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Posts posted by BTO429

  1. A vague claim in Illinois is best attacked by going after both potential causes of action which are breach of contract and account stated rather than going after lack of a cause of action since it's easily correctable. I've given Lyric a sample which attacks both causes of action.


    The reason i asked for the thread bump is because I'm concerned with the judge's comment about lack of a contact since this is directly out of the rules of civil proceedure, ILCS 735 5/2-606.


    A vague claim in Illinois is best attacked by going after both potential causes of action which are breach of contract and account stated rather than going after lack of a cause of action since it's easily correctable. I've given Lyric a sample which attacks both causes of action.


    The reason i asked for the thread bump is because I'm concerned with the judge's comment about lack of a contact since this is directly out of the rules of civil proceedure, ILCS 735 5/2-606.

    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. I would try to clear as many issues as possible before trial starts. File an MIL for every piece of evidence they produced and subpoena the declarant to the ccp 98 (if that fits your case).


    The jdb's will try to authenticate the OC's records, but they should need a witness from the OC to do that, if you object and make it an issue.


    Also, the lawyer cannot testify, but they often try to, so you have to make an objection on the grounds that council is testifying. And object to them asking for  a continuance, as they often will when they have no witness. There is  a rule that they cannot do that, but I don't have it off hand, maybe someone will chime in with it.


    It will help if you can go watch a live case being tried.


    Good Luck.

    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.

    • Like 1

  3. I did some digging but didn't fund much wording in the way of "court forced oversight".  So it could be that since the case has already been filed the Oklahoma court will assume oversight as opposed to dismissing.


     This is the Civil Procedure section on Arb Intialization:


    A. A person initiates an arbitration proceeding by giving notice in a record to all the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe:

    1. The general nature of the controversy; and

    2. The remedy and alleged damages sought.

    B. Unless a person objects for lack or insufficiency of notice under subsection C of Section 16 of this act not later than the beginning of the arbitration hearing, the person by appearing at the hearing waives any objection to lack of or insufficiency of notice.



    and this on refusing to arbitrate


    A. On application and motion of a person showing an "agreement" to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

    1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

    2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. 


    Several case laws were noted where a judge's refusal to Compel Arbitration were later overturned.

    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.

  4. 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.


    Hello everyone,

    Spikey advised that I share the latest on this case to see if any of you can assist with your expertise:


    I got a leave of the court to file my motion to dismiss.  No objections from opposing counsel, Blitt & Gaines.


    While I had my motion all ready with the notice ready to go, the judge advised me that he typically does not rule in favor of motions based on evidence of a contract.  He just said he wanted me to know that.  So he gave me 3 weeks to file my motion, two weeks for the opposing counsel to respond, a week later for me to reply and then mid February, he'll hear my motion.


    While I think I'm ready to file, my MTD first section  The Complaint Fails To Establish The Existence Of A Contract


    which is exactly what the judge says he doesn't rule in favor of. I know I haven't posted the motion, but I see that my motion covers a little more than breach of contract.  I have a section also mentions that " there must be a record detailing the date and circumstances of the request or application for credit.  15 U.S.C. § 1642.  The plaintiff’s complaint includes none of these requirements." and sections 8-10 seems valid which is establishing a record that I had/used the alleged account through a transactional history or something.  


    The judge says I can bring a motion before him that includes no contract, but he usually doesn't rule in favor of that.  

    I want to be respectful of his advice and not waste his time, which he mentioned several time to other defendants that he hated.  


    Currently, I have a combined 2-615/2-619 for MTD for The Complaint Fails To Establish The Existence Of A Contract  and The Complaint Does Not Allege The Elements of Account Stated


    Spikey was hoping gwheelock could chime in....


    What are your thoughts?   

    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.

  5. 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.

  6. 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.



  7. The attorney will not care.  They will pursue the judgement and wait until you do have attachable assets or income.


    As far as the fund protection, what happens in real life vs what the books say is; the bank gives them the money and you need to file Challenge to Garnishment or a Exemption to Garnishment in your court to get the money back.


    It is always a good idea to inform the other side that you are currently "judgement" proof, to encourage them to pursue other targets. But do not rely on that alone to stop a lawsuit or a garnishment from an account with exempt funds.

    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.

  8. Clydesmom, thank you so much for the advice. I will def go hang out and see what I can see. GA is so pro-corporation over the little guy. Everything you said goes right along with all my fears. As your crazy dog story is just the tip of the iceberg.  Arghhhh.


    Maybe a good additional approach would be for me to also find out exactly what they can do to me if they get their judgement... or if there is a way to get out of the judgement due to economical hardship without having to claim bankruptcy? I am a disabled vet, and I live on my measly VA disability, which is 3/4 federal minimum wage. I have read that GA does not alllow for garnishment of VA disability, or Federal Student Loan monies (I am currently getting my degree). Without a job, there is no paycheck to garnish. I do not own any property outright, although when my car died last year, I got suckered into leasing a vehicle (dumb!). I usually have less than $50 a month in savings after neccessities, medications, car payment, & insurance.


    I guess bankruptcy could also be an option, but it seems stupid to file for less than $15k in total debt (not including car/student loans), not to mention, I just don't have the money needed to file and it doesn't get rid of student loan debt.I had just started getting my credit back on track, and now this happens. Murphy's Law.

    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)(B)(iii) for disabled veterans in receipt of disability compensation. And USC Title 38 §5301

    • Like 1

  9. 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.

    • Like 2

  10. Under the supreme court rules

    Section 202.12 Preliminary conference.

    ( B) 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


    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.


    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.

    (B) 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.

  12. 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.

  13. 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. 

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  14. I don't disagree but I'd be very careful with this. In every state I'm aware of, Pro Se's are supposed to be treated like lawyers and expected to know the rules and procedures.

    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.

    • Like 1