Jump to content

CACH vs LR Knight - I lost :(


Recommended Posts

I have a car note and student loan.  Also my employer was bought out and March 31st is my release date from my job.  So financially speaking going to be rough.  Only thing is can do BK and just target the CC and JDB?  Don't think you can put a student loan in there and need vehicle for transportation. 

 

Ask the question for informational reasons right now. 

 

You can re-affirm the car loan.  No you can't BK the student loans.  You can BK the judgment and the CC.  With your circumstances it can't hurt to discuss your options with a BK attorney.  You are not obligated to pursue it if you don't want to.

Link to comment
Share on other sites

If the plaintiff is challenged and cannot prove standing then the court does NOT HAVE JURISDICTION. This is another one I used to get constantly attacked over and over for saying.  (you can't question the courts jurisdiction, the court determines jurisdiction, you will upset the judge, if you live there they have jurisdiction over you, blah blah blah)

 

 

@Anon Amos

 

If a plaintiff doesn't have standing to sue, you don't have to argue jurisdiction.  You argue that they don't have standing, and they don't have the right to sue you.

 

If the judge believes that the plaintiff has proven standing, you can argue jurisdiction all day, but the judge isn't going to care because he believes that they do have standing.to sue.

 

Also, one must find out how their courts have ruled.  The AR Supreme Court does not equate standing with jurisdiction.

 

A lack of standing does not deprive a circuit court of subject-matter jurisdiction. Chubb Lloyds Ins. Co. v. Miller Cnty. Circuit Court, 2010 Ark. 119, at 6, 361 S.W.3d 809, 812.

  • Like 1
Link to comment
Share on other sites

Again, I don't know your rules, but it might be that you can be deemed "collection proof" and you are insolvent.

 

Also, don't beat yourself up over not filing a MTC. I have seen many people win without doing that. You really SHOULDN'T have to go that route, but there are courts that you cannot prevail in without doing it. An appellate court is not one of them however.

Link to comment
Share on other sites

@LR_Knight

 

 

Also, I filed a sworn denial with court, which should have required them to bring in a witness to authenticate those documents correct?  I was under the impression that sworn denial counter their affidavits and they would have to produce a live witness.

 

 

A counter-affidavit doesn't always negate a supporting affidavit.  It depends upon what is stated and if you have any evidence to support it.   If a counter-affidavit is all that's ever needed, MSJs would never be granted because the defendant would always deny.  That's why courts have ruled that an opposing affidavit has to do more than just rely on denials.

 

Also, you usually don't have a live witness at a summary judgment hearing.  That's reserved for trial.

Link to comment
Share on other sites

@Anon Amos

 

If a plaintiff doesn't have standing to sue, you don't have to argue jurisdiction.  You argue that they don't have standing, and they don't have the right to sue you.

I never said you HAD to argue it. I know you argue standing and they don't have a right to sue you.

If the judge believes that the plaintiff has proven standing, you can argue jurisdiction all day, but the judge isn't going to care because he believes that they do have standing.to sue.

I understand that as well. When I argue a case I am arguing for the APELLATE court and preserving the record for them, just in case.

Also, one must find out how their courts have ruled.  The AR Supreme Court does not equate standing with jurisdiction.

True (find out how your court has ruled). This is unfortunate for AR, but I doubt that many other states (if any) agree.  As you said, you can argue that they don't have standing to legally sue you, I never suggested people don't argue that.

A lack of standing does not deprive a circuit court of subject-matter jurisdiction. Chubb Lloyds Ins. Co. v. Miller Cnty. Circuit Court, 2010 Ark. 119, at 6, 361 S.W.3d 809, 812.

 

Link to comment
Share on other sites

I thought this was a trail. Did I miss something?

 

As far as I know it was a trial.  The letter from the judge's clerk said was a "bench trial".  I am emailing the reporter now to see what I need to do to obtain transcript.  Was going to wait until tomorrow, give it a day to settle but now I am starting to question what happened again.  @BV80 is second person to mention if this was a summary judgement hearing so now I am worried again. 

 

Can judge change it from trial to hearing like that?

Link to comment
Share on other sites

As far as I know it was a trial.  The letter from the judge's clerk said was a "bench trial".

I was always under the impression it was a trial. Although it didn't seem any evidence was weighed. You just kind of showed up to receive the judges ruling. If the letter said bench trial then it was. 

  I am emailing the reporter now to see what I need to do to obtain transcript

That's sounds like a good direction to take.

.  Was going to wait until tomorrow, give it a day to settle

You do deserve a break. I am glad that you are in good spirits still. It is very rough on a person. I am starting to find that you have some tough laws there. I will not call it a "good ole' boys court" because that does not go over well here.

but now I am starting to question what happened again.  @BV80 is second person to mention if this was a summary judgement hearing so now I am worried again. 

90% of the time when we are discussing TRIALS someone will bring up MSJ rules and how they pertain to affidavits etc. I don't know why, but I can sure see how it may add to the confusion, as they are two entirely different things.

Can judge change it from trial to hearing like that?

I wouldn't think so, but I don't know your courts or rules. I should probably limit myself to California post, but the strategy never changes.

Link to comment
Share on other sites

@BV80

 

They did not file a MSJ.  They filed a motion to have business records admitted into evidence, to which I filed an opposition motion.

He granted their motion then denied mine.  I then objected, which he overruled.  I then said to preserve my objection.  He then said did I have any testimony to give, I said I did, so he swore me in and told me to go to podium.  All this had me rattled, so that is when I brought up the bill of sale and their response during discovery.  He said did not see a MTC thus I waived my right to object.  I objected again, which he again overruled.  I asked again to preserve to record.  He then started going through asking questions about CC statements, address which I said was my address but had no familiarity with those statements or charges.  He then asked me about transactions on them.  I then said they were admitted and again I objected / requested preservation.  That is when he made quip about how many times am I going to ask to preserve objections.

 

The clerk site even says on docket a trial was held,  So I am lost now what happened.

Link to comment
Share on other sites

@LR_Knight

 

I thought it was a summary judgment hearing.   Had their MSJ already been heard and denied?

I am not bashing on you, and we have made long strides in getting along, but this has happened many times.

 

MSJ affidavits and TRIAL affidavits treated the same way, under the MSJ rules, regardless of what state you are in; will have devastating results for the defendant.

Link to comment
Share on other sites

@LR_Knight

 

I think you need to speak to an attorney.  When you received notice of this motion hearing, did it say anything about a bench trial? 

 

I don't know if a judge can turn such a hearing into a final disposition (such as a summary judgment hearing) or not.   I don't see how he can, but an attorney would know.

 

Before you spend the time and effort to appeal, you need some questions answered.

 

If it were me, I'd contact NACA, and ask for a consumer attorney in my area.  Some will give free consultations.  Even if the consultation costs, it might be worth it to get some answers.

 

http://www.naca.net

Link to comment
Share on other sites

 He then started going through asking questions about CC statements, address which I said was my address but had no familiarity with those statements or charges.  He then asked me about transactions on them.  I then said they were admitted and again I objected / requested preservation.  That is when he made quip about how many times am I going to ask to preserve objections.

 

 

You were basically screwed at this point. If the judge is going to rule based on if the card was yours or not, then he/she is going to ignore a standing argument. Which is a bunch of crap, but I've seen it happen more than once.

  • Like 1
Link to comment
Share on other sites

@BV80

 

 

 

The clerk site even says on docket a trial was held,  So I am lost now what happened.

You had a trial, you did not receive due process, and for that reason we have appellate courts.

 

Many people go to trial and fend off, and object to evidence, even when they did not conduct any discovery. You cannot waive your right to object to evidence just because you did not make the court force them to present a case.

  • Like 1
Link to comment
Share on other sites

@Anon Amos

 

Many people go to trial and fend off, and object to evidence, even when they did not conduct any discovery.

 

 

I don't understand what you're saying in the above.  Yes one can object to evidence provided by the other party.  What does that have to do with not requesting discovery?

 

What am I missing?

Link to comment
Share on other sites

@Anon Amos

 

 

I don't understand what you're saying in the above.  Yes one can object to evidence provided by the other party.  What does that have to do with not requesting discovery?

 

What am I missing?

My point was: the judge placed a huge amount of weight on the fact that LR Knight did not motion the court to compel the discovery, which would have given him something to attack. The judge said he waived his right to object because he did not MTC.

Many people however, do not even do any discovery at all, let alone fail to MTC. The plaintiff having the burden proof provides all the available evidence to prove up it's case. The defendant has a right to see it, and to defend against it, regardless of whether or not they went through the trouble to motion a court to compel the plaintiff's evidence. The plaintiff should have produced the evidence for the court to weigh in the first place.

Discovery should just provide the evidence to the defendant SOONER than at trial (allowing him due process to prepare), if the defendant Is willing and capable of going thru the process. If they are not, it does not waive any right to attack it, and it does not allow the plaintiff to get away with not producing it at trial just because a defendant did not request it in discovery (which the OP did request it) it most certainly does not give them a way out because the defendant did not MTC. Unless the appellate court agrees with this decision.

  • Like 1
Link to comment
Share on other sites

@Anon Amos

 

My point was: the judge placed a huge amount of weight on the fact that LR Knight did not motion the court to compel the discovery, which would have given him something to attack. The judge said he waived his right to object because he did not MTC.

 

 

I've already provided AR case law that shows what happens if you don't MTC.

 

 

Many people however, do not even do any discovery at all, let alone fail to MTC. The plaintiff having the burden proof provides all the available evidence to prove up it's case. The defendant has a right to see it, and to defend against it, regardless of whether or not they went through the trouble to motion a court to compel the plaintiff's evidence. The plaintiff should have produced the evidence for the court to weigh in the first place.

 

 

I know that you know that requesting production and compelling production are not the same.  I was responding to your statement about not requesting production.

 

 

 

Discovery should just provide the evidence to the defendant SOONER than at trial, if the defendant Is willing and capable of going thru the process

 

 

If a party requests discovery, the documents have to provided before trial.  The party providing the documents has to give the party requesting them time to view them and form a defense.

 

That being said, if the party refuses to provide them at all, the other party has to do what is necessary to get those documents.   That's what the motion to compel is for.   Read the AR case law.

 

 

If they are not, it does not waive any right to attack it, and it does not allow the plaintiff to get away with not producing it at trial just because a defendant did not request it in discovery (which the OP did request it) it most certainly does not give them a way out because the defendant did not MTC. Unless the appellate court agrees with this decision.

 

 

If a party (whether the plaintiff or defendant) doesn't follow or take advantage of court rules, they can waive certain rights.  

 

Discovery rules are there for a purpose.  It's for BOTH parties to provide evidence to prove or disprove.   If you don't request certain documents, you can point out that those documents were provided but you can't be surprised if the court asks if you took further steps to get the docs.

 

Again, here's the AR Supreme Court's ruling:

 

 We see no abuse of discretion. See Looney v. Raby, 100 Ark. App. 326, ___ S.W.3d ___ (2007). Appellant argues that he was "waiting for the outcome on his motions for compelling discovery." However, the court stated that the docket contained no motion to compel, and appellant could not show that he had filed one. Nor did appellant demonstrate how additional discovery would have altered the outcome of the case. See O'Neal v. O'Neal, 55 Ark. App. 57, 929 S.W.2d 725 (1996).


In order for the appellate court to reverse the trial court's denial of a continuance for further discovery before summary judgment, the appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case Crawford v. Lee County School Dist., 64 Ark. App. 90, 983 S.W.2d 141 (1998).

 

You have to look at it from both sides.  If they request your bank records and you refuse to provide them, they have to file a motion to compel.  If they don't, they can't complain that you didn't provide them.  It was up to them to follow the rules to get those bank records.

Link to comment
Share on other sites

@Anon Amos

 

 

I've already provided AR case law that shows what happens if you don't MTC.

OK then all hopes of appeal are now over. Sorry LR Knight.

 

I don't agree  that case law supports your argument 100%. I think you are hyper critical of my post, and you just learned that this was actually a trial rather than an MSJ. The case law would have to be studied, disected and compared to this case etc.  I really can't study AR law or argue with you constantly, I guess I am going to have to post only to Cali specific cases, however I have helped many people in other states win, despite the constant objection to my opinions from a select few. 

 

Under your argument: Are you going to say that no defendant can win a case in AR unless they file an MTC?

 

I know that you know that requesting production and compelling production are not the same.  I was responding to your statement about not requesting production.

 

I am a little lost on your point here and I think vice versa. So in AR you cannot win a case without discovery and an MTC? That means in AR the burden of proof is on the defendant.

 

 

If a party requests discovery, the documents have to provided before trial. 

 

They may not have the documents or form an objection to the request, so that I snot always the case.

 

That being said, if the party refuses to provide them at all, the other party has to do what is necessary to get those documents.   That's what the motion to compel is for.   Read the AR case law.

 

I know what an MTC is. And I know that GoogleScholar is limited to the amount of case law that can be found, and it ,does not go back very far on a lot of subjects. If it were mine, and I depended on case law; I would go to the law library and not just hold that your findings and what you take them to mean are what will determine my fate.

 

If a party (whether the plaintiff or defendant) doesn't follow or take advantage of court rules, they can waive certain rights.  

AR rules said "MAY" motion to compel. He did send discovery, and the plaintiff has the burden of proof. Sometimes the lower level courts waive the right for you, and the appellate court returns them to you.

Discovery rules are there for a purpose.  It's for BOTH parties to provide evidence to prove or disprove.   If you don't request certain documents, you can point out that those documents were provided but you can't be surprised if the court asks if you took further steps to get the docs.

;I was not surprised the court asked if further steps were taken. It is a bit surprising that the judge would say you waived your right to objection since you did not MTC 

Again, here's the AR Supreme Court's ruling:

 

 We see no abuse of discretion. See Looney v. Raby, 100 Ark. App. 326, ___ S.W.3d ___ (2007). Appellant argues that he was "waiting for the outcome on his motions for compelling discovery." However, the court stated that the docket contained no motion to compel, and appellant could not show that he had filed one. Nor did appellant demonstrate how additional discovery would have altered the outcome of the case. See O'Neal v. O'Neal, 55 Ark. App. 57, 929 S.W.2d 725 (1996).

 

You have to read and study those cases not just peek at a holding. Which I did not do. However part of the defendants argument was that he "was waiting for  the outcome of an MTC"  But a MTC was never actually filed. He also did nothing to show how the discovery could have altered the case.

In order for the appellate court to reverse the trial court's denial of a continuance for further discovery before summary judgment, the appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case Crawford v. Lee County School Dist., 64 Ark. App. 90, 983 S.W.2d 141 (1998).

This said "denial of continuance for FURTHER discovery" and BEFORE summary judgment. LR Knight was requesting discovery NOT seeking ADDITIONAL discovery.

You have to look at it from both sides.  If they request your bank records and you refuse to provide them, they have to file a motion to compel.  If they don't, they can't complain that you didn't provide them.  It was up to them to follow the rules to get those bank records.

 

However in this case the defendant is requesting the basic elements of the plaintiff's burden of proof. The same thing the judge should have requested. It was just the basic evidence needed for debt / contract law. It was not further supporting evidence such as a "forward flow agreement" or "bank records"

 

From the limited information I have seen from this case, including your case law for supporting the plaintiff's claim, If it were mine; I would appeal it. Not to mention the fact that the case was lost to a very small amount of hearsay evidence and no witness to cross examine.

 

That's my opinion, you don't have to agree with it, and you are welcome to do all the research you want to discredit it. I think if it were my case, and I had access the AR law library, that I would be able to find case law that supports my opinion. I think you could find some case law that supports It too, and helps the defendant, IF you spent a fraction of the time you spend trying to discredit my post and applied that time to looking for ways to support it.

Link to comment
Share on other sites

@Anon Amos

 

I don't know that this was a trial.  The OP said that it was a motion hearing.  I don't know that a judge can turn a motion hearing into a trial.

 

I'm not going to argue.  I never said that a defendant HAS to request discovery.  My response to you was based upon your statement that one doesn't have to request discovery.  That's an open-ended statement and doesn't contain any explanation.  

If a plaintiff files a case and includes nothing and never provides evidence, the defendant definitely has a defense and plenty of objections.  That didn't happen in the OP's case.

In regard to a motion to compel, what about JDBs that request your bank records?  Do you really want courts to rule that a JDB shouldn't have to motion to compel bank records but you should have provided them anyway?

Read up on a "prima facie" complaint.  Some states require evidence to be attached to a complaint while some states don't.

I agree about going to the law library.  However, Google Scholar posts very recent cases.  

The case law I provided was from the AR Supreme Court.  For it not to apply to a lower court, that court would have to change its own ruling.

At least I provide some case law which gives posters something to go by.

  • Like 1
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...