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I have to respond to a Summons and Complaint for foreclosure on my home in Oregon by Wednesday the 12th (30 days from date of service) and am currently in Mexico attempting to sell land to raise the funds necessary to reinstate the the mortgage by paying all back payments and fees. I do not have sufficient money to retain a lawyer to prepare a Motion or an Answer by the 12th, so I will have to do it myself. I wish to file a Motion to Quash the Service and Process as I was not served in person since I was in Mexico on May 13th, and no family member or "interested party" accepted the documents either. They were left at my home and I was made aware of the Summons and Complaint via email by my roommate yesterday on the 6th. No attempt was made by the process server to locate me away from my home. I cannot prepare an adequate Answer in just six days and thus I have decided to request the Court to Quash the Service for the time being . I have a general idea as to how to prepare the cover letter to the Court and to the Plaintiff's attorney, but I am not at all confident that I can prepare the Motion to Quash myself correctly. My question is, can you give me a general format or sample to follow so that I can prepare the Motion adequately? I have all ready search on-line and only found very general information about the nature of a Motion to Quash Service, but it is not sufficient to enable me to complete the document. Can you help please? Sincerely, XXXXX XXXXX
1. Is your usual place of residence in Oregon ?
2. If not, in which State do you reside ?
3. In which State was service of the Summons and Complaint made on your roommate ?
Andrea, Thanks for your quick response. My permanent residence is at my home in Oregon, however I am married to a Mexican woman and we travel between the two countries. We are here now in order to sell some property she was given by her parents, in order to make up the back payment and costs to the holder of the mortgage on our home in Oregon. Service was made in Oregon, however I was not present in the State, nor did my roommate acknowledge his relationship to the residence as my roommate. I would never have been aware of the service at all if he had not contacted me via email yesterday and told me about it. I hope that I have adequately answered your questions. I am working on this now, so feel free to ask any additional questions that you may have. XXX X.
The Oregon Rules of Civil Procedure, prescribe the manner of service of a Summons and Complaint and permit service to be effected on the Defendant by leaving it at his residence with any individual over the age of 14. Therefore, I do not believe that a Motion to Quash Service will be appropriate, nor will it be granted. You would be required to file a response to the Complaint, denying the Plaintiff's allegations, or risk having a default judgment entered against you,.
The Oregon Rules of Civil Procedure, Rule 7 provide, in pertinent part, as follows:
" D(2) Service methods.
D(2)(a) Personal service. Personal service may be made by delivery of a true copy of the summons and a true copy of the complaint to the person to be served.
D(2)(b) Substituted service. Substituted service may be made by delivering true copies of the summons and the complaint at the dwelling house or usual place of abode of the person to be served, to any person 14 years of age or older residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, true copies of the summons and the complaint to the defendant at defendant's dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, substituted service shall be complete upon such mailing.........."
D(2)(c) Office service. If the person to be served maintains an office for the conduct of business, office service may be made by leaving true copies of the summons and the complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, true copies of the summons and the complaint to the defendant at defendant's dwelling house or usual place of abode or defendant's place of business or such other place under the circumstances that is most reasonably calculated to apprise the defendant of the existence and pendency of the action, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, office service shall be complete upon such mailing.
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Andrea, Thank you for your well documented answer, even though it wasn't what I was hoping to hear. I think you are right about the Substitute Service being allowed, but I was hoping to gain a little time by filing the Motion to Quash, so that we might complete the land sale down here before the legal process is concluded. It surprised me to hear you say that the Court might enter a default judgment upon denying my motion, without giving me an opportunity to file an Answer to the Complaint at a second hearing. Is there any chance that it could transpire that way? That I could gain a few weeks for instance between the Motion to Quash and the hearing on my Answer? Is there another way to extend the process and gain the time we need? Can I just ask the Court for more time due to my being out of the country, and not having seen the document when they were served? I really can't reply in a week. XXX X.
Thank you for your reply, Gary,
Here is how the process works,
Plaintiff files Summons and Complaint with the Court and serves them on Defendant;
Defendant must file responsive pleading with the Court and serve it on Plaintiff;
If Defendant fails to do so, Plaintiff will ask the Court to enter a default Judgment;
If Defendant files responsive pleading and serves it on Plaintiff, the Court Clerk will schedule a hearing to try the issues. The hearing date will depend on the Court's calendar and can take place as early as 4 to 6 weeks from the date of filing your response to several months later.
If you want to buy more time, you can ask the Attorney for the lender for an "extension of time to Answer". If he refuses, you can ask the Court for an extension of time to Answer. So, either way, you will have some time ahead of you,
Andrea, Ok, I see now why filing and Answer or "responsive pleading" with the Court is safer and would actually gain more time due to a hearing having to be scheduled. When you suggested that I could buy more time by asking the Plaintiff's attorney, or the Court, for an "extension of time to Answer", were you referring my Answer at the court hearing, or the Answer that I have to file by the 12th? I assume that you meant an extension of time to prepare for the court hearing, but I just want to be sure. This strategy just may work. Thank you for the quick and precise response to my last set of questions and I'll await your answer to this last one. XXX X.
Hi, Gary, You pick things up pretty quickly; just one thing I want to clarify because I may not have been clear enough and also in Answer to your question - The request for an extension of time is with respect to filing a responsive pleading to the Plaintiff's Complaint which you stated was the 12th. The Court does not want to be bothered with these requests, that is why a litigant must first ask the opposing party for an extension of time within which to file and serve a responsive pleading and only if the opposing party refuses the request should a litigant make this request to the Judge assigned to the case, if any. If no Judge has yet been assigned, then the request would be filed in the Office of the Court Clerk who would then direct it to the proper Judge,
Andrea, Thank you for the clarification regarding when and with whom I would request an extension of time for filing my Answer. I can call the attorney for the Plaintiff and ask, but I don't have any idea what to expect. I'll explain how late I was notified since I was out of the country, and maybe they'll be able to empathize with my situation. Here's my problem though. If I can't reach the attorney until Monday at the earliest, and they say no to the extension, then even if I have my Answer ready to go, it won't get to the Court or to the attorney for the Plaintiff until Thursday at the earliest. Technicaly, that is 31 days after the service on May 13th. Do you think that would open the door to the Plaintiff's attorney asking the Court for a default judgment? I would like to have another two or three weeks before I have to file my Answer, but I also don't want them to grab a default judgment on a technicality. Is it very likely or not very likely? Sincerely, XXXXX XXXXX
As long as you file your Answer with the Office of the Court Clerk by the 30th day, you are safe. You can thereafter, send a copy of your Answer which has been "Time-Stamped" by the Office of the Court Clerk, to the Plaintiff, you are safe. It sounds like you will have to personally file it with the Office of the Court Clerk, or have someone take it personally. Yes, it would be a technicality, if it were filed with the Office of the Court Clerk on the 31st day, but if the Plaintiff's Attorney wants to be a stickler, he could insist on strict adherence to the Rules of Civil Procedure and argue that they are mandatory (and not voluntary) and, therefore, must be observed by all parties,
You last helped me on June 8th and your assistance was very valuable in helping me to reach the current point in a foreclosure proceeding against my home in Oregon. Now, the case has advanced and I desperately need your help again.
Allow me to give you a brief chronology of the case to date.
I filed my Answer with the Court in a timely manner on June 11, 2013, pleading a "general denial" to all the allegations made by the Plaintiff. On September 27th the attorney for the Plaintiff requested a 90 day continuance in order to serve the last Co-defendant, and it was granted. However, an initial Hearing for Summary Judgment was set for November 18, 2013. I filed a Motion for Continuance on November 8, 2013 siting a variety of reasons, and the Court's approved my Motion for Continuance, rescheduling the Hearing for March 3, 2014, which is this coming Monday. I thought that would be enough time for me to resolve this important issue, but it has not worked out the way I had hoped, and now I am facing a crucial point in the fight to save my home. I hope your advise may help me to stave off foreclosure.
Since I am currently still in Mexico, where I continue to promote the sale and/or development of some land I have near Puerto Vallarta, in order to find a solution to the financial dilemma the last recession brought upon me and so many other ordinary people like myself, I cannot attend the Hearing on the 3rd. It would be a financial hardship and I am suffering physically as a result of this ordeal.
I am considering filing another Motion for Continuance before the end of this week, via D.H.L. courier service, but I hope you can help me to identify other options that would result in a postponement of the March 3rd Hearing.
For example, are there any technical legal reasons I can sight to justify a rescheduling of the Hearing, or personal reasons or circumstances in which the Court would tend to look favorably on my request? Any ideas at all that you have would be greatly appreciated.
Thank you in advance for your prompt reply.
Hi, Gary, Welcome back
I am sorry to hear that this situation has not yet been resolved and is still going on. It would be my pleasure to continue to work with you and help in any way that I can, but there is a slight problem here. During our last session, I researched your questions under Oregon law so that I could give you the correct Answers for your jurisdiction. This research takes a lot of time. I had given you four Answers, but you rated me only once and since we receive credit only if the customer leaves a rating, I received credit for only one Answer. It does not cost the customer anything additional to leave a positive rating, but without it, the expert receives nothing for his or her time and effort. If I continue to Answer questions, I will not be receiving any credit for all my Answers. I hope you can understand where I am coming from,
Of course I understand. I didn't know that you had to rate each answer when I first started to use JustAnswer.com's services, so I waited until the question and answer process was concluded. Now, that I have had more experience with the system it is operating better.
I went back into the history of our earlier conversations and added the Excellent rating for each entry. I hope that does you some good, even at this late date.
Hi, Gary, Thank you for your understanding,
In order to bring myself up to speed, I looked at a previous question thread that you had in which one of my colleagues is assisting you. In one of your replies, you stated in one of your replies to Ely that you filed a responsive pleading to the plaintiff's Motion for Summary Judgment with a general denial and I am wondering how effective that would be in light of the purpose of such motion.
1. The legal description of a Motion for Summary Judgment is that it is a procedural method of disposing a civil case promptly and expeditiously without the necessity of a trial. The moving party (here, the bank) has the burden of proof that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law. In other words, the bank is saying, Here are the facts, there are no material facts in dispute, the opposing party (you) has no viable defense, so why waste the Court's time having a trial ?"
If the moving party has met his burden of proof and shows the absence of any genuine issue of material fact, the burden then shifts to the party opposing the Motion to introduce evidence that contradicts the moving party's allegations by pointing to specific issues which are material to the case and that they are in dispute and, therefore must be tried.
In deciding a Motion for Summary Judgment, the judge may only review pleadings submitted by the parties. In reviewing the pleadings, the judge must consider the motion in a light most favorable to the party not moving for summary judgment (you)
Therefore, the pleadings which you have already filed with the Court must have included facts which were diametrically opposed to the allegations made by the bank in its Complaint and in any other pleadings it filed.
Your responsive pleading, "Defendant's Answer to Plaintiff's Motion for Summary Judgment" must have included not only a denial, but also specific material facts which are in dispute so that the Judge would be inclined to deny plaintiff's Motion for Summary Judgmentparty may have been lacking evidence at the time the summary judgment motion was filed, but with a few more weeks of preparation, the party believes it can successfully come up with more evidence to convince the judge that the case should move forward to trial.Parties will file for a continuance to frustrate opponents who are ready to proceed to the motion hearing and have prepared evidence and witnesses;
2. In Answer to your question about a continuance - Granting a Motion for a continuance is "within the sound discretion of the Court and will not be disturbed on appeal, unless there is a clear showing of an abuse of discretion by the trial Judge".
There are no "technical reasons" or "loopholes" that can assure a party that the Court will grant a motion for a continuance, especially since the Court has already granted your request for a 90-day continuance. Death is always a good reason, but that's a rather drastic step to take for a continuance. The only reason I can think of is that you need more time to gather information which is very relevant to your defense to plaintiff's Motion for Summary Judgment and since the granting of such a Motion is so extreme and would preclude having "your day in Court", the interests of justice can only be served by granting your Motion for a Continuance. You should include in your Motion any and all specific requests you made to the bank for any documents and that the bank failed or refused to give you the documents, and explain why they are so necessary to your defense of plaintiff's Motion for Summary Judgment,
Thanks for your thorough and enlightening answer. Oh, and I didn't forget to check the rating button right away this time!
I was fascinated by your answer and impressed with the research you did into my history with JustAnswer in order to get up to speed. Thank you for doing that.
I think I understand what you said about the role a Summary Judgment plays in this case, and the way you described it makes me feel much better about my ability to gain the Court's approval of my Motion for Continuance the 2nd time, even though they have all ready granted one before.
Just to clear up one thing you said in your answer that may be a misunderstanding, I filed an "Answer" to the Plaintiff's Complaint on 6/11/13, which contained about 35 general and specific denials, paragraph by paragraph as they appeared in the Complaint, plus about 18 affirmative defenses, and I'm not sure which of these to add to my Motion for Continuance. How can I select the right ones?
Does it make any difference in terms of winning a continuance of the Hearing for Summary Judgment, that my statements were contained in my Answer to the Complaint, and not in relation to the Plaintiff's Motion for Summary Judgment?
I hope you are a night owl and see my reply because I have to take the papework to D.H.L.early Wednesday morning in order to get it to the Court on Thursday the 27th.
Thanks for your great answer.
Yes, Gary, I am still awake,
I think that you may have the Motion for a Continuance mixed up with the Motion for Summary Judgment. If I am mistaken, I apologize.
In your Motion for a Continuance, you must show that the bank did not give you documents that you requested and that are crucial to your defense in the Motion for Summary Judgment, i.e., you need more time to obtain certain documents from the plaintiff which will prove that there actually are one or more material issues in dispute and that will support your request that the Court deny plaintiff's Motion for Summary Judgment. In other words, if you are not granted a continuance, you will not have the documents which are necessary to prove that there are, in fact, material issues in dispute in this case, and you will not be able to carry your burden of proof to show these facts which are in dispute.
In the Motion for Summary Judgment, the plaintiff is alleging that you do not dispute any facts alleged by the plaintiff and there is no point in going to trial and that the case can end right here and now. So, if you do not have the evidence to refute plaintiff's allegations, the plaintiff's Motion will be granted, and the case will never go to trial.
Allow me to give you a simple example -
"A" has a checking account with "B" bank. A also had obtained a mortgage loan from B in 2003. A had given written authorization to B to deduct his monthly mortgage payments from his checking account. B was deducting the monthly mortgage payments from A's account. B had technical problems and although it was continuing to deduct these monthly payments from A's checking account, it was not giving A credit towards his mortgage payments from January 2012. In July 201i2, B instituted foreclosure proceedings and served A with a Summons and Complaint alleging nonpayment for the previous 7 months. A filed an Answer denying B's allegations of nonpayment and interposed several affirmative defenses. During discovery, A made numerous request to B for copies of the ledger sheets maintained by B which showed the monthly deductions B was making from A's checking account. B ignored A's requests and filed a Motion for Summary Judgment. In order for A to defeat the Motion for Summary Judgment, he asked for a continuance of the hearing date on plaintiff's Motion because A needed more time to get B's ledger sheets showing that B had been deducting his monthly mortgage payments and this would prove that there was, in fact, a material issue in dispute - B claimed nonpayment - A claimed he paid, but needed the ledger sheets to prove this. The continuance should be granted because A showed the Court that he made a diligent effort to obtain the ledger sheets which B had ignored, and a continuance was not simply a "delay tactic" on the part of A,
Ok, I'm getting closer to understanding what you are saying about how to better support my request for a continuance of the Hearing for Summary Judgment. I found one "specific" demand in my Answer to their Complaint which stated, "Defendant demands specific proof on the allegations contained in the Complaint." They responded with a blanket rejection of everything I included in my Answer, without addressing this request and without giving me even one document or other form of proof that their assertions were correct.
Should I site this "Demand for specific proof of the allegations contained in the Complaint"?
Please accept my apologies for the delay, but I had been on the computer for almost 16 hours between drafting pleadings for my clients and JustAnswer. I was literally seeing double and had to take a break. JustAnswer has a new program called 'additional services' and we can speak by phone if you agree that I am not giving you legal advice, but simply giving you information. I am licensed to practice law in Pennsylvania and New York, but not Oregon, and no lawyer wants to jeopardize their license by being accused of practicing law without a license in a jurisdiction where they have not sat for their bar examination. Let me know if you are interested in this service. A button should appear on my screen when I send you this message
That's ok. I assumed you had been working for quite a long time and had to stop and rest for a while.
I added the "specific demand" that I told you I found in my Answer to the Plaintiff's Complaint, to my Motion for Continuance to hopefully make it stronger, and sent it up to Portland today via DHL. It will be delivered to the Court tomorrow, specifically to the Judicial Assistant for the Judge on my case, by my roommate in Portland, who is also named as a Defendant since his is an occupant of the premises. I hope that by giving it to the Judge's Judicial Assistant directly, that I have a better chance of getting a ruling from the Judge by the end of Friday. The Hearing is scheduled for Monday morning as I believe I told you in our exchanges.
If the Judge does not rule on my Motion in time, or denies my Motion, what will the consequences be to my case if I don't appear at the Hearing on Monday? Can the Judge rule on the Motion for Continuance at the Hearing on Monday if I am not present?
Can my roommate, who I said is also a Defendant, appear at the Hearing and request that the Judge rule favorably on my Motion, or verbally place his own Motion before the Court at that time?
Are there other options I am not aware of?
Thanks again for all your help yesterday. I made a big difference in the final form that my Motion followed.
Regarding the idea of communicating by phone, I really like the idea because it would be so much more fluid and productive in a shorter span of time. The only problem I have with the idea is that I can't afford the extra cost at the moment. Maybe I'll be able to in the not too distant future.
Good morning, Gary,
I understand where you are coming from, money is tight everywhere. But I would have been able to help you more in the preparation of your answer to plaintiff's Motion for Summary Judgment, if I knew the allegations plaintiff had made in his Complaint and what you included in your Answer to the plaintiff's Complaint. It is very difficult to explain how to refute a such a Motion without knowing the allegations,
In Answer to the questions you asked,
1. "If the Judge does not rule on my Motion in time, or denies my Motion, what will the consequences be to my case if I don't appear at the Hearing on Monday? Can the Judge rule on the Motion for Continuance at the Hearing on Monday if I am not present?"
(a) If the Judge does not rule on your Motion, or denies it, the Judge will go ahead with the hearing on plaintiff's Motion for Summary Judgment and if you are not present, you would not be able to refute plaintiff's allegations or argue your case. I realize that you are at the 11th hour, but you should try to obtain the Judge's permission to appear at the hearing by telephone. More and more Courts are permitting this, so it is certainly worth a try;
(b) Judges can do pretty much anything they want when they are sitting on the bench;
2. Can my roommate, who I said is also a Defendant, appear at the Hearing and request that the Judge rule favorably on my Motion, or verbally place his own Motion before the Court at that time?
I seriously doubt it because if he asks the Court for anything on your behalf, the Judge will construe this as the unauthorized practice of law (UPL"), better known as practicing law without a license and this violates the Oregon's criminal Statute;
3. "Are there other options I am not aware of?"
There are no options, other than asking the Judge through his law clerk or judicial assistant about appearing by telephone. You should ask them how your Judge prefers receiving such requests, i.e., by telephone to the law clerk or judicial assistant, by letter, by Motion, etc.
It is "water under the bridge" at this point, but for future reference, Judges absolutely do not like to hear requests or receive Motions at the very last minute. They like these things several weeks in advance. The only acceptable reason is if the litigant was in the hospital having emergency surgery,
Thank you for your answer to my last series of questions. I loved the style of your response, where you repeated my questions by number and followed them with your answer using the same number. As a lea person, it is much easier for me to follow and understand the questions and answers in that manner.
I have to drive to Puerto Vallarta at this time, but will be back in just a few hours to respond to your comments regarding the benefits of communicating more completely, and to send you a few more questions. With the prospect of not having the Hearing postponed before Monday, and the importance of responding to the Plaintiff's Motion for Summary Judgment hanging in the balance, I have to start my preparations right now for that eventuality.
I left you "Excellent" feedback and a bonus for your invaluable assistance thus far. I hope you are available to continue our discussion in about three hours.
Sorry for the delay, Gary, but a client had a serious emergency which I had to take care of for him.
Thank you for the Excellent Service rating and the Bonus, I appreciate it greatly.
I hope you found time to call the Judge's Chambers to find out the Judge's preference for requests to appear telephonically for a hearing.
I thought you said that you filed your response to plaintiff's Motion for Summary Judgment by sending it with DHL. By the way, plaintiff's Attorney probably submitted a "Memorandum of Law in Support of its Motion for Summary Judgment" and you are entitled to a copy of the Memorandum because a litigant is entitled to a copy of anything their opponent files with the Court. The Memorandum contains the following information in this order,
1. Statement of Facts
2. Issues presented
3. Brief Answers
4. Argument - Here is where a litigant cites Statutes and case law to support their request for relief;
5. Conclusion - The litigant ties all loose ends and reminds the Judge why their Motion should be granted,
I understand that you are called away on other matters from time to time, so no need to apologize when you are delayed in responding to my questions.
I did talk twice to the Judge’s Judicial Assistant today (her name isXXXXX) and she was very nice. In the first call I told her that my Motion for Continuance would be arriving at the Court this afternoon, and asked her if she could pick it up from the clerk who time stamped it and take it to the Judge at her earliest convenience. She said she would email the Clerk’s office and ask them to notify her when it had arrived. She would then go down and pick it up from the Clerk and deliver it to the Judge in her chambers.
I called back again and asked her to please apologize to the Judge on my behalf, for the late submittal of my Motion for Continuance, and to explain that it was due to a very serious bout I had had recently with my C.O.P.D. condition, which required complete bed rest and the use of oxygen in order to breath. I told Jenni that I refer to that respiratory condition in my Motion for Continuance, and that she will see it mentioned there as one of the reasons I need to continue the Hearing beyond Monday the 3rd of March. I cannot breath at all in cold damp weather such as is taking Place in Portland at the moment.
Jenni was very sympathetic and understanding to my requests, both the delivery of the Motion to the Judge when it reached the Court, and to conveying my apology to the Judge for the late submittal. I am confident she will do both in good faith.
I forgot to ask Jenni about how to request a “Telephonic Hearing” in lieu of the normal hearing that is scheduled for Monday the 3rd. I was focused entirely on making sure that the Judge received my written Motion for Continuance today, and I forgot to ask about the Telephonic Hearing option. I am sorry. So until the Court opens again tomorrow, I won’t know if I can submit that request by phone or not. Obviously, if the Judge does not allow the request to be submitted by phone, only in writing, then the option of conducting the Hearing on Monday via phone is off the table.
Just to clarify a remark you made in your last answer, you said “I thought you said that you filed your response to plaintiff’s Motion for Summary Judgment bY sending it with DHL”. No, it wasn’t my response to the plaintiff’s Motion I was saying I sent yesterday via DHL, it was my Motion for Continuance that I sent yesterday.
1st Question: I assumed that if I was not given a continuance of the Hearing on the Plaintiff’s Motion for Summary Judgment set for Monday the 3rd, that I would then have to appear at the Hearing on Monday and present my response in person, in order to give the Judge the opportunity and “justification” for denying the Plaintiff’s request for a Summary Judgment. I will loose by default if I don’t appear, correct? Am I wrong about that?
If the Judge does not rule on my Motion for Continuance by the end of the day tomorrow (Friday the 28th), Jenni said that the Hearing will proceed on Monday morning as scheduled.
2nd Question: May I present my Motion for Continuance as it is currently written in person at the beginning of the Hearing on Monday morning, before the Court hears the Plaintiff’s case supporting their requesting a Summary Judgment? That would be a wonderful idea don’t you think? Maybe I could win the continuance, and put a stop to the Hearing for Summary Judgment right there!
You said something astounding in your last answer that I would like to explore. You said,”By the way, plaintiff’s Attorney probably submitted a “Memorandum of Law in support of its Motion for Summary Judgment” and you are entitled to a copy of the Memorandum because a litigant is entitled to a copy of anything their opponent files with the Court.”
I have double-checked everything I have received to date, including package containing the Plaintiff’s Motion for Summary Judgment, and didn’t find a document entitled “Memorandum of Law in Support of Motion for Summary Judgment”.
What the package contained was:
The only one of these documents that bears any resemblance to the “Memorandum of Law that you described was the Plaintiff’s Motion for Summary Judgment. It containes the following components:
I don’t know if that helps or not, but that is what the Attorney for the Plaintiff has given me so far after filing the Motion for Summary Judgment. I hope this information is useful to my defense of the Plaintiff’s Motion for Summary Judgment because it is looking more and more likely that I will have to present a defense against that on Monday morning.
Thank you in advance for answering these important questions.
1. "1st Question: I assumed that if I was not given a continuance of the Hearing on the Plaintiff's Motion for Summary Judgment set for Monday the 3rd, that I would then have to appear at the Hearing on Monday and present my response in person, in order to give the Judge the opportunity and "justification" for denying the Plaintiff's request for a Summary Judgment. I will loose by default if I don't appear, correct? Am I wrong about that?
In deciding a Motion for Summary Judgment, the Judge looks only at the pleadings which the parties have filed up to that point and the argument of each litigant, and the Statutes and case law on which they base their argument. When an opposing party does not appear to refute allegations, no matter what type of Motion it is, the Judge must accept as true whatever is alleged by the moving party. Therefore, if you do not appear, you will not be able to refute plaintiff's allegations. So, the statement in your question is correct;
2(a) "2nd Question: May I present my Motion for Continuance as it is currently written in person at the beginning of the Hearing on Monday morning, before the Court hears the Plaintiff's case supporting their requesting a Summary Judgment?
If the Judge has not ruled on your Motion and you plan to appear on Monday, you would have to first request permission from the Judge to allow you to present your Motion for a Continuance and it would be in the Judge's discretion as to whether or not your Motion for a Continuance will be heard;
"2(b) That would be a wonderful idea don't you think? Maybe I could win the continuance, and put a stop to the Hearing for Summary Judgment right there!"
Yes, that would be a wonderful idea, if your request was not being made at this late date. I had stated in one of my previous Answers to you that absent an unexpected and extreme emergency, Judge's are reluctant to keep granting continuances because they want to move cases along and clear their trial calendars. If the Judge grants your Motion for a Continuance, it does not eliminate plaintiff's Motion for Summary Judgment, it merely postpones it.
If the original date set by the Court for the hearing on Plaintiff's Motion for Summary Judgment was November 18, 2013, that means that he filed his Motion with the Court and served it on you a couple of months prior to that. Did you file a responsive pleading ? It would have been title something liker this -
"Defendant's Objections to Plaintiff's Motion for Summary Judgment"
And, in this responsive pleading, you would point out the specific issues which are very material to the case, which are very much in dispute, and allege that these issues must go to trial, and, therefore, the plaintiff's Motion for Summary Judgment must be denied;
3. "You said something astounding in your last answer that I would like to explore. You said,"By the way, plaintiff's Attorney probably submitted a "Memorandum of Law in support of its Motion for Summary Judgment" and you are entitled to a copy of the Memorandum because a litigant is entitled to a copy of anything their opponent files with the Court."
Please allow me to clarify this, The Memorandum of Law is technically not a pleading. It is used in support of a Motion. If a litigant files a Memorandum of Law in Support of their Motion, they can hand the Memorandum of Law to the opposing party the date of the hearing. Unlike Memoranda of Law, pleadings must be served on opposing parties and if they did not, then the opposing party would argue to the Court that he cannot defend if he does not know what the opposing party alleged in that particular pleading. The Judge does not dismiss the case, but merely continues the hearing to a later date so that the pleading can be served on the opposing party who will then file a responsive pleading with the Court and serve it on the other party,
Thanks again for your thoughtful answers to my last set of questions. Your response was dated today, February 28th at 5:25 AM EST. Are you on CST as I am here in Puerto Vallarta?
From your first answer, I can see that I either have to appear at the Hearing in person on Monday, or via a Telephonic Hearing, if the Judge will permit that form of hearing instead. I will call her Judicial Assistant, Jenni Campbell right after I send this to you, and ask her if the Judge allows Telephonic Hearings.
In either case, I will ask the Judge for her permission to present my Motion for Continuance at the outset of the Hearing, if she has not rendered a ruling on it before the time of the Hearing on Monday. It may be a “long shot” at this point as you have pointed out, but it is all ready written and has been sent to her via D.H.L., so I might as well present it if she will allow it. I realize that a continuance does not eliminate the Plaintiff’s Motion for Summary Judgment, but only postpones it.
In answer to your question about filing an answer to the Plaintiff’s Motion for Summary Judgment, unfortunately I did not file a responsive pleading to the Plaintiff’s Motion for Summary Judgment. I wasn’t aware that I should do that before the Hearing on their Motion, but instead thought that I was expected to present my “Objections” at the Hearing. Looking back on it with the benefit of what I know now, that was obviously an erroneous assumption on my part, and I will have to do it now when the Hearing takes place.
You described the components of such a responsive pleading as consisting of:
I will need your help in identifying the specific material issues in the case, which form the basis for these objections. Can you please help me with that today and tomorrow?
Based on your explanation of The Memorandum of Law not being a pleading, and since the Plaintiff’s Motion for Summary Judgment was given to me, I understand that we do not have anything viable to help my case in that regard. I was disappointed to hear that, but understand what you said.
I think I actually only asked one specific question in all of my ramblings here, but if you have any additional thoughts or comments that are relevant to what I have stated here, please include them in your response.
Thank you for your answers and quidance.
In Answer to your question of time zones, I am on Eastern Standard Time. I am a native New Yorker, Manhattanite, to be exact, poorly transplanted in Drexel Hill, pa, Delaware county which is right outside Philadelphia, so yes, it was 5:25 AM when I posted my Answer.
I knew that you were sending your Motion for a Continuance by DHL, but I thought you were also including your Objections to plaintiff's motion. I thought to myself that it was rather late to be filing a responsive pleading, but then mistakenly assumed that you probably had filed it long before now. Do not feel bad for not knowing that you were supposed to file responsive pleading. It is impossible for a Pro Se litigant to know all the rules of civil procedure, it is not a "learn as you go" subject and it is fraught with pitfalls. It is important to remember that as a general rule, every pleading requires a response to be filed with the Court and served on the opposing party well in advance of any hearing date and anything not denied is deemed admitted.
I am certainly willing to help you, but it will be difficult since I do not have any of the facts about your case. I do not know what the plaintiff pleaded in their complaint, or their Motion for Summary Judgment and what and how you refuted their allegations in your Answer to their Complaint.
Thanks for answer my question about your time zone. It helps me when I’m communicating with people to know what time of day or night it is where they are, when I am making contact.
Good news, my Motion for Continuance was delivered to the Court today at 11:30 AM local time and was given immediately to the Judge by Jenni Campbell, her Judicial Assistant. Just before the paperwork arrived at the Court, I talked with Jenni and I asked her about how to request a Telephonic Hearing as a “Back-up” Motion in case my Motion for Continuance was denied, or not ruled upon today. She said I could request it over the phone, but that she preferred for me to write it and attach it to an email sent to her address. I have all ready done that, so the Judge will receive the Motion for a Telephonic Hearing in writing today as well as my Motion for Continuance.
Thank you for your consoling words regarding the mistakes I have made thus far in the case. Even though they don’t change the situation materially, they are never the less appreciated.
Because “anything not denied is deemed admitted” as you said, the need for me to formulate and present my “objections” to the Plaintiff’s allegations and opinions regarding my side of the issues in this case, becomes even more crucial to not loosing the case, and my home, in short order. This is what I want to focus on and prepare, now that the Motions for Continuance and Telephonic Hearing have been submitted, and I am awaiting the Judge’s rulings.
What is the best way for me to give you an overview of the facts from my case? I have digital copies of the Summons and Complaint, my Answer to the Complaint, the Plaintiff’s reply to my Answer, and the Plaintiff’s Motion for Summary Judgment. I can send them to you via email, or I can try to summarize them more briefly, but I want to find a way to give you a better understanding of the case. I understand why you need to know more about the details of the case and the issues that have been stated, in order to help me formulate an effective response to the Motion for Summary Judgment. So I would like to do that if I can. How would you suggest we approach this?
I don’t want to win the case at this point in time, I just want to deny the Plaintiff’s request for Summary Judgment and continue the case further. With a little more time I think I can find a way to either reinstate my loan with the bank, or to sell the house to pay the bank, and avoid a foreclosure.
I’ll be anxiously awaiting your reply.
I'm glad you received good news, now let's just keep our fingers crossed so that your Motion for a Continuance is granted. Did you call the Judge's assistant again to see if the Judge ruled on your motion ? I just had a thought, the Judge probably will not rule on it today because it would be too late to give plaintiff notice of the continuance of the Monday hearing date, but maybe she will grant your motion on Monday. With respect to giving me information so that I have an overview of what has transpired, I would prefer to read the pleadings myself to see if I can find any viable issue(s) which are both material and in dispute. We are not supposed to have any contact with customers, except in this Q&A format and by telephone through 'Additional Services', so I am not permitted to give out my email address. justanswer regularly checks our dialogues with customers to insure that there is no such communication and it has software that picks up and x's out anything that looks like an email address or the digits in phone numbers. But, if a customer writes out their phone number in words, the software does not pick it up, for example, sixonezero,twofive, etc. You can send the pleadings to me as attachments to your reply. Objections to a party's Motion for Summary Judgment entails a lot of work and many hours of researching Statutes and case law, and then drafting the actual responsive pleading. From a monetary standpoint, I do not know how that will work because justanswer does not pay us and the only compensation we receive is the value of a customer's question when the customer leaves a rating and most questions, yours included are valued at twelve dollars. That is why I said I do not know how it would be possible from a monetary standpoint. Let me know your thoughts. Thank you for the Excellent Service rating you gave me. Can you tell me please at what time you gave the latest rating ? I think we might be having some technical problems because a lot of things are not appearing where they are supposed to be and I need a basis of comparison,
Please be kind enough to leave a rating of "Excellent Service". The deposit you made is with JustAnswer and it will not cost you anything additional to leave a positive rating, but it is the only way that I can receive credit for researching your question and furnishing you with Answers, Thank you for your understanding,
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First, to answer your question about what time I gave you the last rating, which would be the rating answer yesterday that you sent at about 4:48 PM EST. I rated it right after reading your remarks, so it would have been approximately 5:00 PM EST yesterday.
Your latest answer, which you sent at about 1:30 AM EST today, I rated it at approximately 2:00 PM EST today.
If you would like, I can keep of record of the day and time that I give you each rating from here on out. Just let me know if you want me to do that. I hope that the information above is helpful to you.
I have somewhat good news to report following my last response to you yesterday. The Judge didn’t wait until Monday to rule on my (2) Motions as you thought she might, but ruled on them at the end of the day yesterday and her assistant sent both the Attorney for the Plaintiff and myself an email informing us of her decision.
She denied my Motion for Continuance, but granted my Motion for Telephonic Hearing. Her Judicial Assistant asked me to call her on Monday morning at 10:00 AM PST to receive further instructions. She will give me a specific phone number and time to call to initiate the Telephonic Hearing with the Judge and the Plaintiff’s attorney.
I am relieved at not having to fly at the last moment to Portland Oregon, but disappointed at hearing the denial of my Motion for Continuance, even though I knew it was a slim possibility. I was just holding out hope anyway I guess.
Now, I am panicking a little bit right now, thinking about how I am going to arm myself with sufficient information to present to the Judge, which will support a decision to deny the Plaintiff’s Motion for Summary Judgment on Monday. That brings us back to the question of how to give you an overview so that you can help me with that burden.
I would like to talk with you about the monetary questions that you referred to, zerooneonefivetwothreetwoninetwonineeightzeroeightsixsix. as soon as possible. I hope we can continue to work together to formulate an answer prior to the Hearing on Monday. Please send me any ideas you may have.
As I said in my last set of questions yesterday, I have digital copies of the Summons and Complaint, my Answer to the Complaint, the Plaintiff’s reply to my Answer, and the Plaintiff’s Motion for Summary Judgment. I understand why you need to know the details of the case the issues that have been stated, in order to help me formulate an effective response to the Motion for Summary Judgment. So I would like to do that if we can. What would you suggest? I hope you are available to answer quickly today as time is getting short.
Hi, Gary, please give me about 40 minutes because there are some things I have to finish up first,
Ok, I'll wait until you are ready.
Running a little late, need about 25 minutes,
Well, I'm back in the saddle again as they say in the West and it's time to do battle once again.
Just to bring you up to date on my foreclosure case, this is what has taken place since we last exchanged questions and answers:
1. On March 3rd the Plaintiff's Motion for Summary Judgment was granted, following the conclusion of the arguments I raised in objection to their motion, during the Telephonic Hearing. The Judge casually dismissed each of my objections to the various errors, omissions, and contradictions that the Plaintiff has made, and granted their motion.
2. The Plaintiff pointed out to the Judge that if she granted their motion, that I could still employ my application for a "Loan Modification", as a way of preventing them from utilizing the motion for summary judgment and proceeding to the Sheriff's Sale. He implied by his statement that I really wasn't at the end of my rope should she decide to grant their motion.
3. The Judge herself volunteered that I could also file a Motion for Reconsideration in order to defer the implementation of the Summary Judgment.
4. The Judge also informed me that her decision would be "recorded" or "entered" a week later on March 10th. She didn't say anything further.
5. I called the clerk of the Court and was told that the same Judge would hear a Motion for Reconsideration, if I chose to file it. They also gave me the phone number to contact the Appeals Court for further questions regarding filing an appeal of the Judge's decision.
I would like to file a Motion for Reconsideration if it is not too late, but am not sure how to word such a motion, except to restate the arguments I made at the March 3rd Hearing, which she rejected.
What is the simplest and best way to word such a motion? What should it contain?Thank you in advance for your answer.
Hi, Gary, Welcome back,
My apologies for the delay, but I was not online,
First, a brief comment on opposing counsel's remark that you could still use your application for modification to prevent them from using their summary judgment motion. Did plaintiff forget that you have already submitted your application for modification to plaintiff bank and that does not seem to have deterred them from moving forward.
Second, I think that simultaneously with filing a Motion for Reconsideration, you should write a diplomatic letter to someone at the top at the bank, informing them that they are not dealing in good faith with you because if they were, one hand would not be asking you for information for your loan modification while the other hand is trying to take your property away.
In Answer to your question of the Motion for Reconsideration, you must point out the facts to which the Judge did not give adequate weight, the weight they should have received, and if she had, she would have had to deny plaintiff's Motion for Summary Judgment. If you make the same arguments as you made during the hearing, there would be nothing for the Judge to reconsider. What you want and need to do is point to things which should have been considered and should have been given more weight, that is how you want the Judge to "reconsider" the proceedings and change the judgment she initially entered in favor of the plaintiff, otherwise you would be making the same arguments all over again and there would be nothing to reconsider. You should select some issues and facts to which the Judge should have given more weight, tell her why they deserve more weight, and also tell her that if she had given them the weight that they should have been given, she would have had to deny plaintiff's Motion for Summary Judgment,
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Thank you for your answer regarding filing a Motion for Reconsideration. I will follow your suggestions and draft the motion in the manner you have recommended. Even if the Judge is not swayed, it is still worth a try and may buy a little more time by extending the legal process further in time, and that is very valuable to me.
If this motion is denied, then I will have to consider filing an Appeal of the Judge's ruling to grant the Plaintiff's Motion for Summary Judgment.
I called the Clerk on the 19th and was told that the Judge's Ruling of March 3rd was filed with the Clerk on March 12, and is awaiting her signature. They said that it usually takes about two weeks for the Judge to sign the Order and send it back to them, so I still have time to send my Motion for Reconsideration if I move quickly. Any additional ideas you may have would be very much appreciated.
I last wrote to you on March 22nd and I want to bring you up to date on what has happened in my defense of the foreclosure suit against my home since then.
I filed my Motion for Reconsideration in the manner you had suggested in your last reply on April 7th. I didn't expect it to be granted, even though there are valid grounds for the Judge to justify reversing her decision to grant the Plaintiff's Motion for Summary Judgment, but I wanted to use this technique to buy a little more time.
The Judge denied my Motion for Reconsideration on April 28th according to the Clerk who I spoke to yesterday, so, now it is time to take the next step in defending this case.
I am considering filing an Appeal of the Judge's decision to grant the Plaintiff Summary Judgment, or foregoing that step and applying in writing to the lender for a 'Loan Modification", which I can now qualify for due to the passage of more than six months, and the documentation of income that the application requires. Now, I can satisfy those requirements, where as I couldn't when I first inquired over the phone to the bank.
Which do you think is the best option, or would it be wise to pursue both options at once. Approximately how much time do I have to file an Appeal before that option expires. Unless it is too costly in terms of the filing fee, I would like to file an Appeal and then follow-up with an application for a "Loan Modification" if my appeal is denied.
Are there other tactics in addition to these two that I could employ to extend the judicial process?
The Plaintiff could ask the Court to issue an order to the County Sheriff's Department, to schedule a Sheriff's Sale of the property, if I do nothing. I don't know how fast they may move to do that, so I want to move quickly to prevent it. There is still a good chance I can either work with the lender under the terms of a modified loan agreement, or sell the house in the summer (July - August) and pay them, thereby avoiding a foreclosure on my credit history, but I need time to do both.
Thank you for your answer in advance. I'll await your reply.
Hi, Gary, Welcome back, it's good to hear from you,
The best way to handle this is to do everything simultaneously because there are time constraints involved in every legal step one takes. Therefore, if you are planning on filing an Appeal, file the Appeal, but communicate with the lender about getting a loan modification. You should have had the loan modification application already filled out and as soon as you had the 6 months worth of income that the lender was requesting, you could have simply faxed the loan modification application immediately to them and that would have been in the works. And, it might have bought you some points with the lender's attorney by telling them that you had already submitted a loan modification application. But, that is water under the bridge.
Since you are submitting your Motion for Reconsideration, the only other two options which you can pursue are the Appeal and the loan modification application,
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Thanks for your prompt answer to my last question regarding what is best to do next in my civil case with my lender. I will call the Appeals Court tomorrow and proceed with filing my appeal. I will also prepare and file the Loan Modification Application as you have recommended.
I left you an "Excellent" rating as usual and a small tip for your service. I'm sure I will have more questions for you as the case goes forward.
Have a nice weekend.
I all ready thought of another question that just popped into my mind, but it's a brief one.
At the moment I file the Appeal, will that prevent the Plaintiff from requesting the scheduling of a "Sheriff's Sale", or if a sale date has been set, will that automatically postpone it until the Appeal has been heard and a ruling issued?
Hi, Gary, I apologize for the delay in my response, but there are so many changes going on and JA does not always tell us when a customer has sent a reply,
In Answer to your question of whether an Appeal will delay or postpone the Sheriff's Sale, theoretically, it should because an Appellate Court might reverse the lower Court and it would be a big mess in trying to unscramble a sale which has already occurred, but unfortunately, it does not delay or postpone a Sheriff's Sale, hence the big mess at the end in trying to undo a Sheriff's Sale. Your best bet, therefore, is to work very quickly for the loan modification. You have a better chance at having the Sheriff's Sale postponed if you tell the plaintiff's attorney that you are working with Mr. So and So and that it would be counterproductive for him to hold the Sheriff's Sale in light of your loan modification application being considered,
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