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    #1

    Hello again wonderful community

    Well its been awhile since ive been active. I arrived here with a desperate outlook, got educated by the excellent community (looking at you justbroke ;) , and left for a while to fight my battles.

    Well during that time, i have been battling a civil suit. Got educated on how to do discovery, writing briefs, etc. Read up a ton at the local law libraries, and honestly feel i received a legal education just by sparing in the arena.

    In the backdrop I was on the verge of eviction every month and depended on the promises of the california gov to pay everyone's back rent 100% ... which they did!! So I remained housed throughout thank God (seriously, thanks GOD), but these pesky creditors still want their day in court.

    Its pretty much a full time job trying to extract any damning evidence from an original creditor's corporate structures. Everything comes back as 'privilaged information' and trying to compel anything with a judge as a pro-se is laughed at. So I quickly learnt that regardless of how much time i put in to learn the law, and follow 'their rules', i would always be treated with contempt and not part of the boys club. So much for justice and equal treatment for all.

    I also learnt that the VERY FIRST THING I should have done was DEMAND A JURY TRIAL.

    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
    Oh boy, do they hate that move! Its an 'involitale' right in the state and original constitution (#7 in bill of rights), yet the system is set up that once you are sued you are automatically assigned a non-jury trial (ie with a judge not your peers) and you have some 2 weeks to try to demand a jury trial (with some traps as to WHERE you are to put that notice in your first paper.)

    BUT of course, the big bad banks, have already figured out how to neuter that right by their contracts of adhesion whereby they make you give up your rights to trial by jury just cause you open up your statement.... cause they wrote it in the terms and conditions... (this is an unconscionable practice, but hey its all okay in contract case law in california cause corporate usa owns us all)

    So that was another no win rabbit hole.

    Alas, I have learnt that despite my best efforts to try to learn the law, do discovery, write in their legalese, find appropriate case law, etc,etc, ITS ALL A COLLOSAL WASTE OF TIME BECAUSE WE ARE DEALING WITH A CORRUPTED SYSTEM THAT NO LONGER RESPECTS THE CONSTITUTION. Thats just a sad fact of life i have had to accept.

    So the only winning move now is to not play the game (War games 1985). And that means, BK myself out of this mess before trial. Im quite sure I will meet with more corruption from the trustees and court house, but I did try my best to play by their rules.

    So time to see if they will at least respect this constitutional notion as outlined by the Supreme Court in Local Loan Co. v. Hunt, 292 U.S 234, 244 (1934):


    Bankruptcy gives to the honest but unfortunate debtor…a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.
    Let us hope there is still SOME justice to be found in the courts.

    Cheers and happy new 2022!
    Last edited by bornfree2; 01-29-2022, 11:57 PM.
    Tags: None
    #2
    Sorry you're going through what you're going through, but you really need to understand, it is self inflicted. When you first signed up we advised you a bankruptcy was your best course of action, and by the way, filing a bankruptcy is in fact, "Playing the game".
    Latent car nut.

    Comment

      #3
      They call it practicing law because there are so many nuances and gotchas... even for skilled attorneys. A creditor doesn't necessarily have to release "business records" unless you already have evidence of something bad in those records and that's a high burden. May operations of a business are "trade secrets" so that's a very difficult barrier to get through. Evidence is probably about the toughest part of being an attorney in litigation. Even most attorneys that take a couple of evidence courses in school, still only know the basics.

      Don't worry... when it comes to evidence, they laugh at new attorneys as well. (Even a skilled attorney can get tripped up on evidence rules. Trials can have specific hearings that last days, just on evidence.)

      As far as I know, as a pro se that has filed twice, there is no corruption in the bankruptcy system. There are a bunch of rules (Federal Rules of Bankruptcy Procedure, Federal Rules of Evidence) and law (Section 11 United States Code). Bankruptcy is actually one of the easier types of litigation/suits... unless you get into contested matters, adversary proceedings, and/or jury trials. Most people just have a clean bankruptcy with no litigation within the bankruptcy.

      In fact, bankruptcy was organized and meant to be a rather fluid process without significant issues such as you'd find in a trial. Simply put, a bankruptcy discharges all debt that arose prior to filing. Any fight is usually over things that are not discharged (taxes are an example), or fraud by the debtor.

      Bankruptcy is not about justice but a way of discharging personal liability of debt. In most cases, the debtor actually signed a contract (whether physically or electronically or by his/her behavior) but wants relief from performing their side of the bargain. Bankruptcy is great in that it doesn't require the debtor to drag out a long legal battle to discharge their personal responsibility to perform (... look at a Chapter 7!).

      The problems come in bankruptcy only when there is fraud, or the appearance of fraud, or the debtor uses the bankruptcy court's adversary proceeding process to litigate. Otherwise 95% of Chapter 7 cases end without even a peep from the creditors (they don't even attend the 341 meeting)... and are done in as quickly as 90 days from filing.

      I can tell you this. It's much easier to fight things in the bankruptcy court -- assuming it has jurisdiction -- than in State non-bankruptcy court. Bankruptcy is a hammer and it is really on the side of the debtor.
      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

      Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

      Comment

        #4
        Hey justbroke always great to hear your wisdom. I pray God rewards you for all the hope and advice you have given me and others on here.

        I thought i had found the achilles heel to defeat the collector/original creditor. Basically i was trying to uncover the original sale/assignment contract between the OC and collector. These debts are typically sold in mass...so a debtors account is one of many thousands account numbers - but not uniquely identified. In addition, the contracts usually expressively say that there is no warranty on the debt or amount owed. Calling into question the amount means they cant prove the 'open book' cause of action.

        So here now comes the collector saying that a specific debtor individual owes an exact sum.... yet they have no real documentation linking that individual with an exact amount. This is all 'assumed' as fact since they have the sacred cow 'monthly statement'. Anyways, that was what i was trying to uncover in discovery but they had that underlocks and the judge didnt think it was important lol. I guess anyone can walk into the court room and claim they own the debt and that the debt is exact and to tied to an exact person....cause....they say so....

        I wanted to go through that process to see if i even had a chance. I got a legal education out of it but man oh man did it cost me the entire year of stress.

        So now with the BK i hope to completely abort this lawsuit (well pause it) and hope the collector doesnt follow in with a claim. More headaches... but it will be great once this BK resolves and i can truly have a fresh start in life again.

        Comment

          #5
          Originally posted by bornfree2 View Post
          Hey justbroke always great to hear your wisdom. I pray God rewards you for all the hope and advice you have given me and others on here.
          I'm glad you have survived.

          Originally posted by bornfree2 View Post
          I thought i had found the achilles heel to defeat the collector/original creditor. Basically i was trying to uncover the original sale/assignment contract between the OC and collector.
          The blanket assignment you can get, but not the details of the assignment (aka the actual accounts and balances).

          Originally posted by bornfree2 View Post
          So here now comes the collector saying that a specific debtor individual owes an exact sum.... yet they have no real documentation linking that individual with an exact amount. This is all 'assumed' as fact since they have the sacred cow 'monthly statement'. Anyways, that was what i was trying to uncover in discovery but they had that underlocks and the judge didnt think it was important
          A judge, in Florida, would take Pro Se hearings for debtors trying to stop a foreclosure. His simple question was "did you pay"? If the answer is no... then the judge then granted the foreclosure right there on the spot. The only time a "show the note" or "produce the billing" works is if you have two creditors asserting the rights at the same time. This has actually happened in some foreclosure cases.

          Originally posted by bornfree2 View Post
          I wanted to go through that process to see if i even had a chance. I got a legal education out of it but man oh man did it cost me the entire year of stress.
          Pretty cool. You got to learn a lot about the process. It looks easy and you think you have a winning argument, but it doesn't always work out. I had a contested matter within my bankruptcy against the utility company. I was sure I was going to win. Even made it through preliminary hearing and another continued hearing. It was continued again for evidence of the utility companies "tariff." Well, the court read the tariff differently than I read it. The tariff, as far as the court was concerned, only needed to mention that they could charge me certain fees. Not that the fee was particularly accurate. Oh well... I learned!

          Originally posted by bornfree2 View Post
          So now with the BK i hope to completely abort this lawsuit (well pause it) and hope the collector doesnt follow in with a claim. More headaches... but it will be great once this BK resolves and i can truly have a fresh start in life again.
          The purpose of bankruptcy, for debtors, is to have finality.

          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

          Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

          Comment

            #6
            Originally posted by justbroke View Post
            I'm glad you have survived.

            The blanket assignment you can get, but not the details of the assignment (aka the actual accounts and balances).

            A judge, in Florida, would take Pro Se hearings for debtors trying to stop a foreclosure. His simple question was "did you pay"? If the answer is no... then the judge then granted the foreclosure right there on the spot. The only time a "show the note" or "produce the billing" works is if you have two creditors asserting the rights at the same time. This has actually happened in some foreclosure cases.

            Pretty cool. You got to learn a lot about the process. It looks easy and you think you have a winning argument, but it doesn't always work out. I had a contested matter within my bankruptcy against the utility company. I was sure I was going to win. Even made it through preliminary hearing and another continued hearing. It was continued again for evidence of the utility companies "tariff." Well, the court read the tariff differently than I read it. The tariff, as far as the court was concerned, only needed to mention that they could charge me certain fees. Not that the fee was particularly accurate. Oh well... I learned!

            The purpose of bankruptcy, for debtors, is to have finality.
            >> The blanket assignment you can get, but not the details of the assignment (aka the actual accounts and balances).

            I dont accept that, though that is indeed the unwritten rule.

            See I dont think its even proper/legal for the judge to ask a question like 'did you pay'. Have you ever heard a judge ask a criminal defendant 'so did you do it?'. They should not prosecute the case. That is the type of question you ask formally in discovery via a request for admission or interrogatory. If you paid or not is a question that is revealed through evidence acquired or if they put you directly on the witness stand. For a judge to ask that is flat out wrong and that is why i say the system is corrupted with inept players... from judges that argue for the prosecution to filing clerks who deny you your rights because 'thats not how we do things here, and you are not a lawyer to know and i cant help you' (huh?? its literally in civil procedure and court rules and i followed it to the T, and lady and its illegal for you to interfere with whatever paper or motion i was filing that i KNOW is the procedure.)

            Which is why i dont stand a chance in this particular court case because from my research everyone complains about how this judge is a petty tyrant that always rules for the creditors. Kangaroo court that is a cancer for democracy and liberty.

            America was given an awesome system of checks and balances, and bill of rights, and constitution, etc. And it only took one dumbass generation to throw it all to the trash. Hundred years of enlightened thinking with learned men toss to the trash by morons (and criminals) in charge.... and they want to move it to automated computers deciding cases....kiss freedom goodbye when these corrupt practices are an algo that wont care to listen at all

            Comment

              #7
              Originally posted by bornfree2 View Post
              >> The blanket assignment you can get, but not the details of the assignment (aka the actual accounts and balances).

              I dont accept that, though that is indeed the unwritten rule.
              The actual issue is that it's a contract between two parties and you're not a party to that contract. Now, the original debt owner and the purchaser can argue over that contract, but you can't intervene or interject yourself into the contract to formulate a dispute... even if the actual parties to the contract are in breach. Basic law of contracts. You're simply not privy to delve into their contract.

              Assignments also come out of basic contract law. I can assign a debt that you owe to me, to someone else. You can't challenge the assignment unless the assignment itself is unenforceable. But that's a different story and it's very difficult for the debtor to attack the assignment. Such was the case in the foreclosure cases where debtors went after the assignments and the robo-signing of the assignments. I think that the foreclosure cases were special with respect to the evidence. (It actually wasn't the assignments, but the robo-signed affidavits related to the foreclosure itself.)

              Originally posted by bornfree2 View Post
              See I dont think its even proper/legal for the judge to ask a question like 'did you pay'. Have you ever heard a judge ask a criminal defendant 'so did you do it?'. They should not prosecute the case.
              This is civil, not criminal. That's the difference. It's an issue with non-jury civil cases, especially where the Pro Se individual doesn't know how to navigate. Besides, the judge is the finder of fact in a non-jury trial and can ask questions. (A judge can actually ask questions, of a witness, even in a criminal jury trial. Albeit judges usually don't intervene/interfere.)

              (Background: in order to try to get the backlog of foreclosure cases off the docket, Florida, in 2013, had something known as the foreclosure rocket-docket. Yes, it was fast and speedy and any Pro Se that tried to inject themself into that process without "not" answering that question, should not have been trying to litigate their own case. The rocket docket was not without complaints of due process violations and a host of other challenges. The rocket docket was actually included in a bill which became law. Despite that this was an actual law enshrined in the Florida Statutes, to allow retired judges to hear these cases on an expedited basis, it became cannon fodder for foreclosure defense experts attacking assignments and, more importantly, the affidavits. )

              Originally posted by bornfree2 View Post
              For a judge to ask that is flat out wrong and that is why i say the system is corrupted with inept players.
              But isn't that the question before the court in a foreclosure? Whether or not you paid is the question before the court. That's why I wouldn't personally have answered and would have sought a trial. When you're on the rocket docket, you're on the rocket docket.

              I haven't heard or read of anyone implementing, proposing to implement, or even talking about automated adjudication of court cases. Anything like that would almost definitely require destroying the Bill of Rights. But criminal and civil are much different animals. Not everything available in criminal is available in civil cases (including right to a jury in non-Federal cases).

              Our system is the worst... except for all the others.
              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

              Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.
              • Likes 1

              Comment

                #8
                The system is stacked against debtors with the exception of bankruptcy. I wasn't going to play ball in state court like you did. I wanted to get into bankruptcy in a way that minimized how much these unsecured creditors would receive. As close to zero as possible was the goal while devoting all of my disposable income to secured creditors and taxes. All of my pro se dealings in state court were designed solely to delay and frustrate the eight creditors that decided to sue me until I was ready to file bankruptcy. For example, did you know if you fail to show up for your trial, they have to calendar another hearing to decide whether to strike my answer and grant default judgment rather than just rule for the plaintiff? This process can add months to the case because the debt collection law firms are used to arguing at trial and not prepared to have the defendant MIA after showing up to every other pre-trial hearing. I could be in the hospital or dead for all they knew. If I showed up at trial, I would have the judgment against me and only a few days before the clerk enters it in. I did show up for every other pre-trial hearing in the unlimited civil cases to avoid having my answer stricken. I also called the creditor and made ridiculous offers so that I can tell the judge that we did the required meet and confer to again avoid having my answer stricken. They waste my time with stupid interrogatories and other time wasting discovery so I don't feel bad at all.

                Once I got inside the bankruptcy, I sued one of the creditors right back in an adversary with a lawyer on my side. We settled out-of-court and me & my lawyer extracted a lot of money from them for our benefit. That's when I decided to play ball on my basketball court.
                • Likes 1

                Comment

                  #9
                  Originally posted by flashoflight View Post
                  The system is stacked against debtors with the exception of bankruptcy.
                  Exactly what I discovered. It was almost too easy to navigate the bankruptcy court and rules than I could have done in State non-bankruptcy court. I was actually shocked that I won 3-1 in sanctions for stay violations. It's just that the bankruptcy court is all about getting the debtor to discharge and relieving that debtor of the legal responsibility to pay. Although it's still a court of equity, the system favors a fresh start for debtors.

                  Bankruptcy court is definitely a different playing field and creditors know this. For a creditor, it's not really worth a fight in most cases. The end result is almost always, in the bankruptcy context, that the right to collect will likely be extinguished. It's why the super-majority of creditors simply don't show up even at a 341 Meeting. In a Chapter 7, they won't even file a claim unless there's a notice of (potential) distribution from the Trustee.
                  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

                  Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

                  Comment

                    #10
                    Being a naive idealist, I liked studying about the law and civil procedure but I just cant stomach the imperfection of its application. Unlike computer programs that execute code 100% as written, legal code is executed by humans and their capricious and biased nature means the outcome will always be imperfect. Normally id go on and on about how injust it is etc but having gone through the pretrail and given it my best, i can must agree to say 'it is what it is' and be content with the experience.

                    Time to dust off those bk forms from last year and get to finally filing.

                    Comment

                      #11
                      Even a computer program can have flaws. They are still written by mankind. The law has always been subjected to interpretation. A misplaced comma is one of the most potent things in law.
                      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

                      Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.
                      • Likes 1

                      Comment

                        #12
                        Originally posted by flashoflight View Post
                        For example, did you know if you fail to show up for your trial, they have to calendar another hearing to decide whether to strike my answer and grant default judgment rather than just rule for the plaintiff? This process can add months to the case because the debt collection law firms are used to arguing at trial and not prepared to have the defendant MIA after showing up to every other pre-trial hearing. I could be in the hospital or dead for all they knew. If I showed up at trial, I would have the judgment against me and only a few days before the clerk enters it in.
                        I sent you a message on this, but i do not think this is normal outcome. If one doesnt show to trial, the judge will rule for plaintiff based on available evidence presented. In fact the order i have they sent me has it already penciled in for the event 'defendant did not appear'. It makes sense...if you dont show up to trial, why would you not loose? Since the courts are so rubber stamp happy if people dont show up to the initial demand, then why wouldnt they make it happen if you dont show up to trial.

                        However they didnt personally serve me..they just mailed the trial evidence / exhibit. So it could be argued i never got it. Still, the trial date was set well in advance

                        I need to research the proper civil procedures and rules on this .... id love to kick the can a bit more if i can..

                        Comment

                          #13
                          I was shocked when they decided the route to take was to strike my answer and enter default judgment. I guess it was to limit my appeal options vs. a normal judgment. It was also an unlimited civil case so there are more rules and court supervision. The normal judgment has a hold of 30 days for appeal, so it might not be that much faster. Anyway that backfired and I filed BK before they could get the judgment and put the lien on my house. If it was a normal judgment at time of trial, they might have been able to put the lien on before I filed BK but it would have been close and they would need to be fast.

                          Comment

                            #14
                            So i think the lesson here is to do the BK before any chance of a judgement to make the closure cleaner. I just wonder if the judge will want the trail to continue anyways despite the 'automatic' stay. Im reading mixed things about the power of a state trial judge and the automatic stay. Its not so automatic because they always sneak in their if/but conditions as to how i have to notify the court and other side prior to trial...blah blah.

                            If any one knows of a very clear reading of the law/case law where the automatic stay (the filing) absolutely trumps the judges order to proceed with a case. In other words can one show up to trial with the bk filing 24 hours prior and tell the judge this trial can not proceed... thats the idea of the protection isnt it?

                            I have to read up more on this....

                            Comment

                              #15
                              Originally posted by bornfree2 View Post
                              So i think the lesson here is to do the BK before any chance of a judgement to make the closure cleaner. I just wonder if the judge will want the trail to continue anyways despite the 'automatic' stay.
                              That's a violation of the automatic stay. It's not the court's issue but the plaintiff's continuation of a matter to exercise leverage over property of the bankruptcy estate. Some state bankruptcy courts will suspend a state lawsuit on the suggestion of bankruptcy (most have a form for this). Still, it is the plaintiff's responsibility to discontinue pursuit or to dismiss their non-bankruptcy court actions.

                              Originally posted by bornfree2 View Post
                              If any one knows of a very clear reading of the law/case law where the automatic stay (the filing) absolutely trumps the judges order to proceed with a case. In other words can one show up to trial with the bk filing 24 hours prior and tell the judge this trial can not proceed... thats the idea of the protection isnt it?
                              Everyone knows this. Even if a State court judge issues an order, in violation of the automatic stay, that order is void ab initio (void from the start). In some cases, it can come down to the wire. For example, if you filed on January 3, 2022 9:01AM and your case is timestamped for that date, and the State non-bankruptcy judge issues an order at 9:02AM on the same date, that order is void. While it's a "technical" violation of the stay, it won't rise to anything where sanctions are necessary.

                              Gotta love the supremecy of federal law. Most of the issues with overlapping stay and State non-bankruptcy court issues are usually related to notice. But notice does not preclude the stay from being enforceable at the exact time (hour, minute, day) that it came into effect.

                              The automatic stay is supreme (except in the limited exceptions for which the automatic stay does not cover). The law is quite plain and simple. It's an injunction and the law of injunctions is cannon.

                              11 USC 362... (1) the commencement or continuation of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the debtor’s bankruptcy, or to recover a claim against the debtor that arose before the debtor’s bankruptcy; and (2) any act to create, perfect, or enforce any lien against property of the debtor’s bankruptcy estate.
                              You're in California so... https://www.cacb.uscourts.gov/faq/au...-all-creditors.

                              Even if there's a technical violation, you can have that voided by the bankruptcy court with a simple Motion to Show Cause. In the end, again, it's the creditor (plaintiff in the State non-bankruptcy action) that is responsible for not violating the automatic stay (or the permanent discharge injunction).

                              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

                              Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.
                              • Likes 1

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