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Everything posted by BTO429

  1. I have stated just what the judge said on numerous occasions. I have always had arguments about that fact. But I guess the judge clarified what i have said. I have always said the the contract is the governing doc when a claim for breach is made. Thats what the judge is saying here, if you want breech of contract, produce the contract. It is hard for a judge to rule on a contract when he does not know what the contract states.
  2. Anon be careful with this statement, I know exactly what you are talking about and agree, but I have been admonished on more than one occasion for saying this. I have said more than once,"statements of council in brief or argument are not facts before the court" I guess some people on the board do not know what this means or where it comes from. I have also stated that council cannot testify as to the facts of the case, I got admonished for this one also,,, lack of understanding i guess. I'll prob get hit again, but it is important for people to know this issue. I have seen it cost people their case simply because they did not object on those grounds.....but in so many words was told I do not know what I am talking about.
  3. Iwould prepare a suit over fdcpa for failure to comply, that letter is letter is an attempt to weasel out of the fdcpa requirements. I bet if he does send them a more definite letter they will send him a letter that says that the second letter is not enough information either. I know what kind of letter I would send at this point,,,,,,,,,BUT
  4. Now that you are in a civi action make a motion for court ordered arb,,,,,,what this amounts to is they are trying to avoid having to pay for the arb, the debtor does not pay for arb ,,,,,usually.
  5. I am not allowed to post my letter any more,,,,, It was not posted in its entirety any way, It s a long story but I cant talk about it on the board.
  6. Since they did not state a definite cause of action in the complaint a motion to dismiss for failure to state a claim for which relief can be granted will do. If the court agrees, they will refile and do it right. You wont get a dismissal with prejudice. You are going about it wrong here, I would file a motion to dismiss for failure to state a claim for which relief can be granted. They do not state any claim, i,e, breech of contract, account stated, common counts, or any other claim. In order to invoke the courts authority you need to tell the court under what pretenses you are suing. They may have implied there was a contractual agreement or an implied contract in their wording,,,,but they did not specifically state what claim they are suing you under. Plaintiffs motion is a procedural nullity, its does not state a claim for which relief can be granted, failure to inform the court under what pretense they are suing under. You are in the same circuit as me, this case reestablished the pleading procedures for this area. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) inter alia “fair notice” of a claim is insufficient. In addition to providing notice, the complaint must state a claim to relief that is plausible on its face.(i,e, breech of contract, account stated etc etc) This was an anti trust case but it has made the standard of pleading a complaint more specific. Another case they use in our district is Ashcroft v. Iqbal, _ U.S. _ , 129 S. Ct. 1937 (2009), the Supreme Court held that the “plausibility” standard applies to all civil actions. Under Twombly, a defendant should not be forced to undergo costly discovery unless the complaint contains enough detail to indicate that the plaintiff has a substantial case. And the complaint must state the cause of action. Our courts are now being bombarded with failure to state a claim motions. I have mentioned these cases on numerous occasions. Bissessur v. Indiana Univ. Bd. of Trustees. et al., 581 F.3d 599 (7th Cir. 2009). Is another case that our Supreme court rued on and is in use in our circuit, the Supreme court upheld the motion to dismiss. Bissessur (“Our system operates on a notice pleading standard; Twombly and its progeny do not change this fact.“). Smith v. Duffey, et al., 576 F.3d 336 (7th Cir. 2009) The Supreme Court upheld another failur to state a claim motion, and they relied on the Twombly case and Iqbal. Riley v. Vilsack et aI., 665 F. Supp. 2d 994 (W.O. Wis. 2009), Another case where they relied heavily on Twombly and Iqbal. When an element of a claim involves the intent of the defendant, the plaintiff is limited in the facts that he can provide at the pleading stage. The plead facts of the case, they did not state a claim,,,,in Indiana court commonly acknowledge. Statements of council in brief or argument are not facts before the court. In other words just because and attorney makes a statement does not mean it is true, they have to prove the statement before it becomes a fact. You cannot plead the facts of your case, that is what trial is for,,,,,all that needs be done in a complaint is state your claim of action,,,,the details come out in court.
  7. In Indina I think even if you elect JAMS or AAA a suit still needs to be filed, the courts want to oversee arb I think this took affect in 2012
  8. I would at least bring up this DOJ ruling in court, it may or may not hold any weight with the court, but if you do not bring it up you know the answer. You have some defenses on this the account on your credit report says its paid.....bring that up in court. I A validation letter will preserve your rights under the fdcpa, but it takes hardly nothing for them to comply to it. I would send it any how. If you do not want to pay, then wait thirty days after the dv letter and send them a cease and desist order. Ten the have to either go away or file suit.
  9. grounds for more than that if you can prove no license.
  10. In Juy 2009 I got one of those rent to own buildings,,,,I had a big post about the repo man over this. I have roof this is paid off. The owner of the company has had no contact with me since Dec 2012, For the last six months I have been receiving bills from his accounting firm that he uses. I have the pay off letter and it matches the amount they claim i owe. I am tired of the bills, and I am sure that if a complete accounting was made of this account it would show I paid to much. I cannot believe that after a law suit in my favor, he would wait 8 months and then start sending me bills again. But the law suit did not include the amount owed it was just over an illegal repo. So maybe a new case is in order. He claims I still owe 386 dollars, his last letter sent to me says the bill would be considered paid in full, if I send him another 186 dollars. I have the bill from 12/12/12 that says the same thing, but in Dec 2012 I paid the 186 and the letter says he would remover any late charges and apply my deposit to the bill and consider it paid in full. I paid the 186. Even though I am sure his accounting is not correct, the 386 dollars he says I owe is for late charges only. He has been adding late charges on this bill for almost the entire life of the contract. This was set up for auto pay every month, they billed my bank one month behind for two years. It is not my fault they did not bill my bank on time.
  11. I would definitely used the judges own case law, I very well doubt he would contradict himself.
  12. The above is correct, we misstate this a lot,,,,,no one is judgement proof, they may be collection proof but that can also be limited. They can attach property up to the amount of the debt also. If they search hard enough they will find something.
  13. That is why I told The OP to inform the plaintiff attorney that you receive VA disability. You also inform the court the judge should examine a garnishment motion before he rules in favor.
  14. You will find all the information you need including case law cites at the library in your state annotated law , American jurisprudence,,,,,please go use them it will make things easier for you.
  15. If you are a disabled vet, like myself, you have a lot more power than you realize......tell they attorneys you are a disabled vet they will then know they have nothing to attach if they win.....they cannot garnish those va disability payments, and if they try you have a a great case in federal court over this. It is federal law that if a bank receives a bank levy the bank must investigate, and if those funds can be traced to va disability the federal law says the bank MUST protect those funds. USC Title 42 §659.(h)(1)((iii) for disabled veterans in receipt of disability compensation. And USC Title 38 §5301
  16. If you are having that much trouble then the library will be a good place to start. Look in the annotated state laws under fraud upon the court, also if you have time look the same thing up in American Jurisprudence 2nd if they have it. These two sources will tell you what you need to prove fraud upon the court and the case law that your state courts rely on. On line are not extremely reliable unless you go to West law or Lexis Nexis, but they require you to join and they are not cheap.......besides the judge will look in the same books you will look at in the library. Judges use Am Jur to tell them how to decide a case They have it in their chambers. They also have that state annotated in their chambers. So if he looks in these books and you pleaded your case by what the two references say you should and used the same case law he will see that you did your research, unlike opposing council. This is why I strive to get posters to use these two sources. What better info can you use than the same sources the judges use. Most paralegals and attorneys also use the same books, All paralegals are taught how to use these sources for their research. So are attorneys, although some forget what they are taught.
  17. Under the supreme court rules Section 202.12 Preliminary conference. ( The court shall notify all parties of the scheduled conference date, which shall be not more than 45 days from the date the request for judicial intervention is filed unless the court orders otherwise, and a form of a stipulation and order, prescribed by the Chief Administrator of the Courts, shall be made available which the parties may sign, agreeing to a timetable which shall provide for completion of disclosure within 12 months of the filing of the request for judicial intervention for a standard case, or within 15 months of such filing for a complex case. If all parties sign the form and return it to the court before the scheduled preliminary conference, such form shall be "so ordered" by the court, and, unless the court orders otherwise, the scheduled preliminary conference shall be cancelled. inter alia http://www.nycourts.gov/rules/trialcourts/202.shtml#12 You said they agreed to the stipulation on the discovery? did both parties sign it? was it submitted to the court? if you are not sure submit your copy to the court, looks to me like the stipulation agreement becomes so ordered by the court. Now since it look this way they have failed to follow the order of the court. I would file an order to show cause and get them in court and let them explain to the judge why they have not complied to the order. Attach a copy of the stipulation agreement as your evidence. I would also submit a copy of the letter you sent to the atty about complying.
  18. You should be able to find all the rules you need here http://www.nycourts....ourts/206.shtml
  19. http://www.nycourts.gov/rules/trialcourts/206.shtml You have to look under the court of claims. NY has so many different types of courts......what court is your filed in? here are the rules for the courts of claims. Section 206.16 Identification of trial counsel. (a) Where the attorney of record for any party arranges for another attorney to conduct the trial, the trial counsel must be identified in writing to the clerk and to all parties not less than 15 days before the date assigned for trial. The notice must be signed by both the attorney of record and the trial counsel and filed with the clerk. ( After trial counsel is designated as provided above, no substitution shall be permitted unless the substituted counsel is available to try the case when it is reached in regular order. Written notice of such substitution shall be promptly filed with the clerk and given to all parties. Since you said you have not yet been to trial, I would say she does not yet have to file. But I would ask any way no matter who shows up to conduct the trial. I do not see in our state rules whether or not you can make an oral motion to see in the attorney has filed their appearance. I would just do this, as soon as the plaintiff attorney starts to speak, at the onset of the trial, object, and say your honor I have dealt with more than one attorney with this case, I have yet to be informed who will be the attorney of record in this case, I would also ask if that attorney has filed his appearance. I am asking this your honor because the plaintiff or the plaintiffs law firm keeps changing attorneys on me, I have no idea who is the attorney of record in this case. You have the right at any time to ask to see the attorneys appearance if he filed one. Of you find out their is no appearance filed I would ask the judge if a motion to dismiss is proper due to several facts at issue in this case, I would then explain that they continue to not follow the discovery rules and it is hard telling how many other rules they are not following. It looks to me as though NY has quite a few rules that mandate that pro se are not to be run over and are actually supposed to help a pro se. I have found some rules for the other courts but not sure if they will apply to the court you are in.
  20. If another attorney comes in to the picture even for a day that attorney should file a motion for her appearance, That how they do it here, I would look up the rules and see . If she did not put in her appearance with the court anything she did that day could be striken from the record. I would look this up.
  21. yes it is if your library has it available.....
  22. Fraud upon the court is a very serious charge, The thing about it too is if they committed fraud on the court they also committed fraud you. If you manage to prove it, you can file a separate suit against them for fraud. I would see an attorney for a fraud case. One wrong step with a suit like this and you could find your self paying them. Go to the local library and look in your states annotated law books and see how your state looks at fraud upon the court. It will give you what your state requires to prove it and case law.
  23. This paper says a lot of the things I have been saying. How can they advance these documents to the court knowing that the documents have no guarantees for accuracy? If the seller of the debt cannot warranty the documents how can the buyer warranty them enough to present them in court and ask a judge to rely on them? That is against their own canons and they know it, but what gets me the most is the judges allow them, when the judge even knows it is wrong. We need to make the courts and the atty that we are aware of this deceptive practice and make the courts adhere to their own rules. The problem is most people are afraid of a judge and will not challenge the court.
  24. I think a lot of this depends on the judge also. If you get one of those judges that do not like pro se litigants you may not have much luck with him/her. Judges do have discretion, if they want to explain things to a pro se they can, Some just refuse to help a pro se.
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