HomeMy WebLinkAbout961338WYOMFSJ -.l
STATE OF WYOMING
COUNTY OF LINCOLN KEMMERER
COLLECTION PROFESSIONALS, INC..
vs
RONALD E BATOR
Plaintiff,
BY,/
Jr&
Sp ^■DRA L. Nim,^.M!(rS
CLERK OF CIRCUIT COURT
3•' 11.Ir DI° I ;T
Defendant (_IRCpLN COUNTY,STA[E OF WYOMING
IN THE CIRCUIT COURT
THIRD JUDICIAL DISTRICT
Before:
Action No. CV2010 -235
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
AND
MEMORANDUM OF LAW
0 0 0 I 54
COMES NOW the Plaintiff, Collection Professionals, Inc., by and
through its attorney, Dorothy A. Regis, and moves the Court for Summary
Judgment pursuant to Rule' 56, W.R.C.P.,in its favor against the
Defendant(s):
As grounds for its motion, Plaintiff states:
1. The Defendant(s) was(were) personally served with a copy of the
Summons and Complaint.
2. The Court has jurisdiction of the subject matter and parties to
this action.
3. There is no issue of material fact and Plaintiff is entitled to
Judgment as a matter of law.
4. The affidavits and exhibits enclosed with this Motion support the
allegations contained in Plaintiff's Complaint.
5. Plaintiff is entitled to Summary Judgment for the Complaint
amount of $1766.19 plus interest on the Judgment at the rate
of 10% per anumm.
A #1469383 37 Page 1 of 4
O
RECEIVED 10/11/2011 at 11:21 AM
RECEIVING 961338
BOOK: 774 PAGE: 154
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
WHEREFORE, Plaintiff prays for an Order granting Judgment against the
Defendant(s) as follows:
1. a) the assigned amount of $1556.257
b) collection costs as provided by contract in the amount of $0.00;
d) collection fees in the amount. of 0,00;,e) penalty fees
in the amount of $0.00; f) filing fees in the amount of $30,00;
and g) service fees in the amount of $30.00.
2. Service fees since the date of Complaint in the amount'bf
$0.00, pre judgment interest on the 'assigned amount of
$193.44 and continuing until this Court's entry of
Judgment in this matter, minus all payment(s) /credit(s)
in the amount of $0.00, Attorney's fees in the amount of
$0 00
3. Interest at the rate of 10% on the total Judgment amount
of $1809.69, plus accruing interest and costs.
IN FURTHER SUPPORT of the Plaintiff's Motion, Plaintiff
submits the following Memorandum of Law of Points and Authority.
A motion for grant of summary judgment under Rule 56, Wyoming
Rules of Civil Procedure (WRCP'), is proper when. "there is no genuine
issue as to any material fact and that the moving,party is entitled
to a judgment as a matter of law.;." Id. Attendant to that motion is
the responsibility, pursuant:: to WRCP, that' "[a]ll motions
filed pursuant to Rule 12 and 56 shall, and all other motions may,
contain or be accompanied by a memorandum of poin and authority,"
Id. This is a motion pursuant to Rule,5WWRCP., t.
The language controls in this case, "Shall" is a mandatory
term and "may" is permissive: Rawson, v. State, 900 P.2d 1136, 1138
(Wyo. 1995). A Memorandum of Law is required to attend a Motion for
Summary Judgment or the motion does not conform and must be denied.
Rule 7, WRCP. In cases where a Judgment on, the Pleadings is offered
pursuant to Rule 12 WRCP, such a Memorandum of Law, by the clear
language of the WRCP, Rule 7, is not required.
Summary Judgment is only at issue when the debt is denied but
the pleadings and affidavits declare otherwise. Moore v. Kiljander,
604 P.2d 204 (Wyo. 1979). If there exists no genuine issues of
material fact and the plaintiff is entitled to judgment as a matter
of law, then summary judgment should follow. England v. Simmons, 728
P.2d 1137 (Wyo. 1986).
WYOMFSJ -2
A #1459383 37
Page 2 of 4
000155
If, however, the defendant admits the debt. but only declares
an inability to satisfy said debt, then a Judgment on the Pleadings
pursuant to Rule 12(c), WRCP, as governed by Rule 7, WRCP, should,
logically follow and such memorandum of law is unnecessary, or is
only required as may be stated by the Court. A hearing is not
mandatory but, at the discretion of the Court, may be set. The
Court's time is precious and no hearing is .sought in this matter.
Motions for Summary Judgment are dedided.upon the evidence
filed with the Court and served upon the other party. Both parties
must submit such evidence. 4.R.C.P.56(e).
In order to defeat a Motion for Summary Judgment, the opposing
party must respond in the form of affidavits and other documentary
evidence, proving there are disputed facts. The opposing party
cannot rely solely on his Answer. There must be additional evidence
provided to the Court.
...When a motion for ,summary;.,judgment is made and supported
as provided in this rule an:advrs:eparty may not rest upon
the mere allegations or endals.,oF.the adverse party's
pleading, but the adverse party's•response by affidavits or
as otherwise provided in .this, rule set;- forth specific
facts showing that there is a genuine is for trial. If
the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.
W.R.C.P.56(e). Emphasis added.
Summary judgment is appropriate when no genuine issue as to
any material fact exists and when the prevailing party is entitled to
have a judgment as a matter, JAW. Garcia, v. Lawson, 928 P,2d 1164
(Wyo, 1996) Summary judgment ,was_ properly i.e`d,
den, as opposing party's
affidavit resulted in the 'eistence of .questions df'material facts.
Osborn v. Manning 685 P.2d 1.12 (Wyo, 1984)
The opposing party must not only respond, he must serve and
file his response in a timely fashion.
...a party affected 16 the motion may serve a response, together
with affidavits...at least three days prior to the hearing on the
motion or within 20 days ,after service of the motion, whichever is
earlier. W.R.C.P. 6(.c) (1),. Fiphas added:_
Failure to respond ma d result:" n the granting of the Motion for
Summary judgment. See, Board of Coun€v Comm'rs v. Memorial Hosp.,
682 P 2d 334 (Wyo. 1984).
WYOMFSJ -3 A#1459383 37
Page 3 of 4
Q0015-6
THEREFORE, Plaintiff prays the Court grant Summary
Judgment in favor of the Plaintiff.
DATED January 18, 2011.
WYMFSJ -4 A #1459383 37
Page 4 of 4
Dorothy A. egis Li. 6-2908
At;to rne.y +t Law
PO Box 20
SH,ERIDAN, WY, 8
(30.7) .6 424.
Wyoming business address of record (Rule 103 U.R.D.C.)
29 N. Connor Street
Sheridan, WY 82801
THE STATE OF WYOMING)
)SS
COUNTY OF LINCOLN
I SANDRA L HAWKES, RK OF THE IRCUIT
COURT WITHIN A t FO AID COUNTY�(1 IN E
STATE AFORE D, i� ERE: 5y`1 THE,
GOING TO BE
SIGNE
00017