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Plaintiff's Motion To Set Aside Dismissal


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Hello Everybody:

I'm Bob the Custodian, My name is Bob and I am a Custodian and I live in the "Show Me" State of Missouri. Thanks to the information I found here and a few other Free Sites I have been somewhat sucessful in Defending Pro Se in 3 lawsuits brought against me by Citibank.

I say somewhat sucessful in that after the basic paper battle of Defendants answer to the Petition, Defendants reply to Plaintiff's first request for admissions, Defendant's request for Production and Defendant's Motions for Dismissal. The Plaintiff's Attorney did not appear at the at the last court date to get a ruling on the Defendant's Motions for Dismissal and if necessary setting a Trail Date.

Because of the Plaintiff's "Appears Not" when called. The Judge Dismissed all 3 Cases "Without Prejudice". Off the record the Judge said I did a good job and it would be unlikely they would take another run at it. However it was possiable for them to file again in the same court at a second location under another judge. If they did they would have to be sucessful or if a second Dismissal was the result it would be "With Prejudice" and that would a final end to it.

I left the courtroom that day feeling good, but not that good as I am still amazed by what lenth and exspense they will go to with no real hope of recovering their actual loss let alone their Claimed Loss plus resonable attorney's fees, 9% per annum on the unpaid balance and court costs.

Now that you all have some background--Cut To The Case.

A few days later I recieved a letter from the Plaintiff's Attorney. The first page was a rather official looking document, "NOTICE OF HEARING". If taken at face value it would lead you to believe there was a offical court hearing date set. On closer inspection there is a disclaimer at the end of the "Please take notice that the Plaintiff's Motion to Set Aside Dismisssal will be called for hearing on May 20th. at 1:00 PM", adding "or as soon thereafter as the same may be heard". At the bottom of the page is a common "Certificate of Service" statement.

My first guestions are: While I find this Notice to be unfairly misleading to the point of near Fraud. Should I respond to it in any way? If so what sort of response?

The next 2 pages are in the standard form of a "Motion". A "Motion To Set Aside dismissal And Reinstate Case".

My questions here are:

1. If the Case was dismissed. I would think it was no longer active. If a case is not active (or in process of resolution) why would a Motion be the correct filing? Aren't Motions used while the case is Active?

2. Should I file a "Defendan't Response To Plaintiff's Motion To Set Aside Dismissal? I have a concern that filing a Response to a inapropriate Motion may in some way re-engage the issue. Should I just write a rather long letter to the Judge explaining my concerns and mail a copy to the Plaintiff's Attorney?

The next part of the Motion after the title is the "Comes Now". At the end of this statement is, "and order the parties to arbitration as requested by Defendant". This really ticks me off, how dare they speak for me! I have never and would never "Request Arbitration" nor would I ever consent to Arbitration. So far Non of these cases have gotten to the point that the Plaintiff has show Proponduance of a Enforceable Contract. Why Arbitrate a Non Issue that so far I have no legal obligation to?

Question: What is the best way to bring this to the Judge's attention and have action taken on it as it is a out and out lie?

The main body of the document consists of several numbered statements amounting to. The Plaintiff's Attorney gave 20 cases to this other guy to handle for that day. He made it to the afternoon docket and handled 15 but did not apppear for the morning docket. There is no clear explaination as to what this new guys purpose was or why it was a special need for him to be in court. No unavoidable circumstances are given as to way he couldn't make the morning docket. It stands to reason that if 20 cases were given to him he was also given the docket schedule for the day. In item #4 they quote Court Rule 74.06 (B)(1)--"authorizes the Court to relieve a party or its legal representative from a final judgement or order due to mistake, inadvertence or excusable neglect".

In the Court Rule concerning Represting Pro Se it is made very clear that the Court will not favor a novice in any way and they will be held to the same standard as a legal professional.

Question: If the tables were turned and I didn't show up. I don't think the Judge would consider what amounts to no more than, "Gee I'm sorry I overslept and the dog eat my homework" as meeting Rule 74.06.

What is the best way to present this?

We're getting near the end now. Thanks for hanging in there with me.

The end of the document has the standard "Wherefore" but at the end throws in "granting Defendant's Motion to Compel Arbitration, and for such further relief as the Court deems just and proper."

I ask What Motion to Compel Arbitration? I don't think a Court would ever Order to Compel Arbitration as I don't think it would be enforceable. Compelling Arbitration would take away my Constitutional Right to Trial by Jury, right? Other than the Motions for Dismissal I did enter a Defendant's Request for Trail by Jury in case the Motions to Dismiss didn't carry. I don't think a Motion to Compel Arbitration is another way of saying Trial by Jury, is it?

Finally: The last page is a neatly prepared Offical Looking document titled, "Order Setting Aside Order For Dismissal". How considerate of them to included a neat document all ready for the Judge's signiture.

So there you have it folks.

Should I just sit tight and wait for the Court to inform me of a hearing date?

Should I whip some paper of my own and get it in place now?

What about the lies, and leading and directing the Court to do the Plaintiff's Attorney's bidding?

I would appreciate any suggestions you may have. Understanding that I Proceed At My Own Risk. Thanks for this Helpful Site that has gotten me thru thus far.

Bob the Custodian

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You need to research the court's pleniary power. In other words, how long does a court retain jurisidiction after dismissal in your state.

Call the court and verify that the hearing is actually set.

It appears the Plaintiffs are trying to get it reinstated on the grounds of excusable neglect. Research excusable neglect.

If they do refile, check the local rules of the court. A number of jurisdictions now require a refiling of a claim to appear before the same division of the court.

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Saint is correct. You should research whether the Court has jurisdiction to entertain the motion at all.

However, from your post it appears that the motion is set to be heard on May 20. You should calculate the last day to file an opposition brief and prepare one. Call the Court the day before the opposition brief is due and ask whether the Court has rejected the motion on its own (sua sponte in lawyer talk). If not, you should file your opposition brief.

Be sure to point out that there was no excuse offered for failure to appear on the morning calendar and you have been prejudiced in that you [took time off from work?] to appear.

Good luck.

P.S. My guess is that these papers were cribbed from another brief and sloppy editing resulted in the arbitration stuff that does not pretain to your case.

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Thanks for the Suggestions;

At the moment I'm not too concerned about them refileing the whole deal in the second court location. I live in a more or less Rural county. The county courthouse is in one town, where they filed the first time, and the judge told me they must file in the same divison in the town I live in with a different judge.

I went into detail as I have read many first posts from others and often the first response is Give us More Info.

As I'm a night custodian in the library of a local university. I have afterhours access to the Goverment Documents section. Gov. Docs. has all the State Rules, Vernan's anotated? and West Law stuff. Learning how to look up stuff is a challange but I'm learning. The posts I've read here have been the most help. First giving me some clue as to what can be done. Then checking Missouri Rules to see if I can use it.

What I found tonight before I came home was Rule 55.26 (d): Motion For More Definite Statemant. It seems that I can craft a document that looks much like Defendant's Response to Plaintiff's Motion to Reinstate. In it I ask for clarification and more difinitive statements in referance to their motion. Here I would bring out Where did the "Defendant's Request for Arbition" come from and etc. Since their motion's #4 is no more than the Rule Quote that includes, "mistake, inadvertence, or excusable neglect. I can ask which one in perticular and in what way it applies. In other words get them to either explain that a unforseen or unavoidable circumstance took place or that they just had poor planning, waited too long before giving the New Guy the 20 cases and due to his lack of organization or whatever he failed to make the Morning Docket.

I was thinking about throwing in the Rule concerning Pro Se, as it makes clear Pro se Defense is held to the same standards as a Legal Professional. The tactic being: It should work both ways. If I couldn't use I forgot then neither should he. If he didn't have a car break down, accident or medical emergency as a legitament reason then he just screwed up. Too Bad!

Under Rule 55.26 (d) if consturcted correctly I can hold the Hearing until I get Clarifacation (within 10 days of notice to them) and be given additional time to prepare and submit my actual Defendant's Response to Plaintiff's Motion to Reinstate.

My overall strategy (other than not get any of the 3 Reinstated) is to drag it out, make them work harder, and get more amuntion ready to go in my "Word Docs. files" should I need it next time around. Needless to say if I can get them to admit there was no excusable reason to miss the Docket as exsperianced professionals then even if the Judge must hear their plea. It won't fly.

Their Very Offical self made Notice of Hearing was dated April 28, I got it Friday May 1,. I thought getting the More Definitve thing ready for all 3 cases. Then going over to the Courthouse Wednesday before work and see just what is going on would be best. If they do have the Motion on file and/or a Hearing date is set. I will enter my Docs. and have the second copy to them Court Stamped and mail it the same day.

By the way I had filed a Defendan't Request for Trial by Jury before the Dismissal hearing they missed. The Judge denigned it to get it out of the way so he could dismiss. In my request I included 2 permissions. One for reporters to be present and the second for cameras in the Courtroom. If I can I will try to get media attention on this. While I want to win this or do as much damage control as possible. It is in the Public's Interest to know what the Little Guy is being put thru even after Billions in Bailout Money.

Thanks for the Help. Any thoughts or Comments Welcome.

Bob the Custodian

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Their Very Offical self made Notice of Hearing was dated April 28, I got it Friday May 1,.

The party setting the hearing usually has to prepare and serve a Notice of Hearing on the other party and file the original with the court. Trial courts usually just sign documents prepared by the parties--proposed orders, etc.

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Thank You All:

Good News here. The mail came a little while ago. I got an envelope from the Clerk's Office. In it was 3 (one for each case) Notices of Entry. Each notice was the same and ended with, "Defendant having then appeared twice. Motion to set aside dismissal without prejudice "DENIED" (My caps).

Only one notice was signed by the clerk and by this time it was a little before their lunch time over there. I called and spoke to the clerk asking if there was any importance to not having the other two signed. The signiture wasn't important.

We then talked about the "Notice of Hearing" document looking so offical. She said several attorneys are starting to send out documents looking like that but they don't count. If a real hearing date was set the Clerks Office would mail out a notice. She had taken note of the increased frequency of the way the attorneys were using a offical looking notice and had talked with the judge about it. Nothing else was meationed but at least the Clerk and Judge know whats going on.

She also said that if the attorney had a problem with their Motion to Set Aside being denied, the judge said they could always appeal it.

She is the Senior Clerk who has been taking care of these files. She said, "You've done a very good job on this" without me looking for a Atta Boy. I don't think it is my wishful thinking but I think the Judge and Clerk are on the Defendant's side even if the court is held to Rules. When not on the Record I get the inpression cases like this overloading their docket ticks them off. Anyone not sure about giving self defense a shot might keep this in mind.

My understanding without factual research is Appeals have to be sent to a court some distance from me. The appeal process may not involve me as it is only concerned with proper court procedure stuff.

So I hope they drop it but as long as I don't have to travel very far let them Appeal. It kills time and delays their refileing if that is what they want to do.

Here is why the time thing is so important to me. Shhhhhhh, a secreat. I'm 61 and plan on taking early social security at 62. In May of 2010 I will get my full (as little as it is State Retirement). Neither Soc. Sec. or State Retirement can be attached. In short even if I lose I win in the sense that they will never break even on the cost of screwing with me.

I will keep you all posted if anything new shows up. I might make a new post about this exsperiance and being in Court. After what I have read and seen first hand at the Courthouse. Basically beaten down people with no resources or knowledge giving up and being lead like lambs to slaughter by appearing and entering into settlements they most likely can't keep for any lenth of time. After all the people are called and the pews are empty. The judge calls the rest of the docket and one after one default judgement for non appearance. Very Sad. I wish more folks would take a shot at standing up.

Thanks Again I couldn't have done this without this site and your help.

Bob the Custodian

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Nice going. I guess an appeal is possible but I doubt it. Remember, if there is an appeal, it will not be about the whole case. It will just be about whether it was in the Court's discretion to grant the motion to dismiss (and deny the motion to set aside). That is a real uphill climb.

Can you request costs as the prevailing party? If so, you should do it ASAP. A cost award, even a small one, can be used as a bargaining chip, perhaps even to get an appeal dismissed.

Again, nicely done.

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Thanks for the Thanks:

I'm not sure if I could recoup for time and actual exspense. I never entered a counterclaim on my Answer to the Petition and didn't request it on my Motions to Dismiss.

Not run this thread into the ground until it is of no interest but while were on the subject.

What exactly in simple terms do I have here? Is a Dismissal Without Prejudice like a Default Judgement? I assume that the Dismissal for non appearence just means the case was thrown out before it ever got to looking into merit. It seems to me that the case was stopped in process and has to started again from the beginning elsewhere but no final decision was made.

No matter the outcome I don't think I would had ever got something like, "Court finds in favor of the Defendant". Now that would be suitable for framing. Guess I watched too much Perry Mason as a kid.

Thanks

Bob the Custodian

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Look in your code of civil procedure under trial or post trial proceedings and "costs of suit". The issue you will need to check is whether you can claim costs after a dismissal w/o prejudice. Also, you need to find out the time limits for claiming them. But to get an award for a filing fee might enable you to enter into an agreement with the plaintiff whereby you forgo the cost award in exchange for a dismissal with prejudice. That would be an excellent result.

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Thanks and It's a good idea.

I will check it out but if Filing Cost is the central issue I don't see how I could as I have never paid a filing cost. Here to Filing cost is 35 bucks and the Sheriff to serve (unless it gets difficult) is 45 bucks. The Plaintiff put that money out.

My biggest cost if allowed would Time, the other costs would be printer paper, ink cartrige, postage and gasoline to drive back and forth to the County Seat.

Wish I could end it for good but will have to wait and see if they File again. If they do I'm aware that they have tested me and seen my tactics. I'm would think they would be more serious and careful next time around. I didn't Shot Gun them with everything I could use the first time so I may be able to surprize them next time around.

Thanks

Bob the Custodian

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Time and ink is probably not compensable. You will have to check. Do you not have to pay a fee to file your answer?

I know some courts ,if you dont have a counterclaim ,there is no fee to file, since the Plaintiff has paid the filing fees,,

But if your claiming counters you pay the same fee ,assumption being your counterclaims should be able to stand as a case on its own merits if the Plaintiffs withdraws thier suit.

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