MikeJones

Cavalry I SPV asked by judge for signed contract

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A response is needed from me 28 days from the receipt of the MSJ. 

I am not in a hurry, however, I was hoping to crank out a detailed response soon, in order for Cavalry and the judge to have it in time for the pre-trial June 8th.

The municipal judge in my case read the case file prior to us sitting down for the 1st pre-trial. It went fairly fast. He only asked me if this  was my account, I said no. He then hammered Cavalrys attorney with a barrage of questions only to shake his head and say how do we know the defendant is the owner of the account? "Where is the physical or electronic contract?" I understand in many jurisdictions actual statements and purchases/payments show ownership and a theoritical contract. This judge doesnt seem to view it this way.

With that said, if I can pull of a detailed response or cross motion for summary this case may not even make it to trial.  I say this because the only new evidence or aguements that have been presented since the 1st pre-trial is the addition of a generic bill of sale and cavalrys own custodian of record affidavit.

You can be certain the contract issue will be brought up again, as the judge wrote this in his own notes.

Im thinking the best case scenario for me is, it proceeds to trial, judge rules in my favor without prejudice. Leaving room for Cavalry to produce a "contract" in future.  

On a side note, I cant fathom why Cavalry would purposely blank out the account number on the statements and file them with the court in that way?! Smells of shady activity.

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57 minutes ago, MikeJones said:

Im thinking the best case scenario for me is, it proceeds to trial, judge rules in my favor without prejudice. Leaving room for Cavalry to produce a "contract" in future.

Actually best case scenario for you is that the judge grants your MSJ and denies theirs.  That is a judgement in your favor and just as good, or maybe a little better than a dismissal with prejudice.

Just remember to focus on the lack of account number, incorrect address, lack of contract or application and lack of proof of being proper party in interest (no proof they bought or own this specific account they allege is yours).  And in my cross MSJ I would note that they have presented no evidence to support their claim that I ever held this account or that I owe any amount to Calvary.

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Forgive my lack of experience...

Are you saying file the response in opposition to Cavalry’s MSJ....  and then at the same time/immediately, on a separate filing, file the cross motion MSJ?

..or can I and should I do it on one grand filed MSJ.

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3 hours ago, MikeJones said:

A response is needed from me 28 days from the receipt of the MSJ. 

I'm trying to have you tell us on what date this response is due, not how many days from an unknown date of receipt. (BTW--It's great you know your court rules.)  Knowing how much time (actual counted days you have left) you have to draft and file your response or your own cross MSJ will help us understand what may be wisest for you to accomplish in that time frame. 

(IANAL) Your upcoming status conference is not when the MSJ will be heard. That motion can only be heard according to the time period specified in your court rules. Your oppo response needs to be served and filed, and then they, if rules permit, may file a reply to your response. The judge will read them all before a motion hearing, or making a ruling on the motion briefs without oral argument, if the rules allow for that. 

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June 12th is the date.  Are you sure about not hearing the MSJ at the next pre-trial?

According to the latest journal submission the Judge has said:

 The record shows that the plaintiff has not submitted the required filing fee for the motions. The issues raised by the plaintiff's motion for leave to file a motion for summary judgment to be addressed at the pretrial conference on June 8, 2018. “

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Are you sure you have 28 days to respond to a MSJ?    Usually motions need to be responded to in 14 days.  Although local court rules can vary.

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41 minutes ago, MikeJones said:

The record shows that the plaintiff has not submitted the required filing fee for the motions. The issues raised by the plaintiff's motion for leave to file a motion for summary judgment to be addressed at the pretrial conference on June 8, 2018. “

(IANAL) It looks like you have 2 motions. The motion for leave is asking the court's permission to file the motion for summary judgment. If the judge denies the motion for leave, then they won't be able to file the motion for summary disposition. It appears that your judge was letting the JDB attorney know that a contract was needed in order for the leave to file the MSJ could be granted. A continuance was given at the judge's discretion so that a contract could be procured by the next pre trial conference. At least I think that's what happened. 

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@MikeJones

A dispute of fact is "material" if it affects the outcome of the litigation. The dispute is "genuine" if manifested by substantial evidence going beyond the mere allegations of the complaint.  A material fact is an essential element of the claim or defense, as defined by the substantive law. Mount v. Columbus & Southern Elec. Co. (1987), 39 Ohio App. 3d 1, 528 N.E.2d 1262.

Ohio MSJ standard of review explained

"If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a “reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial [.]” Id. at 294. If the non-movant produces evidence that allows for “conflicting inferences,” the court may not weigh the evidence. White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, 919 N.E.2d 227, at ¶ 9, citing Hamilton v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 06AP-916, 2007-Ohio-1173, at ¶ 10. Instead, the trial court must resolve any doubts and construe the evidence in favor of the non-movant. Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485, 696 N.E.2d 1044 (1998)."

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Thanks for this, if I understand it correctly, I need a straight forward response in opposition to their MSJ and leave it at that.

The arguments are: 1. Wrong address 2. Lack of jurisdiction/Chain of custody records 3. Statements with blank account numbers.

Now, do I submit it prior to the next pre-trial or after.  

There simply will not be a signed contract, it does not exist.  So, is there a real chance we won’t see a trial? 

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Once a party moves for summary judgment and has supported his or her motion by sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as provided in Civ.R. 56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115.

In accordance with Civ. R. 56(E), “a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial.” Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App. 3d 421,629 N.E.2d 513.  

The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St. 3d 108, 111, 570 N.E.2d 1095; Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323. 

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This is brilliant stuff, thank you for responding.

I have compiled a lot of documentation relevant to the 2008-2012 time period of this ridiculous account.  I have bank statements, car title and birth certificate of child born, drivers licenses, voter id record during that time as residency documents. If it comes to it, dentist/doctors visit records. Lucky for me I have been in the same city for 34 years.  (Although I have utility bills, they are not in my name). 

I plan to have my response MSJ shortly for critique.

 

 

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8 minutes ago, MikeJones said:

Thanks for this, if I understand it correctly, I need a straight forward response in opposition to their MSJ and leave it at that.

If you can locate an example of an MSJ opposition response you'll have the framework to plug your arguments and case citations into. 

 

11 minutes ago, MikeJones said:

Now, do I submit it prior to the next pre-trial or after.

The deadline to serve and file your motion response is governed by the court rules for summary judgment. 

 

13 minutes ago, MikeJones said:

There simply will not be a signed contract, it does not exist.  So, is there a real chance we won’t see a trial? 

Not exactly sure what the judge was referring to. If the judge will not give leave for them to file the MSJ, or they do file it and you prevail on getting it denied, dismissal is likely in the cards. If they can't win a MSJ on what they've got, they most certainly won't get admissible evidence for a trial. They'd either have to get new authenticated Citi statements (showing a matching account number!) with your correct Ohio address, or prove you lived in Virginia. They'd also have to get competent evidence and testimony that your specific account was included in the purchased pool of accounts. 

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38 minutes ago, Brotherskeeper said:

Not exactly sure what the judge was referring to. If the judge will not give leave for them to file the MSJ, or they do file it and you prevail on getting it denied, dismissal is likely in the cards.

He specifically said “a physical signature on a card member agreement such as an application signed by the defendant?  If not physically with paper and pen, how about an electronic signature  online application? Surely there must be one for an alleged $12k debt”

The above is what I meant in regards to the judge hammering the Cavalry attorney, and I simply stayed quiet as the attorney had no answer.

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1 hour ago, MikeJones said:

He specifically said “a physical signature on a card member agreement such as an application signed by the defendant?  If not physically with paper and pen, how about an electronic signature  online application? Surely there must be one for an alleged $12k debt”

Wow. It's not as if you signed a credit card application with $12K already on it. Do you think the judge wants to see a document from them with "your" signature to compare with your actual signature?

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It’s more so he views it as you have to apply online and submit or fill out an application by hand and sign. He’s dumbfounded how they claim they have all these records from Citibank, except of course an application and/or signature.

Yes, he wants to see a signature.  I got the feeling he was happy to see someone challenging Cavalry as opposed to the mundane default judgments he’s forced to rule on.

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On 5/16/2018 at 6:29 PM, MikeJones said:

Here we have it, just today Cavalry has filed a motion for summary judgement. “Plaintiff makes said motion since there are no genuine issues of material fact, and as a result, Plaintiff is entitled to judgement as a matter of law. This motion is supported by the attached memorandum and evidence”.  I responded to all of their interrogatories and admissions and denied every paragraph.

The evidence is a few citi card statements with addresses that I never resided in. I live in Ohio, statements went to a random Virginia address.

At the last pre trial, the Judge said, “Summary judgement? Why would there be a summary judgement? Where is the signed contract showing defendant is the owner? Statements with incorrect addresses are not proof of ownership.” The municipal judge specifically said this to the Cavalry attorney (when it was mentioned a motion for summary judgement was coming) .

No evidence of the signed contract, physical/electronic. 

There must be a disconnect, the Cavalry attorney, who was a local attorney assigned last second, heard the judge loud and clear.  Meanwhile, I recieve this motion today directly from Corporate Cavalry/Levy in Columbus, Ohio?  I did not recieve this motion from the local attorney on record.

Thoughts? Do I act? or wait till the next pre-trial June 8th.

It sounds like the judge wants them to produce the chain of assignment when asking for the signed contract. The Cavarly attorney is trying to catch you off guard or they are going through standard procedure for them.

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12 hours ago, Brotherskeeper said:

(IANAL) It looks like you have 2 motions. The motion for leave is asking the court's permission to file the motion for summary judgment. If the judge denies the motion for leave, then they won't be able to file the motion for summary disposition. It appears that your judge was letting the JDB attorney know that a contract was needed in order for the leave to file the MSJ could be granted. A continuance was given at the judge's discretion so that a contract could be procured by the next pre trial conference. At least I think that's what happened. 

It's not about the contract. The judge said that they did not pay the fee to file a motion, therefore he is not ruling on their motion for leave until or after the next pre-trial conference.  Which means that technically the motion for summary judgement isn't even filed yet, giving OP more time to work on his opposition.  Essentially the judge is pushing off their MSJ to wait and see if they produce the evidence (a contract) that he asked for at the next court date, I would assume.  IF they should produce something that he accepts, then he may allow the MSJ to be entered and that would start the 28 day clock to respond.  That's what it sounds like to me.

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3 hours ago, fisthardcheese said:

It's not about the contract. The judge said that they did not pay the fee to file a motion, therefore he is not ruling on their motion for leave until or after the next pre-trial conference.  Which means that technically the motion for summary judgement isn't even filed yet, giving OP more time to work on his opposition.  Essentially the judge is pushing off their MSJ to wait and see if they produce the evidence (a contract) that he asked for at the next court date, I would assume.  IF they should produce something that he accepts, then he may allow the MSJ to be entered and that would start the 28 day clock to respond.  That's what it sounds like to me.

And what happens if Cavalry shows up and does not produce a contract as evidence???

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Yes.

So do I wait till the results of the pre-trial?

Or do I hit Cavalry with a response now?

I’m telling you the judge is solely focused on this contract, chain of custody.  My wrong address argument has not been brought up to the judge as of yet! He just ran with a rant about showing ownership with a contract and I sat back and listened.

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19 hours ago, nobk4me said:

Are you sure you have 28 days to respond to a MSJ?    Usually motions need to be responded to in 14 days.  Although local court rules can vary.

 

RULE 56. Summary Judgment

If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court.

(C) Motion and proceedings. The motion shall be served in accordance with Civ.R.5. Unless otherwise provided by local rule or by order of the court, the adverse party may serve responsive arguments and opposing affidavits within twenty-eight days after service of the motion, and the movant may serve reply arguments within fourteen days after service of the adverse party’s response. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

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