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being sued by Midland in Oklahoma


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In their motion for summary judgment they have attached a copy of the requests for admissions interrogatories and request for production of documents

 

my question is they never sent one for an answer, do they have to file that with the court when they send it?

 

 

Just trying to come up with a good opposition...any help would be greatly appreciated

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In their motion for summary judgment they have attached a copy of the requests for admissions interrogatories and request for production of documents

 

my question is they never sent one for an answer, do they have to file that with the court when they send it?

 

 

Just trying to come up with a good opposition...any help would be greatly appreciated

 

Start at the beginning:  were you served with the summons for the lawsuit?  Typically YOU are responsible for answering once you are served.

 

Regardless you need to file an objection to their MSD or the court is going to grant it.

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Yes sent a summons responded with a validation letter then got a generic letter with an account # and OC name

 

But did you answer the COURT?  By the time you have been sued DV is pointless.  You need to answer the lawsuit or you will find the court granting their MSD.  The only thing required for DV with you is the name and address of the OC and the amount you owe.  That is IT.  DV does NOTHING to stop a lawsuit once it has been filed.  

 

When were you served?

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 thanks for replying Clydesmom...that's what i'm trying to do lol i am writing an opposition...we never received their requests and admissions, says they sent it back in august.... so got the MSJ with the court date lees than a week, went to court and the judge asks if there it was disputed said yes and the judge gave 2 weeks to answer....been looking this site for pointers in my opposition

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In this thread answer these questions (I eliminated some because you already provided that or it isn't relevant now)

 

 1. Who is the named plaintiff in the suit?

 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
 3. How much are you being sued for?
 4. Who is the original creditor? (if not the Plaintiff)
 5. How do you know you are being sued? (You were served, right?)

 6. How were you served? (Mail, In person, Notice on door)
 7. Was the service legal as required by your state?

 8. What was your correspondence (if any) with the people suing you before you think you were being sued?
 9. What state and county do you live in?
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
11. What is the SOL on the debt?

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

 

Then in a separate post in this thread post the RFAs, ROGS, and documents they asked for then I or someone else can help you answer this.          

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1. Who is the named plaintiff in the suit? Mother

 

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

 3. How much are you being sued for? $1621.08

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

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

 

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

 7. Was the service legal as required by your state? Yes I believe so

 8. What was your correspondence (if any) with the people suing you before you think you were being sued?They left messages , Mother wouldn't return call then received letter and she sent validation letter

 9. What state and county do you live in? Oklahoma

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) They say last payment date was 12-3-2008

11. What is the SOL on the debt?

 

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

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"10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) They say last payment date was 12-3-2008"

 

WHEN did they file the suit?  This is VERY important because the SOL is 5 years in OK and they may have waited to long giving you an affirmative defense.

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"10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) They say last payment date was 12-3-2008"

 

WHEN did they file the suit?  This is VERY important because the SOL is 5 years in OK and they may have waited to long giving you an affirmative defense.

Suit was filed March 20 2013 and was served June 4th 2013

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Suit was filed March 20 2013 and was served June 4th 2013

 

Are you in small claims court or circuit court?  It does not appear that small claims allows all that stuff they claim they mailed to you in August.  

 

What is her defense to this lawsuit?

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yes a bill of sale with no name or account number...  also the monthly statements they provided are unclear they show the card paid off every month, next to the last payment shows money owed and we have a bank statement showing that it was paid then the last statement was a year later showing no other charges but a new balance of 1155.38  if it helps i can post my opposition i have so far??

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@ok-sooner

 

Sure.  Go ahead and post it. 

 

they show the card paid off every month, next to the last payment shows money owed and we have a bank statement showing that it was paid

 

 

How much was paid?  The minimum payment?  Or the full balance owed on the account?

 

Is there anyway you could show the credit card statements with the personal information redacted?

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OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

 

 

          Defendant pro-se, now submits to the Court her Opposition for Plaintiff’s Motion for Summary Judgment and asks the Court to deny said Motion as there are very real issues with Plaintiff’s claims.

 

FACTS

 

    

        The Defendant pro-se, did indeed have an account with the original creditor Citibank. However Plaintiff has no real evidence that shows any moneys owed to them.

 

         Though Plaintiff has showed a bill of sale from original creditor it does not reference Defendant’s name or account number. (See Plaintiff’s exhibit B)

 

         The Plaintiff has submitted some monthly statements (See Plaintiff’s exhibit C) The statements provided are inconclusive showing no activity beyond August, 10th  2008. Meaning the Plaintiff’s final numbers they claim the Defendant owes is disputed.

 

          The Plaintiff also submitted a field/field data sheet with [a] “last payment amount of 100 ” that they can’t prove in the monthly statements that THEY provided (See Plaintiff’s exhibit C).

 

 

ARGUMENT AND AUTHORITY

 

Plaintiff has not Proven Standing

 

         Though Defendant has stipulated to the creation of an account with OC and that there were payments and activity on said account at one time, Defendant has not conceded Plaintiff’s standing in this case. Any stipulations regarding Defendant’s opening and use of an account with OC have nothing to do with the issue of Plaintiff’s standing. Plaintiff has submitted inadmissible evidence in support of its Motion for Summary Judgment and this has created a genuine material issue in which a trial is necessary to resolve. "This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. Matter of the Estate of Doan, 1986 OK 15, 7, 727 P.2d 574, 576. Though the Matter of the Estate of Doan is not a credit card related case, standing to sue is a very basic element in any case. The Oklahoma Supreme Court in Fent v. Contingency Review Bd., 163 P. 3d 512, 519 - Okla: Supreme Court 2007 defined the elements of standing with "Standing refers to a person's legal right to seek relief in a judicial forum.[20] The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision." Plaintiff has yet to prove they own any alleged account related to the Defendant or that the Defendant owes any amount to the Plaintiff, as a result, they have not proven there has been an injury that gives standing to bring suit in this action.

 

1. Bill of Sale

 

       The Plaintiff has submitted a Bill of Sale as proof of their alleged ownership of an account. (See Plaintiff’s exhibit B) The  Bill of Sale makes no reference in any way to the Defendant or to any account belonging to the Defendant. There is no way for Court or Defendant to be sure that the Defendant’s account was sold to Plaintiff from the original Creditor.

 

 

 

 

       

        

 2. Monthly Statements

 

        The Monthly Statements they have provided (See Plaintiff’s exhibit C) only show that the Defendant was in good standing with the Original Creditor paying off monthly charges in full every month further more they show no activity beyond August 10th  2008 to which the Defendant can show card was paid in full as of August 10th 2008 (See Defendant’s exhibit A)

 

3. The Field/ Field Data Sheet

 

         The Field/ Field Data sheet has some of the Defendant’s personal information and an inconclusive amount of information dealing with the alleged money owed to Plaintiff a “last payment date of December 3rd 2008” and a “last payment of 100” and a last purchase date January 18th 2009” they show no Monthly statement showing these amounts (See Plaintiff’s exhibit C).

 

The Plaintiff is not entitled to Summary Judgment

 

           Plaintiff is moving for Summary Judgment based on 12 O.S. § 2056 C “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Plaintiff states in their Motion for Summary judgment that the only “question” that remains is whether the Plaintiff has standing. Defendant avers that there are multitudes of questions that raise a material dispute where reasonable minds would differ and summary judgement is not proper. In Vance v. Federal Nat. Mortg. a$$'n, 988 P. 2d 1275 - Okla: Supreme Court 1999 The Oklahoma Supreme Court defined the “Standard of Review for Summary Judgments” by stating “ 6 While summary process is available to litigants to identify and isolate non-triable fact issues, its purpose is not to defeat a party's right to trial.[5] It is only apropos when tendered evidentiary materials support but a single inference favorable to the movant and then only after viewing the proffered materials in the light most favorable to the non-moving party .[6] It is not summary adjudication's function "to set the stage for trial by affidavit."[7] Although the trial court must consider factual matters when considering summary judgment, a cause's expedited resolution by this process is appropriate only when all that remains regarding a particular issue is a question of law, i.e., when "one party is entitled to judgment as a matter of law because there are no material disputed factual questions.”” In this Motion for Summary Judgment, Plaintiff has submitted evidentiary materials that do not meet their burden of proof and Summary judgment as a matter of law is improper and Summary Judgment should be denied.

 

 

Conculsion

 

        The Plaintiff has failed to submit any real evidence that the they own the alleged debt and that the Defendant has raised  many problems with the claims that the Defendant owes any moneys to The Plaintiff, Midland Funding, LLC.

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

 

 

          Defendant pro-se, now submits to the Court her Opposition for Plaintiff’s Motion for Summary Judgment and asks the Court to deny said Motion as there are very real issues with Plaintiff’s claims.

 

FACTS

 

    

        The Defendant pro-se, did indeed have an account with the original creditor Citibank. However Plaintiff has no real evidence that shows any moneys owed to them.

 

         Though Plaintiff has showed a bill of sale from original creditor it does not reference Defendant’s name or account number. (See Plaintiff’s exhibit B)

 

         The Plaintiff has submitted some monthly statements (See Plaintiff’s exhibit C) The statements provided are inconclusive showing no activity beyond August, 10th  2008. Meaning the Plaintiff’s final numbers they claim the Defendant owes is disputed.

 

          The Plaintiff also submitted a field/field data sheet with [a] “last payment amount of 100 ” that they can’t prove in the monthly statements that THEY provided (See Plaintiff’s exhibit C).

 

 

ARGUMENT AND AUTHORITY

 

Plaintiff has not Proven Standing

 

         Though Defendant has stipulated to the creation of an account with OC and that there were payments and activity on said account at one time, Defendant has not conceded Plaintiff’s standing in this case. Any stipulations regarding Defendant’s opening and use of an account with OC have nothing to do with the issue of Plaintiff’s standing. Plaintiff has submitted inadmissible evidence in support of its Motion for Summary Judgment and this has created a genuine material issue in which a trial is necessary to resolve. "This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. Matter of the Estate of Doan, 1986 OK 15, 7, 727 P.2d 574, 576. Though the Matter of the Estate of Doan is not a credit card related case, standing to sue is a very basic element in any case. The Oklahoma Supreme Court in Fent v. Contingency Review Bd., 163 P. 3d 512, 519 - Okla: Supreme Court 2007 defined the elements of standing with "Standing refers to a person's legal right to seek relief in a judicial forum.[20] The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision." Plaintiff has yet to prove they own any alleged account related to the Defendant or that the Defendant owes any amount to the Plaintiff, as a result, they have not proven there has been an injury that gives standing to bring suit in this action.

 

1. Bill of Sale

 

       The Plaintiff has submitted a Bill of Sale as proof of their alleged ownership of an account. (See Plaintiff’s exhibit B) The  Bill of Sale makes no reference in any way to the Defendant or to any account belonging to the Defendant. There is no way for Court or Defendant to be sure that the Defendant’s account was sold to Plaintiff from the original Creditor.

 

 

 

 

       

        

 2. Monthly Statements

 

        The Monthly Statements they have provided (See Plaintiff’s exhibit C) only show that the Defendant was in good standing with the Original Creditor paying off monthly charges in full every month further more they show no activity beyond August 10th  2008 to which the Defendant can show card was paid in full as of August 10th 2008 (See Defendant’s exhibit A)

 

3. The Field/ Field Data Sheet

 

         The Field/ Field Data sheet has some of the Defendant’s personal information and an inconclusive amount of information dealing with the alleged money owed to Plaintiff a “last payment date of December 3rd 2008” and a “last payment of 100” and a last purchase date January 18th 2009” they show no Monthly statement showing these amounts (See Plaintiff’s exhibit C).

 

The Plaintiff is not entitled to Summary Judgment

 

           Plaintiff is moving for Summary Judgment based on 12 O.S. § 2056 C “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Plaintiff states in their Motion for Summary judgment that the only “question” that remains is whether the Plaintiff has standing. Defendant avers that there are multitudes of questions that raise a material dispute where reasonable minds would differ and summary judgement is not proper. In Vance v. Federal Nat. Mortg. a$$'n, 988 P. 2d 1275 - Okla: Supreme Court 1999 The Oklahoma Supreme Court defined the “Standard of Review for Summary Judgments” by stating “ 6 While summary process is available to litigants to identify and isolate non-triable fact issues, its purpose is not to defeat a party's right to trial.[5] It is only apropos when tendered evidentiary materials support but a single inference favorable to the movant and then only after viewing the proffered materials in the light most favorable to the non-moving party .[6] It is not summary adjudication's function "to set the stage for trial by affidavit."[7] Although the trial court must consider factual matters when considering summary judgment, a cause's expedited resolution by this process is appropriate only when all that remains regarding a particular issue is a question of law, i.e., when "one party is entitled to judgment as a matter of law because there are no material disputed factual questions.”” In this Motion for Summary Judgment, Plaintiff has submitted evidentiary materials that do not meet their burden of proof and Summary judgment as a matter of law is improper and Summary Judgment should be denied.

 

 

Conculsion

 

        The Plaintiff has failed to submit any real evidence that the they own the alleged debt and that the Defendant has raised  many problems with the claims that the Defendant owes any moneys to The Plaintiff, Midland Funding, LLC.

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the balance was paid in full and the statements they provide have no more activity after that payment

 

Your mom's bank statement shows that she paid the account in full?

 

Do you mind writing what was stated word for word in the affidavit?   That could help with some more case law.  In my opinion, your MSJ looks pretty good.  I can tell you've been doing your research :-) but you need some more precedent from the courts.

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Here is some OK case law.  It says OK is becoming more "debtor-friendly."

 

 
As is true in many states across the country, collections laws in Oklahoma have become increasingly 
debtor-friendly. As a result, it is more important now than ever for creditors and lenders to remain 
cognizant of the laws that will govern their future collections efforts even before accounts go into default. 
Said differently, the nature of Oklahoma collections laws ensures that those creditors and lenders who 
perform due diligence in properly documenting their activities during the pendency of a credit account are 
rewarded in the event a given borrower defaults. 
 
a. Consumer/Retail Collections 
Throughout the state of Oklahoma, courts have imposed heightened requirements for documentation on 
defaulted credit accounts (including credit card debts) for creditors attempting to collect their outstanding 
debts through legal action. In the case of credit card debt, courts require the creditor to either (a) provide 
a cardmember agreement establishing the terms of the account or ( B) establish that the parties had a 
previous business relationship and that the consumer—either expressly or impliedly—agreed to repay the 
amount claimed as due. See, e.g., Discover Bank v. Worsham, 176 P.3d 366, 369 (Okla. Ct. App. 2007) 
(holding a consumer liable on a credit card debt because she used the credit card for four years after her 
husband’s death, made payments on the account as was stated in the monthly billing statements, and 
incurred and never disputed any of the interest charges or fees assessed on the account). Cases such as 
Worsham demonstrate how maintaining complete and accurate records during the life of a credit account 
can assist a creditor or lender if and when the business is forced to pursue collection through legal 
avenues. 
 
Moreover, courts in Oklahoma are imposing increasingly stringent requirements, even in those cases 
where a consumer has failed to answer or otherwise defend a lawsuit that was filed against them. For 
instance, Rule 16 of the Local Court Rules for the Seventh Judicial Circuit governs the entry of default 
judgments in collections matters and requires a creditor to provide the following documentation to a judge 
before a default judgment may be entered in the creditor’s favor: (1) proof of service; (2) servicemember’s 
affidavit in accordance with the Servicemember’s Civil Relief Act of 2003 and Department of Defense 
Status Report (many judges require both an affidavit and a screen shot demonstrating that the attorney 
actually visited the Department of Defense website); (3) proof of breach of last payment; (4) copy of the 
contract, mortgage, note or account; (5) amount of debt, principle and interest; (6) assignments, if 
applicable; and (7) any other item specifically requested by the assigned judge. As easily seen then, 
creditors are well-advised to document their process, documentation, and information, at each step in the 
life of a credit account, as failure to produce the required documentation exponentially increases the 
difficulty in collecting on some defaulted accounts. By the same token, purchasers of debt will find it even Page 6 of 10
 
more difficult to prove their entitlement to relief, as doing so will require them to produce a chain of title 
evidencing their interest in the particular credit account. 
 
In practice, these heightened documentation requirements have made it increasingly difficult for debt 
purchasers to successfully litigate accounts in which debtors proffer no specific disputes, but simply 
dispute anything and everything about a particular debt. Producing sufficient documentation to persuade 
district court judges to grant summary adjudication in collections cases typically requires the creditor to 
have maintained proper documentation on the account and produced it in the litigation. In the end, 
Oklahoma (state) district court judges hold creditors—both original creditors and debt purchasers alike—
to a very high bar when it comes to establishing their entitlement to damages, costs, or fees on a 
consumer credit account, in large part because the state appellate courts have been increasingly willing 
to impose a similarly high standard. See, e.g., Discover Bank v. Worsham, 176 P.3d 366, 369 (Okla. Ct. 
App. 2007) (vacating a trial court’s grant of attorneys’ fees and costs where the trial court failed to 
sufficiently state the statutory or contractual authority upon which the creditor relied in supporting its 
request for costs and fees). 
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