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Suing Your Creditors => Sample Pleadings => Topic started by: lisser on April 18, 2012 06:55:00 PM

Title: Notice of Appeal critique
Post by: lisser on April 18, 2012 06:55:00 PM
There is no standard form for a Notice of Appeal to the Circuit Court in my state so I've made my own.

Would anyone care to critique it?

COMMONWEALTH OF KENTUCKY
XXXXX DISTRICT COURT
DIVISION
CIVIL CASE NO. 11-C-XXXX

NOTICE OF APPEAL

April 18, 2012

Notice is given that Me, Defendant in the above mentioned proceeding, hereby appeal to the Circuit Court from the order of the District Court for Summary Judgment entered by this court on April 17, 2012.

The name of the appellee against whom this appeal is taken is Pond Scum JDB, plaintiff.

Respectfully submitted,
Me



____________________________
Me
1234 Overturn Drive
Winning, KY XXXXX

Once I file this and pay my filing fee along with it, I have 30 days to file my Statement of Appeal.

Thanks in advance for any suggestions.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 18, 2012 07:16:48 PM
This is how it's titled in my state

                       APPEAL TO THE (STATE)  APPELLATE COURT,
                     FROM THE CIRCUIT COURT OF (         )COUNTY, (STATE)
                                 (XXXXXXX)  DEPARTMENT,

 


JDB LLC                                                              )
                                                                              )           Circuit Court No.
                           Plaintiff-Appellee,                     )
                                                                              )            Order Entered
                        v.                                                   )                April 17th, 2012
                                                                              )
YOU                                                                     )            Honorable -------------------
                                                                              )                Judge Presiding
                           Defendant-Appellant.                )                                 
                                                         
                                          NOTICE OF  (WHATEVER)    APPEAL
   
           Appeal pursuant to (STATE)  Supreme court (       Section xxx                 )
Defendant-Appellant , (NAME), pro se, appeals to the Appellate Court of (STATE) for the
XXX District from the following order entered in this matter in the Circuit Court of XXX  County:

1. The order of April 17, 2012, denying defendant’s ----------------------------------

By this appeal, Defendant-Appellant will ask the Appellate Court to reverse the order of
(April 17th, 2012  and remand this cause with directions to (  Vacate or whatever ), or for such other and further relief as the Appellate Court may deem proper.


                                                               _________________________________

                                                                         Defendant-Appellant, pro se


YOUR NAME
ADDRESS
PHONE
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 18, 2012 07:29:11 PM
From this moment on whatever is filed must be sent the other side , certificate of mailing must accompany all paperwork/filings in my state.

Just FYI, When filing a brief make sure to send the opponent's copy via CMRR, as they can lie and say it was never sent.
Title: Re: Notice of Appeal critique
Post by: lisser on April 18, 2012 07:42:45 PM
From this moment on whatever is filed must be sent the other side , certificate of mailing must accompany all paperwork/filings in my state.

Just FYI, When filing a brief make sure to send the opponent's copy via CMRR, as they can lie and say it was never sent.

Great! Thank you so much for the advice. I will make sure to do that.

Sending it to the JDB lawyer is adequate correct? Or send to JDB as well?

I like your Notice of Appeal. The one I got was from my State's Rules of Civil Procedure though. Do you think I should deviate?

In the small claims handbook it states there are no forms for the Notice of Appeal or Statement of Appeal but I found the example I used in the KY RCP, Rule 73.

In looking at Rule 73, it's not entirely consistent with the handbook for small claims on my state's website. I think I need to be looking over this rule in more detail.

Requirements are listed in Rule 73 that are not listed in the handbook.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 18, 2012 07:53:13 PM
In my state, it must be captioned and the name of the judge should be after the case and order date. Next would be the reason for appeal in bold.
I would check and comply with state's rules (there must be a handbook /guide to appeal )

I sent everything to the counsel /law firm who was representing the client in court, I addressed it to LAW OFFICES OF XXXXX
                                                                                                                                           
Title: Re: Notice of Appeal critique
Post by: lisser on April 18, 2012 07:56:16 PM
Also, my appeal is going from the District Court to the Circuit Court so the heading would be:

APPEAL TO THE CIRCUIT COURT OF XXXX COUNTY, KY FROM THE DISTRICT COURT OF XXXX COUNTY, STATE

correct?

Also, what is the department? I've not put any department on any of my documents thus far.

Where you have Circuit Court number I need to put my case number right?
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 18, 2012 08:01:18 PM
Also, my appeal is going from the District Court to the Circuit Court so the heading would be:

APPEAL TO THE CIRCUIT COURT OF XXXX COUNTY, KY FROM THE DISTRICT COURT OF XXXX COUNTY, STATE

correct?

Also, what is the department? I've not put any department on any of my documents thus far. My state has different departments (municipal , law, civil , etc) that's why , go with what your state requires.

Where you have Circuit Court number I need to put my case number right? Yes
Title: Re: Notice of Appeal critique
Post by: lisser on April 18, 2012 08:01:33 PM
I think what you put an example of is the actual Statement of Appeal for me in my state. The Notice of Appeal in my state has this in my RCP:

Notice is given that C.D. and E.F., defendants {and third-party plaintiffs} in this proceeding, hereby appeal to the <name of appellate court> <from the order (describing it)>{from the final judgment} entered by this court on
__________, 19___.

The name(s) of the appellee(s) against whom this appeal is taken is (are) A.B., plaintiff <and X.Y., third-party defendant>.

/s/John M. Query

____________________________
John M. Query
2011 St. Clair Street
Frankfort, Kentucky 40601
Attorney for Appellants, C.D.
and E.F.

Here is the Rule:

CR 73.03 NOTICE OF APPEAL

     (1) The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.

     (2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.

I'm not sure why all that stuff I pasted is crossed out? Sorry.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 18, 2012 08:22:15 PM
I think what you put an example of is the actual Statement of Appeal for me in my state. The Notice of Appeal in my state has this in my RCP:

Notice is given that C.D. and E.F., defendants {and third-party plaintiffs} in this proceeding, hereby appeal to the <name of appellate court> <from the order (describing it)>{from the final judgment} entered by this court on
__________, 19___.

The name(s) of the appellee(s) against whom this appeal is taken is (are) A.B., plaintiff <and X.Y., third-party defendant>.

/s/John M. Query

____________________________
John M. Query
2011 St. Clair Street
Frankfort, Kentucky 40601
Attorney for Appellants, C.D.
and E.F.

Here is the Rule:

CR 73.03 NOTICE OF APPEAL

     (1) The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.

     (2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.

I'm not sure why all that stuff I pasted is crossed out? Sorry.

What you have is NOTICE OF FILING a NOTICE OF APPEAL

Example below is how it is done in my state; See if you can find a appeals handbook that has a timing and samples of filings /notices, etc.

1) file notice of appeal with clerk of the court, take at least a few extra copies to be stamped (one must be sent to the other side)
2) "Notice of filing a notice of appeal" sent to the other side and filed with clerk , get a stamped copies for record.
3) all filing should be filed in appellate court within a short time frame. It all depends on what type of appeal it is, in my state appeal from child custody or other civil judgments have different length of time to be filed than interlocutory appeal (for injunctive relief).

Rules Vary from state to state, but I know formatting / caption/title is almost always the same.
Title: Re: Notice of Appeal critique
Post by: Fighting Irish on April 18, 2012 08:24:11 PM
Be sure to check the RCPs for the correct titles for your documents.

In my state, the cover letter would be titled: NOTICE OF APPEAL AND APPEAL.
Title: Re: Notice of Appeal critique
Post by: Admin0248 on April 18, 2012 08:29:26 PM
Formatting in original post fixed.

Please note the the square bracket is used by the system software as a tag for a function.  In this case it interpreted the bracket as an underline.  Because it was not followed by a close square bracket sequence [/], the remainder of the post was underlined.

Be careful using the square bracket.  It can lead to unintended formatting problems.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 18, 2012 08:40:58 PM
Be sure to check the RCPs for the correct titles for your documents.

In my state, the cover letter would be titled: NOTICE OF APPEAL AND APPEAL.

OP is advised to check his/her state appellate court procedures.

What is being discussed is the NOTICE of filing and paper work with the clerk of the circuit court for starting the process of appeal before any further action can be taken by the circuit judge.

Cover letter is for when the actual appellant brief is filed with the appellate court, OP has a long way to cover letter.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 12:01:08 AM
Thanks Admin for fixing, sorry about that.

I'm researching my state's RCP for sure. I'm a tad conflicted though because my state has what's called a "Basic Appellate Practice" handbook on the Court of Justice website.

The book's stated purpose is to address the "very real needs of litigants who are proceeding pro se and to assist attorneys whose practice does not normally encompass work before our appellate courts."

"The handbook is designed to explain the most basic procedures and concepts for the lay litigant as well as to summarize succinctly the numerous rules governing appellate practice for attorneys embarking into what may be a new area of expertise."

Direct quotes from the handbook. It's very easy to read obviously and doesn't have "fancy legal terms" in it. I'm conflicted because what is written in the handbook is not exactly what the Rules of Civil Procedure state.

I'm certain that I must file a Notice of Appeal within 10 days of the judge's ruling which was yesterday.

I'm certain that I must file a Statement of Appeal within 30 days of the filing date of my Notice of Appeal.

I am certain that it is my responsibility to serve the notice upon the opposing party.

I am certain of what needs to be within my Statement of Appeal bc it's listed in the handbook.

The handbook states:

The Notice of Appeal and Statement of Appeal must be filed with the Office of Circuit Court Clerk in the same county where the small claims action was filed and heard. There are no forms for the Notice of Appeal or the Statement of Appeal. You must prepare these documents yourself or you may choose to hire an attorney to prepare them for you.

Rule 72 of KY RCP Appeals from District Courts:

CR 72.01 SCOPE OF RULE

     Rule 72 applies only to appeals from the district court to the circuit court.

CR 72.02 WHEN AND HOW TAKEN

     (1) Appeals from the district court to the circuit court in civil cases shall be taken by filing a notice of appeal in the district court and paying the filing fee required by KRS 23A.210.

CR 73.03 NOTICE OF APPEAL

     (1) The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.

     (2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.

This step I'm at right now is composing my Notice of Appeal.

The form on my state's RCP Appendix of forms that is to be used in accordance with Rule 73.03 is:

KENTUCKY RULES OF CIVIL PROCEDURE
Appendix of Official Forms

FORM 22 NOTICE OF APPEAL UNDER RULE 73.03

Notice is given that C.D. and E.F., defendants [and third-party plaintiffs] in this proceeding, hereby appeal to the [name of appellate court] [from the order (describing it)] [from the final judgment] entered by this court on
__________, 19___.

The name(s) of the appellee(s) against whom this appeal is taken is are A.B., plaintiff and X.Y., third-party defendant]

John M. Query

____________________________
John M. Query
2011 St. Clair Street
Frankfort, Kentucky 40601
Attorney for Appellants, C.D.
and E.F.

So this is how I came up with what I put in my initial post. It seems I should be using this format as my Notice of Appeal according to my state's RCP?

Thoughts given this information?


Title: Re: Notice of Appeal critique
Post by: cprems on April 19, 2012 12:53:25 AM
Something I found - https://www.eff.org/files/filenode/ky_v_domainnames/Notice%20of%20Appeal.pdf

http://www.kyed.uscourts.gov/forms/6ca3-noa.pdf

http://forms.justia.com/kentucky/federal/district-court/eastern-district/notice-of-appeal-15946.html

Not sure if it will help or not.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 01:22:53 AM
Something I found - https://www.eff.org/files/filenode/ky_v_domainnames/Notice%20of%20Appeal.pdf

http://www.kyed.uscourts.gov/forms/6ca3-noa.pdf

http://forms.justia.com/kentucky/federal/district-court/eastern-district/notice-of-appeal-15946.html

Not sure if it will help or not.

Thank you!

I can't find any appeals on the judge in my case from yesterday.

Certainly someone has appealed his decisions at some point?

I've searched the KY COA and KSC site and google scholar and I can't find anything.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 19, 2012 02:01:00 AM
Don't worry about the judge , focus on your case, let you be the first (Pro Se) appellant on his record !

There is so much satisfaction afterward, I promise ! ;)
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 04:06:21 AM
I hope so!

I need to find a skeleton outline for my Statement of Appeal now.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 19, 2012 05:56:36 AM
Hopefully you have copies of all court filings.

I don't know your state or appellate court rules, research the hand book if KY has similar procedures;

1) filing the docketing statement with clerk of circuit court.  (Usually a short time after notice of appeal is given to court and appellate court )

2) Requesting records from the clerk of circuit ; (upon payment of the fees records are prepared for appellate court, usually takes about 30 days , check your court rules and with clerk) 

(In MY state) this letter is used for request to circuit clerk in advance of preparation;

Dear (Name of the clerk)  _________:

A notice of appeal was filed in the above-referenced matter on [DATE]. I hereby request
that you prepare the record on appeal for filing in the appellate court. There will be transcripts of
proceedings, which have been ordered from the court reporter and will be filed as soon as they
are available. Thank you for your assistance in this matter.

____________
YOU


Here is how I started my draft:

Put in writing the entire action from day one as if telling the story to a judge or attorney who is absolutely unfamiliar with what has happened in the case. It must be clear, coherent and concise, no bad mouthing or criticizing anyone . Be aware, appeal can be tossed out for simple remark or offense.(This is unanimous in all districts).

For example:

 1) On or around January 2012 defendant-appellant was contacted via service of summons.

2) On  February 12th 2012, defendant filed its answers to the plaintiff's complaint.

3) On Febrauary 15th defendant filed motion for substitution of judge.

4) On February 20th hearing defendant's motion was granted,  trial date was reset for  May 2012 case assigned to honorable judge James smith.

BTW can't introduce new evidence or argument , only priory argued , filed or presented material.
 
Get together all case laws you researched last week, learn how to cite to specific section of these cases by page #.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 03:29:24 PM
Hopefully you have copies of all court filings.

I don't know your state or appellate court rules, research the hand book if KY has similar procedures;

1) filing the docketing statement with clerk of circuit court.  (Usually a short time after notice of appeal is given to court and appellate court )

2) Requesting records from the clerk of circuit ; (upon payment of the fees records are prepared for appellate court, usually takes about 30 days , check your court rules and with clerk) 

(In MY state) this letter is used for request to circuit clerk in advance of preparation;

Dear (Name of the clerk)  _________:

A notice of appeal was filed in the above-referenced matter on [DATE]. I hereby request
that you prepare the record on appeal for filing in the appellate court. There will be transcripts of
proceedings, which have been ordered from the court reporter and will be filed as soon as they
are available. Thank you for your assistance in this matter.

____________
YOU


Here is how I started my draft:

Put in writing the entire action from day one as if telling the story to a judge or attorney who is absolutely unfamiliar with what has happened in the case. It must be clear, coherent and concise, no bad mouthing or criticizing anyone . Be aware, appeal can be tossed out for simple remark or offense.(This is unanimous in all districts).

For example:

 1) On or around January 2012 defendant-appellant was contacted via service of summons.

2) On  February 12th 2012, defendant filed its answers to the plaintiff's complaint.

3) On Febrauary 15th defendant filed motion for substitution of judge.

4) On February 20th hearing defendant's motion was granted,  trial date was reset for  May 2012 case assigned to honorable judge James smith.

BTW can't introduce new evidence or argument , only priory argued , filed or presented material.
 
Get together all case laws you researched last week, learn how to cite to specific section of these cases by page #.

I have copies of everything I've filed and everything that I've received from the JDB attorney. I've even kept the envelopes.

I've also ordered a copy of the audio from the motion where the judge says it's just not my day.

I definitely do not want to say anything offensive so I guess I'll simply state what the judge said and not say anything about it being inappropriate or possibly judicial misconduct?

I realize judges are entitled to their own opinions but if their opinions don't fall in line with applying the law correctly, that's misconduct (in my opinion).

It's not up to the judge to tell me today is not my day. All he needed to say is, "I am interpreting your motions as a delay tactic." Ok fine, but I'm not sure the comment he made to me was in his best interest.

He can say whatever he wants to me and it won't hurt my feelings but if I have recourse for what he said, I'll use it to my advantage in the proper way. Maybe Tuesday wasn't my day but my day will be soon ;)

I guess what I'm asking is should I address the judge's remark in my appeal or is his remark best saved for me filing a complaint against him separately?
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 19, 2012 03:40:29 PM
I had a similar situation with a judge, I politely and non-judgmentally addressed it in my brief.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 04:51:06 PM
Ok I'm just about done with my Notice of Appeal. I thought the NOA would be simple but I'm stressing a little :)

Here is what I've got so far:

COMMONWEALTH OF KENTUCKY
XXXXX DISTRICT COURT
DIVISION
CIVIL CASE NO. 11-C-XXXX


JDB, LTD                                                                                                            Plaintiff-Appellee
vs.
Me                                                                                                                   Defendant-Appellant


NOTICE OF APPEAL

April 19, 2012

Notice is given that the Defendant-Appellant , Me, Pro Se, pursuant to Kentucky Rules of Civil Procedure Rule 72.02, appeals to the Circuit Court of XXXX County from the following order entered in this matter in the District Court of XXXX County:

1. The order of April 17, 2012, denying Defendant’s Motion to Dismiss the Plaintiff’s Complaint, or, Alternatively, Motion to Stay Pending Arbitration.

2. The order of April 17, 2012, denying the Defendant’s Motion in Opposition to the Plaintiff’s Motion for Summary Judgment.

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for the Plaintiff and remand this cause with directions to vacate or for such other and further relief as the Circuit Court may deem proper.


                                                               _________________________________

                                                                         Defendant-Appellant, pro se


MY NAME
ADDRESS
PHONE

Look ok? I'd like to file this today and get started on my SOA.

Thanks!
Title: Re: Notice of Appeal critique
Post by: cprems on April 19, 2012 04:57:34 PM
I would make mention of the private contractual arbitration as per the credit card agreement. Make sure you point this out.

Using the phrase "arbitration" may get you into ADR. One wants to run far away from this.

In the prayer/conclusion, a dismissal with prejudice for them failing to state a claim (their evidence) or something along those lines.

I wouldn't leave anything out at this point as it may not be able to be raised.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 05:27:41 PM
I would make mention of the private contractual arbitration as per the credit card agreement. Make sure you point this out.

Using the phrase "arbitration" may get you into ADR. One wants to run far away from this.

In the prayer/conclusion, a dismissal with prejudice for them failing to state a claim (their evidence) or something along those lines.

I wouldn't leave anything out at this point as it may not be able to be raised.

Ok what about this:

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for Plaintiff and remand this cause with directions to vacate and dismiss with prejudice due to the Plaintiff’s failure to state a claim or for such other and further relief as the Circuit Court may deem proper.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 19, 2012 05:28:31 PM
I would make mention of the private contractual arbitration as per the credit card agreement. Make sure you point this out.

Using the phrase "arbitration" may get you into ADR. One wants to run far away from this.

In the prayer/conclusion, a dismissal with prejudice for them failing to state a claim (their evidence) or something along those lines.

I wouldn't leave anything out at this point as it may not be able to be raised.

+1

Good catch, wording arbitration without specification could be detrimental. 


Title: Re: Notice of Appeal critique
Post by: cprems on April 19, 2012 05:34:09 PM
I would add in the the compel private contractual arbitration per the credit card agreement. I would add both. The dismissal first then the MTC private arbitration.

Ok what about this:

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for Plaintiff and remand this cause with directions to vacate and dismiss with prejudice due to the Plaintiff’s failure to state a claim for such other and further relief as the Circuit Court may deem proper.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 05:51:39 PM
Ok, added in suggestions. I'm just going to paste the body of it. Let me know what you think:

 Notice is given that the Defendant-Appellant, Me, Pro Se, pursuant to Kentucky Rules of Civil Procedure Rule 72.02, appeals to the Circuit Court of XXX County from the following order entered in this matter in the District Court of XXXX County:

1. The order of April 17, 2012, denying Defendant’s Motion to Dismiss the Plaintiff’s Complaint, or, Alternatively, Motion to Stay Pending Private Contractual Arbitration Per Cardmember Agreement.

2. The order of April 17, 2012, denying the Defendant’s Motion in Opposition to the Plaintiff’s Motion for Summary Judgment.

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for Plaintiff and remand this cause with directions to vacate, compel the Plaintiff to initiate private contractual arbitration per cardmember agreement and dismiss the Plaintiff’s complaint with prejudice due to the Plaintiff’s failure to state a claim or for such other and further relief as the Circuit Court may deem proper.
Title: Re: Notice of Appeal critique
Post by: cprems on April 19, 2012 05:58:34 PM
Ok, added in suggestions. I'm just going to paste the body of it. Let me know what you think:

 Notice is given that the Defendant-Appellant, Me, Pro Se, pursuant to Kentucky Rules of Civil Procedure Rule 72.02, appeals to the Circuit Court of XXX County from the following order entered in this matter in the District Court of XXXX County:

1. The order of April 17, 2012, denying Defendant’s Motion to Dismiss the Plaintiff’s Complaint, or, Alternatively, Motion to Stay Pending Private Contractual Arbitration Per Cardmember Agreement.

2. The order of April 17, 2012, denying the Defendant’s Motion in Opposition to the Plaintiff’s Motion for Summary Judgment.

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for Plaintiff and remand this cause with directions to vacate, compel the Plaintiff to initiate private contractual arbitration per cardmember agreement and or dismiss the Plaintiff’s complaint with prejudice due to the Plaintiff’s failure to state a claim or for such other and further relief as the Circuit Court may deem proper.
Title: Re: Notice of Appeal critique
Post by: howucantoo on April 19, 2012 06:10:13 PM
Ok, added in suggestions. I'm just going to paste the body of it. Let me know what you think:

 Notice is given that the Defendant-Appellant, Me, Pro Se, pursuant to Kentucky Rules of Civil Procedure Rule 72.02, appeals to the Circuit Court of XXX County from the following order entered in this matter in the District Court of XXXX County:

1. The order of April 17, 2012, denying Defendant’s Motion to Dismiss the Plaintiff’s Complaint, or, Alternatively, Motion to Stay Pending Private Contractual Arbitration Per Cardmember Agreement.

2. The order of April 17, 2012, denying the Defendant’s Motion in Opposition to the Plaintiff’s Motion for Summary Judgment.

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for Plaintiff and remand this cause with directions to vacate, and to compel the Plaintiff to initiate private contractual arbitration per terms of the cardmember agreement and or dismiss the Plaintiff’s complaint with prejudice due to the Plaintiff’s failure to state a claim or for such other and further relief as the Circuit Court may deem proper.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 06:13:25 PM
Ok, I think I caught those suggestions.

See if I did:

By this appeal, Defendant-Appellant will ask the Circuit Court to reverse the order of Summary Judgment for Plaintiff and remand this cause with directions to vacate, compel the Plaintiff to initiate private contractual arbitration per the terms of the cardmember agreement or dismiss the Plaintiff’s complaint with prejudice due to the Plaintiff’s failure to state a claim or for such other and further relief as the Circuit Court may deem proper.
Title: Re: Notice of Appeal critique
Post by: lisser on April 19, 2012 08:22:00 PM
Notice of Appeal filed and mailed to JDB attorney CMRR!

Let the fun begin!

BAM!!
Title: Re: Notice of Appeal critique
Post by: cprems on April 20, 2012 12:03:21 AM
Do you need to file a copy with the Court?
Title: Re: Notice of Appeal critique
Post by: lisser on April 20, 2012 02:19:27 AM
Do you need to file a copy with the Court?

Of course. I went to the district court window to file my notice.

District clerk took my four copies to stamp filed, took my filing fee and audio fee and gave me a receipt.

She kept a copy and a copy for the Circuit clerk.

She gave me a new case number since now I'm in Circuit court.

She also took my phone number to call me once the tape is ready.

When my statement of appeal is ready I am to file it with the circuit clerk.

Everything from here out goes to the circuit clerk.

A stamped filed copy was mailed to JDB attorney today CMRR.
Title: Re: Notice of Appeal critique
Post by: cprems on April 20, 2012 01:55:03 PM
I bet you made the JDB's day!

 :vbrofl:
Title: Re: Notice of Appeal critique
Post by: lisser on April 20, 2012 02:42:35 PM
I bet you made the JDB's day!

 :vbrofl:

I hope so too.

You know I'm losing faith in the officers of the court I've come in contact with over the past few days.

I contacted a consumer rights attorney in my area just in case I might need a mouthpiece.

I've sent him the things he's asked for. One minute he feels I've a case and then the next he's calling me crazy for electing arbitration, then tells me I have no grounds to appeal. Really?? It's in my state's Rules of Civil Procedure?

Not only did my judge ignore the law but now this lawyer is also not seeing the laws either.

He said, "since when did the Circuit Court become an appellant court?"

I said, "Since 1/1/78 when Rule 78 became effective, you know the rule that says ""(1) Appeals from the district court to the circuit court in civil cases shall be taken by filing a notice of appeal in the district court and paying the filing fee required by KRS 23A.210.""

Do you have to be able to read English in order to become a judge or a lawyer in my state? I'm thinking not.
Title: Re: Notice of Appeal critique
Post by: nomorecredit on May 13, 2012 01:31:28 AM
Anyone have any suggestions on my Notice of Appeal

My state rules are 30days for notice from date of order.

NOTICE OF APPEAL

Notice is hereby given that XXX, defendant, pro se, hereby appeals to the Court of Appeals of XXXX County, XXXX, XXXXth Appellate District, from the order, plaintiff to initiate arbitration through the American Arbitration Association, decision entered on the XXth  of  MM, 2012.

I got this example for my state rules of appeallate procedure.

Here are my issues with my appeal:

1 - Because I am only appealing part of the ruling how do I word it in my notice?  I don't want to appeal the stay just the order to arbitrate with AAA

2 - Docketing Statement??? any advice on what I should include or not include

Any suggestions or other help is appreciated

Title: Re: Notice of Appeal critique
Post by: lisser on May 14, 2012 10:40:39 PM
Anyone have any suggestions on my Notice of Appeal

My state rules are 30days for notice from date of order.

NOTICE OF APPEAL

Notice is hereby given that XXX, defendant, pro se, hereby appeals to the Court of Appeals of XXXX County, XXXX, XXXXth Appellate District, from the order, plaintiff to initiate arbitration through the American Arbitration Association, decision entered on the XXth  of  MM, 2012.

I got this example for my state rules of appeallate procedure.


Here are my issues with my appeal:

1 - Because I am only appealing part of the ruling how do I word it in my notice?  I don't want to appeal the stay just the order to arbitrate with AAA

2 - Docketing Statement??? any advice on what I should include or not include


Any suggestions or other help is appreciated


I'm not sure disputing the arbitration venue is appealable? Did you object in trial court to AAA? If so you might have a shot at it.

Not sure what you mean by docketing statement either.

I'm turning in my appeal this week and would be happy to share with you. My appeal is from District to Circuit although I feel it's good enough for the COA if necessary.

What state are you in?
Title: Re: Notice of Appeal critique
Post by: nomorecredit on May 15, 2012 02:34:40 PM
Thanks for replying
Im in Ohio

I'm not sure disputing the arbitration venue is appealable? Did you object in trial court to AAA? If so you might have a shot at it.


I didn't object to AAA per se.  I motioned the court in my MTC for JAMS and explained why the venue was correct (due to 2011 card agreement and that I initiated first). 

Here is what the motion stated:

PLAINTIFF'S MOTION FOR CLARIFICATION OF THIS COURT'S DECISION ON DEFENDANT'S MOTION TO COMPEL ARBITRATION FILED ON XXX/2012 IS GRANTED. DEFENDANT'S MOTION TO COMPEL ARBITRATION IS GRANTED. THE COURT STAYS THIS MATTER PENDING ARBITRATION IN ONE OF THE FORUMS ALLOWABLE UNDER THE CARD MEMBER AGREEMENT SPECIFIC TO THE DEFENDANT'S ACCOUNT AT ISSUE IN THIS CASE AND/OR PLAINTIFF TO INITIATE ARBITRATION THROUGH THE AMERICAN ARBITRATION ASSOCIATION.

The strange part about this order is that my MTC with JAMS was granted and the plaintiffs Motion with AAA was granted as well. Really not sure how to take this.
Title: Re: Notice of Appeal critique
Post by: cprems on May 15, 2012 03:51:13 PM
The "AND/OR" is the clincher. You have already filed in JAMS and it appears from the order, IF there was no forum selected, then the plaintiff is to file in AAA.

I would make sure that AAA is aware that they are NOT the proper venue as the forum has already been selected by yourself with the contract you have in your possession.

As one poster states, this could take months/years to sort out. The venue to sort it out is in arbitration. In order to sort this out, they have to pay to play!
Title: Re: Notice of Appeal critique
Post by: nomorecredit on May 15, 2012 04:32:25 PM
The "AND/OR" is the clincher. You have already filed in JAMS and it appears from the order, IF there was no forum selected, then the plaintiff is to file in AAA.

I would make sure that AAA is aware that they are NOT the proper venue as the forum has already been selected by yourself with the contract you have in your possession.

As one poster states, this could take months/years to sort out. The venue to sort it out is in arbitration. In order to sort this out, they have to pay to play!

Woohoo!   That is good news for me. 

So this is not a fight for court?  but Arbitration?

I was under the impression that this was a fight for the courts.
Title: Re: Notice of Appeal critique
Post by: cprems on May 15, 2012 06:16:03 PM
They got their clarification.

Read what the order states. Not what you think it states.

It has been stayed pending arbitration. You have initiated and paid to play in JAMS. Jams should be the forum.

If you had not paid, the plaintiff was ordered into AAA.

Any other orders before the Court would IMO, be an FDCPA and possibly a State law violation. The Plaintiff has been ordered to arbitration.

I would email the JAMS case manager the order. I would state I chose and paid for JAMS and please forward this to xxx so they can pay their fees and arbitrate the case.

Title: Re: Notice of Appeal critique
Post by: nomorecredit on May 15, 2012 06:46:32 PM
I've read that order a hundred times now. 

I was hoping what I understood was a true.  It is good to get a fresh pair of eyes on the matter.

I will be sending this straight to the JAMS CM. 

Another lesson on initiating &  paying the JAMS right away.
Title: Re: Notice of Appeal critique
Post by: cprems on May 15, 2012 07:13:47 PM
You appear to be in the drivers seat.

JAMS is bought and paid for. The forum was available under your contract.

As I read it, if you had not have paid and initiated with JAMS, the Plaintiff was to arbitrate in AAA.

DI you by chance submit an Affidavit to the Court, declaring that you are in possession of the correct agreement.

If your answer is yes, I'd use that at a later date if they balk at JAMS.
Title: Re: Notice of Appeal critique
Post by: nomorecredit on May 15, 2012 08:09:33 PM

DI you by chance submit an Affidavit to the Court, declaring that you are in possession of the correct agreement.

If your answer is yes, I'd use that at a later date if they balk at JAMS.


Why yes I did! Signed and notarized

I didn't send it with my original answer.   

However, once they amended the original complaint for more money (thanks OC), I was able to correct my mistakes. So I submitted an affidavit of governing contract with my "granted" MTC, and my response to their Motion for clarificiation.
Title: Re: Notice of Appeal critique
Post by: cprems on May 15, 2012 09:23:24 PM
Nice job.

They will now have to provide a custodian of records who is/was familiar with YOUR account. They cannot argue that this is NOT the right contract as they were not a party to the original signing.

All this will have to be decided in arbitration.

They lost in Court and now will have to fork out money to plead their case.




Why yes I did! Signed and notarized

I didn't send it with my original answer.   

However, once they amended the original complaint for more money (thanks OC), I was able to correct my mistakes. So I submitted an affidavit of governing contract with my "granted" MTC, and my response to their Motion for clarificiation.
Title: Re: Notice of Appeal critique
Post by: nomorecredit on May 15, 2012 09:42:53 PM


They will now have to provide a custodian of records who is/was familiar with YOUR account. They cannot argue that this is NOT the right contract as they were not a party to the original signing.


Even if it's the OC
Title: Re: Notice of Appeal critique
Post by: cprems on May 15, 2012 11:54:08 PM
Especially IF it's the OC!

You have "upped" the stakes in this poker game. They now have to prove that the account claimed was not in-fact the account you have in your possession.

Your Affidavit raises the stakes to all in!



Even if it's the OC
Title: Re: Notice of Appeal critique
Post by: nomorecredit on June 01, 2012 09:29:12 PM
Well, I received my letter from AAA today stating that,

"...AAA will proceed with the administration under the Supplementary Procedures for Consumer-Related Disputes"

It also states that if respondent does not answer in 7days we will assume the claim is denied.  Not sure what that means. 

It appears my fees were paid (?) because the letter does not request payment from myself.

I am going to send a letter notifying AAA that they are NOT the proper venue as the forum has already been selected 2months ago by myself with the contract that I have in my possession and submitted to the court.

I will see what happens.  Im going to be a nervous wreck for the next 7days.

Is there anything else I can do to fight to get out of  AAA?

Title: Re: Notice of Appeal critique
Post by: nomorecredit on June 02, 2012 01:11:46 AM
When I object to AAA should I send a copy of my letter from JAMS to prove I initiated with them first?

Should I send a copy of the contract as well?
Title: Re: Notice of Appeal critique
Post by: lisser on June 03, 2012 03:21:18 AM
I'll be stuck in AAA as well if my appeal is won and judge orders arbitration. My cardmember agreement only has AAA and NAF but I'm hoping for a $2400 debt and a JDB they won't go there.

Either way I'm going to be the biggest pain <Removed> they've ever dealt with. This will not be easy on them.