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Zinnia

Defended against LVNV & won.. Now they're appealing

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I was sued by LVNV for $3,000+  in the Pennsylvania magisterial court. I defended myself and won (thanks to the help of the forum). 

Today I received a letter from the lawyers with a 'Notice of Appeal'. It wasn't registered or anything, I almost just threw it away before opening it.

Rereading it, I still don't understand what exactly I'm supposed to do. If anyone can help me out I would really appreciate it. 

It is also worth noting that they were given "30 days from the entry of judgement to file an appeal". The judgement was xx/xx and they filed xx/xx, 2 days late.

 

Edited by LookingforInfo2018
Removing personal info

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That's just letting you know they filled a notice of appeal. The appellate court still has to accept it. 

As far as the 30-day timing is concerned, when was the judgment entered by the clerk? It's almost never the same day as when the court issues the judgment order, and the appeal rules are usually based on entry of the judgment, and not the date of the order. Spend some time getting familiar with your appellate court rules of procedure. If they really did miss the 30-day notice window, you can probably file an objection with the appellate court as soon as you get a notice that the appellate court has received the case documents. 

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So for now, I just wait? Are they ever denied their appeal? What happens after this?

I can't find any examples of the jdb doing this, every one I've found here is the defendant filing an appeal not vice versa... 

The docket states Judgement for Defendant three days after my court date. Does that mean it still wasn't technically entered? Do you have to call the courthouse to find the exact date?

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27 minutes ago, LookingforInfo2018 said:

So for now, I just wait?

Most likely. See what your appellate rules of procedure have to say. 

27 minutes ago, LookingforInfo2018 said:

Are they ever denied their appeal?

I'm not sure what you mean. If they don't follow proper procedure, the appellate court can reject their appeal. As long as they follow proper procedure, they have a right to an appeal, the same as you would have. 

27 minutes ago, LookingforInfo2018 said:

What happens after this?

Here's how it usually works.  They have to pay whatever appeal fees and post whatever applicable bonds. After that, the lower court will notify the appellate court of the appeal, and the appellate court will make a request that the lower court transmit the entire lower court record to the appellate court. At that point, the appellate court will send out a notice to the parties that the apellant's (plaintiff, in your case) opening brief is due. Once the appellant files their opening brief, the appellate court will send out a notice that the appellee's (you, in your case) reply beief is due. That is your only opportunity to respond to any/all issues raised by the appellant on appeal. Unless there is some really good reason that is almost never present in a debt collection appeal, the court will rule on the appeal without a hearing. Again, you need to know your appellate rules procedure because the timing of these things matters, and you may also have specific rights, like the right to request an appeal hearing. 

27 minutes ago, LookingforInfo2018 said:

I can't find any examples of the jdb doing this, every one I've found here is the defendant filing an appeal not vice versa... 

Yeah, it's not common for them to spend the extra money on an appeal, so they must be pretty certain they have a winning case. It could also be that your rules require you to pay a fee and they are hoping you don't want to spend the money to file a reply brief so they win by default. 

27 minutes ago, LookingforInfo2018 said:

The docket states Judgement for Defendant three days after my court date. Does that mean it still wasn't technically entered? Do you have to call the courthouse to find the exact date?

There's a lot of nuance in appeals, and a reason appeals are a specialized area of law in which practicing lawyers usually charge a premium. I can't stress it enough that you need to get really familiar with your appellate rules. The question you're asking here about timing could be as simple as it seems, or it could be complicated by things like weekends and holidays don't count, so they actually get 40 calendar days. Or it could be that the website isn't showing the entry date of the judgment, which occurred a week after it seems to show on the website. The first thing you need to do is find out exactly what the "30 days" requirement entails per the rules, and then find out if their actions conform to that requirement.

You're operating at a completely different level now. It's not beyond your ability to see this through, but it's a much more formal arena where you will be expected to follow all of the rules, and 'harmless' procedural mistakes aren't usually overlooked the same way that they are in the lower civil courts.

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Thank you for the thorough reply, Harry. I missed the clerk Friday, so now I'm waiting for Monday.. I'm reviewing as much information as I can about how this works, it's just very confusing as it's always from the other side. I looked through 150+ cases and only found one other person this year that they went after like this. It's really ridiculous that they're jumping through hoops like this, they had no case and lost. What is the point, they have literally hundreds of default judgement cases in this county alone!

 

.. I also received a bankruptcy lawyer letter today, and not that those are always 100% accurate, it referenced an 'AR' docket number. Can they file for arbitration before an appeal? 

 

Do you know if Capital One had an AAA/JAMS arbitration clause in 2007-08? I know they dropped it somewhere around this time but I can't find the exact date.

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On 10/17/2019 at 4:57 PM, LookingforInfo2018 said:

It is also worth noting that they were given "30 days from the entry of judgement to file an appeal". The judgement was xx/xx and they filed xx/xx, 2 days late.

If the 30th day falls on a Saturday, Sunday or holiday they have until the next day that the common pleas court is open to file the notice of appeal.  This might apply here, and if so, it appears that they filed the notice on the last possible day.

Best as I can tell, based on ch. 1000 of The Pennsylvania Code, it appears that appeals from magistrate district court to the common pleas court are de novo.

Quote

Rule 1007. Procedure on Appeal.
A. The proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas.

If this is correct, they will serve you a new complaint within 20 days of the date they mailed you the notice of appeal, and then the entire case starts anew.

If they are late in filing/serving the complaint, the burden is on you to pursue a rule 1006 procedure to strike the appeal.  If they are late with the complaint, but you have not pursued rule 1006, the late complaint will be accepted.

The complaint will probably look more or less the same as the one filed in magistrate district court.

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On 10/20/2019 at 3:50 AM, Pericles said:

If the 30th day falls on a Saturday, Sunday or holiday they have until the next day that the common pleas court is open to file the notice of appeal.  This might apply here, and if so, it appears that they filed the notice on the last possible day.

Best as I can tell, based on ch. 1000 of The Pennsylvania Code, it appears that appeals from magistrate district court to the common pleas court are de novo.

If this is correct, they will serve you a new complaint within 20 days of the date they mailed you the notice of appeal, and then the entire case starts anew.

If they are late in filing/serving the complaint, the burden is on you to pursue a rule 1006 procedure to strike the appeal.  If they are late with the complaint, but you have not pursued rule 1006, the late complaint will be accepted.

The complaint will probably look more or less the same as the one filed in magistrate district court.

Thank you very much!

I spoke with the magistrate today, and you are correct.. Thanks to the holiday, they filed on the final day.

I spoke to the county clerk as well. They aren't exactly helpful, but made it seem like I'd have a chance to reply to the appeal. When I told them the notice had an arbitration docket number already, she responded "Well that's what happens when you appeal" ... ?

 

One thing I noticed looking through all of the dockets again, the ten or so cases they appealed were ones won by pro se defendants.

 

How is it at all reasonable that they get a new case just for appealing?? I am really not happy with the idea of a sheriff coming to serve me papers, especially after already beating them in another court. And not even knowing if that's going to happen, because you can't get straight answers out of any of the 10 clerks they make you talk to!

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16 hours ago, LookingforInfo2018 said:

How is it at all reasonable that they get a new case just for appealing??

Because your state law allows for it.  

 

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18 hours ago, LookingforInfo2018 said:

How is it at all reasonable that they get a new case just for appealing??

Because you would also get a new case if you had appealed. 

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On 10/19/2019 at 2:53 PM, LookingforInfo2018 said:

It's really ridiculous that they're jumping through hoops like this, they had no case and lost.

Forgive me if I missed the detail, but what happened in the original case? I know we've seen one or two cases, lately, where judges have made horrible rulings, so maybe this is one of those and they are trying to nip the problem in the bud. Usually it's stuff like judges misunderstanding the rules of evidence and requiring a live witness when the self-authenticating business records suffice.

 

 

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21 hours ago, LookingforInfo2018 said:

... but made it seem like I'd have a chance to reply to the appeal.

Once they serve the new complaint, you can file an answer with the court within 20 days.

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1 hour ago, Goody_Ouchless said:

... judges misunderstanding the rules of evidence and requiring a live witness when the self-authenticating business records suffice.

What do you mean exactly?  Even in arizona, if a case makes it to trial, the debt buyer attorney can't introduce evidence by herself.  They need to have at least their custodian appear, even if by telephone, in order to introduce the evidence.

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So your contention is that an affidavit that is sufficient for Summary Judgement loses it's validity at trial? That must be something quite new.

 

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3 hours ago, Goody_Ouchless said:

So your contention is that an affidavit that is sufficient for Summary Judgement loses it's validity at trial? That must be something quite new.

Never mind.  I don't want to muck up OP's thread.  I concede the point.  If you really want to pursue the discussion further, do so in this thread.

Select quote from the last post to that thread; "a trial court would still be acting within its discretion if it required additional foundation."

So, when you say "judges have made horrible rulings ... Usually it's stuff like judges misunderstanding the rules of evidence", it is important to note that the admission of evidence is, to a very large extent, within the sound discretion of the trial court.

And if a plaintiff's summary motion was denied and the case made it to trial, it is unlikely that the trial court would be persuaded if the plaintiff presented the very same "documents only" case that failed in the summary judgment motion.  Perhaps you're aware of a lot of "no telephone witness" debt buyer trials in arizona where the plaintiff prevailed, either old or "quite new".

Edit: A note to OP: none of this post matters for your appeal.  Since the appeal is de novo, the trial court's discretion is irrelevant.  I'm sorry if this post is the cause of any confusion.  Please disregard this post in its entirety, and I will not post again.

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6 hours ago, Goody_Ouchless said:

Forgive me if I missed the detail, but what happened in the original case? I know we've seen one or two cases, lately, where judges have made horrible rulings, so maybe this is one of those and they are trying to nip the problem in the bud. Usually it's stuff like judges misunderstanding the rules of evidence and requiring a live witness when the self-authenticating business records suffice.

 

 

There was a judgment in my favor. The lawyer gave them a paper with my name and an account number, the rest was blacked out. They only let me look at briefly, so I don't even know what exactly it was. I asked for statements, contracts, etc. They didn't have any of the things I asked for. The judge didn't dismiss anything either of us presented. And that was that, the judgment was in my favor. Which is why I am upset about all of this. You might as well not even show up, if you win they appeal and get a new case no question asked anyway. I feel like they're only doing this to people without lawyers because the Common Pleas courts are such hassles people won't even bother fighting. 

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4 hours ago, Pericles said:

Edit: A note to OP: none of this post matters for your appeal.  Since the appeal is de novo, the trial court's discretion is irrelevant.  I'm sorry if this post is the cause of any confusion.  Please disregard this post in its entirety, and I will not post again.

Sorry I don't know how to quote multiple people in the same post.. But not an issue at all! I appreciate any kind of feedback!

I guess I assumed that appeals worked with these cases like they do in criminal court.. You don't get a new trial unless your appeal is granted. Which, I still don't understand. Why even bother with the magistrate then.

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10 minutes ago, LookingforInfo2018 said:

The judge didn't dismiss anything either of us presented. And that was that, the judgment was in my favor.

I'm guessing this is why they are appealing.  It doesn't make sense that the court would admit their evidence and then rule against them without being given the opportunity to explain what is being admitted, and then no explanation from the court about why it ruled in your favor.

Flip the script.  If the court accepted everything you presented in your defense and then with no explanation said "judgment for Plaintiff.  Bye", would you not want to appeal that kind of experience?  I know I would.

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3 minutes ago, Harry Seaward said:
 

I'm guessing this is why they are appealing.  It doesn't make sense that the court would admit their evidence and then rule against them with opportunity to explain what is being admitted, and no explanation from the court about why it ruled in your favor.

Flip the script.  If the court accepted everything you presented in your defense and then with no explanation said "judgment for Plaintiff.  Bye", would you not want to appeal that kind of experience?  I know I would.

Wouldn't the fact that they didn't have anything proving it was mine be proof enough? We went back and forth for some time arguing our points. There really wasn't anything left to discuss!

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1 minute ago, LookingforInfo2018 said:

Wouldn't the fact that they didn't have anything proving it was mine be proof enough?

You said they presented something with your name and account number.  If that was a bill of sale with an affidavit, that could be sufficient to prove it was yours, especially if you didn't object to the admission of the record.

I'm guessing there was more to it than that, however, because I can't imagine they would bother appealing such a flimsy case when you'll have the opportunity to put on a legit defense at a trial de novo.

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3 minutes ago, Harry Seaward said:

You said they presented something with your name and account number.  If that was a bill of sale with an affidavit, that could be sufficient to prove it was yours, especially if you didn't object to the admission of the record.

I'm guessing there was more to it than that, however, because I can't imagine they would bother appealing such a flimsy case when you'll have the opportunity to put on a legit defense at a trial de novo.

Everyone has said that the magistrate is much more lax about everything, I didn't think objecting was even an option. The whole thing was like a whirlwind and they put hardly any effort in. That's all they presented, and one statement.

Like I said, they didn't really give me a chance to look at what they presented. If it was an bill of sale with an affidavit, on what grounds can you object to it? I know I've seen about needing an live witness there to confirm, is this what that's referring to?

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I don't know how the court system works in PA.  Maybe they paid next to nothing on the lower court proceedings and just went through the bare minimum motions there hoping it would win, with the plan if they lost being to appeal to the higher court where they would bring their "A" game.  Maybe they didn't bother with a pile of statement and a live witness because they knew the judge the case was in front of was pro-consumer and would never let them win, not matter what evidence they brought.  There's a hundred possibilities, but none of them really matter.  It is what it is at this point.  Burning calories being mad that they get a new trial and trying to understand why they want to appeal is a complete waste of energy.  Focus instead on what comes next.

Incidentally, is there a reason you didn't pursue arbitration with this case?  If it's because the OC has a small claims exemption in the card agreement, the good news is that you're no longer in a small claims court.

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40 minutes ago, Harry Seaward said:

I don't know how the court system works in PA.  Maybe they paid next to nothing on the lower court proceedings and just went through the bare minimum motions there hoping it would win, with the plan if they lost being to appeal to the higher court where they would bring their "A" game.  Maybe they didn't bother with a pile of statement and a live witness because they knew the judge the case was in front of was pro-consumer and would never let them win, not matter what evidence they brought.  There's a hundred possibilities, but none of them really matter.  It is what it is at this point.  Burning calories being mad that they get a new trial and trying to understand why they want to appeal is a complete waste of energy.  Focus instead on what comes next.

Incidentally, is there a reason you didn't pursue arbitration with this case?  If it's because the OC has a small claims exemption in the card agreement, the good news is that you're no longer in a small claims court.

Yeah, I agree. They only seem to pursue people without lawyers, they never seem to appeal wins from defense attorneys. I think this is just another attempt at a default judgment, honestly.

In PA, you can't file for arbitration in small claims. Hopefully it's in the contract. For now, I guess it's just a waiting game.

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4 hours ago, Zinnia said:

In PA, you can't file for arbitration in small claims.

The Federal Arbitration Act is law.  If the contract allows for arbitration, and you have not waived the right to arbitrate, a court cannot deny you that right.

What PA law says you cannot file for arbitration in small claims?

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13 hours ago, Harry Seaward said:

Maybe they paid next to nothing on the lower court proceedings and just went through the bare minimum motions there hoping it would win, with the plan if they lost being to appeal to the higher court where they would bring their "A" game. 

This sounds logical. Perhaps, in an effort to streamline proceedings and save money, the first phase of these proceedings are handled like parking tickets, with more complicate cases "appealing" to Stage Two. Kind of like reaching a Level One support representative - I believe, out here, calling Motor Vehicles leads, initially, to someone in a prison call center, who's only task is to route the call.

 

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