8/4/2019 Sample Motion for Dismissal of Summary Judgment

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MOTION FOR DISMISSAL OF SUMMARY JUDGMENT

Comes now the Defendant,XXXXXXXXXXX, and files this REPLY AND OPPOSITION

TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For

Summary Judgment filed herein by Plaintiff, <Your Plantiff>, Inc., as follows:

1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a

matter of law.

A party moving for summary judgment has the responsibility of informing the

court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file with the affidavits,

if any, which it believes demonstrates the absence of a genuine issue of material

fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary

Judgment filed with the Court. The Motion does not set forth the True facts uponwhich Plaintiff seeks a summary judgment. Rather the Motion states only “That

there is no genuine issue as to any material fact and that Plaintiff is entitled to a

 judgment as a matter of law with regard to all Counts.” Motion for Summary

Judgment should be denied.

2. Defendant received the Plaintiff's Summons on <Date upon which You received

Summons>. Defendant answered the request on <Date which you answered

Summons>.

3. Trial was set for <Date on which trail was set for>.

4. Motion for discovery was filed on <date the motion was filed>. Documents

requested from plaintiff included any documentation of relationship between

plaintiff and RSC, the alleged original plaintiff, any payment history, and any

breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate

defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

[The appeals court overturned the default summary in Spears vs. Brennan

Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the

collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g

(b) Validation of Debts.]

5. The Plaintiff has failed to provide any contract, an agreement bearing the

signature of the Defendant or any itemized statements or billing of said debts

which would constitute intimate knowledge of the creation of the debt. Even if 

such documents were available, a purchasing/assignee’s plaintiff would be unable

to swear to the authenticity of the originating or source documents of a credit

transaction because they do not have personal knowledge of the events which

transpired at that period of time in the life of the credit agreement. The original

8/4/2019 Sample Motion for Dismissal of Summary Judgment

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cardholder agreement, any correspondence, and monthly statements issued by the

original credit grantor are not admissible as the purchasing plaintiff's business

records, as the purchasing plaintiff has no personal knowledge of how those

records were created or maintained.

6. Defendant alleges that this action is time-barred under § 735 ILCS 5/13-204-735 ILCS 5/13-206 under Illinois’s civil code (statute of limitations for open

accounts is 5 years). Per the Plaintiff’s own summons, date of last payment was

XXXXXXX. Date of summons was XXXXXX.

7. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's

Complaint and each cause of action therein fails to state facts sufficient to

constitute a cause of action against the Defendant for which relief can be granted.

8. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the

initial debt collection notice as require by the FDCPA and as evidence by case law.

Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct.29, 2002) – Information relating to the purchase of a bad debt is not proprietary

or burdensome. Debtor must phrase their request clearly to obtain: The source of 

a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount

sought was calculated, where in issue a list of reports to credit bureaus, and

documents conferring authority on defendant to collect debt.

WHEREFORE, Defendant, XXXXXXXXXX, respectfully submits that the Court should

deny the Plaintiff's Motion and Supplemental Motion for Summary Judgment, filed

herein by National Check Bureau and prays for Dismissal of the complaint by the

Plaintiff for damages of $XXXXXX and any further relief this court deems just and

proper.