Alright, here's another example of reviewing a typical lawsuit, unsecured credit type lawsuit. This one is at the summary judgement stage, which is quite unusual. I'm going to switch over real quick and show you.
So, I actually was, I've been talking with the person who's involved with this, so I have a little bit more detail than I normally do. But let me just switch.
Switch over here real quick, and I'll show you.
So what we're looking at is a letter.
It was a notice from the attorneys, and they want to set up a hearing.
And the hearing is on, they're asking the court for a judgement, OK. It's called a summary judgement.
Now, I'll explain briefly what that means.
Normally, when you start a case, the person responds, and then maybe some questions and answers go back and forth. It's called discovery.
And then if it looks like there's no need for a trial, either party can ask the court for summary judgement.
That just means that there is no need to go to trial, because we kinda worked it out. Or it looks like, there's no way that I can lose, right? That's kinda how it works. Sometimes the attorneys do it early, technically.
In this example I'm showing you You can do it at the time they did it.
So but as it turns out from what I understand, this person was served processed by the plaintiff. OK, Wilmington.
Then he filed a motion to dismiss, and this motion is a lot, like what I showed you my last video, when on these types of cases, recently, I did, I think I did 1 about 3 weeks ago.
And then instead of dealing with the motion to dismiss, the attorneys just filed a motion for summary judgement, apparently.
Because the interesting thing is, they never sent it to the defendant.
So that's a no-no. You'll lose your motion if you do that. So the attorneys just kinda screwed up by that at that point among other things you're gonna I'm going to show you here So this is a completely different case than when I showed you the other day. I wanted to illustrate more about the summary judgement. So in order to get summary judgement on a case without going to trial stops if we're going to trial, you have to have 1 of 2 criteria to be true or both.
But 1 of 2, the first one is that, you could win on the fact that there are, there's nothing worth talking about, meaning that, well, the technical phrases, that you're entitled to the judgement because there are no genuine issues of material fact and dispute, OK, if all the facts that show the case, meaning that the plaintiff should win, or the moving parties, should win, if all the facts show that that person should win, no matter what. Well then there are no genuine issues of material fact that are still in dispute.
No important facts. So on that ground alone, you can win on summary judgement if you just ask the court.
The other ground can be if you're entitled, as a matter of law, if you're entitled to the judgement as a matter of law.
And this is what I'm going to show you here where it just turns out that the plaintiff in this case, even though the plaintiff screwed up and didn't send the actual copy of the motion to the defendant, even if he did do that, he's still going to lose the case. There's no way the bank can win here.
And I'll explain why, because the, the motion it filed is precluded by the fact that the plaintiff is not entitled to the judgement as a matter of law.
And the issues of the issues of fact are irrelevant because it's jurisdictional, and I'll explain what I mean by that. So, normally a motion for summary judgement is filed later on in the case, but these guys, I don't think they're even reading the file.
I just think they aren't even paying attention, but anyways.
Um, they would have not prevailed anyways at this point.
Now that doesn't mean that the judge cannot deny their motion And then we can do some discovery and then maybe later they can ask again from a summary judgement, all right. But that remains to be seen. That's never going to happen.
Just to let you know the punchline is the ending of the story is that the defendants are gonna win this case. We haven't gotten the order yet, but he'll win.
And here's why. So, there's a notice here, OK, it's a letter, and this is the attorney. This is interesting.
This is the attorney, Sean ..., he's the one that actually sent a letter to this person responding to the request for Validation.
So that gives me an idea that, especially when you have this type of named party Wilmington Savings Fund Society Trustee for Upgrade, V V N, V A V F N Trust.
That tells me that the attorney, or his law firm probably owns the debt, if there is even a debt, And he's collecting for his own benefit.
And he's not allowed to come into the court and say he's representing this Wilmington Trustee, but they do it anyways, OK.
He really made a big mistake, or several, in this case.
He's gonna lose, and, it's going to cost, them a lot of money. It's going to cost them, like, $30,000, or more, or whatever, he paid for the account.
But you can see here, So he provided this notice, he got on the calendar, OK?
Then there's a notice by the court saying you have to show up at certain time, and all this stuff, Right?
This is so easy to win that the defendant doesn't, you have to show up, because the court actually does not have jurisdiction. I'm going to show you why. It's very much similar to the other case I was showing you before.
So in response, this is my theoretical response here, OK?
So here's what we got.
First of all, no.
It's untimely, because it's not technically an untimely, but you could say it's on timely because it really it's kind of early.
Alright, there are issues of facts in dispute, but here's the most important thing.
The plaintiff failed to serve a copy of the motion for summary judgement on the defendant.
That fails right there.
Not only is that a problem, you can't have a hearing on it if you don't. don't serve the notice properly. You have to have 20 days advance for summary judgement hearing, and you have to give the other party the actual motion, so he can respond.
If you don't do that, it prejudices the other side, OK? Not only that, if you sign a Certificate of Service, which is what they all do.
They certify that they sent a true and correct copy to the other party. They always do that, it's just a habit. It's a form they all use. But in this case, that didn't happen. So that is a false certification to the court.
Big, big no-no, OK?
You can see, the standard response is, To, a motion for summary judgement, is to, first of all, you say, there are genuine issues, the fact in dispute.
If you're the responding party to a motion for summary judgement and you want it to defeat the motion, you have to show this.
Now I can say this, there are genuine issues and material facts in dispute, but I also have to show the judge that those already exist. For example, if discoveries pending.
Well, that creates issues of fact, but in this case, they filed the motion before Discovery was, was begun, so I can't say that. So now I have to go and point out facts that are already on the record. Once a motion for summary judgement is filed, I can't start discovery or do anything new, I have to go on the record that appears in, the court, and the court, and the case file.
So, in this case, I would, I do want to say this, and I also want to say that, the, the moving part of the plaintiff is not entitled to the judgement as a matter of law. And that just means there's some legal aspect that's precluding the court from ruling in the favor of the Moving Party, which is the plaintiff here.
So, whenever you file this, I mean, I left this in there from the motion to dismiss.
But what's really interesting is, I have to go to the complaint. All right, in fact, I'm gonna open this up and show you.
I'm going to have to open up the complaint. Because when you're responding to motion for summary, judgement, the motion for summary, especially this early in the case, it's going to have to incorporate the complaint into the response.
All right, so let me see here.
All right, I should have had this open, so pardon me for a second while I grab this.
So, here is the complaint that was originally filed, and we're going to walk through this. So, the response to the motion for summary judgement does have to deal with the complaint.
Let me see if I make this in here.
Ah, OK, I'm gonna stop this, and I'm gonna share again.
That's, that's how I can get this document back in, here, So, I'm learning how to use this.
All right, So we've got three documents now.
All right, here we go. So you can see that. All right.
So this was the original complaint. Now, I want to point something out here.
Here's a formality forms that go in the beginning. Plaintive basically saying, Look, There's a Promissory note, He has is $32,000.
They're trying to say that the plaintiff here has the right to sue, and then it's trying to say here that Upgrade Inc. Is somehow an interested party or custodian of the records. They all do this, and that's an indication that the attorney probably is the owner of the account.
It's some funny business about how they only own the account.
So, probably, um, the law firm or the individual terni owns this account and purchased it outright from the plaintiff or on a contingency, and in other words, the plaintiff may not even have a legal interest in this account. We don't even need to go there, because you will see, the attorney really screwed up. So very simple complaint, look at that, it's only four lines, OK? Here's an affidavit, it's total BS, This person has no personal knowledge, but you can read through this.
OK, I left it long enough here, so you can look through. It's quite lengthy, but, again, this person has no personal knowledge.
It's not going to help them anyways, but they do have exhibit C and exhibit D This is interesting.
So they're saying, the debt instrument is exhibit C and exhibit D Now, just as a side note, so there's the notary. Now, notice how the Notary section, OK.
The jeer at is not on the page, worth the affidavits statements.
So that's another indication that, probably, that person never even read this document.
Just kinda keep that in mind.
Notice also that this person notarized it in Arizona, which is not where this case has taken place.
It's just, you gotta keep be aware of these things because we can use them in a case. I didn't have to talk about this stuff in the case, because as you'll see, they made it really easy to win this case. So we come down here. Now notice exhibit A This has to do with upgrade, getting involved in some way.
Notice how there's no data on this.
Business letters have dates.
They have names of parties. There is nothing here. No one signed it.
It says, by Michael Young, but director of servicing. He has no personal knowledge. He has no nothing.
It's irrelevant his statements, affidavits irrelevant. But again, you'll see hubs is pretty easy. I'm just putting this stuff out to show you. If you want to overcome or oppose a motion for summary judgement on a factual issue, there's so many here, OK, no date, no signature. The name of the parties, not here. This G, right, it's not on the page.
I would call this person that for a deposition, and I would ask him, did you write this document, right? He didn't send me an arbitrary. Did you who wrote this document? He didn't write this document.
So I'm gonna scroll down here.
And then here's your exhibit B This is some sort of upgrade document. Again, We don't have to talk about this.
You're going to see why I'm going to switch down all the way to exhibit C so exhibit C is supposedly the barro agreement.
So if we scroll down a bit, we're going to see there's an arbitration clause. You might not be able to see this. I'm gonna enlarge this a little bit.
There we go. There's an arbitration clause. You see that.
And guess what?
It's a binding arbitration compulsory binding arbitration agreement.
It means if you don't opt out, you you cannot sue.
Either party cannot sue if there's a dispute they have to go to arbitration.
You can read this and see for yourself, OK, then we get into all the other terms.
But the most important thing here is this arbitration paragraph eight exhibit.
See, that's a gift.
When there's a binding arbitration clause and then a lawsuit, they have not commenced an arbitration Cases dead.
They have to get out of court, has to be dismissed. The judge cannot touch it.
It cannot then proceed in arbitration because they waived arbitration by going to court incorrectly.
So they're done, but it gets better.
In this example, we've got, it goes on and on with nonsense documents that don't mean anything.
I didn't wanna go into too much detail. We got Exhibit D, which again, was referred to in the affidavit and probably in the pleating.
Let's just paste you, notice I'm like, I don't care about any of this stuff. We just know that it's supposed to be a loan agreement, right?
Let's go through this real fast: I'm looking for this.
Look at line 13, an arbitration agreement. Again, it's the same thing.
So, not only have they evidenced or alleged an exhibit is an allegation, OK, when it's included with the complaint, they've alleged and a credit agreement, then they've alleged another credit agreement. I don't have to read them.
I'm just going to say that those two credit agreements conflict with each other.
The way I'm going to win this case is arbitration.
The plaintiff lost the case when it filed the case in court.
The court does not have jurisdiction. The moment it got a case number issued. It lost its chance to go to arbitration. It can't go backwards from that point.
So there's probably no evidence of an opting out because they're not going to opt out from their own arbitration agreement. So let's just go back here.
OK, now here's the motion for summary again. I'm sorry. It's not the motion for summary. This is a notice of the hearing and included They had some formalities and things like that. We don't even talk about this stuff. But let's go to the actual document here. So the responses in opposition to the motion for summary judgement, I see my basic things.
There are no issues, the fact not tells a matter of law, criticizing the exhibits.
It contains a compulsory binding arbitration clause, right.
Well, Natalie, does exhibit C include that, but so does exhibit D.
And there's no jurisdiction, because they didn't started in the arbitration process with the arbitrator.
OK, and I also go on to my other arguments, which say that the petition is not trying to confirm an arbitration award. They didn't even begin arbitration. No one opted out. There's no jurisdiction.
They're not exempt. If they're exempt, they would plead something like fraud, OK. There's no fraud here, and it wouldn't work.
So, the plaintiff waived its right to proceed in the court or in arbitration, because it should have started an arbitration.
Because it started in court, it waived arbitration.
And the court can't take jurisdiction. You can't even agree with the other party for the court to take jurisdiction. They won't even do that then. That court has to have jurisdiction as a matter of law and guess what the law is here?
This is the important thing here, too.
The law is the contract on which the case is based.
The law is the borrower's agreement, the loan agreement, the promissory note, all these things, OK, the credit agreement. That is the law of the case.
And when the law, the case says, the Court doesn't have any jurisdiction, because the parties agreed to compulsory binding arbitration outside of court, if those parties, either one of them, have a dispute If they don't start the case in arbitration.
They can never complete the process and get an award one way or the other.
And then later use the Court to confirm the award, which is what they would normally do.
In this case, the attorney started the case on the merits of the case in the court dead. It's dead the whole case.
And then I'd like to throw in a couple more the Exhibit's conflict with each other, just to rub it in.
All right, Then I go for and I criticize exhibit A defendant is not identified anywhere, especially in these exhibits. He's not even identified anywhere, right?
The affidavits doesn't contain personal firsthand knowledge.
I didn't need to say all these things. I mean, it's just enough to talk about the fact that exhibits CND contain a compulsory binding arbitration clause.
There is no evidence that arbitration was commenced. This is not a petition to confirm an award.
It fails the whole thing, OK. So then they come down here and I throw in a memorandum of law. This is, you know, just case law on how courts are supposed to view things in unsecured debt collections.
Dealing with contracts.
Then we get into no meeting of the minds, it doesn't matter. I didn't have to sell this stuff.
Contract is an agreement of two minds, meeting of the minds, et cetera. There's a section here. There's no stated account.
So sometimes they try to pull a slick one and say, well, we don't have the contract judge, but we sent them a bill and he didn't dispute it. So, therefore, we have a stated account.
We send them a bill, and he didn't pay, or didn't object, which is always a lie.
But I put that in there, because, in a stated account claim, if that's what they were using, they would still have to have an underlying debt, which still goes back to consent. It goes back to a meeting of the minds, OK.
So, just so you know that, again, this would preclude them from having a judgement as a matter of law, and the facts don't support it. So it can be argued both ways. And then we get into summary judgement. And then, I want to read to you this.
This is a general rule. You guys can look this up, It's in real 56 of the Federal rules of Civil Procedure. You can find the same rule in all the states, It's almost verbatim OK. Some motion for summary judgement must be served upon the opposing party at least 20 days before the hearing scheduled on the motion.
And the notice of the hearing must be 20 days before the actual hearing.
The parties are required to confer regarding the date and time for the hearing which they never do because they don't treat you like a human being. They don't have respect for you. They just send you a unilateral that unilaterally. They just send you a notice of hearing, OK, and you can object because of that.
The plaintiff made no attempt to co-ordinate a hearing on its motion, and it failed to serve the defendant with a copy of The Motion. For summary judgement. That was noticed in the hearing.
Now it is for the hearing, and thereby the defendant has been denied the opportunity to review and respond to the motion no-brainer. The plaintiff has made a false certification of having properly served the defendant with a copy of the motion as required by the rules, OK.
All right, So summary judgement is proper only when the pleadings deposition has answers to ... and admissions on file together with the affidavits, if any showed that there is no genuine issue as to any material fact, OK?
So, that has to happen.
Again, it's back to what I was saying earlier.
All right, and again, now, this is, it happens to be in Rule 56 of this particular state.
I didn't put the State in there, but you can find it in the US, US. Federal Rules of Civil Procedure, OK, the Federal rules of Civil Procedure, it's online, it's free.
And, of course, we want an order denying the motion and then I'd like to just give the judge Well, there's an after David, OK, I added a few things in here.
Like, for example, I also put under oath I didn't get it.
The things are not closed, meaning that they're the motion was filed and then it's still pending. so the pleadings or open. The planes are closed when the complaints filed. The answer is filed and across claim is filed and then those are resolved.
Then, the fittings closed. I mean, the pleading set segment is closed and then you could proceed with the discovery phase and then pretrial motions OK. At this point the pleading phase is not closed.
I don't know if it's material I'd just like to mention that and I also put it in the affidavit and of course it's important to say it under oath that the the motion was not served upon the defendant.
Then, also, it's important to say that there is no credit agreement with with this party, they're claiming that there is, and there's no credit agreement with anybody there, OK, and none of the exhibits are allegations represent any instruments that I agree to? OK, That's important to say. Even if you think it is, even if it looks like your signature say, this, OK, make them meet the burden of proof.
Then I go and talk about exhibits CND.
All right, I said Listen to my argument, but I also want to say it here.
And none of the exhibits referenced by the Michael Young, their effort, their their witness reference the defendant by name, OK.
It fails to proffer personal firsthand knowledge of any elements that would prove any allegation in the complaint.
So that's kind of a generic way of discrediting his affidavit. I can do a better job of that, but it doesn't, it doesn't matter. And again, exhibit Antic one more shot at that. And then I leave the space for the judge to sign it.
A lot of times the judges want you to do that.
And then you have to leave a spot for the copy for everybody.
And then there's your certificate of service, OK? When you put a certificate of service, and what you do is you initial down here, you put your initials down, where it says buy.
And then, of course, the address has to be there, you put the date.
You're certifying the correctness of everything that was with that Certificate of Service, all right? That's why I said that. That by the fact that they did not include the motion for summary judgement, they made a false certification to the court.
All right, so it's worth looking into the federal rules of civil procedure in real 56, when it talks about motions for summary judgement. Because this is where everybody loses.
And I think those types of motions are used to frequently because attorneys are lazy. And a lot of times the judges just give them what they want. Because they're tired of hearing people come into court and beg for mercy and they don't understand the law.
They don't understand their rights and understand the contract and they don't know how to criterium and criticize a pleading there.
Every pleading can be critiqued. Some are well written, but most of them are not.
And this one the attorney really made a huge mistake, it's a fatal mistake by not serving the actual motion for summary judgement on the other party.
It has to be served on them within 20 days of the hearing date, so I think they're there outside that window so far.
Or at least they're outside the window, if this is filed timely.
But the thing that's going to kill him is that the attorney didn't start an arbitration process with the American Arbitration Association or jams, one of those arbitration services.
Instead, OK. But I just want to share that with you. I wish I could share with you, the actual motion they filed. because you can see the formatting and how it looks.
They also include an affidavit, which is, it says it's not required in the rules, but it kind of is required. The judge is gonna want that. So, if you're filing a motion for summary, you gotta consider all of this.
Make sure that you're not filing a motion for summary, and then bringing up new issues, and discovery, and things like that. Make sure the material points are already settled in your case.
All right. A good strategy I recommend, is, if you're in a debt collection cases, you're a defendant, and you do a motion to dismiss like I recommend.
You challenge the inconsistency, the pleadings, The exhibits conflict with the pleadings all that stuff. And if the motion is denied, go ahead and answer the complaint and the arguments you made in the motion to dismiss make those into an affirmative defense 1 or 2 or however many they are.
There are, then do your discovery with your answer, Start discovery first before the other side.
That way, when you finished discovery, you're going to finish by answering their discovery if they do any, if not fine.
The last bit of discovery that you do, you will have the advantage in asking for summary judgement first.
Whoever asked for summary judgement first has the advantage. In this case. The attorney was a bit overzealous.
Didn't take time to think about the procedure, really fairly messed up the case.
And yeah, it is advantageous for him to ask for summary judgement, but he would not have been able to get it. In my opinion, I think the judge would have been inclined to deny it, or hold it, in, what's called abeyance, until the case proceeded a little bit further into discovery.
So I know that's probably technical a little bit, but can hear the video again. I hope that gives you all a better perspective, and actually, how to use the rules, and how the procedure works.
They come into court with a bunch of documents, then they ask for summary judgement, they don't want to discovery. They don't wanna prove anything that they want the judge to look at, then go, yeah, it looks good to me, I've seen it before.
And that's wrong and if you don't know what you're doing and you're going to argue the merits of the case at a summary judgement hearing, you're gonna lose, you have to argue what is being presented to the court.
You have to show the court what's already on the record. You cannot start new discovery.
You have to put an affidavit in there, I mean, I've won motions for summary before, I had him denied just by filing an affidavit, the client would call the night up, OK, hey, tomorrow I'm having a hearing on summary judgement, and I will sit there that moment and type up an avid affidavit after I read an interview with the client and give it to him, Tell him to have it notarized and bring it with them to the hearing. And that will defeat the motion for summary. It's that powerful.
But it has to be on point.
It has to be addressing point for point on the other parties, motion for summary and the affidavit that was included. You have to attack that affidavit. In this case, I didn't do it very much because I already won the case.
The attorney screwed up. I got lucky here, this was a freebie, alright, Just want to share that with y'all. Sometimes you get lucky like that.
This case is dead, They'll never do anything, and he can get it moved removed from his credit, OK, This will, this will never go anywhere for them as if you've never had the debt.
Hope that hope that gives you some good information.
1. A review of an unsecured credit type lawsuit at the summary judgement stage is discussed.
2. Summary judgment is sought when either party believes there’s no need for a trial based on the evidence at hand.
3. In this case, the plaintiff, Wilmington, served the defendant, but the defendant filed a motion to dismiss.
4. Instead of addressing the motion to dismiss, the plaintiff’s attorneys filed for summary judgement without notifying the defendant, which is a procedural error.
5. Summary judgement can be granted if there are no genuine issues of material fact in dispute or if the judgement is legally entitled to the moving party.
6. The plaintiff did not send a copy of the motion for summary judgement to the defendant, which would invalidate the motion.
7. The case is based on an alleged debt, with the plaintiff possibly collecting for their own benefit rather than representing a trustee, as claimed.
8. The plaintiff’s initial complaint references a promissory note and attached exhibits, which include loan agreements with arbitration clauses.
9. The defendant, in response, points out errors in the plaintiff’s motion, including failure to properly serve the motion for summary judgement and false certification of service.
10. The case is declared void since it didn’t start in arbitration, as required by the arbitration clause in the loan agreement.