Notice of Hearing - Motion for Summary Judgment

[gettingby]

Was served notice of Hearing on Motion for Summary Judgment (2nd go-around). From state civil procedure law, it is my understanding that the Plaintiff can get Summary Judgment under CR 56.03. I am submitting upon Plaintiff Request for Production of Documents in further Discovery of the Civil Action. Can I show up at this hearing in opposition and ask that this be continued on to trial by showing that there is a genuine issue as to material fact. What types of issues can be raised to support my opposition? Under CR 56.03, "The adverse party prior to the day of hearing may serve opposing affidavits." Does this mean I need to serve a "SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT" prior to the day of the hearing or will I have the opportunity to argue the facts at the motion hearing? The Plaintiff basically has a micro copy of the original "application" (not of actual agreement), sale affidavit from original creditor, affidavit from assignee, a "bunched together" copies of terms (from various years, including a few a year after charge-off???), disclosures (not necessarily for my account), bill of sale which in no way references Defendant; as to "previous production request" upon Plaintiff, specifically admits no copy or original of written agreement between original creditor and defendant, three fax copies of CC statements.

My layman's question is, what do I need to prove to get this past a Summary Judgment and furthered onto trial?

[HHM]

Summary judgments are tricky, you can't simply enter a denial, you have to come forward with "facts" that raise a real dispute.

Generally, you need to present the evidence in an opposition to the motion for summary judgment that you would file BEFORE the hearing.

Note, copies are just as good as originals, so if you are thinking that you can win because they do not have the original, you WILL LOSE. However, what you might be able to do is undermine their foundation for that copy...they will need evidence from the original creditor that the copy is in fact a genuine copy of the original.

Also, keep in mind, the judge may simply ask you, "is this debt yours"...what will you say?

[gettingby]

My basic defense thus far has been that yes I do owe the original creditor, but am challenging the assignees lawful right to collect that amount. How it made it past the first summary judgment, I can not say. I wasn't aware of the original MSJ or the order against the Plaintiff's motion until a short time ago. Is the debt mine? Why yes, I was indebted to the original creditor (not for the specified amount), who has since merged with another corporation (don't worry, I'm not challenging that point ). I admitted as much in my admissions to the Plaintiff's discovery. While I can understand that someone is indebted to a original creditor, who says this "assignee" has the right to collect that money. Does it not have to be proven in a court of law or can any joe off the street file suit and claim that I owe them that money. Doesn't there have to be some basic credible evidence to support their claim? My basis for objection to the admissibility of the "application", which contains no written contract, is that there could have been a provision in the contract barring assignment and without showing an original contract, which would have been on the reverse side of that (copy) contract, they have no proof that that provision was not there. As far as the

copies are just as good as originals

statement, I'm going by my interpretation of the Rules of Evidence for my state, specifically:

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, in other rules adopted by....

and

A duplicate is admissible to the same extent as an original unless:

(1) A genuine question is raised as to the authenticity of the original; or

(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original.

they will need evidence from the original creditor that the copy is in fact a genuine copy of the original.

Is a simple affidavit from a company representative going to suffice and if so, will I not have a right to cross that witness at trial? I do invite your criticisms as I would rather look a fool on a public forum behind a mask than before a judge in court.

[HHM]

You are correct, they do need to prove that they are the legitimate assignee. That is usually satisfied by the transmission letter that accompanies the account. As for the original contract, you need to understand, there has not been a creditor agreement that bars assignment in at least 30 years, so that is probably a fruitless defense.

The problem you encounter with SJ is that the SJ often short circuits many of these technical defenses because it shifts the burden to you, as the defendant to prove that there is a genuine disputed fact as to the underlying case (1) that there is a debt, (2) you owe the debt, etc, such that a "trial" is necessary.

And yes, an affidavit is generally sufficient to introduce evidence. Keep in mind, this is a motion for summary judgement, not a trial. In civil law, you are not entitled to a trial as a matter of right, the whole purpose of the MSJ is to dispose of cases without a trial, so the context in which you have to understand what is going on is, that the court needs to see evidence that there is a disputed fact that actually needs to be tried. However, in order for the plaintiff to prevail on a MSJ, they at least need to establish the basic facts that establish liability, one of those facts being that they are entitled to collect the debt.

Also, keep in mind, the burden of proof is merely a preponderance of evidence, all they need to demonstrate is that the facts are more likely true than false.

I am not trying to discourage you, but I think you need to understand that all you are probably accomplishing is delaying the inevitable, so ultimately, you will need an end game plan to deal with this debt one way or the other.

Sounds like you have been visiting those "freedom of from debt" defense sites that offer largely bogus advice about how to defend a lawsuit.

[gettingby]

Actually, I'm just trying to basically understand civil law. I'm on SSDI and own practically nothing and plan to claim state legal exemptions so frankly I don't care what the eventual outcome is. I sit here bored off my, well you know, and just looking for something to do to pass my boring life. I'm just wanting to waste the creditor's time and resources, since they have wasted mine for the last four years calling me day and night, all the while telling them constantly that I have nothing to give them all while they ridicule my lowly existence here on planet earth. Am I not a human being? I live on basically nothing. They wish to pick on me while I'm down so I figure make them waste some more time & money on nothing in return since they turn a deaf ear on what I tell them is the truth. Perhaps they got word about the bag of loot I have hiding under my mattress and want to get their greedy fingers in there also. Unfortunately, its confederate notes so unless they've invented time travel, I'm sorry to say that they will have a hard time spending that. Again, all I seek is a simple understanding of civil law. Just out of curiosity though, are you a lawyer? In all seriousness, hate to think I might be taking advice from a 13 year old that flips burgers for a living and moderates a forum for kicks.

[GoingDown]

Actually, I'm just trying to basically understand civil law. I'm on SSDI and own practically nothing and plan to claim state legal exemptions so frankly I don't care what the eventual outcome is. I sit here bored off my, well you know, and just looking for something to do to pass my boring life. I'm just wanting to waste the creditor's time and resources, since they have wasted mine for the last four years calling me day and night, all the while telling them constantly that I have nothing to give them all while they ridicule my lowly existence here on planet earth. Am I not a human being? I live on basically nothing. They wish to pick on me while I'm down so I figure make them waste some more time & money on nothing in return since they turn a deaf ear on what I tell them is the truth. Perhaps they got word about the bag of loot I have hiding under my mattress and want to get their greedy fingers in there also. Unfortunately, its confederate notes so unless they've invented time travel, I'm sorry to say that they will have a hard time spending that. Again, all I seek is a simple understanding of civil law. Just out of curiosity though, are you a lawyer? In all seriousness, hate to think I might be taking advice from a 13 year old that flips burgers for a living and moderates a forum for kicks.

It sounds like you're judgment proof, so there is no reason to bother responding to this lawsuit. You'll just spend money and effort fighting a losing cause.

Make sure you are as judgment proof as possible-- stop using a checking account and start using cash and money orders.

[gettingby]

I believe I truly am judgment proof, but that is irrelevant, though I do truly appreciate your suggestions.

as to "previous production request" upon Plaintiff, specifically admits no copy or original of written agreement between original creditor and defendant

The Plaintiffs have basically asserted that:

"The Plaintiff is an assignee of ...."

"The original creditor issued Defendant one of its cards..."

"Defendant refuses to pay the balance...."

Is this not a basic "breach of contract" suit they are bringing against me without actually using the term "breach of contract"? If so, how can they bring suit without a written contract? What are the rules of using another state's appellate opinions when none from my state applies, that I can find? I've looked through every state supreme and appellate decisions and opinions that I can find and none of them apply to my case, but one from another state does. Any ideas? Can statute of frauds be used for defense here?

[HHM]

Foreclosure is enforcement of a lien, not necessarily a breach of contract action (if they seek a deficiency balance, that would be a contract claim).

But here is your big problem with trying to "game" the system. You filed CHAPTER 13 and in those pleadings, you admitted that you owe this creditor, and that you are surrendering the house. The actions are related in that the creditors attorney can pull your chapter 13 documents and introduce them as evidence in the foreclosure case.

Imagine yourself before the judge at the forclosure, and the judge asks you.
You filed chapter 13 on "x" date?
In those documents, you said you owed "xyz" creditor "X" amount of money?
In those documents, you said that "xyz" creditor had a lien on your home?
and in those documents you state an intention to surrender the home?
Your chapter 13 makes no plan to cure the arrears?
Have you amended your plan to cure the arrears?
So on and so forth

Do you see where I am going with this?

Let me ask you this...are you hiding the rental income you are receiving from this tenant from the chapter 13. If not, then I am not sure what the big deal is about delaying the foreclosure, simply give your tenant a standard 30 day notice.

[gettingby]

Sorry, I don't understand HHM.

[HHM]

Sorry, I don't understand HHM.

You are trying to delay a foreclosure, but in your chapter 13 you have already "admitted" that this lender is your creditor, that they have a lien, and that you are surrendering you home. What defense do you really have to the foreclosure.

Your BK petition is a sworn document...any attorney that can pass a bar exam will easily make mince-meat out of your attempt to delay the foreclosure because of your chapter 13. You cannot go in front of the BK court saying, "yes, I owe this creditor money, they have a lien on my house, and I am surrendering my house", then go before the foreclosure court and say "I don't know who this creditor is, I don't owe them the money, they don't have a lien on my home".

[gettingby]

I guess I don't understand where you have come up where I might be filing for Chapter 13. My last question posted on the subject here is:

I believe I truly am judgment proof, but that is irrelevant, though I do truly appreciate your suggestions.

Quote:
as to "previous production request" upon Plaintiff, specifically admits no copy or original of written agreement between original creditor and defendant
The Plaintiffs have basically asserted that:

"The Plaintiff is an assignee of ...."

"The original creditor issued Defendant one of its cards..."

"Defendant refuses to pay the balance...."

Is this not a basic "breach of contract" suit they are bringing against me without actually using the term "breach of contract"? If so, how can they bring suit without a written contract? What are the rules of using another state's appellate opinions when none from my state applies, that I can find? I've looked through every state supreme and appellate decisions and opinions that I can find and none of them apply to my case, but one from another state does. Any ideas? Can statute of frauds be used for defense here?

[HHM]

LOL LOL LOL

OOOOPPPPPSSSSS

I have your post confused with someone elses...my bad.