Suing Your Creditors > Sample Pleadings

Went digging at the court house...

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lisser:
I'm not sure if this is the right area to post this in but, I went down to my court house today digging through the computer to find like cases to mine.

That is appeals from District to Civil and more specifically appeals on credit card cases.

I wanted to see what made a Circuit judge affirm or reverse an appeal.

Lo and behold I found an appeal from a pro se'er on a SJ from Cap. 1 with the judge that will be viewing my appeal.

Amazingly the law firm the pro se'er is against is none other than the law firm I am dealing with currently! How can I get so lucky?

Unfortunately this pro se'er lost her appeal in Circuit but at least I can see what the judge didn't like and I can see how the appeal was structured.

The clerk made a copy of the file for me so I'll be studying that tonight and be going back to the court house tomorrow to look through more appeals.

The clerk said there are not many appeals to choose from as "they don't get many people that appeal." I guess most don't know they have a right to?

Not this girl ;)

CleaningUp:
What were the grounds on which the judge rejected the appeal?

Note also that any case before ATT Mobility v Concepcion was decided without it's mandate.  The ground has changed to favor the move to arbitration.

lisser:

--- Quote from: CleaningUp on April 24, 2012   08:45:34 PM ---What were the grounds on which the judge rejected the appeal?

Note also that any case before ATT Mobility v Concepcion was decided without it's mandate.  The ground has changed to favor the move to arbitration.

--- End quote ---

I just finished reading the case.

The Pro Se'er did a terrible job. It's odd because I can see one of her other cases on my state's COA cite in the searchable opinions from 2008 where she got a SJ reversed. This case I just got is from 2010. Her skills have gotten worse.

In a nutshell here it goes:

Appellant appeals a SJ entered on 9/8/10. Amount was just under $800. The complaint was filed in July 2007.

Apparently there is an appeal also for sanctions against her for $75.00 the District Court imposed on her for Rule 11 which is SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS; SANCTIONS

The judge reviews the history of the case in his Opinion and Order and list what has been filed and when.

He says the District Court entered it's final order on 10/18/10 denying the defendant's motion for additional findings of fact and conclusions of law and denied the defendant's motion to alter amend or vacate it's judgment of 9/8/10.

Appellant filed NOA on 11/10/10. Filed her SOA on 12/2/10. The Appellee did not file a counter SOA but on 2/18/11 the Appellee filed a motion to dismiss the appeal.

Judge says the motion to dismiss the appeal was filed out of time and the appellee did not file a counter statement of appeal the court only has the appellant's statement of the facts and issues.

Judge goes on to say that Civil Rule 76.12 provides for penalties for the conduct of an appellant or appellee and he cites the rule.

Judge says since the appelle has not filed a counter SOA under 76.12 this court may reverse the judgment of the district court if the appellant's brief reasonably appears to sustain such an action. (Man I hope this same law firm doesn't file a counter SOA!)

Judge goes on to say that pleadings prepared by pro se litigants are held to a less stringent standard than formal pleadings drafter by lawyers. As such, pro se pleadings are to be liberally construed. He cites Ky case law. (yeah!)

Judge says even liberally construing the appellant's SOA, the legal issues before the court are unclear. (I agree, I have no clue what this Pro Se'er is thinking with what she's arguing.)

Appellant is arguing district court did not have subject matter jurisdiction to rule on the matter as the contract at issue was neither valid nor enforceable. Appellant further argues that the district court denied the appellant the right to due process.

Stick with it, I know some of you are probably thinking, ok what's so wrong about this. Stay with me.

Judge goes on to say stand of review for this court as the appellate court is whether the trial court's findings were clearly erroneous. He says findings of fact at not clearly erroneous if "there was sufficient evidence of probative value to sustain" the finding. He cites a KY case law.

Judge says if there is substantial and credile evidence both ways, CR 52.01 seals those findings against appellate intervention and cites a KY case law.

Judge says appellant is requesting that this court remand the case back to the district court to have the original complaint dismissed for lack of subject matter jurisdiction and that the appellee be ordered to pay the appellant damages in the amount of $4000 and time and expenses in the amount of....wait for it...$8000.

Judge goes on to state the findings of fact which is where you can clearly see the absurdity even beyond asking for $12,000 from the Plaintiff.

Judge says he Defendant admits to applying for and receiving Cap 1 card, using said card to make purchases, making periodic payments, and admits to the balance.

District court struck all of the appellant's affirmative defenses as being without merit and frivolous. Court dismissed all of defendant's counterclaims except one alleging libel.

District court gave appellant 60 days from date of order to provide an offer of proof regarding the libel count and she did not do so.

Appellant's claims that the district court lacked subject matter because the contract asserted was invalid. Reason given for this is that lending of credit is not allowed under federal law. (what??) Another reason is the agreement lacks mutual obligation. (WHAT??)

Court finds argument for lack of subject matter is not well taken, grounds the appellant sets forth are defenses to a contract action, but the court finds them to be without merit.

Appellant further alleges district court violated her right to due process by delaying and wasting the appellant's time and failing to consider pertinent evidence, not complying with the law and not making timely decisions. (woah!)

Appellant also argues that her right to due process was violated bc the district court refused to transfer her claim to circuit court.

Judge says the district court gave the defendant 60 days to make its case in regard to the amount of damages sought and the libel claim and she did not do it so she failed to set forth any jurisdictional grounds that would allow for the case to be moved to circuit court so failure of district court to do so was not clearly erroneous.

With regard to Rule 11, the court finds the the appellant has failed to properly address the issue in her brief.

Now that's the end of the judge's opinion and order but when I read the defendant's SOA I was even more shocked.

The appellant, in her summary of facts and evidence apparently sent Cap. 1 a notice of change in terms, notice of cancellation, notice of billing error, and collection notice. She justifies this by saying Cap. 1 says in their agreement that they can at any time, alter said agreement at will so she should be able to also.

She says that her amended agreement to Cap. 1 requires Cap. 1 to pay HER $500/month. Of course when Cap. 1 did not pay her her $500/month, they defaulted on the agreement

She cites a bunch of federal case law and the SOA reads like a lawyer giving his closing arguments. She asks questions in the SOA like, "But does Capital actually lend its credit? What do the facts tell us?" Those questions are actually in her SOA!

I can't believe she wasn't sanctioned more than $75 for submitting this! I can't even believe what I just read honestly.

I really wanted to see some examples of why an appeal was reversed and why one was affirmed but this could have been affirmed by a 5 year old.

I'll go back tomorrow and dig for some "better" examples.


CleaningUp:
<Shaking head>

The appellant deserved a butterfly net and straight jacket.

cprems:
You stated she won a case - look at that one. See if the reasoning is sound (to you)

You also have a case to stay far, far away from.

There are a few Pro-se litigants who get a "thirst" for vengeance once they win a case. Their crusade sometimes ends up in the absurd category!

DB'ers warn against such "foot shooting" and for good reason.

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