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Author Topic: Hearing for MSJ...... Beating the Deadline!  (Read 27805 times)
SaltCreek
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« on: August 27, 2006, 10:48:16 AM »

about 7 "business" days until their MSJ (that would include the holiday) so I'm not sure if that trims a day off me or I get to include the holiday. My understanding Ruby of 1.510(c) is that I have to mail them 5 days before hearing date or hand deliver them 2 days before (presumption being mail eats upto 3 days). I see nothing about tacking on another 5 days for mail movement though.... push comes to shove there is a new office for the Shark relatively local (within driving distance) so that option exists.

Really, I'm pretty much up against the wall in that a had a number of things to put together rapidly, the darn full time job seems to get in the way?

It's always interpreting the procedures accurately for me, they sometime are just convoluted or under a different heading than where I'm looking.

I need my procedure at this point, what I'm writing is almost a bit too late to make perfect, the basis has to get before the judge and hope he sees the same light as me.

already filed/served last week Compel Production with request for hearing on or before MSJ

NEXT
file/serve to PA
Opp to their MSJ with my sworn Affi

file/order/schedule/serve to PA **AND this is the confusion point**
both motion to strike(s) done

it's the process of the paperwork "scheduling and notice of hearing" that is confusing me with the pending hearing sitting on the docket too close for me to get any judge time prior to their MSJ hearing on me. The Clerks are not too helpful and basically are speaking some form of jibberish.

i have my basic "will grant this or not ORDER" with my motion BUT HOW DO I SCHEDULE THIS TO BE HEARD, THE DOCUMENT USED IF ANY, AND IS THIS NOTICE OF HEARING SOMETHING THE COURT WOULD SEND ME OR I HAVE TO SELF GENERATE THE FORM AND SEND IT IN WITH MY MOTION FOR THE JUDGE ASSISTANT TO FILL OUT AND RETURN THEN I FORWARD IT TO PA.

obviously, the turn around is not going to bode well with their MSJ breathing down my neck.

the judge assistant mentioned something about send a notice of hearing to the attorney by copying theirs sent to me and insert what you want heard at the MSJ hearing.

Their notice of hearing makes sense because I at least have the accurate date, court room, judge, and time information...... the rest just says they tried and failed and we'll see me there. They enclosed a copy of their MSJ and affi again.

So my notice to them will have that caption and 1st paragraph area THEN essentially attach MY OPP MSJ, MY AFFI, MY Strike Motions, and now I see where I need that Memorandum of Law and Possibly a counter MSJ to this NOTICE. GET in their hands pronto. File all this at court pronto.

The motions are ?? They are written, the simple order with them, BUT HOW DO I HANDLE THE SCHEDULING/REQUEST FOR HEARING PART? Just leave that out because the Notice of Hearing I sent to the PA above has taken care of that or do I just ask to be HEARD ON OR PRIOR to the MSJ date?

Of course my concern is the time line, because i'm thinking a strict 5 days or run it over there myself.... in a sense giving them crunched time to look things over as it was for me factoring in I don't have a full time staff doing this stuff for me...

the judge just needs it all in front of him when he opens the file, i doubt he's reading this rehash at home the night before  :roll:

I have to get this Motion-hearing scheduling  thing figured out in relation to the clock. If your right about the 5 days before + 5 day allowance = 10 day notification..... I'm dead, I'm still trying to hammer out a rationale Memorandum today (have the case law I'll use, it's unfortunately so insane.. they have 3 pieces of toilet paper.... 2 absolutely a farse in self serving table and CCHA... and 1 if impeached is gone- the affi.... then you have a situation that for 10K there is no availability of any official, company, creditor, POS receipt, statement that has my legal name attached to it available on earth..... ? and the court aids you in extorting the money over Hardcastle over Connolley...... you read the cases right.. both defendents self incriminated/impeached themselves with their own testimony and left themselves with no recourse to win. Hence, no evidence really needed by the plaintiffs......ie I guess no paper issues "could be material" under those specific circumstances!!!!!

And you wonder why Alaska is looking real good to me right now    :shock:
I hope I can finsih this in time. Any advice or moral support you or Fraud can lend... thanx... gotta keep going here..... appreciate you staying in touch through all this, just sorry so much of life is still demanding attention.. doing the best i can to stave off this obvious exploitation of the process this PA has made a living on. SC
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rubyruby27
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« Reply #1 on: August 27, 2006, 11:28:01 AM »

Fraud,

Salt needs help on the timeline and what to do.

Okay, I am not sure hopefully Fraud will correct.  I don't know where it states 5 days for mailing but I believe it does somewhere.  So that is 5 days before plus 5 days for mailing that is 10 days before hearing date the opposition is suppose to have your Opposition to MSJ to them.

Or you can hand deliver 2 days before.  I don't think it is just 5 days and the mailing time is included in that timeframe.  I just CMRR it took 7 days for them to sign for the package.

You need to get the Opposition in asap.

I sent all my motions to the court at the same time but I wrote a letter to the Court stating what I wanted in that letter. Court hearing date for

Motion to Preclude
MSJ

If the court would not grant the court date for the above motions then to save time of the court then I was requesting court hearing on Motion to Compel Discovery.

The JA told me the Judge would preview my motion and either grant me a hearing on my motion or not, if he didn't then he would set a court date for trial on the Plaintiffs complaint.

They lost my MSJ and the request for hearing dates.  The JA called me and told me to submit a request for a hearing date which I had already done on the Motion to Compel and Discovery.  So, by this comment he is granting me the hearings on these motions.

If you have to ask in writing for a court hearing, you have to have what motions you are asking for with the request for the hearing.
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rubyruby27
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« Reply #2 on: August 27, 2006, 11:50:06 AM »

I am confused on what you are asking as far as the timeline.

I would think if you need discovery before doing your MSJ that you would do the Oppostion to MSJ etc, Motion to Compel, Motion to Strike.

If not then I would file everything as soon as possible and ask for a court hearing for all of this on the same day to save the Courts time.

Write you request for your hearing date to be the same as the hearing dates for the MSJ you have scheduled.  

Here in my county the courts send out the hearing notice, I just request and supply the blank form for the hearing notice.  If you need a copy of one I will post mine, straight out of a reference book on Fl law.

Post your work, delete all personal info others will review and offer some guidance.  I am not an expert, I can read it for readability and ease.  If I can understand it, the courts should be able to understand.

Only submit the order granting your motions, don't do there work.  Besides according to the RCP's the side with an attorney is suppose to do all the orders, they don't so always write yours not theres.

You submit the blank notice of hearing date the court will fill out and send to everyone.  

Did the JA say the Court will hear your motions on the same day. My JA said the motions have to be reviewed first by the Court prior to a hearing date, not sure you can accomplish this.

Again, without knowing the the proper thing to do, I would submit all with a letter stating what you want heard on that day.  Send a copy of everything to the opposition.

In my county anything I do is sent to the Judges chambers for review on the day I submit it.

Fraud is this correct.
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Florida Debtor
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« Reply #3 on: August 27, 2006, 12:07:05 PM »

One thing I see.

"The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant's attorney no later than 5:00 p.m. two business days prior to the day of hearing."

I dont think the 5 day rule has to be added to the 5 days for mailing. Sending within 5 days sould be fine. Anywhere florida to florida first class should only take 2~3 days. Most times 2 days. USPS had overnight for ~$14.

The 5 day rule is 1.0909(e)
Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.
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fraudfighter
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« Reply #4 on: August 27, 2006, 02:46:09 PM »

Quote from: "SaltCreek"
about 7 "business" days until their MSJ (that would include the holiday) so I'm not sure if that trims a day off me or I get to include the holiday. My understanding Ruby of 1.510(c) is that I have to mail them 5 days before hearing date or hand deliver them 2 days before (presumption being mail eats upto 3 days). I see nothing about tacking on another 5 days for mail movement though.... push comes to shove there is a new office for the Shark relatively local (within driving distance) so that option exists.

Really, I'm pretty much up against the wall in that a had a number of things to put together rapidly, the darn full time job seems to get in the way?

It's always interpreting the procedures accurately for me, they sometime are just convoluted or under a different heading than where I'm looking.

I need my procedure at this point, what I'm writing is almost a bit too late to make perfect, the basis has to get before the judge and hope he sees the same light as me.

already filed/served last week Compel Production with request for hearing on or before MSJ

NEXT
file/serve to PA
Opp to their MSJ with my sworn Affi

file/order/schedule/serve to PA **AND this is the confusion point**
both motion to strike(s) done

it's the process of the paperwork "scheduling and notice of hearing" that is confusing me with the pending hearing sitting on the docket too close for me to get any judge time prior to their MSJ hearing on me. The Clerks are not too helpful and basically are speaking some form of jibberish.

i have my basic "will grant this or not ORDER" with my motion BUT HOW DO I SCHEDULE THIS TO BE HEARD, THE DOCUMENT USED IF ANY, AND IS THIS NOTICE OF HEARING SOMETHING THE COURT WOULD SEND ME OR I HAVE TO SELF GENERATE THE FORM AND SEND IT IN WITH MY MOTION FOR THE JUDGE ASSISTANT TO FILL OUT AND RETURN THEN I FORWARD IT TO PA.

obviously, the turn around is not going to bode well with their MSJ breathing down my neck.

the judge assistant mentioned something about send a notice of hearing to the attorney by copying theirs sent to me and insert what you want heard at the MSJ hearing.

Their notice of hearing makes sense because I at least have the accurate date, court room, judge, and time information...... the rest just says they tried and failed and we'll see me there. They enclosed a copy of their MSJ and affi again.

So my notice to them will have that caption and 1st paragraph area THEN essentially attach MY OPP MSJ, MY AFFI, MY Strike Motions, and now I see where I need that Memorandum of Law and Possibly a counter MSJ to this NOTICE. GET in their hands pronto. File all this at court pronto.

The motions are ?? They are written, the simple order with them, BUT HOW DO I HANDLE THE SCHEDULING/REQUEST FOR HEARING PART? Just leave that out because the Notice of Hearing I sent to the PA above has taken care of that or do I just ask to be HEARD ON OR PRIOR to the MSJ date?

Of course my concern is the time line, because i'm thinking a strict 5 days or run it over there myself.... in a sense giving them crunched time to look things over as it was for me factoring in I don't have a full time staff doing this stuff for me...

the judge just needs it all in front of him when he opens the file, i doubt he's reading this rehash at home the night before  :roll:

I have to get this Motion-hearing scheduling  thing figured out in relation to the clock. If your right about the 5 days before + 5 day allowance = 10 day notification..... I'm dead, I'm still trying to hammer out a rationale Memorandum today (have the case law I'll use, it's unfortunately so insane.. they have 3 pieces of toilet paper.... 2 absolutely a farse in self serving table and CCHA... and 1 if impeached is gone- the affi.... then you have a situation that for 10K there is no availability of any official, company, creditor, POS receipt, statement that has my legal name attached to it available on earth..... ? and the court aids you in extorting the money over Hardcastle over Connolley...... you read the cases right.. both defendents self incriminated/impeached themselves with their own testimony and left themselves with no recourse to win. Hence, no evidence really needed by the plaintiffs......ie I guess no paper issues "could be material" under those specific circumstances!!!!!

And you wonder why Alaska is looking real good to me right now    :shock:
I hope I can finsih this in time. Any advice or moral support you or Fraud can lend... thanx... gotta keep going here..... appreciate you staying in touch through all this, just sorry so much of life is still demanding attention.. doing the best i can to stave off this obvious exploitation of the process this PA has made a living on. SC


The 5 day "if mail" and 2 day "if hand delivered" rules are what they are.
All you have to do is serve on the opposing party by these prior to the hearing date deadlines.
I don't see how you can get another hearing set if only 7 days remain.

Your top objective is to defeat their MSJ. So get that accomplished.

You get a hearing date by contacting the judge's assistant, or some courts have an online service as part of the county court's or judicial circuit's website where you can see the judge's calendar and the available hearing times and you can reserve one of those available hearing times without involving the JA.

To defeat their MSJ, you simply raise more than a slightest doubt that triable issues don't exist. FL law requires them to "state with particularity" all the issues to be addressed in the MSJ. Any legal argument that they don't state in their MSJ on its face, you can argue that they cannot raise that argument since it was not "stated with particularity" as required by rule 1.510.

Also, FL law requires them to prove conclusively the lack of triable issues.  

So, they have the "not even a slightest doubt" and the "prove conclusively" burden to meet the burden of proof for MSJ.

All you have to do is place evidence on the court record that raises a slightest doubt and makes it impossible to prove conclusively to defeat their MSJ.

You can also counter move for MSJ is you have evidence that proves conclusively that their allegations are false.

If the alleged debt is not yours, get that fact on record of the court by affidavit. That clearly raises more than a slightest doubt and makes it impossible to prove conclusively that their allegations are true.

If the debt is yours, then when did the delinquency commence?
IF past four years, you have the Fernandes case to show that the nature of their claim is not founded on a written instruments, thus at best it's an oral contract action, with a 4 year SOL and thus time barred, if there is evidence on the record from them of the commencement of the delinquency. A CCHA is not a written instrument in FL and does not carry a 5 year SoL. Resort to parol evidence is required to establish liability of some party.

Also, if your discovery is not complete, rule 1.510(f) provides you the right to move for a continuance to complete discovery. So, you can move for a continuance to complete your discovery.

That discovery can include you contacting the OC, or sub poena'ing the OC for their records on the account which prove the account is not yours.

So, declare that the account is not yours by timely affidavit and subpoena the OC for proof that the account is not yours.
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fraudfighter
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« Reply #5 on: August 27, 2006, 02:48:42 PM »

You could also move to strike their MSJ since it violates the "stated with particularity" provisions of rule 1.510.
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fraudfighter
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« Reply #6 on: August 27, 2006, 02:50:38 PM »

I suggest you hit the law library and read what Berman says on rule 1.510. Then you'll understand how FL summary judgment works.

Berman's Florida Civil Procedure.
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rubyruby27
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« Reply #7 on: August 27, 2006, 03:07:04 PM »

Hope that helps you Salt,

Fraud and FD the reason I said the extra 5 for mailing, there was a discussion on this somewhere, wanted to make sure if he needed that time to mail he was running into problems.
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rubyruby27
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« Reply #8 on: August 27, 2006, 03:17:11 PM »

Fraud,

Both INP and myself have MSJ's before the court.

I think I have Bermans on MSJ, but I only copied that section.  My question is when someoen opposes the MSJ do have to write why that person's opposition is wrong or is it a dead issue.

Is this the reason there is such a short time to recieve a copy of the Motion.

For me the opposition will have a long time to respond to my complaint, while I only have the 2-5 days to respond to theirs, yet this is a non speaking trial as far as evidence.

I am assuming you argue why they are wrong but you can't offer an testimony in addition to what you have already submitted.  

Why else to you go to court on MSJ.
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rubyruby27
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« Reply #9 on: August 27, 2006, 03:31:46 PM »

Don't forget to file a Final Judgment not just a motion to grant msj.

Fraud

Can I amend my MSJ to add addtional case law?
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SaltCreek
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« Reply #10 on: August 28, 2006, 12:32:03 AM »

Thanx FF....Ruby for stepping in, this has more anxiety then slamming cuban coffee.......

Motion to Compel filed last week, ask to hear on or before their MSJ date, haven't heard from court on that.....they alluded to waiting for MSJ hearing..... sent motion to PA but no hearing date to them

I have my sworn affi + OPMSJ + STRIKE CCHA/Tables + STRIKE OPMSJ-Affi
so, i'm prepared to attack their MSJ-just will tweek with advice remaining here and it's as ready as I can make them... pretty clean.... maybe a little long in the tooth but flow smooth and to the point.

So no later than tuesday I'll court house file and  I'll "next day" overnight copies to the vulture. For the Motions if I understand you right, I call the JA (or while I'm down there filing swing by) and ask for a slot KNOWING she's going to LAUGH and default me probably to the same day as OPMSJ day.

**** SO, on my motion i'll just say on or before "MSJ date" or just leave it blank until I see the calender or the JA tells me the score? They told me I have to send the attorney a notice of hearing and let them know what I'll be arguing............... I can copy theirs and what just list what? won't they have copies of the Strikes, Opp, Affi of mine already?

I must be brain dead...... a notice of hearing I print out with each motion.... and the court fills it out and mails to me....then i mail it to the parasite..... is the "normal persons way" or just send the order with the motion and the court will take it from there and type up there own notice.
BUT since its me...... "crazy persons way" the time is so tight that my orders will be dealt with more than likely at the big MSJ show.

********************FFRAUD*************************
there substan matter:
I=gen denial w/ no affirm D
Them=Gotta Affi substantiating claim
that's it except the we're using Mob + Con as relevance

*********************************************************  
Finnally, It sounds like you suggest don't file my own MSJ at this time and gear more for stop OPMSJ ->continuance -> trial

I started my MSJ, but it's tricky to manage. they seem to be more at the mercy of Mob + Con than me....... guess the ole sword cuts both ways. But i don't have any support from lender.... it's assigned.... call the assignee? yeah right..... I already see there sparse information void of any refernce dating..... conclusive evidence?? I just stare at the wall on that one. I have no personal records of involvement, there CCHA indicates if accurate the new milennia..... man that's 6 yrs ago..... i'm digital.... i don't go back that far..... so what i break out ck book statements as far back as i can go to see no payments ever written to them.... that doesn't make sense I could make a hundred reason from their side why that doesn't mean anything. Without the OC available, how would you retaliate....

No not me......yes it is.......no not me........yes it is......... uh, we've been singing this same thing for 6 months..... think if this was a relatively fresh account <3yrs you could pull some DIRT from somewhere..... I don't see how i refute something yoiu have no records of ..... actually i would love to have an SOL thing right now......seems easier..... NO OFFENSE RUBY...IMP Cheesy

I tell you Fraud this is the niche for xtra cash my friend.... I approach people and say they owe me X-grand...... after we push and shove a bit.... I walk away and file a claim on them..... attach any old ccha to it, crank me out a nice looking Table with the phone number and address of the dude... pay 39.99 and cop his SS#.... drop my extortion amounts in the table and serve his soul...... if i'm lucky he just succumbs and i'm only out the filing fee but have a nice deposit for my effort.... if he fights me, I ignore his request for discovery.... this is where you come in...... your my expert, fail safe, personal knowledge, maintains my tables on a regular basis, witness to the fact i loaned the guy X-grand... you initial the Affi F.Fraud and we file claiming Mob + Con, we don't need no authentic docs, OUR MSJ is coming up quick........its almost payday again brother............ it's meant to be funny but you know, that little play ain't too far off my situation......... how are you going to win that battle against  a no paper issues .... when you have no history and they provide no refernce dating to at least see what you may have been doing then that might shed light on the possiblity through evidence you couldn't have done it? Its tough man.

So, where was I, oh..... what kind of issues to support an MSJ could I come up with in this situation...... So, again you think not to worry about filing an MSJ right now versus file it with all the other stuff this week. See you all in the morning. Thanks for supporting me in this fiasco. Out! SC
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SaltCreek
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« Reply #11 on: August 28, 2006, 12:35:59 AM »

Quote from: "rubyruby27"
Don't forget to file a Final Judgment not just a motion to grant msj.

Fraud

Can I amend my MSJ to add addtional case law?


are you sleepy? was this directed to me... if so what's the difference you are trying to say..... I thought one motions and if granted the court will FINAL
if denied it keeps on heading toward the trial. SC
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SaltCreek
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« Reply #12 on: August 28, 2006, 12:40:57 AM »

Quote from: "fraudfighter"
You could also move to strike their MSJ since it violates the "stated with particularity" provisions of rule 1.510.


well the grounds are no material issues exist....... and then everybodys favorite stepchildren...... Mob + Con citations. I guess that's pretty vague... I guess I could do that during the hearing...... I just can't give anymore facts or evidence orally at the hearing.
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fraudfighter
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« Reply #13 on: August 28, 2006, 09:20:52 AM »

You can formally move for your own SJ and attach it to your opposition to their MSJ, which is the better practice, but FL law allows the court to grant SJ to the non-movant at the hearing if the record shows the nonmovant is entitled to SJ instead of the movant.

Mail it 6 days ahead of the hearing at the latest. Have proof of delivery.
5 days ahead of hearing is late, that leaves it up to the court's discretion then on whether to include it or not.
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rubyruby27
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« Reply #14 on: August 28, 2006, 10:14:21 AM »

First, no they don't final you have to ask for final judgment.

Look at the thread I wrote on MSJ by reference books.

What every one keeps telling you, they have no proof just paper, you have the statute and case laws on that to defeat their MSJ and win yours.

If just paper issues, that would result in parol evidence that alone should defeat their msj.

Your getting hung up on no proof, they don't have any proof  that its yours, they lose on theirs you win on yours.

Each county is different, I ask for the hearing by letter, and supply the fill in the blank notice of hearing, they fill it out and the court then sends it out to all parties.  Your County might be different you have to ask.

I think the JA is saying tell them in a letter that you are asking the court to hear your motions at the same time thier motion is to be heard.

There is some case law on faxing all motions etc to the opposition.

You need to get yours filed asap.

Remember next day delivery must be at the main post office no later than 8 pm to guarantee next day.
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