Rule 56 Motion
- In a credit card case, the opposition has filed a Rule 56 Motion for
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.
- 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
Read rule 56 to see wht is required by both
parties, especially you, and construct your
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