davephx

WARNING ABOUT GRADUATED DENIAL AFFIDAVIT

Recommended Posts

I am very shocked.

Before even an arbitrator was appointed as it was Certified for and only filed in September I lost a Summary Judgment BECAUSE I used a Sworn Graduated Denial! And only about 2 weeks after I submitted it!

A Clerk Of Court issued a minute entry that granted summary judgment against me, legal fees and costs because "the defendant's "Affidavit of Denial" evidences defendant's bad faith on its face."

"Defendant cannot have his cake and eat it too. He cannot say 'deny the debt alleged is mine' and continue on saying "and if it is my debt, I deny it is still a valid debt.' Further he cannot go on in good faith to allege... etc....

Ends with "Defendant's 'hedged denial" is no denial at all."

Link to post
Share on other sites

I've been concerned about the use of graduated denials for quite some time and so have other posters here. There have been some debates over the very notion of using one.

I think that SWORN DENIALS are a wonderful tool to use, especially in the Southern states where they can still sue based upon ones word under laws of equity.

I am very sorry to hear that you've lost your case. Do you think that the ruling makes sense? AND do you have a strategy for what you will do post judgment? If you plan to appeal, or set up a payment plan, let us know because many of us have gone through glitches like this. But consider this, generally the courts are bound by state interest rate laws so the horrible credit card or personal loan rate that you got with your product is unenforceable. This means that the balance will not grow as fast as it was growing before you got sued. Keep your fingers crossed, you may have some maneuvering room yet;)

Link to post
Share on other sites

I plan to file a motion to reconsider. I just spend two day doing my Discovery requests on them which was wasted.

I had such good other arguments.. upset that only the sworn graduated denial was the issue has it has been recommended on various boards and book writers :(

Link to post
Share on other sites
Guest usctrojanalum

I personally think the graduated denial is a BS defense/denial but I've kept my mouth shut about it because it seemed like it was working for people. I for one am not shocked at all a judge would rule this way.

Link to post
Share on other sites

Yes the interest rate goes down to I forget 6 or 9% I believe from the date the suit is filed.

I just finished a motion for reconsideration. They ignored all the fact arguments and denied only because of my affidavit, which does not seem to follow any rules for Summary Judgments. I also am doing an amended affidavit simply saying deny.

Have another case pending in the same Court and filed the graduated affidavit the same day. Trying to quickly get that amended and hope don't lose that one also.

I also wrote e-mail to one guy whose book so strongly talks about it being such a miracle to stop suits (graduated). And zillions of websites that basically say it "Has to be graduated denial". Even such a post on the expertlaw site.

A clerk signed the minute entry not a real judge which is also a concern. But sadly I think its useless but will try.

Edited by davephx
Link to post
Share on other sites
I personally think the graduated denial is a BS defense/denial but I've kept my mouth shut about it because it seemed like it was working for people. I for one am not shocked at all a judge would rule this way.

I agree. We've talked about it for a long time 'round here. I think at one point, I may have been for it before I was against it.

Link to post
Share on other sites

It always sounded to me like something a politician would say. "I didn't do it, and if I did do it, I didn't do it like you said I did it, and if I did do it like you said I did it, I'll just deny doing it"

Link to post
Share on other sites
It always sounded to me like something a politician would say. "I didn't do it, and if I did do it, I didn't do it like you said I did it, and if I did do it like you said I did it, I'll just deny doing it"

Almost like that famous quote that "It all depends on what the meaning of is, is"

I have used it twice, but have a problem with it.

Once with a DV to a JDB , and the other I do not remember, but not with an answer to a complaint .

I agree that you can not deny, then say it is not valid, then say well the amount is wrong.

But, there are 2 books out there that suggest this strategy strongly.

I think the courts, who I am convinced are all on the side of the creditors, look for anything that allows them to give the creditors what they ask for.

For my 2 cents worth...

I think it should be worded in a single statement to say ... "I deny the amount claimed for is my debt."

Period.

Or possibly.... " I deny the amount claimed for is my debt. If this is the correct amount then I deny this debt is mine."

That way you are not claiming you do not have a debt. And this does not say you are denying this debt, but at the same time states that this exact claim you definitely deny... and with good consciousness because you can in no way figure out how they arrived at the amount they are claiming... (no one can)

What is printed on a statement could be wrong by the way the interest was calculated.

And I seriously doubt, could be wrong, that you will ever get an absolute accounting of how the anmount was arrived at that you should have asked for with your discovery, if you get that far, and also with your initial DV, if you were able to do that.

Link to post
Share on other sites

Ouch!

I have submitted a graduated denial as an answer to our summons, the judge read it and handed it to the attorney for the plaintiff and said "the Defendant has answered the summons."

We are relying on the denial to establish our case. Just another thing to worry about, I guess.

Would it possibly make a difference if the State is a fact pleading state or not?

Before even an arbitrator was appointed as it was Certified for and only filed in September I lost a Summary Judgment BECAUSE I used a Sworn Graduated Denial! And only about 2 weeks after I submitted it!"

Something still doesn't sound right. A MSJ granted in 2 weeks? The time frame in most states to respond to a MSJ is 30 days. Is this just an arb thing?

*

Link to post
Share on other sites

Or possibly.... " I deny the amount claimed for is my debt. If this is the correct amount then I deny this debt is mine."

That way you are not claiming you do not have a debt. And this does not say you are denying this debt, but at the same time states that this exact claim you definitely deny...

You should avoid being too clever. This type of denial is called a "negative pregnant." If you deny owing $100.00 you leave open the possibility you owe a different amount. Such denials may be viewed as evasive; the result being that the denial is deemed ineffective to deny plaintiff's allegations.

It is all part of the law game. When you're playing in the other guy's house you better know the rules. Research your court's local rules and understand pleadings in your jurisdiction. This is all about civil procedure. If you understand CP, then you have a shot at winning.

Link to post
Share on other sites

However, the court may have erred in granting summary judgment. SJ means there are NO material facts at issue. If the OP had other items listed in opposition the court should not grant it outright and set it for trial. The OP if he has (and he should, never depend one one defense) listed other items for the court to hear should file a motion in opposition to SJ and file with the court to leave room for appeal..

Link to post
Share on other sites

If you lose your motions to reconsider you still can maneuver a bit...

As you stated, the interest rate on this debt will be drastically reduced, giving you an opportunity to pay the debt over time. I don't know what your financial situation is, but many counties in various states allow a person to fill out certain forms to exempt their property from seizure to satisfy the debt. In my state, the forms are called exemption to levy, exemption to garnishment and financial statement.

The exemption to garnishment form prevents your paycheck from getting garnished and the exemption to levy form prevents your bank account from getting levied. See what the equivalent forms are in your state.

The financial statement shows the courts your monthly income and expenses and if a large majority of your income goes to living expenses and other debt, it is highly likely that the court will set the payment schedule to favor YOU.

I saw one case where a woman got her checking account garnished over a case like this and after she submitted her paperwork, the judge told the sheriff to release ALL the funds he was holding from her and he admonished the creditors! Remember that creditors make BILLIONS of dollars per year and they routinely sue you and me for negligible amounts and don't give a whit if your life and livelihood is totally ruined! Get your paperwork together and document your income and expenses and if you lose your motions you can do a motion to set payments. Don't worry. This isn't the end of the world!

Edited by rikkivs
Link to post
Share on other sites

was there a judge assigned to your case? was the plaintiff citibank w/seidberg as attorney for plaintiff? I thought that it goes to an arbitrator, as long as it is under $50,000. I don't understand how a clerk can come to this conclusion.

Link to post
Share on other sites
I've argued against icluding the "I elect arbitratraion" ploy in a DV letter for this very reason. IMO, basically you're agreeing that you are a party to the very contract that you're requesting be verified as yours.

Nice attempt to thread jack. ::jacked::

There is a section for arbitration, leave these conversations there.

Link to post
Share on other sites

Oh, geez, I'm sorry. It was not intent to hijack this..

I see the word "arbitration" and "graduated denial" and my eyes glaze over and I automatically think the OP is talking about your idol's theory of putting the "I request validation, and if this is my debt, I request a copy of the contract, and if the contract involves arbitration, I elect arbitration" into the DV letter.

If that was not the OP's subject, I humbly apologize for bringing up the matter.

Link to post
Share on other sites

It really is too bad that these threads can not be interactive with different opinions without someone degrading/insulting one another. There is obviously many different opinions out there on what works and what doesn't What works in one state may not work in others.

I believe this forum to be a valuable tool to learn others trials and tribulations and to hopefully glean a snipit of hope. These forums should be open for discussion even if others do not believe in the poster's thought process. I understand when a discussion turns to the point where it is an outright wrong statement, but many threads get closed or people reprimanded for their thoughts because it isn't the status quo of thinking.

If we always went with the status quo of thinking many on this board and others alike would not be benfiting from standing up to the practices of the OC, JDBs and CAs.

When we view these threads, we all understand that we take this information at our own risk and that the discussions are theories as well as some actual happeings. We should allow for a more open dialogue with consturctive criticism istead of malice. who knows what one of us might be able to unfold if this is allowed to happen. If not, we might as well just bend over and let these "creditors" give to us as always.

Just my thoughts and sorry for highjacking this thread.

Link to post
Share on other sites
Ouch!

Something still doesn't sound right. A MSJ granted in 2 weeks? The time frame in most states to respond to a MSJ is 30 days. Is this just an arb thing?

*

Correction I filed a motion in opposition to the Summary Judgment within the 30 days and it was about 2 weeks after my motion against it that the clerk granted SJ based on my graduated denial. So the 30 days had passed on the original Plainitiff's SJ Motion.

It was done before a Court arbitrator was even appointed which is required for cases less than $50k to go to Court ordered arb - not the JAMs type Arbitration.

If you contest the arbitration result and go to trial and don't come out at least 23% better you have to pay their attorney fees.

Link to post
Share on other sites
However, the court may have erred in granting summary judgment. SJ means there are NO material facts at issue. If the OP had other items listed in opposition the court should not grant it outright and set it for trial. .

That is what I argued in the motion to reconsider. And restated my about 7 other defenses and questions of fact that I had extensively briefed with extensive Points of Law Memorandum with extensive case cites.

It seems with the huge number of credit card, and other debt cases here in AZ the Courts just want to dispose of them as quickly as possible by granting Plaintiffs SJ without it seems consideration of all the fact issues.

All of my cases so far have also been original creditors, no junk buyers where have additional defenses over title.

I did raise huge issues on Plaintiff's affidavit including all the robo signing going on with cc as in mortgages.

In my 2nd case, I even listed as a possible witness the women whistleblower since was the the same credit card company that she exposed.

I even attached her SEC Complaint letter - but that was part of my Discovery in 2nd case.

In both cases I raised all the affidavit issues in my motion to toss out the affidavit that was filed but ignored and SJ ordered in the Citi case.

Edited by davephx
Link to post
Share on other sites
was there a judge assigned to your case? was the plaintiff citibank w/seidberg as attorney for plaintiff? I thought that it goes to an arbitrator, as long as it is under $50,000. I don't understand how a clerk can come to this conclusion.

YES that was the attorney and yes Citibank

Judge was Burke

Clerk was Jeanes

No arbitrator yet assigned but reading the procedures the Court hears motions for SJ. But seems so unfair only reason was because of graduated affidavit that so many books etc say should be done.

They also filed a motion to Compel not liking my Discovery reply's. I replied 3 times the best I could. Plaintiff also filed motion for Summary Judgment based on my non responsive discovery replies.

But before that was acted on the Clerk on his own with no motion from the plaintiff gave plaintiff SJ based only on my graduated denial.

My motion to reconsider will probably just go to the same clerk with no judge even seeing it is my fear.

Edited by davephx
Link to post
Share on other sites

In case of confusion I have two cases pending Chase (Zwicker but not as JDB) and Citi.

Citi is where I lost by the clerk not liking graduated denial.

I filed a new clean denial on both cases immediately and included in motion to reconsider.

Link to post
Share on other sites

Another oddity - In the case with the SJ the Plaintiff attorney has been copying the judge on every motion and discovery instead of just filing with the Court. So I did the same filed with Court and copy to judge and attorney.

Maybe the attorney is just buddies with the judge/clerk so speeds up the process for them one might ponder

Link to post
Share on other sites

I have the same plaintiff attorney for citibank, they were totally pissed at my interrogatory answers & threatened to file sanctions? I have since retained bk attorney, because the majority of my debt is business related. citibank attorney filed for arbitration date to be set, which has been, then they filed for motion to compel,motion for summary judgement and so on, after filing for arbitrator to be assigned.. I don't know, that since the judge has already set up an arbitrator and on or before date, if that superceeds the msj,mtc, or what is in first place. I will drag it out, for a few months, to pull out the bk card, I really don't have all the funds for the bk attorney, & will need to make a few payments before filing.My bk attorney told me not to have any correspondance with the plaintiff attorney. If I do not file bk by the date arbitration is set & I do not show up, will they just get a default judgement? or could there be other consequences?

Edited by ruttie
Link to post
Share on other sites
It was done before a Court arbitrator was even appointed which is required for cases less than $50k to go to Court ordered arb - not the JAMs type Arbitration.

Well here's your grounds for appeal. The court had no jurisdiction because arbitration had been elected. I'm assuming that the clerk, nor anyone else with some sort of authority, denied your right to arbitration.

And, might I add, I don't remember reading anything in any thread to date where any of you said anything about the graduated sorn denial being risky. It's funny how so many posters can come out of the woodwork and say, "Yea, I knew that was going to happen, but I kept my mouth shut. But, now that it's happened, I'm going to tell you it was a a bad idea".

I used to use the sworn denial in my dv letter but have edited it out. I did this not because it was a bad thing but because it was verbose and made my dv letter look as if I was cutting and pasting from the internet which, as we all know, cutting and pasting from other sources makes one look like they are relying upon others and these "others" will not be in court with us.

This is the op's real problem:

Maybe the attorney is just buddies with the judge/clerk so speeds up the process for them one might ponder

We know this is true, don't we? As commoners, some of us never use the court system except when we receive a speeding ticket. Nowadays, a person doesn't even go to court for that. We just go on line and pay.

The clerks, judges, and attorneys have their lunch breaks together. Why would any of them do anything for us against their colleages when, after they bounce us out of their court, they probably won't see us again.

No, don't blame the graduated sworn denial. It's been around a long, long time producing apparently good results because this is the first thread I've read where the graduated sworn denial was cause for dismissal.

Ya all ain't gonna run out the door at the same time if a feller yells, "Fire", are ya?

Link to post
Share on other sites
Well here's your grounds for appeal. The court had no jurisdiction because arbitration had been elected.

There was no election. Again not arbitration like usually discussed here under credit card agreements.

In the AZ District Courts, if the case is less than $50,000 Court ordered arbitration is mandatory not elective and its by Court appointed arbitrators.

But as I read the rules MSJ can still be done by the Court outside of arb.

The problem if appeal is it doesn't stay the collection efforts, liens etc., unless you post a bond for the full judgment amount. If you lose you pay the other sides legal fees.

Link to post
Share on other sites
Guest
This topic is now closed to further replies.