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Author Topic: Hearing for MSJ...... Beating the Deadline!  (Read 28147 times)
fraudfighter
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« Reply #15 on: August 28, 2006, 01:10:52 PM »

Quote from: "SaltCreek"
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



Don't worry about preparing a Final Judgment order at this time.
Just focus on getting the opposition affidavit done and timely mailed.
You can address a Final judgment order after the judge renders a decision on the merits.
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fraudfighter
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« Reply #16 on: August 28, 2006, 01:16:45 PM »

Quote from: "rubyruby27"
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.


The extra 5 days applies to SC's plaintiff's MSJ.
If SC's plaintiff served him the MSJ by mail, then 5 days are added to the time between service and hearing.
If SC sees that there are less than 25 days between the postmark on the envelope on the plaintiff's MSJ mailing and the MSJ hearing, he can move for a rescheduling of the MSJ hearing in his opposition to the MSJ due to a violation of the service by mail time rules given that service that mail occured which added 5 days to the 20 days already required by Rule 1.510.

There is no additional 5 day penalty on serving opposition.
The 5 day service by mail time rule is the 5 day service by mail opposition time of Rule 1.510.
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fraudfighter
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« Reply #17 on: August 28, 2006, 01:19:01 PM »

Also, to move for continuance due to incomplete discovery, it must be supported by a sworn affidavit stating that the discovery is relevant to the defendant's case and stating the reasons why it's relevant such as providing the proof from the OC that the alleged debt is somebody else's.
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fraudfighter
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« Reply #18 on: August 28, 2006, 01:23:46 PM »

Quote from: "rubyruby27"
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.


The non-movant has the advantages in SJ. The movant does not get 20 days to prepare a reply to the opposition.
You can ask for a continuance to add supplemental evidence and to do additional discovery based on their opposition, since the MSJ movant has to prove conclusively that no genuine material factual issue exists for trial and that only law issues remain which the trier of fact can decide.
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fraudfighter
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« Reply #19 on: August 28, 2006, 01:34:15 PM »

Quote from: "SaltCreek"
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


You can always use your bank records to show you never made payments to any such creditor and on any such account. So you definitely never had such account.

You should be able to contact the OC's recovery department and get the account holder's name. Do it.

They can't get SJ if you swear on the record of the court that an account that was never yours was never yours. That blows the "conclusive" requirement and the lack of a "slightest doubt" requirement that they are required under FL law to meet to obtain SJ.

Or if the account was yours, any lack of conclusive proof as to the chain of assignment of that specific account number, any lack of conclusive proof as to the issue of limitations, or the issue of your liability precludes summary judgment as to your liability.

Any affidavit of theirs not from personal knowledge can't be used for SJ. Point out every affidavit of theirs not from an OC record custodian as barred by law and rule 1.510 from consideration for SJ.

That would strip them of evidence for SJ and deny them SJ.
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rubyruby27
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« Reply #20 on: August 28, 2006, 04:44:58 PM »

Next question

I told you they sent me the account statements from 02/02-08/03 3 weeks late, this is what I filed the motion to preclude for.

Taking me awhile to figure this out, but those account statements may actually prove my case.

On the first one 2/02 it says credit limit 5,000 amt owed 2,000 available balance "0".  This shows the account was closed 2/02 minimum. I am saying it was closed in mid 01.  I can't show proof but it was closed 8/01.  Now that I know the account numbers changed in 01.

Should I file a motion to withdraw the motion to compel.

If I do then am I admitting the acct is mine and they go for 5 yrs written.

Also, I can't find this info but I read it at the begining of this ordeal.  Accounts are not current unless all the late fees, interest  and back payments are brought current.

Does anyone have any idea where I might have read this so I can research some more.
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rubyruby27
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« Reply #21 on: August 28, 2006, 04:46:05 PM »

Next question

I told you they sent me the account statements from 02/02-08/03 3 weeks late, this is what I filed the motion to preclude for.

Taking me awhile to figure this out, but those account statements may actually prove my case.

On the first one 2/02 it says credit limit 5,000 amt owed 2,000 available balance "0".  This shows the account was closed 2/02 minimum. I am saying it was closed in mid 01.  I can't show proof but it was closed 8/01.  Now that I know the account numbers changed in 01.

Should I file a motion to withdraw the motion to compel.

If I do then am I admitting the acct is mine and they go for 5 yrs written.

Also, I can't find this info but I read it at the begining of this ordeal.  Accounts are not current unless all the late fees, interest  and back payments are brought current.

Does anyone have any idea where I might have read this so I can research some more.
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fraudfighter
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« Reply #22 on: August 28, 2006, 06:12:28 PM »

Quote from: "rubyruby27"
Next question

I told you they sent me the account statements from 02/02-08/03 3 weeks late, this is what I filed the motion to preclude for.

Taking me awhile to figure this out, but those account statements may actually prove my case.

On the first one 2/02 it says credit limit 5,000 amt owed 2,000 available balance "0".  This shows the account was closed 2/02 minimum. I am saying it was closed in mid 01.  I can't show proof but it was closed 8/01.  Now that I know the account numbers changed in 01.

Should I file a motion to withdraw the motion to compel.

If I do then am I admitting the acct is mine and they go for 5 yrs written.

Also, I can't find this info but I read it at the begining of this ordeal.  Accounts are not current unless all the late fees, interest  and back payments are brought current.

Does anyone have any idea where I might have read this so I can research some more.


It's not when the account was closed. It's when the delinquency commenced, which would precede the account being closed by several months. However, any evidence of the commencement of the delinquency greater than 4 years on an oral contract nature of claim is conclusive to the expiration of the 4 year limitations period, with the no tolling provision factor of the law. Point out that the no tolling provision issue would be an issue for the legislature rather than the courts.

Your objective is to show conclusively that the limitations period has expired. It's as simple as that. You want to do it with their pleadings and exhibits. You can move for SJ on the 4 year SoL nature of claim, and the 2/02 date clearly showing the account was delinquent if the complaint was filed at least 4 years and one day after the date stated on that 2/02 statement. All you need is four years and one day and an oral contract nature of claim. You don't need anymore evidence, so you don't need to compel anything more from them.

So they've given you an exhibit that allows you to move for SJ using their exhibits and thus you have no need to use any potential evidence of your liability.

You simply point out that the plaintiff's pleadings and exhibits show conclusively that the limitations period applicable according to the nature of the plaintiff's claim has expired and thus you are entitled to summary judgment as a matter of law.

See, it's easy. You never admit to anything. You just use their pleadings and exhibits against them to prove your case. They gave you the rope to hang them with. So use it and hang them.
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fraudfighter
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« Reply #23 on: August 28, 2006, 06:20:31 PM »

Here's an example MSJ written by a FL lawyer. It gives you an example of the style to construct SJ arguments using only the PLTF's pleadings and exhibits against them to show conclusively that the DEFT is entitled to SJ, without any admittance of DEFT liability.




Defendant moves for summary judgment on the grounds that the pleadings and papers filed in this action show that defendant is entitled to judgment as a matter of law, as Plaintiff failed timely to file its claims within the applicable limitations period.

MEMORANDUM OF LAW IN SUPPORT OF DEFENTANTS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT.

It is undisputed that the cause of action in this case accrued, and therefore the limitations period started to run, in 01/01, yet this action was not filed until 03/05 more than four years later. (See penultimate page of plaintiff’s motion for summary judgment and memorandum of law)

Section 95.11(2)(b) of the Florida statutes provides, in relevant part, for a five-year limitations period for filing an “action on a contract, obligation, or liability founded on a written instrument.” However, Section 95.11(3)(k) provides, in relevant part, for a four-year limitations period for filing an “action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, ware, and merchandise, and on store accounts.”

The Complaint alleges three Counts. Count One, styled “Breach of Contract,” alleges breach of “a written agreement between the parties.” Count Two is styled “Account Stated.” Count Three is styled “Quantum Meruit.”

Section 95.11(3)(k)’s four-year limitations period obviously applies to counts Two and Three, and so those Counts are time-barred.(1(on bottom of page)) However, in the memorandum filed in support of its motion for summary judgment, plaintiff argues that Section 95.11(2)(b)’s five-year period applies to Count One. That argument requires the assumption that the “Cardmember Agreement” that was attached as an exhibit to plaintiffs motion and Memorandum constitutes a “written instrument” under Section 95(2)(b). However that “Cardmember Agreement” (an inexplicable different version of which was attached to the Complaint) was not executed by the defendant or anyone acting on her behalf and so is not a legal “written instrument” on which an action can be “founded.” thus Count One is governed by Section 95.11(3)(k)’s four-year limitations period and is time-barred.

If, arguendo, one or the other unsigned “Cardmember Agreement” pamphlets were to be deemed to be a binding contractual document under which the plaintiff could bring an action, then neither Section 95.11(2)(b)’s five-year period nor Section 95.11(3)(k)’s four-year limitations period would govern. That is because both versions of the “Cardmember Agreement” expressly provide that the Agreement will be governed by the laws of the State of Delaware, and the applicable limitations period under Delaware law is only Three years. Title 10, Section 8106 of the Delaware Code provides, in relevant part, that:

----------------------------------------
See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P.2d 1120 (Mont. 1993) (“account stated” claim is not one “founded upon a written instrument.”)
----------------------------------------

No action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations . . . Shall be brought after the expiration of 3 years from the accruing of the cause of such action.

In Delaware law, “this language has consistently been applied to actions alleging a breach of contract with the exception of those under seal.” Consolidated Rail corporation v Liberty Mutual Insurance Company 2002 WL 32080503 (Del. Super.) at *4. In the instant case, there is no evidence of a formally executed contract “under seal” the requirements for which are strictly enforced under Delaware law, Id. at *4-*5. Rather, the instant action appears to be more akin to one “based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations.” Title 10 (double s sign) 8106, DEL.CODE, supra. Thus under Delaware law all three Counts of the instant Complaint would be time-barred. Defendant is therefore entitled to summary judgment as a matter of law.
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fraudfighter
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« Reply #24 on: August 28, 2006, 06:24:41 PM »

An account statement that grants no available credit charging privilege when then is a large discrepancy between credit limit and account balance is an account closed to charging privilege. So, it's not an account in good standing, which means it's defaulted. Being defaulted is the same thing as delinquent.
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fraudfighter
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« Reply #25 on: August 28, 2006, 06:40:06 PM »

Unless they alleged an account stated CoA.

that might complicate things with statements rendered later than 2/02.
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fraudfighter
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« Reply #26 on: August 28, 2006, 06:42:28 PM »

Quote from: "rubyruby27"
Next question

I told you they sent me the account statements from 02/02-08/03 3 weeks late, this is what I filed the motion to preclude for.

Taking me awhile to figure this out, but those account statements may actually prove my case.

On the first one 2/02 it says credit limit 5,000 amt owed 2,000 available balance "0".  This shows the account was closed 2/02 minimum. I am saying it was closed in mid 01.  I can't show proof but it was closed 8/01.  Now that I know the account numbers changed in 01.

Should I file a motion to withdraw the motion to compel.

If I do then am I admitting the acct is mine and they go for 5 yrs written.

Also, I can't find this info but I read it at the begining of this ordeal.  Accounts are not current unless all the late fees, interest  and back payments are brought current.

Does anyone have any idea where I might have read this so I can research some more.


They should post on the statement the past due amount required to be paid to cure the default. Did they?
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rubyruby27
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« Reply #27 on: August 28, 2006, 08:22:34 PM »

Yes, they did and at times the account was cured according to these statements but there was always a late fee.

When I say cured the past due amount was paid,  but not the entire amount that was past due.

Next post shows ex of what I am saying


That's why I wanted to read the laws I read months ago that an account is not cured unless all late fees, interest and payment are current.

I did find a couple of errors in the billing statements on a couple of the statements the late fee is 39 v 29 on the majority of them. I don't know why.

For a yr and half a late fee was charged every month.

Here is what I do know the acct that belong to another OC was bought by WF in 97 this account # was changed in 01.  I paid a large sum on this account 12/00 2500 leaving a balance of 500 on it.

I don't have many more records I can only assume I used this card shortly after 12/00 sometime in early 01, what I found on my CR in 03 it stated in 8/01 the amount owed on this acct was 1400 and closed for non payment by 120 days.

The default occured in 4/01.

This account from what I can see never went below the 1400 mark when it went into default, it only increased.  How can you cure an account if it never went positive?
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rubyruby27
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« Reply #28 on: August 28, 2006, 09:24:04 PM »

billing statements, according to this I cured in 6/02, by making up the missed payments only, not by paying the late fees.

So what they did was never figure in the late fee or interest on the over due amount.  That only effected my balance, not what was in default.

No matter what I paid I always paid late since there is a late fee each month of 29.

If this means the debt was cured then I am in trouble and I need to find the law/rule or whatever it was that said all late fees. interest and payments must be cured for the debt to be cured.

I think that is in some banking rule since this was a bank card.

Do you know off the cuff the florida law on curing a debt.  Is it all of the amount in default, interest, late fees, payments or just payments.

Thinking I need to get these statements precluded for being late.
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SaltCreek
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« Reply #29 on: August 29, 2006, 12:09:38 AM »

FraudF...Ruby:
Well, I could not wait any longer.... had to take work off to get it done.... just like you'd expect..... I was panting like a dog :shock:  final edit, copy machine run, notary, fuel, court, post office..... wheeew!!!

Heck, it's a blur. I hope everything is somewhat right and pleasing to el honorable judge... filed/served: Opp MSJ, My Opp MSJ w/sworn Affi, My MSJ,
Strike Plntiff Affi, Strike Plntiff CCHA/Bogus Table,  Notice of Hearing on the same day as MSJ hearing per JA It included wanting to be heard on basically the above. Hopefully the judge cuts the time for it.  I looked in my file at the chouse. Alligator only has filed the original complaint... my general answer, request for production, good faith letter, oooops!! my out of sequence MTD, MTCD were all in there with todays stuff on its way.

(MY  MSJ was the ?, never really done one before and in a rush no less... basically hit-discovery non-compliance. paper as evidence and inadmissible at that, my sworn affidavit authority, no competent evidence, addressed a little contract law needing account stated to proof liability in general, a few other tidbits then laid in some assorted case precedents and ended with the same Mob + Con sword right back at you thing) Used Rubys as a basis to get the flavor despite a SOL attack.... we'll see   :oops:
Did the best I could under the circumstances and the clock was out, filed and served today a must esp with that holiday sitting there... but it's executed. Thanx.

Looks like there attack rest soley on a Mob and Con relevancy and their Affi..........

I will dig through all my notes received from "you two" after I get one nights rest before preparation for the big show......  I certainly would appreciate any advice on what to expect in the hearing (tactics, do's/don'ts, my defense against the obvious Mob+Con arguments forthcoming). You might want to use the ole EMAIL thing if you don't mind..... no :evil:  "war room" :twisted: disclosures in public.

Well if this works out favorably, we at least have a few more documents to post from this case that might help some other folks out. Talk with you later, I'm going to bed and "dream of litigation"........    :wink:
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