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Post Summary Judgement now more things


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Hi,

 

Sued by Sessoms and Rogers back in September 2011 for Fia Card Services for 6k roughly.  I was sued in the county next door but answered all the questions.  Heard from them in July 2012 the next year wanting me to sign something to move the case to my county.  I did not do this and they got the switch in January 2013.  I then received Interr and Discover in March of 2013 which I answered.  They then moved the court in July last year 2013 for Summary Judgement per my answers to the Inter and Discover.  They did not get it then moved to a court date in November 2013.  I plead my case and the Judge denied Summary Judgement.  I thought it was over but yesterday I received a packet again from my good friends Sessom and Rogers saying some of my answers for the Interr and Discovery were insufficient from March 2013 and I must re answer them in 10 days or they will move the court  with a motion to compel discovery.  It seems if they motioned the court for Summary Judgement last year with my answers to these questions then why want them answered again?  Just wondering what I may can do,  I hope and wish they have done something wrong and I can go after them but I am sure they have covered their butts.  Just want this to end, three years on this case.  Thanks for any help, it is appreciated.

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Your mistake, after the SJ was denied, was in not pursuing an SJ of your own, or a D with P, so that they couldn't do what they have just done. Denying the SJ doesn't mean that the case is over. It means that they lacked sufficient evidence to win without a trial.

 

Are you being sued by FIA, or by some JDB who bought the batch of accounts?

 

The answer will make it clearer whether you have an easier or a harder time of it.

 

YOU may not have answered their Rogs and Disc adequately to their satisfaction. Have they answered yours? 

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Your mistake, after the SJ was denied, was in not pursuing an SJ of your own, or a D with P, so that they couldn't do what they have just done. Denying the SJ doesn't mean that the case is over. It means that they lacked sufficient evidence to win without a trial.

 

Are you being sued by FIA, or by some JDB who bought the batch of accounts?

 

The answer will make it clearer whether you have an easier or a harder time of it.

 

YOU may not have answered their Rogs and Disc adequately to their satisfaction. Have they answered yours? 

One party losing summary judgment does not mean the other party is entitled to summary judgment - far from it, in fact.  It simply means there are genuine issues of fact that must be decided by a trial.  If anything, this be enough for the 2nd party to have its summary judgment denied as well.

 

 

 

@johnny72

Can you post the discovery they want you to re-answer and also post how you responded to them the first time?

 

Was a trial date ever set?  Some jurisdictions require the plaintiff to file a motion to set trial and if they don't do it within a specific period of time, you can file a motion to dismiss for failure to prosecute.  (Note: I know NOTHING specific to NC law, so take this part with a grain of salt and see what you can find out by reading up on your local rules of procedure.)

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Ok I am looking at my answers to the interrogatories  and that I amend my answers to number 2,3,4,5, and 6. So I will post what was stated and how I responded.

 

2. Please State the exact amount that you contend is owed by you to the Plantiff, and state in detail all facts known to you that you believe support your contention as to the correct amount owed.

A: Defendant has insufficient infformation to affirm or deny and leaves to the Plantiff to provide Proof.  Defendant has already denied recollection of this card and therefore this interrogatory is improper.

 

3. Please list all payments made by you on this account since its opening, showing the amounts and dates of each and every such payment. If you will do so without the necessity of a motion to produce, please attach copies thereof (both front and back of all checks) to your answer to this interrogatory.

A.used the same answer as the other.

 

Each one is the same trying to get me to admit I made a payment and the amount, I didn't use the same answer every time but never admitted to the debt.

On the admissions part they say my answers were insufficent as I have access to my bank accounts so the responses will not do.  I just feel that they did use what I sent them to motion for judgment well over a year ago so how could they request more now?

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I think FIA card services probably still own the debt but use Sessoms and Rogers to go after it.  There was one attorney the day I went representing probably 15 cases of various Summary Judgements for all the credit card people.  Only one other guy besides me showed up and he went down pretty quickly.  I thought I was doomed but what I think saved me was they had sent me the wrong court date and had the court not sent me the right one they would have gotten what they wanted.  Just seems like 3 years and twice being denied judgement that some sort of time period would have lapsed on them.  The sol is long been over with but I realize they filed the suit in time, just seems like I should not answer the questions again and see where it leads.

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2. Please State the exact amount that you contend is owed by you to the Plantiff, and state in detail all facts known to you that you believe support your contention as to the correct amount owed.

A: Defendant has insufficient infformation to affirm or deny and leaves to the Plantiff to provide Proof.  Defendant has already denied recollection of this card and therefore this interrogatory is improper.

Defendant states unequivocally that they owe Plaintiff an amount of zero.  Plaintiff has failed to provide any documentation by which Defendant could draw any other conclusion.  Defendant possesses no documentation or recollection of any credit account with a balance owing to Plaintiff as stated in the complaint.

 

3. Please list all payments made by you on this account since its opening, showing the amounts and dates of each and every such payment. If you will do so without the necessity of a motion to produce, please attach copies thereof (both front and back of all checks) to your answer to this interrogatory.

 

A.used the same answer as the other.

 

Defendant has no recollection of the account as stated in the complaint.  Therefore no payments have been made to Plaintiff on the account as stated.  The request for copies of documents not in Defendants possession or known to exist is overly burdensome and not destined to lead to discovery of information relevant to the complaint as entered.

 

I think FIA card services probably still own the debt but use Sessoms and Rogers to go after it. 

 

You are being sued by the original creditor which means the law firm has simply been retained to represent FIA.  The answers I suggested above may not work in an original creditor lawsuit.  You should seriously consider hiring an attorney.

 

If it has been 3 years why have you not filed a MTD at least a year or more ago for failure to prosecute?

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@johnny72. It would help us all if you answered these questions.

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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?

Process Service Requirements by State - Summons Complaint

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? To find out:

Statute of Limitations on Debts

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

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

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.

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?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

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This is a 2012 NC case involving FIA.  The appeals court reversed the trial court's MSJ in favor of FIA and remanded the case,

 

 

FIA CARD SERVICES, N.A., F/K/A MBNA AMERICA BANK, N.A., Plaintiff
v.
RICKY W. CAMPBELL, Defendant No. COA11-711.

Court of Appeals of North Carolina.

Filed: February 21, 2012.

Sessoms & Rogers, P.A., by Amber K. Kauffman and Mitchell A. Meyers, for plaintiff-appellee.

Ricky W. Campbell, pro se, for defendant-appellant.

 

UNPUBLISHED OPINION

 

CALABRIA, Judge.

Ricky W. Campbell ("defendant") appeals from an order granting summary judgment in favor of FIA Card Services, N.A., f/k/a MBNA America Bank, N.A. ("plaintiff"). We reverse and remand.

According to the record, on 19 May 2006 a credit account was opened in defendant's name with Bank of America. Plaintiff is a subsidiary of Bank of America. The credit card was used and payments were made on the account. It appears that payments were made, checks were returned and return check fees were assessed. In addition, plaintiffs assessed late fees and fees for exceeding the credit limit amount of $44,500.00. On both the August and September statements, plaintiff indicated that defendant could call to discuss payment plans to avoid having the account written off as a bad debt. However, when the account was in default, plaintiff declared the outstanding balance of $46,311.81 due and payable. On 30 September 2008, when it appeared that the outstanding balance on the statement would not be paid, the debt was written off as bad debt.

On 24 November 2010, plaintiff filed a complaint seeking recovery of the outstanding balance of $46,311.81. Defendant timely filed a "Response and Motion to Dismiss." On 19 January 2011, plaintiff sent defendant a letter offering defendant an opportunity to avoid court by signing a consent judgment and working out a payment plan. Nothing in the record suggests defendant responded to plaintiff's offer. On 7 February 2011, plaintiff made a motion for summary judgment. Defendant did not respond to plaintiff's motion in writing, but participated in the hearing. On 14 March 2011, the court granted plaintiff's motion. Defendant appeals.

Defendant argues that the trial court erred in granting plaintiff's motion for summary judgment since there was no evidence presented that an account existed between defendant and plaintiff or its predecessor. We agree.

Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56© (2011). A genuine issue is one "supported by substantial evidence" and "an issue is material if the facts alleged would constitute a legal defense...." DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002). "Our standard of review of an appeal from summary judgment is de novo." In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). "When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party." Id.(citation omitted).

Our statutes provide some situations where a verified itemized statement can be used to prove the existence of an account:

In any actions instituted in any court of this State upon an account for goods sold and delivered, for rents, for services rendered, or labor performed, or upon any oral contract for money loaned, a verified itemized statement of such account shall be received in evidence, and shall be deemed prima facie evidence of its correctness.

N.C. Gen. Stat. § 8-45 (2011).

In the instant case, defendant argues that plaintiff has failed to prove the existence of an account and therefore, summary judgment was not appropriate. Here, the record on appeal does not include verified itemized statements of the account. The only documents plaintiff offered as evidence that the account existed were three statements from the months of August, September and October in 2008.

There is also no evidence in the record on appeal that the three statements were verified. "The account must be sworn to by some person who would be a competent witness to testify to the correctness of the account." Service Co. v. Curry, 29 N.C. App. 166, 167, 223 S.E.2d 565, 567 (1976). Plaintiff discusses an affidavit in their brief as verification of the debt. However, the affidavit was not included in the record. Plaintiff's motion to amend the record to include the affidavit was denied by this Court. Therefore, it cannot be considered on appeal. See N.C.R. App. P. 9(a) (2011). Since the statements were not verified or itemized, plaintiff failed to comply with the requirements of the statute to prove the existence of an account.

Based on the available evidence, there are genuine issues of material fact that an account exists for purposes of summary judgment. In the light most favorable to defendant, plaintiff failed to provide sufficient information to show that plaintiff was entitled to judgment as a matter of law. Since a genuine issue of material fact existed, whether defendant entered into an agreement with plaintiff or incurred the charges alleged, summary judgment was inappropriate. We reverse and remand to the trial court.

Reversed and remanded.

Judges McGEE and ROBERT C. HUNTER, concur.

R

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