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Pro Se Landlord V Bankrutpcy Atty AP For Willful and Malicious Injury To Property

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  • Pro Se Landlord V Bankrutpcy Atty AP For Willful and Malicious Injury To Property

    Pro Se can be done. It's hard but once you understand the process, it gets easier. When filing for your AP, have your complaint, motion for judgment of the pleadings, motion for summary judgment and pre trial brief already done.

  • #2
    Somethings to know. I will post more later.

    BK courts don't want you to have a trial so be careful for motions to dismiss.

    Motions to Dismiss before discovery are failing to state a claim (most common) and 6 others.

    Motion for judgment on the pleadings (Both Plaintiff and Defendants can use this motion.)


    Pleadings and watching out for the Motion to dismiss for failing to state a claim
    1. Number your allegations and relief in paragraph form. Make sure your local law can provide relief in an allegation.
    2, State if it a core or non core issue.

    Within 21 days a defendant will either answer your pleadings with affirm or deny, partially affirm or deny or they don't have enough info for and answer.

    A defendant can also file a motion to dismiss before answering your pleadings and if that motion is denied they will have to answer your pleadings usually within 17 days.

    WATCH THOSE DAYS.

    If they don't respond within 21 days of your initial pleading you file a motion for default.

    If they don't respond in time for any other motion. File a motion for failure to prosecute or defend

    Remember, the Court is neutral, you have to file a motion if you want them to do something.


    Comment


    • #3
      The U.S. Bankruptcy Court, and the U.S. Federal Court (its parent) is certainly about procedure, procedure, and procedure. I won an AP because the creditor simply "forgot" to respond. It was by default. They quickly just asked for a settlement. My filing, service of the complaint, service of the summons, and everything was procedurally sound. The creditor was not an ignorant creditor. With revenues of over $2 billion (yes, that's billion with a "b") and gross profit of over $1 billion, I was not crying for their inattention to detail.

      Can it be done pro se, yes. But equally, the Fed. R. Civ. P and Red. R. Ev. (Civil Procedure and Evidence) can be a pain if you end up with a "glass tower" attorney. I did meet with one, but they were ill-prepared procedurally.
      Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
      Status: (Auto) Discharged and Closed! 5/10
      Visit My BKForum Blog: justbroke's Blog


      I am not an attorney. Any advice provided is not legal advice.

      Comment


      • #4
        Well good for you Justbroke. I didn't win by default and the attorney has been in practice for more than 25 years. The one huge advantage Pro Se has over attorney's is that the federal courts are instructed to be liberally construed. I am just posting to let people know more about the process. There are ways to oppose, ways to get memorandum law, how to introduce evidence and so on.

        The procedure part is necessary to ensure everyone has there say....

        Comment


        • #5
          Originally posted by Eternal4 View Post
          The one huge advantage Pro Se has over attorney's is that the federal courts are instructed to be liberally construed. I am just posting to let people know more about the process. There are ways to oppose, ways to get memorandum law, how to introduce evidence and so on.
          I wrote on the liberal construction principle in my blog. It's specifically about the topic on whether filing Pro Se is an advantage or not.

          http://www.bkforum.com/blogs/justbro...vantage-or-not
          Last edited by justbroke; 05-27-2017, 12:14 AM.
          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
          Status: (Auto) Discharged and Closed! 5/10
          Visit My BKForum Blog: justbroke's Blog


          I am not an attorney. Any advice provided is not legal advice.

          Comment


          • #6
            I have been busy reading the post on this forum. I didn't know something like this existed. Anyway, I believe Pro Se doesn't have an advantage until you truly know the distinction between matters of fact and matters of law. If you are a Plaintiff, you want the defendant to have an affirmative defense.

            Comment


            • #7
              On the lighter side, I was beginning to feel the biggest advantage the attorney had was that he and his associates could file through ECF and I had to go to the clerks office to file...

              Comment


              • #8
                Originally posted by Eternal4 View Post
                On the lighter side, I was beginning to feel the biggest advantage the attorney had was that he and his associates could file through ECF and I had to go to the clerks office to file...
                To an adversary, there are no advantages even if that adversary can electronically file. I actually sent almost ALL my papers via FedEx. Routine papers and motions were sent regular First Class Mail.

                Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                Status: (Auto) Discharged and Closed! 5/10
                Visit My BKForum Blog: justbroke's Blog


                I am not an attorney. Any advice provided is not legal advice.

                Comment


                • #9
                  I am not talking about service or discovery request. I amended my complaint 2 times with motions to stay and filed 2 oppositions to dismiss. With the original pleadings and my motion for summary judgment, that was 6 times. That is not including the times I went to the hearings...

                  Comment


                  • #10
                    I notice in these postings that most people don't even look at the appeal process. If I would have lost any hearing, even a motion to strike, I would have appealed. Being Pro Se can let you win by attrition.

                    Comment


                    • #11
                      I think that you may misunderstand what I wrote. I live 18 miles from the courthouse so that was not a barrier to actually going to the court to file any paper. I filed one of my Adversary Proceedings by post (FedEx). I hardly ever went to the Clerk's office unless there was a specific deadline that I couldn't otherwise meet by overnight mailings. I added this information so that others understand that you don't need to file anything, really, in person with the court. I recommend filing in person for certain papers but even the petition itself can be filed by post.

                      Of course there are many strategies in litigating contested matters in the bankruptcy court. A frequent method is a simple Motion for Reconsideration and presenting new evidence. Most people, actually attorneys representing debtors, don't file appeals on any denial because there are Rule 11 issues for attorneys. The rule, Rule 11 (FRBP 9011) can also affect Pro Se litigants if they are seen as vexatious in nature.

                      Unless the debtor's attorney is looking to make a name, an appeal to the BAP, the District, and/or the Circuit is just not something that is economical in most cases. If there is truly a question of law or the application of the law reconsideration and appeal may be the next step. In many cases, it's just not worth the cost (or frustration). As Pro Se litigants we have more time and are not so worried about most costs. This does not mean we should not be careful in filing papers with the court (again see Rule 11).

                      I guess I am trying to convey that litigating in an Adversary Proceeding, for the Pro Se, is not a cakewalk. There are many pitfalls and even with the American Rule, issues with Rule 11 can be costly.


                      Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                      Status: (Auto) Discharged and Closed! 5/10
                      Visit My BKForum Blog: justbroke's Blog


                      I am not an attorney. Any advice provided is not legal advice.

                      Comment


                      • #12
                        When you mention sanctions (rule 11 or the inherent power of the court) yes have to be careful as it pertains to matters of law. MATTERS OF FACT is totally different issue. You can only have a dismissal or summary motions when matters of fact are not in doubt. That is where to look into an appeal.

                        I am not here trying to prove anything, Just posting to see if it would help a Pro Se Plaintiff or Defendant.

                        Comment


                        • #13
                          While I am one, and we do have several other Pro Se debtors that obtained discharged in both Chapter 7 and Chapter 13 bankruptcies, there is not a lot of Pro Se adversary proceedings. There are not even a lot of Pro Se motion practice, reconsideration, and especially appeals.

                          I think everyone appreciates (and will appreciate) your contributions and any guidance that you can provide. I didn't personally delve into the topic (here) because it quite rare to find Pro Se debtors, such as you and I, that have even thought of a.) filing a complaint, b.) filing a motion for reconsideration, c.) filing an appeal, and d.) an entire host of other procedural things that you can do inside the bankruptcy court.

                          I will continue to say that the bankruptcy court is powerful and there are some untapped treasures buried within its processes. I specially like that I can litigate anything that is within the jurisdiction of the court (core proceedings) and not need to deal with local courts (which I find painstakingly cumbersome).
                          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                          Status: (Auto) Discharged and Closed! 5/10
                          Visit My BKForum Blog: justbroke's Blog


                          I am not an attorney. Any advice provided is not legal advice.

                          Comment


                          • #14
                            Actually Justbroke, I was the Creditor. I didn't know anything about Bankruptcy until the beginning of the year. The very first thing that the defense attorney did was file a motion to dismiss based on the doctrine of collateral estoppel. Me and my wife had a default judgment in a non bankruptcy proceeding before the debtor filed chapter 7. Our opposition to their motion was that the issues were not identical because non bankruptcy case had a lower burden and that it wasn't litigated because of the debtor defaulted (matters of fact). As a matter of law, I used the Supreme Court decision Brown v Felsen footnote 10 that basically states that the standards have to be identical and fully litigate for estoppel to apply....

                            Comment


                            • #15
                              What I am trying to say, the (matter of law) is there. (if it isn't then the plaintiff has no case) it's always the matters of fact is the true argument. By reading some postings on this site, people are confuse by using matters of law to argue their facts. when the facts must be settled before it is a matter of law....

                              Comment

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