I filed a small clms lawsuit against MBNA over a year ago for bad reporting and lack of pp on 2 closed accounts that were included in a bk almost 3 years ago. (5 violations of the FCRA for 2 separate accounts). They have stalled and used every trick in the book to drag this thing out for over a year. Today I received a motion for Summary Judgement. Basically it says that I have no right to bring a suit based on 1 of the alleged violations and the other 4 they deny summarily. My question is this - If the judge grants a summary judgement in this case, what does that mean? Does it mean that MBNA now has a judgement against me? OR Does it mean that they are asking the judge to rule on all 5 alleged FCRA violations at once based on their rationale/reasoning in the request? If the judge does this, is this case over? Legal minds, please help me! Once again, I am in over my head and sick of this fight!
what does that mean? Does it mean that MBNA now has a judgement against me? LisaMc =============== Watch for it to wind up on your credit reports. The END ************************* LB 59
Part of the answer is whether or not they are askig for a monetary award in their motion or are they just asking for a declatory judgment. If all they are asking for is a declatory judgment then the most danger you are in is that the judge will grant their motion and your case(s) are over. If they are asking for a monetary award then yes, it could end up on your credit report. How you would best approach the matter would depend on some extent at least to the answers to what kind of a judgment it is, purely declarative or otherwise.
They are seeking basically that they be excused/dismissed from the lawsuit based on the answers they gave in response to each allegation. They are saying "The plaintiff has no case against us based on these reasons". If you do not have an attorney...which you should, the court will consider their motion based on the facts of the case and their reasons. If there is no opposition from the plaintiff (you) they will probably get it. You could always file an appeal of the courts decision but if you have evidence/proof you better submit it now to keep the case alive. Your best bet is to talk to your attorney or legal aid and find out what your next step is to stop them from being granted summary judgment and allowing the suit to proceed. You may be looking at having to pay their attorney fees and court costs if you do nothing at this point.
Bill and I must have been answering this post at the same time...so don't take anything I wrote as an opposition to anything Bill said and excuse the redundancy in my post in comparison to his...he must have hit the submit button right before I did.....lol
Call the Court Clerk and ask if a specific form is needed or, can you just file a Motion for Opposition to Summary Judgment. You basically challenge each allegation they've made. If the judge finds just a smidgen of logic in your argument they'll give you a trial. Doing nothing will likely allow MBNA to carry the day. If they asked for no monetary award in the msj then, you should have no liability.
Re: Re: Summary Judgement? What is this? 2 questions 1. Doesn't their Motion for summary judgement stand on its own? Is a response required or even adviseable? 2. "They will probably get it" I would think this would only be true if their Motion and evidence presented so far had proved their position. I don't believe a Judge would normally grant this kind of Motion especially in a Pro Se case where the Plaintiff is given more leeway. Of course legal advice is extremely advisable and I believe you could find some one to look over the case and give a legal opinion for very little cost.
Re: Re: Re: Summary Judgement? What is this? I'm thinking it would stand on it's own and would be something the judge would decide on based on the answers by the defendant. Whether it's advisable or even possible for the plaintiff to have any input in the matter I really don't know. States have different laws and what might be common in my neck of the woods may not be common elsewhere. That is why I suggested speaking to an attorney or legal aid. I have only been involved in a few court cases through work so I can only say that anytime motions for summary judgment were filed the answers to each complaint were not frivolous and basically pointed out the plaintiff did not have a leg to stand on. I can't answer for every case out there...I can only go by what I have seen for myself. I wouldn't know....but I do know if it were me in this situation I would'nt want to bank on it. DITTO!
Summary Judgement? What is this? If they are asking for a monetary award then yes, it could end up on your credit report. bbauer ========== Double sucks don't it? .
Re: Re: Summary Judgement? What is this? Maybe, maybe not. It seems to me that it is possible that the poster has not yet had access to a copy of the motion as of yet. Since I don't even know what state the case is in, much less what the RCP is for that state and I don't know whether or not he demanded discovery or even whether or not he could under the RCP for his jurisdiction its impossible for me to know many of the real factors in the case. If he has opportunity to motion for discovery and it is not too late to do so he may very well do that and in discovery see if he might not get them to admit their violations if there are indeed any. As has been suggested, he needs some help from someone with actual legal experience in his jurisdiction to help him. He could have several possible answers but we don't have enough information to go on. So in my opinion it may very well be much too soon to decide whether your thought might be true or not.
Re: Re: Summary Judgement? What is this? This is generic information about summary judgment. It may or may not apply to you, There is no substitute for advice from a licensed attorney in your state. Summary judgment is granted when the court decides on the basis of declarations (affidavits) and other documents that have to be admissible under the rules of evidence that there are no issues deserving of a trial. Yes, you should opposed the motion. You should not asume that the court will protect your interests and deny the motion even if it is defective. You need an attorney to make sure that you prepare the response properly. Besides state statutes and cases, many courts have local rules about how the motion and opposition need to be submitted. Frequently, courts will want to see a memorandum of legal authorities that explains by citation to cases and statutes why you should prevail. In opposition, you need to raise what is called a "triable issue of fact." This means that you need to present legally competent evidence that there was at least one violation. The judge does not decide who is telling the truth. All you have to do is produce enough evidence to show that there is a genuine issue of fact to be decided at a trial. Credibility of witnesses and the weight to be given evidence is determined at trial--not on a motion for summary judgment. If you lose the motion, you may have a judgment entered against you for costs. I don't know about attorney's fees. In some states, attorneys are not allowed to appear in small claims. I'm also surprised that any state uses a summary judgment procedure in small claims court. What state are you in?
Re: Re: Summary Judgement? What is this? Some facts that I should have stated in my original post: -THis case is in Texas. -I have always been pro se. I have never had an attorney. -This case was brought for 5 violations of the FCRA--1. No permissible purpose in obtaining a credit rep (Sec 604). The accts had been closed for well over 2 years. 2. MBNA had been alerted to inaccurate reporting on these 2 accts on separate occasions prior to the lawsuit. (Sec 623 for account 1, Sec 623 for acct 2) 3. The 2 accounts were never marked as "in dispute." (Sec 623 for acct. 1, Sec 623 for acct 2) I do have a copy of the Motion. They are not seeking a monetary award. What the petition does ask is this..."to grant this motion for summary judgment and sign a final summary judgment in this case and that the court grant such other relief which may be appropriate." Here is the basic request in the motion for summary judgement: 1. They say that I can not seek relieft under section 623 because the provision creates a duty of the furnisher of info only to the CRA NOT to an invidividual (namely me). 2. They maintain they did have a permissible purpose, but because they removed the inquiry after the lawsuit was filed, no actual harm was done. 3. Re not marking the accts as "in dispute" - The provisions of the act may only be enforced by designated federal agencies and officials NOT individuals. Because I am not the State of Texas or a Federal Agency, I have no standing to bring suit under section 623. 4. They say I should have sued Experian under Sec 608 for lack of PP, not MBNA. 5. Bottom line, I as a consumer, do not have standing to sue MBNA under sec 608 or 623. I know this is all crap; however, it is probably going to take an attorney to sort it all out. Because this has already been deleted from 2 of the 3 bureaus, I don't think it is worth it anymore. I have been drug through the mud on this deal. 1.
Re: Re: Summary Judgement? What is this? One more thing... Yes, Texas does allow attorneys in small claims. Why MBNA would go to this extent--a year's worth of legal expense--I have no idea. They could have deleted the entry a year ago and this would have all gone away.
Re: Re: Summary Judgement? What is this? Yes, that is exactly correct. That is because most of us here are not attorneys and most of us here know full well that giving explicit legal advice on this or any other message board is an extremely dangerous and ill advised thing to do for many reasons. I have seen many people who are practicing attorneys on various message boards talking about different things and they won't normally give out any thing other than generic information either and then give the best advice of all which you did as well and that is to go see an attorney who practices in their jurisdiction. Giving out anything more than a few hints where people might go or what they might look for in trying to figure out what to do about their legal problems has to be a very dangerous venture when we see such examples as the state of Texas trying to haul Nolo.com into their courts and punish them for selling legal forms on the internet and we have known of cases where people were extradited to Texas and other states and made to stand trial for giving out legal advice. New York is apparently going to try to exceed even that by a long ways. If they are successful they will put boards like this and all others on "underground" status and few if any will ever get any help with their problems. It will indeed be interesting to see where they go with that one. Seems to me that if they really want to keep New York residents from getting information they ought to make it a crime or a misdemeanor or whatever for any New York resident to seek such information instead of trying to abuse the free speech rights of the entire world.
Re: Re: Summary Judgement? What is this? Bump Anyone have any additional advice with the additional details I provided above? I would appreciate it very much! Lisa
Re: Re: Summary Judgement? What is this? I am not sure that an accurate answer is readily available since one cannot know how their corporate minds see the situation. Maybe they just have the idea that they need to fight to the bitter end no matter what since if they are perceived as being real bulldogs as a deterrant to future lawsuits. Anyway, win lose or draw they can take it off their taxes as a business expense.
Re: Re: Summary Judgement? What is this? At this point, I am concerned about them coming after me if I drop this suit. Would they have had to ask for their attorney's fees back in the motion for summary judgement? Could they refile another lawsuit after this one attempting to recoup their expenses?
Re: Re: Summary Judgement? What is this? If you really want to drop the suit call the lawyer for MBNA and ask for a letter stating in return for you dropping your suit that each side will bear the cost of the legal fees and court cost. Pretty routine language in settlements.
Re: Re: Summary Judgement? What is this? I have one more question that may be obvious to everyone except me.... If I drop my suit, and specify that each side bears their own legal fees, can they refile another suit alleging any wrongdoing related to this matter on my part?
Re: Re: Summary Judgement? What is this? No Lisa. The only claim they could make would be for legal fees . If they're going for more, you can bet they won't accept a settlement offer. ANd, they only way that could happen would be to prove some sort of fraud on your part.
