Author Topic: MSJ, Please Help!  (Read 1757 times)

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BellEbutton

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MSJ, Please Help!
« on: September 09, 2010 10:20:32 PM »
 have been reading these boards but haven't seen my particular situation addressed.

At the end of 2009, Discover filed a lawsuit against me. They included an affidavit from DFS Services and one copy of a statement.

I read the court rules, answered the complaint, and sent them my own interrogatories and request for production of documents. All were sent by certified mail with return receipt requested. They sent me their requests for admissions, requests for production of documents, and interrogatories a couple of months after they filed the suit. I answered everything and sent them back to the attorney.

They have never responded to my interrogatories or request for production. Two weeks ago, the court sent out a Notice of Alternative Dispute Resolution which they say is mandatory. Still didn't hear anything from the attorney.

Today, I got a Motion for Summary Judgment in the mail. Attached were statements from 2003 and a cardmember agreement. This account was opened in 1999. Almost 4 years of statements are missing. I did request statements in my request for production of documents, but I requested ALL records.  No answers to my interrogatories or any acknowledgement that they had never responded to my requests.

Also, they included an Offer of Judgment. The attorney sent a letter with it that says that I can offer Discover the final amount on the debt and the attorney will waive the interest and attorney's fees. He also states that I can pay any amount I can afford every month and send the payments to him.

The Offer of Judgment is in legal form with the court header and states that I am offering an amount to Discover which SHALL accrue interest according to S.C. Code 34-31-20 (in the letter he stated he would waive the interest), and that I would waive any and all counterclaims, defenses, objections, and set-offs. All I have to do is sign it and send it back to him.

His office typed that offer as if it were written by me. Is that legal? All of this has me very confused.

Also, the affidavit was signed eleven months before the case was filed.  Maybe that's normal, but I find it strange.

kevinmanheim

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Re: MSJ, Please Help!
« Reply #1 on: September 09, 2010 11:07:02 PM »
He also states that I can pay any amount I can afford every month and send the payments to him.


How nice of him. I'm sure he will accurately account for all payments, and deduct them from the principal. :)

If you want to put a quick end to this, read the arbitration forum. File a MTC arbitration.

If you don't, you can expect the court to soon grant the summary judgment.

 

transborder

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Re: MSJ, Please Help!
« Reply #2 on: September 10, 2010 12:55:18 AM »
If the OP still has outstanding discovery, then that is a material issue that needs to be settled before a MSJ can be granted.

File a reply to the motion. State that discovery is still outstanding and that the MSJ should not be granted.

Then file a MTC Arbitration.

BellEbutton

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Re: MSJ, Please Help!
« Reply #3 on: September 10, 2010 05:57:27 AM »
Thank you for your replies.

What about the Offer of Judgment and the fact that they created it to look like I am making the offer to them?

I've already figured out how I'm going to attack the affidavit. The "account manager" stated that her duties and responsibilites allowed her access to the books and records of the account, that to the best of her knowledge and belief all payments, etc. were credited to the account, and I owe XXXX amount.

1. If she had access to the books and records, did she also have access to the statements from 1999 to 2003 (which were not included in the statements sent to me)? If so, why did I not get copies of those statements? What happened to them in the 11 months between the time she signed the affidavit and the date the suit was filed?

2. If the statements are not available, did the account manager actually see them? If she didn't, she cannot truthfully state that all payments were credited to the account.

Discover can't have it both ways. Either she saw the missing statements, and therefore, they should be available for me to see...OR she didn't see them, and her statement in the affidavit was not truthful.

Therefore, provide the statements or strike the affidavit.



CleaningUp

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Re: MSJ, Please Help!
« Reply #4 on: September 10, 2010 02:31:27 PM »
Is the affidavit from an employee of the REAL OC or from an employee of the entity doing the collecting?

If the latter, the question becomes how she got access to the books and records.  Companies do not let 3rd parties see what is on their books.

At trial, you can always call the affiant as a witness to attest to what is contained in the affidavit.  Affidavits can't testify.


BellEbutton

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Re: MSJ, Please Help!
« Reply #5 on: September 10, 2010 07:04:10 PM »
The employee is supposedly an account manager from DFS Services who is, from what I understand, the servicer of Discover's accounts.  I believe it's an entity of Discover. 

You made my point exactly.  If she had access to my records from 1999 to 2003, why I can't see them?  What happened to those records between the time she signed the affidavit in Jan., 2009, and the date they filed the suit in Dec., 2009?  Also, what do they mean she had "access" to the records?  Does that mean she actually examined every statement, or did she merely have the opportunity to look at the records if she needed to?

Now if Discover claims those records are unavailable for some reason, how do we know she actually saw them?

Doesn't Discover have to prove she examined the records in such a way that she could truthfully testify as to the accuracy of the balance?

BellEbutton

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Re: MSJ, Please Help!
« Reply #6 on: September 10, 2010 07:16:42 PM »
BTW, I've done some reading on the "Offer of Judgment".  I don't understand it completely, but I believe I understand the basics.  An Offer of Judgment is like a settlement, only it's recorded as a judgment.  In my state, either party can make an offer.  Once you make an Offer of Judgment, if it's NOT accepted, you cannot come back at a later date with a lower offer.  Your next offer must be higher than your previous offer.  That's the disadvantage to making an Offer of Judgment.

Here's an advantage:  If the opposing party refuses the offer, and the judge rules in their favor, their award must be higher than your offer.  Example:  If you offer $5000.00, and they turn it down, the amount they win in court must be higher than $5000.00.  If they are awarded anything less, they have to pay your court costs and attorney's fees, if any, out of their award.

The reasons the attorney drafted the Offer to appear as if I was making it was for 2 reasons:

1.  They would accept it, of course.
2.  I could never make a lower offer.

 


CleaningUp

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Re: MSJ, Please Help!
« Reply #7 on: September 10, 2010 07:57:30 PM »

In discovery you ask for those records.  If they don't provide them, ask the court to compel them to provide them.

If they don't provide them, then the affidavit has lost its foundation.

As for the offer of judgement, I think your understanding is incorrect.   Offer of judgment has more to do with fee-shifting the offerer's attorney fees.  If a subsequent settlement/judgment is greater than the amount in the Offer of Settlement, the attorney's fees for the offerer can be assessed against the offeree. It has nothing to do with the amount of settlement or judgment on the merits.





BellEbutton

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Re: MSJ, Please Help!
« Reply #8 on: September 10, 2010 11:50:13 PM »
Quote
In discovery you ask for those records.  If they don't provide them, ask the court to compel them to provide them.
If they don't provide them, then the affidavit has lost its foundation.

Can I still file a Motion to Compel considering they've filed for Summary Judgment?

Quote
Offer of judgment has more to do with fee-shifting the offerer's attorney fees.  If a subsequent settlement/judgment is greater than the amount in the Offer of Settlement, the attorney's fees for the offerer can be assessed against the offeree.

I agree.  Perhaps I didn't make myself clear.  I understand what you've stated.  My explanation was based on the possibility that the award to the opposing party (Offeree) was LESS than than Offer of Judgment made by the Offerer. 

1.  You (the Offerer) offer $5000.00 and the opposing party (Offeree) refuses it.

2.  The judge awards the opposing party (Offeree) less than $5000.00...let's say $4000.00

3.  The opposing party (Offeree) is now responsible for your (the Offerer) attorney's fees and court costs because they refused your offer and were rewarded less than the amount you offered.

CleaningUp

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Re: MSJ, Please Help!
« Reply #9 on: September 11, 2010 02:57:26 AM »

Can be argued to cut both ways.


BellEbutton

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Re: MSJ, Please Help!
« Reply #10 on: September 11, 2010 06:35:14 AM »
Ok...I understand.  Thanks for giving me the other side of the explanation.

cgoodwin

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Re: MSJ, Please Help!
« Reply #11 on: September 11, 2010 12:44:43 PM »
Can I still file a Motion to Compel considering they've filed for Summary Judgment?

Yes.  File an Objection to Motion for Summary Judgement.  List that you are still in the discovery phase and a MSJ is inappropriate at this time.  State in your OMSJ that the plaintiff still has not complied with discovery and because of that you are filing a Motion to Compel Discovery.  File your Motion to Compel Discovery at the same time you file your OMSJ.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

BellEbutton

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Re: MSJ, Please Help!
« Reply #12 on: September 11, 2010 08:07:16 PM »
Thanks, cgoodwin,

I will file an OMSJ, a Motion to Compel, and a 2nd set of Request for Production of Documents in which I will request they provide the statements from 1999 to mid-2003 which were not included in the statements they sent me.

If they answer my discovery requests but do not include the missing statements (based on whatever reason), I will then file a Motion to Strike their affidavit as hearsay.  The missing statements will also provide ammunition as to the validity of the amount requested in the complaint.

Am I correct?

BellEbutton

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Re: MSJ, Please Help!
« Reply #13 on: September 12, 2010 08:25:14 PM »
Can anyone give me an idea on how to word a Motion to Compel Production of Documents and Answers to Interrogatories?  I've read my court rules and looked the court forms, but there's nothing that helps me with this.

howucantoo

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Re: MSJ, Please Help!
« Reply #14 on: September 12, 2010 10:05:32 PM »
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

 

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