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Roger
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 31520
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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7/24/13 Order setting Hearing on dismissal due to inactivity

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7/24/13 Order setting Hearing on dismissal due to inactivity (Judge)
7/26/13 Motion for summary judgement 9/24
7/31/13 Motion to XXXXX on Dismissal for 9/24
7/31/13 Order vacating hearing for dismissal on 9/24
8/01/13 Summary Judgement Scheduling Order
8/23/13 Defendants Motion for Extension of Time
8/23/13 Order granting motion for Extension of Time
8/28/13 Plantiff’s Objection to Defendants Motion for Extension of Time
9/14/13 Discovery Request (I had verbally requested the original loan &
doc but did not request in writing).


Questions:

At what point does the defendant get to present the whole picture to the court? I do not feel I have been able to express what my issues are with this case. In the answers, defenses and counterclaim I feel it was not detailed enough. So, how/when do I dispute what they are saying and point out what I want to point out? At what point can additional defenses be introduced?

What is the appropriate form called to respond to the summary judgement?
In essence what is the next step? Can you show me a sample? How detailed does it need to be? This has been going on since 2009; and I have three 2” binders full of documentation.

What are the next steps by the court if a summary judgement is NOT granted?

What are the next steps by the court if a summary judgement IS granted?

Kirk Adams : Hi - thanks for requesting me.
Kirk Adams :

You will be able to argue your case/your side in your responses to the dispositive motions that are filed (motion for summary judgment and/or motion to dismiss).

Kirk Adams :

Your response will lay out your position and explain why the other party is incorrect.

Kirk Adams :

As for raising additional defenses, you can only do that by amending your answer and defenses to the complaint = = which has to be done by filing a motion for leave to amend.

Customer:

What is the response form called? How detailed do I get?

Kirk Adams :

The response to the summary judgment motion is "Defendant's Response to Plaintiff's Motion for Summary Judgment". I don't know if there's a form for this or not. You'll have to check with the clerk to see if they have a form.

Customer:

I guess what I need to know is what are the options for the filings; it is due on Tuesday.

Kirk Adams :

A response is done by responding to EACH paragraph separately (generally the same way complaints are responded to).

Kirk Adams :

You must admit or deny the allegations of each paragraph, and then explain why. Also, if you have evidence, documentation, testimony, affidavits, etc., you must add them the prove your point. You need to be as detailed as possible because if summary judgment is granted, the case is OVER - - there's no trial or other proceeding.

Customer:

So how do you poke holes in the evidence? I have read that it is not okay for them to for example say that they attached a copy of the original loan doc.

Kirk Adams :

Well, they can attest that it's a copy of the original document as the rules of evidence allow that - - however, if you challenge the authenticity of the document, you can raise that in your response and state that you've demanded that the original be produced for inspection and it hasn't, and you can argue this to the judge as well.

Customer:

So like they have an affidavit from the bank; how do you dispute that; is there a general response to that?

Kirk Adams :

You can dispute the content of the affidavit, and you could also attach your own affidavit if need be.

Customer:

Also, their documents are out of date in my opinion; they have not been updated since May. Is this worth pointing out?

Kirk Adams :

It's worth pointing out anything you can in order to survive a summary judgment motion.

Kirk Adams :

The rule for summary judgment to be granted is that the moving party (plaintiff here) must prove that there is NO GENUINE ISSUE OF MATERIAL fact and that it is entitled to a judgment as a matter of law.

Customer:

Also, do I provide my proof as evidence? Like the letters from them to me that prove my points?

Kirk Adams :

Thus, you must throw/cast any doubt you can that this isn't true in order to prevail. Basically, you have to show the court that there is at least one issue of fact that must be determined in order to survive the motion.

Kirk Adams :

YES, you must present your proof in order to rebut the allegations of the plaintiff.

Customer:

Okay, I think I have it. Are you online over the weekend or Monday at all?

Kirk Adams :

Yes, I should be around most of the weekend and Monday as well.

Customer:

I know what I need to say, it is just getting it in the appropriate forms that is the challenge for me.

Customer:

Thanks so much for your help. I appreciate it.

Kirk Adams :

No problem. THANK YOU for allowing me to assist. Please let me know if you need anything further.

Customer:

Have a good weekend.

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