bluewraith

Cach vs Me in Indiana

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I just thought of something.. In their response to the TR41(E) the lied and said they never received discovery response. I don't wonder if the Judge read that and took it for gospel, and signed the Order thinking I never complied with discovery, therefore wouldn't be opposing. Still though.. thats not how it should have been done.

 

I wonder if I should mention something about that so they do know that I complied with discovery.  That's probably best left for the opposition to MSJ though.

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I went to the courthouse this morning and got a copy of the SJ. I was going to file the above attached documents, but decided to give some CAs a call before doing so. I just got off the phone with one. He didn't seem super hopeful about the debt case due to the costs involved on both ends, but was interested in the FDCPA violation. He has a few different options that he said are available.

 

I can send a letter to the attorney demanding that they Motion to Set Aside Judgement on their own behalf due to the FDCPA and ethical violations of saying they never received my discovery, including the CMRR and notarized certificate of service. If they set it aside, great. If not, it looks more egregious for the FDCPA lawsuit increasing its value.

 

He can write the letter himself, to the tune of ~$150

 

Finally, he can also file a scope limited motion (ghost write) to set aside on my behalf for ~$225

 

Or, I can have him do both the letter and ghost write the motion to set aside. He suggested that I write the letter myself, and copy him on it.

 

Basically, he agrees that their statement in the TR41E response was a violation of the FDCPA, and that the court was wrong to issue the Order before the time limit was up. Even if they do set aside the judgment, they are still liable for the FDCPA violation.

 

I'm still waiting to hear back from a couple other CAs, but in the meantime I'm deciding if I want to write the letter, or if I should just fork the $150 over to him.

 

@Anon Amos

@BV80

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Very nice. I am shocked that none of us said FDCPA violation (I was thinking about an ethics complaint to the state bar however).

I would write the letter with the FDCPA and also the mention of reporting the lawyer to the state bar and suggest they dismiss with prejudice now. And follow through with it if they don't.

I would still file the judicial notice and work on the motion to vacate msj as well just in case.

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Very nice. I am shocked that none of us said FDCPA violation (I was thinking about an ethics complaint to the state bar however).

I would write the letter with the FDCPA and also the mention of reporting the lawyer to the state bar and suggest they dismiss with prejudice now. And follow through with it if they don't.

I would still file the judicial notice and work on the motion to vacate msj as well just in case.

 

With the judicial notice, should I also point out the CMRR/Notarized Cert of Service and TR41E blunder?

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With the judicial notice, should I also point out the CMRR/Notarized Cert of Service and TR41E blunder?

Those are separate issues and are for your motion to vacate , FDCPA violation, ethics violation, etc. The judicial notice is just to give the court a copy of the rule (30 days to oppose msj) only.

It's like telling someone the time of day. You just say the time, not the date and temperature etc.

The lawyer and that court are about to find out what time it is. You now have leverage and that is what it really takes.

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I don't wonder if the Judge read that and took it for gospel, .

Yes. This will always be the case with anything filed with the court. If you don't oppose or object to it then you agree to it.

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With the FDCPA violation; if you talk to enough consumer lawyer you may be able to get one to take the whole case over without charging you (if they don't dismiss, which is unlikely).

You also get 1k for yourself under the FDCPA.

Again, you have leverage now, you just need to apply it.

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Dear Scumbag Lawyer,

 

On April 27th, 2015 you filed Plaintiff's Response to Court's Trial Rule 41(E) Hearing stating:

 

“The Plaintiff has been awaiting discovery responses from the Defendant, but received none. Plaintiff is requesting summary judgement on that basis by separate motion.”

 

Please see the documents attached in reference to the above claim. Included is a signed Certified Mail Return Receipt dated May 14th 2014, as well as a copy of the Certificate of Service dated May 12th, 2014, for my discovery responses to you.

 

On April 27th, 2015 you also filed a Motion for Summary Judgement which was granted to the Plaintiff on April 28th, 2015. Indiana Trial Rule 56 © states in pertinent part:

 

“An adverse party shall have thirty (30) days after service of the motion to service a response and any opposing affidavits.”

 

Since this Judgement has been awarded to you in violation of Indiana Trial Rule 56 because of the statement made in Plaintiff's Response to Court's Trial Rule 41(E) Hearing, I hearby demand that you file a Motion to Set Aside Judgement on your own behalf. If no motion has been filed to the court on this matter within 24 hours, I will retain an attorney pending a FDCPA lawsuit, as well as contacting the Kentucky Bar Association regarding the ethical violations of allowing a Summary Judgement to be granted in violation of TR56©.

 

If you have lost or misplaced my Discovery Responses, I would be more than happy to send you another copy at your request after a Motion to Set Aside Judgement has been filed.

 

 

@Anon Amos

Hows that look? Since the CA I talked to wanted to be copied on the letter, that means the easiest thing to do would be email it. Unfortunatly, that means I get to phone them up and ask for their email address, since it was not added to their appearance. Oh goody gumdrops.. lol

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I would remove the last paragraph about sending them the discovery. Then I would say you did a great job with that.

Personally I would want to speak to the lawyer anyway. I wouldn't speak to anyone but the lawyer (you may feel differently however).

Also, when you email or speak on the phone; follow up with a letter as well. Keep a good record of all this.

You also have them under "unclean hands" as well. Not that you need more leverage.

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I would remove the last paragraph about sending them the discovery. Then I would say you did a great job with that.

Personally I would want to speak to the lawyer anyway. I wouldn't speak to anyone but the lawyer (you may feel differently however).

Also, when you email or speak on the phone; follow up with a letter as well. Keep a good record of all this.

You also have them under "unclean hands" as well. Not that you need more leverage.

I have this nasty habit of recording all phone calls that may or may not be related to legal matters. Indiana is a single party state in that as long as one party knows its being recorded, the other side does not need to be told. I'm sure I'll be recorded as well. I'll ditch the last paragraph. It was added in as just trying to be nice, but I think the niceties are over at this point. Thank you. :)

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I would also mention the lawyer by name in reference to the ethics complaint to the bar. Make that adjustment and it sends a strong message.

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I have this nasty habit of recording all phone calls that may or may not be related to legal matters. Indiana is a single party state in that as long as one party knows its being recorded, the other side does not need to be told. I'm sure I'll be recorded as well. I'll ditch the last paragraph. It was added in as just trying to be nice, but I think the niceties are over at this point. Thank you. :)

You are being nice by allowing them time to right their wrong.

You could have went straight to the FDCPA lawsuit. The court could also be reported to the attorney general and the judge to the state bar for ethics as well.

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The CA suggested faxing the document. I totally forgot about that old archaic piece of equipment sitting the office. Guess fax machines will never die.

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Lol. I just went through that myself yesterday to the insurance co. I needed their email instead of fax #. I thought the same thing, who uses fax anymore.

Anyway, on with your fight. I think you will be seeing some drastic and positive changes soon.

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@bluewraith

 

Basically, he agrees that their statement in the TR41E response was a violation of the FDCPA, and that the court was wrong to issue the Order before the time limit was up. Even if they do set aside the judgment, they are still liable for the FDCPA violation.

 

 

I'm glad he concurs that the attorney's action is a violation.  BTW, since the plaintiff is also a debt collector, it can be held vicariously liable for the actions of the debt collection attorney.  Therefore, both the attorney and JDB could be included in a lawsuit and each could be separately liable for $1000.

 

The letter looks good to me.  I agree with @Anon Amos about removing the last line.

 

Also, ask the attorney about possible fraud based on the plaintiff's TR 41(E) response. 

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@bluewraith

 

 

 Therefore, both the attorney and JDB could be included in a lawsuit and each could be separately liable for $1000.

Also, ask the attorney about possible fraud based on the plaintiff's TR 41(E) response. 

@BV80

 I will be sure to bring up those points next time I speak to the consumer attorney. No matter what they do about the motion to set aside, they are still liable for the violation.

 

Judicial Notice has been filed and serviced, and the letter has been faxed. Tomorrow should be interesting.

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@BV80

 

No response from them today. I did receive copies of the Summary Judgment as well as the Order to keep the case on the docket (Re: the TR41E last week). If nothing changes Monday by close of business I'll be checking in with the CA and see what he thinks on the FDCPA suit. The attorneys themselves *are* debt collectors, so I don't think there will be any issue with getting a misrepresentation charge, especially since they didn't attempt to fix the violation.

 

It also looks like I may be able to file a grievance with the Indiana Supreme Courts Disciplinary Commission over this as well. I bet that would give him the warm and fuzzies. lol

http://www.in.gov/judiciary/discipline/2373.htm

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No response again today, so I sent my lawyer an email to see if he was still interested in taking the FDCPA suit on contingency. He is, so hopefully I'll have an appointment with him this week sometime. This might be the start of a long friendship with him, ya never know. :-D

 

As for the Summary Judgment, @BV80 @Anon Amos What do you two think about my Motion to Vacate SJ posted above? It really seems like it needs to be longer, but then again its a pretty cut and dry issue. http://www.creditinfocenter.com/community/topic/323302-cach-vs-me-in-indiana/?p=1321798

 

If and when the courts vacate or set aside the SJ, will CACH have to refile the MSJ or should I still file my Opposition to MSJ along with the Motion to Vacate? I'd hate to give them all my ammo only for it to be turned around when they file a new MSJ.

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@bluewraith

 

In its MSJ, did the plaintiff claim that you had failed to respond to discovery requests?

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@bluewraith

 

That's just weird.  Either the judge just flat messed up, or I'm wondering if, as you said in another post, he took notice of their response to the TR41E and simply assumed you had not answered discovery and awarded judgment on that basis.  If we knew that for sure, I'd say to include in your motion that you most certainly did answer discovery and provide the proof.

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@bluewraith

 

That's just weird.  Either the judge just flat messed up, or I'm wondering if, as you said in another post, he took notice of their response to the TR41E and simply assumed you had not answered discovery and awarded judgment on that basis.  If we knew that for sure, I'd say to include in your motion that you most certainly did answer discovery and provide the proof.

@BV80

 

Both Orders were signed at the same time, (Order on TR41E and MSJ), so that is what leads me to believe it. I don't blame him for trying to clear his calendar, but that's pretty shady considering I have been active in the case. They never filed a MTC, but their Statement of Undisputed Facts does state things that were either denied in Discovery, or objected to.

 

Huh.. thats weird. The Summary Judgment and TR41E papers don't have a Filed stamp.. Not the copy I got from the court myself, nor the copy that they mailed to me. Both are signed and dated though

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As for the Summary Judgment, @BV80 @Anon Amos What do you two think about my Motion to Vacate SJ posted above? It really seems like it needs to be longer, but then again its a pretty cut and dry issue. http://www.creditinfocenter.com/community/topic/323302-cach-vs-me-in-indiana/?p=1321798

Most motions are actually way too long. You want a judge to be able to skim read it. If you had more to say you could add it, but it does say what you need. It depends on your rules too, my court wouldn't accept it because all motions need the notice, memorandum of points & authorities, and declaration. This is probably not a noticed motion, but an ex parte and your court is probably more likely to accept it, but I don't know your rules.

 

If and when the courts vacate or set aside the SJ, will CACH have to refile the MSJ or should I still file my Opposition to MSJ along with the Motion to Vacate? I'd hate to give them all my ammo only for it to be turned around when they file a new MSJ.

You can hold off on the opposition since they have already awarded it. If they vacate the msj then they will have to file another one if they go that route again, and then you can oppose it. 

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@BV80 @Anon Amos

 

Filed my Motion to Vacate SJ this morning. Sometime this afternoon, the judge signed off on it set aside and set a hearing on the MSJ in a few weeks. They reserved 30 minutes on the schedule. Time to get busy!

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