Author Topic: Need Massachusetts case law for Delaware Statute of Limitations defense  (Read 107232 times)

0 Members and 2 Guests are viewing this topic.

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #15 on: October 01, 2015 02:33:00 PM »
I can't stress enough to the OP that he read the case cited by Trick. 

The OP is getting ready to feel the wrath of the court.  At least in the cited case the law firm was attacking different parts of the lawsuit and different amended complaints, and trying a type of motion to reconsider.

That practice received the wrath of the court with this gem... "BANA's practice of filing repeated motions, lifting sections of prior briefs, and raising the same arguments that were previously addressed causes the Court to wonder whether the decision to file a fourth motion to dismiss was motivated more by billing for legal services than the desire to assist the Court in understanding the legal issues."

Obviously being pro-se, the running up of one's own atty fees will not be an issue, but wasting the court's time on an issue that has been legally adjudicated, I would not think is going to go over very well. 

The OP should focus on defeating the other side's motion for summary judgement, and not trying to re-litigate an issue that has been settled by the court.   Appeals courts are the venue for a dispute with the lower court.
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

trick

  • Valued Member
  • Posts: 857
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #16 on: October 01, 2015 03:30:17 PM »
I can't stress enough to the OP that he read the case cited by Trick. 

The OP is getting ready to feel the wrath of the court.  At least in the cited case the law firm was attacking different parts of the lawsuit and different amended complaints, and trying a type of motion to reconsider.

That practice received the wrath of the court with this gem... "BANA's practice of filing repeated motions, lifting sections of prior briefs, and raising the same arguments that were previously addressed causes the Court to wonder whether the decision to file a fourth motion to dismiss was motivated more by billing for legal services than the desire to assist the Court in understanding the legal issues."

Obviously being pro-se, the running up of one's own atty fees will not be an issue, but wasting the court's time on an issue that has been legally adjudicated, I would not think is going to go over very well. 

The OP should focus on defeating the other side's motion for summary judgement, and not trying to re-litigate an issue that has been settled by the court.   Appeals courts are the venue for a dispute with the lower court.

What wrath? a snarky remark in a footnote? point is attorney was not sanctioned. Reading these posts mostly scare the pro se out of their wits defeating the Pro Se before he get into court. If OP feels he can win a motion to dismiss he should try it, its the Judge who is to decide.  We all know that Judges do not always make the right decisions.   As for Coltfan and SJ, he is right you have to defeat that by making one genuine material fact, FIRST.   One of the genuine material facts is that their is an arbitration agreement, second is SOL has run under Del Law.   have to come up with a few more and submit with an affidavit.
« Last Edit: October 01, 2015 03:35:46 PM by trick »

trick

  • Valued Member
  • Posts: 857
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #17 on: October 01, 2015 03:33:10 PM »
Double posted dont know how to erase.

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #18 on: October 01, 2015 04:57:14 PM »
What wrath? a snarky remark in a footnote? point is attorney was not sanctioned. Reading these posts mostly scare the pro se out of their wits defeating the Pro Se before he get into court.

Come on, because the atty was not sanctioned is reason to direct this poster into the lion's den.   This is about winning and losing and in the case you posted, there is a clear loser, and it's the party that kept filing motions to dismiss, AND they were even coming up with creative ways to attempt to get multiple motions in the back door.

If that and other legit advice scares the pro se, then they don't need to be pro se and need to get an atty.   This requires strapping on your big boy pants and if pointing out the obvious is too scary then the OP needs to throw in the towel at this stage. 

Here we just have somebody that does not agree with the ruling so they are going to try it again, when their is a motion for summary judgement pending that can end the entire case. 

The point is a huge mistake is getting ready to be made by the focus being on these multiple motions to dismiss.   Any advice to not immediately focus only on the MSJ is reckless advice, and I have an incredibly high threshold before I think advice is reckless.   

LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

trick

  • Valued Member
  • Posts: 857
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #19 on: October 01, 2015 08:08:49 PM »
Come on, because the atty was not sanctioned is reason to direct this poster into the lion's den.   This is about winning and losing and in the case you posted, there is a clear loser, and it's the party that kept filing motions to dismiss, AND they were even coming up with creative ways to attempt to get multiple motions in the back door.

If that and other legit advice scares the pro se, then they don't need to be pro se and need to get an atty.   This requires strapping on your big boy pants and if pointing out the obvious is too scary then the OP needs to throw in the towel at this stage. 

Here we just have somebody that does not agree with the ruling so they are going to try it again, when their is a motion for summary judgement pending that can end the entire case. 

The point is a huge mistake is getting ready to be made by the focus being on these multiple motions to dismiss.   Any advice to not immediately focus only on the MSJ is reckless advice, and I have an incredibly high threshold before I think advice is reckless.

I did give the op benefit of the doubt that he knew he had a SJ which will go first.  I do how ever belief that an issue can be brought up again in this day and age.  I know all about the doctrine of "law of the case".  The issue could be brought up again in response to the SJ in order to defeat the SJ. 

A motion to dismiss can be brought again if new evidence.  A motion under civil procedure 12 can be brought multiple times if done right.

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #20 on: October 01, 2015 08:15:52 PM »
I did give the op benefit of the doubt that he knew he had a SJ which will go first.  I do how ever belief that an issue can be brought up again in this day and age.  I know all about the doctrine of "law of the case".  The issue could be brought up again in response to the SJ in order to defeat the SJ. 

A motion to dismiss can be brought again if new evidence.  A motion under civil procedure 12 can be brought multiple times if done right.

You're correct, and actually what the OP needed/needs to do is a cross motion for summary judgement, arguing the statute of limitations.   

Addressing their MSJ is paramount!!!!
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #21 on: October 01, 2015 08:44:33 PM »
I have to disagree with Mule Boy. Sorry, folks, it happens. You've seen this before, and you'll see it again. Sit back and enjoy the match, the Great Mind against the Great King of the drive-up window.

Raising the issue of SOL to  defeat an MSJ is not going to work. It is not a material fact that needs to be determined at trial, it has already been ruled upon by the court. And here is the good part.

The judge that ruled does not even do civil cases! (according to OP) The judge suggested OP go read up and figure out why he was denied. So, what does he do? He ignores this heads up from the judge and proposes ANOTHER MTD based on the same failed argument.

Now you suggest he use it a third time when you correctly pointed out that he has no viable SOL argument? Why? If I was him filing this third specious argument, would I want to take on Coltfan as opposing counsel? Even the great Bruno would not take a bite at that apple, because for the first time in seven years, Coltfan would probably beat Bruno. Double fries with that Crow Pie, Coltfan?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

trick

  • Valued Member
  • Posts: 857
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #22 on: October 01, 2015 08:46:47 PM »
You're correct, and actually what the OP needed/needs to do is a cross motion for summary judgement, arguing the statute of limitations.   

Addressing their MSJ is paramount!!!!

YUP!!!! exactly.

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #23 on: October 01, 2015 09:11:42 PM »
No, not exactly. He has had too many Whoppers today, it is affecting his judgment. He contradicted himself by suggesting this tactic.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #24 on: October 01, 2015 09:12:22 PM »
Raising the issue of SOL to  defeat an MSJ is not going to work. It is not a material fact that needs to be determined at trial, it has already been ruled upon by the court. And here is the good part.

The judge that ruled does not even do civil cases! (according to OP) The judge suggested OP go read up and figure out why he was denied. So, what does he do? He ignores this heads up from the judge and proposes ANOTHER MTD based on the same failed argument.

Now you suggest he use it a third time when you correctly pointed out that he has no viable SOL argument? Why? If I was him filing this third specious argument, would I want to take on Coltfan as opposing counsel? Even the great Bruno would not take a bite at that apple, because for the first time in seven years, Coltfan would probably beat Bruno. Double fries with that Crow Pie, Coltfan?

Wrong as usual when you try to challenge me.   Why you keep trying is unknown, but does provide comical relief. 

Totally different standard of reviews for a motion to dismiss and a motion for summary judgement.    With a motion to dismiss you don't have discovery and the Complaint as pleaded is to be considered 100% factually correct, by the court.   

One is not estoppelled from raising the SOL argument again, as part of their motion for summary judgement, because, presumably, there are now undisputed facts that the parties have established throughout the course of the lawsuit.   Those facts are ripe to be ruled on again, and under a totally different standard of review by the court, a much less stringent standard of review.

So when you say "it's already been ruled on by the court" you're correct, but under a motion to dismiss standard of review.   It is now being raised, hopefully in a cross motion for summary judgement, and is ripe for the court to rule on the issue and if the SOL is expired, the Defendant wins on summary judgement, because there are no set of facts left that make it possible under any theory of law for the Plaintiff to prevail. 

Learn the law and the standard of reviews.   Is the same argument as part of a motion for summary judgement a semi back-door motion to dismiss?  Of course, but it is done all the time and/or as a cross motion.

Now take your country you know what whooping, and don't come back in here and tell me that what I just said is what you actually said and meant, like you usually do when you get your law lesson. 

Now go shine my lizards and get me some food. 
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

BellEbutton

  • Valued Member
  • Posts: 3447
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #25 on: October 01, 2015 09:20:32 PM »
You're correct, and actually what the OP needed/needs to do is a cross motion for summary judgement, arguing the statute of limitations.   

Addressing their MSJ is paramount!!!!

Considering MA doesn't have a borrowing statute, he has to depend upon MA courts' reliance on the Restatement (Second) Conflict of Laws. 

In New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass. 658, 664 (1995), this court departed from the traditional rule of law that characterized limitations statutes as procedural and automatically applied the statute of limitations of the forum State. See Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 645 (1994). We adopted instead a functional approach that treats the issue as a choice of law question, as stated in the Restatement (Second) of Conflict of Laws § 142 (Supp. 1989), and set forth below.[5] See id. at 663-664. Section 142, as amended, states that, under choice of law principles set forth in § 6,[6] the forum State generally will apply its own statute of limitations to permit a claim unless: "(a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence." Nierman v. Hyatt Corp., 441 Mass. 693, 695-696, 808 N.E.2d 290 (2004).


He'd have to show DE has more of an interest in the outcome of the lawsuit than MA.  The plaintiff will argue that the account was opened in MA when the defendant used the card and defaulted upon in that state when he failed to pay.  He's going to have to show that the foregoing actions took place in DE.

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #26 on: October 01, 2015 09:42:56 PM »
I don't care about all that, although I agree with your position.   I'm not arguing the merits of either sides arguments.   This is a procedural issue I'm discussing. 

The OP is not estopolled from raising the SOL argument again, just because it failed in a motion to dismiss. 

I have no idea if the argument will have any success, as it will depend on how well pleaded the motion and/or response is drafted. 

There is one thing that is 100% for certain, it is paramount that the OP address the MSJ!!!!!!!!
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

deepintuit

  • Valued Member
  • Posts: 331
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #27 on: October 01, 2015 09:51:07 PM »
To all:  I greatly appreciate when the relevant excerpts from specific case decisions are included in comments here in this forum.

First, I am pursuing the SOL partly because it is logical, and because Plaintiff claimed the DE SOL was tolled by sec 8117.  There is a ton of logical and reasonable argument that the statute is not tolled in my situation (never lived in DE).  DE Supreme Court has ruled that the DE legislature could not have intended that use of sec 8117.  Ambiguity in the reading of 8117 where plaintiffs claim SOL does not/has not run because non/never resident Defendant is out of DE is addressed by DE Code Ann. Tit 1 sec 303.

I am studying argument that the harm to BoA was done in DE and not MA.  This should help (I trust/hope) judge use the narrow MA borrowing statute (if needed) to justify no commercial harm to MA by letting the terms of the Agreement govern the SOL issue. 

Fear not- I am also working hard on the Plaintiff's MSJ.  I need to understand better the details of "Account Stated".  I am studying rules of evidence for 5 really bogus looking affidavits from PRA.  Also challenging Standing since they did not produce signed agreement.  Their redacted chart of the account includes error(s) and inconsistencies compared to affidavits.  Also, they did not give notice of lawsuit, service was improper.... throwing as much in there to establish that there are plenty of material facts to at least deny Plaintiff's MSJ.

I am planning to withdraw my Motion to Reconsider (for reasons stated above) before a judge sees it.  I hear what you guys are saying to make the motion a cross motion for SJ not just dismissal based on the SOL issue. 

A wise man learns from his mistakes.  A genius learns from other people's mistakes.

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #28 on: October 01, 2015 09:58:09 PM »
I'd start by asking the court for 30 additional days to respond to their motion and to possibly file a cross motion.   You have a 99.99% chance of that request being granted just by asking.

LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

deepintuit

  • Valued Member
  • Posts: 331
Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #29 on: October 01, 2015 10:15:44 PM »
coltfan  (how can you not be a Patriots fan?),

A court date on Sept 29 was rescheduled for Nov 3 because again, the Civil judge did not show up and the Criminal judge who denied me before was unavailable due to packed courtroom. 

I figure I have a week to withdraw my Motion for Reconsideration, file and serve my second Motion and about 4 weeks to prepare defense against their MSJ.  Since their MSJ came with only 2 weeks notice (mid Sept), I understand I do not have to reveal my arguments of defense beforehand.   

Can we all at least agree about this timing?

Everyone's input is massively appreciated.
A wise man learns from his mistakes.  A genius learns from other people's mistakes.