Served a summons, what do I do?

The graduated denial would cover that. Then show the paid receipt to the judge when you get to court. I'm sure you would also need to state in court that Wamu closed it's doors and was bought out by Citi Financial. Claim that in the process there was some mixup in the records. I tend to think you just might win that way.

No, I think they might have a local lawyer show up for them instead of someone driving that far. Most likely they have contacts in just about every town in the state to whom they pay a retainer fee to do that kind of thing for them. Big lawfirms do that quite often. That's normal in fact.

 

Don't even worry about that. Defendants in any type of case are expected to deny their culpability. In small claims court where discovery is not permitted the defendant has only two options. Either admit to the complaint and take a judgment or deny and make the plaintiff prove their case. There would be no possibility of justice if that were not true. So don't even think twice about filing your denial. Then take your receipt and go see what happens. That's all you can do. Just be sure to send both the denial and the demand for validation all at the same time. You will also have to send a certificate of mailing with the other two documents.

Another thing to watch out for is the chance that the lawyer will send you demands for discovery. Interrogatories, demand for admissions and production of documents even though that is not permitted in small claims courts. I've seen that happen once too. The defendant mistakenly answered because she didn't know any better then found out about the rule later. No harm was done however because the defendant only asked 4 questions and the answers could not have hurt her case anyway. She was the plaintiff in a medical malpractice case and she lost on a technicality. She should never have filed it in small claims court in the first place and should never have tried to file that kind of case as a pro se. She should have hired some ambulance chaser in the first place. Medical malpractice is a totally different area of law than we are discussing here.

 

The graduated denial would cover that. Then show the paid receipt to the judge when you get to court. I'm sure you would also need to state in court that Wamu closed it's doors and was bought out by Citi Financial. Claim that in the process there was some mixup in the records. I tend to think you just might win that way.

No, I think they might have a local lawyer show up for them instead of someone driving that far. Most likely they have contacts in just about every town in the state to whom they pay a retainer fee to do that kind of thing for them. Big lawfirms do that quite often. That's normal in fact.

 

If you have the phone nunber try google to see who it belongs to.

 

She has the complaint and that will have the atty's bar number and phone number.

 

Yes, that is the correct wording. Have it notarized before you go file it. That means you will need two copies. One for the clerk and one for the attorney. Have both of them file stamped. You will also need a certificate of mailing. A letter format might work but only because it is a small claims case. If it were a CJ case instead of a CS case writing a letter would not be acceptable in most courts. You will have to be sure the case number is on all the documents.

The problem with using a letter format is that one of your major goals is to hopefully scare the attorney off. If you don't do it in a professional looking way they will instantly know that you got it off the internet and don't really know what you are doing. It is a psychology thing and can make a big difference in the outcome.

 

I thought she said that wasn't the court number,or did i post to the wrong post.Or worse yet a senior moment,I'm dieting and ;psing my mind Quick send me a sandwish lol

 

The number xx-xxxxx-x zk1 translates into CS-2008-???? (whatever the last four numbers are. CS stands for small claims. CJ stands for amounts over $10,000. TR stands for traffic, FD stands for Family dispute. There is a list of what all the prefixes stand for on OSCN.net.

Actually, I don't know why anybody even worries about getting a judgment against them in the first place. All they have to do is set up a Delaware Corporation in a name that has nothing to do with their name or family name and then set up a local account at Bank of America and one in a BOA branch somewhere in Delaware which is in the corporate name. Then have your own corporation put heavy liens on all your property and figure out what your income is and the statute of limitations for judgments in your state might be. Take 25% of your take home pay, multiply it by 12 then again times the number of years a judgment is good for and add a couple more years. Then file a stipulated judgment against yourself for whatever that amount figures out to be and go for an ongoing garnishment against your wages and have the money sent to your bank account in Delaware. With heavy liens against all your vehicles and other property and a garnishment that is going to be ongoing for the next several years already in place before they can garnish your wages and you have absolutely nothing to worry about. You even get a legitimate new tax id number under the corporate name and can start building credit immediately. Spouses and your kids can be corporate officers so when you pass on to your heavenly reward they get everything without having to probate your estate and without ever having to pay any death benefits. The corporation won't ever have to pay any taxes because between not earning enough and paying off it's expenses such as office rent for the office maintained in your home, a computer to keep it's books and records with and a portion of all utilities there won't be any corporate tax liability.

And yes, I know there are some who will claim that the corporate veil can be pierced but a Delaware Corporation can't be pierced so easily. And what did you use that huge loan for? Well, you have this bad addiction for gambling. The ponies over at Salisaw and Remington park and all the casinos and bingo halls in Oklahoma was just too much for you to resist. Or maybe you tried to start an online business and lost your butt and all it's assets trying to get that going. If you think it can't work, TAR INC., is a Delaware Corporation that works just fine for me. I got it all set up and working in about a week. I set it up many years ago so that makes it even less likely that they could pierce the corporate veil. It could easily be set up for about half of what you will get garnished for if you lose in Carter County Oklahoma. You just have to do it before they can get their garnishment in place.
Oh, by the way, be sure you get all the money out of your bank accounts. If you are getting paid by direct deposit tell the boss that you want paper checks instead. If you lose you will be very glad you did. Don't worry about getting your money back out of your Delaware account. You will get a debit card you can use at any ATM and you can keep track of the account on line.

 

I don't have to be from Oklahoma to know what is going on there or anywhere else. All I have to do is know how to use search engines (especially Google) really well and how to use RSS feeds to find anything I want to find out. I'm no smarter than anyone else and far more ignorant than lots of other folks. I don't even need to have a great memory. All I have to know is how to access to almost unlimited amounts of information and be able to process and store it rapidly. I have several computers and almost unbelievable amounts of disk drive space and computer memory. I can be doing one thing while my computers are searching for information I will need for some other task I might have coming up. My job requires me to keep up with very large amounts of information and be able to present it to those who are paying to get whatever information they desire. That's about all it takes to make somebody think I must be some kind of genius which I am not.
Large corporations pay me well to find information for them. Information they don't have the time or the talent to find for themselves. They may want information or news about a wide variety of topics that I quite often actually know little or nothing about myself.
One example of that is the story about a Tulsa Oklahoma judge by the name of Thompson. He was featured in a news story today by Channel 9 TV news out of Oklahoma City as having been convicted of 4 felony counts. A few minutes of searching and I had the sordid story about Judge Thompson and what he was convicted of. You may know all about him. Seems there has been a great deal of publicity about him over the last couple of years. I got interested and checked that story solely because you said you were from Oklahoma. But I also happen to have a few people from Oklahoma that I have befriended over the internet. That's not unusual for me because I have contacts from just about every state in the nation and I often have to contact one or another of them from time to time.
Another example is that of a man I met on the internet from Utah. He put some spam on here the other day and I caught it and did a post exposing him for what he is. The moderators wiped that thread out and with good reason. Today i had a brief email exchange with another internet friend from Arizona who knows the spammer even better than I do. It helps to have lots of friends and lots of people you can network with. But that's about the sum total of how smart I am. I'm not so smart, I just know how to manage the information that others have dug up from just about everywhere and how to use it to my advantage.
At that rate anybody can be as smart or smarter than I am.

 

Nope, no attorney involved. It's from the court. It's a blank copy of the complaint form I have scanned into my PC from when I filed suit against a business for a non-debt-related matter. I'm not too concerned with the semantics of the form.

 

Can we spell Fraud Upon the Court.

 

OP, you need to do exactly as the court papers say, you must file an Answer within the allotted time.

In your Answer you will answer each and every paragraph following your local rules. Following the answer, you will state any Affirmative Defenses you may have, followed by any Counter Claims.

If you fail to assert Affirmative Defenses our Counter Claims, the Plaintiff will file what is called a Motion for Summary Disposition and move the court to enter a judgment based on the pleadings.

Once you file your Answer, you can file your Sworn Denial, but it will not serve in place of the Answer.

Once you have filed your Answer, assuming the Rules allow, you will file Discovery motions.

 

Yes, of course we can spell that but can we define the term? Since it is obvious that you have no concept of the term means or what it entails, let me enlighten you. In order to do that I will refer you to a decision by the 3rd Circuit Court of Appeals in the case of Herring v. United States where in the unanimous decision of the 3 judge panel Judge Aldisert wrote in an opinion joined by Circuit Judges Samuel A. Alito Jr. and Franklin S. Van Antwerpen,
"In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court,"
Obviously, the act of placing a garnishment against a person's wages does not constitute a fraud upon the court then, does it?
What a corporation does with the money received from such a garnishment is not a fraud upon the court. It is an internal decision that can only be made by officers or employees of that corporation and cannot be construed as a fraud upon the court because the corporation is not an officer of the court. In the event that the corporation determines that it has garnished too much money from the consumer and decides to mail that debtor a rebate of some of the money garnished nobody can call that a fraud upon the court. If that same corporation also has a lien on property owned by the debtor such as vehicles, boats, or tools and equipment or furniture as security for a loan made by the corporation no fraud upon the court has been committed. In fact, that corporation has not made any statement whatever to the court so it could not possibly be held that a fraud upon the court had been committed, now could it?
The debtor could not possibly be held to have committed a fraud upon the court for two reasons.
1. He is not an officer of the court.
2. He has made no statement to the court. The garnishment and the liens are a matter of public record so there is no need to make any statement to the court.
If the new plaintiff is unhappy about the fact that his garnishments cannot be enforced because someone else is already taking all the available money it is up to the plaintiff to prove that he is being defrauded. If he attempts to do so and fails then he may end up with some legal problems of his own but one thing he would be well advised not to attempt to do is to attempt to bring a charge of fraud upon the court.
Any other ideas?

 

It would be most helpful to post the cite:



424 F.3d 384

Patricia J. HERRING, Individually; Judith Palya Loether, Individually and as a Living Heir of Elizabeth Palya (Deceased); William Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Robert Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Susan Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased); Catherine Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased), Appellants
v.
UNITED STATES of America.

No. 04-4270.

United States Court of Appeals, Third Circuit.

Argued July 15, 2005.

Filed September 22, 2005.

COPYRIGHT MATERIAL OMITTED Wilson M. Brown, III (Argued), Lori J. Rapuano, Angie Halim, Drinker Biddle & Reath, LLP, Philadelphia, PA, for Appellants.

Peter D. Keisler, Assistant Attorney General, Patrick L. Meehan, United States Attorney, Barbara L. Herwig, August E. Flentje (Argued), Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Appellee.

Before ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.
1

In this case we decide whether the Government's assertion of military secrets privilege for an accident report discussing the October 6, 1948 crash of a B-29 bomber which killed three civilian engineers along with six military personnel, at Waycross, Georgia, was fraud upon the court.

I.
2

Actions for fraud upon the court are so rare that this Court has not previously had the occasion to articulate a legal definition of the concept. The concept of fraud upon the court challenges the very principle upon which our judicial system is based: the finality of a judgment. The presumption against the reopening of a case that has gone through the appellate process all the way to the United States Supreme Court and reached final judgment must be not just a high hurdle to climb but a steep cliff-face to scale.
3

In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.1 We further conclude that a determination of fraud on the court may be justified only by "the most egregious misconduct directed to the court itself," and that it "must be supported by clear, unequivocal and convincing evidence." In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195 (8th Cir.1976) (citations omitted). The claim of privilege by the United States Air Force in this case can reasonably be interpreted to include within its scope information about the workings of the B-29, and therefore does not meet the demanding standard for fraud upon the court.

II.
4

Early in 2000, Judith Palya Loether learned through internet research that the government had declassified Air Force documents regarding military aircraft accidents. She ordered documents related to the crash of a B-29 bomber at Waycross, Georgia, on October 6, 1948. Her father, Albert Palya, along with two other civilian engineers, had been killed in that crash. Her mother and the other two widows had sued the Government under the Tort Claims Act, but had not been able to gain access to the, now declassified, Air Force documents because of the Government's claim that the documents were protected by privilege. The case was heard by the Supreme Court in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), which explained the legal framework we must use in analyzing claims in which the Government asserts a privilege against revealing military secrets. Id. at 7-12, 73 S.Ct. 528. The Supreme Court reversed the decision of this Court and remanded the case to District Court for determination of whether the facts of that particular case, applied to the legal standard articulated, merited a determination that the privilege sought by the Government should be granted. Id. at 12, 73 S.Ct. 528. Before the District Court was able to consider the case on remand, the parties settled for 75% of the District Court's original verdict and the case was then dismissed with prejudice.
5

The Supreme Court explained the facts and procedural history leading up to its determination of the case as follows:
6

These suits under the Tort Claims Act arise from the death of three civilians in the crash of a B-29 aircraft at Waycross, Georgia, on October 6, 1948. Because an important question of the Government's privilege to resist discovery is involved, we granted certiorari.
7

The aircraft had taken flight for the purpose of testing secret electronic equipment, with four civilian observers aboard. While aloft, fire broke out in one of the bomber's engines. Six of the nine crew members, and three of the four civilian observers were killed in the crash.
8

The widows of the three deceased civilian observers brought consolidated suits against the United States. In the pretrial stages the plaintiffs moved, under Rule 34 of the Federal Rules of Civil Procedure, for production of the Air Force's official accident investigation report and the statements of the three surviving crew members, taken in connection with the official investigation. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant to Air Force regulations promulgated under R.S. § 161. The District Judge sustained plaintiffs' motion, holding that good cause for production had been shown. The claim of privilege under R.S. § 161 was rejected on the premise that the Tort Claims Act, in making the Government liable "in the same manner" as a private individual had waived any privilege based upon executive control over governmental documents.
9

Shortly after this decision, the District Court received a letter from the Secretary of the Air Force, stating that "it has been determined that it would not be in the public interest to furnish this report...." The court allowed a rehearing on its earlier order, and at the rehearing the Secretary of the Air Force filed a formal "Claim of Privilege." This document repeated the prior claim based generally on R.S. § 161, and then stated that the Government further objected to production of the documents "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force." An affidavit of the Judge Advocate General, United States Air Force, was also filed with the court, which asserted that the demanded material could not be furnished "without seriously hampering national security, flying safety and the development of highly technical and secret military equipment." The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a "classified nature."
10

The District Court ordered the Government to produce the documents in order that the court might determine whether they contained privileged matter. The Government declined, so the court entered an order, under Rule 37(b)(2)(i), that the facts on the issue of negligence would be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the plaintiffs. The Court of Appeals affirmed, both as to the showing of good cause for production of the documents, and as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents.
11

Id. at 2-5, 73 S.Ct. 528 (citations and internal quotations omitted).
12

In the present action, Palya Loether is joined by Patricia Herring, William Palya, Robert Palya, Susan Brauner and Catherine Brauner. Patricia Herring is one of the widows who was a party in the original action. The others are heirs of the two other, now deceased, widows in the original action. The substance of their complaint is that the purportedly top secret documents for which the Government claimed a military secrets privilege did not actually reveal anything of a sensitive nature. They claim, therefore, that Government officers fraudulently misrepresented the nature of the report in a way that caused the widows to settle their case for less than its full value.
13

 

cont'd...


Appellants first pursued this current claim in the Supreme Court by a motion seeking leave to file a petition for a writ of error coram nobis. The Court denied this motion on June 23, 2003. In re Herring, 539 U.S. 940, 123 S.Ct. 2633, 156 L.Ed.2d 625 (2003). Then, on October 1, 2003, Appellants filed this action in the District Court for the Eastern District of Pennsylvania, preserved by the savings clause of Rule 60(b) of the Federal Rules of Civil Procedure, to set aside the 50-year-old settlement agreement on the grounds that the settlement was procured by fraud upon the court. The Appellants sought the difference between the settlement amount and judgment originally entered by the District Court (which was later set aside by the Supreme Court). The Government then filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). The District Court granted the Government's 12(b)(6) motion. It determined that there was no fraud because the documents, read in their historical context, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29. We affirm.

III.
14

The District Court had jurisdiction supplemental to its exercise of jurisdiction over the original claim in Reynolds v. United States, No. 10142 (E.D.Pa.) (filed September 27, 1949), and Brauner v. United States, No. 9793 (E.D.Pa.) (filed June 21, 1949). See 28 U.S.C. § 1367 (2000). We have jurisdiction pursuant to 28 U.S.C. § 1291.

IV.
15

The Government urges us to apply an abuse of discretion standard of review to our review of the District Court's grant of its Rule 12(b)(6) motion and provides several arguments in favor of departure from the normally applicable standard.
16

Initially, we must be clear that we are not here reviewing a Rule 60(b) motion. The provision of Rule 60(b) commonly known as the "savings clause" states: "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court." Rule 60(b), Federal Rules of Civil Procedure (emphasis added). It follows that an independent action alleging fraud upon the court is completely distinct from a motion under Rule 60(b). See Geo. P. Reintjes Co., 71 F.3d at 48.
17

The Government contends that because Appellants seek an equitable remedy ancillary to the prior suit of relief from a prior judgment of the District Court we should treat this action as if it were a review of denial of a Rule 60(b) motion and therefore review for abuse of discretion. We will not treat as a Rule 60(b) motion something that is explicitly preserved without being included by the text of Rule 60(b).
18

We are similarly unpersuaded by the Government's argument that because Rule 60(b) allows relief more broad than an independent action for fraud upon the court, and determinations based on Rule 60(b) are reviewed only for abuse of discretion, see Pridgen v. Shannon, 380 F.3d 721, 725 (3d Cir.2004), an independent action for fraud upon the court should be reviewed at least as deferentially. Fundamentally, this argument confuses standard of review with burden of proof. We are quite capable of taking full account of the narrow criteria for relief present in an independent action for fraud upon the court without altering the Federal Rules of Civil Procedure. Under the normal de novo review that applies to a district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, we can determine whether the Appellants have alleged facts which, if true, provide a basis for relief under the very demanding legal standard for fraud upon the court.
19

Finally, the Government cites United States v. Buck, 281 F.3d 1336, 1342-1343 (10th Cir.2002), for the proposition that independent actions to reopen a judgment based on fraud upon the court are reviewed for abuse of discretion. We note initially that Buck is not binding on this Court. Even if it were, it does not support the Government's proposition because it reviewed a case in a much different procedural posture than the one at bar. In Buck, the court converted a motion brought under Rule 60(b)(6) alleging fraud upon the court into an independent action and then reviewed for abuse of discretion. Instead, we are faced with the simple review of a district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim to which de novo review clearly applies. See In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 273 (3d Cir.2004).

V.
20

As noted above, we will employ a demanding standard for independent actions alleging fraud upon the court requiring: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) that in fact deceives the court. We agree with the Court of Appeals of the Eighth Circuit that the fraud on the court must constitute "egregious misconduct ... such as bribery of a judge or jury or fabrication of evidence by counsel." In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d at 195 (citations omitted). We must decide whether the United States Air Force's assertion of military secrets privilege over the accident report describing the cause of the B-29's crash at Waycross, Georgia, was fraud upon the court. In order to do this we look carefully at two documents central to the original litigation: the formal affidavit and claim of privilege filed by then-Secretary of the Air Force, Thomas K. Finletter and an affidavit of then-Judge Advocate General of the Air Force, Reginald Harmon.
21

Before engaging in a detailed inquiry into the substance contained in these documents it is important to note the form and authorship of the documents. Both are formal documents making assertions to the court under oath authored by lawyers who were participating in the litigation though not directly representing the United States.
22

Authorship is important because, as noted above, we agree with the courts analyzing fraud upon the court which have required the fraud to be perpetrated by an "officer of the court." See Geo. P. Reintjes, 71 F.3d at 49; Demjanjuk, 10 F.3d at 348; Lockwood v. Bowles, 46 F.R.D. 625, 632 (D.C.Cir.1969). These cases have noted, and we agree, that perjury by a witness is not enough to constitute fraud upon the court. See e.g., Geo. P. Reintjes Co., 71 F.3d at 49 ("The possibility of perjury, even concerted, is a common hazard of the adversary process with which litigants are equipped to deal through discovery and cross-examination, and, where warranted, motion for relief from judgment to the presiding court. Were mere perjury sufficient to override the considerable value of finality after the statutory time period for motions on account of fraud has expired, it would upend [Rule 60's] careful balance.") (citations omitted).
23

The Government seeks to define officer of the court narrowly to exclude Secretary Finletter and Judge Advocate Harmon because, though lawyers, they did not represent the United States in the litigation sought to be reopened. Although it is true that Finletter and Harmon did not represent the United States in the litigation, they did represent the United States Air Force's claim of privilege over a document central to that litigation. They were attorneys making a formal claim of privilege on behalf of the Government. We agree with the District Court's conclusion that the Supreme Court depended upon Finletter and Harmon's "experience, expertise and truthfulness" in its decision to reverse and remand. Herring v. United States, No. Civ. A.03-CV-5500-LDD, 2004 WL 2040272, *6 n. 3 (E.D.Pa. Sept. 10, 2004). Given these unique facts, we find it inappropriate to decide the case on the basis that Secretary Finletter and Judge Advocate General Harmon were not officers of the court.2
24

The stature of the documents in which the allegedly fraudulent representations were made is also important. The representations were made in an affidavit of Judge Advocate General Harmon and an affidavit and formal claim of privilege of Secretary Finletter both made under oath. To allege that false statements were made in these documents is to allege perjury; a particularly serious type of perjury because of the high degree of faith the Court placed in the truth of Finletter and Harmon's representations. In a perjury case, the plaintiff must prove that the allegedly perjurious statement is not subject to a literal, truthful interpretation. United States v. Tonelli, 577 F.2d 194, 198 (3d Cir.1978). As explained above, proof of perjury is not enough to establish fraud upon the court. See e.g., Geo. P. Reintjes Co., 71 F.3d at 49. In this case, however, an accusation of perjury forms the basis of the fraud upon the court claim. In such a case, proof of perjury, though not sufficient to prove fraud upon the court, becomes a necessary element which must be met before going on to meet the additional rigors of proving fraud upon the court.
25

Moving to our examination of the substance of the two documents relied on by the Appellants, it is apparent that we must determine whether they are susceptible to a truthful interpretation. More specifically, can they be reasonably read to include within their scope an assertion of privilege over the workings of the B-29? If they can, the Appellants' assertion that the Air Force claim of military secrets privilege misrepresented the nature of the information contained in the accident report over which the privilege was asserted falls apart.3