bluewraith

Cach vs Me in Indiana

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@debtzapper

 

Do you know what happened in the "Seth" case after Seth won the appeal?

 

I'd like to see the other documents on the docket in the appeal, and also after it was remanded.

 

btw, the "Seth" appeal decision is also available in pdf form here: http://www.in.gov/judiciary/opinions/pdf/11081301ewn.pdf

@Robespierre

 

From what I can tell on Doxpop, it sat around for a while before being tossed under TR41(E) in January. Midland filed a Motion to Dismiss with Predjudice.

 

 

@BV80 @Anon Amos

I spoke with a CA this week but he was no longer interested in the FDCPA case since they can claim Bonafide error even with a CoS and signed CMRR. Basically, he just wanted copies of the Discovery questions that I sent to CACH for his own use. He was also surprised that I got the SJ set aside. Hey, at least I got a free bottle of water out of the deal.. lol

 

Still working on my OMSJ, and looking to other attorneys who are a bit more local to me.

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This case has a lot of material on SJ's in Ind as well as affidavits. It was cited in an Ind lawyers blog. Start on page 4

 

 

http://www.in.gov/judiciary/opinions/pdf/12111302.lmb.pdf

 

 

I would insert some of this language from the case in your motion.

 

 

 

. Summary judgment “shall be rendered forthwith if the designated evidentiary matter shows that there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R. 56©. Any doubt as to the existence of a factual issue should be resolved against the party moving for summary judgment, and where designated evidentiary materials may give rise to reasonable conflicting inferences, such inferences shall be drawn in favor of the non-movant. Auto-Owners Inc. Co. v. Harvey, 842 N.E.2d 1279, 1289 (Ind. 2006).

 

“The court must accept as true those facts alleged by the nonmoving party and resolve all doubts against the moving party.’” Id. (citations and quotations omitted). In summary judgment proceedings, the initial burden is on the movant to “designate sufficient evidence to foreclose the nonmovant’s reasonable inferences and eliminate any genuine factual issues.” Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind. 2000). It is only after the movant has met this burden that “the burden shifts to the nonmovant to make a showing sufficient to establish the existence of a genuine issue for trial on each challenged element of the cause of action.”

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The SJ standard in Ind reaffirmed by Ind Supreme Crt

 

 

http://www.cohenandmalad.com/indiana-supreme-court-reaffirms-separate-indiana-summary-judgment-standard/

 

 

 

The Indiana standard differs from the federal summary judgment standard in important ways. Under the Indiana standard, a party seeking summary judgment must negate an element of the other party’s claim, or establish an affirmative defense, such as the statute of limitations, with undisputed evidence.  

 

 

In the course of deciding the case, the Supreme Court held a “a perfunctory and self-serving” affidavit was enough to prevent summary judgment.  In the case, an individual had been arrested for dealing cocaine, in his house, where “apparent cocaine residue and other indicia of cocaine dealing were in plain view on the kitchen table.”  Defendant was searched, and police found more than $3800 in his front pocket, mostly in twenty-dollar bills.  Nevertheless, in the State’s civil forfeiture case, the defendant filed an affidavit that stated merely that the money was not proceeds of criminal activity and that he intended to use it only for lawful purposes.  There was a similar issue with Defendant’s 1977 Buick, leading to a similar paragraph in the affidavit.  This, the Court held, was enough.

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@BV80 @Anon Amos

 

Ok I here is the latest draft. I'm hoping to have this finished and filed by Friday, but the sooner the better I would imagine.

 

I think I have most of the issues covered in here, but I still need some help with the OC affidavit. I'm not sure how to bring up the issue that it was created after the lawsuit started, long after the sale that it is referring to.

 

 

REDACTED Opposition to MSJ.pdf

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@bluewraith

 

Did the CACH affiant (Mills?) reference in her affidavit any records that were not attached?

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@bluewraith

 

Did the CACH affiant (Mills?) reference in her affidavit any records that were not attached?

@BV80

 

She mentions nothing specific, just "books and records of Plaintiff". I don't know what she would be trying to attach. Same with the OC affidavit.  They only reference "the books and records" but never explain what those books and records are, nor directly mention a bill of sale, a schedule 1, nor billing statements.

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@bluewraith

 

Take note of the following from Seth v. Midland which was provided by @debtzapper.

"We agree with Seth that Degel's employment with Midland's servicing agent, MCM, does not establish her personal knowledge of any of the facts pertaining to Midland's complaint against Seth. Indeed, Degel states that she based her affidavit on her "personal knowledge of those account records maintained" by MCM on Midland's behalf.  Because her knowledge of the facts is limited to what she has gleaned from her review of unspecified business records, her affidavit is based entirely upon hearsay, in violation of Trial Rule 56(E). See Breining v. Harkness, 872 N.E.2d 155, 158 (Ind.Ct.App.2007) (holding inadmissible hearsay contained in an affidavit may not be considered in ruling on a summary judgment motion)."

 

I'd be using Seth against Cach's affidavit in support of the MSJ.

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@bluewraith

 

Take note of the following from Seth v. Midland which was provided by @debtzapper.

"We agree with Seth that Degel's employment with Midland's servicing agent, MCM, does not establish her personal knowledge of any of the facts pertaining to Midland's complaint against Seth. Indeed, Degel states that she based her affidavit on her "personal knowledge of those account records maintained" by MCM on Midland's behalf.  Because her knowledge of the facts is limited to what she has gleaned from her review of unspecified business records, her affidavit is based entirely upon hearsay, in violation of Trial Rule 56(E). See Breining v. Harkness, 872 N.E.2d 155, 158 (Ind.Ct.App.2007) (holding inadmissible hearsay contained in an affidavit may not be considered in ruling on a summary judgment motion)."

 

I'd be using Seth against Cach's affidavit in support of the MSJ.

@BV80

 

Heres the latest draft, and what I will more than likely be filing. I feel like there is something that I'm missing though.. I've read that I should file an affidavit with this, but I'm not fully sure on just what to include in that affidavit.

REDACTED Opposition to MSJ.pdf

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You should not ask for the complaint to be dismissed with pred in your objection for SJ. It is a dispositive motion and will be ignored by the court.  Also in the first line you spelled summary wrong.  I sent a very simple notarized affadavit with my MOSJ.  I have never entered into an account with said Plaintiff or said JDB.  Not that yours isn't good also.

 

Did you call a witness to appear in disclosure or did they?

 

The summary judgment stand is well settled. Plaintiiff, as the party bearing the burden of persuasion at trial, must present admissable evidence to sustain it's burden as to each element of it's cause of action.  Plaintiff's motion for summary judgment should not be granted as there are genuine disputed issues of material fact.

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You should not ask for the complaint to be dismissed with pred in your objection for SJ. It is a dispositive motion and will be ignored by the court.  Also in the first line you spelled summary wrong.  I sent a very simple notarized affadavit with my MOSJ.  I have never entered into an account with said Plaintiff or said JDB.  Not that yours isn't good also.

 

Did you call a witness to appear in disclosure or did they?

 

The summary judgment stand is well settled. Plaintiiff, as the party bearing the burden of persuasion at trial, must present admissable evidence to sustain it's burden as to each element of it's cause of action.  Plaintiff's motion for summary judgment should not be granted as there are genuine disputed issues of material fact.

@hot in az

Well, a bit late to fix that. Oh well. It's already set for a hearing on the 1st.

 

The only thing I know of witnesses is they are not going to be getting one from the OC.

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@BV80 @Anon Amos

Just got back from the MSJ hearing. I lost. The judge accepted the cach affidavit and didn't consider any of my objections. Once he accepted their first affidavit I knew I was sunk. Oh well, at least it's all over.

The judge did ask if I had any legal training though, because he sees a lot of Pro Se and said my filings were some of the best he had seen. Gotta feel good about that :)

The rentalawyer they sent was pretty nervous when he was giving responses until the judge said the affidavit was fine. He seemed pretty intimidated by the questions I had raised in my opposition.

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I'm very sorry to hear it. Don't feel like it's too late to negotiate with these bottom feeders. I have seen them accept far less than the judgement they won.

You did give them a run for their money and made them work for it. I wish I could have been more help, but remember they still have to collect so negotiat a better deal. Get at least most of your money out of the bank.

Again, sorry to hear, glad you're handling it well.

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@bluewraith - Sorry about your outcome.

 

A teachable moment from this should come from reading between the lines of what the judge told you: No amount of technical jargon and professional filings can overcome "bad facts." 

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@bluewraith

 

I'm so sorry.   You should be proud of yourself because did your very best and didn't let them walk all over you.  And as you said, it's over.  You don't have to look up any more court rules or case law or write another motion or opposition.

 

I'm sending good thoughts your way in the hope that you can negotiate a settlement that makes you happy.

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