Pro Se Defendant’s Response to Debt Buyer Motion for Summary Judgment

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT

COMES NOW the Defendant, <<DEFENDANT>>, and files this Response in Opposition to Plaintiffs Motion for Summary Judgment and Brief in Support thereof pursuant to O.C.G.A. § 9-11-56(e) and shows that the Court should deny Plaintiffs’ Motion for Summary Judgment. In support of this Response, Defendant relies upon the following:

1.   That Plaintiff <<DB-1>> is not a real party in interest and lacks standing to bring this action against Defendant;

2.   That neither Plaintiff <<DB-1>>, Plaintiff <<DB-2>>; Plaintiff <<DB-3>>; nor Plaintiff <<DB-4>> are a legal assignee of a debt allegedly owed by Defendant to Plaintiff <<ORIGINAL CREDITOR>> and

3.   Because significant elements of discovery remain as yet incomplete, and the discovery period for this civil action has not yet concluded, Plaintiffs’ Motion for Summary Judgment is premature and thus should be denied.

RELEVANT FACTS

Plaintiffs filed suit against Defendant on a credit card account on <<DATE>>, alleging in the Complaint on Contract that Plaintiff <<DB-1>> was a legal assignee of an account originally established with Plaintiff <<ORIGINAL CREDITOR>>, and that Defendant had defaulted on a credit card agreement connected with the account. As an alleged assignee, Plaintiff <<DB-1>> alleged that Defendant owed an outstanding balance to Plaintiff <<DB-1>> of << $ >> and interest in the amount of << $ >>, along with additional interest of << # >> percent from <<DATE>>, and that “in the usual course of business, said account was ultimately assigned to <<DB-1>>.” Plaintiff’s Complaint, which was served upon Defendant on <<DATE>>, contains no verifiable evidence of any assignment, and Plaintiff <<DB-1>> has yet to provide evidence of any legal assignment.
Defendant’s Answer to Plaintiffs’ Complaint on Contract was filed with the Court on <<DATE>> and served upon Plaintiffs’ counsel by mail on <<DATE>>. Defendant served his First Request for Admission of Facts upon Plaintiffs on <<DATE>>, and his First Interrogatories and First Request for Production of Documents on <<DATE>>. Plaintiffs’ Responses to Defendant’s First Request for Admission of Facts were served on <<DATE>>, and Plaintiffs’ undated responses to Defendant’s Interrogatories and Request for Production of Documents were mailed to Defendant on <<DATE>>. The discovery period for this civil action expires <<DATE>>.

ARGUMENT AND AUTHORITY

A.     Summary Judgment Standard.

Georgia law has consistently held that summary judgment is an extreme sanction and should be granted in only the clearest and rarest of cases. Grier v. Kanon Service Corp., 217 Ga. App. 110, 456 S.E.2d 690 (1995). Indeed, to prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474, 475 (1991). While evidence of a movant for summary judgment is to be carefully scrutinized, a respondent’s evidence is to be treated with indulgence. Layfield v. Department of Transp., 280 Ga. 848, 632 S.E.2d 135 (2006). The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact. O’Connell v. Cora Bett Thomas Realty, 254 Ga. App. 311, 563 S.E.2d 167 (2002) citing Traicoff v. Withers, 247 Ga. App. 428, 544 S.E.2d 177 (2000).

B.     Disputed Material Facts Preclude Summary Judgment.

Plaintiffs’ action is not supported by sufficient evidence of a written assignment to prove that either Plaintiff <<DB-1>>, Plaintiff <<DB-2>>, Plaintiff <<DB-3>> or Plaintiff <<DB-4>> are real parties in interest. Without such evidence, Plaintiff <<DB-1>> does not have legal standing to recover on the subject credit card account as an assignee. In Plaintiffs’ Responses to Defendant’s First Request for Admission of Facts to Plaintiffs Nos. 5, 6, 7 and 8, Plaintiff <<DB-1>> admits the following:

1.   Plaintiff <<DB-1>> is not the original creditor of the alleged debt which is the subject of this litigation;

2.    Plaintiff <<DB-1>> is not an affiliate or subsidiary of Plaintiff <<ORIGINAL CREDITOR>>;

3.    Plaintiff <<DB-1>> does not now nor has ever originated documents for Plaintiff <<ORIGINAL CREDITOR>> that would be maintained by Plaintiff <<ORIGINAL CREDITOR>> in its regular course of business; and

4.  Plaintiff <<DB-1>> does not control or maintain documents for the benefit of Plaintiff <<ORIGINAL CREDITOR>>.

See Defendant’s First Request for Admission of Facts to Plaintiffs and Plaintiff <<DB-1>>’s Responses, filed as original discovery with the Court. Yet in Paragraph 8 of the Affidavit in Support of Plaintiffs’ Motion for Summary Judgment, affiant <<NAME>> attests that “… the Defendant owes the Plaintiff the principal balance amount of << $ >> …” without providing the necessary documentation illustrating for the Court – nor indeed, any evidence whatsoever – that Plaintiff <<ORIGINAL CREDITOR>> assigned to Plaintiff <<DB-4>>, which subsequently assigned to Plaintiff <<DB-3>>, which subsequently assigned to Plaintiff <<DB-2>>, which subsequently assigned to Plaintiff <<DB-1>> the right to sue Defendant under the standards required by Georgia law. See Exhibit A to Affidavit in Support of Plaintiffs’ Motion for Summary Judgment (“<<NAME>> Affidavit”). At the very least, the lack of proffered evidence of assignation is a question of fact for a jury.

The facts of this case are very similar to Wirth v. Cach, 300 Ga. App. 488, 685 S.E.2d 433 (2009), save for the fact that in the instant action, the chain of alleged assignees is considerably longer, and thus the Plaintiffs’ burden of proving the chain of assignment more difficult. “The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee.” Wirth v. Cach, 300 Ga. App. 489 (2009).

Plaintiffs rely on not only the <<NAME>> Affidavit, but several unauthenticated documents which purport to illustrate that Plaintiff <<ORIGINAL CREDITOR>> entered into a credit card agreement with Defendant, which was subsequently assigned to Plaintiff <<DB-4>> and then in turn down the line to each named Plaintiff, ending with Plaintiff <<DB-1>>. See Exhibit A to the <<NAME>> Affidavit. However, the one-page Bill of Sale from Plaintiff <<ORIGINAL CREDITOR>> proffered by Plaintiffs purports to show a chain of assignment between Plaintiff <<ORIGINAL CREDITOR>> and an entity known as <<DIFFERENT DB>>– not Plaintiff <<DB-2>> – which fails the standard for a chain of assignment set by Wirth. Id.; Wirth at 489. The Bill of Sale also does not identify Defendant’s account number as one of the accounts assigned by Plaintiff <<ORIGINAL CREDITOR>>, which is also required by the standard set by Wirth. Id.; Wirth at p. 491. For Plaintiffs to prevail on their Motion for Summary Judgment, Plaintiffs have the burden of establishing the non-existence of any genuine issue of fact – including Defendant’s position that Plaintiff <<DB-1>> is not the real party in interest. Id. at 489; citing Sawgrass Builders v. Key, 212 Ga. App. 138, 441 S.E.2d 99 (1994).

C.    Since Discovery Has Not Yet Been Completed, Plaintiffs’ Motion for Summary Judgment is Premature and Should Be Denied.

If the disputed issues of material fact are not sufficiently established at this time, Plaintiffs’ Motion for Summary Judgment should nevertheless be denied because it is premature. A party opposing a motion for summary judgment has the right to conduct appropriate and necessary discovery prior to responding to such a motion. Ericson v. Hodges, 257 Ga. App. 144, 570 S.E.2d 420 (2002); Shipley v. Handicaps Mobility Systems, Inc., 222 Ga. App. 101, 473 S.E.2d 553 (1996); Ross v. Ninety-Two, Ltd., 201 Ga. App. 887, 412 S.E.2d 876 (1991); and Watkins v. Nationwide Mutual Fire Insurance Company, 113 Ga. App. 801-802, 149 S.E.2d 749 (1966). A trial court must abstain from ruling on a motion for summary judgment until the party against whom such a judgment is sought has completed the discovery to which it is entitled. See id. Premature summary judgment deprives a non-moving party of the opportunity to develop proof of triable issues of fact as to his claims. See id.

Plaintiffs’ responses to Defendant’s First Interrogatories and First Request for Production of Documents, while undated, were mailed out on <<DATE>> – a full 12 days after Plaintiffs filed their Motion for Summary Judgment. Defendant has reviewed those responses and believes them to be deficient in that Plaintiffs have not provided key documents and responses to Interrogatories that Defendant is entitled to under the Georgia Civil Practice Act and which would conclusively prove not only that Plaintiffs do not have the documentation sufficient to prove the proper chain of assignment, but that Plaintiff <<ORIGINAL CREDITOR>> has been unjustly enriched and thus not entitled to summary judgment as a matter of law.

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court DENY Plaintiffs’ Motion for Summary Judgment, as substantial issues exist and material facts are controverted in good faith and should be decided by the jury. A proposed Order is attached for the convenience of the Court.

Respectfully submitted, this _______ day of ________, 20xx.

_________________________________________

<<DEFENDANT>>, Pro Se
Defendant
<<DEFENDANT’S ADDRESS>>
<<DEFENDANT’S TELEPHONE>>

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