Help.. this is new.. need info ASAP

[CarolinaBlueEyes]

As some of you know I have a friend (yes it really is a friend and not me)... lol who has been dealing with a suit from Dominion.

She went to court and the judge was a little put out she didnt have a lawyer (this was for under 1000.00).. but she didnt DV and there is some possiblity that it is out of SOL but she can't prove that since the judge said her credit report was not evidence enough and she had no other way to address this issue.

The judge moved to continue the case.. why, I am unsure but she has a court date on Aug 17.. She told me she got in the mail yesterday a packet of papers from Dominion and it was basically a copy of the summory judgement in all the legal langauge.. I guess they want to judge to sign it.. it had no signatures on it.. just a three page note of how they were entitled to it in all the legal langauge. It was, according to her, an official document

Is this normal??.. I dont understand why they would mail a copy of the summory judgement that it seems they prepared (I didnt see the papers she conveyed this in a voice mail) when they have not even been awarded it yet and the upcoming court date is weeks away... anyone have a clue on this??? I have not had this happen so I am out of my element with this one..

what would be the purpose?

[divemedic]

all pleadings must be served on the other party

[CarolinaBlueEyes]

so she is just getting this so she can be aware of what to expect? thanks for this.. I should know this but when I went to court I had a lawyer which I assumed they must have recieved paperwork

[mikey]

on my wife's, she got probably the same thing...a bunch of legal garbage stating "count one" blah blah "count two" blah blah...why they are entitled to winning and what they are entitled to....i read it but laughed at it since hers is an easy one...its outside the SOL definitely on hers. i didnt get the same thing on mine but that probably because the lawyer was lazy or realized it was useless....they mailed me a terms & agreement on mine, not hers, so i guess these guys than have to explain it to the court what they want based on their opinion and not one found on a contract. she also got a bill of sales showing how they got the acct. but i could care less. none of them will get a penny on hers. on mine i dont have this chain of ownership but i will ask for it in court, you can count on that.

anyways, back to yours...those papers i think are to just intimidate her. the bottom line is whether the acct is hers, does she owe it and what her defense is...sol. all those papers wont mean a thing if sol is an absolute defense.

best of luck

[Recovering Attorney]

this is a motion for summary judgment. essentially, they have their complaint and your friend has her answer, and they are stating that ther eis not issue of material fact. Usually, it means the other side has not shown there to be a valid defense

[CarolinaBlueEyes]

Thank you RA... I appreciate it I will pass this on to her anything you would suggest she do would be helpful.. she doesnt know how to prove the SOL since the judge would not allow her credit report

[mikey]

Thank you RA... I appreciate it I will pass this on to her anything you would suggest she do would be helpful.. she doesnt know how to prove the SOL since the judge would not allow her credit report

the other side doesnt have her statements? her last one would be very helpful. what proof have they submitted with the claim beside what they think they deserve with the motion for summary judgment?

if nothing, how is the judge buying into that they even deserve to be heard on this debt? any verification or validations? tell me they have more than a name & acct #......lol

[CarolinaBlueEyes]

the judge made it clear she has to prove it is out of SOL...since she is using it as her defense... I have NO idea how she can do this since they would not permit her credit report...... and that is all she has as proof.. they claim she owes it and it looks like its going to go down that way.. since she never DVd them...

the judge was very abrupt with her in court. he even called the JDB "These fine people"... he also told her that she needed to have legal counsel next time she was in front of him.. she cant afford that.. the debt is for less then 1000.00 and she is on disability... and does not work... a lawyer on this case would cost more then its worth... my best guess.. looks like he will grant it.. she has no idea how to fight this and to be blunt this is beyond me.

[divemedic]

if this is not small claims, she needs to get the info via discovery. if it is small claims, she is screwed. Small claims judges are very pro JDB.

[CarolinaBlueEyes]

its small claims and you are so right about them being pro JDB..

why do you suppose they are??

which I admit I do not understand... how in the world is she supposed to prove an SOL if they dont allow her to use her credit report.. this makes no sense to me at all,..

[mikey]

excuse me dive, but isnt it the planitiff's job to PROVE his claim. we are innocent until proven guilty. the planitiff needs to come to court with supporting paperwork. in fla it is required to be incoporated and attached to the claim for it to be offered in. no evidence, no claim. i find it hard to believe that a lawyer can simply go in with nothing and win a case because the judge is pro-jdb...the judge must still be or is suppose to be bias, that is why we have backups in appeals. i have heard of them going either way.

i would go to court in this case and deny owing the debt. it appears she has nothing to offer in defense then so it woudlnt matter than. the other side would than have to present statements and records...than she can claim sol....see my point?

[divemedic]

It isn't innocent until proven guilty, that is criminal court- The rule in civil is preponderance of evidence- they have a signed application, they have a statement from the bank, they have a credit card statement- that meets the standard. Since SOL is an affirmative defense, you are required to have the documents supporting it- and since many small claims RCP's do not allow discovery, if you don't have the paperwork to prove your defense, they are not required to produce it.

Perhaps she could bring in a signed affidavit from herself, stating that she last paid on this on such-and-such a date, and try that. Since the JDB cannot have direct knowledge of the account, having bought it AFTER default, the affidavit would be unrefuted testimony. Make sure you have a court reporter there, so you can appeal when he inevitably rules against you.

[mikey]

It isn't innocent until proven guilty, that is criminal court- The rule in civil is preponderance of evidence- they have a signed application, they have a statement from the bank, they have a credit card statement- that meets the standard. Since SOL is an affirmative defense, you are required to have the documents supporting it- and since many small claims RCP's do not allow discovery, if you don't have the paperwork to prove your defense, they are not required to produce it.

Perhaps she could bring in a signed affidavit from herself, stating that she last paid on this on such-and-such a date, and try that. Since the JDB cannot have direct knowledge of the account, having bought it AFTER default, the affidavit would be unrefuted testimony. Make sure you have a court reporter there, so you can appeal when he inevitably rules against you.

i understand the crim vs civ but in certain cases here, people are claiming the planitiff isnt furnish a single item in court except a summary judgment and a typed out sheet with a breakdown of what they are suing for. if that is accepted, then why not a typed out sheet with your last date paid. in fla's rcp it says you have to included supporting docs to claim in order to claim them. no written instrument, no claim to that. also, it seems the planitiff would have direct knowledge if they had some of the paperwork, but in cases where the sol is ran out, they pay cheap and thus in the course of time docs seem to get left out of the cases they buy. i bet in carolines case, they dont have a single bit of paperwork to back their claim up. that is really what i meant with proving the defendants quilt. they have to prove more than 50/50.

[divemedic]

In SCC, the judge frequently plays the role of referee. Since you cannot appeal the SCC ruling without a transcript, and people rarely pay for a reporter to be there, the judge's ruling stands. Even if not, the appeals court only settles questions of law, not questions of fact. Since so many people who go into SCC have no knowledge of the law, they get lost and the judge hammers them.

[mikey]

In SCC, the judge frequently plays the role of referee. Since you cannot appeal the SCC ruling without a transcript, and people rarely pay for a reporter to be there, the judge's ruling stands. Even if not, the appeals court only settles questions of law, not questions of fact. Since so many people who go into SCC have no knowledge of the law, they get lost and the judge hammers them.

well then, once they mention in their appeal the planitiff didnt offer any supporting docs and the defendant claims sol, the appeals court would than rule over the referee's decision to side with the planitiff based on law....they are required to submit any docs to the claim.

[CarolinaBlueEyes]

Mike no offense but in small claims court it doesnt work that way...not here anyway

what referee.. this is ONE judge about five people in the courtroom... not alot she can do here....

[divemedic]

Mikey- the presence or absence of documentation is a question of fact, not of law. The appeals court does not retry the case- they merely settle arguements over what the law MEANS.

[mikey]

Mikey- the presence or absence of documentation is a question of fact, not of law. The appeals court does not retry the case- they merely settle arguements over what the law MEANS.

that is my POINT...if the planitiff fails to follow the RCP and the judgment still sides with them, it needs further REVIEW. they have to submit the necessary docs to their claim and not just show up in court demanding payment on an ALLEGED acct. the proof is needed or anybody could go to court and demand payment...eg all the people getting falsely accused on debts that isnt theirs.

[nascar]

In engineering, one learns that things that work on paper don't always work in the field. You could apply the same analogy to SC court.

Right, wrong, or otherwise, SC is mostly a court of equity rather than a think tank of procedural law. The judge is going to do what he thinks is right, sometimes despite legal evidence to the contrary. It's not always right and it's not always fair, but it's their game and that's the hand we're dealt.

[mikey]

In engineering, one learns that things that work on paper don't always work in the field. You could apply the same analogy to SC court.

Right, wrong, or otherwise, SC is mostly a court of equity rather than a think tank of procedural law. The judge is going to do what he thinks is right, sometimes despite legal evidence to the contrary. It's not always right and it's not always fair, but it's their game and that's the hand we're dealt.

the courts do not put judges to sit there and interpret the laws according to THEIR beliefs. they are to follow the law of the land. not what he thinks is right...otherwise, they get the BOOT.

remember the judge who thought in his opinion the commandments were okay on the court grounds...is he still ajudge?lol

[admin]

Mikey, I beg to differ about small claims judges following the law. For instance, in AZ, small claims court judges are appointed by the legislature, like justices of the peace. They are sometimes not lawyers, but their decision is binding unless appealed. They may have little knowledge of the law.

Every state is different. If you do not live in SC, then you may not be familiar with the way things are done there.

[divemedic]

Disputing evidence is a question of fact. Disputing the meaning of the FDCPA is a question of law. The appeals courts are there to settle a question of law, the SCC in this case is the primary finder of fact. The apepals court is not there so people can essentially retry the case if they do not get their way.

The only way to get an appeal is if the court made an error in applying the law, and even then you need a transcript of the hearing, which is often not done in SCC, unless one of the parties hires a court reporter to be there.

Is it always fair? No. A lawyer friend of mine once told me that the law is not about right or wrong, nor is it about legal and illegal, it is about who builds the best case.

[CarolinaBlueEyes]

no offense mike but this is not Perry Mason.. I sat in that court room and they are on target.. they dont need much to get a judgement these days in small claims.. and judges here dont get the boot.. they are NOT all elected.. they , many times are appointed.. and this guy has been on the bench 20 some years... as I stated its a small community.

[mikey]

you guys may be right. but from what i have heard from you all, it appears our judicial system is in very sad shape. we have laws which mean nothing if you have scumbag lawyers to go up against and poorly education judges sitting behind a bench (and you have to refer to them as "your honor"...lol)

where is that so-called balancing scales of justice? are you telling me that this country has no fair system in place to protect from judges who are picking and choosing who they like and dont like?

you guys paint a grime picture here. its one thing to owe a debt and have an obligation to pay, but if you dont owe it but dont have the resources or the resources arent allowed in court, and you have some sleezy lawyer licking up to the judge who was given the position because of the good old boy network...well, i am sadden to say i live in a country like this.

shame on them.

[CarolinaBlueEyes]

Is it always fair? No. A lawyer friend of mine once told me that the law is not about right or wrong, nor is it about legal and illegal, it is about who builds the best case.__________________

LOST .. how ironic.. my lawyer said the EXACT same thing...he told me that if I thought the law was about right and wrong I was delusional...you are also right when you mention that many of these judges don't know the laws... because they dont have to be lawyers to sit on the bench....