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Legal Fraud#2: (The Anatomy of a Junk Debt Law Suit)
Debt Collector-Legal Fraud: (The Anatomy of a Junk Debt Law Suit)
ARTICLE 2: The Complaint, (The First and Biggest Lie)
This is the second in a series of articles exposing the legal fraud that is committed by the junk debt collection industry. I don’t know how any court could allow this fraud to go on, but certain courts do and I hope you’re as outraged as I am. Today I am going to go over the complaint. I call this the first and biggest lie because the majority of the complaints filed by the junk debt collectors are blatantly false. But for the naiveté of the person being sued, the evidence, or more accurately the lack of evidence, is glaringly obvious in the papers attached to the summons.
The first document you read after the summons is the complaint. This is the most important document in the pleadings because it sets the stage for the entire case. The debt collector’s attorney has to carefully word this complaint because it locks them into the pleadings. What I mean by this is that the plaintiff cannot alter the original pleadings without good reason or permission from the court, over the objection of the defendant. If the plaintiff does try to enter evidence outside of the original pleadings you must object. The reasons you object are twofold, one the court may sustain your objection, and two if the court overrules your objection you preserve your right to appeal.
Read the complaint carefully and compare the documents that are attached to the complaint with those listed in the complaint. I have read literally hundreds of complaints and they all say about the same thing. What follows is a standard complaint filed by virtually every debt collector. I’m going to show a copy of an actual complaint that was filed here in Maryland. Bear in mind the judge’s proverb, that the Court must confine it’s ruling to the four corners of the pages placed before them. In this spirit let’s look at the upper right hand corner of the page. 
The complaint form has a little check box marked CONTRACT. I assume this means that this is a contract dispute. Call me simple but it seems to me that if there is a dispute over a contract then first and foremost one would need to see a copy of the contract being disputed. It just makes sense! Yet tens of thousands of lawsuits are filed each year without a copy of the original contract. Now let’s look at the complaint.
The first statement set forth in the complaint is supposed to express to the court and the defendant why the plaintiff has the right, according to law, to sue the defendant. At face value this statement seems to do just that. However, when you look closely at the supporting documents you will see there is no admissible evidence to support the claim.
The plaintiff’s first claim is that they are an assignee of the original creditor, which is an outright lie. In this particular case Maryland Receivables is an assignee of another third party junk debt company, CACH LLC, not an assignee of the original creditor. Nowhere in the file will you find any evidence that CACH LLC obtained the collection rights from the original creditor. The fact is that when the original creditor sold the debt information to the first junk debt buyer, they sold all rights to collect this debt. Therefore, the original creditor could not assign these collection rights to the plaintiff. When I get into the individual documents in detail I will show this fraud for what it is.
The next big lie set forth in the complaint is that the “Defendant owes the balance set forth herein pursuant to the affidavit and attachments set forth herein”. This is legal gobble-de-gook. Then they have the audacity to state that the agreement provided for attorney fees. What agreement? If there isn’t a copy of the contract then there is no agreement. This case was brought forth in bad faith, as are more than 90 % of the junk debt lawsuits in our country. If the court were truly meting out justice they would sanction the plaintiff for abuse of process.
I hate to leave you hanging here, but if I tried to get into the individual documents this would be a very long article. In due time I will expose the entire fraud but for now I will leave it here. I will however tell you this. The junk debt industry has a standard set of documents that they attach to virtually every complaint. All of these documents are manufactured by the junk debt collector in order to deceive the defendant and or to obtain an unlawful judgment in any court that will turn a blind eye. One such court is the court of Judge James L. Mann Jr. in Baltimore city district court, who I have discussed in previous articles.
In this series I will attack each document individually and for the most part in order. As this series unfolds you will see why 90% of all junk debt law suits could and should be thrown out. In order to pique your interest and bait you into reading the rest of this series of articles, I will set the hook by telling you that the above mentioned complaint and all the evidence proffered with it were soundly defeated. This lawsuit was defeated because it was wrought with fraudulent documents. Now, to shamelessly pitch my product, I will also tell you that the defendant used my easy forms, BTDCezFORMS©, to successfully challenge every piece of evidence that the plaintiff tried to enter. The defendant not only won this case, but he used them to defeat another similar case. If you are interested in purchasing these forms for your own personal use, or because you would like to have a copy on hand, you will find them reasonably priced at this site, http://beatthedebtcollector.com/ .
As always I thank you for reading my blog. I hope it has been a fun for you as it has for me and I hope to see you for the next post. In the next article I will be addressing one the individual documents, created and used by the junk debt industry, to commit the biggest fraud ever perpetrated on the American people and our court system. The document, Affidavit in support of the complaint. See you then.
KevinZurrin
LEGAL FRAUD: (THE ANATOMY OF A JUNK DEBT LAW SUIT)
ARTICLE 1 Nip it in the bud (Before the suit is filed)
Legal fraud is committed every day and on millions of people annually. Virtually every case that Junk debt collection company’s, (JDCC), file in the Courts are filled with fraudulent documents. This is the first in a series that exposes the techniques of the junk debt industry. How they manufacture false documentation in order to obtain unlawful judgments. I take each piece of false evidence that they produce and not only show you the fraud, but I show you how you can defeat it in Court.
Before I attack the documentation I should say that if you are in the process of being sued there were many things you could have done to avoid being put in this position. I say this for the benefit of those who are just now getting letters and calls from junk debt collectors. If this is you then look at some letters you can use to stop the process before it gets into the Court system. You can also purchase a kit that has all you will need to head these bastards off at the pass. Don't be afraid to fight these thieves.
What you have to understand is that whether or not you owe the debt is irrelevant. Murderers get off on technicalities because the evidence is just not there. The issue always comes down to, do they have the evidence? In most cases these ruthless junk debt companies don’t have a shred. Because they have no real evidence they manufacture false documents in order to secure millions of unlawful judgments. The most horrible thing is that many Courts allow this to go on unchecked. BTDCezFORMS gives you the legal paperwork to fight this tactic and in most cases will get the fraudulent documents thrown out.
The fact is most junk debt law suits should never make it into a Court of Law. The only reason the (JDCC) can legally file suit is the person never responded to the letters and phone calls made by the collections department. What most people don’t realize is that if you ignore the letters and phone calls, it gives them the right to pursue the matter legally. The (JDCC) loves it when you don’t respond. The Fair Debt Collection Practices Act states that the (JDCC) has to notify the debtor that if their attempts to collect the debt are ignored, the (JDCC) has the right to assume that the debt is legitimate. This assumption gives the (JDCC) the right to sue.
I cannot stress it enough, if you are being pursued by a junk debt company, DO NOT IGNORE THEM. It is much easier to deal with them at this phase of the game than when you are served with a Summons. I have a series of free letters and instructions on my website which deals with how to respond to these letters and phone calls. There are also kits available to deal with unscrupulous debt collectors. Check out the highlighted links for more information. If you are being sued then check out my BTDCezFORMS .
The most important thing to do when you are contacted by a junk debt collector is to demand that they communicate only in writing, thereby creating a legal paper trail. What this tells the person on the phone is that you know your rights and you intend to hold them accountable. The person you are speaking to makes a living collecting bad debt. They want to spend as little time as possible to collect this debt. Their paycheck is based on how much they collect, not by who they collect it from. There are too many easy marks out there to waste time on someone who knows the law. Besides, someone who knows the law can get them in trouble.
The best way to handle a junk debt collector is to understand that they are human. As humans they’re lazy and they take the path of least resistance. You do not want to be that path. Your goal is to get the company information and establish a written chain of evidence. Their goal is to collect anything they can from you. If you make it as difficult as possible for them they will give you the information that you want, hang up and go to the next person. Once you have the company info you can write your letters and create a file. Now the (JDCC) has to stay within the bounds of the law. Although I wouldn’t count on it.
This is just a brief summary of this first phase of the collection process. To find out more information on this subject read my blog often and visit my website . I will be writing several more articles on the anatomy of a junk debt law suit. In this series I will be exposing every piece of false evidence that these (JDCC)’s use to try to bilk billions of dollars from hard working poor families. Look for the next article which may be titled The Complaint, the first pack of lies in the Junk Debt Law Suit. Hope to see you on my site and hear your comments on my blog.
RECORDS KEPT IN THE NORMAL COURSE OF BUSINESS
One of the great tools of the Junk Debt Industry, at least in Maryland, is a rule called 5-902b. This same rule is called by many names in different states but it has the same effect. It allows false documents to be considered evidence by the Court. The junk debt industry abuses this rule more than any of the rules because if it is unopposed they can slip in false documents as evidence. The defendant must file an objection to the use of "Records Kept in the Normal Course of Business activity". I have designed a series of fill in the blank forms to challenge these fraudulent documents.
Basically, in the absence of an objection by the defendant, this rule allows the plaintiff to use documents that they created, as evidence that an alleged debt existed.
You have to understand that the internally created documents manufactured for the Plaintiff and by the plaintiff are not evidence. They are documents CREATED for the purpose of circumventing the requirement of producing the actual documents required by law.
This is why any time this tactic is attempted by the plaintiff it must be objected to. Even if the Court overrules the objection you have preserved your right to appeal.
A dirty little secret about the Courts is that it is no longer the duty of the Court to discover truth. It is the duty of the Court to allow the parties to present their evidence to the trier of fact.
A fact is an allegation that can be proven to be fact with admissible evidence. If a fact cannot be proven it is inadmissible as evidence. If a party introduces evidence that should not be admitted it is the duty of the opposing party to object. If that party does not object then the evidence is treated as fact. Junk debt lawyers constantly try to get false information into evidence.
Fortunately most of the junk debt industries tricks are used before you are in the courtroom. Therefore. you can simply file a written objection to the notice. In fact, most everything that goes on at a trial is settled long before you enter the courtroom.
The plaintiff will file what is called a NOTICE OF INTENTION to offer records of regularly conducted business activity. The Plaintiff lists the type of documents you would expect to see entered as evidence, like contracts, account statements, and all the things you would expect to be legitimate documents. However, that is not what they actually present as so called evidence. Instead they take the fraudulent documents that they created and try to pass them off as actual evidence. These fraudulent documents create the illusion that the defendant owed a debt to the junk debt company.
Let me be clear, THE ONLY EVIDENCE OF AN EXECUTED CONTRACT IS A CERTIFIED COPY OF THE ORIGINAL CONTRACT. If the plaintiff does not have a certified copy of the contract, duly executed by and between the defendant and the original creditor, then they do not have a cause of action. This means that they do not have the right to sue you.
The major chink in the junk debt industry’s armor is documentation. The only chance we have to defeat the plaintiff is by fighting the documentation . I have looked at thousands of cases and what surprises me most is not how many cases are lost or won; it is how many cases are settled by defendants who do not realize that the junk debt company does not have a case.
If people would just calm down and read the paperwork they would realize that the Plaintiff's whole case is based on fraudulent paperwork. Truth be told, the majority of the junk debt cases are pursued in bad faith. Not that the person didn’t owe a debt to the original creditor, but that the junk debt industry creates false documentation in order to collect the debt. This is outright fraud and the Courts allow it.
Remember the dirty little secret, The Courts are not about truth and justice, they are about facts and evidence. Evidence is an allegation that can be proven as fact. Make the plaintiff prove every allegation with admissible evidence. You will be surprised how quickly they back off.
KevinZurrin
You have the right to remain silent so shut up
YOU HAVE THE RIGHT TO REMAIN SILENT
SO SHUT UP
I was recently talking to someone who was being sued by a junk debt company. She told me that she tried to settle with the company and they basically told her to stuff it. First and foremost, never try to settle with the junk debt company as a first course of action, and above all never admit to any facts that they do not have the evidence to prove. Attached to the summons you will find all of the evidence that the plaintiff is presenting to prove their case. As for you, you never have to present any evidence against yourself. You have the right to remain silent, so SHUT UP. When you receive a summons you are supposed to file an answer and an intention to defend. By the way, always request a jury trial if you can. People make the mistake of either ignoring the summons, or answering to quickly. You have plenty of time, use it. There are so many things you can do to end the case before that, mainly motions and discovery.
My source for a lot of my commentary is Jurisdictionary, a pro se law program
http://www.jurisdictionary.com/?refercode=ZK0001.In addition to the Jurisdictionary program I use Maryland rules.
http://michie.lexisnexis.com/maryland/lpExt.dll?f=templates&eMail=Y&fn=main-h.htm&cp=mdrules/8.
Jurisdictionary teaches that discovery consists of 5 basic tools. These tools are;
Requests for admissions
Requests for production
Interrogatories
Depositions
Court orders
To get a better understanding of these tools I suggest that you visit the above mentioned web site. If you purchase the program, it will serve you for the rest of your life. If you cannot afford the whole program they have parts of the program at more affordable prices. If you cannot afford to purchase the program visit the site anyway, you can glean a lot of free information from the site. They send you weekly hints and you can download a lawsuit flowchart. Now back to discovery.
The primary discovery tools you need for junk debt cases are requests for production and interrogatories. Title 5 of the Maryland rules covers all the rules regarding evidence. You may be surprised to find that the affidavit in support of the complaint is actually hearsay if you cannot cross examine the affiant. Even if the affiant is available for cross examination, they may not be able to testify because they do not, in fact, have personal knowledge of the facts that they are testifying to. Rule 5-602 reads;
Except as otherwise provided by Rule
In most cases the affiant is the legal manager of the junk debt company, and the only personal knowledge that he has of the debt is what the company told him. If that managers eyes have not physically seen the documents executing the contract, then he has no personal knowledge of the facts that he is testifying to. When you are cross examining this witness ask him if he has ever seen a copy of the contract between you and the plaintiff, whereby you executed the alleged debt instrument by signing the document. If the answer is no, which in most cases it will be, you must motion the court to strike the testimony of this witness based on the lack of personal knowledge. If the witness says that he has seen a signed contract, and there is no contract on file, then you motion the court to compel the plaintiff to produce the alleged document. This is assuming that you requested the documents from the plaintiff during the discovery phase. If you never requested the documents then you can still motion the court to strike the testimony based on witness presenting facts without evidence.
In Maryland rule 3-308, “demand for proof”, you have the right to demand proof from the plaintiff that they have the legal right to sue you, part 1,2,or 3. You also have the right to demand proof that they have a signed document to prove that a legally executed contract exists. I will show the text from the actual rule:
When the defendant desires to raise an issue as to (1) the legal existence of a party, including a partnership or a corporation, (2) the capacity of a party to sue or be sued, (3) the authority of a party to sue or be sued in a representative capacity, (4) the averment of the execution of a written instrument, or (5) the averment of the ownership of a motor vehicle, the defendant shall do so by specific demand for proof. The demand may be made at any time before the trial is concluded. If not raised by specific demand for proof, these matters are admitted for the purpose of the pending action. Upon motion of a party upon whom a specific demand for proof is made, the court may continue the trial for a reasonable time to enable the party to obtain the demanded proof.
Notice that at the end of the rule the court may continue the trial for a reasonable amount of time to enable the party to obtain the demanded proof. Even if the plaintiff knows they do not have the required documentation, you can be assured that the plaintiff will ask for a continuance in order to try to regroup. This delay may be to your benefit as well, especially if you haven’t tightened up you case yet.
Don’t be surprised if the plaintiff tries to give you a sweet offer to settle during this delay. If they do make a sweet offer to settle don’t jump at it, especially if the offer is verbal. If you plan to settle, make them put the offer in writing. When you receive the written offer, and you intend to settle, make a counter offer of perhaps ten cents on the dollar of their offer. If you do not plan to settle, the fact that they make an offer indicates that they are on their heels.
In my case, when we were gaining headway through the discovery process the plaintiff offered to settle for 25%. This was not a small amount of money. In fact it reduced the amount from $20,000.00 to $5,000.00. We declined their offer. We told them that since they had initiated the case in bad faith, and without evidence we would fight it to the end. Shortly thereafter their attorneys withdrew from the case. Bear in mind that I was fighting an entered judgment, if you‘re in the summons stage of the case you are far better off.
My main point is that you have many options to fight before you file answers to summons. You must legally attack all of the plaintiffs evidence. If you allow them to get away with entering inadmissible evidence into the record you may lose your case. If the court allows inadmissible evidence into the record over your objection you are setting up a good defense for an appeal. All this maneuvering takes time, a lot of time. This is why most lawyers will tell you that it is cheaper to settle than to fight, which is true if you are hiring a lawyer. However, if you are a pro se defendant, you spend very little money. It does cost a lot of time and energy, but the knowledge you gain will serve you for the rest of your life.
Godspeed
KevinZurrin
THE JUDICIAL SYSTEM IN CRISIS
THE COURTS ARE BROKEN
I hate to be the bearer of bad news, but the third branch of our government is in breach of the constitution. As I was reading and responding to a post on another blog,
http://patriotsforamerica.ning.com/ referring to the case going before SCOTUS, I was reminded of the motion I had to file in Maryland District court.Go to my blog,
http://blog.beatthedebtcollector.com/ to follow the entire case. I will describe the motion here just to illustrate the sad state that our judicial system is in. The fact that this motion even had to be filed is an example of how far we have digressed as a nation.In my situation a junk debt company won a default judgment almost a decade ago. Because the judgment has been entered, it puts me in a place of having to get things put into the record through motions. First and foremost, the court did not have jurisdiction because the plaintiff did not provide proper service. Second, all the so called evidence was manufactured by the plaintiff, and at face value should never have been entered as evidence. The court record alone was sufficient to vacate the judgment, but the court would not follow the law. After almost twenty denied motions I now have enough facts on the record to properly appeal this case. I intend to take it to the SCOTUS if necessary. I post this to call attention to the fact that we need to be vigilant or our third branch of government will no longer be available to the common man. Instead they will become a de facto legislative branch of the government.
Let me dispel a commonly reported, inaccurate belief. For your info, a commonly reported, inaccurate belief is otherwise known as an “Old wives tale”. It is a widespread rumor that if a person doesn’t show up for a court date, that the judge automatically issues a default judgment. A plaintiff is not entitled to a judgment just because the defendant did not show. In fact, when a default judgment, technically called a judgment on affidavit, is granted, neither the defendant, or the plaintiff have to be in court. The judgment is based on the evidence that is presented to the judge. The laws in most states, and I know for a fact in Maryland, demand that the judge himself prove the evidence according to the rule of law. The rules of evidence still apply. Otherwise an unscrupulous lawyer could deceive the court, by saying that they served someone when in fact they did not. Not that a lawyer would ever do that;-?
First let me deal with the jurisdictional issue. In my case, I don’t know if the attorney deliberately deceived the court, or if the service provider made a mistake. I only know that at the time the service provider attests that he served the papers he would have had to have served them in another state. Not to mention the fact that the description that he gave of the person he did serve was off on four out of five counts. He did however, get the gender right. This was the first of many constitutional violations. If the person was never served, the court did not have personal jurisdiction over the defendant. Any subsequent judgment is null and void.
Next issue is evidence. Every court has to have rules of evidence. Our Constitution gives every defendant the right to review and challenge any evidence that is presented against them. Without going into all the legal terms and such, evidence must be pertinent, and provable. It must show a cause of action, and it must be able to be proven. For instance, If a person signs an affidavit stating that the defendant owes money to the plaintiff, that person must be able to prove that the debt exists. Not only must he be able to prove it, he has to present that proof through proper documentation. I would bet that if we looked at all of the default judgments that have been granted, a great majority could be thrown out because of the lack of evidence, and improper procedure.
Believe it or not, anyone can challenge a judgment against them at any time for fraud, mistake, or irregularity. All you have to do is file a motion to vacate judgment. In Maryland the rule is 3-535, according to the rules for the district court. I believe all the states have similar rules. On my web site,
http://www.beatthedebtcollector.com/ I have examples of this type of motion. There is a link to all the courts in the US. There are also many programs to help people deal with unscrupulous debt collectors. In fact, because most junk debt companies habitually abuse the law, the site is dedicated to beating the debt collectors legally. I hope this article can motivate some people to stand up for their rights and use the law for what it was intended for, to protect the rights of all of the citizens.
Spotlight on: Judge James L. Mann Jr.
JUDGES WITH QUESTIONABLE JUDGMENT
There is a tremendous injustice being perpetrated by the judicial system in regard to debt collection. I am going to give the benefit of doubt to the courts in general, because they are overcrowded, and these junk debt companies have mastered the art of manufacturing false evidence. However, I am going to shine the spotlight on particular judges because they have ruled on specific cases in the face of irrefutable evidence.
The first of these judges that I am going to publicly expose is James L. Mann Jr. I don’t address him as His Hon., because in my opinion, Judge James L. Mann Jr. does not deserve to be addressed as His Honor. If I am in his courtroom I will address him as such only because court decorum demands it. When he takes off the robes, I take off the gloves. So Mr. Mann, Why, in the face of irrefutable evidence, do you allow judgments, that are proven to be based on false evidence, to be sustained. I can't accuse you of being in cahoots with Creditrust, But your judicial behavior makes me wonder if you are on their payroll. Perhaps it's that you just do not care to administer justice. I can only speculate. I do have to ask however, do you realize that when you don the black robe you are bound by God to be JUST, and follow the rule of law? One would assume you were a God fearing man. Aren’t you a Permanent Deacon at the Archdiocese of Baltimore? Does that title have any meaning to you, or is it just an embellishment to paste on your résumé? It sure looks good on your profile. However, if your life doesn't reflect the spirit behind the title, it's just an empty epithet. Remember, God is not mocked, what a man soweth that also shall he reap. With what judgment he judges, he shall also be judged.
In the spirit of definition of character, you sir are judged by your decisions. If what I've witnessed is the way you administer justice, you have abrogated your right to be called Your Honor. In fact sir, you dishonor your office. I have to chide you publicly because in the privacy of your chambers you make questionable judgments that affect peoples lives. These people depend on you for justice and you deliver them to the wolves. I may have to stand before you some day to be judged. I hope when I do have to petition your court for justice that you can simply do what you were put in office to do, administer justice. Just follow the rule of law. It is a sad day in our history when we have to resort to a public forum to obtain justice, but this is where we are. This third branch of government was set up to protect all of the people, not just the junk debt industry. My hope is that this public cry for justice will shame you into doing the just thing. If not, then it will serve to expose you for what you are.
THE HORRORS OF SLAVERY
THE HORRORS OF SLAVERY
040309
Since the launch of this web site I have been fielding questions about the name of my site. People make comments about how seamy the name sounds. Well it does, and it’s supposed to. I use the go daddy principle that Bob Parsons talks about. The fact that it's disturbing to people tells me it will work. The beatthedebtcollector.com concept developed because I witnessed an injustice. An injustice so great that I could not just stand by without doing something about it. I equate this practice with the slave hunters, who hunted and tortured the slaves after they were emancipated, then sold them back into slavery, or returned them to their masters for a bounty.
These junk debt buyers buy up old and out of statute debt and try to coerce and deceive people into paying it, even though legally the debt is uncollectible. They try to enslave them. People were being sold back into slavery. The junk debt buyers that buy this debt have legal recourse to collect any debt that is within the statute of limitation. There is certainly enough in statute debt to make it profitable. The problem is that these junk debt companies are greedy. What offends me is the practice of buying up debt that is up to decades old for less than a penny on the dollar, and bamboozling people into paying all of the principal and fees and penalties to boot. This practice should not even be legal.
I’m not saying that a person should not pay their legal debt. If a person has a debt that is within the statute of limitation then they should settle it. In fact, the junk debt buyers are usually willing to settle these debts for dimes on the dollar. But be careful to get everything in writing because these junk debt buyers aren’t above reselling the debt after you settle it. If the paperwork isn’t right they will sell it to another junk debt buyer and the whole process starts all over again.
I have programs on my website,
http://www.beatthedebtcollector.com, that can walk you through the process of settling a debt that is within the statute. But don’t pay a debt that is not legally collectable. I also have many programs available on the site to show you how to deal with the unethical junk debt companies who call and try to collect this junk debt. There are also letters you can copy, edit, and print out for free on the letters page. And for God’s sake, beat the debt collector legally.
KEEPING THE COURT IN MOTION
040209
I LIKE TO WRITE MOTIONS
I like writing motions, and I’ve written many, because it gives me a chance to reflect on what I really want to ask the court to rule on. It gives me time to research the laws so that I know them, and I can remind the court how it has ruled in the past. Most of all I like it because it gives me a chance to rehearse my case. If you are in court and you have to make a verbal motion you have to be able to think on your feet, This is why the trained lawyer has an advantage against the pro se litigant in the courtroom. If you are going to defend yourself pro se you’ll want to fight the majority of your case outside of the courtroom.
Don’t be eager to get into the courtroom and dazzle the court with your wit and wisdom, you may find that you lack both. Learn why every lawyer tries to spend as little time in the courtroom as possible. You can tell how good a lawyer is by how little time he spends in the courtroom. In fact, there are lawyers that have never even argued a case before a judge. Remember, this is not Boston Legal, and you are not Alan Shore. The court does not want to hear your litany of nonsensical obfuscations of the law. Stick to the simple facts of the case, and the rule of law. If you do your job correctly, the opposing side will want to drop the case or settle long before the matter ever gets in front of a judge. The point is, motions are good, keep the court in motion.
Motions are a way to talk to the opposing counsel through the court, because ultimately you are talking to the court. Communication with anyone is more effective in writing. This is even more true when communicating with opposing counsel. If you force the opposition to write their responses you have a better chance of answering them. Essentially you are arguing your case before the court without the pressure of being in the courtroom. Besides, Judges like to hear the case before they hear the case.
In a motion one is stating why they believe they are entitled to relief, and what type of relief they are seeking. When the opposing counsel reads your motion they might even find that you are entitled to relief. In which case, it is time to settle the case before they embarrass themselves in front of the court. To paraphrase the bible, it says to agree with you adversary quickly, rather than let him deliver you to the judge and you have to pay the uttermost farthing. On the other hand, when they file their opposition to your motion, you might find that your case is weak or nonexistent, in which case you may want to drop the case or try to settle. Motions save the court a lot of time.
When you are doing the research for your motion you will likely find other points of law that need to be addressed. Don’t try to stuff a motion with a barrage of questions. Keep it simple and to the point. I once filed a motion with several valid questions. The court denied the motion because I based the first question on a fact that was established further down on the same motion. The fact is the judge didn’t even read the entire motion. When I called the clerk to ask why the court didn’t rule on the subsequent questions, he said that the judge probably didn’t know there was more than one question. From that point I filed a separate motion for each question, and systematically established the facts through the motions. I got a lot of practice writing motions. Now I can write a motion in my sleep, and many times I do.
On my web site I have an example of a simple motion to show the basic structure and form. In my forms package I have a step by step program to fill out and print your own motion. These are basic enough to cover most states, and are easy to edit to fit any state. You must check with the rules in your own state to see what their rules require. Some states even have fill, print, and file forms for the pro se litigant on their court website.
Filing a motion pro se is easy. Once you overcome the fear of it. Once you do it, you will see just how easy it is. It’s simply talking to the court in writing. First you are telling the court you are being treated unjustly. Next you are outlining the reasons why you believe this, and giving legal rational. Finally you are telling the court what you want them to do about it. It’s as easy as that.
KEEPING THE COURT IN MOTION
MORE ON MOTIONS
You may wonder why lawyers file so many motions. Well, because they are quick and easy for them to write, and they’re profitable. Now I know that’s cynical but it is also true. One of the main reasons that they are so quick to file motions, aside from the profit is that it keeps the other side on their heels. It also keeps the case in motion. Motions are cheap for the defendant, if he is pro se. Once the plaintiff files the complaint there is no limit to the amount of motions that can be filed, and it doesn’t cost a dime to file it with the court. Bear in mind you have to have a legitimate question of law, and you can’t use it for harassment, or to hold off the judgment, because the court can sanction you. Then your motion will cost you even if you are pro se. But don’t hesitate to motion the court if you have any legitimate reason.
If you are paying a lawyer to file each motion it can become quite an expense. I guess that’s why most people don’t fight the junk debt company, it is cheaper to settle. However, if you are going pro se the sky is the limit. As long as a motion addresses a legitimate issue you can file it. As long as you file the motion the court has to rule on it. When the court rules on the motion all parties now know how the court is going to decide. Even if the court rules incorrectly the judge is telling you how he is going to rule.
We file motions in order to establish the facts of the case. Once the court makes its ruling it establishes an official written court record of the judges decision on any particular matter. This is important for any future appeal. If the courts ruling is not in line with the law then you have a written record in which to appeal. Because an appeal is not about the facts of the case, it is about the courts ruling. If the court has not ruled on a fact, this fact cannot be appealed. I tell you this because I don’t want you to be embarrassed like I was.
I was reading the instructions for filing a case with The Supreme Court of the United States, (SCOTUS) when I realized that I didn’t have a case. I had not established the facts of the case that I was fighting. I was reading the reason 98% of the cases were not even heard by the SCOTUS, and realized that I was one of them. Thank God I didn’t spend that $450.00, Which is how much it costs to file an appeal with SCOTUS if you are pro se. I now understood that I had to go back to the beginning and establish the facts of the case.
Fortunately we live in a country where we can petition the court almost indefinitely. Motions are the vehicle we use to move the court. In a case like mine, in which a default judgment was already granted, the only way to fight it is with motions. Motions are a way to get facts into the record post judgment. Once you establish the facts of the case, the court has to either vacate or sustain the judgment. If the court sustains the judgment, and you think it is unjustified, now you can appeal based on the rulings because the facts have been established through the motions.
I’m going to stop here for now rather than go into a long winded pedantic essay. To cover all of the subtle aspects in one sitting would only bore you to tears. As a Pro se litigant I have learned many things from the bottom up. While I am not a lawyer, I do have a unique perspective that may be helpful to others who are on the same path. I am going to continue on this subject in short pieces until I exhaust my infinite knowledge base:-? Next piece will be titled why I like to write motions.
JUDGMENTS WORTHY OF VACATION
033009
THE SPIRIT OF THE LAW
The spirit of the law is based on equity, Equity is defined as fairness, impartiality, and justice. For a judgment to be equitable it must meet these requirements. Most judgments that junk debt buyers receive in court are default judgments. Generally a default judgment is given because the defendant did not show up for the hearing. Unfortunately the majority of these judgments are granted solely on the basis that the defendant wasn’t present. This is a flagrant miscarriage of justice.
It is a commonly held belief that if a defendant does not show up for the court hearing, that a judgment is automatically granted in favor of the plaintiff. This is not equitable, nor is it legal. I’m going to quote Maryland law because I live in Maryland, and these are the laws that I'm familiar with, I’m sure most states have similar laws. Maryland Rule 3-306.a.2 clearly states that a judgment based on a contract must have a copy of the contract present in the file. The plaintiffs claim must be proven according to admissible evidence. Most junk debt buyers do not have the documentation, Therefore these judgments are questionable at best.
Because the rule states that the court may rule in favor of the plaintiff, if in its determination the evidence is satisfactory. The court may means that it up to the courts discretion. However, If the evidence is not sufficient to warrant a judgment for the plaintiff, and the court does grant that judgment, then the court is guilty of abuse of discretion, and this judgment is wide open for appeal.
If you read this rule carefully you see that neither the plaintiff or the defendant need be in the court at the time of the trial. The court has to make its decision solely on the evidence. Now just because the rule gives the court wide authority to act, it does not allow for the court to violate the rules of evidence, or to disregard the rule of law. The court is not supposed to be partial to either the plaintiff or the defendant. The court is there to see that both the spirit and the letter of the law are administered equally. Equity is found when both are applied impartially.
Fortunately for people who have had default judgments rendered against them there is recourse. I am not saying it will be easy, Quite the contrary. At the time of this writing I myself am in the process of fighting an illegitimate default judgment. The difficulty in fighting post judgment is that the rules are not applied the same as they are in a trial. The burden of proof seemingly shifts to the defendant. I say seemingly because technically the plaintiff still has the burden to prove the facts, but the court seems to favor the plaintiff.
The hardest part of post judgment defense is that you have to fight with motions. The court has to rule on every aspect of the case with an individual motion. I can’t tell you how many motions I have filed with the court. I'll post a few of them on my web site and you’re welcome to view them. Also if you post a comment here I can get into more detail as to how to get a judgment vacated, but to go into it now would take up too much time. I would rather discuss each issue seperately.
You may find that even if you have had a judgment against you, you may be able to still fight it. In fact, I am going to do a post on the art of motions next post. I will try to show the learning process I went through in filing pro se. I am also going to post a lot of the rules and case law on this Blog, so forgive me if it’s too much information. The laws and rules will be posted on the end of each post so if you don’t want to read it you can stop reading when you get to that point.
Maryland Rule 3-306. Judgment on affidavit.
(a) Time for demand - Affidavit and supporting documents.- In an action for money damages a plaintiff may file a demand for judgment on affidavit at the time of filing the complaint commencing the action. The complaint shall be supported by an affidavit showing that the plaintiff is entitled to judgment as a matter of law. The affidavit shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. The affidavit shall be accompanied (1) by supporting documents or statements containing sufficient detail as to liability and damages, including the precise amount of the claim and any interest claimed; and
(2) if the claim is founded upon a note, security agreement, or other instrument, by the original or a photocopy of the executed instrument, or a sworn or certified copy, unless the absence thereof is explained in the affidavit. If interest is claimed, the plaintiff shall file with the complaint an interest worksheet.(b) Subsequent proceedings.-
(1) When notice of intention to defend filed.- If the defendant files a timely notice of intention to defend pursuant to Rule
3-307, the plaintiff shall appear in court on the trial date prepared for a trial on the merits. If the defendant fails to appear in court on the trial date, the court may proceed as if the defendant failed to file a timely notice of intention to defend.(2) When no notice of intention to defend filed.- If the defendant fails to file a timely notice of intention to defend, the plaintiff need not appear in court on the trial date and the
court may determine liability and damages on the basis of the complaint, affidavit, and supporting documents filed pursuant to section (a) of this Rule. If the defendant fails to appear in court on the trial date and the court determines that the pleading and documentary evidence are sufficient to entitle the plaintiff to judgment, the court shall grant the demand for judgment on affidavit. If the court determines that the pleading and documentary evidence are insufficient to entitle the plaintiff to judgment on affidavit, the court may deny the demand for judgment on affidavit or may grant a continuance to permit the plaintiff to supplement the documentary evidence filed with the demand. If the defendant appears in court at the time set for trial and it is established to the court's satisfaction that the defendant may have a meritorious defense, the court shall deny the demand for judgment on affidavit. If the demand for judgment on affidavit is denied or the court grants a continuance pursuant to this section, the clerk shall set a new trial date and mail notice of the reassignment to the parties, unless the plaintiff is in court and requests the court to proceed with trial.Cross References.
Rule
3-509.(c) Reduction in amount of damages.- Before entry of judgment, the plaintiff shall inform the court of any reduction in the amount of the claim by virtue of any payment.
(d) Notice of judgment on affidavit.- When a demand for judgment on affidavit is granted, the clerk shall mail notice of the judgment promptly after its entry to each party at the address stated in the pleadings. The notice shall inform (1) the plaintiff of the right to obtain a lien on real property pursuant to Rule
3-621, and (2) the defendant of the right to file a motion to vacate the judgment within 30 days after its entry pursuant to Rule 3-535 (a). The clerk shall ensure that the docket or file reflects compliance with this section.
