Author Topic: Summary judgement against me. Anything I can do now?  (Read 2637 times)

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ashmon42

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Summary judgement against me. Anything I can do now?
« on: December 10, 2010 09:41:42 PM »
I was served papers from a collection agency in Sept. I filed an intent to defend and demand for strict proof of the claim. I didn't hear anything until the middle of November when I got a motion for summary judgement had been requested because I didn't answer their questions. I had never received their questions and when I got the request for summary judgement, it had the interrogatories and admissions in it. I sent a letter back saying this was the first I'd heard of the interrogatories and would respond within 15 days. I responded by saying the plaintiff had not given strict proof of the claim, so I could not answer the questions.

The next thing I got was a  summary judgement in behalf of the plaintiff. Because I did not respond to their initial questions-- which I never received. Is there anything I can do now?

Frostie

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Re: Summary judgement against me. Anything I can do now?
« Reply #1 on: December 10, 2010 10:36:31 PM »
You didn't get an MSJ against you because you failed to answer their questions. You got an MSJ against you because you failed to fight the MSJ.  You could have used the fact that you didn't get their questions to fight the MSJ but demanding "full proof" is not the way to do it. Judges determine whether the poof is full, not you.

Your best bet right now is to file a motion for reconsideration with the judge and try and fight the MSJ that way.

ashmon42

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Re: Summary judgement against me. Anything I can do now?
« Reply #2 on: December 13, 2010 07:26:05 AM »
Thanks for responding so quickly. What should I include in my motion to reconsider, and how long do i have to file it? I actually mean how long before they can start garnishing my wages?

Flyingifr

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Re: Summary judgement against me. Anything I can do now?
« Reply #3 on: December 13, 2010 09:31:29 AM »
You would indicate in your Motion the following:

1. The original service of the Interrogatories was improper and in fact was never made.
2. Immediately upon your discovery of the Interrogatories you indicated that you would respond within the Statutory time limit
3. The Motion for Summary Judgment was premature in that your procedural due process rights were abridged without any inquiry into whether the service of the Interrogatories was made
4. The granting of the Summary Judgment was also premature in that you had a Motion to extend the deadline for answering the Interrogatories before the Court which was totally ignored.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

ashmon42

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Re: Summary judgement against me. Anything I can do now?
« Reply #4 on: December 14, 2010 06:15:04 PM »
I also included the following in my initial response:


REQUEST FOR JUDICIAL NOTICE

Defendants who are unschooled in the law and ask that the court take Judicial Notice of the enunciation of principles as stated in "Haines v. Kerner, 404 U.S . 519," wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than the form, and also hereby makes the attached memorandum, including the related documents attached herewith, in the above-referenced case. Furthermore, Defendants herebyrequest the judge notify them of any sua sponte, rights or remedies they may overlook.

Should I use that too, the fact that they did not recognize this?

ashmon42

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Re: Summary judgement against me. Anything I can do now?
« Reply #5 on: December 14, 2010 06:36:16 PM »
Here is what I am filing with the court.


Comes now defendant in response to Ruling of Summary Judgment against us and submit a Motion for Reconsideration.
The original service of the Interrogatories was improper and in fact was never made. The defendant had no ability to respond to interrogatories that were never received.
Immediately upon discovery of the Interrogatories defendant indicated that they would respond within the Statutory time limit, and did so according to the information they had available at that time.
The Motion for Summary Judgment was premature in that our procedural due process rights were abridged without any inquiry into whether the service of the Interrogatories was made.
The granting of the Summary Judgment was also premature in that defendant had a Motion to extend the deadline for answering the Interrogatories before the Court which was not granted.
In the interrogatories from the plaintiff, the plaintiff requests the defendant “Identify each witness you intend to call at the time of trial and give a summary of the testimony of that witness.” Defendant inferred from this request that a trial had been requested.

Is there anything else I should add?

Thanks a ton for your help! I called a couple of lawyers and they said I'm basically , but your boards still give me a little hope. :)

ashmon42

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Re: Summary judgement against me. Anything I can do now?
« Reply #6 on: December 14, 2010 07:01:35 PM »
The way I had planned on fighting this is with current statements from my bank showing I owe the original amounts. I get a weekly email from them showing that my balance is currently $2,400, or rather -$2,400. This comes as a weekly email showing my balance. They got the summary judgment for $3,400 or something like that.

Can I use this against them?

Flyingifr

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Re: Summary judgement against me. Anything I can do now?
« Reply #7 on: December 15, 2010 12:47:33 AM »
I also included the following in my initial response:


REQUEST FOR JUDICIAL NOTICE

Defendants who are unschooled in the law and ask that the court take Judicial Notice of the enunciation of principles as stated in "Haines v. Kerner, 404 U.S . 519," wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than the form, and also hereby makes the attached memorandum, including the related documents attached herewith, in the above-referenced case. Furthermore, Defendants herebyrequest the judge notify them of any sua sponte, rights or remedies they may overlook.

Should I use that too, the fact that they did not recognize this?

Nothing like using the above to claim you are unschooled in the law. After all, isn't the term "sua sponte" part of every fifth grader's vocabulary? Be careful that what you claim is supported in fact and form by the way you claim it.

"You honor, I'm not a lawyer, and I think it would better serve justice if the Court looked at the merits of the argument rather than the form it takes".

Remember - You are the Village Idiot under FDCPA. Act the part.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

ashmon42

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Re: Summary judgement against me. Anything I can do now?
« Reply #8 on: December 15, 2010 05:03:23 PM »
In looking at the fine print on the summary  judgement, I read the following:

"The defendants also include a "request for judicial notice" wherein the petition the court to notify them of any rights or remedies they may overlook." The court recognizes that a layperson acting pro se should be accorded every consideration that may reasonably be indulged. Notwithstanding, "a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar" Nelson v Jacoben 669 p2s 1207, 1213 (Utah 1983). Accordingly, it would be improper for this court to give legal advice to defendants regarding their legal rights and remedies as they request."

That seems up to me. They DIDN'T accord me jack , let alone every consideration.

CleaningUp

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Re: Summary judgement against me. Anything I can do now?
« Reply #9 on: December 15, 2010 07:05:59 PM »

What you have experienced may have been less than you expected.  Whether or not you got what you were entitled to is up to the court, and the only way that you can bring it before the court is... well...er...bring it before the court.

Three ways to do that:  1) Motion to Reconsider, 2) Appeal, or 3) Complaint to the Presiding Judge.

All three need a certain amount of legal basis and research,  and a good argument.  The civil courts are not necessarily compassionate institutions and don't volunteer to take up a cause.

Being angry may motivate you to chose one of the three instead of just doing nothing.  But anger is neither going to help you with your presentation, or influence how the court responds.



les

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Re: Summary judgement against me. Anything I can do now?
« Reply #10 on: December 18, 2010 01:43:06 AM »
Was there an affidavit of service with the interrogatories?  Usually mailing to your last known address is good service.  Anyway your motion better raise a triable issue of fact to the summary judgement motion.  Discovery is usually suspended once a sjm is filed so your procedural due process wasn't violated.

 

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