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Rule 56 Motion

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  • Faith Farm
    In a credit card case, the opposition has filed a Rule 56 Motion for Summary Judgment. I helped my friends discharge their credit cards with promissory notes.
    Message 1 of 2 , Aug 11, 2008
      In a credit card case, the opposition has filed a Rule 56 Motion for
      Summary Judgment.

      I helped my friends discharge their credit cards with promissory
      notes. All have gone away like they usually do except this one.

      The lawyers filed suit to recover and we answered months ago, perhaps
      in February. Now they are coming with this Motion.

      The main points they are making are:

      1. We are relying upon an affirmative defense so the burden of proof
      is on us.

      2. They are stating that since the note was not "cashed" (language
      that we NEVER used) and that since they continued to bill for the
      balance on the account that this was clear and overwhelming evidence
      that they were not going to accept the note as payment.

      3. They claim that they have notified my friends that the note was
      not an acceptable payment. Of course they never returned the note!

      4. They have included the obligatory language that there is "no
      genuine issue of any material fact..."

      5. They end with, "The evidence of record contains no fact which
      would make it possible for the defendant to prevail at trial."

      We followed up the note with letters of inquiry after each time the
      bank continued to bill after the note was sent. All by certified RRR
      mail. It seems like a good way to overcome #5 above would be to bring
      up that this company never did acknowledge this demands for
      information. I would think that the court would love to see the five
      or six times we addressed the issue of the note, the paid balance and
      the encouragement to present the note for payment along with each RRR
      card verifying the delivery.

      My gut on this is to just stay on point: They received the note; they
      never presented it for payment; we contacted them about why they
      refused to honor UCC 304-1(4) on Negotiable Instruments, but...

      Having just moved for the third time this year, many of my law books,
      including my favorite Civil Procedure Before Trial series are still
      stored in boxes. I would like to get an Opposition to Motion for
      summary Judgment as soon as possible and if anyone on the list has
      attacked this issue under similar circumstances, I would appreciate
      any comment or suggestions.

      Tim Kiley
    • mn_chicago
      Tuesday 12 August 2008 I am not familiar with rule 56, but in Illinois, a response to summary judgment has to be accompanied by an affidavit or the response
      Message 2 of 2 , Aug 12, 2008
        Tuesday 12 August 2008

        I am not familiar with rule 56, but in Illinois,
        a response to summary judgment has to be
        accompanied by an affidavit or the response has
        no validity.

        Read rule 56 to see wht is required by both
        parties, especially you, and construct your
        response accordingly.

        Sending in notes as payment has to be taken as
        acknowledgment that you or your friend accept the
        debt as valid. That precludes a whole lot of
        denial arguments.
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