Hi - my name is XXXXX XXXXX I'm a litigation attorney here to assist you.
The odds of getting this reversed is not very good as it is really difficult to overturn a decision. However, in order to do this, you will need to file a response and point out the fact that the testimony provided in the affidavit and filed court documents is incorrect and provide your version of the facts.
You could also claim that the search was illegal.
So the proposed findings are actually pretty much the work of the defendant's lawyer?Not so much the judge?It sounds like the federal magistrate might be giving me another chance with the additional filing opportunity.Is that a correct interpretation? That would explain the continue of using the wrong address.I was surprised a federal magistrate would be so sloppy.
The defendant's lawyer can't even get the addresses and locations of my properties correct.also the fact that I have never read or signed the deposition for correctness. Should i make an affadavit to this fact or is it not important?Thank you and I would like to stay with you for advice until "the fat lady sings"it's over.Is that ok with you sir?Are the odds respectable for getting the proposed actions stopped if I start gathering affadavits?Last question.
So if none of the other witnesses were deposed by the opposing party their affadavits are inadmissable?
You can try to get this in, but if the other side objects, the judge is likely to exclude this.
I don't know of any court cases off hand from West Va. that deals with this exact issue. However, I can look into it and report back.
Here's the ONLY reported West Va. case dealing with a warrantless search procured by coercion or duress:
State Of West Virginia v. Robert Lee Craft, 165 W. Va. 741 (1980):
Whether a consent to a search is in fact "voluntary" or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances, and while knowledge of the constitutional right to refuse consent to search is one factor, such knowledge is not an essential prerequisite which must be proven by the government as the sine qua non of an effective consent. Where the State relies upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given.
Affidavits are not admissible at trial because the other party has no right to cross-examine the affidavit.
However, this person can testify live at trial about this issue.
You can appeal the summary judgment by filing a notice of appeal within 30 days of the entry of the order granting summary judgment.
Summary judgments are very difficult to win, and having one overturned on appeal is equally difficult.
Without reviewing all of the motions, arguments, facts, etc., I can't tell you how much of a chance you'll have on an appeal under the Castle doctrine, but I can't give you a percentage of chance.
The Castle Doctrine allows you to use reasonable force on your property. Thus, it appears that this statute would apply here: http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=55&art=7§ion=22
The court is not required to inform you of your appeal rights.
I'm not really aware of what goes on with customer service, including payment.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).