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Motion Response issue... help?


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Im ProSe in a small claims issue.

Plaintiff filed a "memorandum in opposition" to a motion I made. In it, they have a section called "Facts" and though many items listed I agree with... dates, etc... others I dont.

How should I phrase a response that makes it clear I dont accept thier "Facts" as facts, though I may agree with some. And do it without relisting all of them and commenting over and over.

Any ideas on a short blanket retort. These idiots would later say I AGREED with thier "facts" if I dont make it clear in my response that I dont.

________

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Edited by uwackme
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The first rule they teach in paralegal school and in babysitting - WHOOPS - I mean - law school, is to DENY EVERYTHING!!! Whether you agree with them or not, make 'em work for it! Most lawyers are lazy! They love money, but they hate work. Don't do their work for them! Secondly, collections is a numbers game. If you use procedure to make them spend more time, their clients will lose money because most states limit the amount of legal fees a lawyer can charge on a small claims case. If you haven't filed for discovery - better do so! Notice of motion and motion to compel discovery. Check some of my earlier posts, you might find something useful there.

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Thanks EQ.

This thing is in MA, and there is no legal fee's recoverable in small claims here. But my math says on a $1200 claim they've spent at least 40 hours, with 21 actually in court... mostly waiting around :twisted:

Why the OC is doing this, I'll never understand. But its gonna be a while and the most they get is $1200 + $40 filing fee.

So I'll generally deny thier "facts" and simply restate for my own good what I find useful...and phrase it as "plaintiff's atty admits".

Was hoping to get a nice legal phrase for the general denial.

________

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Edited by uwackme
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Small claims court isn't a place for motion practice, either. Are you in small claims or the regular civil court part? I wouldn't worry about refuting every little thing in a submission. As my uncle Joe would say, " There are three sides to every story: yours, mine and the truth." The judge will be looking for the third. Ask the court for oral argument.

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Well, Recovering Attorney, I hate to say it but the US Supreme Court ruled that it is and I have successfully filed several motions in small claims court. Discovery is a constitutional right under the 4th and 14th Amendments and the way you get it going if the opposition rufes your request is a notice of motion and motion to compel. Concerning blanket denial statements, "The Defendant denies all allegations of the Plaintiff."

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RA, this is in small claims.

We had oral argument, on my motion to vacate the vacate of dismissal they got... stealth, exparte (forbiden by MA law).

Also, I DV'd them before the 1st trial, they admit I DV'd and it was a valid DV, then they admit they sought documentation, and in fact got it( after losing the trial), but never sent ME the response to the DV.... like WTF? DV 90day point was May, still no response. :twisted:

Worse, they (its an OC and collection atty) did NOT mark the TL on my CR's as disputed, but DID upon the 1st trial being dismissed from defense motion for dismissal for failure to prove thier claim (they came with NO documentation at all, and didnt ask for a continuance to get any) switch thier reporting from "pay as agreed" to chargeoff. So they took action but instead of changing to disputed, they just changed to chargeoff, even though they had done the chargeoff in 2001, and reported it back then with CRA's.

I'm hoping this is FCRA violation, and as its been repeated every month on all 3 CRA reports for 7 months now, will show willfull non-compliance.

I just need to send in written response to the memorandum in opposition they filed the day of oral argument. Judge is still "thinking about it" pending my written response.

In MA, discovery isnt a part of small claims unless for good cause.... a nice broad ability for the judge/magistrate to allow what makes sense.

This motion was just about undoing what they did without notice behind my back back in July. They got a new trial with a motion to vacate dismissal. Conviently defense was never notified. And hearing was held exparte, and judge granted thier motion even though vacate judgment or dismissal is forbidden exparte. If I prevail in the un-vacate (cant see how not, it is forbidden), then they could ask for new trail AGAIN, this time Ill be there to oppose.

________

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Edited by uwackme
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Okay - to begin with there are two ways that lawyers beat people in court:

1) The facts and the evidence

2) Procedure

If they don't get you on 1, they will on 2. Having said that, you are not following proper procedure. From now on, read up on that before you go pell-mell into a courtroom.

A DV will not work in court. When you are in litigation you file a request for discovery and then if the opposition doesn't comply, you follow up with a notice of motion and motion for continuance to buy time - which you will need for the notice of motion and motion to copel discovery. You need to file a notice with every motion or the motion will not be heard. (Motions require a hearing) Most CA's and lawyers will balk at discovery because it's too time consuming for small claims and they'll dismiss the case because the case is no longer cost efficient.

Concerning the response to the memorandum, yeah, you're right, you need to answer it. There is some case law on this website that can help you, just look up the stickies that mention "case law". The other thing I would say is to look up my first post to you. That should cover it all. Remember - DENY EVERYTHING!

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Hi EQ, thanks for the response.

Yes, I know the DV isnt court related. They beat you two ways, but we have a third way.... countersuit from FDCPA/FCRA violations ;-)

It was sweet of plaintiff to admit they recieved DV, recognized it as valid DV, etc.... not for the court case per se, but for establishing foundation for counterclaims on FDCPA violations.

They admit recieving DV, but never responded to it.... not in the 90days, not ever :twisted:

DV letter included:

"Be advised that this is not a refusal to pay, but a notice sent pursuant to the FDCPA 15UCS1692g sec 809(B) that your claim is disputed and validation is requested."

They admit to the DV, and thier recognition of it, so they conceed its legit and all requitrments under law follow. They never changed CR entires to "disputed" as is required, didnt then, still haven't, even though they did update thier CR entry's to all 3 CRA's for each month since the DV.

I know I have to respond, will finish and shipit mon morning at the latest.

On the actual court case, they are trying to overturn a dismissal, and I dont think they will prevail. Basically the lawyer screwed up, assuming they could waltz into court saying.."well he didnt file a formal dispute, so we didnt bother getting any evidence to prove our case".

? 809. Validation of debts [15 USC 1692g]© The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

They thought if I didnt formaly deny, then I admit liability....cause thier Dunning/Summons said if you dont dispute we will ASSUME yada yada yada 8-)

Small claims doesnt really have RulesofCivilProceedure the way formal Civil court does, just a more informal setting and set of guidelines. BUT...

In the specific circumstance of reversing judgment/overturning dismissals, the judge/magistrate is allowed and encouraged to view things in light of the real RulesofCP. Well, Rule 61 states...

Rule 61, no error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgement or order, unless refusal to take such action appears to the court inconsistent with substantial justice.

Also, rule 60 listing reasons to allow a new trial.... mistake (of the court/judge), abjurance, excusable negligence (malpractice in thier case), fraud, and NEW EVIDENCE. But the new evidence definition is evidence that couldn't be produced by DUE DILIGENCE before the first trial.

So in two ways they are screwed. Further, Rule41 states that a dismissal granted on defense motion... "effect" the dismissal is to be considered adjudicated ON THE MERITS.

So they brought suit, didnt prove thier claim, lost and are now trying to get a new trial cause, gee, your honor, we'll get it right THIS time :twisted:

Ill just blanket denyt thier facts, and move on to arguing thier argument over the motion specifics.

________

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Edited by uwackme
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Your latest post concerns me. :shock: At the risk of sounding conceited, don't forget, I do this for a living. ANY court has rules of civil procedure. :!: DV's are not - say again - are not discovery requests or demands, and the FDCPA does not supercede procedural law. Yes, you have the right to dispute the debt. However, the US Code does not supercede the procedure of how you dispute it, and I don't think you're seeing that.

This is small claims, not federal. That means that a very thorny issue that an ancestor of mine, who was a Confederate general, fought for called states rights comes into play and mitigates the federal law. If you do not follow the proper procedure, right, wrong, indifferent, you will lose.

I've seen it time and time again. In my professional opinion, you are allowing your flanks to be exposed. But, it's your case, your call, and I certainly wish you God's blessings as you do His work. You will be in my prayers.

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Hi EQ,

Yes I realize the DV has nothing to do with discovery. In fact in MA small claims there is no discovery, unless for good cause. There are proceedures for small claims, just simplified from the MA Rules of Civil Proceedure. It's called the Small Claims Standards Act, and the Uniform Code of Small Claims in MA.

The simple fact that there was a DV (the DV itself isn't important) and that the plaintiff acknolegdes on hte record it was a valid DV, and didn't respond to it; further plaintiff didnt alter CR reporting (this is collections atty for OC) to reflect the correct status as disputed as Fed law requires; which lays foundation for FDCPA/FCRA violations in counterclaim IF there is a new trial.

The point of nailing down violations is for counterclaim. Not anything factual in the DV or response (which so far hasn't happened), just the fact there was a DV, and dispute, and the plaintiff DID NOT obey federal law and act accordingly, and that FDCPA and FCRA provide statutory penalties for the violations payable to the consumer, and that small claims judge IS empowered to levy the penalties.

Ordinarily you would take violations and sue in fed court for them, but these folks beat me to the punch suing me in small claims. SO I dont need to bother.... though my counterclaim can't exceed $2K... but the point was as an offsetting amount to thier claim anyway. Call it plan C.

There already has been a trial, and they lost. They are seeking a new trial based on "new evidence", that being evidence that they could have gotten before the 1st trial but simply didnt bother.

They got original trial date 9 months in hence from summons date, then proceeded to not bother to obtain ANY documentation that could even begin to prove thier claim. They appeared at the first trial saying, well he didn't dispute the claim, so he is guilty your honor....um, ah, no. I motioned for dismissal based on the fact the plaintiff failed to prove thier claim. Judge agreed and dismissed. They didnt ask for a continuance to get documents, they just folded tent and left.

Almost 4 months later they motioned to vacate based on "new evidence", and didnt "notify" me of the hearing (nor did the court) and got a default vacate. A default vacate is ILLEGAL under both small claims and regular civil rules, and the judge needs to reverse his vacate, that is where the case stands now.

The response Im formulating is the response to thier memorandum in opposition to my motion to undo the vacate. But it is based on a matter of LAW, not any facts beyond I was not present for the hearing, a fact not in dispute.

Make no bones, the judge is not amused by the non-service and no proof of service by the plaintiff. As they are all lawyers, the judge accepted "I certify that..." was proof of service, in the exparte hearing. After all, lawyers never fib. Of course the only party to benfit from my not being present was the plaintiff. Noone present to bring up the rule 60 and rule 61 issues led to the judge grant the vacate. But it is simply illegal and a violation of the opposing party's right to due process to rule exparte.

The kind of stuff that happens when a criminal judge (a good one too) gets handed a motion hearing over some pointless chump change nonsense between murder hearings.

I want to deny thier "Facts" in general but they make admissions in the "facts" section of thier memorandum that prove my allegations on FDCPA/FCRA violations, so I kinda dont wanna deny the "good parts" :twisted:

________

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Edited by uwackme
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