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Arbitration, Staute of limitations or Standing


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@BV80 @Brotherskeeper @LaneBlane @Harry Seaward

I need to file an objection. I went ahead an filed an extension but, realized I have 45 days. So , in filing the extension, I filed for less time? I imagine the court will just disregard. This is why I need help!

If any of you, or any one else with some knowledge, could look briefly through this thread, I would be so grateful! The plaintiff has filed a MSJ and I need to file an objection. I need to file it properly and need guidance with preparing it. I have read many case files and have looked at Connecticut practice book but, need help. I am not looking for someone to do all the work, its just that I can not understand everything properly. I have until July 26th.

Thanks for any help!

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@Jackie1989 Have you seen this resource?

https://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/SummaryJudgment.pdf

  • “Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.” Conn. P.B. sec. 17-45 (2017).
  •  “A party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Barlow v. Palmer, 96 Conn. App. 88, 92, 898 A.2d 835, 837-38 (2006).

 

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10 minutes ago, Brotherskeeper said:

@Jackie1989 Have you seen this resource?

https://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/SummaryJudgment.pdf

  • “Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.” Conn. P.B. sec. 17-45 (2017).
  •  “A party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Barlow v. Palmer, 96 Conn. App. 88, 92, 898 A.2d 835, 837-38 (2006).

 

yes but, then there is this

 Sec. 17-45. —Proceedings upon Motion for Summary Judgment; Request for Extension of Time To Respond (Amended June 30, 2003, to take effect Jan. 1, 2004.) (a) A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents. (b) Unless otherwise ordered by the judicial authority, any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence. (c) Unless otherwise ordered by the judicial authority, the moving party shall not claim the motion for summary judgment to the short calendar less than forty-five days after the filing of the motion for summary judgment.

 

Seems strange and this is from the 2019 connecticut practice book

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Here's a few things I noted after looking through the Affidavit in Support of Motion for Summary Judgment.

I don't have much experience writing legal statements.  I'm just trying to help in the absence of input from others.

 

B 3 –  They’re claiming you erroneously indicated your name was XXX.  I’m still not sure what your position is on the agreement.  You say it’s questionable.  Why?  Did you sign it?  Is their copy not true and correct?

B 6 – There’s your default interest rate.

B 9 – The Bill of Sale dated September 5, 2018, submitted by the Plaintiff as Exhibit B, is incomplete.  It does not include the Asset Schedule that was attached and made part of the agreement.   The Asset Schedule describes the loans, judgments, and evidence of debt that that were sold, assigned, and conveyed to the Buyer.  In the absence of the Asset Schedule, Plaintiff lacks standing to bring suit against Defendant.

C – Plaintiff cannot establish Exhibit D is a true and correct copy of the account history.  The origin of this document is unknown.  If the document was created by the OC, the Plaintiff requires an affidavit.  Defendant contends this information is incomplete and inaccurate.

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OK...  I have a new direction for you here that's very important.

I went through the Memorandum of Law in Support of MSJ

Your strongest defense at the moment appears to be Lack of Standing.  As I wrote earlier…  The Bill of Sale dated September 5, 2018, submitted by the Plaintiff as Exhibit B, is incomplete.  It does not include the Asset Schedule that was attached and made part of the agreement.   The Asset Schedule describes the loans, judgments, and evidence of debt that that were sold, assigned, and conveyed to the Buyer.  In the absence of the Asset Schedule, Plaintiff lacks standing to bring suit against Defendant.

In the Plaintiff’s Memorandum of Law in Support of the MSJ, they’re claiming you didn’t plead to any special defenses.  If this is true, you’ll have to amend your Answer to rectify this.  Any special defenses, including Lack of Standing, should have been included in your answer.

The legal cases cited in the Memorandum of Law pertain to the fact that you didn’t include any special defenses.  There’s also some case law supporting the granting of summary judgements.  It's your typical mumbo-jumbo.

Instead of looking for case law to support your position, I would read the documents pertaining to your own case.  Knowing and understanding these documents, as well as the JDB’s position, is what’s really going to help you here.

In my opinion, you need to revise your Answer so you can enter your special defenses.  These would include lack of standing.  You could also try a Statute of Limitations defense, even though your state may not recognize the state law that governs the agreement.

I found a website that should help you:    https://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/Revise.pdf

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4 hours ago, Jackie1989 said:

Thank You Lane!

I screwed up with answer. Not sure if I can revise. I believe they allow only 7 days.

I am going to look into it.

I'm not sure what Connecticut law is.

If you've exceeded the time to amend your Answer, you may be able to ask for the Court's leave.  Some states' rules of civil procedure say courts should freely give leave when justice so requires.

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5 minutes ago, Jackie1989 said:

 I was reading that.

I'm wondering, can I just mention this in my objection, as I did? Or is it too late at that point?

For the sake of saving time so I don't need to go back into your documents...  Did you receive a copy of the Bill of Sale from the JDB with their complaint, or did you receive this after you filed your answer and received their MSJ motions?

You would need to file a Motion for Leave to Amend Answer.  I'd recommend searching for similar motions in Connecticut.

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4 minutes ago, Jackie1989 said:

They filed the bill of sale as exhibits a few days after complaint and prior to my answer.

How soon did you receive the exhibits before you filed your answer?

If you weren't able to review the exhibits before your answer was filed because they were delivered a day earlier, you would be asking the court for leave to amend your answer in light of new exhibits provided by the Plaintiff.

I really wish some regulars would chime in here. 

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I received exhibits almost 2 weeks before answer.

And yes, I am still in the game. Just feel like I am facing an ultimate doom. I will stick it out.

Again, if by chance the motion to leave and amend get screwed, what are your thoughts about mentioning standing as a part of objection to MSJ? Is it not an option?

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1 hour ago, Jackie1989 said:

I received exhibits almost 2 weeks before answer.

And yes, I am still in the game. Just feel like I am facing an ultimate doom. I will stick it out.

Again, if by chance the motion to leave and amend get screwed, what are your thoughts about mentioning standing as a part of objection to MSJ? Is it not an option?

Your Motion for Leave to Amend Answer should make a plea to the Court that justice requires the admission of your special defenses.

If your Lack of Standing defense is allowed in, it should squash the Plaintiff's MSJ.  You just need to be prepared in the event the Plaintiff is able to produce the Asset Schedule for the Bill of Sale.  If they do, you may still have an argument because there's no affidavit from BofA.

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So is it

Defendant request motion to leave to amend answer and assert special defense.  Justice requires the admission of defendants special defense.

 

Then create a new answer with this special defense.

Plaintiff's Bill of Sale does not contain the required asset schedule and has failed to prove it is the bona fide owner of alleged debt. Plaintiff lacks standing.

 

 

I just don't know how to put this together

Mind you, plaintiff filed closed pleadings same day as MSJ.

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Ok, I get it 

Here is a concern I have. If in pursuing this motion to amend, I don't want to miss out on objection to MSJ.

And again, is the lack of asset schedule something I can mention  in objection?

I just don't want to foul up anymore. I should of followed my hunch with exhibits.

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