Motion for Judgment on the Pleadings???

[snwyvern]

Hi there. Chrysler Financial acting through a Collection Attorney has sued for monies that were agreed to be mitigated (It's a long story-- Their business unit agreed to eat value because of some severe problems. We have documentation to support that fact.) and we filed a response to the suit and a countersuit that alleges FDCPA and CFDCPA violations (FDCPA violations by way of the collection attorney and CFDCPA violations due to the business status of the orig. creditor… A big award is tenuous at best.)

... anyway...

The plaintiff has filed a motion for judgment on the pleadings and I'm told that there's nothing I can really do; a clerk of the court told me the following: "Essentially those are just granted if the opposition is pro se, after that you ask that the judgment be vacated and then there's a hearing."

The motion for judgment on the pleadings alleges that we never denied the fact that monies were owed in our Answer & Counterclaim (which we did.) Is it true that we have no recourse here? It seems that the attorney is doing everything they can NOT to get into the courtroom!!!

 

[jharris352]

Be sure that you Verified your Answer. If you did not swear to your answer then you need to before there is a final order issued. You can execute a document that is worded like this:

Put the style of the case like any other pleading.

Title it Verification of the Defendant's Answer

The Defendant hereby swears and affirms that the facts and allegations alleged in the Answer to the Complaint are true and correct to the best of his/her knowledge and is subject to the penalties of perjury.

Sign and Date it in front of the Clerk and get the clerk to notarize it.

If you did not do this on the original answer do it now, record it send a copy to opposing counsel and have the clerk put a courtesy copy in the Judge's box if he/she already has the file under review.

If you do not Verify your Answer to a complaint it will likely be set aside or not considered. If that happens you can get a Judgment on the pleadings. If you created an issue of fact (controversy) with your pleadings, it is unlikely that there will be a Judgment on the pleadings or a Summary Judgment.

Good luck.

 

[snwyvern]

I appreciate the information. From re-reading my answer I can understand how it is possible to misconstrue the facts that were presented. Research has suggested that I may be able to ammend my answer and then swear it as true... Is that the most prudent course of action, or should I just rest on the... hopefully learned literacy of the presiding magistrate?

 

[jharris352]

A judge is not required to "interpret" your answer with his/her learned reasoning. Further if you didn't verify it, then it is worthless. I would amend it and do it right. Good luck.

 

[snwyvern]

The language in the answer is clear enough. It seems that the plaintiff is doing their best to ramrod a judgment through. At any rate:

In my state (Colorado) there is a portion of the simplified answer and counterclaim form that 'swears and affirms.' So, that portion doesn't seem to be necessary. As a "bonus" despite the "fact" that most pro se defendants are ruled against when faced with this sort of motion, the presiding magistrate filed a request for an answer to the motion. I see this as a positive sign.

At any rate, there are a few issues that are still dangling that I am not quite sure how to proceed on.

1) There is a binding arbitration agreement attached to the contract the plaintiff submitted as evidence. The language included specifies that civil action can't take place until after the arbitration process has found fact. This is apparently a "Rule 11" violation; how do I... present this information?

1b) OK, so... The suit couldn't have even been started in the first place, what does this do to my (rightful) counterclaim?

1c) Is there a way to have the suit thrown out "with prejudice" so that I can't be sued for this junk again?

2) I have received a motion to allow telephonic testimony, and named in that motion are two individuals who have no reference to the case. One of which no longer works for the O.C., the other is a real estate liaison and has no clue about my case or situation. I'm of the (informed) opinion that the collection attorney was sent our case information 'automatically' as part of an electronic system. I.e., they never received permission to proceed to trial, or defend a countersuit from their "employer."

2b) Is there a way to force an attorney provide evidence that they are hired by the plaintiff they purport to represent?

 

[2PhDs]

If Opposition to our Motion was not "Verified"...

Be sure that you Verified your Answer. If you did not swear to your answer then you need to before there is a final order issued. You can execute a document that is worded like this:

Put the style of the case like any other pleading.

Title it Verification of the Defendant's Answer

The Defendant hereby swears and affirms that the facts and allegations alleged in the Answer to the Complaint are true and correct to the best of his/her knowledge and is subject to the penalties of perjury.

Sign and Date it in front of the Clerk and get the clerk to notarize it.

If you did not do this on the original answer do it now, record it send a copy to opposing counsel and have the clerk put a courtesy copy in the Judge's box if he/she already has the file under review.

If you do not Verify your Answer to a complaint it will likely be set aside or not considered. If that happens you can get a Judgment on the pleadings. If you created an issue of fact (controversy) with your pleadings, it is unlikely that there will be a Judgment on the pleadings or a Summary Judgment.

Good luck.

We filed a Motion to Amend (this is the Joinder Motion mentioned in our first posting on this Forum).
Attorney for Defendent(s) responded on Friday; our strict response is due tomorrow. (We've been through several rounds of this already.)

But NOWHERE did ANYONE - not Opposing Counsel, any Defendant, or anyone at all [no idea who else that could be, but..] provide anything like the usual, described above:
"The Defendant hereby swears and affirms that the facts and allegations alleged in the Answer to the Complaint are true and correct to the best of his/her knowledge and is subject to the penalties of perjury."

We always include that, when represented by counsel and as pro se Plaintiffs.
They did not.
These are not on prepared "forms" that already include a statement to that effect (as suggested somewhere in this thread).
The Opposition, and the Order for the Judge if he rules in their favor, are both on plain white paper, with no text already pre-printed except the line numbers down the side.

Is this a way to get to file demonstrably false statements?

(If "caught" - at some point the Judge will see our Exhibits (already filed) of THEIR product that demonstrate their statement is false - just say, "well, we never swore it was true"?)

We have already provided Exhibits demonstrating the statement is false (we were truly *stunned* to see the statement in their Response at this point); we planned to provide the Exhibits again.
--Sort of like if we have already provided an exhibit of several brown sweaters that they made [fictitious example] and they again claim that all of their sweaters are blue. Indeed, we have searched high and low for many months (truly), and WE cannot find the equivalent of a single blue sweater of theirs.
We point out that they have not offered anything showing that they made even ONE blue sweater (never mind ALL and ONLY blue sweaters).

Can we submit a request for a Judgment on the Pleadings, given no one swore or affirmed that their statements were true and correct, etc., AND submit our full strict response in case the request is denied?

Thank you.

 

[army judge]

You're in a form of small claims court (landlord-tenant, if my memory is correct), procedural issues (for the most part) are unimportant for pro se litigants.

I doubt that such a procedural tactic will be permitted. In lower level courts, jurists concern themselves with the merits (facts) of your case.

Besides, all litigants are sworn prior to the proceedings beginning.

You do know that you can call the opposing party as a witness, right? Then you can query them under oath about their pleadings.

Always prevail on the law, if you're not an attorney, procedural attacks tend to backfire. They sometimes backfire on attorneys. Plead and argue your case. If you can't do that, then you shouldn't have brought a lawsuit.

 

[2PhDs]

You're in a form of small claims court (landlord-tenant, if my memory is correct), procedural issues (for the most part) are unimportant for pro se litigants.

I doubt that such a procedural tactic will be permitted. In lower level courts, jurists concern themselves with the merits (facts) of your case.

Besides, all litigants are sworn prior to the proceedings beginning.

You do know that you can call the opposing party as a witness, right? Then you can query them under oath about their pleadings.

Always prevail on the law, if you're not an attorney, procedural attacks tend to backfire. They sometimes backfire on attorneys. Plead and argue your case. If you can't do that, then you shouldn't have brought a lawsuit.

Thank you again, very much.
Two side notes:
1) This is in Superior Court; and
2) This is not eligible for small claims court; the amount owed is into the 6 figures, per the terms of the unpaid lease, and not yet counting significant attorneys fees, as well as payment of many other bills (insurance, utilities, Association dues, etc., plus additional costs incurred by Plaintiffs).
And yes, we have done our very best to mitigate the losses on behalf of Defendant (as annoying as that was!), and given the economy, it has been almost impossible to rent it to someone else for even ridiculously low amounts, because there are so many other rentals sitting vacant in the immediate area. (We have gotten a very small amount from very short term rentals, but that is only in 4 figures.)

And yes indeed, we know that we can call the opposing party, as well as a large number of others who will be presented with documents we will then file as evidence, in which *everyone* ONLY referred to the business entity as ABC, and NEVER as "xyz". This includes their banker, their insurance company, along with ALL of their OWN email signatures and paper letterhead, etc.

The Four Corners Rule was tossed out in this state many years ago, so the circumstances surrounding the negotiations, and before and after, etc., ARE allowed "in".

And if we do not prevail in the Joinder (the breach of lease by "xyz" is uncontested and beyond obvious; we did not stipulate a long time ago because of disagreement about the amount owed; and "xyz" is now bankrupt, with millions in claims ahead of us, part of the reason we no longer have same counsel), then we will file a new suit, which will include multiple additional parties. We could not argue at this time that ALL of those parties would not have "undue surprise". The one person at issue now was notified months ago that we planned to join him. He did absolutely nothing, at least not that we are aware of.

The same person and business entities have been sued many times like this, and all represented by the same counsel as now, so there is presumably very little left to surprise any of "them". (If anyone is "disadvantaged" by a late Joinder, it would be Plaintiffs - us - but our investigation finally yielded previously hidden information, along with information uncovered by the Plaintiff a few months ahead of us (in the eerily similar situation with respect to certain specifics).

We take very seriously your comments, of course.
The potential Judgment on the Pleadings would ONLY be for the Motion (for Joinder), IF we could just have the Opposition tossed out.

But that is why we wonder if we need to file BOTH documents (the motion for Judgment on the Pleadings, omitting their Response/Opposition) AND our strict response in case the Judge does NOT allow the Judgment on the Pleadings.

Suggestions? Two motions tomorrow?

(Again, if we do not prevail on the Joinder, then this case becomes an very good practice round for our suit against the full set of Defendants, including some who are not bankrupt. And in that event - and same if we DO prevail now - we will have Limited Representation. Otherwise, we'll be left staring, dumbfounded, by an objection we do not understand, etc. Given THEIR legal bills, we do find it hard to believe that it would actually go to trial as a simple breach of lease against a bankrupt Defendant. Why not offer us "everything" now? We'll never collect from "xyz", regardless of the amount. In fact, we no longer know if there is a "there" there! What IS "xyz" now, without any principal or other entity? Indeed, WHO has actually retained Counsel?)

It is frightening, actually, as we uncover yet more and more entities littered along the way, with each bankruptcy and subsequent arising from the ashes with yet another variation of the business name...

We thank you very much!

 

[army judge]

Thank you again, very much.
Two side notes:
1) This is in Superior Court; and
2) This is not eligible for small claims court; the amount owed is into the 6 figures, per the terms of the unpaid lease, and not yet counting significant attorneys fees, as well as payment of many other bills (insurance, utilities, Association dues, etc., plus additional costs incurred by Plaintiffs).
And yes, we have done our very best to mitigate the losses on behalf of Defendant (as annoying as that was!), and given the economy, it has been almost impossible to rent it to someone else for even ridiculously low amounts, because there are so many other rentals sitting vacant in the immediate area. (We have gotten a very small amount from very short term rentals, but that is only in 4 figures.)

And yes indeed, we know that we can call the opposing party, as well as a large number of others who will be presented with documents we will then file as evidence, in which *everyone* ONLY referred to the business entity as ABC, and NEVER as "xyz". This includes their banker, their insurance company, along with ALL of their OWN email signatures and paper letterhead, etc.

The Four Corners Rule was tossed out in this state many years ago, so the circumstances surrounding the negotiations, and before and after, etc., ARE allowed "in".

And if we do not prevail in the Joinder (the breach of lease by "xyz" is uncontested and beyond obvious; we did not stipulate a long time ago because of disagreement about the amount owed; and "xyz" is now bankrupt, with millions in claims ahead of us, part of the reason we no longer have same counsel), then we will file a new suit, which will include multiple additional parties. We could not argue at this time that ALL of those parties would not have "undue surprise". The one person at issue now was notified months ago that we planned to join him. He did absolutely nothing, at least not that we are aware of.

The same person and business entities have been sued many times like this, and all represented by the same counsel as now, so there is presumably very little left to surprise any of "them". (If anyone is "disadvantaged" by a late Joinder, it would be Plaintiffs - us - but our investigation finally yielded previously hidden information, along with information uncovered by the Plaintiff a few months ahead of us (in the eerily similar situation with respect to certain specifics).

We take very seriously your comments, of course.
The potential Judgment on the Pleadings would ONLY be for the Motion (for Joinder), IF we could just have the Opposition tossed out.

But that is why we wonder if we need to file BOTH documents (the motion for Judgment on the Pleadings, omitting their Response/Opposition) AND our strict response in case the Judge does NOT allow the Judgment on the Pleadings.

Suggestions? Two motions tomorrow?

(Again, if we do not prevail on the Joinder, then this case becomes an very good practice round for our suit against the full set of Defendants, including some who are not bankrupt. And in that event - and same if we DO prevail now - we will have Limited Representation. Otherwise, we'll be left staring, dumbfounded, by an objection we do not understand, etc. Given THEIR legal bills, we do find it hard to believe that it would actually go to trial as a simple breach of lease against a bankrupt Defendant. Why not offer us "everything" now? We'll never collect from "xyz", regardless of the amount. In fact, we no longer know if there is a "there" there! What IS "xyz" now, without any principal or other entity? Indeed, WHO has actually retained Counsel?)

It is frightening, actually, as we uncover yet more and more entities littered along the way, with each bankruptcy and subsequent arising from the ashes with yet another variation of the business name...

We thank you very much!

You've discovered a age old dilemma in the law.

You can have a great case.

No, you can have a perfect case.

But, your defendant is bankrupt, broke, poor, or otherwise financially disadvantaged (or protected constitutionally).

You do recall the OJ Civil case (in your state)?

The plaintiffs prevailed and walked away with a $30,000,000 judgment.

Unfortunately, the plaintiffs had a useless piece of paper.

OJ had scurried off to Florida.

His assets were protected from civil levy.

You can often have a great case, but a very poor defendant.

You're litigating against a corporation, not a person.

It matters NOT whether the people behind the LLC are billionaires or paupers.

The result will be the same for any plaintiff.

Why?

If he corporation is defunct or poor, that is far as you will be able to reach.

Notwithstanding the deep pockets of the people behind the LLC curtain.

Sometimes you need to know when to fold them.

That time might be fast approaching for you.

I could have made money off of suits like yours, but ethics made me defer.

I've advised potential clients to walk away.

Why should I profit, if my clients lose?

That might be why you've had trouble retaining attorneys.

Most attorneys will not take a losing civil case.

Yours might be one of that ilk?

That doesn't mean that you can't win the case.

That means, that even if you win, you lose.

You lose because your defendant is broke or a deadbeat.

Or your defendant is savvy and has hidden his/her assets.

This is an age old legal conundrum.

 

[2PhDs]

You've discovered a age old dilemma in the law.

You can have a great case.

No, you can have a perfect case.

But, your defendant is bankrupt, broke, poor, or otherwise financially disadvantaged (or protected constitutionally).

You do recall the OJ Civil case (in your state)?

The plaintiffs prevailed and walked away with a $30,000,000 judgment.

Unfortunately, the plaintiffs had a useless piece of paper.

OJ had scurried off to Florida.

His assets were protected from civil levy.

You can often have a great case, but a very poor defendant.

You're litigating against a corporation, not a person.

It matters NOT whether the people behind the LLC are billionaires or paupers.

The result will be the same for any plaintiff.

Why?

If he corporation is defunct or poor, that is far as you will be able to reach.

Notwithstanding the deep pockets of the people behind the LLC curtain.

Sometimes you need to know when to fold them.

That time might be fast approaching for you.

I could have made money off of suits like yours, but ethics made me defer.

I've advised potential clients to walk away.

Why should I profit, if my clients lose?

That might be why you've had trouble retaining attorneys.

Most attorneys will not take a losing civil case.

Yours might be one of that ilk?

That doesn't mean that you can't win the case.

That means, that even if you win, you lose.

You lose because your defendant is broke or a deadbeat.

Or your defendant is savvy and has hidden his/her assets.

This is an age old legal conundrum.

Thank you very much, again.

We dismissed prior counsel, not the other way around. Should have done it much sooner.

[And if they had even bothered to *listen*, and look into what we were alleging, they'd have found some - not all - of what we have since found, and we might not be in this shape. THEY told us that once we filed liens there was ABSOLUTELY NO WAY we wouldn't get our money *eventually*. Aha... they forgot to mention about "bankruptcy"... Pesky little problem, there...]

But we really do think we have a half-decent shot at going after the others, piercing, etc.
We now doubt that there ever was an actual entity, other than yet another trade name. This same Judge has somehow (his bad luck) gotten several of these cases, so he is already quite familiar with their patterns.

And no one (not that we have found yet) has put together some of the pieces.
They now claim that we can't go after the principal because he wasn't an owner (NOT because of the LLC shield, interestingly).
But we found a contemporaneous application for yet more credit, where he states that he IS the owner. (Although we are still not sure there is anything to be owner of; this state requires registrations, and they are woefully lacking for his many and varied LLC's.)
And his employees refer to him as the owner. The forms that should be on file with the State, precisely so one would KNOW? Don't exist.

And they have now stated that it is ABC d/b/a xyz AND that it is xyz d/b/a ABC. Choose one, please.
And then switched titles around like 3 card monte, including as direct as from A to B and back to A again, all in a very short time, but - "interestingly" - it made him "not own" one particular property at one particular time. Before and after? Yup.

He is fighting like crazy to avoid personal bankruptcy. And there is at least one of "his entities" with a lot of "resources".
And as long as we see an opportunity, we plan to go for it.
That's why this first case is really of interest if the Judge rules our way on the joinder.

If not, why they would waste money on legal fees. when they could stipulate to the breach and just about any reasonable damages we request, because we aren't getting anything from that entity. Unless they suspect that sooner or later, someone *will* be held accountable...? And - again - WHO is the "they"? I can't go into detail, but Counsel has appeared to put a different party's interests ahead of the LLC's. And whom do you think that might be? Yup, same person, but the case is against the LLC, so arguing that the person would be disadvantage by a joinder?

Sorry, but if *I* was being sued, and had even a slight chance to get someone onboard to share any losses with me, rather than "keeping them all for myself", well... It flies in the face of reason that an attorney would say, NO, I WANT *MY* CLIENT AND *ONLY* MY CLIENT TO BE EXPOSED!

It's all one big Gordian Knot.
We are waiting for them to claim it's a COI all the way around, when it really IS all smoke and mirrors.

They entered into major legal agreements with banks and insurance companies under a name that they now claim isn't the name, and wasn't at that time, either.
Yes, we'll call all of them...

And we'll have someone helping us with the serious trial, to help rescue us when opposing counsel claims that the case of Christopher and Columbus, 1492, makes our case moot, or whatever...

So do we make a request for Judgment on the Pleadings withIN the response to their Opposition to our Motion? Or do we file the request, along WITH our response, if the Judge does not toss their opposition?

They appear to have also argued that "we don't have a case, but if we do, the this is how the Judge should rule" against us, within their Opposition to our Motion to Amend.

Thank you again!

 

[army judge]

You are focused on one goal.

You are driven towards one result.

I wish you luck.

No one can do a little research and play psychiatrist or psychologist.

That MD or PhD connotes far more than the ability to throw terms about.

Pleading a case of this import isn't easy.

Some cases should not be litigated.

Just as medicine is unable to identify, let alone cure every ailment; so too, is it with the law.

The law does not offer a solution for every transgression or improper human interaction.

And, when it does, your defendant is sometimes able to comply with a judgment.

That is why it is more important to examine the entity with which you propose to interact.

Saying NO before the encounter, is easier than remedying the results of the encounter!