question for fine legal minds

Discussion in 'Credit Talk' started by bbauer, Jun 4, 2001.

  1. bbauer

    bbauer Banned

    Tim McVeigh's attorneys are argueing, among other things, that the government has perpetrated a fraud upon the court in an effort to get Judge Richard Matsch to grant a stay of execution for McVeigh. I'm sure that you have probably heard that on the news lately. It's all over the place, so it's difficult to imagine that lawyers haven't noticed it.

    While I am sure that Matsch's rulings on that point may make a differece in it's possible application in other matters before courts, I'm wondering if that issue may not profitably be raised in such matters as defense against debt collection. Let me put it into clearer context.


    A collection agency lawyer goes into court and because motions for summary judgement are pretty muchly a rubber stamp process, some lawyers get pretty sloppy and make serious errors simply because they can get away with it knowing that the debtor isn't likely to show up or know the difference anyway. But later down the road, the debtor gets some education and goes looking for such errors as a means to reopen and possibly reverse the judgement.

    Let's say that the debtor does find maybe 3 or 4 reverseable errors and files his own motion for summary judgement or maybe quiet title on a repossessed property because they used shortcuts in the original process.

    As a specific example, let's specify that one of the errors was that they took the original mortgage contract and whipped off a copy on their office copier and filed that as is instead of having it certified as a true and accurate copy nor did they present the original as evidence of the debt. Then lets throw in maybe 3 or 4 other serious errors as well. And let's say that they figured that the debtor would never be able to pay up anyway on the judgement, so they filed Lis Pendens instead of going for the full judgement. The debtor waits for the 5 years SOL on the Lis Pendens and the bank don't renew because after 5 years they just forgot about it.

    So the debtor "lies behind the log" for the 5 years and goes into court with a quiet title action based on the errors.

    Could one of his arguments or filings be that the creditor perpetrated a fraud upon the court and where could he logically or legally go with that if he wanted to carry it to it's extremes?

    Could the rulings of Matsch have any impact upon it's use in such matters as I am talking about here?
  2. tom65432

    tom65432 Well-Known Member

    Re: an answer from a not so fine mi

    I don't think so.

    Part of the reason for service of process is to get all the parties into court to fight over the issue. When the fight is done, the issue is resolved, except for appeals and motions for a new trial. There are very strict time limits for appeals and motions for new trial. If you miss the limits, you are out of luck.

    There is a good reason for this. If we allowed appeals forever, then the cases would never end. Someone with a weak case could keep you in court forever and it would cost you a fortune. So there has to be some finality. If you have been properly served, you must fight the fight when given the chance or you will lose your right to do so.

    There are exceptions, but they are very limited. One would be if you were never served (that is the creditor lies and says he served you). Another would be an issue of grave importance such as a death penalty case. Obviously you do not want to execute an innocent man.

    The matters you bring up are relatively minor in the scheme of things and must be addressed when you get the chance in court or you will lose your rights to raise them. Otherwise the process will go on forever.

    I have a personal injury lawsuit going on now for three years with no end in sight. When it is over, I want it to be over forever. I am sick of it and sick of the system That's jsust an example of why the rules are the way they are.
  3. dave

    dave Well-Known Member

    Re: an answer from a not so fine mi

    I agree that the situations are different. In McViegh's case, the defense demanded that documents be produced, the court ordered it and the FBI said "we don't have any". This is very different from sitting back and letting the other side win and then asserting fraud when the debtor could have made a timely objection that would have avoided error.

    The other difference is that the criminal law imposes obligations on prosecutors to turn over evidence favorable to the defense even if the defense does not request it. Failure to comply is a serious constitutional violation that could lead to a new trial. Favorable evidence in a capital case includes anything that might have influenced the jury to impose a sentence other than death.
  4. bbauer

    bbauer Banned

    Re: an answer from a not so fine mi

    Seems to me that you moulded your answer around the McVeigh case to a great extent rather than the civil matters that I was referring to using the "defraud the court" argument.I simply picked up in it because it has been in the news lately due to the McVeigh issue and wondered if it might not be used in other types of situations completely different than a capitol murder case.

    As far as statute of limitations is concerned, it is my belief that none exists when discovery of serious and grevious reverseable error on the part of plaintiff's attorney is involved. Any applicable statute of limitations would only begin at the time of discovery of the error(s) proceeding henceforth for at least 2 years or more. But then, how would the court or the plaintiff prove when the defendant actually discovered the error and raised the issue? Proof would be impossible or nearly so.

    As an actual for instance, if the plaintiff's attorney simply got up in court and said, "Your Honor, defendant clearly owes my client and has failed to meet his payments for 3 consecutive months and has been late on numerous other occasions. My client now prays for summary judgement and return of his property.

    Judge granted petition of plaintiff.

    No VALID proof of any indebtedness was ever presented to the court.

    When I discover that fact, I believe I can go into court and file quiet title on the property and end up getting it back free and clear based on the errors of the plaintiff because he denied me due process of law.

    Am I totally and completely off base here?

    Your reply seems to indicate that I am.
  5. tom65432

    tom65432 Well-Known Member

    Re: an answer from a not so fine mi


    I tend to talk about what I perceive as reality, rather than what would happen in a perfect world.

    My opinion is that the court system is broken beyond repair and should only be used as a last resort..

    Having said that, hre are my comments on your last post.

    First, you refer to serious and grevious errors on the part of the plaintiffs attorney. If you do not contest the case, the Judge will accept the plaintiffs pleadings as true. They claim you owe them money, you don't contest it, and therefore you owe the money. Case closed. My point is that the time to fight is when the case is before the Judge, not later. If you appeal, you will lose because you didn't show up for the hearing and therefore there is nothing to appeal.

    Case two. You fight it out in court. You lose. If you think that the Judge was wrong, you have to appeal then, usually within 30 days. Otherwise you lose your rights to appeal. If it was any other way, cases would go on forever. If you feel the Judge based his decision on insufficient evidence, the appeal is the place to raise it.

    You talk about due process. They are giving you due process by allowing you to come into court and fight over the issues. Then, you have the right to appeal. So, you got your due process. You have to take advantage of it.

    I am involved in litigation now. It is a pain in the rear. The plaintiff'sattorney does anything to make life difficult for me. I want it over with and I want to know that once it is over, they cannot come back at me four or five years down the road. The system protects me from this by giving everyone a right to litigate the matter now. When it is over, its over.

    The only place this is not true is in death penalty cases. Twenty years after the conviction, the killer is still raising new issues, in effect, reinventing his defense. It never ends. Imagine your life if these rules applied in civil cases.
  6. tom65432

    tom65432 Well-Known Member

    Re: an answer from a not so fine mi

    One more comment.

    Judges move around a lot. Civil, criminal,domestic, probate, etc. If you try to bring your case up years after it was first decided, chances are that you will have a different Judge. In effect, you will be asking one Judge to overrule another Judge of the same court. As a practical matter, that does not happen. They defer to the other Judge, assuming that Judge had everything before him when he made the decision. That's just the law of the jungle. Its what happens in real life.

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