How to spot an invalid judgement

Jeff:

All modern bookkeeping & accounting is done by the double entry method in most large businesses.

This means that the account must be charged off against something, some other account.

If it is charged off as a tax write off, then they have taken the loss off of their taxes meaning that they have been paid for the debt in terms of tax writeoffs, the government pays the bill in terms of lost tax revenues.

If it is charged off against owner's equity, then the owner foots the bill.

Either way, it is paid for on the books.

One argument has it that they therefore have no right to collect from the government and the debtor at the same time.

What do you have to say about that?

Is that theory right or is it wrong?

 

Thanks for the reply Jeff.

Your reply (post) seems to answer the question, but in actuality only partially does so.

It does tell us what happens internally to the company's (banks) internal accounting system and is a very definitive answer from that viewpoint, but it does not tell us the actual end result of a charge-off, but rather what is the temporary "end result" of the charge off.

Here is why I say that, and before I jump off the deep end on this particular matter, I'm going to state that if we have seen one answer(theory) on this subject, over time we have probably seen a half dozen or more at least in this or other forums. None have really ever given us an answer to the questions that a judge would give us in a legal opinion in a court of law if presented the following legal argument.

"Your Honor, Moneybags & Co. cannot collect on this purported indebtedness because they charged it off and that means that they took it off of their taxes. Therefore they have already been paid and cannot now demand to be paid a second time."

"Moneybags & Co. commits fraud by demanding payment from both the government and defendant"

That is just about the crux of the arguments that people have postulated in this and other forums. It is the crux of the argument(s) that some of the letters floating around the internet would have us use.

So the burning bush question of the moment is, will that argument hold water or will it not hold water and why?

How have/has a judge rule(d) on the matter?

Jeff, I intend to keep this thead going for a long, long time and the reason that I intend to do so is that it is long past time that we learn once and for all that while pet theories and ideas are great, (we all have to start somewhere, somehow), all such pet ideas and opinions are exactly that until they are tested in a court of law.

The great majority of readers of such forums such as this one come here with not the foggiest idea of how to proceed or why and they jump from one idea (good, bad or indifferent) to the next much as frogs hopping from one lily pad to the next, both often getting a "belly full".

By bringing on an actual judgement which was actually filed and pursued in an actual court of law
by an actual credit card bank using an actual attorney who, according to the Oklahoma Bar Association is a competent legal counsel qualified to practice law before a duly and properly constituted and authorized court of law presided over by an judicial official qualifed to render judgement in the case before it we then may presume that this case might well be fairly representative of what might be expected in a court of competent jurisdiction when we have been presented with a summons to appear and answer to the court.

So what does a person do when presented with such summons? Does he commit Hari-Kari of some sort, or does he look at the summons and petition for judgement and start to look for the proper way to answer the summons and petition for judgement? In the past, many of us have actually committed Hari-Kari of one sort or another.

Let us put an end to the commission of such suicidal arguments as we know to exist and learn how to properly answer such summons and complaints and win on the arguments we present to the courts.

It's not all that tough, and one we need to learn once and for all.

So, for the moment, will the argument that a debt has been charged off by the lender and is therefore totally uncollectable fly in a court of law or will it not, and why.

 

Some folks are supposedly making that argument. The question seems to be "if that is a valid argument, where then in law is it supported?"

Personally, I find no basis in law so far for this argument. That's not to say that it might not be an effective argument in some cases, but if it is a valid argument, we need something in law to hang our hats on.

Be that as it may, it strays from the subject matter that I wish to pursue here and that is what are the legal infirmaties in the judgement depicted and how do we attack them in a court of law so that the judgement which we already know is false and fraudulant and void upon it's face can be overturned. In order to do that, we must first of all come up with the strongest legal arguments available in the given judgement and then formulate proper response to the judgment.

Granted that there are several people here who know exactly what is wrong and exactly how to proceed to defeat the judgement. That is great. But what I want to do is to gather up all the information we can and actually come up over time and discussion with the final document that can be presented in a court of law with almost 100% certainty of winning given no judicial chicanery which does happen in these kinds of situations even in larger cities.

All of us who follow this thead are going to learn some very valuable lessons in this discussion because we know that the final document we come up with is going to get filed in an actual court of law and the results and judgements of the court are going to be posted in this forum for all to see.

In otherwords, we will be helping someone beat this case and we will be seeing the actual results so that we can gain actual hands on experience through this media.

So let the fun begin!

 

Marvin, tom, jeff:

First of all, here is the correct URL again.
Again, all pages are clickable and clicking on any page will take one to the next page in the sequence.

here is the link again.
CLICK HERE FOR THE REVISED JUDGEMENT PAGES

it does work for me.

Secondly, I think everyone of us is in accordance with the idea that any such claim that a tax or other type of charge off eliminates indebtedness is ludicrous indeed. Yet it persists in being made.

So let us move on to more weighty matters, i.e., building the fight against the judgement.

I think that the most important and first line of attack would be the obvious lack of any affidavits having been included, filed or offered in the filing. So I will posit what I think is the first and likely most important argument to be presented to the court upon filing for summary judgement against the bank and it's attorney.

This motion for summary judgement would pretty muchly follow the format and arguments used in CLICK HERE FOR NEARLY IDENTICAL CASE

This is a case which I prepared for another customer about a year ago and which the customer filed as a pro se litigant and won quite easily. The major differences between the two is that in the example case, the credit card company's case had not yet been adjucated by any court and so my customer filed as an answer and counter suit to their motion.

In the present case, judgement has already been granted, so the form and filings are going to be a bit different, but I believe that the same arguments will win the day.

What do all of you think?

 

Hey Marvin!

Brown ask a question which at first reading sounds stupid, but if one stops to think about it for a moment, just might not be anywhere near as stupid as first reading might indicate.

So let me raise browns question again, with a qualifier he didn't add, and let us check him out if at all possible.

Here is the qualifier key which he didn't add.

Let us assume for the purposes of this conversation that you bought a new car which cost just exactly $10,000.00. Let us also assume (incorrectly, of course) that the taxes on the car were exactly 10% of the total sales price so 10% would be $1000.00 meaning that $9,000 was for the car, interest, ect.

Usually, the creditor will pay all taxes on the account out of the loan proceeds so let us assume that upon closure of the loan the creditor pays the $1000 in taxes due.

Again, let us consider a most highly unlikely circumstances that has it that the debtor paid in exactly $1100.00 so that he paid $100 more than the taxes cost and then defaulted on the loan. All the numbers are totally important so long as the taxes are all paid plus a bit for the purposes of examination of what Brown is saying.

The creditor sues and the debtor has paid the taxes on the loan to the creditor. The creditor charges it off AND TAKES IT OFF HIS TAXES. So what? What point is it that brown says we are missing here and what laws back up his statement(s) that we should be aware of.

We are talking court cases and acutal court cites so that we have the ruling of judges on the case law we cite. When we go to court, we can cite all the laws we want to cite, but the law has no validity whatever and is meaningless until we have a court ruling that tells us what the law means to back up what we are saying here and in court.

I'm not trying to put anybody down, professional or otherwise. I'm not trying to say that Mr. Brown or nobody else can read and understand the law and therefore anything they say is just so much meaningless and useless verbiage. That's not what I am saying at all. I'm not putting anybody down, I'm just stating the facts of life in the courthouse.

If you want to win arguments in court, you rely on what a judge or judges have said that the law means and what the application of the law is.

In otherwords, to be a bit lighthearted, if you quote a law to a judge, you have just put yourself on a space rocket and launched yourself. The ceramic tiles that help assure that you do not burn up on re-entry are the case cites and judicial rulings which back up your contentions.

Go for it Mr. Brown.

 

Jeff:
Really appreciate your comments. Very valid indeed.

But once vacated as a void judgement what allows them to come back and refile?

Does this person also have a possibility of filing separate demand for summary judgement for denial of due process of law?

Let's go a bit far afield for a bit. Did not both the attorney and the judge both know as legal professionals that the "victim" was being denied due process rights? Did they not possibly collude to deny due process of law? Did they then lay themselves open for prosecution under the Rico act?

Let it be understood that the above are not my theories but the theories of others who are quite vocal in their public expression. I neither agree nor disagree with their viewpoints since I am not qualified to answer on their opinions.

What do you say on those ideas? Valid, crazy, what?

 

Re: How to reply to judgements

What about how to answer a summons?

Here is what you need to do if you are hit with a judgement.
How to reply and how to get the ball rolling the other way.

CLICK HERE TO LEARN HOW TO ANSWER SUMMONS FOR SUMMARY JUDGEMENT AND MORE

All of the pages are clickable so you need to click on each page to proceed to the next on. There are about 15 pages in this lesson. It is very much in depth and very complete.

It is all free for the taking and the using in any way you see fit.
No strings, no obligations of any kind.
You can download it and you can print it out to use as a guide.

Enjoy. I sincerely hope it helps someone and count on the fact that there will be many more such tutorials in the future.

 

A class action lawsuit against Sear

Sears Credit Card Holders Not Wild About Insurance

On June 29, 2001, the court certified several classes in a class action against Sears Roebuck claiming that Sears violated both federal and Florida law in marketing a package of "credit life, disability, unemployment and leave of absence insurance coverage" in connection with the Sears credit card. The action claims that Sears violated the federal Truth in Lending Act (TILA) and similar Florida statutes by failing to make disclosures that the laws require. The action seeks statutory damages, actual damages, attorneys fees, restitution (refund of premiums plus interest), and injunctive relief to prevent future violations.

The court certified a national class consisting of all Sears credit card holder who purchased the
insurance package by an in-store application between June 5, 1997, and October, 1998, who have not received benefits in excess of premiums paid, and whose accounts are not in default by the close of the opt-out period. This class seeks damages under TILA. The court also certified two classes of persons seeking recovery under Florida law. Both consist of all Sears credit card holders who purchased the insurance package in the state of Florida from June 5, 1994 to the present whose accounts are not in default and who have not received benefits in excess of premiums paid. A card holder can be a member of both the TILA class and the Florida law classes.

NO further information about this case is available at this time