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@RandomHero  You are thinking too microscopic.  MSJ is a motion.  use scholar.google.com to search for ANY motion filed in the same court you are in.  That can be a sample to work off of.  You would just change the title to "Defendat's Motion for Summary Judgement".  Then you plead your case on why the case should be dismissed or ruled in your favor based on the SOL.  Talk about any evidence you are attaching.  Then conclude it with your "prayer" which is just letting the court know what you are asking for.  Example:  "Defendant prays the honorable Court dismiss Plaintiff's complaint (or rule in Defendant's favor)  based on the time-barred status of the alleged debt."  -- something like that.

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@BV80 This is the part I seem to be stuck on deciding. I have about a week and a half to decide. The letter I got from the court said that all motions and discovery need to be filed by the end of the month. So I'm worried I don't have time to do it all. I feel like if I file the msj now with them saying a payment was made in 2013 and that it defaulted in 2011, I don't have enough evidence to convince the judge otherwise. But if I wait for discovery, I'll be past my deadline to file any more motions. 

I want discovery because I feel like it will show they don't have what they need. And if I file the msj and it's denied, then I'm heading into trial without discovery and without having their affidavit stricken. So I feel like heading into trial that way is a pretty easy win for them. :/ I'm not sure which things I need to prioritize. 

@fisthardcheese I was able to fine some using google scholar. Thank you so much.  When citing case law, do I do it the same way I see it in those? Just name the case and then assume the judge reading it will look up the case details? 

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@bv80, @fisthardcheese

i noticed too in the transfer agreements they sent that one mentions the 'accounts' in the 'account schedule' as being sold in 2007. Is this proof of default? Or can banks sell debts before they default anyway? 

Do these transfer agreements mean anything if there's no account numbers attached? 

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@BV80 @fisthardcheese

They attached to their initial complaint what they called a payment history. Showing when it defaulted and when the last payment was (the 2013 payment). However it was only a sheet with the jdb letterhead, an account number that doesn't show up anywhere else, the amount of the debt, and those dates. How do I show the court that them making their own account statement shouldn't be enough to prove ownership? 

I could make my own account statement against my grandmother in that sense. 

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Again, you are thinking 17 steps ahead of yourself and you have no idea what the case will even look like when it gets there.

If you believe this is SOL, file the MSJ with the best proof you have on it today.  If they have proof to counter your claim of SOL, they will have to provide it as a response to your MSJ otherwise you win.  And if they do provide any proof, you deal with it at that time by striking any evidence that is not proper or against the court rules. 

If a motion hearing and discovery deadlines can and will be moved.  Just ask for an extension when you need it. 

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@RandomHero

If you file an MSJ, you'd point out that the JDB has offered no evidence from the school that proves any of their claims including the alleged dates of default and last payment.  You, on the other hand, have proof that the date of last payment provided by the JDB is false.

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@BV80 @fisthardcheese

I may be getting ahead of myself, you're right. I guess I'm not sure how many steps follow after this chance for discovery. If I mess this up, what comes after? How far am I from an actual trial? 

So my msj would force them to prove it's within the sol? Like I said they already submitted their evidence as a payment summary with their letterhead. Couldn't they just point that out in their defense? Or is that when I'd say that it's not a payment summary from the OC and shoot it down there? 

I'm just worried we'll get to the point where all their evidence is accepted and I can't argue it anymore. Or is evidence not officially accepted until trial if I don't object to it there? 

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The proper way to have responded to the suit was via MTD based on SOL.

Failing that, hopefully SOL was included as an affirmative defense with answer. If not, amend answer with both counterclaims and affirmative defenses, especially FDCPA counterclaim for suing on a time-barred debt and affirmative defense of SOL.

Meanwhile, it is imperative to file a MTD on the basis of SOL.  From above posts, the action is time-barred, which means the court MUST dismiss the case, with prejudice. But the catch is that you have to assert the defense, else it may be waived. The court will not protect you unless you assert the defense. Not impossible that MTD would be denied, but that is a long way from losing the case, and by raising the issue of date of last payment, which would be a material fact in dispute, it would be difficult for plaintiff to win with a subsequent MSJ of their own.

Right now you have to act. The MTD should be about 1 page, plus whatever attachments. Basically, just a few lines, double spaced, remembering to cite State statutes regarding SOL (procedural law). Essentially, court record shows date complaint filed. OC and bank statements show date of last payment. The difference is greater than SOL. That's it. Ideally, you don't use any bank statements or admit to the debt, but just rely on stuff like copies of OC statements and so on provided by plaintiff, which should show date of last payment. But it may be expedient to essentially admit to the debt, and use some of your own records to show that it is time-barred. Plaintiff has no right to use the courts since its action is time-barred.

Frankly, I do not believe that plaintiff would dare pursue this if it thought the debt was time-barred.

 

 

 

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6 hours ago, fisthardcheese said:

If you have dealt with Calvary like I have, you would not be surprised at their suing on a time-barred debt.

Maybe, I have never dealt with Calvary.

But consider that merely sending dunning letters on time-barred debts can be hazardous to sender:

http://www.americanbar.org/publications/blt/2014/04/04_dominczyk.html

I think this may be worth a new thread, but also relevant to OP because dunning letters may offer additional FDCPA violations. //

 

 

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1 hour ago, Happybluesky said:

Maybe, I have never dealt with Calvary.

But consider that merely sending dunning letters on time-barred debts can be hazardous to sender:

http://www.americanbar.org/publications/blt/2014/04/04_dominczyk.html

I think this may be worth a new thread, but also relevant to OP because dunning letters may offer additional FDCPA violations. //

 

 

JDBs knowingly violate the FDCPA every day.  It is part of their business model because it pays them very well.  Out of 10,000 people who they get to pay up by violating the law, they are sued by 1 person and make them go away for $5k. Meanwhile they are taking their $800K from everyone else to the bank.

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@Happybluesky

17 hours ago, Happybluesky said:

Essentially, court record shows date complaint filed. OC and bank statements show date of last payment. The difference is greater than SOL. That's it. Ideally, you don't use any bank statements or admit to the debt, but just rely on stuff like copies of OC statements and so on provided by plaintiff, which should show date of last payment. But it may be expedient to essentially admit to the debt, and use some of your own records to show that it is time-barred. Plaintiff has no right to use the courts since its action is time-barred.

If the plaintiff's evidence supports the plaintiff's claims, of course you should provide your own evidence.  The court's not going to just take your word for it.

Note:  I don't know why the line appeared through the 2nd ruling I cited:


When reviewing a Rule 12(b)(6) motion, the court is to "consider the material allegations of the complaint as admitted and review the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle plaintiff to relief pursuant to some legal theory." Bussell v. City of Portland, 1999 ME 103, ¶ 1, 731 A.2d 862, 863.

"A dismissal is appropriate only `when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of [her] claim.'" Dexter v. Town of Norway, 1998 ME 195, ¶ 7, 715 A.2d 169, 171 (quoting McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994)).

 

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The court has the authority and will consider matters outside of the complaint, such as affidavits and other evidence, when considering a MTD. Remember that whether the action is timely is a threshold issue for the court. If the action is not timely, the court  lacks jurisdiction over the subject matter, and must dismiss the case with prejudice.

 

 

 

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Looking at my credit report it doesn't list anywhere when the OC charged off my debt. Only something from Cavalry in 2014 list the OC as the OC. So I'm confused as to how I'll prove when it defaulted. 

They initially sued in the wrong jurisdiction but it was transferred to the proper one. Is it to late to ask for a dismissal based on that since it's now closer to me?

The only evidence they sent as far as date of default, and last payment made, was on a paper with their letterhead. Their account numbers. All that stuff. Is that sufficient for a judge or do they need to show something from the OC?

I'm sure it's way too late to amend my answer with a counter claim regarding suing on a bad debt. But I'm not sure how to figure out when it first defaulted. I didn't notice this was getting responded to so I was being patient waiting to see a reply. 

I need to find a way to prove it's past the SOL otherwise I doubt the judge will take it seriously since their (Cavalry's) paper says it defaulted in 2010 and that's all the evidence that there is so far. 

@BV80 @fisthardcheese @Happybluesky

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Also, and I'm not sure this matters, the original complaint doesn't say it was a breach of contract or anything.  I've read something about failing to provide relief on claim or something? It just lists that the loan was applied for, here are the attached financial transactions and payment history (again the only payment history is them saying I paid 100 in 2013), and saying the payment history shows my default. 

Then it says they acquired my account in ordinary course of business, attached historical ownership documents (just signature pages with no account numbers that it says are attached) and says as of 2015 I'm indebted to the plaintiff for the amount they're asking for. Then asking the court to enter a judgment against me for that amount. 

Any loopholes there? I'm just not sold on the SOL defense yet because I can't seem to find my own proof of when it defaulted. Is a default missing one payment? Was the default when I left school and didn't pay? Or could they have still held out to charge it off if they didn't realize I left school? 

Could I say even if they didn't sell it off until 2010, the contract says I was in default once I left school? Blaaaaaah. 

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I know I seem to be. :/ I'm just trying to learn all my options before my deadline. 

If my SOL MSJ is denied, to me I see it going straight to trial since we've already passed the pretrial hearing. And if that happens it's too late for me to argue their evidence, isn't it? Should I be focusing solely on the SOL or also trying to get their evidence thrown out in case it's denied? 

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@fisthardcheese 

I mean maybe I don't. Their paper says it defaulted in 2010. So I figured I needed something substantial that would say different. Otherwise wouldn't the judge just take their paper as fact? 

Will someone please tell me if I'll have a chance at trial to object to their evidence of the MTD is denied? 

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@RandomHero did you ever find your bank statements that would show you haven't made any payments? If you're sure your last payment would have made you safe for SOL on this, you could supply an affidavit that a search of your payment records shows no payment activity matching the Plaintiff's records.

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I'm filing my MTD based on the SOL soon. But in case it's denied I need to come up with back up plans. One of my affirmative defenses was also a lack of standing. And I'm hoping their shady paper trail of the account history will be enough. Should I file a MTD based on that too?  Or is that something I'll have to wait until court to argue?

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Put all your reasons in the motion (SOL, payments, business records exception of hearsay rule not met, etc.), back it up with any law and cases in your favor. If you're including an affidavit you'd attach it to the motion, referencing it in the motion text as well.

Have you looked into your courthouse having free legal assistance for Pro Se defendants, maybe not to defend the case but for paperwork review at least?

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I have. Unfortunately it's not offered. 

So in my mtd I also move to strike the affidavit on hearsay in the same motion? 

This is why I keep spinning in circles. I know what I want to get across, but can't seem to figure out how to do it. I found this great article (maybe from here) that actually references a case very, very similar to mine. Even from the same OC. In which the plaintiff couldn't prove ownership. I'm trying to figure out how to use it to my advantage. Here is a link to the article: http://www.studentloanborrowerassistance.org/wp-content/uploads/2013/05/robo-signing-2014.pdf

the appendix starting on page 36 is where it becomes nearly identical to my case. The same contract and note statement I received. They reference it around page 5-6. They didn't go with a SOL defense. But how would I use this as a good backup if mine fails? They objected to all their evidence, which is what I want to do in case my mtd is denied. That way I have a backup plan in place. How do I object to their evidence before trial? I just want a good backup plan  

@BV80  @fisthardcheese @CCRP626 Thank you again. 

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