Trips4

Opposition to Plaintiff's Motion for Summary Judgement

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Good Evening,

 

I was served with a notice on Jan 27,2015 that the attorney representing a JDB will be presenting a Motion for Summary Judgement this Thursday, 2/19/15.

 

My question is that I want to file an objection to the Plaintiff's MSJ and also a cross-motion for summary judgement since I have consulted and attorney and this debt is past SOL.

 

Can I appear at court with this information or did I need to have filed a certificate of service to the Plaintiff. If I send the Plaintiff my opposition tomorrow and a certificate of service tomorrow, will that suffice. Is it too late to file the cross-motion for summary judgement and I should just object to the MSJ.

 

I am mainly looking at this...

 

CR 56.03 Motion and proceedings thereon

"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits." 

 

Does the second line mean I can file the cross-motion for Summary Judgement as long as it is the prior to the day of the hearing? Or will I only be able to file an objection (and also would that need to be mailed with a certificate of service, or can I just show up to court with it?

 

Please help as time is of the essence. I know it's really short notice but health issues have prevented me from being able to act on this sooner.

 

Thank you.

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A statute of limitation defense is usually required to be asserted in an answer. Having said that, you can usually motion for leave to amend your answer in which you would then assert your SOL defense.

Upon the judge granting your motion, and if you lived in AZ, you would then file a motion to dismiss for failure to state a claim using the SOL as the grounds for your motion. Not sure how it works there.

Because of your health issues, you probably stand a good chance of the court granting a continuance for ruling on the MSJ, but you'd have to get going on this stuff ASAP.

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When were you served the summons for the suit? Has any discovery happened since that time? What gave they sent you in the way of evidence? What kind of debt is it, credit card, loan etc? When was the last payment? Did the paperwork they filed for MSJ state how long you had to oppose it? 2 days before court doesn't look good, depending on your court rules. Most states require you file an opposition within a certain time frame. You may be able to file for a continuance sing your health issues, but answer those questions, and we will see what your rules say.

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This case has been going on a long time. The initial answer was in 8/2013. Several rounds of discovery ensued. My initial answer was for

1) Lack of standing

2) The Plaintiff has not proven the debt is valid or the amount is valid.

3) And Defendant reserves the right to amend answer at a later date. (not even sure if that is allowed in my state.)

 

Unfortunately I did not mention SOL, as the attorney I spoke with the other day pointed it out that he thinks it's a possibility based on where the card was issued (Delaware, 3 years, Im in a state with a long SOL)

 

Their MSJ paperwork did not mention how long I had to oppose it, but I think I have time to answer based on the "The adverse party prior to the day of hearing may serve opposing affidavits" in my state's CR.

 

My plan of attack to file a response to the MSJ tomorrow and appear in court. Then later attack the SOL if I am allowed. The only court rules I can find about amending pleadings state:

 

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders."

 

I am assuming that this would preclude me from filing an amended Answer.

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You won't be able to ammend your answer, but it really doesn't matter I highly doubt the sol defense would work unless your cause of action rose in another state....like you moved to ky after you defaulted on the account. Borrowing statutes work sometimes, but they are hard to use if you used the card in ky, made payments from ky. Some argue payments were made to Delaware, so their statue applies.

Worth a shot as a defense, but I wouldnt file an MSJ banking on it.

What have they sent you in the way of evidence? You will want to attack that.

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You won't be able to ammend your answer

I disagree.

 

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders."

 

I am assuming that this would preclude me from filing an amended Answer.

I believe your assumption is wrong.

There is a potential for miscarriage of justice If you are not permitted to explore your affirmative defenses and to that end, it's my opinion that "justice so requires" that the court allow you to amend your answer to assert said defenses.

 

 

CR 15.01 clearly states that "leave to amend shall be freely given when justice requires." We are persuaded that, under the circumstances here, justice required that appellee have an opportunity to litigate what was his true defense in the case; that being no involvement in the collision. Appellant had ample time to investigate this defense and prepare for trial. There was no element of surprise.
Burns v. Capitol Beverage Company, 472 S.W.2d 510 (Ky. Ct. App. 1971).
 

 

Under CR 15.01 it is provided that after the expiration of 20 days from the service of an answer the defendant may amend his pleading only by leave of court or by written consent of the adverse party, but that "leave shall be freely given when justice so requires." The trial court has a broad discretion in granting leave to amend, but the discretion is not without limitations. In Clay, CR 15.01, it is stated that it should be a condition of granting leave to amend that the party seeking such leave acts in good faith. In Garrison v. Baltimore & O. R. Co., D.C.Pa.1957, 20 F.R.D. 190, the court indicated that significant factors to be considered in determining whether to grant leave to amend are timeliness, excuse for delay, and prejudice to the opposite party.

Lawrence v. Marks, 355 S.W.2d 162 (Ky. Ct. App. 1961).

http://scholar.google.com/scholar_case?case=4819610006472216667

 

 

In the circumstances at bar we are of the view that it was an abuse of discretion to deny appellant's motions to amend. CR 15.01 directs that leave to amend shall be "freely given when justice so requires." We are mindful of the decisions, cited by appellee, which stand for the proposition that the trial court's discretion in refusing amendments will not be disturbed unless it is clearly erroneous. See Bradford v. Billington, Ky., 299 S.W.2d 601; Graves v. Winer, Ky., 351 S.W.2d 193; Hedges v. Neace, Ky., 307 S.W.2d 564; Lawrence v. Marks, Ky., 355 S.W.2d 162. In each of the cited cases, however, there was a showing that "justice" did not "require" an amendment to be filed, but that such filing would work an injustice in the particular circumstance. Not so in the present case. There was no showing that appellee's position had been worsened by the delay in offering the amendments to the complaint; there was certainly a color of excuse for the delay in light of appellee's long delay in responding to the interrogatories. No suggestion of "bad faith" on the part of appellant appears. We conclude that there was no sufficient reason for the trial court to refuse the tendered amendments.

ASHLAND OIL & REFINING COMPANY v. Phillips, 404 S.W.2d 449 (Ky. Ct. App. 1966).
 
 
And so on...

http://scholar.google.com/scholar?q=%2215.01%22+amend+answer&btnG=&hl=en&as_sdt=4%2C18

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Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders."

ok correct, you can ammend if you ask the court for leave. Do that, assert the sol defense, but you need to find some ky case law that shows you can borrow DE. Stat.

If you can find it, may work.

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And it looks like your states borrowing statute is pretty liberal. Here is some case law

Stivers v. Ellington, 140 SW 3d 599 - Ky: Court of Appeals 2004

To determine the controlling statute of limitations in this case, we must initially analyze this Commonwealth's "borrowing statute" contained in KRS 413.320:

When a cause of action has arisen in another state or country, and by the laws of the state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period.

Under the above statute, the Kentucky statute of limitations is controlling, unless the limitation period is shorter in the state where the action arose. Seat v. Eastern Greyhound Lines, Ky. 389 S.W.2d 908 (1965). Therefore, we must initially determine the applicable statute of limitations in Colorado and in Kentucky. After such determination is made, KRS 413.320 mandates that the shorter statute of limitations is to be applied. See Ley v. Simmons, Ky. 249 S.W.2d 808 (1952).

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@Trips4

 

 

This is a short explanation of KY's borrowing statute by a KY law firm.

 

 

  Statute of Limitations for Credit Card Debt in Kentucky February 16, 2015

 

 

           The statute of limitations for the collection of credit card debt is an open question in Kentucky. This is because there is no statute squarely on point and no Kentucky appellate court has yet addressed or decided the issue. Creditors generally take the position that the statute of limitations is five years under KRS 413.120 or fifteen years under KRS 413.090.

            Recently, a federal district strongly indicated that credit card debt is subject to a five-year statute of limitations under Kentucky law. Conway v. Portfolio Recovery Associates, 13 F.Supp.3d 711, 715 (E.D. Ky. 2014).See also Fulk v. LVNV Funding LLC, No. CIV.A. 5:14-125-DCR, 2014 WL 5364807, at *3 (E.D. Ky. Oct. 21, 2014) (same). This is based on the argument that credit card agreements are not sufficiently definite in terms and conditions to be subject to the fifteen-year statute of limitations for contracts in writing. But Conway ultimately determined that the credit card at issue in the case was subject to Virginia’s statute of limitations under a straight forward application of Kentucky’s borrowing statute. KRS 413.320.

            The borrowing statute provides that

[w]hen a cause of action has arisen in another state or country, and by the laws of this state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period.

            The key to triggering to Kentucky’s borrowing statute is accrual of a cause of action in a in another jurisdiction. When an “injury is purely economic,” which is the case with a defaulted credit card account, “the place of injury, and therefore the place of accrual of the action, may be where the economic impact of the defendant’s conduct is felt, which is usually the plaintiff’s place of residence.” 51 Am. Jur. 2d Limitation of Actions § 91 (Updated Aug. 2014). This is the general rule, which the Kentucky Supreme Court recently adopted in Abel v. Austin, 411 S.W.3d 728 (Ky. 2013).

            This means that when the statute of limitations of the state where a bank is headquartered is less than five years for an action to collect a credit card debt, under the borrowing statute, the statute of limitations of that state applies to an action on a credit card account issued by that bank. This has particular relevance for banks headquartered in Delaware, North Carolina, and Virginia all of which have three-year statute of limitations. This includes a great many banks including Chase Bank USA, N.A., Discover Bank, and FIA Card Services, N.A., which are all headquartered in Delaware; Bank of America, N.A., which is headquartered in North Carolina; and Capital One Bank (USA), N.A.

            Two party store charge cards that can only be used at one particular store is subject to a four-year statute of limitations under KRS 355.2-725.

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Thank you all for your responses so far. 

 

I filed a Response to Plaintiff's Motion for Summary Judgement. In court, the Plaintiff's attorney says he did not have a chance to review it, so a hearing has been rescheduled for 2 weeks from now. I am considering attempting trying to amend my Answer to attack the SOL.

 

I am also considering filing a MSJ of my own since I believe I made a pretty good Response attacking their "evidence", and if I did, possibly including the SOL angle.

 

In the event that I file a MSJ of my own, I am looking at CR 56.03 which states "The motion shall be served at least 10 days before the time fixed for the hearing." 

  • Since this is a rescheduling hearing would that preclude me from filing my own MSJ?
  • Should I even bother filing my own MSJ and let this proceed to trial and then become more aggressive?
  • Is it too late to have their "evidence" (generic bill of sale) stricken as hearsay?

 I do have a good Defendant's MSJ in hand on SOL that I could use for an attack on SOL, IF I am allowed to amend my Answer.

 

Any advice input would be appreciated.

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If you want to file your own MSJ to raise the SOL, I think the only way you can do it is to amend your answer.  In my opinion, if you do that, you might as well forget about your own MSJ and just file a Motion to Dismiss with your Amended Answer.  If your motion to dismiss is denied, then I'd go with the MSJ.

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Regarding filing a "Motion for leave to amend answer". I understand that in my motion to amend my answer I will mention CR 15.01 and the "given freely when justice requires" provisions.

 

I honestly was not aware of the SOL defense until speaking with an attorney 2 weeks ago. I'm not sure how to word that, I did read someones motion to amend answer that mentioned that they were "pro se and recently became aware of their full rights", or something to that affect. Would something like that be good to add to the motion, or is there a better way to word that?

 

Also do I attach my actual Amended Answer containing the SOL defense to the Motion for Amended Answer (I would assume so, allowing the judge to see that I am not merely delaying)?

 

In addition to that should I provide further proof I have some legal ground to stand on regarding the SOL defense? I have a someone else's successful SOL defense document in hand for my situation that I can adapt to my case to provide evidence that the SOL claim has merit.

 

Thanks again, this forum has been very helpful.

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You said you were talking to a lawyer.  Suing on a time barred debt is violation of 1692f and 1692e(11) of the FDCPA.  A consumer lawyer could take your case on contingency; meaning that your lawyer would get his fees paid upon winning and you would get statutory damages.  That would be the easiest way to go.  Ask the lawyer you spoke to about that or contact several at www.naca.net

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Regarding filing a "Motion for leave to amend answer". I understand that in my motion to amend my answer I will mention CR 15.01 and the "given freely when justice requires" provisions.

 

I honestly was not aware of the SOL defense until speaking with an attorney 2 weeks ago. I'm not sure how to word that, I did read someones motion to amend answer that mentioned that they were "pro se and recently became aware of their full rights", or something to that affect. Would something like that be good to add to the motion, or is there a better way to word that?  No. Don't use those phrases.

 

Also do I attach my actual Amended Answer containing the SOL defense to the Motion for Amended Answer (I would assume so, allowing the judge to see that I am not merely delaying)?

 

In addition to that should I provide further proof I have some legal ground to stand on regarding the SOL defense? I have a someone else's successful SOL defense document in hand for my situation that I can adapt to my case to provide evidence that the SOL claim has merit.  I would summarize in your own words what is in post #10.  Then read all the cases cited there by going to Google Scholar or doing regular Google search.

 

Thanks again, this forum has been very helpful.

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Regarding filing a "Motion for leave to amend answer". I understand that in my motion to amend my answer I will mention CR 15.01 and the "given freely when justice requires" provisions.

 

I honestly was not aware of the SOL defense until speaking with an attorney 2 weeks ago. I'm not sure how to word that, I did read someones motion to amend answer that mentioned that they were "pro se and recently became aware of their full rights", or something to that affect. Would something like that be good to add to the motion, or is there a better way to word that?  No. Don't use those phrases.

 

Also do I attach my actual Amended Answer containing the SOL defense to the Motion for Amended Answer (I would assume so, allowing the judge to see that I am not merely delaying)?   Yes

 

In addition to that should I provide further proof I have some legal ground to stand on regarding the SOL defense? I have a someone else's successful SOL defense document in hand for my situation that I can adapt to my case to provide evidence that the SOL claim has merit.  I don't know what you mean by "someone else's successful SOL document."   Is it based on KY law and procedure?  Everything you use must be based on that.  I would summarize in your own words what is in post #10.  Then read all the cases cited there by going to Google Scholar or doing regular Google search.

 

Thanks again, this forum has been very helpful.

 

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Debtzapper, the document that I have in hand to assert the SOL defense is identical to my situation.

 

I am going to attempt to amend my answer to include the SOL defense.

 

It this point in time, should I be moving for a motion to dismiss or a MSJ? Harry I know that you said to go for the Motion to Dismiss, but I have read that it is easier for defendants to get a MSJ than a motion to dismiss.

 

We have a hearing in less than 2 weeks on the Plaintiff's MSJ.

 

Thoughts?

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Well if your going to ammend and claim sol, you might think of filing a counter suit. Your asserting the sol, so your counter claim would be suing on a time barred debt. It gives you more leverage. Especially if they try and fight the borrowing statute.

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I think an Answer and a MTD for suing on a time-barred debt based on a well-researched Memorandum of Law of KY's borrowing statute will probably get you a voluntary dismissal w/o prejudice.  As Shellie suggested, you could also amend your Answer to include a counterclaim, based on a violation of 15 USC 1692f and 1692e(11) of the FDCPA.  That would give you more leverage and might make them more likely to give you a dismissal w/prejudice if you drop your counterclaim.

 

You will need to carefully plead your counterclaim, however.  

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At this point in time, should I be moving for a motion to dismiss or a MSJ? Harry I know that you said to go for the Motion to Dismiss, but I have read that it is easier for defendants to get a MSJ than a motion to dismiss.

The problem you have right now is the SOL defense is waived because you didn't assert it with your answer, so no matter what you do (MSJ or MtD), you have to amend your answer to include the SOL defense before you can do anything else.

 

With a hearing in 2 weeks what I would probably do is motion the court to vacate the MSJ hearing and at the same time file your motion for leave to amend your answer.

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An interesting turn of events...

 

Apparently after setting a hearing date for 2 weeks later, later that day the judge signed the paperwork granting the MSJ...ugh

 

I found this out via mail (the Plaintiff sent me a copy of the signed MSJ by the judge), in the afternoon after going in to file the leave for amended answer. I even have the MTD prepared ready to go if the amendment was approved.

 

Interestingly, the hearing is still on the docket. Wouldn't the court would notify me directly if the MSJ was granted?

 

I'm considering appealing it, but I don't know if it's worth even trying. Going to speak to a couple of additional attorneys to get an opinion.

 

I feel pretty confident in that it was out of the SOL. But I'm quite certain I can't amend the Affirmative Answers for the appeal correct?

 

Thanks again for all the help, and any additional help or opinions are welcomed.

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