laundryqueen

update - MSJ DENIED!!! Now what?

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Below is what I posted in #40...puttting it here so it's easy to find right away :-)

 

Ok...so it's Wednesday and I haven't filed the above reply, and have decided I will not.  From what I can tell, since this is a hearing on MSJ, I will have a chance to talk.  I am focusing on their lack of standing to sue.  The "evidence" they have provided is incomplete and inaccurate.  I have organized all the documents for this case to make it simple to flip to whatever filing I need.  I have reviewed the entire thing, highlighting points that need to be argued.  I have created a one page outline of my opposition to their MSJ (3 copies to take to the hearing), identifying each issue and my basic reply.  I've researched the rules of the court (both state and county), the background (what little I can find) of the judge, previous cases in my county which were filed by Plaintiff's counsel for Plaintiff (all of which were decided by default judgement because there was no reply to the complaint, or dismissed at the request of Plaintiff), and basic legal vocabulary I think I might encounter in court. 

 

Is there anything else I could/should do to prepare.  Should I print off the portions of case law that I have used in arguments, or is the quote and citation enough?  What should I expect in a hearing on MSJ?  I've never been in a courtroom before, so I'm planning to show up several hours early to see if I can observe earlier cases and get a feel for things.  Court is in 2 days, and I'm just a wee bit nervous ;-)

 

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Original Post

 

 

I'm in Indiana. NCO is suing me and I just recieved a Motion for Summary Judgment along with a Memorandum in Support of MSJ. I'm doing this pro se, so I'm hoping someone can steer me in the right direction on a couple issues.
First, in the memorandum NCO has provided and referenced what they state is the original complaint (Exhibit A) and Answer to Complaint (Exhibit B ). However, these are not the Complaint nor Answer to Complaint from my case (confused yet?). They are copies of the Complaint and Answer to Complaint naming my grandmother (the alleged co-signor) which are from a totally seperate case (Different cause number in a different county) from mine. The Complaint and Answer to Complaint from the case they are filing the MSJ on were not filed at all in the Exhibits with the Memorandum in Support of MSJ. How do I go about addressing this correctly?

Secondly, NCO claims that I never responded to their Discovery requests and therefore all admissions are deemed admitted and this is why there is no genuine issues of material fact. The problem is, I DID respond thier Discovery, and also sent Discovery of my own which they did not respond to (I sent both documents to the court as well as to the Plaintiff). I have confirmed that my Response and Discovery request are on file with the court. I will be submitting the filestamped copies of these documents and reference them in my response, but is there anything else I should do?

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I did send them copies of my discovery CMRR at the same time I filed with the court.  The promissory note has both my name and my grandmothers name, but they filed seperate cases to sue.  Grandmother died before they filed suit, and that case was dismissed.  The copies of the Complaint and Answer Plaintiff filed with their MSJ in the case against me are from my grandmothers case, not mine. (The files got mixed up somehow I assume)

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 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). 

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What discovery requests did you make? Did you have any admissions? If so you may be able to file your own MSJ on them if they are damming.

As a response to their MSJ there is already a genuine issue of material fact, but I would still hit them with several issues. What evidence have they submitted with the MSJ besides the complaint and answer that isn't even your case?

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The discovery was a couple of requests for production.  I requested an account number and proof of assignment of the debt referenced in the promissory note they provided as evidence in their complaint from OC to Plaintiff (Promissory note does not make reference to Plaintiff anywhere on it, but a different financial institution).

 

Other than the complaint and answer from the wrong case, they also submitted:

- a "pool supplement" (which is just a general document regarding a "pool of loans"...it doesn't specify me or any account associated with me)

- an affidavit (of someone who works for Plaintiff saying they know how business and records work with Plaintiff and $XXX is how much I supposedly owe them.  The evidence they give within the affidavit is the same promissory note used by plaintiff in their complaint, which does not have Plaintiff anywhere on it),

- a copy of their discovery request and certificate of service (they are saying I did not answer this, but I did. My answer and following discovery of my own were filed with the court, which I can prove with filestamped copies, and mailed to them the same day)

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So I would want to attack in addition to the wrong complaint (there is a defense for the wrong party of interest, but I can't think of it right now) the affidavit, and bill of sale. Type in key words such as affidavit of debt, bill of sale in google scholar to help you get some case law to support your position with case law.

Type out the affidavit, or post it redacting personal info so we can help you tear the thing apart. The bill of sale show a pool of accounts were sold, but does not reference your specific account. It may also have a disclaimer on its face saying none of the accounts are warranted except for what is provided by the purchase agreement, if it does you also argue it is incomplete, they didn't include the agreement it referenced.

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Another thing, what kind of account was this? And who is the original creditor?

I don't know if this case http://scholar.google.com/scholar_case?case=10740971725158072111&q=affidavit+of+debt&hl=en&as_sdt=4,15 would have any bearing, but depending on the type of loan you may be able to use some of it. This case is not binding.

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This case show how an affidavit of debt is faulty if all the required evidence is not present. They had a bill of sale, and an affidavit, but nothing that linked the 2, and specifically how the person making the affidavit was not qualified to do so. This case is cite-able.

Special reference to this part.

/Next, Seth maintains that, in her affidavit, Degel

purports to testify to acts and events that allegedly occurred between Seth and Columbus between September 2002 and August 2007. . . . Midland did not attach any evidence that the affiant was ever employed with Columbus or Jefferson, and therefore cannot possibly have personal knowledge of how Columbus' or Jefferson's records were prepared and maintained, and is unqualified to testify as to the truth of the information contained in the Affidavit.

Http://scholar.google.com/scholar_case?case=13169856357742435649&q=affidavit+of+debt&hl=en&as_sdt=4,15

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AFFIDAVIT AND VERIFICATION OF ACCOUNT

 

BEFORE ME, the undersigned authority, personally appeared Affiant (Affiant's name) who being first duly sworn, deposes and states:

  1. I am employed by ACME, the designated Custodian of Records for Plaintiff pertaining to the Defendant's education loans(s) forming the subject matter of the above captioned Complaint.  I am duly authorized by Plaintiff to make representations contained in this Affidavit and I am over the age of 18 and competent to testify to the matters stated in this Affidavit.

 

 2. I am competent and authorized to testify relating to this action through personal knowledge of the business records, including the electronic data, sent to ACME that detail the education loan records.  I also have personal knowledge of the record management practices and procedures of Plaintiff and the practices and procedures Plaintiff requires of its loan servicers and other agents.

 

 3. The lawsuit arose out of an unpaid loan or loans owed by Defendant to Plaintiff. Specifically Defendant JANE DOE entered into an education loan agreement at Defendants special instance and request.  A loan was extended for Defendant to use pursuant to the terms of the loan agreements.  Defendant has failed, refused, and /or neglected to pay the balance or balances pursuant to the agreed repayment schedule or schedules.

 

 4.  Education loan account records are compiled and recorded as part of Plaintiff's regularly conducted business activity at or near the time of the event and from information transmitted from a person with knowledge of said even, by or from information transmitted by a person with knowledge of the accounts or events described within the business record.  Such records are kept, maintained, and relied upon in the course of ordinary and regularly conducted business activity.

 

 5. I am familiar with the education loan records within my possession as custodian of records related to this matter.  I have been authorized by Plaintiff to make this certification on behalf of Plaintiff for this case.

 

 6.  I have reviewed the education loan records as business records described in this affidavit regarding account number XXX-XX/XX. No payment has been made since XX/XX/XXXX.  After all payments, credits and offsets have been applied, defendant JANE DOE owes the principal sum of $X,XXX.XX, together with accrued interest in the amount of $X,XXX.XX, totaling the sum of $XX,XXX.XX as of XX/XX/XXXX.  Attached hereto and incorporated as Exhibit "A" is a true copy of the underlying credit agreement/promissory note.  In the even the Defendant(s) faxed the executed credit agreement/promissory note, per its terms they agreed their facsimile/electronic signature is deemed to be an original.  Under applicable federal and state law, all copies of signatures executed via facsimile or electronic email are considered to be legal, binding agreement.

 

 7.  Based on records maintained by Plaintiff, the Defendant is not a minor or incompetent.  A reasonable inquiry  has been made to determine if the Defendant is in the military service of the United States of America, and to the best of my knowledge, Defendant is not in such military services and is therefore not entitled to the rights and privileges provided under the Soldiers and Sailors Civil Relief Act of 1940, as amended.

 

 8. I declare under the penalty of perjury under the laws of the forum state that the foregoing is true and correct to the best of my knowledge, information, and belief.

FURTHER AFFIANT SAYETH NAUGHT.

 

Signed by Affiant

Sworn and subscribed by Notary Public.

 

Attached are:

- A Note Disclosure Statement (Plaintiff is not the lender on this)

- Non-negotiable credit agreement (Plaintiff is not the lender on this)

- status report pursuant to servicemembers civil relief act

- Account information statement from ACME (Has My name/address on it, The Plaintiff is listed as the Client, an account number, Principle balance, Interest, total sum balance

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Here is my first draft.  I haven't added any case law yet...I'm unsure of where I need to cite it.  I've already gotten some great suggestions on what to use, so I will be trying to figure out how to add that in so it is relevant.  I also wonder if I need to submit my own affidavit denying the debt as part of my evidence?  My apologies if I am missing anything obvious. 

Defendant's Memorandum in Support of Opposition to Plaintiff's Motion for Summary Judgement.docx

Defendant's Opposition to Plaintiff's Motion for Summary Judgement.docx

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In section ll of your memorandum, specify exactly how they have mistakenly referenced your grandmother's case instead of yours. Add something about such carelessness casts doubts about their record-keeping practices and their lack of due diligence in filing a motion with the court.

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In section ll of your memorandum, specify exactly how they have mistakenly referenced your grandmother's case instead of yours. Add something about such carelessness casts doubts about their record-keeping practices and their lack of due diligence in filing a motion with the court.

 

Also, in section l, specify that you sent the documents by Certified Mail, Return Receipt Requested giving the  Certified Mail number, and date signed for by plaintiff

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Look at this Ind thread.  In post #50, there is a Motion in Opposition to Summary Judgment that you can use as a guide. You must tailor the law and the facts specific to your case.  I would work in that case Shellie cited above. Also in the thread below, look esp at post # 42

 

http://www.creditinfocenter.com/community/topic/323466-motion-for-summary-judgement-by-midland-funding-in-indiana/page-3?hl=%20indiana%20%20motion%20%20opposition%20%20summary%20%20judgment

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Here is my 2nd draft.  Sorry for the inconsistencies...I'm still proofreading and tweaking it.  A few questions:

- Do I need to attach copies of the "Pool Supplement" which was evidenced by Plaintiff in their MSJ, or can I just reference it? 

- Same question for their affidavit? 

- Do I add my own affidavit denying the debt in as evidence within my opposition or is there another way I should filed that?

Defendant's Memorandum in Support of Opposition to Plaintiff's Motion for Summary Judgement.docx

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Here's my final draft.  Anything obvious that I missed?  I also have a sworn affidavit that I will be filing at the same time.  There has already been a hearing date set, so there is really nothing else to do until that court date, right?

 

------------------------------------------------------------------------------------
                                     

               

DEFENDANTS OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT

                Comes now the defendant, Jane Doe, pro-se, and moves the court to deny Plaintiff’s Motion for Summary Judgment pursuant to Trial Rule 56 of the Indiana Trial Rules of Procedure, and in support of states the following:

  1. Defendant has responded to all of Plaintiff’s filings and requests for discovery within the timeframe set forth by Indiana Trial Rules of Procedure.
  2. Defendant has filed contemporaneously herewith its Designation of Materials and Defendants Memorandum in Support of Opposition to Plaintiff’s Motion for Summary Judgment.
  3. That in light of the evidence designated in support of Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment, there DOES still exist a genuine issue of material fact. 
  4. That, pursuant to Indiana Trial Rule 56, Plaintiff is NOT entitled to judgment against the defendant as a matter of law and that the entering of summary judgment in favor of the Plaintiff is NOT appropriate at this time.

For the reasons stated above, the Court should deny the pending Motion for Summary Judgment.

Dated:_________

 

Respectfully submitted

______________________

                                                Jane Doe

 

------------------------------------------------------------------------------------------------------------------------------

 

 

DEFENDANTS MEMORANDUM IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT

                Comes now the defendant, Jane Doe, pro-se, and hereby submits her Memorandum in Support of Opposition to Plaintiff’s Motion for Summary Judgment and states the following:

I. A GENUINE ISSUE OF MATERIAL FACT DOES EXIST.

Defendant opposes the motion based on the fact that there still remain several genuine issues of material fact. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56©. The burden is on the moving party to prove there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Stephenson v. Ledbetter, 596 N.E. 2d 1369, 1371 (Ind.1992). Several genuine issues of material fact do still exist:

  1. Defendant has denied entering into a line of credit agreement with Plaintiff. The “Note Disclosure Statement” and “Non-negotiable Credit Agreement” Plaintiff has entered into evidence, do not name Plaintiff.  Furthermore, the “Pool Supplement” entered into evidence by Plaintiff in its Memorandum of Law in Support of Motion for Summary Judgment fails to specifically name Defendant or any account proven to be associated with Defendant. 

 

A would-be party must first have standing to seek relief from the courts.  Standing is defined as having a “sufficient stake in an otherwise justiciable controversy.” Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind.1999). Like the real-party-in-interest requirement, the point of the standing requirement is to insure that the party before the court has a substantive right to enforce the claim that is being made in the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind.1995).  Absent proof of ownership of the alleged debt, Plaintiff has not proven a substantive right to enforce their claim.  Therefore, they have no standing to sue.

 

  1. No admissible account statements have been evidenced. Plaintiff attached Affidavits which it claims support the outstanding balance due and owing on the alleged accounts; however, these are merely summaries of alleged charges which appear to have been compiled by Plaintiff.  The source of this “account information” is unknown and the information in them unsupported.  The Affiant, who states they are Custodian of Records for ACME Inc., states that they have personal knowledge of the business records and record management practices of the Plaintiff, not that they are familiar with the records of Bank A which is the Lender listed on the “Note Disclosure Statement” and “Non-negotiable Credit Agreement” attached to the Affidavit and Verification of Account provided by Plaintiff as part of its Memorandum of Law in Support of Motion for Summary Judgment. 

 

- Plaintiff is not mentioned in either the “Note Disclosure Statement” or the “Non-negotiable Credit Agreement”.

- Affiant does not claim to have personal knowledge of how business records were kept at Bank A.

-Affiant does not claim to have personal knowledge of the sale or assignment of the “Note Disclosure Statement” nor the “Non-negotiable Credit Agreement” from Bank A to Plaintiff, nor have they offered factual evidence to support this.

 

There is no evidence to support the amounts claimed by Affiant in Plaintiff’s Affidavit and Verification of Account.No document has been produced to outline who compiled the underlying data in this affidavit specifically.As such, there is no way to challenge and cross-examine the accuracy of this data in the course of a trial.The Affidavit and Verification of Account(s) submitted into evidence by Plaintiff do not “show affirmatively that the affiant is competent to testify to the matters stated therein” as required by Indiana Rules of Trial Procedure 56(E).Therefore, Affiant’s statements are hearsay and inadmissible.The requirements of Trial Rule 56(e) are mandatory, hence, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind.Ct.App.2005).

 

  1. Defendant DID file and serve to Plaintiff via U.S. Mail on X/XX/2014, (CMRR info), Defendants Response to Plaintiffs First Discovery and Request for Admissions. (Exhibit A).  This response was sent within the 30 day window of receiving Plaintiff’s discovery requests.  Therefore, the matters are NOT deemed admitted by Defendant, but denied.

 

  1. Furthermore, on X/XX/14, (CMRR info), the Defendant did file and serve to Plaintiff via U.S. Mail, Defendants First Discovery (Exhibit B).  These discovery requests contained Requests for Productions, which the Plaintiff has never answered.

II. PLAINTIFF HAS INTRODUCED EVIDENCE UNRELATED TO THIS CASE.

The Complaint and Answer referenced in Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment are not from this case.  The case number, defendant, and even the court in which the documents were filed are incorrect. The Plaintiff, by negligence, has identified and named the wrong party of interest. Such carelessness casts doubts about Plaintiff’s record keeping practices and shows lack of due diligence in filing the motion with the court.

III. PLAINTIFF HAS FAILED TO BRING FORTH EVIDENCE WARRANTING THE COURT TO RULE IN ITS FAVOR.

Plaintiff has submitted into evidence an uncertified and unsworn copy of a “Pool Supplement”. The document does not specify the Defendant, nor an account number belonging to Defendant, nor specify any other document that could be associated with the Defendant.  This is in fact a generic document without specificity that could apply to any defendant. The Plaintiff’s reliance upon the “Pool Supplement” is insufficient to make a case entitling the Plaintiff to Summary Judgment. This “Pool Supplement” is also incomplete, referencing other documents that have not been submitted as a part of the “Pool Supplement”.  Furthermore, the date at the bottom of the signature page (page 5) of the “Pool Supplement” is November 2002 while the date on the “Note Disclosure Statement” of the alleged count 2 is April 2003.  A debt could not possibly be transferred before it even allegedly exists. 

In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial. Kronmiller v.Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996), trans.denied.  Unsworn and unverified exhibits do not qualify as proper Rule 56 evidence. Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc., 973 N.E.2d 1179, 1182 (Ind.Ct.App.2012),trans.denied. Therefore, the “Pool Supplement” is improper and should be stricken from the record.

CONCLUSION

                For the foregoing reasons, Defendant respectfully requests that the summary judgment be denied in her favor and against Plaintiff and that the Complaint be dismissed with prejudice.

Dated:_________

Respectfully Submitted by

Jane Doe

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First title your motion Defendant's Response and Opposition to Plaintiff's Motion for Summary Judgment.

In III you say count and I think you mean alleged account.

 

Ask the judge to deny their motion and go to trial.  Asking for a dismissal is wrong here and a dispositive motion. If you want him to rule for you, you would file a cross complaint or your own MSJ.  This has been known to backfire on people as it is harder to prove beyond a preponderence of evdence our case against them

 

I would treat my opposition to their MSJ as everything you would bring to trial. You have to show the judge there is something that you can prevail on.  And in my case the sworn(notarized )affadavit of denial filed with the MOSJ was crucial.

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First title your motion Defendant's Response and Opposition to Plaintiff's Motion for Summary Judgment.

In III you say count and I think you mean alleged account.

 

Ask the judge to deny their motion and go to trial.  Asking for a dismissal is wrong here and a dispositive motion. If you want him to rule for you, you would file a cross complaint or your own MSJ.  This has been known to backfire on people as it is harder to prove beyond a preponderence of evdence our case against them

 

I would treat my opposition to their MSJ as everything you would bring to trial. You have to show the judge there is something that you can prevail on.  And in my case the sworn(notarized )affadavit of denial filed with the MOSJ was crucial.

 

Thank you for the feedback :)  I did actually mean to say "alleged count 2" in part III.  They are suing me for 2 different alleged accounts within the same suit.  They labeled them as Count 1 and Count 2 in the Complaint, so that is how I have been referring to them (alleged Count 1 and alleged Count 2). 

 

Once this is filed, I've done as much as I can do at this point, right?

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I just thought of another question. Can they just switch Attorneys without any notice or filing an appearance with the court? The attorney who filed the MSJ is different from the one plaintiff has been using all along. They are both from the same firm, but they are different people. Does this make a difference?

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