Seems some judges are not all that keen to admit they made a mistake if in fact they did. No, you appeal to the next higher court.
And then what? You would end up spending more money and time in a system where the odds are against you already. I really do not understand this strategy. Not that I do not believe you that responding to the summons with counterclaims is futile as well. But it seems that if you respond and file counter claims, the CA will be very willing to work out a great settlement.
You do make a valid point. But to what conclusions does that point lead? There are several I am sure. One is that we just give up and pay the bill and live with the rap on our credit. Another is to hope we can avoid that by means of some strategy which renders the whole thing facil. Another is to just ignore the summons and the judgment and the asset hearings and just go surrender ourselves to the sheriff thusly getting free room and board for whatever time they give us and get out scott free that way. Another is to run from state to state every time they figure out where we went to. Another may be to renounce your SSN and all government benefits, Renounce the IRS and the whole mad illegal tax system. That would help reduce the likelyhood they would ever catch you and make you pay up. Another might be to just quit working and go on the welfare rolls. I can see your point indeed. Why fight a system you cannot win against. Don't make no sense, does it? And you have the majority of people on your side who think exactly as you do. There was another time when folks thought exactly the same. The courts were stacked against them. They could not win no matter how much they argued. The taxes laid upon them were heavy and merciless and they kept on getting worse and worse and the tax collectors more persistant in their incessant demand for more taxes, duties, penalties and what have you. The people could go nowhere unless armed and there was even talk about disarming the populace to prevent an armed uprising against the government. And what little money was available was worthless. Not worth a contenental damn. And like you and hordes of others today, anybody who fought the system, stood up and demanded their rights was thought of as a fool and worse. Many who did that died. Many more were thrown into prison, often hanged or faced a firing squad. But in the end, enough durn fools surfaced to put up a battle at Valley Forge and America was born. A new beginning was had and it was made a place where liberty and justice for all was the new order of the day. Today we are nearly at that point but there are major differences. Today a few fools cannot hope to take up arms and rebel against a system seemingly gone mad at times. If memory serves me correctly the last time such an armed rebellion toppled a government was in 1984. Strikes me it was Uganda or one of those African nations. Every attempt at armed rebellion since that time has failed. So that's out of the question. Not many want to just jump up and die. So the only way is to work within the system doing our beat to clean up what we perceive as being wrong with the system as it is today. And in order to do that we are going to have to work, study and learn how the beast works and why it works as it does. And I'm willing to bet that when people learn what makes it tick and the reasons it functions as it does they will also learn that while it may have it's faults and bad points it it still the best system in the world bar none. I'll bet they will learn how to be good citizens and do whatever they can for those that come behind them. What do you think? What incentive do you think they would have to do that when all they have to do is hire some friend of the court for a few lousy bucks who will just bulldoze you out the door by ignoring anything you have to say and has a judge handy to make it stick? Something like this American went into a restaurant and sat next to a spaniard who was eating a plate full of something that really smelled good. He told the waiter he would have the same as that guy at the next table. The waiter apologized saying that they only had one plate of that kind of meat a day but if the Senor would come early the next day he could have the plate of the day. Well, what kind of meat is that anyway? It is the huevos cut from the loser of the day's bullfight. So the next day the American shows up early and gets his plate comprised of the huevos of the loser of the day's bullfights. But he complained that today's huevos were much, much smaller than those he had seen the day before so he asked why. The waiter replied, "Senor, sometimes the bull wins." If you don't want the bull to win you just gotta go put up one heck of a fight even if you might lose.
OK but it still does not make sense. You state that actually fighting the judgement at first is futile. Yet going for an appeal to a higher court is not? Does not make any sense, especially when you already have a judgement that may or may not be voided. While all of your appeal work is going on, you could be getting your wages garnished or your bank account raped. Whats the point of waiting for that happen. Why not try to fight the judgement and at least try to collect on the violations. That would bring the debt amount down and at least show the CA/attorney that they may be getting a lot more trouble than they expected. Only 2% of all debts ever go to litigation because of the hassle involved for the CA. And all this costs money. I think it's obvious enough most of us don't have that money. Why bother spending money and time on appeals when you can either hire an attorney when you first got served or negotiate a settlement. I really just do not understand where your strategy is leading. I thought the whole point was to avoid the judgement.
Your not by yourself Mecro, I just don't understand it either. This constant flip-flopping keeps me in a state of confusion!
Well, obviously somebody got something wrong here. Lets see who it may be. There are basically two ways to attempt to fight the judgment in the context under consideration here. One way is to file motion to strike or motion to dismiss whichever is appropriate under the RCP for the jurisdiction in question. Either way you have to have sufficient grounds upon which to file such motions or it gets denied and often does almost no matter how good the reason. Now then, I must ask what grounds would be available in the average motion for summary judgment that would render the case moot or whatever. Maybe that the defendant paid the claim in full just prior to entering the courtroom. I can't think of any right off the top of my head. Or file a counter suit which also might be dismissed out of hand and almost always is. In most cases I can think of the counter suit would be brought pursuant to violations of law committed by the original plaintiff or his associates. But those issues are not of interest to the court for the simple reason that it would not alter the outcome of the original complaint by the original plaintiff. Now that's just my uneducated guess since I'm not an attorney, but that's what I tend to think based on what I call common sense or whatever you might call it. It seems to me that if an argument isn't going to change the outcome of the case they won't hear it. If the defendant had grounds for counter suit he probably ought to bring it in a totally separate case. That way he might have a better chance of getting a hearing on the allegations. Thats my thinking. Now then back to your original train of thought. One might very well have grounds to dispute what happened in the court room, file motion to vacate, get denied and appeal that. But that is the only way I see that an appeal would have much of a chance of winning. Or if he filed a lawsuit on flagrant violations of law and the court dismissed or he thought the court had erred in some other way he might wish to appeal. But when the MSJ is first before the court and gets ruled on one would have very little to appeal on that would be appealable since no order of the court is really appealable as far as I know. If one wishes to file an appeal it almost has to be on grounds of some error of the court, but not on what the court ruled. How they ruled, not what they ruled. Usually that would be a matter of jurisdiction. Why the appellant believes that the court may not have had the jurisdiction it believed that it did. While that type of issue may be brought up at the time of the trial, doing so would not likely turn out to be of benefit to the defendant for the simple reason that if the court were made aware of it's error it could move to correct any such error and then defendant would have no grounds for appeal because the court had acted to remedy the complaint. Once memorialized and finalized however the ruling of the court cannot be changed. It is set in stone. Now the defendant becomes plaintiff and raises the jurisdictional issue and court denies the motion to vacate then appeal should be in order and may stand some chance of winning. That is the way it makes sense to me. May or may not be voided is quite so. But since it is estimated that there are at least 50 million judgments out there that have serious jurisdictional errors sufficient to warrant vacation then the odds are pretty good that the next one will have them too. Don't think so. Once the appeal is filed it must be acted upon before any further action can proceed in the case which is appealed. The appellant has to give notice to the parties of the case he is appealing so that which you suggest cannot happen. And the original plaintiffs usually have no say in the outcome of the appeal if brought on jurisdictional grounds. Nor does the original court unless it happens to get remanded for further curative action. Not going to happen. One cannot easily win one argument by raising a second argument that has no bearing on the original argument that would change the outcome of the case. That's only going to worry them if they get hit with the lawsuit prior to or immediately after the hearing on their motions. That may be true indeed. If you don't have the money for the fight or the appeal then you sure don't have money to hire an attorney who is going to cost a whole lot more than the appeal will cost. It is. But what does one do in those few cases where a judgment cannot be avoided? There are probably a whole lot less than any 2% of cases in which the judgment cannot be avoided in the first place but it is totally irrelevant to me if the chances of getting sued are less than 1 in a billion, I plan on winning that 1 case no matter what it takes to do it if I can. I don't know about you but I plan on coming out the winner every time. I can't do that if I don't plan ahead for that one fateful day and do every thing I can to avert it and if it cannot be averted then I full well plan to come out winner.
Its not flip-flopping at all, Tuit. The problem is that different situations need different remedies. Sometimes folks just don't understand some of the finer nuances. Let me clear it up just a bit if I possibly can. I believe that if a person gets a summons for a judgment he should not fight it, answer it in any way and just let them get the judgment for the simple reason that he has absolutely nothing he can bring up that will have any bearing on the case under all normal situations. You have heard me say that many times I am sure and I am not changing in any way. I say that it is better to lay behind the log and let them make their mistakes then go dig up their mistakes and come back and file motion to vacate void judgment if he has grounds to do so after its all said and done and memorialized. No changes there, right? And it is my belief that since there are at least 22 reasons why a judgment might be null and void and I have posted those reasons and the court cites to back it up then there is a pretty well founded reason to suppose that something can be found in most of them. Certainly enough to take a chance on and more so since he obviously can say nothing at all that would change the outcome of the trial if he were to put in an appearance. I grant you that one should think that if one had a large number of proveable violations then one might suppose that some judges might actually throw the case out of court. But I am seeing some cases in which validation and estoppel were properly done and all the paperwork was done properly although they could have added more violations had they known about them. These were not my students but they were obviously very knowledgeable people. In otherwords, while they didn't have all that many ducks the ones they had were all in a nice neat row. And they got run over as though by a speeding train. They even argued no proof of the debt, no original contract and more and still got flattened like pancakes. So that proves that something must be wrong with the approach which was always file answer to the complaint and countersuit for violations. If that won't work then we have to go at it a different way and that different way is obviously motion to vacate void judgment on jurisdictional grounds and I have yet to see that one fail even though it sometimes has to go to appeals. And whether or not it is going to get denied is apparently going to depend on the state it is filed in more than anything else. For instance Kansas is the state where it has failed most often. Seems like nothing works the way it should in Kansas and a couple of other states where one might as well not even bother to appeal because cases have been taken all the way to the state Supremes and still lost. In other states there are no problems. It all depends on how crooked the system may be and a whole multitude of other special situations. Almost nobody here has to worry about what has happened or what is likely to happen in almost any given state. And that is why we hold seminars about 4 times a year where researchers from all over the country gather to exchange ideas and strategies. And in the interim we exchange emails and participate in other forums too. I couldn't possibly learn what I have learned all by myself. I have to draw on a large number of people with varying experiences to come up with it all and I will never learn it all no matter how long I live. That's the beauty of the internet. By learning from others and communicating with others we have extended the breadth and depth of human knowledge and understanding far beyond anything that has ever been imagined by those who have gone before us and we will probably never even have dreamed of what the future will hold. I might not explain things in the great depth or detail that I probably should have sometimes but I'm not flip-flopping at all.
Re: Re: Just received summons..HELP!! (long _________________________________________________ Bill I didn't mean to say that YOU were flip-flopping, although I see that's how it came out. You know I value your opinion and advice. You have always been extremely helpful and patient with me and I would never want to offend you, if I have I apologize! My comment was simply out of fustration because I know what your saying is for the most part true! Alot depends on how well connected the enemy is to the court, and not necessarily a properly done Validation and Estoppel. There are many posts to support what you say, it happens alot. Justice is Blind, and it is fustrating to me that all my efforts to Make Her See may be for naught because I have to go to "Small Claims Court" in front of a judge that has the power to dismiss me on a whim because s/he may favor or be obligated to the other side! You stated "They even argued, no proof of the debt, no original contract and more and still got flattened like pancakes." Why? How can the CA win if he has nothing to prove his claim? If the debtor answers the complaint and demands proof and the CA doesn't have it, what permits the judge to find for the CA despite his lack of proof??? Is the defendant allowed to appeal in Small Claims Court if this happens?? Been reading too many hours and am tired, it's me doing the flip-flopping not you Bill. Your just pointing out that the cards are stacked against us, gotta have an ace up the sleeve and Lady Luck sitting on our shoulder to win the hand. You are very good at explaining and giving in-depth details which has helped me many many times. The short fall is mine and my inability to express my thoughts properly......Again Sorry Bill. Tuit
Re: Re: Just received summons..HELP!! (long You have not offended me in any way whatever, Tuit. And if I were such a shallow person that I would take offense at anything people might say when it was obvious that no slam was intended then I would not be worthy of your friendship nor that of anyone else. Had you made direct insults that would have been different but you did not even come close to that. Furthermore, if I did happen to take offense at anything you say then I would have taken that up in private email rather than in public forum and you can count on that. I think both are extremely important and especially so if the paperwork might conceiveably end up before a judge which is indeed highly likely. That is, in fact, one of the reasons I rail against the infamous estoppel letter so much. If some poor unsuspecting person grabs that up and ends up in front of a judge either as a plaintiff or a defendant and the judge is looking at that thing he isn't likely to be a happy camper. Judges don't much care for people who attempt to use such things in deliberate attempts to flim flam others and make them think they are some kind of F. Lee Bailey when it is obvious that they have little or no knowledge of the law and how it operates. They do however often show outright admiration for those who have obviously done their homework and have an obviously good defense or cause of action. I don't ever want to be responsible for someone using something I have said or taught and end up in front of a mad judge looking down at him. And yes, that can happen but if it does I want that judge to be in error, not what I have said. Our club has a statue of Justice and one of the pans of the scale has a small stone and the other has a feather which far outweighs the stone. Of course, it takes a weight on the underside of the pan to get that done but it is illustrative of how the court system works sometimes. It's purpose is to illustrate that justice is often neither as blind nor as equal as it is supposed to be. How many people here have demonstrated all too clearly that they have preconceived notions of how "it is" and nothing can change their minds? How many people do you personally know who will believe anything that is put in print or on the media almost no matter how ludicrous you know it to be? How many people do you know who would believe that just because a judge or a lawyer said something was so would almost bet their very lives that it was so yet those same judges or lawyers were later proven horribly wrong? Preconceived notions of how it is supposed to be is the answer to that Tuit. Those judges have seen hundreds and thousands of cases in which the plaintiff owed a debt and the defendant did not pay them. So over time the judge ends up with a preconceived notion that he cannot overcome absent strong proofs to the contrary. Why do police approach a car in a traffic stop with their hand on their gun? Preconceived notion proven by hard experience that the situation could turn deadly in a heartbeat. Thats why. That and the fact that the judges are mostly very overworked and have to get though a great number of cases each day. It's a cookie cutter operation and they don't want anything getting in the way if they can help it. Nothing permits him to do it but he does it every day because the chances of the defendant ever realizing he hasn't had his day in court is slim to none. Yes, but appeals arent the answer. The way I see it is that you cannot appeal the judges orders but you can appeal his errors if you can show that indeed he did make an error. I believe that such is the reason so many appeals are lost. It seems to me that although attorneys know that they cannot appeal the decision of the court they do it anyway by concealing their desire to attack the decision by attempting to cloak it in the guise of a collateral or other attack when in reality it is no such thing. One never sees an attorney appealing the ruling that the defendant had to do 100 pushups but rather that the judge ordered 100 pushups when the maximum penalty was only 50 pushups. Judicial error, not the decision. I won't accept your apology, Tuit. And the reason I won't accept it is because you don't owe it. Had you slammed me that may have been a different matter but you didn't even come close to a slam. Hope you had a nice nights sleep and woke up in the best of health my friend.
Re: Re: Just received summons..HELP!! (long Great stuff Bill, at least now it makes more sense. Question though. Once you file the appeal, will the judgement be on your credit report?
Re: Re: Just received summons..HELP!! (long Are there factors working against a defendant that has a good case? Of course. Is it fair to say because there are those factors that the defendant has little to no chance? No. I think all of the points Bill makes in this thread have merit. I think the conclusion he draws, unfortunately, is incorrect. The Judge policeman analogy would only prove his point if in the majority of cases the policeman walked up and shot the innocent motorist While Judges are likely jaded by the cases they deal with day in and day out, the majority of them are intelligent knowledgable people seeking to do their jobs the best way possible. I believe a creditor bring a case to trial without at least some proof of that debt is going to have a very difficult time winning. If a defendent who has a good case has almost no chance of winning (according to Bill), how much does the same person have in appeal? Much less. I realize Bill likes to blaze new trails and avoid what others are doing at all costs, but in this kind of situation the cost is too steep.
Re: Re: Just received summons..HELP!! (long Just filing the appeal won't get it off your record. Even after they are declared void that don't get it off your record either. It will get it off your credit report but to really get rid of it you have to ask that it also be sealed in some jurisdictions. Others just take it off. I think it depends on the jurisdiction. Credit bureaus can't report it or don't, whichever. Not sure about that because as soon as they get voided the natural thing to do is to dispute it right away and then it comes off so truth is that since it is voided and off the credit report nobody worries about it anymore so I really don't know whether it stays as a public record or they get it off the public record too. Just never had any reason to check into that. I know that in Oklahoma a judgment that has been vacated by the creditor for whatever reason remains on the public record but is not or cannot be reported on the credit bureaus. Had one situation a few months back where a judgment was vacated by creditor but was showing as a live one so we sent an ITS and they came back asking "what judgment?" and it was gone. I guess they just didn't want to admit fault so they acted like they were not even reporting it and didn't know anything about it.
Re: Re: Just received summons..HELP!! (long And the other side of that coin is that those kinds of judges are seldom if ever heard about in these kinds of forums and I never hear of them. We only hear about the bad apples or the cases where the defendant believes he got shafted whether he did or not. So our view of the system is very slanted too. Oh they always have proof but does that proof always meet all legal conditions of proof? Most of the time it does not but gets accepted anyway. Can't agree with you there. First of all, I have to look at things from a perspective of safety for myself if nobody else. Here is how I have to look at it even if its really untrue, even if I know its untrue. Take the example of somebody who asks me to look over their courtwork and see if I can find fault with it. I look it over and I can see its null and void upon it's face and should be a piece of cake to get rid of. So he prepares the case or has an attorney do it for him or even goes to an attorney who says it can't be done and I'm dead meat in his eyes and if he tells a few other people or puts it on a message board I am dead meat. But if I prepare folks for the worst case scenario and tell them it could be a tough fight and there is the possibility that the judge could deny the motion in which case he is in for an even tougher time of it he will most likely be more careful in how he prepares his motion and he will at least go into court with his eyes wide open. If someone is going to be giving out his opinions then he ought to be as certain as possible that he is on the safe side. That way he is less likely to hurt somebody. That is always a matter of opinion that has to be viewed from the eyes of he who is paying the price. I know people who fly around the country, even the world in their own private jets. I know of one who has his own F-16 that cost him over 1.2 million just to buy and $1100 an hour just for the fuel. He thinks nothing of it. I also know of people who think the price of gasoline for a SUV is entirely too expensive so they buy a Yugo. By the time Geedubya gets done with Iraq we may end up riding around on bicycles because gasoline is too expensive. I've heard rumors of gasoline being $3 to $4 a gallon by the end of summer. Probably not going to happen but one never knows. Anyway, I'd rather people went into things with their eyes wide open and prepared for the worst than not.
Re: Re: Just received summons..HELP!! (long What I don't understand is why throw away all the bullets in your gun except the last one? We have all read about instances where a case was filed with a court but never acted on. If you don't respond they get the easy summary judgement which is really what they want. If you respond and they decide to take it to trial what have you lost? You admit that perhaps rarely but at least sometimes (except in Kansas and a few other states)arguements that they are not able to prove the debt is yours works and one is able to avoid a judgement. If you lose, you end up with a judgement. Which, is where you would have been if you hadn't done anything but might not be if you try something. Now one can then apply the tactics you have been teaching about. 0
Re: Re: Just received summons..HELP!! (long The problem is that until we reach a point where we have a reasonably large number of situations of all types it's almost anybody's guess. It can easily get to be like the problem with the millcbs system where they were setting up a data base to tell us what companies pull which credit bureau. Maybe it might even be worse than that because it might even work down to where Judge Hornswoggle always rules one way and Judge Hoopla always rules another way and Judge Boozeit rules one way when he is sober and another when he is half drunk and yet another when he is drunker than a skunk. Who knows what the final answer may be. All we can do is try what we think is best at the moment and report back so we all get a better feel for what is right and what isn't Life's like that sometimes.
