Motion to set aside judgment

[adjusterjack]

As Zigner noted, the case is new. All of this is very recent, except for the debt which is old.

The sworn affidavit is dated. I assume it took the motion+affidavit a couple/few days to travel from out of state mail to my address as well as the court. A few days later, the judgement was issued. We are talking ~1 week here in which all of that happened. I could be wrong, I am not a lawyer, but I would be surprised if the judgement against me happened because I failed to respond in a timely manner. I don't know of any deadlines that are so quick. I had 20 days to respond to the answer, for instance.

Let's find out just how recent.

ANSWER THE FOLLOWING QUESTIONS:

What was the exact DATE that the Motion for Summary Judgment was FILED WITH THE COURT?

What was the exact DATE that you received it?

What was the exact DATE that the judge issued his ruling on the Motion for Summary Judgment?

You can look up the first and third dates on the court docket.

Rule 56. Summary Judgment
(C) Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.

There's a lot more to Rule 56 so you'd better read all of it:

http://www.in.gov/judiciary/rules/trial_proc/#_Toc502746827

One more thing. If you have, or will get, a copy of the judge's ruling and quote it here in it's entirety, we may be able to explain why your comments might or might not have made any difference.

 

[quincy]

I don't understand how it doesn't change the facts of the case. Under the terms of the contract, the creditor had obligations they had to satisfy according to the law. I would argue they did not satisfy those obligations. It is discouraging to have something like that overlooked and not even be able to defend my case.

Would the end results be different? If not, there is little worth doing at this point.

 

[Information3]

Adjusterjack,

I tried to respond but I think it didn't go through. Let me try again.

1. According to the docket, "Plaintiff's Motion For Summary Judgment With Attached Affidavit" was filed with the court on Feb. 14, 2018.

2. The judge signed the "Order Granting Motion For Summary Judgment" on the same day, Feb. 14, 2018.

3. I do not know the exact date I received these documents. I was out of town for a week around that time visiting my sick mother. When I returned in late February I had both envelopes from Plaintiff's attorneys and Court in my mailbox. I had been waiting for further communication and direction on the case and was very discouraged and angry to find out I did not even get to defend myself.

I looked at Rule 56 you linked and I see "30 days" and "10 days". I don't see anything about plaintiff filing motion and it being granted the same day and defendant finding out about it later.

The judge's ruling states:

"Upon Plaintiff's Motion for Summary Judgment against Defendant [....], the Court finds that, when viewing the facts of this case in a light most favorable to the Defendant, it is clear that there is no genuine issue as to any material fact that remains to be litigated, and that Plaintiff is entitled to judgement as a matter of law."

But this not true because it does not take into consideration the time-component of the statute. Their obligations under the contract included them providing me with documents and counseling services after I exited the lending program. They mistakenly provided those services to me under different circumstances and before further debt was incurred in the middle of the program. The documents they submitted in their motion were dated 2008. By law, they would have to have occurred after they learned I exited the lending program, by any reasonable measure sometime during 2010. This is what I would argue in court, they did not fulfill their obligations of the contract, which would have informed me of rights and resources to consolidate or absolve or defer some or all of the debt.

 

[adjusterjack]

You should have been given 30 days to respond to the MSJ. If your response had requested a hearing the judge would have another 10 days to conduct one.

You may actually have grounds to have the judgment set aside under Rule 60 (1) or (8).

However, note that when filing your motion you "must allege a meritorious claim or defense."

Based on Rule 56(C) your "meritorious claim or defense" should include a designation of "all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto."

That means you don't just say that you didn't get your 30 days to respond, you have to convince the judge that you had something that could have challenged the MSJ had you been given the opportunity to present it.

But this not true because it does not take into consideration the time-component of the statute. Their obligations under the contract included them providing me with documents and counseling services after I exited the lending program. They mistakenly provided those services to me under different circumstances and before further debt was incurred in the middle of the program. The documents they submitted in their motion were dated 2008. By law, they would have to have occurred after they learned I exited the lending program, by any reasonable measure sometime during 2010. This is what I would argue in court, they did not fulfill their obligations of the contract, which would have informed me of rights and resources to consolidate or absolve or defer some or all of the debt.

Saying just that isn't going to be enough.

What EVIDENCE do you have of their "obligations"?
What EVIDENCE do you have that provided those services under "different circumstances" that they were obligated to.

I'm not going to belabor the EVIDENCE emphasis. Just pointing out that your "sayso" isn't enough.

And, frankly, I'm not sure that you are up to getting it right.

If you aren't willing to get a lawyer to handle this for you, you might be better off consulting a bankruptcy lawyer. Bankruptcy, if appropriate, is a lot cheaper than continuing litigation of the debt.

 

[Information3]

You should have been given 30 days to respond to the MSJ. If your response had requested a hearing the judge would have another 10 days to conduct one.

You may actually have grounds to have the judgment set aside under Rule 60 (1) or (8).

However, note that when filing your motion you "must allege a meritorious claim or defense."

Based on Rule 56(C) your "meritorious claim or defense" should include a designation of "all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto."

That means you don't just say that you didn't get your 30 days to respond, you have to convince the judge that you had something that could have challenged the MSJ had you been given the opportunity to present it.

Thanks, Jack. Appreciate this! I feel confident I understand all the points you made here.

Saying just that isn't going to be enough.

What EVIDENCE do you have of their "obligations"?
What EVIDENCE do you have that provided those services under "different circumstances" that they were obligated to.

I'm not going to belabor the EVIDENCE emphasis. Just pointing out that your "sayso" isn't enough.

This one I thought I could just cite the statutes and Plaintiff's obligations, and point to their own exhibit as not meeting the lawful requirements.

And, frankly, I'm not sure that you are up to getting it right.

If you aren't willing to get a lawyer to handle this for you, you might be better off consulting a bankruptcy lawyer. Bankruptcy, if appropriate, is a lot cheaper than continuing litigation of the debt.

This could be true, but I don't have the money to hire an attorney. I have to do the best I can do. These are student loans that apparently cannot be discharged.

Here are the regulations, at least what I found:
https://www.law.cornell.edu/cfr/text/34/part-674

674.42(b) - Exit Counseling
(1)An institution must ensure that exit counseling is conducted with each borrower either in person, by audiovisual presentation, or by interactive electronic means. The institution must ensure that exit counseling is conducted shortly before the borrower ceases at least half-time study at the institution...[or] within 30 days after learning that the borrower has withdrawn from the institution or failed to complete exit counseling as required.

Plaintiff's attorneys submitted electronic documents with their motion that showed the school provided exit counseling, but these were dated in the middle of my studies when I was enrolled at another institution for a semester and did not even comply with the statute anyway! (it was neither shortly before I dropped below half-time enrollment, nor within 30 days of them learning that I was not enrolled at the school). They did the exit counseling when I was re-admitted to my university a semester later, and simply advised me that my loans had fallen back into normal deferment and/or grace period.

The letter of the law says: "must ensure that exit counseling is conducted shortly before the borrower ceases at least half-time study at the institution (...or within 30 days of the institution learning that the student is no longer enrolled)--
but I was enrolled again as a full-time student, continued my studies, incurred more debt, changed the conditions of 674.42(b)(i)(iii), and (iv), and finally dropped below half-time enrollment for good. No exit counseling.

Those are the points I would litigate.

I feel the nature of the Plaintiff's negligence is material because after I left uni, I have neither had any job, nor wages, nor house, nor car, nor assets that could be collected for payment. I found out I would have qualified for income based repayment (zero), if not been able to apply for hardship cancellation, partial or otherwise. If Plaintiff had simply fulfilled their obligations under the contract, it's likely or certain the loans would have never entered default, and I would like to defend myself and have my day in court.

 

[adjusterjack]

Then you do the best you can with what you've got.