Memo in Opposition to Summary Judgement

Who told you that if you tried to pay on it or actually did pay on it that act would reset the statute of limitations? Where did you get that information? I say that such statements are incorrect, false and misleading. Am I right or am I wrong somehow? In order for me to be wrong there would have to be a clause in KS law which proves me wrong. Where in KS statutes does it say that promising to pay on a debt or paying on a debt will reset the statute of limitations in the state of Kansas?

Well it might be. But first of all have you sent a dispute letter by certified mail return receipt requested to the attorney within the 30 day period immediately following their initial contact with you or did you have such a request in your response to the court. If your response containing a demand for the validation of the debt was filed within the 30 day time limit after their initial contact with you then that counts too. So did you do one or the other within that crucial 30 day window after their initial contact with them?[/quote] I know that I must send an Opposition so any help is greatly appreciated. [/quote]An opposition to what? You can't file an opposition to their demand for discovery since they are legally allowed to engage in the discovery process but you can object to some of their demands if the civil rules of procedure allow you to do so.[/quote] It's for a little less than $3000[/quote]Oh! So that means that the case may have been filed in small claims courts and Kansas law may not allow discovery in small claims cases. Many states don't allow discovery in small claims courts. Now you have to know or find out whether your case is in small claims court and if so then whether or not discovery is allowed in Kansas small claims courts or not. Rules of civil procedure will tell you that as well. If your case is in small claims courts and discovery is not allowed in small claims courts then one of two things has happened.
(1.) The attorney has made a mistake or
(2.) The attorney knows that and counts on the possibility that either you or an attorney you might hire won't know that and will make the mistake of making a response to their demands without thinking. Knowing these things and much more can make a great deal of difference in whether you respond or not and how you respond.

So you want free legal help and counsel if you can possibly get it. Sorry but I'm not a lawyer and I'd be ashamed to admit it if I were. Therefore, I can't give you legal advice either for free or for pay. Even if I were an attorney I still couldn't give you legal advice because I don't live in Kansas or anywhere near it. The only advice I can give you is that if you don't seek some competent assistance your chances of winning are extremely small no matter what you do. I can also tell you that there are lots of other web sites on the net that will claim to be able to help you, for a price of course, but most of them are likely to feed you nothing but patriot mythology. I just paid $97 for an e-book written by a somewhat well known attorney. I've waded through the first 67 pages out of the 560 pages in the entire book and have found nothing of any real value so far and I have my doubts that I will find anything of real value in the remaining 493 pages. Attorneys are taught to think in relatively narrow boxes. There are very few Matlocks or Perry Masons or F. Lee Baileys out there and those who are of that caliber charge far more money than most people can afford. In order to win against seasoned attorneys you have to do a lot of homework or pay the price for someone who knows all the tricks.

 

Did you exactly follow the rules on form and service and time? Did you then follow the rules for compelling which probably include some requirement that you interact with the opposition to solve the problem before going to the judge. This interaction often must be either face to face or via telephone and *not* the post office. Check your court's rules. It does little good to follow the wrong rules if they differ from those you'll be held account to.

But they have, have they not, provided you with some sort of statement of account they made up and an affidavit insisting under oath that everything is kosher? Without a defendant's affidavit (also under oath and notarized) saying that there are some issues that can't be decided by summary judgment, she will be just hoping that the judge sua sponte finds some. If what she submits raises material issues of fact, such as that they don't have a valid assignment, say, this should allow her to survive summary judgment or would be something she could at least try to use for an appeal. Of course the real question becomes what happens if the defendant wins at the summary judgment hearing? It doesn't mean that it's over, it means that they will likely set the case for trial, if they haven't already done so. If a valid contract is admitted, it would almost certainly insist that the loser pay reasonable attorney's fees. What is "reasonable" goes up as the case becomes more complicated and moves forward.

Tried to pay or really did pay? You should check your state's laws and see exactly what the rules are. Dumb Bob doesn't know other than he suspects that you are supposed to plead affirmative defenses such as statute of limitation. Did you plead it?

Is this under oath in the form of an affidavit? They have written testimony, in the form of their affidavit(s). What do you have? They also have their summary judgment motion which makes legal arguments using the law, the documents they filed and their written testimony. Most defendants in these sorts of cases don't seem to bother to produce any reciprocal response. Most who didn't get a default against them, lose at summary judgment, which certainly saves worrying about even higher attorney's fees.

 

Losing either way is certainly true in most cases almost regardless of what you do but does that save worrying about even higher attorney's fees? Sadly it don't in most cases. Why is it that it is almost impossible to get any accounting of money lost to garnishment? Why is it that in many cases the garnishment never seems to go away even though the defendant thinks and can even prove that the full amount of the judgment has been paid? The reason is the post judgment attorney fees charged by most lawyers. They charge about $400 to the plaintiff to file the case plus court costs then often up that by a bundle in the actual pleadings. Then once the garnishment is in place the court pays the attorney the proceeds and that attorney deducts 25% of what is collected as their fee and forwards the remainder to the plaintiff even if the plaintiff was actually the lawfirm itself and then the poor defendant is credited with the remainder. Meanwhile interest on the unpaid balance keeps mounting. Some attorneys are that money hungry and others are not but the garnishment is going to cost extra money which isn't included in the original judgment in most cases. So are you going to save money by less fighting and argument? Not likely. And if you go at it right they can add all the fees and charges they want but in the final analysis they will get nothing at all.

 

How high can attorney's fees go? You wouldn't want somehow to have a $30,000 bill for attorney's fees on a $3,000 underlying alleged debt. Normally that wouldn't be considered "reasonable", but what happens if you fight through summary judgment, a trial, appeals, etc.?

Dumb Bob isn't giving advice, Dumb Bob is just discussing the wider issues hopefully in ways that aren't usually discussed. This is intended to give people more information so they can use all the information they have to make better choices. Dumb Bob isn't saying not to fight to the Supreme Court and he's not saying to fight that far. He's not telling anyone what to do or not to do.

This clearly isn't true if you've got money in your bank accounts or have a job that they can garnish wages from.

If you are going to lose, at least lose well. Try to keep the contract out of evidence so there is no basis (you hope) for attorney's fees. Try to stop them from taking incredible interest rates pre and especially post judgment. Find out what the rules of assignment are in your state, attacking the validity of the supposed assignment.

 

Now why would anyone want to do all of that? Don't make no sense to me.

If someone gets sued and lose and have money in the bank they ought to know better than to leave any money in any bank. Maybe $5 or $10 just to keep the account open. They ought to know enough to realize that their bank accounts can be garnished and stop any wages or pay going to that bank account and get paper checks instead.

And just how would one go about doing that?

Post judgment interest rates are set by state law so how are you going to stop interest rates on either end of the judgment?

Great idea! But what has that to do with whether you owe the debt or not which is the only question before the court? Judges are pretty good at recognizing stall tactics and ignoring or overruling them.

 

Someone might believe that her arguments are correct and that she wishes to throw it all at the wall and see. Alternatively, perhaps she feels there's little other choice. But whatever choices she makes, she should have as much information about her potential liabilities as possible.

If garnishing the bank doesn't work, garnishing the employer (where legal) is next.

The rules depend on the state. Some states allow post judgment interest at the contact rate. If you are sued in such a state, it would seem better to end with the state rate than the sort of rates that are currently being demanded on defaults.

It shouldn't matter if you owe a debt to someone, to get standing the plaintiff should have to show that you owe the plaintiff money. The rules for seriously putting this question into play vary since the default bar is often not very high, a simple assertion under oath being about enough in many cases. If Dumb Bob sued you for $100,000 would you roll over and pay or would you dispute his claims even if you knew you owed someone else $100,000?

 

Quite so! But with somewhere between 20 to 30 million Ameicans out of work and that number growing every week plus the even greater number who work for themselves in some way or another plus the ever growing number of those drawing pensions the number left working where wages can be garnished gets smaller and smaller every day so what can they do if they can't find a bank account nor an employer they can garnish?

Yes, but the judgment debtor can't set the rules.

What the rules shoud be and reality are usually two different things. Phony affidavits often attested to and signed under penalty of perjury are often accepted by the courts even though an attorney cannot voluntarily testify in cases where s/he is representing the plaintiff. Lawyers can be called to testify by the defendant although it isn't done very often. I ran into a federal case yesterday where the pro se plaintiff may very well want to call upon the defendant's lawyer to testify. This one gets pretty funny because the defendant's lawyer not only stuck his foot in his mouth but his whole leg as well. In that case the plaintiff got a big default judgment against a bank who then started crying to the court that they had been improperly served. The case was handed off to a magistrate judge who granted the bank's motion to vacate but failed to notify either party that they had the right to refuse permission to let the magistrate judge hear the case. Both federal law and FRCP say that at the time a magistrate judge is appointed the parties must be notified in writing of their right to object and must be notified again at the start of the hearing by magistrate judges. Local rules contradict that and say that its up to the presiding judge whether the parties are notified or not. Obviously somebody has goofed because local rules cannot contradict either federal statute law or FRCP. The plaintiff found out about the failure of the court and motioned for a stay until the issue can be resolved. If the ruling comes down in favor of the plaintiff that would return the case to the status of default judgment against the defendant. Yet the defendant's lawyer put in an objection to the the plaintiff's motion to stay and in his objection he stated that he had never received such notice of right to object to the magistrate judge and would never have agreed to hearing before magistrate judge had he been notified that he had the right to object. The Plaintiff immediately filed a memorandum in support of his motion showing that obviously both parties are in agreement and neither party wants a magistrate judge therefore the plaintiff's motion to stay should be granted as a matter of law. Where will that lawyer go next? Of course, if the stay is granted the defendant can be expected to argue that they were improperly served all over again and claim that the magistrate judge had no right to order them to accept service of summons either and I expect that is exactly what will happen. This is the plaintiff's 3rd federal case. He won a case against a debt collector and their lawyer a few months ago and just yesterday won a case in which he was helping his aged and partly senile father in federal court. The defendant agreed to forget about collecting on an $8k debt and remove the listing from the credit bureaus plus agree not to respond to a defendant's motion to vacate judgment against the father in the event he should decide to file motion to vacate the lower court judgment. I think that's a stunning win. I seriously doubt that this pro se litigant will lose his latest case either, especially after the defendant's lawyer goofed this latest round by stating in his objection to plaintiffs motion to stay that he agreed with the plaintiff.

Another funny situation developed after yesterday's hearing. The parties were out in the hall after the hearing discussing the settlement and one of the lawyers commented that he knew exactly who the son is. He said that the son was very famous on the internet and had a lot of web sites exposing debt collectors and collection attorneys. That isn't true according to the son who replied that he don't have even one such website up and has no idea what the attorney was talking about. I don't have a clue as to who the attorney was talking about either and I wouldn't admit it if I did. (LOL).

That's a bit confusing but I think I understand what you intended. Of course I would dispute your claim but I would do so fully expecting that you would win in local court but the only reason I would dispute if I really owed the money is so I could catch you violating the law and haul you into federal court where I would have a chance to get back at you. I'd most likely already have taken that someone else to federal court and you would be next in line and if you aren't an attorney I'd also be working on your attorney's trip to federal court. Truth of the matter these days is that attorneys are far more likely to commit violations than debt collectors are. The debt collectors seem to be doing a much better job of compliance than attorneys are but both seem to be slowly improving in their efforts to comply. I'm betting that it won't be long before it will be rare indeed for either of them to make a mistake. The next target has to be the courts themselves. As more and more get hauled into federal courts by pro se litigants and consumer protection attorneys the bar gets raised higher and higher and the debtor's road to victory will get much harder. Given another 5 years or so I doubt that a debtor will stand a chinaman's chance of getting out of paying what is owed.

Thanks for your comments Bob.