What seems to have worked for me - so far

[MADDOG]

Hello everyone. I've been lurking for some time, both here and on quatloos. I've been waiting to see how my case is shaping up before posting. I appreciate the helpful spirit of mutual cooperation demonstrated here (with the exception of a few who bring the quatloos mentality here, unfortunately). But I digress.

Brief history: I learned of debt elimination while researching the Internet for info on bankruptcy. DE seemed much preferable to bankruptcy, especially after reading about credit/money creation by bookkeeping entry (out of thin air), and deciding that mortgaging my homesteaded property here in Florida to pay off the debts would be foolish - why substitute secured debt for unsecured debt?

Yes - I got myself into this mess financially. Nobody twisted my arm to use those credit cards, but the deeper I got into debt, the more credit they extended me. I got scads of offers for convenience checks and they increased my credit limit even though I'd had a reversal of fortune (my career was cut short - long story). I honestly believe the intent is to get me so far into debt that I would let them take my house to get me out of it. NO dice!!!

After learning about money creation in lending, I decided no way would I give up my homestead to pay off credit created out of thin air (which drove up all the housing prices into the stratusphere anyway).

In 2004 I bought the program offered by ADS - Alternative Debt Services, a company which displayed the Better Business Bureau insignia on their web site. I checked at the BBB and there were no complaints, and the company had been in business for over 5 years and on the BBB description the business was described as providing an "alternative to bankruptcy". That convinced me. I paid for their program - $2,500.

They sent me (by email) a series of "dispute" letters to send to the credit card companies. I followed their instructions to the letter. After that series of dispute letters, I was to use an independant arbitration company that ADS recommended after sending the credit card company a "notice of final payment and agreement to arbitration with a forum of my choice" with a $20 check that I identified as consideration for the agreement.

I was told that three of my credit card companies could be arbitrated with one little arbitration company, but that the other bank had to be arbitrated with a different little arbitration company because that particular bank had sued the first arbitration company to stop them from hearing any more cases.
I was told that as long as I had followed instructions and sent the dispute letters, I should be able to prove my dispute with the arbitration company. My dispute was based upon "fraud and failure to disclose".

I did receive arbitration awards in my favor against all 4 credit card companies - almost $95,000 worth of credit card debt. 3 from the arbitration company right near home, but the other one from a company out of state because the local company had been sued by that one particular bank and could not hear the case impartially because of the lawsuit. As this process progressed, I learned that one particular bank had targeted any independant arbitration company that ever ruled against them, and sued the companies to put them out of business. This is to make sure that no independant arbitration companies exist that might find against the bank. Meanwhile, the bank orders its customers to use only NAF or JAMS or AAA if there is a dispute. A slam-dunk for the bank.

I rested easy after the 4 arbitration awards, and started getting my life back together. I studied and became a real estate broker (total change of careers) and began to rebuild my life. Then the summons came - from the same bank that sued the little arbitration companies. I called ADS, and emailed their "workgroup" (the paralegals who were supposed to help me with the process) to ask for help. No dice. They told me I'd have to pay $3,000 more for their "summons support program" now that I'd actually been sued.

I went BALLISTIC!!! They had guaranteed me that my debt would be eliminated, or my money back!!! Their answer was that my debt had been eliminated as of the arbitration awards, but that if I was sued, I had to defend the arbitration awards myself, or pay them to help me. Then I knew I'd been HAD. I believe they knew I'd be sued and set me up on this whole path knowing they'd collect more money from me after the lawsuit started.

@$%^@! I told them to F- - - themsleves and hung up. I started reading things on the Internet, and found this lawyer here in Florida who sells tutorials about handling lawsuits pro se - jurisdictionary.com. I bought his stuff and studied it. The tutorials were great. I learned about the procedure and filed a Motion for More Definite Statement, which was granted; then a motion for dismissal based upon the existance of the arbitration award. Their reply was that the award was "a sham" - so I joined versuslaw.com and did some research. I'll post it later in this thread - it will help anyone who lives in Florida. It almost stumped them because they failed to dispute the award within the statutory period of time allowed, but the judge ruled that the arbitration award is an "affirmative defense" and would not dismiss before I answer the Complaint (still in the Flurry of Motions stage). If I had asserted the agreement to arbitrate instead of the actual award itself, I think I would have succeeded in getting the case dismissed... but I'll know that now.

This is already a long post, so I'll submit it and then post my sanitized final motion for you all to see. If you're interested I'll sanitize and post the earlier ones, too. This latest one seems to have stumped the Plaintiff, SO FAR... the collections atty did not respond timely, and then the judge ordered him to respond within 15 days, and he did not answer - it's been over 45 days now. ..... to be continued....

[MADDOG]

This is my most recent filing, which seems to have stumped the Plaintiff's attorney - the judge ordered them to respond to this after they first failed to respond within 10 days (the judge allowed about 20 days before ordering them to respond). Now they've failed to respond for over 40 days. The ball is in their court... should I just sit tight and leave this alone now?
_____________________________

DEFENDANT’S AMENDED
REPLY TO PLAINTIFF’S SHOWING OF GOOD CAUSE

Comes now, Defendant, ________, to Amend and clarify his Reply to Plaintiff’s Showing of Good Cause and to state his reasons why Plaintiff should still be required to amend its Complaint according to EACH and EVERY reason enumerated in Defendant’s Motion for More Definite Statement.
BACKGROUND

1) Defendant filed its Motion for More Definite Statement on April 15th, 2005. Plaintiff failed to respond to this Motion within the parameters set forth by this Honorable Court’s Order to Respond and Motion Practice Order issued in November of 2004; to wit:

“2) Timely opposing memoranda. Each party opposing any written motion or other application shall file and serve, within ten (10) calendar days after being served with such motion or application, a legal memorandum with citations to authority in opposition to the relief requested. Failure to respond within the time allowed may be deemed sufficient cause for granting the motion by default. If a party has no objection to a motion and does not intend to file a responsive memorandum, counsel shall file a written notice with the clerk of the court so indicating.”

a) Plaintiff failed to file any Response within the required ten (10) calendar days. In fact, Plaintiff allowed this time period to elapse by over thirty (30) days, and then set the matter for hearing without first consulting with the Defendant. Please see exhibit “AA” (Notice of Hearing – date of service highlighted in yellow). Plaintiff’s action disregarded this Court’s Order to Respond and Motion Practice Order as follows:
“6) Oral argument. Motions and other applications will ordinarily be determined by the court on the basis of motion papers and legal memoranda unless a hearing is required by rule or law. (For example, under the rules, summary judgment motions should be set for hearing. This would not, however, extinguish the requirement that the motion be accompanied by and responded to with memoranda.)

“When a request for hearing is granted, counsel for the requesting party will be asked to coordinate the calendars of the Court and counsel.”

b) On May 20th, 2005, Defendant was served a NOTICE OF HEARING by council for the Plaintiff, without coordinating the calendars of the Court and counsel, and accompanied by no legal memoranda. Counsel for the Plaintiff apparently hoped that this Court would allow him to ignore its orders, set a hearing over twenty days after his time to respond had elapsed, and then sit back in his office chair to argue the motion telephonically for 15 minutes without preparing any legal memoranda whatsoever. Meanwhile he expected the Defendant to miss work, jeopardize his employment, and attempt to defend his Motion orally within a mere fifteen (15) minute time period. This would have seriously compromised the Defendant’s ability to adequately reply on his own behalf. As a Pro Se litigant the Defendant needs time to consider the Plaintiff’s arguments and to perform legal research before replying with the required legal memoranda.

c) Defendant was preparing a Motion to Cancel this Hearing based upon the parameters of this Court’s Order to Respond and Motion Practice Order, when Defendant received his copy of this Court’s Order (to the Plaintiff) to Show Cause why this Court should not grant Defendant’s Motion for More Definite Statement.

2) In response to this Court’s Order to Show Cause the Plaintiff filed its Showing of Good Cause along with an Amended Complaint on June 8th, 2005. In its Showing of Good Cause, Plaintiff claims to have addressed “…the issues raised in Defendant’s Motion” by filing its Amended Complaint. But Defendant asserts that Plaintiff did not address all of the issues raised in Defendant’s Motion for More Definite Statement. In fact, Plaintiff’s Amended Complaint continues to dodge the issue of the signed application and agreement (contract) which would have been necessary for Plaintiff to issue a credit card to the Defendant. The fact that such a signed application and agreement would have been required should be deemed admitted because Defendant’s First Requests for Admission were not objected to or denied within the thirty (30) days specified by Florida Rules of Civil Procedure, Rule 1.370.

3) Defendant served his First Requests for Admission on the Plaintiff April 15th, 2005. Plaintiff failed to respond within the thirty (30) day period prescribed by Florida Rules of Civil Procedure, Rule 1.370:

“The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow…”

a) In fact the Plaintiff served its belated reply to Defendant’s Requests for Admission on June 8, 2005 along with its Amended Complaint – twenty-three (23) days after the thirty (30) day period allowed to respond to the Requests for Admission had elapsed. This Court has not indicated any intention to allow any such longer period of time before this fact.

4) Therefore, by virtue of its failure to object to or deny Defendant’s First Requests for Admission within thirty (30) days, the following seven (7) Requests for Admission (served on Plaintiff April 15th, 2005) pertaining to the necessity of such a signed application, agreement and contract should now be deemed admitted:

1) Account number 5424 __________ was opened following a credit card application and/or agreement signed by the applicant.
2) It is necessary for Defendant to have submitted a signed application and/or agreement before a credit card would have been issued by Plaintiff to Defendant.
3) Account number 5424 _______ has been in existence for longer than one year.
4) Defendant has previously requested from Plaintiff, by mail, an authenticated copy of any credit card application and/or agreement signed by Defendant.
5) Plaintiff has thus far failed to provide Defendant with any copy whatsoever of any credit card application and/or agreement signed by Defendant.
6) Any credit card application and/or agreement signed by Defendant constitutes a contract.
7) Plaintiff did not allege Breach of Contract in its Complaint.

5) The above seven (7) Requests for Admission having been deemed admitted, the Plaintiff should have to amend its Complaint to make a more definite statement alleging the existence of such a contract, and attach a verified copy thereof to its Complaint.

6) Plaintiff has also filed two false and misleading Certificates of Service with its Amended Complaint and its belated Reply to Request for Admissions. They each read:

“CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copies [sic] of the foregoing and Plaintiff’s affidavit in support of it’s Motion for Summary Judgment was furnished to ____ by U.S. Mail Delivery on 6/8/05. This is a communication from a debt collector.

________________, P.A.”

a) Defendant states under oath that NO such affidavit in support of any Motion for Summary Judgment was ever furnished to the Defendant. The above quoted Certificates of Service are false. Please see Exhibits “BB” and “CC”. If this Honorable Court has received any such Motion for Summary Judgment from the Plaintiff, and/or any such affidavit in support of such a Motion for Summary Judgment from the Plaintiff, the Defendant has never received either such document and is completely unaware of the filing of either such document. Defendant does not know whether or not these two (2) false Certificates of Service were accidental or deliberate.

7) Plaintiff continues to disrespect this Honorable Court and the Defendant by ignoring this Court’s Order to Respond and Motion Practice Order. Said Order of this Court includes the following admonition:

“FAILURE OF EITHER PARTY TO COMPLY WITH THE TERMS OF THIS ORDER MAY RESULT IN THE STRIKING OF PLEADINGS OR PARTS OF THEM OR STAYING FURTHER PROCEEDINGS UNTIL THIS ORDER IS OBEYED OR DISMISSING THE ACTION OR RENDERING JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY.”


WHEREFORE Plaintiff has habitually failed to act within the requirements of this Court’s Order to Respond and Motion Practice Order, and the Florida Rules of Civil Procedure, and such actions are considered reason for the granting of the opposing party’s Motion, or dismissal of the offending party’s case, or rendering judgment by default against the disobedient party, Defendant so moves this Honorable Court to dismiss Plaintiff’s case, or render judgment by default against the Plaintiff (disobedient party) or admit into the record and consider this Amended Reply to Plaintiff’s Showing of Good Cause before ruling on Defendant’s Second Motion for More Definite Statement.

VERIFICATION
Defendant certifies that he has read this Reply and Motion(s) set forth herein, and that to the best of his knowledge, information and belief, formed after reasonable inquiry, believes that they are well-grounded in fact and warranted by existing law, and that they are not imposed for any improper purpose such as unnecessary delay, or to harass, or to needlessly increase the cost of litigation. DATED this _____ day of __________ 2005

Respectfully submitted,


___________________________

[KITCHIE]

Good work! However in the future when you file in the court the format of you paper should be

Statement
Statuet that supports your statement
Case law that supports both

That's how I win my cases.

Kitchie

[MADDOG]

Thanks Kitchie! You have been so helpful to people here.

I've been lurking for awhile, and reading almost everything. I decided to post with a pseudonym in order to feel safe sharing details of my legal situation.

I did some good legal research pertaining to upholding Arbitration Awards here in Florida, and I think my reply and memo of law would have prevailed had I focused on the agreement to arbitrate rather than on the arbitration award itself. The judge ruled that the arbitration award is an affirmative defense so the case was not dismissed, but all this legal research applies to upholding the arbitration award itself ... so I'll use it to support our affirmative defense, if necessary. Due to length restrictions on these posts, I'll edit out the background details at the beginning and leave the memo of law:


This Honorable Court issued its Order to Show Cause on -------, 2005, requiring Plaintiff to show cause as to why this Court should entertain Jurisdiction in this matter.
Now, having been forced to admit the existence of the binding Arbitration Award, and ordered to address the issue of Jurisdiction, Plaintiff has responded instead by attaching a slew of unsubstantiated allegations and hearsay concerning the Defendant, the arbitration forum, the arbiters, and the evidence allegedly submitted by Defendant to the arbitration committee, but nothing establishing the Jurisdiction of this Honorable Court.
Had Plaintiff wished to legitimately challenge the validity of the Arbitration Award, the arbitration forum, the arbitration process, the arbiters, or the evidence submitted by the Defendant, it had Statutory opportunities to do so, which it has allowed to elapse and has therefore waived..
MEMORANDUM OF LAW
Plaintiff attaches two unmarked exhibits to its Showing of Good Cause. The first is dated ----- 2004, and the second is dated ------ 2004. Each exhibit details information known to the Plaintiff prior to the Notice of Arbitration delivered to Plaintiff on -------, 2004 and Defendant’s Arbitration Award of -------, 2004. Plaintiff implies and alleges that such information might have applied to the arbitration agreement between the parties, and/or the arbitration forum chosen by the Defendant. These allegations are unsubstantiated and groundless, and there are specified time periods during which either party may object to an agreement to arbitrate or to an arbitration, and raise any such questions about the authenticity thereof, see Florida Statutes 2004, Title XXXIX, Chapter 682:
682.03 Proceedings to compel and to stay arbitration:
(4) On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.

682.13 Vacating an award:
(2) An application under this section shall be made within 90 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.

These 90 days elapsed on --------, 2004.

Plaintiff also attempts to divert the Court’s attention to various unsubstantiated allegations concerning the dispute(s) and/or argument(s) which it alleges that Defendant presented to the arbitration forum. Florida law has long upheld that findings of fact are left up to the arbitration committee, see: Florida Statutes 2004, Title XXXIX, Chapter 682:
682.03 Proceedings to compel and to stay arbitration:
(5) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

The losing party in an Arbitration Award cannot object to the arbitrator(s) after suffering an adverse arbitration award, see: Dadeland Square, LTD. v. Gould, 763 So.2d 524, 763 So.2d 524 (Fla.App. 07/26/2000):
“…the trial court departed from the essential requirements of the law in granting Gould's motion to vacate the arbitration award because Gould waived the opportunity to question the arbitrator about his disclosed relationships and waived any objection to the arbitrator until after Gould had suffered an adverse arbitration award.”
“This Court has acknowledged and it is well-settled in federal courts that objections to the qualifications of arbitrators must be timely made and that the unsuccessful party in an arbitration proceeding cannot raise such an objection for the first time after the award is made. See Rios v. Tri-State Ins. Co., 714 So. 2d 547, 551 (Fla. 3d DCA 1998).
Plaintiff cannot now claim to have had foreknowledge that an arbitration tribunal may be corrupt and then wait until it has suffered an adverse Arbitration Award to present such allegations, see: Technostroyexport v. International Dev. and Trade Serv., Inc., 139 F.3d 980 (2d Cir. 1998):
“…where party had knowledge of facts indicating that arbitration tribunal was corrupt prior to commencement of arbitration hearings but remained silent until adverse award was rendered, party waived its objection; Health Serv. Management Corp. v. Hughes, 975 F.2d 1253 (7th Cir. 1992)(objection of losing party in arbitration to award on basis of arbitrator's prior business relationships with prevailing party was waived as untimely); Swift Indep. Packing Co. v. District Union Local One, 575 F. Supp 912, 916 (N.D.N.Y. 1983)("In short, plaintiff made a calculated decision not to object to the alleged bias of Arbitrator Procopio and now seeks to avoid the consequences of what proves to have been a tactical error. Plaintiffs' 'belated cry of "bias" cannot now form a basis for setting aside the award; its silence constituted a waiver of this objection.'"
Also see: Ilios Shipping & Trading Corp., S.A. v. American Anthracite & Bituminous Coal Corp., 148 F. Supp 698, 700 (S.D.N.Y.), affirmed, 245 F.2d 873 (2d Cir. 1957):
"Where a party has knowledge of facts possibly indicating bias or partiality on the part of an arbitrator he cannot remain silent and later object to the award of the arbitrators on that ground. His silence constitutes a waiver of the objection.”
Finally, a Motion to Dismiss is an issue of law, not of fact. Plaintiff’s attempt to introduce a slew of unsubstantiated allegations concerning Defendant’s positions or the evidence Defendant may have presented to the arbitration forum are immaterial for purposes of ruling on the Jurisdiction of this Honorable Court. See: Expressway Companies, Inc. v. Precision Design, Inc., 882 So.2d 1016 (Fla.App. 07/14/2004):
“…a trial court "is not empowered to set aside arbitration awards for mere errors of judgment as to law or facts," even if Precision had filed a motion to modify the Award, the trial court could not have granted the motion. Dasso v. Fernandez, 831 So. 2d 714, 716 (Fla. 3d DCA 2002), review denied, 845 So. 2d 889 (Fla. 2003); see Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So. 2d 994, 996 (Fla. 3d DCA 1998)(holding that "awards made by arbitration panels cannot be set aside for mere errors of judgment either as to the law or as to the facts"); Goldberger v. Hofco, Inc., 422 So. 2d 898, 900 (Fla. 4th DCA 1982)
In Florida, arbitration is a favored means of dispute resolution and courts should indulge every reasonable presumption to uphold proceedings resulting in an award. See Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988). Review of arbitration decisions is extremely limited. See Boyhan v. Maguire, 693 So. 2d 659, 622 (Fla. 4th DCA 1997). A reviewing court may not comb the record of an arbitration hearing for errors of fact or law inherent in the decision-making process. See id. No provision in the Florida Arbitration Code authorizes trial judges to act as reviewing courts in the same way that a court of appeals reviews trial judges' legal decisions. See J.J.F. of Palm Beach, Inc. v. State Farm Fire & Casualty Co., 634 So. 2d 1089, 1090 (Fla. 4th DCA 1994). A high degree of conclusiveness attaches to an arbitration award because the parties themselves chose to go this route to avoid the expense and delay of litigation. See Applewhite v. Sheen Financial Resources, Inc., 608 So. 2d 80, 83 (Fla. 4th DCA 1992). The arbitrators are the sole and final judges of the evidence and the weight to be given it. See Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So. 2d 994 (Fla. 3d DCA 1998) (citing City of West Palm Beach v. Palm Beach County Police Benevolent Ass'n, 387 So. 2d 533, 534 (Fla. 4th DCA 1980)).
CONCLUSION

Plaintiff’s Showing of Good Cause is a smokescreen of unsubstantiated allegations which should have been raised prior to the rendering of an Arbitration Award, and any legal action, motion or suit to review, modify or vacate the Arbitration Award should have been instigated within ninety (90) days thereafter.
Plaintiff fails to support its Showing of Good Cause with any Memorandum of Law, and it still fails to cite any authority whatsoever in support of the Jurisdiction of this Honorable Court to hear this matter.

Defendant correctly relies upon Florida Statutes specifying the parameters within which any questions concerning the arbitration agreement, arbitration forum and issues of fact should have been raised, and long-established authority upholding the finality and enforceable nature of a binding Arbitration Award as a means of alternative dispute resolution and estoppel to further judicial review.

WHEREFORE, this action should be dismissed for lack of jurisdiction.

Respectfully submitted,

[David Merrill]

The losing party in an Arbitration Award cannot object to the arbitrator(s) after suffering an adverse arbitration award, see: Dadeland Square, LTD. v. Gould, 763 So.2d 524...

I have heard it is commonplace for banks and other creditors to sue arbitration companies that do not rule for the money interests. But whoever you are MADDOG, you seem to be holding your own. Except that this motion to dismiss for lack of jurisdiction (apparently because the plaintiff grew delinquent on the arbitration process) seems old enough to have been ruled on by now.

Let me guess... the judge went silent?



Regards,

David Merrill.


P.S. After no response to my question from MADDOG I wish to announce no insult was meant by it. The dates being 2004 suggest this motion has been sitting on some Bozo's bench for quite a few months now. I believe that this 'cornering' the administrator has caused silence, albeit he or she desperately wants to get this mess off the bench/docket.

Recently somebody had a federal magistrate try to 'unfile' a mandatory judicial notice to get a certified copy of the judge's oath into the case jacket. Now can you imagine there is any reason nobody wants a certified copy of the oath - in the case jacket? Well, it does not take a lot of imagination to understand it is the oath that makes the magistrate into a judge. That is the binding to the Constitution and Article III where judiciary is formed in these united States of America. It is against the fiduciary interests of the Bank and Fund to rule dismissal just because the Bank defaulted (with MADDOG's case). So I am supposing that may be a little hurtful to point out the judge's silence. But if he went silent that is his reluctance to become a judge at all. I have simply grown accustomed to this as a routine with Libel of Review in admiralty. I was not intending to insult MADDOG if the judge/magistrate has indeed gone silent and will not address the motion.

In the United States District Court
for the District of Colorado

United States district courthouse Registered Mail # RA xxx-xxx-xxx US
1929 Stout Street – A105
Denver, Colorado.
[80293]

Mandatory Judicial Notice

Petitioner v. Respondent; Case # 05-X-XXXX



“Judge” (Magistrate’s Name) is to validate his oath of office with whoever administered the oath and place a certified copy of that same oath in this case jacket within ten (10) days of this notice so that either party can authenticate that this is an Article III judiciary according to the Constitution of the United States by purchasing a certified copy of the oath from the court clerk.

Hereby ordered xx/xx/xx by THE COURT

[MADDOG]

David Merrill wrote:

It is against the fiduciary interests of the Bank and Fund to rule dismissal just because the Bank defaulted (with MADDOG's case). So I am supposing that may be a little hurtful to point out the judge's silence. But if he went silent that is his reluctance to become a judge at all.

BINGO, David... and AMEN!!! LOL

David Merrill continued:

I have simply grown accustomed to this as a routine with Libel of Review in admiralty. I was not intending to insult MADDOG if the judge/magistrate has indeed gone silent and will not address the motion.

No insult taken, David. I understood what you meant! =)
I do not tend to take offense here on suijuris when a regular member offers their opinion... I've carefully read and evaluated people's posts for months, and David, you are someone I trust. I think I know who the spies and disruptive influences are by now.
And you're right, David... I think I cornered the judge. He DID order the Plaintiff to respond to my motion that pointed out all the instances in which the Plaintiff ignored this judge's Motion Practice Order. I basically rammed it down the judges throat that the Plaintiff chronically disregarded his order, was chronically tardy in all of their responses, and expected to get their way without obeying the judge. I appealed to the judge's EGO (rightfully so... the judge DID issue a Motion Practice Order that the Plaintiff's sloppy attorney has ignored, forgotten and/or disregarded out of either arrogance or ineptitude or both!). So the judge actually did a decent thing (IMHO)... he actually ordered the Plaintiff to respond to my motion, and the Plaintiff has now ignored the judge's Order to Respond. Plaintiff is WAY overdue, and the judge has not yet ruled on my motion... he has, indeed gone silent, and I think David's assessment of why is probably right on.

BTW! I have learned from someone else who is fighting a similar case in another state, that the Plaintiff dismissed their case w/o prejudice and did not inform the defendant by mail of the dismissal! The defendant (debtor) checked with the clerk of the court after weeks went by with no action, and found that the Plaintiff had quietly dismissed their case!!! I guess I should check with the clerk this week to see if the Plaintiff has done that in my case, too. If not... should I just "let sleeping dogs lie"???

I've also been told that collections attorneys check Lexusnexus to see how a case is progressing against a particular defendant before they decide to file against that same defendant themselves. I assume that if the present Plaintiff had been doing better in their attack against me, the other 3 banks would have swooped down and "followed suit" (pun intended).

[David Merrill]

BTW! I have learned from someone else who is fighting a similar case in another state, that the Plaintiff dismissed their case w/o prejudice and did not inform the defendant by mail of the dismissal!

Very revealing - the Plaintiff dismissed the case.

The authority is actually with the clerk. That is where the process is executed and the authority is in the process. Since the default is old and stale you might consider filing a true judgment yourself. With the county clerk and recorder or deeds collaterally^, common law publication of the judgment.

Maybe file it in lieu of the attorney in the black robe, explaining how you understand his career and standing with the Bar are at risk. But like you indicate, if the Plaintiff has power to dismiss a case without prejudice (and ex parte at that), you should give yourself credit for being the court of record when the attorney in the black robe's hands have become tied by a default against the Bank and Fund. He may succeed in at least looking like he overturned your judgment; but wouldn't that make him obligated to rule on the matter you have moved in his court already?

Then again maybe let sleeping dogs lie. I have seen a federal judge, Wiley Young DANIEL just consider my action, a common law writ of mandamus from a 12 jury panel, a new motion that was not clear about the default already before the court and so rule for closure [indicating resolution of the national debt, at least in contemplation. Thus a ruling for closure on March 18, 1997 was interpreted as resolution of the national debt - forfeiture of assets including 501(C)(3) Christian churches* and citizens of the United States, regardless of how people handled subsequent billing.] If anything or anyone ever injures you or your house in the future, sue the judge for his dereliction of duty. Or sue the clerk for refusing to file your true default judgment if that happens. Again you will have to be the court of record [hire your own transcriber etc.]. But his cowardice will have injured you. You should have recourse.

Once filed you may be able to get a certified copy filed with your secretary of state for apostille. Mention doctrine res judicata and if anyone tries to pick up the matter in any court, it is likely nobody will touch the matter. You must determine what risks you are willing to take handling the rule of law. I am just telling you that I have seen wonderful things happen when proper process is applied. [The above DANIEL case was filed the day before the 31 Day Government Shutdown (reconstruction).]



Regards,

David Merrill.


A suitor recently filed judgment on an abatement for misnomer with the state court first without thinking. So I reminded him to file with the county clerk and recorder (county deeds maybe where you are). Then I suggested he have that served back on the state court so that he could prove the clerk knew it was filed in common law. He threw money at it and hired a professional process server to pick up five certified copies and serve them into the four 'outstanding' cases abated. It took the process server four tries to get the certified copies. After phone calls and trips there to verify the document existed, the process was finally complete. But for some reason the county clerk was not readily producing certified copies.


* The undrawn timeline is 520/519 BC to 740 AD is 1260 years. Then 740 AD to 2000 is another half-Week, 1260 years.

http://ecclesia.org/forum/images/sui...elCalendar.jpg
Daniel's Calendar
http://ecclesia.org/forum/images/sui...anielBooks.jpg
Daniel's Books
http://ecclesia.org/forum/images/suitors/Scythian.jpg
Darius conquers Scythians
http://ecclesia.org/forum/images/suitors/Khazar.jpg

[MADDOG]

David Merrill wrote:

I have heard it is commonplace for banks and other creditors to sue arbitration companies that do not rule for the money interests. But whoever you are MADDOG, you seem to be holding your own. Except that this motion to dismiss for lack of jurisdiction (apparently because the plaintiff grew delinquent on the arbitration process) seems old enough to have been ruled on by now.

Let me guess... the judge went silent?

The judge DID rule on the above Motion to Dismiss... the one in 2004. He wriggled out of the corner by ruling that Arbitration and Award is an affirmative defense. I should have focused on the agreement to arbitrate, and only the agreement to arbitrate in order to move for dismissal prior to answering the complaint!

In my eagerness to share my legal writing here, I've created confusion by not posting things in cronological order. Sorry! ={

The motion that the judge has gone silent on is the motion I submitted later. I had moved for more definite statement, and the plaintiff waited too long, and then submitted an amended complaint that did not address all of my points in my motion for more definite statement. Not only did they submit their amended complaint after their time to respond had elapsed, but they included a pre-prepared denial of my motion for more definite statement for the judge to sign... claiming that their Amended Complaint addressed all the points in my motion for more definite statement. The court clerk apparently stamped the judge's signature (an obvious ink stamp of his signature) and sent it only 4 days after receiving the amended complaint, thus failing to give me enough time to reply. Hence my amended Reply and Motion (posted in the next message, below). The other long document I posted first was the Amended Reply that I did not have time to submit because of Plaintiff's tardy response, their belated Amended Complaint, and the court clerk's hasty stamping the judge's signature on the denial of my motion:

I realize that the order in which I posted these docs has created confusion! Sorry folks!

The judge has gone silent after issuing the Plaintiff an Order to Respond to the Motion I've posted in the next message, below. Now that the Plaintiff has failed to respond to either the motion below or the judge's order to respond, the judge has been silent for several weeks.

Shouldn't the judge now rule on my 2nd motion for more definite statement, and my motion to rule against the Plaintiff for violating the judge's motion practice order? I think he should, but he has not as yet. Should I just allow more time to pass?

[MADDOG]

BACKGROUND
Defendant’s Reply was mailed to this Court on June 14th, 2005 and apparently crossed in the mail with this Court’s Order Denying Defendant’s Second Motion for More Definite Statement, which was also mailed on June 14th, 2005. That Order of this Court was issued and mailed only four (4) official days after the Plaintiff finally served its Showing of Good Cause in response to this Court’s Order to Show Cause.
This Court’s earlier Order to Respond and Motion Practice Order of November 2004 prescribes five (5) additional days to be allowed for a moving party’s final Reply to the opposing party’s Response before the Court’s ruling on a Motion, provided that written notice of intent to Reply is received by the Court. But rather than submit any written notice of intent to Reply, Defendant actually served his Reply within the five (5) days extra time to be allowed for mailing, as per Florida Rules of Civil Procedure Rule 1.090:

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

(e) Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

Plaintiff’s Showing of Good Cause was mailed on June 8th, 2005, which was a Wednesday. As provided by Rule 1.090, that day is to be excluded from the computation of time. Two days, Thursday and Friday, then elapsed; followed by Saturday and Sunday, which are also to be excluded from calculation. The Court’s Order Denying Defendant’s Second Motion for More Definite Statement was mailed on Tuesday, June 14th. That Tuesday and the Monday preceding it make two additional days, for a total of only four (4) days to be lawfully included in the computation of time. By mailing his Reply to Plaintiff’s Showing of Good Cause, etc. on Tuesday, June 14th, 2005, this Defendant served his actual Reply on this Honorable Court within the extra five (5) days which are to be allowed for mailing.

Defendant prays that this Honorable Court has no intention of holding the Defendant to a standard of conformity to its rules and orders that is different from that which is expected of the Plaintiff in this case. Therefore, Defendant now moves this Court to rescind its premature Order Denying Defendant’s Second Motion for More Definite Statement and to consider Defendant’s Reply to Plaintiff’s Showing of Good Cause. Due to the fact that this Court issued its Order Denying Defendant’s Second Motion for More Definite Statement prematurely, Defendant was not allowed sufficient time to serve his Reply prior to this Court’s ruling on his Motion for More Definite Statement.

Plaintiff should still be required to amend its complaint according to each of the reasons enumerated in Defendant’s Motion for More Definite Statement, because, although the Plaintiff did amend its Complaint as to the requirement of the Florida Rules of Civil Procedure requiring the Plaintiff to allege the Jurisdiction of this Court, the Plaintiff’s Amended Complaint still fails to allege the existence of any signed agreement or contract between the Plaintiff and the Defendant, and fails to attach any copy of such contract or agreement to its Complaint.

By virtue of its failure to object to or deny Defendant’s First Requests for Admission within thirty (30) days, the following Requests for Admission pertaining to the necessity of such a contract (served on Plaintiff April 15th, 2005) should now be deemed admitted:

1) Account number 5424 _____ was opened following a credit card application and/or agreement signed by the applicant.
2) It is necessary for Defendant to have submitted a signed application and/or agreement before a credit card would have been issued by Plaintiff to Defendant.
3) Account number 5424 ______ has been in existence for longer than one year.
4) Defendant has previously requested from Plaintiff, by mail, an authenticated copy of any credit card application and/or agreement signed by Defendant.
5) Plaintiff has thus far failed to provide Defendant with any copy whatsoever of any credit card application and/or agreement signed by Defendant.
6) Any credit card application and/or agreement signed by Defendant constitutes a contract.
7) Plaintiff did not allege Breach of Contract in its Complaint.

Defendant served his First Requests for Admission on the Plaintiff April 15th, 2005. Plaintiff failed to respond within the thirty (30) day period prescribed by Florida Rules of Civil Procedure, Rule 1.370:

“The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow…”

In fact the Plaintiff served its belated reply to Defendant’s Requests for Admission on June 8, 2005 – twenty-three (23) days after the thirty (30) day period had elapsed. This Court has not indicated any intention to allow a longer period of time before the fact. Therefore, the above Requests for Admissions being deemed admitted, Plaintiff should be required to allege the existence of a contract in it’s Complaint.

ARGUMENT

1) Defendant filed its Motion for More Definite Statement on April 15th, 2005. Plaintiff failed to respond to this Motion within the parameters set forth by this Honorable Court’s Order to Respond and Motion Practice Order issued in November of 2004; to wit:

“2) Timely opposing memoranda. Each party opposing any written motion or other application shall file and serve, within ten (10) calendar days after being served with such motion or application, a legal memorandum with citations to authority in opposition to the relief requested. Failure to respond within the time allowed may be deemed sufficient cause for granting the motion by default. If a party has no objection to a motion and does not intend to file a responsive memorandum, counsel shall file a written notice with the clerk of the court so indicating.”

a) Plaintiff failed to file any Response within the required ten (10) calendar days. In fact, Plaintiff allowed this time period to elapse by over thirty (30) days, and then set the matter for hearing without first consulting with the Defendant. Please see exhibit “AA” (Notice of Hearing – date of service highlighted in yellow). Plaintiff’s action disregarded this Court’s Order to Respond and Motion Practice Order as follows:

“6) Oral argument. Motions and other applications will ordinarily be determined by the court on the basis of motion papers and legal memoranda unless a hearing is required by rule or law. (For example, under the rules, summary judgment motions should be set for hearing. This would not, however, extinguish the requirement that the motion be accompanied by and responded to with memoranda.)

“When a request for hearing is granted, counsel for the requesting party will be asked to coordinate the calendars of the Court and counsel.”

b) On May 20th, 2005, Defendant was served a NOTICE OF HEARING by council for the Plaintiff, without coordinating the calendars of the Court and counsel, and accompanied by no legal memoranda. Counsel for the Plaintiff apparently hoped that this Court would allow him to ignore its orders, set a hearing over twenty days after his time to respond had elapsed, and then sit back in his office chair to argue the motion telephonically for 15 minutes without preparing any legal memoranda whatsoever. Meanwhile he expected the Defendant to miss work, jeopardize his employment, and attempt to defend his Motion orally within a mere fifteen (15) minute time period. This would have seriously compromised the Defendant’s ability to adequately reply on his own behalf. As a Pro Se litigant the Defendant needs time to consider the Plaintiff’s arguments and to perform legal research before replying with the required legal memoranda.
2) Plaintiff continues to disrespect this Honorable Court and the Defendant by ignoring this Court’s Order to Respond and Motion Practice Order. Said Order of this Court includes the following admonition:

“FAILURE OF EITHER PARTY TO COMPLY WITH THE TERMS OF THIS ORDER MAY RESULT IN THE STRIKING OF PLEADINGS OR PARTS OF THEM OR STAYING FURTHER PROCEEDINGS UNTIL THIS ORDER IS OBEYED OR DISMISSING THE ACTION OR RENDERING JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY.”

WHEREFORE Plaintiff has habitually failed to act within the requirements of this Court’s Order to Respond and Motion Practice Order, and the Florida Rules of Civil Procedure Rule 1.090 regarding TIME, and such actions are considered reason for the granting of the opposing party’s Motion, or dismissal of the offending party’s case, or rendering judgment by default against the disobedient party, Defendant so moves this Honorable Court to either grant Defendant’s Second Motion for More Definite Statement or to dismiss this case or to render judgment by default against the disobedient party and in favor of the Defendant.

[MADDOG]

David Merrill wrote:

Since the default is old and stale you might consider filing a true judgment yourself. With the county clerk and recorder or deeds collaterally^, common law publication of the judgment.

That sounds tempting and exciting! I'm not competent to do it yet, though... don't understand how to do that yet!

David Merrill continued:

Maybe file it in lieu of the attorney in the black robe, explaining how you understand his career and standing with the Bar are at risk. But like you indicate, if the Plaintiff has power to dismiss a case without prejudice (and ex parte at that), you should give yourself credit for being the court of record when the attorney in the black robe's hands have become tied by a default against the Bank and Fund. He may succeed in at least looking like he overturned your judgment; but wouldn't that make him obligated to rule on the matter you have moved in his court already?

Fascinating idea! I do need to understand more about how to do that properly, though. Never heard of such an approach, but I love the implications of it. Would I risk contempt of court by attempting such a procedure?