and payments.   If a JDB submits copies of billing statements that show charges and/or payments, a consumer can usually figure out if those charges are his and if he made the payments. 

 

Yes, we dispute those billing statements.  We claim they haven't been properly authenticated, etc.,  but most of the time we know if they're valid or not.

 

We do know that affidavits are robosigned, but judges are not going to take our word for it.  There must be proof.

 

The cases you cited are all based upon attorneys who KNOWINGLY submitted false documentation or testimony.   If a consumer knows for sure that a document is false and can prove it, that's one thing.  But I would daresay it's not a good idea for a consumer defendant to start throwing around allegations of false documentation and fraud upon the court without proof.

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I never said it applies to every case. But it applies to those attorney who do use fraudulent documents. And a lot of them do. This is getting out of proportion. All I was doing was trying to show some posters how to deal with those attorneys that use fraud.

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I don't want to hijack this thread but I do have a question for both of you. I disagree to some degree with both of you but I personally have a lot of trouble when the hearsay rule is generally crystal clear in most States (that I am familiar with) RCP's and RE's how an attorney can knowing submit these affadavits that are way beyond the bounds of hearsay. I fully understand the duty to challenge them but I can't understand why those sacred Canons are not raped and pillaged. They knowingly submit what they know is wrong and pass it by saying its OUR duty to challenge which is a half truth. I sincerely apologize to the OP

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@walterg55

 

Some hearsay is considered admissible.  Business records are a type of hearsay that can be considered admissible.

 

You have to find out how your courts have ruled.  While courts in one state might not allow statements in an affidavit, courts in another state might allow them.   For instance, some courts allow one business to authenticate the records of another business.  Other courts don't allow it.

 

You attack it the best you can and hopefully, you have court precedent that supports your argument.

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I don't want to hijack this thread but I do have a question for both of you. I disagree to some degree with both of you but I personally have a lot of trouble when the hearsay rule is generally crystal clear in most States (that I am familiar with) RCP's and RE's how an attorney can knowing submit these affadavits that are way beyond the bounds of hearsay. I fully understand the duty to challenge them but I can't understand why those sacred Canons are not raped and pillaged. They knowingly submit what they know is wrong and pass it by saying its OUR duty to challenge which is a half truth. I sincerely apologize to the OP

This is what I am trying to point out here, why do we let them get away with it when we have rules against it? If the rule is crystal clear then you need not say a lot more. They are clear in my state, and I intend to use them. Unfortunately, stare decisis is not always applied uniformly. 

The problem with case law is it is tended to be treated as actual law, when it is only the opinion of the court in that particular case. Case law is used to attempt to sway the judge in your favor. Some case law actually ends up being actual law, like Miranda v Arizona. Case law is an explanation of how a court reached it verdict and is only dictum, or commentary.

The problem is some judges cannot determine the boundary between edict and dictum....You also need to understand how the common law principles came to be and how they are supposed to be used. Just because a court ruled a certain way does not make it actual law. It is only a basis upon which judges can use to determine how they should rule.

If you want to know just how a court has ruled on a certain subject the best place to look is in your states annotated law books. Most libraries have them,,,,,, 

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