Author Topic: Litigation Ground Rules  (Read 19080 times)

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Litigation Ground Rules
« on: October 15, 2005 12:29:10 AM »
One of the most important concepts about suing your way to good credit is also the most obvious and at the same time the least mentioned - you have to have a prima facie case to sue over. If you don't even have a case to sue over    the Court may assess a fine against you for filing a frivolous action.

OK    some definitions:

"Prima Facie Case" - Latin for "First Look"    meaning taht there are some acts    documents    etc that show that the relevent elements of your case have been met.

"Elements of the Case" - these are the facts and the law that support your claim that you have been wronged and can sue. Think of them as a logical progression that should follow the following format:
1 - The Law says conduct X is prohibited.
2 - The Defendant is subject to this law.
3 - The Defendant knew or should have known the law.
4 - The defendant did the proscribed act.
5 - The proscribed act harmed me.
6 - The harm consists of certain losses I have sustained
7 - $XXXX will make up for that loss.
8 - This Court has Jurisdiction over this matter and is empowered to award me the damages claimed.

If any of these elements is missing (especially any of the first 5    but #6 should also be there) then you don't have a Prima Facie Case because you are missing some elements.

"Frivolous" means trivial or unimportant. Yes    it is subjective    and what the Judge may consider Frivolous you may consider of Earth-shaking import. Unfortunately    it is the Judge's opinion in this matter that counts.

OK    so they re-aged    or submitted false info to the CRA or were nasty and insulting on the phone. Here's what you need to do to build a case that will survive in Court:

1: DOCUMENT THE VIOLATION of LAW. He-said    She-said arguments are routinely decided against the one raising it    so don't. Any conversations you have should be memorialized in writing immediately afterwards    and a copy sent to the other side. let THEM have the burden of saying "That's not what we said and that's NOT what we agreed to"    because if they DON'T    right then and there    the Court will usually accept that what your memorialization said is what was said and agreed.

2. DOCUMENT the LAW. Sounds silly    but State Court judges may not have a copy of the US Code handy. Have a copy of the law handy.

3. TRY TO HANDLE THE MATTER OUTSIDE COURT. You should exhaust ALL non-judicial avenues of redress BEFORE you send an ITS letter. That's why I advise people    when disputing a TL    dispute it with the CRA until the CRA refuses to accept your dispute any more. That way    THEY stopped your attempt to solve the problem out of Court. Try a couple of times to settle the matter with the creditor. This does two things: first    it will create a great ITS letter showing that you tried on many occasions to reach a settlement    but were rebuffed at every turn and second it will provide a great way of showing the Judge that you tried to avoid suing.

4. DO YOUR PRE-SUIT HOMEWORK. I always try to find what state the defendant-to-be is domiciled (organized) in    and who their Statutory Agent in my State is. It also can ascertain the correct legal name of the defendant. Here in AZ    if they filed their Arizona Corporation Commission (ACC) reports I also have the name and address of senior Corporate Officers. I will try one last time to resolve the matter by addressing a letter straight to them. Sometimes the ACC report will list the officers' HOME addresses. Hot     now I KNOW they will get the letter. THIS letter is never accusatory or hostile - it literally pleads for help.

5. SEND THE ITS LETTER - and detail your reasons for getting to that point. Give a reasonable time to respond    but don't hold your breath waiting for a response. My experience is very few companies respond to anything that does not begin with the word "SUMMONS".

6. KEEP IT SIMPLE - For purposes of clarity I almost never use compound sentences in my letters    the summons or in my pleadings.

7. KEEP IT ORGANIZED - present your case in a logical sequence like what's above.

8. DON'T ASK THE COURT TO DO WHAT IT IS NOT ALLOWED TO DO. Small Claims Courts usually cannot order someone to do something (Specific Performance)    to award Punitive Damages or to award Pain and Suffering or other non-financial damages.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)