STATE OF RHODE ISLAND
PROVIDENCE COUNTY
| L VNV FUNDING LLC,
Plaintiff vs. ANDRE SMITH, Defendant |
Case No. 6CA-2021-03705 |
RESPONSE TO MOTION FOR SUMMARY JUDGMENT
COMES NOW Defendant WILLIAM GILBERT, and hereby files this Response to Plaintiff’s Motion for Summary Judgment. Defendant requests that the Plaintiff’s Motion be denied, and the case proceed to hearing.
BACKGROUND
On or about February 16, 2022, Plaintiff filed a Motion for Summary Judgment alleging, inter alia, that on the basis of undisputed facts in Plaintiff’s Complaint, Plaintiff is entitled to judgment as a matter of law. Plaintiff also requests judgment in the amount of $819.33, plus expended costs in the amount of $142.75, for a total of $962.08 plus post judgment statutory interest and future costs incurred.
The Plaintiff also filed an Affidavit in support of the said Motion. In the Affidavit, Plaintiff’s authorized representative alleged that according to the Plaintiff’s record, an account was originated on November 23, 2015 by Credit One Bank, N.A., which account allegedly represents obligations of Andre Smith. The Affidavit further averred that the Plaintiff had the right to collect the balance owing of $819.33, plus any legal permissible interest.
ARGUMENTS
There is a genuine issue of material fact
In considering a motion for summary judgment, the court will consider the evidence in the light most favorable to the non-moving party in a summary judgment motion. See Weaver v. American Power Conversion Corp., 863 A.2d 193, 198-99 (R.I. 2004).
It is well-settled that the “`purpose of the summary judgment procedure is issue finding, not issue determination. ‘”Giuliano, 949 A.2d at 391 (R.I. 2008) (quoting Industrial National Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (R.I. 1979)); Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005); Weaver v. American Power Conversion Corp., 863 A.2d 193, 200 (R.I. 2004); Sea Fare’s American Café, Inc. v. Brick Market Place Associates, 787 A.2d 472, 476 (R.I. 2001). Therefore, “in passing on a motion for summary judgment, the question for the trial justice is whether there is a genuine issue as to any material fact and not how that issue should be determined.” O’Connor v. McKanna, 116 R.I. 627, 633, 359 A.2d 350, 353 (R.I. 1976).
A motion for summary judgment should be denied where “there are factual differences in the record which should be resolved by a trier of fact rather than by a motion for summary judgment.” Gagner v. Strekouras, 423 A.2d 1168, 1170-71 (R.I. 1980).
In the instant action, the Defendant avers that there is an issue of material fact. Defendant avers that Plaintiff should not subject Defendant to this suit. Notably, Defendant’s actual name is Andre Wright but the Defendant’s suit is against Andre Smith. It is further notable that Defendant has not used the name “Smith” for over seven years. Defendant dropped the said name when he found out he was adopted. Accordingly, Defendant changed the name to the father’s last name when upon getting married.
Defendant also maintains that the credit card was stolen. The card had a limit of $300. All attempts of the Defendant to explain the situation to the credit card company were futile since the said company would not consider Defendant’s concerns. Interestingly, Defendant has never heard from the credit card company for over four years.
Accordingly, Defendant avers that there is a genuine issue of material fact as alleged herein above, which would suffice a denial of Plaintiff’s Motion for Summary Judgment.
PRAYER FOR RELIEF
WHEREFORE, for the reasons set forth above, the Plaintiff’s Motion for Summary Judgment should be denied, and the Court should issue such other relief as the Court deems just and proper.
Respectfully submitted:
Dated: __________
CERTIFICATE OF SERVICE
I hereby certify on the ____________day of _______________, 2022, that a true and correct copy of the foregoing Response to Plaintiff’s Motion for Summary Judgment was served by placing a copy in the United States Postal Service, with postage prepaid, addressed upon the Plaintiff in the following address:
SERVICE ON:
Scott L. Hamm.er, Esq. #5558
Jennifer M. Phipps, Esq. #9046
Hodosh, Lyon & Hamm.er, Ltd
41 Comstock Parkway
Cranston, RI 02921
(401) 781-0715
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