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Roger
Roger, Attorney
Category: Business Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I am the plaintiff and I filed suit against a mortgage Co.

Customer Question

I am the plaintiff and I filed suit against a mortgage Co. My case was closed for a while but when I filed to reopen my case I also filed a separate premature motion for Default Judgment. My premature motion was sent back pending the results of my motion to reopen.The defendant filed one motion which mixed defendants motion to oppose reopening with defendants motion against Plaintiff's motion for default judgment. The court rejected defendants answer and granted my motion to reopen case. The court advised the defendant's attorney that the court would consider defendants arguments if defendants filed an appropriate motion. My question is: When the court advised defendant's attorney to go back and file an appropriate motion, was that wrong for the court to do.? When the court gave this legal advice to defendant's attorney did the court prejudice the case against Plaintiff's?
Submitted: 11 months ago via LawDepot.
Category: Business Law
Expert:  Roger replied 11 months ago.

Roger :

Hi - my name is XXXXX XXXXX I'm a Business litigation attorney. Thanks for your question. I'll be glad to assist.

Roger :

Advising a party that the arguments previously presented would be considered if made through the proper motion likely isn't improper by the judge.

Roger :

It would be improper if the judge advised a party that the issues are "A, B and C" and that the party should file a specific motion and argue specific claims in order to prevail.

Roger :

But, if the judge simply advised the party to file the proper motion before he would consider the arguments, that's not going to be considered as improper.

Customer :

After the court gave the said advice to Defendants, the defendants waited about 36 days before they filed a motion for Summary Judgment. Since they waited so long I filed a renewed motion for Default Judgment and noted that Defendants failed to reply in a timely manner. Was I right to do that?

Customer :

Did you get my second question?

Roger :

Sorry, I lost my connection for a moment.

Roger :

There's nothing wrong with you filing another request for default, but it's not likely that it would be granted UNLESS the defendant was given a deadline within which to file a motion and it was not done by that date.

Customer :

But the court has used deadlines against Plaintiffs(me) even though they never sat a deadline date. After about 45 days they claimed that I did not answer Defendants motion for summary Judgment. But Plaintiffs had already filed a motion for Default Judgment which stated that Defendants failed to answer after 36 days.

Roger :

There are rules of procedure that govern the RESPONSE time to any motion filed. Usually, it's 10-15 days from the date the motion is filed.

Roger :

But, there are usually no deadlines for filing motions UNLESS there's a scheduling order in place.

Roger :

If you filed a second motion for default judgment and the defendants didn't respond on time, the judge could refuse to accept its late filing, but that's unusual UNLESS there is a showing of extreme prejudice to the other side - - which often isn't there.

Customer :

The reason I did not answer Defendants Motion for Summary Judgment is because I had already filed that Defendants had failed to answer after 36 days. But after about 45 days the court claimed that I had not answered Defendants Motion for Summary Judgment, therefore the court granted Defendants Summary Judgment. Who is right? And should I file a motion to set aside the Summary Judgment and then resubmit my reasons and add new reasons?

Roger :

The judge was within his right to grant the motion for summary judgment if it wasn't responded to by you. The fact that the defendants had not responded to your motion isn't legally a reason not to respond to their motion. But, had you called your motion for default up for hearing BEFORE the motion for summary judgment, you may have won for the same reason that the defendants prevailed on the motion for summary judgment - - because the other party didn't respond.

Roger :

You've got a bit of a procedural mess because of the filings and hearing dates associated therewith.

Roger :

However, its usually up to each party to request that the matters be set for hearing - - and not the court.

Roger :

Thus, the lawyer for the defendants used a slick move and got his motion set for hearing before you set your motion for default and won because of your failure to answer, thereby making your motion moot.

Roger :

The only thing you could do now is file a motion to reconsider, appeal the granting of the motion for summary judgment or ask that the judgment be set aside.

Roger :

All of these are tough avenues to pursue because there's a judgment in place already, and you have to be able to prove to the court that it was granted in error.

Customer :

What do you mean when you say my motion should have been set for hearing before the defendant's Summary Judgment was set for hearing? I filed my Default Judgment long before the Defendants filed for Summary Judgment.

Roger :

The date the motion was filed has nothing to do with when the motion is heard.

Roger :

Once a motion is filed, the filing party must contact the court administrator and set the matter for hearing, issue a notice of hearing to the other side and show up for court to argue the motion.

Roger :

So, if you filed the motion but never set it for hearing, then the court would not ever hear the motion.

Customer :

Defendants never did this either.

Customer :

For their Summary Judgment.

Customer :

The court only said that Plaintiffs did not send in written answer to Summary Judgment.

Roger :

Obviously, I haven't seen the file and the notices, but IF the defendants didn't set the matter for hearing, then you may have grounds to appeal based on improper notice, etc.

Roger :

However, that's going to require a determination of exactly what happened procedurally, and then you could argue any defects or improper procedural issues - - but you're probably going to need a local lawyer to review and help because of the fact-specific situation.

Customer :

How much time do I have to give an answer to the courts granting Defendants Summary Judgment? I must see if I have time to find a lawyer. I have had trouble in the past trying to find a lawyer for some reason.

Roger :

Generally, you only have 30 days from the date the judgment is FILED to appeal.

Customer :

This case is in the Federal Courts, Western District of Arkansas. Should I appeal now to the 8th circuit court of Appeals or file a motion in the Federal court to reconsider, set aside judgment, or etc.?

Roger :

Ok. Here's the federal rule: http://www.law.cornell.edu/rules/frap/rule_4

Roger :

If you file an appeal, it would be to the 8th circuit.

Roger :

If you file a motion to reconsider/set aside, it would be with the same trial court you're in now.

Customer :

Which would you suggest that I file with? If I file with 8th court of Appeals I would have to file a notice of Appeals within 10 days I think or do I get 30 days to file Notice of Appeal? Also the Defendants claim they were improperly served and therefore they did not have to answer my original suit. My attorney that used to represent me sent my original suit to "The Corporation Co. C/O the Defendant(name of Mortgage Co.) What to do if Plaintiff's attorney conspired with Defendants by serving defendants at an address that defendants can use to say defendants were not properly served? I was having trust problems with my past attorney.Defendants listed with The Secretary of State's Office in Arkansas, that "The Corporation Co." in Little Rock, Ar., was the proper server address. But then when my attorney sent the original suit to this address, Defendants now claim that they were not properly served at this address. This appears like the Defendants used this address of service as a way to plead improper service. If so is this not the perpetration of fraud on the court?

Customer :

One last question. Defendants also claimed in their Summary Judgment pleadings that Plaintiffs waited to late to re-open case, so they claimed statue of limitations etc. But the court did not give me a deadline to file to reopen my case. But since Defendants did not answer the original suit I did not think that I had to give a reason why it took so long for me to file to reopen my case. But the reason it took me so long to file to reopen my case is because the court never set a firm deadline, I could not find a lawyer and beside all that I was being harassed on the phone by people who I believed worked for the Defendants and harassed by strangers who would walk up to me and warn me to not pursue this suit in court. I reported these threats to the police. The court wanted to know why I delayed reopening my case. I could not find a lawyer so it took me a long time to get the courage to file a reopening of my own case. Could I use these reason as a defense against Defendant's use of statue of limitations? The other possible defense is when I pleaded that Defendant's did not file for Summary Judgment on time, which would make their statue of limitations pleading mute. Thank you for your time, Sir.

Customer :

When I filed for Default Judgment and pleaded that Defendants failed to answer , did my failure to answer pleadings against Defendant include or imply Res Judica against Defendants also? Remember the court had already declared that Defendants failed to answer in their earlier "Notice of Default" against proceeding against Defendants.

Roger, Attorney
Category: Business Law
Satisfied Customers: 26690
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 10 other Business Law Specialists are ready to help you
Expert:  Roger replied 11 months ago.

The appeal is likely the best shot because either of the other two options would mean you're before the same judge - - and will likely get the same result. Also, appeals courts don't like motions for summary judgment, so that could help as well.

 

Under rule 4, you have 30 days to file a notice of appeal.

 

I'm not sure about the shell game with the address, but at this point, that's not a big issue since the summary judgment has been granted. The main objective would be to get the judgment overturned and let you go back to litigating your claim.

 

Expert:  Roger replied 11 months ago.

Well, the judge granted your motion to re-open the case, so their argument on that is really moot at this point. So, it doesn't appear that the statute of limitations claim would come into play.

 

 

 

 

Expert:  Roger replied 11 months ago.
Sure, you can use these reasons in your argument. Also, you can argue that they should have brought up the statute of limitations issue when you filed the motion to reopen.
Customer: replied 11 months ago.


I need to be clear on the next question. Is the statue of limitations bared by Res Judicata just because Defendants filed an improper motion which failed to block the reopening of Plaintiff's case? Res Judicata should also block Defendants similar Summary Judgment pleadings right and the court should have taken note of this?

Expert:  Roger replied 11 months ago.
The statute of limitations isn't "barred" by anything - - it's the time period in which one can file suit. Res judicata is a claim that one makes IF a claim has already been heard and adjudicated in court - - in that case, the matter can't be re-tried again.

Res judicata could make the summary judgment motion improper if the matter at issue has already been decided in court.
Customer: replied 11 months ago.

In the Appeals Court, I don't have to make pleadings of how the Defendants address shell game was used to avoid being served and to perpetrate a fraud on both the Plaintiffs and the court? I say court, but this Judge and my past attorney may have been aware of this shell game and played along with Defendants. If the court was aware of this shell game, and played along, it may explain why the court did not follow proper procedure and grant Default Judgment in favor of Plaintiff. Regardless of the shell game, the proper procedure of the court should have been to grant Default Judgment in favor of Plaintiffs,


and later Defendants could make pleadings to overturn Default Judgment if they chose to right?

Expert:  Roger replied 11 months ago.
The defendants could have appealed the granting of the default judgment, or they could have filed a motion to reconsider or to set aside the judgment.
Customer: replied 11 months ago.

Would you say that as a matter of proper court procedure and/or court hearing, the court should have granted Plaintiff's Default Judgment before court heard other pleadings from Defendants?

Expert:  Roger replied 11 months ago.
Not necessarily. Motions don't have to be heard as they are filed.
Customer: replied 11 months ago.

But you remember, neither Plaintiff nor Defendants set our Motions to be heard. The reason I filed motion for Default Judgment is because the court noted that the court may dismiss my case if I did not make a motion for Default. The court wrote in its "Notice of Default" that Plaintiffs(me) may get case dismissed for failure to prosecute. The court also noted that Defendants failed to answer. The shell game address idea from Defendants was not yet before the court. After Plaintiffs filed for Default Judgment in 2003, the court five days later gave an order to stay case until Bankruptcy case was over. The Defendants (Mortgage Co.) and Plaintiffs were in a dispute over some policy issues and whether or not payments were current or not which led to Plaintiffs filing a suit against Defendants. Plaintiffs filed an Injunction suit so that the policy issued and etc. could be heard but the Judge did not answer in time so Plaintiffs had to file for Bankruptcy just to stop Defendants. Before the Judge issued a "stay", in present case( not Bankruptcy case), the Judge asked Plaintiff if Plaintiff wanted to proceed with suit (the present suit). Plaintiff said yes. But then the Judge issued a "stay" anyway. In 2006 Bankruptcy case was over but due to harassment and a hard time finding an attorney, Plaintiff did not file to reopen case until 6 years later. But it appears that Plaintiffs has gotten pass the Statue of limitations argument since Defendants failed to stop reopening case. All this could have been avoided if the court had granted Plaintiffs Default Judgment, then Defendants could have made pleadings to set aside or otherwise dismiss Default Judgment. Am I reasoning right?

Expert:  Roger replied 11 months ago.
This could have been the way things went down, but it's obviously not. Also, I can't say that one procedure was correct over the other because much of that depends on the local court rules about how matters are processed, how cases are set for hearing, etc.

You have the right to claim that the court erred in its actions, but it would ultimately be up to an appeals court as to who was correct.
Customer: replied 11 months ago.

I am looking for a lawyer but just in case I have to file myself I have another question. If I file Notice of Appeal to 8th circuit, do I then file my pleadings at the Federal Court or do send my pleadings directly to the clerks office at the Appeals court?

Expert:  Roger replied 11 months ago.
The trial court clerk's office will send the entire court record to the appeals court.
Customer: replied 10 months ago.

When I began to plead my Appeal's case do I file my Appeal pleadings directly and by mail to the Appeals clerk's office? Also will I have to travel to the Appeals court in St. Louis, Mo. for any reason?

Expert:  Roger replied 10 months ago.

Your notice of appeal would be filed with the trial court, and it is transferred from there to the appeals court.

 

You can speak to the clerk about how they do it in your area.

Customer: replied 10 months ago.

Will the Appeal court Judges act on things they know are right or wrong in this case or do I have to point out every thing that is right or wrong in this case. I say this because I am not an attorney and I may miss some points to argue that are in my favor. For example, if I don't mention that the Federal court should have taken note of Res Judicata when court allowed Defendants to replead the same pleading that failed to stop Plaintiff's motion to reopen case, will the Appeals court on its own assert that Federal court erred in not taking due note of said Res Judicata? Of course I might not have to worry about this if I am able to find me a lawyer.

Expert:  Roger replied 10 months ago.
Hi George -

You would have to make every error or every issue that you want reviewed a part of your argument. If you don't raise the issue to the court in your brief, it will not be reviewed.
Customer: replied 10 months ago.

Can I make additional arguments to respond to Defendant's Summary Judgment pleadings? As you know I did not think that I had to answer and did not answer the pleadings of Defendant's Summary Judgment pleadings in the Federal court because both the court and Plaintiff(me) had already stated that Defendants had failed to answer. You know Roger there was another attorney who reviewed some of my case in June, 2013 and this attorney said that the court procedure was a mess and that the court did not follow the Fed. rules of civil Procedure.

Expert:  Roger replied 10 months ago.
You can't really "respond" to the summary judgment argument because the appeal would be limited to the record (documents filed with the trial court). Thus, you can't make arguments in response to the MSJ.

You can argue that the court erred in hearing the MSJ before your default motion, but you can't get into the merits of the MSJ argument since no response was filed.
Customer: replied 10 months ago.

In addition to what you just responded with, I can also use Res Judicata, Estoppel and etc. as an argument against the Summary Judgment since Defendants repleaded the same argument that failed against Plaintiff's motion to reopen?

Expert:  Roger replied 10 months ago.
You can argue these things in terms of claiming that the court erred in granting the motion for summary judgment.
Customer: replied 10 months ago.

Today I tried one lawyer, and he do not like coming in late to clean up things that went wrong earlier. And he said he did not like the Judge, I guess because he thinks the Judge is unfair. Well, I am waiting on two more lawyers to see what they say. If I can't find a lawyer, you agree that I should file the appeal myself?

Expert:  Roger replied 10 months ago.
You don't have much choice. If you don't appeal with or without an attorney, you will lose your ability to appeal.
Customer: replied 10 months ago.

The court in its order to reopen case advised the Defendants: "Upon the
reopening of case, the arguments set forth in Defendant's response will be addressed when presented by an appropriate motion." The Defendants waited 36 days to give an untimely Summary Judgment answer.Did the Plaintiff(me) not answer Defendant's Summary Judgment when Plaintiff waited 20 days for Defendants to answer the court's reopening order then filed another Default Judgment response because Defendants had not answered with an appropriate and timely Summary Judgment motion? It seems to me that I had already answered Defendants Summary Judgment by noting in my Default Judgment motion that Defendants had failed to answer courts order in a timely manner.

Expert:  Roger replied 10 months ago.
That wouldn't likely be considered a response to the motion for summary judgment. You'd have to file a separate response.
Customer: replied 10 months ago.

Is it not a perpetration of fraud on the court if Defendants list the "Corporation Company" with the Arkansas Secretary of States Office, as their registered agent of service in Arkansas but then claim that they were not properly served because they required restricted service to be properly served?

Expert:  Roger replied 10 months ago.
I can't say that this is fraud, but the registered agent for process would be the one who could be served to properly perfect service on the company.

It may be that you could raise this issue in your appeal and claim that as a reversable error to accept the defendant's claim given that it was served per the registered agent.
Customer: replied 10 months ago.


Would it also be reversible error when the court claimed in its Order that the Plaintiff filed an "instant" motion(for the first time)for Default on June 28, 2013, (implying that Plaintiff had filed no other Default motion), because the court failed to mention that Plaintiff had filed its first motion for Default motion on May 23, 2003. So the motion Plaintiff filed again on June 28, 2013 was not an "instant"(for the first time) motion but a renewed motion for Default Judgment.

Expert:  Roger replied 10 months ago.
I don't know whether this would be reversible error or not. It would depend on whether the court considers this an error, and if so, whether the error raises to the level of being grounds for reversal. That's something that the appeals court would have to decide.
Customer: replied 10 months ago.


I see. But it is interesting that when the court gave a brief, in his Order, of the things Plaintiff did and filed up to the present time that the court left that Default Judgment filing(2003) by Plaintiff out of the history. It would have been a positive thing in favor of Plaintiff if court had admitted that Plaintiff filed a motion for Default Judgment back in 2003 and the court did not respond to it. Instead the court claimed in its Order and brief, that Plaintiff filed Default motion only on June 28, 2013.

Expert:  Roger replied 10 months ago.
It may be that the court considered your initial motion to be abandoned given the time between the motions, or it may be because you filed a second motion for default, which would likely supersede the first one.

These issues are things that an appeals court could review.
Customer: replied 10 months ago.


When I find an attorney should I review with him the things that I believe was error by the court or should I leave it for my attorney to come to his own conclusions without my input?

Expert:  Roger replied 10 months ago.
Hi George -

You should discuss what you believe to be errors and let your attorney investigate and develop those issues. It's much easier if a client assists in things like this.
Customer: replied 10 months ago.

Just finished talking with attorney and he had a problem with three things: 1) Statue of limitations, 2) I did not give answer to Summary Judgment pleadings by Defendants, and 3) He wanted to know if I listed my Federal court suit against Defendants with the Bankruptcy court when I first filed Bankruptcy in 2002. I think my Bankruptcy attorney listed my Federal suit with the Bankruptcy court because I have an Order from the Bankruptcy Judge which allowed me to continue my Federal case during my Bankruptcy proceedings. My Bankruptcy attorney was seeking a stay in the Bankruptcy proceeding so that I could pursue my suit against Defendants in Federal court. Defendants were also the Plaintiffs against me in Bankruptcy court. So the attorney that I just spoke with don't think I have a right to pursue my Federal suit if my Bankruptcy attorney did not list my Federal suit against Defendant with the Bankruptcy court. I guess I need to get my Bankruptcy file and see if my Federal suit was listed with Bankruptcy court. I assumed that my Federal suit against Defendant was listed with Bankruptcy court when the Bankruptcy Judge said in its Order that the automatic "stay" did not apply to me, after my Bankruptcy attorney had made a motion for a stay in Bankruptcy court. So that was discouraging news from the attorney I just spoke with. You still think I should file an appeal myself if I can't find an attorney?

Expert:  Roger replied 10 months ago.

Hi George -

 

I can't tell you definitively whether or not to file the appeal and I certainly can't say whether you'd be successful. My only comment was that if you don't appeal, then you're certain not to win.

 

In that regard, your only choices are to proceed with or without an attorney or to forget it. I can't tell you what to do, but those are your choices.

Customer: replied 10 months ago.

Hey Roger. More questions. When I began my pleadings in the Appeals court can I use newly discovered evidence in my pleadings? Also can that newly discovered evidence be used against the statue of limitations?

Expert:  Roger replied 10 months ago.
Hi George -

We're supposed to start a new Q&A, but since you've made a post, I'll be glad to respond, but can you make sure to rate this new question so I can get credit for assisting? Thanks.

On appeal, you are limited to the record only. So, no newly discovered evidence can be presented on appeal.

The new evidence does not toll/suspend the statute of limitations, but it could be a basis to have the judgment set aside. You would have to file a motion to set aside the judgment based on this new evidence -- but it would be filed with the trial court - - not the appeals court.
Roger, Attorney
Category: Business Law
Satisfied Customers: 26690
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 10 other Business Law Specialists are ready to help you
Customer: replied 10 months ago.

It has been more than 10 days since the Judge granted Defendants Summary Judgment. You mean it is not to late to plead for the court to set aside the Judgment based on newly discovered evidence? If I did make a motion to set aside Judgment in Fed. Court, what would happen to my chance to appeal the original Judgment within 30 days with the Appeals court?

Customer: replied 10 months ago.


Did you get my last question? Here it is again. It has been more than 10 days since the Judge granted Defendants Summary Judgment. Based on new evidence it is still not to late to file a motion to set aside the Summary Judgment? If I did make a motion to set aside Summary Judgment in Fed. Court, what would happen to my chance to appeal the Summary Judgment in the Appeals Court within 30 days after the Summary Judgment was granted to Defendants?

Expert:  Roger replied 10 months ago.
Here's a link to the rule related to setting aside a judgment: http://www.law.cornell.edu/rules/frcp/rule_60

As you will see, the rule says a motion to set aside must be filed within a reasonable time (usually 6 months) of the judgment. Thus, you'd have time still. If the judge denied that motion, you could appeal that ruling to the court of appeals.
Customer: replied 10 months ago.

OK. Just came in from out of town. Can I add Res Judicata to my newly discovered evidence pleadings in my motion to set aside? Do I have the same amount of time if I filed a motion to reconsider instead of set aside?

Expert:  Roger replied 10 months ago.
No, a motion to reconsider usually should be filed within 30 days. A motion to set aside has a longer period.

A motion to set aside must be based on one of the factors in Rule 60 - - res judicata may be something that can be raised.
Customer: replied 10 months ago.

Looks like motion to set aside should be the motion to file.

Expert:  Roger replied 10 months ago.
That's probably the better option.
Customer: replied 10 months ago.

Back in 2003 when Defendants had failed to answer, the court warned me to file for Default or my case may be dismissed for failure to prosecute. Well I did file for Default. But 5 days after I filed for Default against Defendants, the court ordered a "stay" until after my Bankruptcy case against Defendants. In the Stay order the court said I may move to reopen my suit against Defendant after the Bankruptcy. Defendants said that I waited to long after Bankruptcy(6yrs.) to reopen case and it should be blocked by the statue of limitations. In my response I said one reason that I did not reopen was because there were still some issues in Bankruptcy that needed to be settled. I also used Rule 60 for relief from normal court procedure(statue of limitations), because of the confusion the "stay" order caused and because there was no definite date set by court to reopen. The newly discovered evidence support my original claim that there are still some unsettled issues in my Bankruptcy case, which may mean reopening Bankruptcy case just to settle the issues. I have discovered Bankruptcy evidence which shows that I paid on mortgage principal. But Defendants claim I paid on mortgage interest and not on principal. Also Defendants used Bankruptcy papers that showed an "X" mark in a column which meant that I had not filed a suit against Defendants before Bankruptcy case. But I discovered new evidence that contradicts the false evidence that I did not list the fact that I had filed a suit against Defendants before Bankruptcy. That new evidence is a motion by my Bankruptcy Attorney which states that I had filed a suit against Defendants prior to filing Bankruptcy and that I requested a relief from stay in Bankruptcy case so that I may pursue suit against Defendant in Fed court. Then I found more new evidence when I found that after my Bankruptcy attorney made the Bankruptcy court aware of my Fed. suit against Defendant, that the Bankruptcy court then gave an order that the "stay" did not apply to me, and that I could proceed with my Fed. suit against Defendant. I also discovered new evidence that a Bankruptcy Doc. was listed as "Deficient" and no longer on the Bankruptcy court records. This "Deficient" Doc. is the Doc. that Defendants used in Fed. court to show that I had not listed my Fed. suit against Defendant
in Bank. court. 11 USC 1322(b)6 states that the Bankruptcy Trustee has to approve of any interest claim paid as opposed to principal paid on a mortgage in Bankruptcy. All the papers that I have found shows that the Trustee agreed that I paid principal and not interest on said mortgage. This confusion is why I used Rule 60, for relief so that I may reopen my case. Will I have to reopen my Bankruptcy case to settle these issues? If I do have to reopen Bankruptcy case to further settle said issues, then such a state of affairs would further support my use of Rule 60 and further support my claim against statue of limitations, right?

Expert:  Roger replied 10 months ago.

I can't say for sure whether or not you'd have to reopen your bankruptcy. It would take someone looking at the docket and files for these cases in order to determine what to do.

 

Hopefully, you can track down a local attorney who can help you with this as I don't feel that I can provide accurate information on the issues raised in your last post without being on the ground and looking at these files, etc.

Customer: replied 10 months ago.

If I use this new information against Defendants in motion to set aside then Defendants would have the burden of disproving it . Maybe When they try to disprove it they will reveal the way they really came to the conclusion that I paid interest on said mortgage instead of principal. I drove to the Bankruptcy court and paid to get my whole file, a few days ago. They won't be able to challenge the Bankruptcy file which shows that I paid principal on said mortgage unless they reopen case so they can question the trustee on whether I paid on interest or principal. The point is that this newly discovered evidence raises questions for a Summary Judgment. Since the trustee did not agree to the Plaintiff(me), paying interest on mortgage, the only thing that I can think that Defendants may say is that they got with my Bankruptcy attorney and they negotiated a "voluntary" agreement for me to pay interest instead of principal on said mortgage. My Bankruptcy attorney would have had to sign(print) my name on such an agreement which showed my approval to pay interest on said mortgage even without my actual approval. There is a hidden and ambiguous way to do this. I did find a Doc. called Executory contract which ask if the Debtor(me) assume or reject the following contract: for this answer my attorney typed in "None". Then the relevant part of the contract reads as follows: "Post petition claims(interest?) provided for under 11 u.s.c. 1305 and 1322 (b) (6) may be added to the plan by debtor(me) and treated as though they were claims that arose before the commencement of the case." Then my attorney signed(typed) in my name to show my "supposed" approval. But this approval contradicts the first part of the Doc. that ask if the Debtor(me) assume or reject this contract and the answer was "NONE" or no. Seems to me that if I raise all these issues then Summary Judgment granted to Defendants is improper and should be set aside.

Expert:  Roger replied 10 months ago.
As long as you can prove that the newly discovered evidence was not available at the time the judgment was entered, then you certainly can make these arguments in a motion to set aside. It will be up to the judge to determine the merits an issue a decision.
Customer: replied 10 months ago.

You say I can use the new evidence that I found as long as I can prove that the newly discovered evidence was not available at the time the Judgment was entered. So the Defendants could make the argument that this new evidence that I found was already available in the court records and I did not find it and use it right? Maybe the Judge will consider it as new evidence anyway just like the Judge considered the evidence that Defendants presented even after Defendants had failed to answer. But you seem to say that if this evidence was in the Bankruptcy records and I as a Pro Se, Plaintiff never found it or understood it until after the Judgment then the merits would be weak for newly discovered evidence?

Expert:  Roger replied 10 months ago.
Yes, you have to be able to prove that the evidence wasn't available in order to make a strong case.
Customer: replied 10 months ago.

Based on what I have told you so far then do you think I should still make a motion to set aside based on new evidence?

Expert:  Roger replied 10 months ago.
I can't say what you should do as that's up to you.

However, there may not be any other options to try and change the course of this case.
Customer: replied 10 months ago.

It seems like this court is interested in getting more information about what really happened. This may explain why they did not grant my Default motion as they first requested that I file. If I did file based on new evidence the court would find out more about the truth of what really happened. The court ignored the rules of civil procedure to get an answer from Defendant and maybe they would ignore civil procedure to get an answer from me, which shows what really happened.

Expert:  Roger replied 10 months ago.
All you can do is make your motion and argue your position.
Customer: replied 10 months ago.


If this motion to set aside failed it would at least give me more time to file an Appeal as I had planned to do? Also, the error of the court that I had plan to plead in the Appeals court, should also plead these errors in my motion to set aside?

Expert:  Roger replied 10 months ago.
You could appeal the denial of the motion to set aside the judgment, but that's likely it. If you want to appeal the judgment itself, you'd have to do that within 30 days of the judgment.
Customer: replied 10 months ago.

In that case it seems like the strongest way would be to Appeal.

Expert:  Roger replied 10 months ago.
It just depends on how you want to approach it.

The appeal is limited to the record, so nothing new could be brought up, which is the advantage of the motion to set aside the judgment. But, if the evidence was discoverable at the time of the judgment, then it may be a moot point.
Customer: replied 10 months ago.

If the appeals court agreed with my pleadings about the errors the Fed. court made and send my case back to the Fed. court, could I then be able to plead the additional evidence I found in Bankruptcy court?

Expert:  Roger replied 10 months ago.
It's possible. It just depends on what the appeals court decides, and it you were to win, what direction it gives to the trial court in terms of resuming the litigation.
Customer: replied 10 months ago.

I will make the argument that the Defendant's Summary Judgment was an improper motion because it was heard before hearing my Default motion that I filed in 2003. Likewise, the Defendant's Motion for Summary Judgment was heard before the court heard my Default motion that I filed again in 2013 with a note to incorporate my original filed Default motion of 2003. Could I also plead in the Appeals court that as the Plaintiff, I prejudiced by having to answer Defendant's (improper)Motion for Summary Judgment without first considering the Fed. court's ruling on my Default Judgment motion?

Expert:  Roger replied 10 months ago.
You can argue that, but I can't say whether it will do any good because USUALLY, it's up to the parties to bring the motions before the court for hearing.
Customer: replied 10 months ago.

But you recall that neither the Plaintiff(me) nor the Defendant gave notice or brought their said motions before the Fed. court for a hearing.
But still the court heard the Defendant's Summary Judgment motion first.

Expert:  Roger replied 10 months ago.
Yes, but there was never a response to the summary judgment motion, which would have allowed the other party to present an order without a hearing.
Customer: replied 10 months ago.

When you say hearing do you mean actually going into court before the Judge?

Expert:  Roger replied 10 months ago.
Yes.
Customer: replied 10 months ago.


How do you set a hearing? Also, when I make pleadings with the Appeals court do I support my pleadings by sending in the past motions or exhibits that are already on file or can I just refer to the record?

Expert:  Roger replied 10 months ago.
You contact the court administrator and ask for a date to have a hearing hard.

You can refer to the record as it will be copied and sent to the appeals court for the appeal.
Customer: replied 10 months ago.

After Defendants filed an improper motion in response to Plaintiff's motion to Re-open, Defendant's motion failed. Then the court gave what I think was an improper order allowing Defendants to refile the same argument that failed in Defendant's re-opening response.The relevant part of the court's improper order reads as follows: "... following the re-opening, the arguments set forth in Defendant's response will be addressed when presented by an appropriate motion." Can I the (Plaintiff), argue that the court gave an improper order that unfairly favored Defendant and unfairly affected the Plaintiff by prejudicing, and precluding Plaintiff's right to argue Res Judicata, Estoppel and etc.

Expert:  Roger replied 10 months ago.
Sure, you can make any argument that you believe will advance your position.
Customer: replied 10 months ago.

In my Appellate brief I am suppose to file 11 things. The ones that I don't understand are: 1.A corporate disclosure statement, 2. A table of authorities, 3. Jurisdictional statement, 4. A certificate of compliance. Do you know these four?

Expert:  Roger replied 10 months ago.
A corporate disclosure statement is a document a corporate party must file to state whether the company is public or private. You likely could find a sample online.

A table of authorities is the listing of your citations in your brief.

I'm not sure about the other two.
Customer: replied 10 months ago.

Sense I am not a corporation, do I have to file a corporation disclosure statement?

Expert:  Roger replied 10 months ago.
Usually, only corps have to file this.
Customer: replied 10 months ago.

I can start typing up now what I think my case will be and then make necessary changes when the Appeals court send out the guidelines?

Expert:  Roger replied 10 months ago.
Yes, you can do that.
Customer: replied 10 months ago.

On my appeal, I will motion to appeal from the Summary Judgment granted to Defendants. Do I also appeal the Order which denied Plaintiff's(me) Default Judgment?

Expert:  Roger replied 10 months ago.

You can appeal both orders. However, I'm not sure if you'd have to do two appeals or if you could consolidate them into one.

 

That would be something you'd have to ask the appeals court or discuss this with your local lawyer.

Customer: replied 10 months ago.


I have a sample of what the Appeals Court will ask for. One thing that I see the Court will ask for is a list of the "Undisputed facts." Is it ok for me to list what I know to be the "Undisputed facts" for the Appeals Court, even if I did not list them in my pleadings and motion for Default Judgment in the lower court?

Expert:  Roger replied 10 months ago.
The undisputed facts generally refer to what was presented at the trial court as the appeal is limited to the record.
Customer: replied 10 months ago.

You mean I can't list the "Undisputed facts" even if they are already in the court records?

Expert:  Roger replied 10 months ago.
You can use the information in the trial record, but if it's not in the court file or trial transcripts, etc., you can't.
Customer: replied 10 months ago.

What happens if I or the Defendants use evidence that is not on the court record?

Expert:  Roger replied 10 months ago.
It won't be considered and will likely be stricken.
Customer: replied 10 months ago.

Will the appeals court strike information not on record on its and without a motion? Can I and the Defendant ask or motion the appeals court to
strike off the record information?

Expert:  Roger replied 10 months ago.
Both are possible.
Customer: replied 10 months ago.

The Defendants never answered my original complaint and included in said complaint is a description of the Defendant's registered address and agent of service which they listed with the Arkansas Secretary of States Office. The said original complaint was served at Defendant's above said registered agent and address, in Jan., 2003. Then I served Defendants again with the original complaint on July 9, 2003 at their California address, during the "Stay", so that my case for "service" would be stronger. The "Stay" began on May 27th, 2003. I understand that "service" can be perfected during a "Stay" just like clerical errors. Based on this evidence on record will it be a good legal argument to plead that Defendant's Summary Judgment motion was improper since Defendants failed to answer said original complaint at either their said Arkansas address nor at their said California address?

Expert:  Roger replied 10 months ago.
I'm sorry, but I can't say what is a good legal argument to make, and I can't say what yo should do as I'm not aware of all the facts, and giving opinions on things like this is really not something the terms of service allow us to do.

I can certainly say you can make that argument, but I can't say whether it's the best approach, a good approach, etc.
Customer: replied 10 months ago.

If a motion is improper do I have to respond to it other than pleading later that the motion was improper and give the reasons?

Expert:  Roger replied 10 months ago.
Yes, a motion must be responded. If it isn't, the court can consider that the non-responding party has no objection to the relief requested in the motion.
Customer: replied 10 months ago.

Improper motions in the lower court that are not responded to can be overcome in Appeals court with good reason?

Expert:  Roger replied 10 months ago.
It would be difficult because you didn't respond to the motion at the trial level, and since the appeal is limited to the court record, there would be nothing in the appeal in response to the motion filed.
Customer: replied 10 months ago.

What about the law of equity and Res Judicata and etc. which applies in this case? I say the law of equity because before I failed to answer said motion, the Defendants had already failed long ago to answer my original complaint and my original Default motion.

Expert:  Roger replied 9 months ago.

You can argue that, but it may be that since you didn't respond to the motion filed with this argument, that you are in an uphill climb to make it now.

Customer: replied 9 months ago.

In my motion to reopen my case I referred to the fact that there were still issues that were unresolved in my Bankruptcy case. Can I explain what I meant by unresolved issues to the Appeals court? I did not explain the said issues in the lower court because I was made to believe that there was no more issues of law before the Federal court based on the Federal court issuing it's "Notice of Default" for failure to answer against Defendants.

Expert:  Roger replied 9 months ago.
As I've said before, you can say or do anything you wish in order to make your point and issues clear to the judge, but I just can't promise how the judge will interpret or accept your positions.
Customer: replied 9 months ago.

Defendants used information against me in the Federal court that they obtained from Bankruptcy court that was defective, deficient and false information that has now been removed from the files of the Bankruptcy court. I don't know when it was removed but for the sake of argument lets say it was removed sometime after the Court's order granting Summary Judgment. If so this means that this information was not available to me until after the Summary Judgment. I suppose that I could argue this in Federal court to set aside the Summary Judgment but could I argue this on Appeal?

Expert:  Roger replied 9 months ago.
Like I said earlier, you can argue anything you like, but I can't say how affective any argument would be.
Customer: replied 9 months ago.


What happens if I appeal the Court's order that denied my Default Judgment and presents overwhelming evidence on record that proves Defendants were properly served but they never answered my original complaint? If the Appeals court agrees with my appeal of Default Judgment order, then how would that agreement affect the Summary Judgment order, would it make the Summary Judgment Order for Defendants moot?

Expert:  Roger replied 9 months ago.
I don't know what the court would do with that. I've never seen something like that as an issue.
Customer: replied 9 months ago.


Little late in filing for Appeal so now I have to file motion for extension of time and give good or excusable cause for going pass 30 day limit. Well I was a little late because I did not count weekends and holidays or snow days in the 30 day limit to file appeal, so I thought I had more time. Also I needed that extra time to raise money for the appeal filing fee. Do these seem like good cause reasons for filing a motion for extension of time, pursuant to rule #4?


 

Expert:  Roger replied 9 months ago.
There's no specific rule on what good cause is - - it just depends on what the court thinks. But, miscalculating the deadline would be a tough sell, generally
Customer: replied 9 months ago.

How short can a motion be if its just a simple answer? Does a simple answer motion have to have a brief?

Expert:  Roger replied 9 months ago.
It can be as shot as a few paragraphs. Just enough to get the issues presented to the judge is adequate. Also, when, a motion is simple, you can put in the motion a request to be relieved of the requirement of a brief.
Customer: replied 9 months ago.

Does a Federal court in a state have any subject matter jurisdiction over issues in a Bankruptcy court of the same state?

Expert:  Roger replied 9 months ago.
The bankruptcy court is actually a division of the federal district court, so the district court has some authority over the bankruptcy court, but without doing some research, I could not tell you the extent of that authority.
Customer: replied 9 months ago.

I forgot to tell you and the Court that I could not answer the Defendant's motion for Summary Judgment because I was sick. I have hospital records which show that I was sick and immobile during the time I was suppose to answer Defendant's Summary Judgment motion. If I file a motion for the court to set aside the Summary Judgment based on lack of time to answer based on this illness, then my time would run out to file an appeal on what is already before the Court. So that my appeal time don't run out can I save time from having to file a motion to set aside Judgment for Defendants because I failed to answer, by filing a request with the Court to entertain its own action to set aside said Judgment based on the new evidence that I will file that shows that I was unable to respond to Defendants said motion because of said illness?

Expert:  Roger replied 9 months ago.
Hi - I'll post a response to you shortly.
Customer: replied 9 months ago.

I had filed for Default Judgment against Defendants because they never answered my original complaint. The Court in its "Notice of Default" had agreed that Defendants had failed to answer. The court never granted my Default motion. The Defendants claimed they were not served properly and then they filed for Summary Judgment. I did not answer Defendant's Summary Judgment motion, so the Court denied my Default motion and granted Defendant's Summary motion on October 28th, 2013. I waited for a while then I filed to appeal said Judgments on Dec. 9, 2013. My appeal was a little untimely so pursuant to appellate rule 4(a), I filed a motion for extension of time based on another military related illness. I said military related because I am a disabled Viet Nam veteran who because of military service, also have memory problems.Then last night I realized that I could not answer Defendant's motion for Summary Judgment because I was too sick and in too much pain to give a response to said Summary Judgment motion which the Court granted to Defendants. This is new evidence that the Court is and was not aware of which is reflected in my Hospital records.

Expert:  Roger replied 9 months ago.
If the court has not ruled on your motion, you can file a supplement to your original motion and raise this issue. If the judge has already ruled on the matter, you may have to file a motion to reconsider and ask the court to consider this information as additional grounds for good cause.
Customer: replied 9 months ago.

What would I call this motion or supplement? If the Court agrees what would happen to the appeal that I filed and paid the filing fee for?

Expert:  Roger replied 9 months ago.
I don't suppose there's a specific name, but it would be called something like "Supplement to Motion for Extension".

If you were successful in your motion, and the appeal was rendered unnecessary, you could withdraw it.
Customer: replied 9 months ago.

Well the Court has not yet ruled on my motion for extension of time. Should I call my motion a "Supplement to Motion for Extension of Time", even if my purpose is to get the Court to reconsider it's ruling and set said ruling aside?

Expert:  Roger replied 9 months ago.
It depends on what you're doing. I understood that you wanted to add this information to your motion to extend time. If you're wanting to do something else, you would supplement the other motion. You'll have to decide what to supplement based on your review of your documents.

Customer: replied 9 months ago.

Yes I do want to add this new information to show that I did not answer Defendant's Summary Judgment pleadings for good cause. The motion to extend time was originally because the 30 day time limit to file an appeal had expired.

Expert:  Roger replied 9 months ago.
Ok. You can supplement the motion with this information if the court has not yet ruled on it.
Customer: replied 9 months ago.

As a supplement to motion for extension of time will the Court consider this new information the same as if it was a motion to reconsider? No matter what I call this new information I just want the Court to be able to consider it so that maybe I will have a chance to answer Defendant's Summary Judgment.

Expert:  Roger replied 9 months ago.
No, the court will only consider the supplement as it relates to whatever document it is being submitted to supplement.
Customer: replied 9 months ago.

I just received the order by mail today from the Court that granted my motion to extend time by 14 days. I suppose I can now file a motion to reconsider based on new evidence of my illness which precluded me from answering Defendant's Summary Judgment motion as my Hospital records will show?

Expert:  Roger replied 9 months ago.
Well, that's good news that you got the extension. Also, you can file your motion to reconsider with the court and include these issues and arguments in your motion.
Customer: replied 8 months ago.

On Dec. 18, 2013, I filed with the lower court my motion to reconsider which included my hospital records that shows I was to ill to answer Defendant's Summary Judgment motion. While I wait for the lower court to rule on my motion to reconsider, the Appeals Court has sent me a letter asking for a Notice of Appearance. Also the Appeals Court asked for (1) Verification that any transcripts needed for the appeal have been ordered and that satisfactory arrangements have been made for payment, and (2), must file notice of method of appendix preparation selected for case, it is under Rule 30A. Can I file a motion with the Appeals Court for an extension of time for the limited purpose of allowing the lower Court to give an answer to my motion to reconsider?

Expert:  Roger replied 8 months ago.
Yes, you can file a motion for enlargement of time to provide these documents. You can contact the court clerk about how to do this. They usually will tell you to file a motion and order together, but you'll need to call to be sure what you need to do.
Customer: replied 8 months ago.

I know about a motion but what's an order? Also which court clerk to I ask, the lower court clerk or the Appeals Court clerk?

Expert:  Roger replied 8 months ago.
It's the oder granting your motion for time.

You would call the appeals court clerk.
Customer: replied 8 months ago.

Regardless of how the lower court rule on my motion to reconsider will my hospital records which are included with my motion to reconsider which I filed in the lower court, now be a part of the Appeals court record that the Appeals court will be able to consider in my Appeal? Also, if the lower court fail to grant my motion to reconsider do I then Appeal the lower court's denial of my motion to reconsider or would the appeal that is already before the Appeals Court be sufficient to take care of it?

Expert:  Roger replied 8 months ago.
No, it likely wouldn't be a part of the record for the pending appeal since it wasn't a part of the record when the appeal was taken.

You'd likely have to file a new appeal on this issue as it would not automatically be a part of your appeal.
Customer: replied 8 months ago.

So when the question comes up about why I did not answer Defendant's Summary Judgment motion, I can not tell the Appeals Court that I was precluded from answering because of my illness which is supported by my Hospital records?

Expert:  Roger replied 8 months ago.
I can't advise you on what to argue. You'd have to consult a local attorney to assist on issues like that.
Customer: replied 8 months ago.

What happens if I loose my appeal of the lower court's ruling on my Default Judgment and also loose my appeal of the lower court's ruling in favor of Defendant's Summary Judgment and then if the lower court does not grant my motion to reconsider what then happens to all the motions I lost if I appeal my Motion to reconsider and win?

Expert:  Roger replied 8 months ago.
I really can't say. I've never had a case with that type of dynamic. The appeals court would likely have to make a determination on this/address how this shakes out.
Customer: replied 8 months ago.

Can Res Judicata preclude any failed argument in my first two appeals in the Appeals Court from being used again in the lower court if I win my appeal for motion to reconsider and my case is remanded back to the lower court?

Expert:  Roger replied 8 months ago.
Res judicata means that an issue that has been tried cannot be re-tried again. So, any issue that has been determined by the court should not be available for re-argument.
Customer: replied 8 months ago.

If part of my arguments are successful and other parts are not would Res Judicata preclude the whole argument being used again or would it preclude just the failed parts?

Expert:  Roger replied 8 months ago.
There would be no need to re-argue any decision of the court - - good or bad for your position.
Customer: replied 8 months ago.

I guess that means if the Appeals court ignore my Res Judicata argument against Defendants Summary Judgment motion then I would have to appeal their decision?

Expert:  Roger replied 8 months ago.
If the appeals court ignores your res judicata argument, then it would be final unless you can get the US Supreme Court to accept an appeal - - which is unlikely.
Customer: replied 8 months ago.

On my motion to Reconsider based on my illness and hospital records the Defendants gave a pretty weak response. They were mainly pleading with the court not to overturn the sanctity of the Judgment. They tried to attack my hospital records but that attack was weak also. Should I give another response to Defendants answer to my first motion or just stay will what I have already pleaded in my motion to reconsider.

Customer: replied 8 months ago.

Did get my last question? I will give you a short version. I made a motion for an extension of time based on my illness. The court granted my motion. Defendants did not respond. Then I made a motion for the lower court to reconsider its Summary Judgment in favor of Defendants, based on my illness and hospital records. This time Defendants responded. Since Defendants were silent and did not respond to my motion for extension of time based on my illness can they be precluded by Estoppel by silence from answering my motion to reconsider based on my illness?

Expert:  Roger replied 8 months ago.
No, because this is a separate motion, they should be able to respond.
Customer: replied 8 months ago.

In my separate motion I included the same illness in my Motion for extension of time that I used in my motion to reconsider. Defendants never answered the first instance of my illness pleadings. Does this not show collateral estoppel and/or estoppel by silence?

Expert:  Roger replied 8 months ago.
No, it shouldn't. Not objecting to one motion doesn't preclude the party from objection to another - - even if the reason for the request is the same.
Customer: replied 8 months ago.

I think Defendants gave a weak response to my motion to reconsider. So I guess I don't need to file any further response to Defendants' response to my motion to reconsider?

Expert:  Roger replied 8 months ago.
I can't answer that as I haven't seen any of the paperwork. That would be something you'd have to determine.
Customer: replied 8 months ago.

What happened to you? My new Just answer attorney gives answers that don't make sense.

Expert:  Roger replied 8 months ago.
Hi George -

I'm sorry, but I didn't even know you posted another question. Unless you address a question specifically to me or some other expert, it can be picked up by anyone.

If you post a new question, just start it with "For Roger" and I'll get it.

Thanks!
Customer: replied 8 months ago.

For Roger. You know how in court when an issue is precluded against a defendant until the defendant speaks about it and opens the door so that the plaintiff then can further raise the issue. Well what if a court abuse its discretion and advises a defendant to resubmit an earlier failed argument thereby raising the issue of res judicata and collateral estoppel. On appeal I could both object and then raise the issue of res judicata and collateral estoppel because the court opened the door so to speak ?

Expert:  Roger replied 8 months ago.
I believe what you're referring to is when one party presents illegal or irrelevant evidence, then that party waives its right to object to further examination of that issue by the opposing party.

I don't believe that is a direct correlation to what's going on in your case. Also, if the objection wasn't made during the trial, it can't be made on appeal.
Customer: replied 8 months ago.

Are you saying that the court in this case did not make a reversible error?

Expert:  Roger replied 8 months ago.
No, I'm not saying that as there's no way I could make a judgment on something like based on the limited information I have.

All I'm saying is that the opening of "Pandora's Box" to allow in otherwise inadmissible evidence at a trial isn't the same as an issue of res judicata. One deals with admissibility of evidence and the other deals with the prohibition of re-litigating an issue that's already been determined by the court.

I can't opine as to whether or not reversible error occurred. That's for the appellate court to decide.
Customer: replied 8 months ago.

How do you prepare an appendix to send to appeals court with your brief?

Expert:  Roger replied 8 months ago.
There should be rules of appellate procedure that outline how this is done. I am currently traveling and don't have access to any database that may have such info.

However, you can likely search for your state's rules of appellate procedure and find the rule regarding briefs, including the appendix.

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