confused

[Patch]

we are filling pro se chap 7 in a couple of days...needed to save money to do it....
we are being sued by 2 companies ,applied bank (trial set for oct 5th) and beneficial (trial set for oct 1st)....
today i receive an enveloppe from lawyer of beneficial with Motion for summary judgement (I get what it is ,they dont' want to go to trial....and want a judgement in their favor),but on 4th page ,there is
Order ,(this matter came before the court on the ____ day of ______ 2009
on plaintiff Beneficial Motion for summary Judjement pursuant to rule 56 etc ...................................
and on the bottom
done and ordered this day
district court judge

but in all,there is no date marked and no judge signature,
so my question,did they get the summary judgement approved already?

I checked the court website for my county,and I can't find anything about our 2 cases...when I put the dates the trials are supposed to be on,there is nothing about it...

[catleg]

No, that is the proposed order they hope to get the judge to sign if their motion is unopposed.

Did you file an answer to the lawsuit?

You probably have some short time interval to oppose the summary judgment. It is like a mini-trial in itself. It allows the judge to say "yep you've proved your case" without a trial. In my opinion these are usually decided by the judge's law clerks.

[treehugger1]

You need to go down to the courthouse and look up your information by the case number. You can also ask the court clerk to pull the hardcopy file and check to see if any motions have been filed.

I found out a while back that in my state, Oregon, it is possible to serve someone and then also motion for a summary judgment within 20 days of the suit being initiated. This implies the plaintiff could motion for a summary judgment before the defendant has used the entire 30 days to file his/her answer. I often heard this called "pre-summary" judgment, but did not think it was possible in my state. I guess it is allowed here. In my opinion, this would definitely be a motion I would respond to. The plaintiff's attorneys may just be playing a few cards to see what your response will be.

[Patch]

I already filed a response to the complaint back in july saying I didn't owe the whole amount....and just got the paperwork from lawyer for motion summary judjment.and on it there are 2 different amounts ,on the order ,it's lower that what they asked for on the summary.mistake on their part.
and there is even the name of the collector who called us and tried to get the money from us (21 year old by the way, from Virginia)

thanks for your responses.I am filing pro se this coming week....can't wait..just need to tweak a bit my paperwork...

[backtoschool]

Even if they get a summary judgement before you file in a couple of days, it will be vacated and dismissed. You will have to file separate paperwork after your bankruptcy is discharged to get the judgement vacated, but it will be.

So, as long as you are filing you are fine.

[BigJohn]

I already filed a response to the complaint back in july saying I didn't owe the whole amount....and just got the paperwork from lawyer for motion summary judjment.and on it there are 2 different amounts ,on the order ,it's lower that what they asked for on the summary.mistake on their part.
and there is even the name of the collector who called us and tried to get the money from us (21 year old by the way, from Virginia)

thanks for your responses.I am filing pro se this coming week....can't wait..just need to tweak a bit my paperwork...

Did you send a copy to the court along with (I assume) payment for filing?

[catleg]

BB is spot on here. What happens is you file some b.s. answer, the plaintiff comes back with a summary judgment motion saying, that's not a defense, here's some proof of the debt, and bingo, the judge (or his law clerk, you'll never know) rules against you. It's over and you never even get into a courtroom. This is the downside of the "sworn denial" that you hear so much about. Most of the time, in civil court, as long as the plaintiff bothers to go to trial, and they have any kind of reasonable evidence, the presumption is in their favor, unless you can rebut it as a defendant. Depends on the state, but that's the way it goes especially on the east coast.

[CompTweaker]

Patch, since you are filing ch.7 very soon anyway, just have your lawyer vacate the judgement (that is if the plaintiff is able to file for one soon enough).


Answering a lawsuit doesnt mean you will automatically get a summary judgement in my state (SC). In my latest case against a JDB, the lawyer (who was the owner of the JDB company) provided nothing more than an affidavit signed by someone (probably his secretary) that the account was "verified". And since most people dont know how to fight lawsuits, its easy to be intimidated and give in to that, and just let it go to a default judgement.

By answering with denials, and claiming affirmative defenses.....along with filing your own sworn denial (to counter their sworn affidavit), you then (as the defendant) have the right to begin the process of discovery which forces the plaintiff to provide you any evidence that they have (evidence that should prove you owe the debt and that they have the legal right to collect that debt). If they dont provide the evidence within a reasonable amount of time, they cant present it if the case makes it to trial.....of course theres other motions the defendant can go through such as motion to compel and if the plaintiff still refuses to comply, the defendant can file their own motion to dismiss.

If you dont file the motion to compel, and the case comes up for trial, the lawyer/JDB who filed the lawsuit against you had better dismiss immediately or face sanctions for not properly complying with the RCP's and wasting the court's time (which is the usual case with JDB's).

I wish every state were as pro se friendly as SC, but if you have the time and are motivated enough to learn your local RCP's (rules of civil procedure), then maybe its worth it. If not, file BK and be done with it.

[treehugger1]

There seems to be some misconception that just because there is no court or judge's sign-off, the action asked from the court has no meaning. Sh*t, in many staes one can receive action from the plaintiff via US mail, and it could be many days before any court signature is assigned. Here is an example. In my state, a writ of granishment order must be sent to the defendant. On the other hand, the copy can be sent weeks after the writ was actually signed off by the court clerk (or attorney, who in Oregon can issue a writ once judgment has been established.) You may eventually see a copy of the writ, but this is AFTER your wages are garnished.

"this thread should be the poster child..." Absolutely! There is some kind of urban myth out in the world that filing an answer will protect you from immediate hazards. In many (maybe most) states, unless you can provide an affirmative defense and, in particular, cite your state laws, your goose MAY be cooked. I think that most folks have no idea of the term "summary judgment." Again, this depends upon your state. But, a summary judgment is often used by a plaintiff (their attorney) to motion the court that the defendant has provided no evidence supporting their denials. Therefore, plaintiff asks for (prays) for immediate relief. Now, it is the defendant's job to discover that a motion has been requested by the plaintiff. You might get wind of the motion long after the court has already ruled. In a perfect world, we always see the enemy coming. But the world is not perfect. In my opinion, once one has been served, the next step is to keep checking to see if any new motions have come before the court before you file an answer. In many states, the process of litigation does not stop, waiting to see whether or not the defendant will file an answer.

Every debtor who has been sued has an obligation to research how the suit, and process of civil suit, works in their state. DO NOT accept any poster's advice on internet websites wihtout clearly researching your own state laws and civil procedures.

That is my continued advice on this issue. DO YOUR OWN DUE DILIGENCE. Advice from some web-site does not qualify.

[CompTweaker]

In many (maybe most) states, unless you can provide an affirmative defense and, in particular, cite your state laws, your goose MAY be cooked. I think that most folks have no idea of the term "summary judgment." Again, this depends upon your state. But, a summary judgment is often used by a plaintiff (their attorney) to motion the court that the defendant has provided no evidence supporting their denials. Therefore, plaintiff asks for (prays) for immediate relief. Now, it is the defendant's job to discover that a motion has been requested by the plaintiff. You might get wind of the motion long after the court has already ruled. In a perfect world, we always see the enemy coming. But the world is not perfect. In my opinion, once one has been served, the next step is to keep checking to see if any new motions have come before the court before you file an answer. In many states, the process of litigation does not stop, waiting to see whether or not the defendant will file an answer.

hmmm, this is turning into a nice debate, and I plan on keeping it that way without name calling or insults.....SOOOOO.....
TH, respectfully, what do you mean by "in particular, cite your state laws"?
I was not required to cite my state laws in my answer. Can you please provide some kind of evidence that this is required? I have yet to hear of that, but of course, Im only familiar with my own state, but I am very eager to see proof of this.

Furthermore, you said, "But, a summary judgment is often used by a plaintiff (their attorney) to motion the court that the defendant has provided no evidence supporting their denials." Well, in my state, a denial is a denial, theres no requirement for any evidence supporting the denial. The evidence is to be provided by the plaintiff who initiated the lawsuit. I mean come on man, its a complaint alleged against someone and that someone can deny the allegations, hence the reason it will go to trial unless one party folds.

[Patch]

I had talked to a lawyer about the lawsuit,and she told me to answer by saying what I said ,thus buying me some time to be able to file for BK/.in my state it didn't cost anything to file an answer....
but one thing i've gained is at least 60 days....which I needed to have my income under the state median to file chap 7...
my plan all along was to file for BK before the trial...the summon was a curve in my not so thought plan...live and learn....

I will go to the courthouse on mondat to see what is up with my case...

[BigJohn]

I had talked to a lawyer about the lawsuit,and she told me to answer by saying what I said ,thus buying me some time to be able to file for BK/.in my state it didn't cost anything to file an answer....
but one thing i've gained is at least 60 days....which I needed to have my income under the state median to file chap 7...
my plan all along was to file for BK before the trial...the summon was a curve in my not so thought plan...live and learn....

I will go to the courthouse on mondat to see what is up with my case...

It sounds like your lawyer has your interest at heart.

Best of luck.

[junker]

just as i always ask my girlfriend for something every evening...lawyers always ask for summary judgements...neither of us always get what we want.....IF you ADMIT you owe the debt....which 99% of the defendants do...you will get the lawyers dream,,a summary judgement....if on the other hand..and as lawyer suggested use an appropriate defense which i listed in a another recent post...it WILL buy you time which you stated you wanted...no one in their RIGHT frame of mind..(sic) would want a judgement even if they are planning on bk....as said earlier it CAN cost quite a bit of money in addition to bk fees to vacate ...and thats IF your lawyer will even do it for you....you might have to do it yourself....those that ramble on advocating ignoring the summons.if you are filing bk anyway...dont tell the whole story involved...after a successful bk, MOST people want to move forward...wihout having to pay more money...and possibly do the work on their own to vacate judgements.....

[BigJohn]

just as i always ask my girlfriend for something every evening...lawyers always ask for summary judgements...neither of us always get what we want.....IF you ADMIT you owe the debt....which 99% of the defendants do...you will get the lawyers dream,,a summary judgement....if on the other hand..and as lawyer suggested use an appropriate defense which i listed in a another recent post...it WILL buy you time which you stated you wanted...no one in their RIGHT frame of mind..(sic) would want a judgement even if they are planning on bk....as said earlier it CAN cost quite a bit of money in addition to bk fees to vacate ...and thats IF your lawyer will even do it for you....you might have to do it yourself....those that ramble on advocating ignoring the summons.if you are filing bk anyway...dont tell the whole story involved...after a successful bk, MOST people want to move forward...wihout having to pay more money...and possibly do the work on their own to vacate judgements.....

I ignored a lawsuit and then filed bankruptcy. Sounds okay but the creditor continued to pursue for judgment even when they were accepted on my bankruptcy matrix. My lawyer can not understand what they are doing. Now they got the judgment all in violation of the stay.

The judgment will eventually be taken care off but at whose expense?

Why does things like this happen? Creditors and collection agency violate the law all of the time. The victims can't believe they made so many violations and then the victims never follow up by bringing legal action against them.

[Patch]

It sounds like your lawyer has your interest at heart.

Best of luck.

thanks,
I didn't retain any lawyer ,we couldn't afford one...
I fully understood when I filed an answer with the court,that I had absolutely no defense....but wanted more time....