Hello, I will try to help you. Please remember I just report or interpret the law, so the outcome may not be what you hoped for. What court are you in? What is the case about?
im in the special civil court. the course is about debt collection.
i mean the case is about..
A motion for summary judgment is a motion governed by Rule 6:6-1 of the rules applicable to the Special Civil Part. Rule 6:6-1 makes rules 4:46 among other applicable to the special civil court. Rule 4:46 provides in relevant part as follows: "All motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders for good cause shown, and if the decision is not communicated to the parties at least 10 days prior to the scheduled trial date, an application for adjournment shall be liberally granted. Except as otherwise provided by R. 6:3-3 (motion practice in Special Civil Part) or unless the court otherwise orders, a motion for summary judgment shall be served and filed not later than 28 days before the time specified for the return date; opposing affidavits, certifications, briefs, and cross-motions for summary judgment, if any, shall be served and filed not later than 10 days before the return date; and answers or responses to such opposing papers or to cross-motions shall be served and filed not later than four days before the return date. No other papers may be filed without leave of court."
As a consequence your time to respond is not 10 days you have to follow the time periods prescribed in rule 4:46. You can double check this with the clerk of the court just to make sure there is no confusion.
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what exactly is the return date?
mentioned in R 6:3-3?
The court sets the return date of the motion. It should be about July 11 but you can call the clerk's office which sets the date for motions to be heard.
The return date is the date the motion is heard
when u said "As a consequence your time to respond is not 10 days you have to follow the time periods prescribed in rule 4:46" do u mean to say i have more than ten days? or i have passed it?
id appreciate it if you say it on laymans terms because im re-reading the law a couple of times and the terms are still vague like the term "returnable"
You have more than 10 days. For example, if the return date is July 11, you must file and serve your answer on July 1, 2013, 10 days before the return date. The triggering date is the return date. That is why you need to call the clerk to see when they will set that return date. If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
thanks. but what did the plaintiff mean when he said "within ten days after the date of service of the motion" ?.... what is the date of the service of the motion, based on the dates i gave u?
Service occurs when the document is mailed. The 10 days he was using was the wrong time period. However, 1:3-3 under the general rules adds three days when service is effected by mail. However, you have to check with the clerk because I am not sure this rule applies to the Special Civil Part. However, on your motion the 10 day period is not applicable. If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
i see. i have another question about my case but not about dates, do i have to exit this and ask on a separate window?
You can ask a follow up question that relates to your initial question. If it is on a different topic then it should be opened in another window that asks for Bizlaw. Tell me what the question is.
I will come back to see if you have anything more.
i think its somehow related.. in the plaintiffs words: "the order sought will be entered in the discretion of the court unless the attorney or pro se party upon whom it has been served notifies the clerk of the court and the attorney for the moving party or the pro se party in writing within ten days after the date of service of the motion that the responding party objects to the entry of the order" ....
the question is..
is an "entry for an order entering summary judgment" the same as a "motion for summary judgment",,, and if not is this the reason why the plaintiff said "within ten days after date of service"?
and how do i write a letter objecting it? i mean will it be as extensive as an opposition to summary judgement? or can i just basically say in the letter that i object to that order... and then on the succeeding days follow up with an opposition to summary judgement?
the plaintiff calls it "an entry for an Order entering Summary judgement"
motions and orders are confusing me.
The court sets a date for the motion to be heard. The court has the right to decide to just make a decision and enter an order, in this case an order for summary judgment. The order is the court decision either granting the motion or denying the motion for summary judgment. Most motions do not have the 28 day time period before the motion is heard. If you were to write a letter to object, which I do not believe is necessary in this case but check with the court, it would be say that there are material issues of disputed fact that preclude summary judgment. For example, if you say the debt was not owed or that a note was obtained by fraud, these would be facts in dispute that preclude summary judgment. In your opposition you would present evidence of your defense in the form of admissible evidence which means by affidavits from people with personal knowledge of the facts including yourself. A motion is how a party asks the court to make a decision on an issue. The order is the court's decision on the issue. Any time you want the court to take some action it is done by motion. If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
A letter to object and the opposition are two different things. I do not believe a letter to object is necessary on a summary judgment motion just your opposition. If you need one it would be ten days from the post mark date on the envelope since that was when the motion was mailed. Since you have to call the clerk's office about the return date you need to check to see if you need a letter of objection. I think that only applies to other motions but you should check with the clerk when you ask about the return date. If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
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