[rubyruby27]

Just an FYI. I have been anxiously awating to hear if the Judge approved my motions ie SJ,Preclude,compel discovery. In my county the Judge must review and approve all Pro se motions prior to setting court dates.

I talked to the JA today and they were all approved. They are setting the court dates as first available dates.

Not getting to excited but in my county this is a small victory. He could deny my motions at trial, but I did do something right to get a hearing date.


The compel discovery motion is only if I lose the MSJ and Preclude motions, that's how I wrote it up in the letter to request hearing dates.

Has anyone every had a SJ hearing, if so what happens in them, in this state they are non speaking motions, or perhaps I sould say no evidence will be presented. So why have a trial.

In the opposition to SJ, I have 2-5 days to read and prepare for thier motion. If this is an non speaking hearing what am I suppose to do with their motion.

Am I arguing their motion has no merit and my msj should be granted?

[roybean]

by SJ do you mean MSJ (motion for summary judgment)?

[rubyruby27]

Yes

[hannah]

Originally Posted by rubyruby27

In the opposition to SJ, I have 2-5 days to read and prepare for thier motion. If this is an non speaking hearing what am I suppose to do with their motion.

Am I arguing their motion has no merit and my msj should be granted?

In your brief, state why you object to their opposition of your MSJ. This is in opposition to their opposition, correct?

[roybean]

Then the answer is yes. A MSJ is stating why you should have judgement and they are as far out of line as they can be; straight and to the point. In your statement of facts you can do some arguing, but the actual msj states facts and points of law.
I don't know about state court, but in district/federal your msj must contain a set of well pleaded statements.

[roybean]

If it's an opp to their msj, Hannah is right. I didn't see that part.

[rubyruby27]

no my question is when we go to trial they present to me 2-5 days before the hearing there opposition what am I suppose to do at the hearing.

[hannah]

Originally Posted by rubyruby27

no my question is when we go to trial they present to me 2-5 days before the hearing there opposition what am I suppose to do at the hearing.

Did you get a copy of their motion in opposition to your MSJ? You should have gotten a copy. If you did, please post what they said, redacting personal info and let us tear it to pieces for you...

Also call the court clerk and ask if you will be allowed to speak in opposition of their opposition brief.

[rubyruby27]

rcp's says no speaking, but I have read appeals that indicate it is speaking just no additional evidence other than what was attached to your affidavit.

No, I haven't recieved their opposition papers yet, I won't until the last moment. I want to be prepared for anthing they might say.

I have a motion to preclude, if I am granted that they can't bring anything else in as evidence, and I have the case law and statutes to back up their card agreement, I should have motion to strike that but I didn't and not sure if I can now.

My motion was strictly on SoL. If I win that I win it all. They sent to me 3 weeks after the court ordered them to, any evidence they had. They found some acct statements a year and a half of statements if they are real. I filed a motion to preclude since they were 3 wks late providing them to me.

They do back up my SoL to a point, that according to those statments nothing was charged on this account since 2/02, if I lose the preclude it could work to my advantage.

They are just copies no OC logo or emblem or anything that says they are from the OC no affidivant they are from the OC. I can argue best evidence, parol evidence etc on those.

My affidavit simply stated, I had no open accounts since 01. I can't provide proof since it would require me to offer into evidence my CR.

So, if I understand what a msj is they can oppose my motion and bring in the breach of contract and unjust enrichment, what they are suing me for.

To win on their motion to oppose my msj they would have to provide proof my account was not in default in 01.

I get confused when I try to rationalize this out.

If my MSJ is just on SoL, which I can't prove other than my sworn affidavit, if they can't disprove my statement does that mean I win.

I understand a msj says there is no triable issues. If the acct is sol by my word and they can't provide evidence it is in statute then I win.

They are going to arguing 5 yr written in thier opposition motion, so the Judge is going to read the rcp's statues and case law and make a decision.

Anyway I am really starting to confuse myself, so how do I prepare for what they may do, any ideas.

[rubyruby27]

Hannah,

I wrote the MSJ, they will write opposition to msj, when I get that, do I write an opposition to the opposition. I don't think I do but I haven't found anything in the rcp's as to what I do due.

Where is Centex?

[rubyruby27]

Ok found out the answer in case anyone else needs to know.

When you recieve the opposition to the motion and you need additional time you ask for a continuance and then discovery to prove your case.

[centex]

I tend to stay out of discussions about non-Texas proceedings.

My guess, in this instance, is that the setting has as much to do with other motions that are pending that may include argument. Further, the fact that they set the date could be indicative of the fact that MSJ will NOT be granted. However, I don't practice in FL and have no idea what the RCP in that State provide for.

And it does not sound as though there is a trial date. It is not uncommon to have many settings in a matter before a matter goes to trial...the most I recall is 43 settings in a criminal case prior to a plea agreement having been reached that called for time served.

[hannah]

Centex, I am quite sure this is a motion hearing only and not the actual trial. I believe ruby may have the terminology wrong.

[centex]

Originally Posted by hannah

Centex, I am quite sure this is a motion hearing only and not the actual trial. I believe ruby may have the terminology wrong.

That was what I was trying to say

[rubyruby27]

Thanks I understood what you were saying.

Yea, I know he could be denying it just like he did on the MID.

The way I understood the JA if he was denying the MSJ outright, I would not get a trial date/motion hearing date.

But I am confused on this I thought it was a hearing on my MSJ not a hearing to hear a motion to see if they would set a trial.

Did that make sense?

[xYBDx]

You filed motions, the opposing atty may file oppoitions to those motions. The rules give him a time frame, so if his response is within the timeframe, its fine.

If he submit's an opposition to the MSJ.... which he must OR LOSE immediately... you would read it, allow us to review the argument he makes, and then formulate a response. He would likely make arguments that your points of law, fcts, and/or case cites were incorrect in application or otherwise not making the point you are trying to argue they make. In otherwords he will OPPOSE your MSJ.

You then write a "Memorandum in Response to the Plaintiff's Memorandum in Opposition to Defendants MSJ", shooting down all his opposing points and arguments used in his oppoition.

Its all a chess game, you move, he moves, you move.....but there is a CLOCK and a limit to the number of moves.

[rubyruby27]

xYBDx.

Your getting to understand how I write, that should be scary.

Thats what I wanted to know what I did with their opposition when I got it, since I will only have 1-2 days to respond.

In Florida they only have to mail 5 days before, which means I may not recieve it until the last day the way the mail is going. Or they can hand deliver not later tha 5pm 2 days before.

I type my memorandum in opposition to thiers and take it with me to court or file it that morning.

Guess, I need to hit the library and copy the whole section on this matter, not just what I needed to do to file the motion.

[rubyruby27]

I have a new problem I think, need help, Centex or any attorney for that matter anyone while I know you don't know Fl law any ideas about where to look or any guidance is appreciated.

The account statements that were sent to me indicates they may argue, the acct was cured at one point. Setting a new SoL date.

When I say cured I mean , the minimum payments/ pst due payments were brought current, not any late fees or interest but that months payment was late.

Late fees where charged every month even the month I made the past due amt in payments current.

Which means that the month I made those payments, that months payment was late since a late fee was charged. If a late fee was charged then the acct was never cured. Would that be a good argument.

The acct statements show that the account was closed by their statments, limit of 5G, available credit 0 and amt owed 2G.

Any info to say that all monies owed ie interest, late fees, past due payments cure the debt. Or just the past due amount on the payments cure.

Where in the statues would I find what cures a debt.

Thier card agreement says other fees

"If a requred payment is in default under this agreement a 29 late fee may be charged each month until all payments on the account are current".

By charging a late fee that month and the next month the acct was never brought out of default or cured.

Any thoughts.

I also found out this acct belonged to another OC that WF bought in good standing years ago and changed the acct number the year it went into default. That is why I had 2 acct numbers for this account , those from AoC may remember what I am talking about.

[centex]

Given that you indicate there is a date certain on the closure, it is essentially impossible for the account to have been brought "current" as you would never have had access to the account. Use common sense here in the argument- obviously the account was closed due to the default. There was no way to cure the default at that point short of an agreement to reopen the account (the Rule 5000 meeting of the minds). Absent such an agreement, the account was never current.

You may have caselaw in your State to that effect. The Business and Commerce Code or perhaps the Finance Code (or FL equivalent of both) should have some provisions that address the issue of default. You may also be able to bootstrap through the deficiency discussions associated with UCC and rights of redemption.

Additionally...you are also saved even if there is a one month gap with no fee. Their agreement states that the fee *MAY* be charged as opposed to *SHALL* be charged. The absence of the fee by itself does not demonstrate that the default was cured.