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ByGeorge2004

Motion for Summary of Judgement

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Last night I received a packet from the attorney's representing capital one for a motion for summary of judgement. 

 

This suit started in March when I was served the summons. I responded and listed 3 affirmative defenses.

 

1) Plaintiff failed to state a claim upon which relief can be granted.

2) Lack of Privity (Defendant never entered into a contractual debtor/creditor agreement with plaintiff.

3) Statute of Frauds (contract or agreement falls within a class of contract or agreement that is required to be in writing.)

 

There has been no discovery process. They have simply attached about 24 months of account statements. There is no contract at all and not a single piece of their evidence has my signature on it.

 

They have scheduled the motion for a week from tomorrow. I have to work that day as well although I may be able to have my shift traded. What is the best thing I can do from here? Or am I just at the mercy of the judge hoping their evidence is not enough to over come my defenses?

 

Thanks!

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I responded and listed 3 affirmative defenses.

 

1) Plaintiff failed to state a claim upon which relief can be granted.

2) Lack of Privity (Defendant never entered into a contractual debtor/creditor agreement with plaintiff.

3) Statute of Frauds (contract or agreement falls within a class of contract or agreement that is required to be in writing.)

 

1)  what did they sue you under?  Account stated?  Breach of contract?  Both of those are a claim upon which relief can be granted.

 

2)  This won't work because Capital 1 IS the original creditor and therefore has privity.  Even if it was a JDB when they purchase the account and are assigned the debt they get all the rights and responsibilities of the original creditor. 

 

3)  Only one state allows the statute of frauds defense and that is Utah.  The card agreement IS in writing and will hold up.

 

There has been no discovery process. They have simply attached about 24 months of account statements. There is no contract at all and not a single piece of their evidence has my signature on it.

 

They do not have to have a single piece of evidence with your signature to prevail.  The card agreement IS the contract.  The court is not going to be looking for a signed contract between you and Capital 1 and doesn't look for it in credit card cases.  This is a very old outdated argument that doesn't fly in court anymore.

 

Did you start discovery?  Discovery isn't required it is available as a means of seeing what evidence your opponent intends to use.

 

They have scheduled the motion for a week from tomorrow. I have to work that day as well although I may be able to have my shift traded. What is the best thing I can do from here? Or am I just at the mercy of the judge hoping their evidence is not enough to over come my defenses?

 

If you do not show up they will win their motion.  Your work schedule isn't the court's problem.  You either ask for a continuance, show up, or hire a lawyer to defend this suit.

 

I hate to be the bearer of bad news but you are being sued by an original creditor in a VERY creditor friendly state.  24 months of statements mailed to you and the card agreement is enough for them to prevail on a MSJ as you cannot attack standing to sue.  About the only thing that would defeat this is proof of ID theft.

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