fightingmidlandinok

How to file amended opposition to Summary Judgement?

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I was sued by Midland in Oklahoma which you can read about in my only other post if you are so inclined. I went all the way to Summary Judgement and I am now just awaiting the next SJ since it was continued until the middle of May. Basically, all Midland has to do is come up with a Bill of Sale specifying my account and I lose. Frankly I felt pretty defeated but I am recently reenergized to carry on the fight. It may be too late and the delay I have allowed since the SJ hearing at the end of March may have even damaged me further.

 

However, after consulting with an attorney (a great guy who gave me an hour of his time and helped me a lot) even though I can't afford to retain him, I did get some ideas. I also found this case: And anyone in Oklahoma fighting these people, I highly recommend you review this case:

 

Unifund CCR, LLC vs Ekpo

This was in the Oklahoma Court of Civil Appeals.

 

In this case the JDB, Unifund had obtained Summary Judgement against Ekpo and Ekpo had appealed. This case was handled by Love Beal and Nixon as attorney for Unifund the same attornies representing Midland in my lawsuit. Since they file hundreds of cases they use basically the same format and documentation in their cases. In the Unifund case the SJ was overturned, and the Appeals judge stated: "herefore, the trial court clearly erred in granting summary judgment. The judgment is reversed and the cause remanded for further proceedings."

 

A link for anyone that wants to read it, or for any of my fellow Oklahomans fighting these vultures: http://www.oscn.net/applications/oscn/deliverdocument.asp?id=474721&hits=2642+

 

The part that most interested me was a section about the affidavit of debt used by Unifund (just like the one Midland is using) In that it points to the Oklahoma Statutes Pleading code Motion for Summary judgement: AFFIDAVITS AND FURTHER TESTIMONY. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits

 

In the affidavit they refer to "business records" kept in the ordinary course of business. But they don't attach any of these to their affidavit which seems to be a clear violation of the Oklahoma rules.

 

I would like to go after that, and use that case to show the judge that he should not give SJ.

 

I asked for all of this in discovery but was put off. I know I could file a motion to compelt, but why would I want to compel them to prove their case? It would seem lack of these documents would work in my favor.

 

One last thing: the affidavit was given by an employee of Midland's subsidary from Minnesota. Midland paid $500,000 in fines (without admitting guilt) after suit was brought against them for their affidavit practices. Coincidentally, (or not of course... it's Midland) the affidavit came from an employee in Minnesota. Perhaps I can weave this in to the unreliability of the affidavit? I can file a motion to strike the affidavit, if it's not too late?

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I would amend my opposition.  In it include your objection to the affidavit, all that about the specific records that were not attached.  the biggest thing is to get their affidavit thrown out based on the affiant is not a qualified witness.  There are some great motions in limine posted around the site that speak to that, research those.  Especially ones from OK.  Include opposition to each and every piece of evidence they have sent to you thus far, statements--not authenticated, etc.  Then it's on the record, and you have preserved it in case you want to file an appeal should you lose.If they send you a copy of the bill of sale, make out a separate objection to that, stating it does not contain your name, and it is incomplete, as it references a purchase agreement, and the said agreement was not included.  

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