HELP! Legal Straw Man and Sovereignty UCC-1 theory valid?

Hey Humble...So there is a motion for summary judgment up tomorrow? Have you posted the docs anywhere (with all personal and financial info redacted?). If so, provide the link.

Have you had any continuances so far? If not, you can probably get one for 7 days or so.

I haven't read all the posts, but did you demand proof that you owed the debt? What did they send you if you did?

Remember, a copy of a statement isn't sufficient proof. There would have to be an affidavit of the primary person who maintains or is responsible for your account saying that the debt is correct. THAT PERSON would also have to be present in court and prepared to testify...which is extremely unlikely or impossible.

Are you sure that it is CAPITAL ONE bringing this action? Most times it is a debt collection agency that makes it look like they are CAPITAL ONE. Who is appearing for CAPITAL ONE.

Put together the docs and post if you can. Otherwise, put a quick timeline together. I'm sure you have a play here, just depends what has happened so far.

If you do end up in court tomorrow, remember one thing...do NOT validate the debt. If it is up for a summary judgment, there must have been some prior action(s)?

this is all bullshit.

Debt collectors live off the default or summary judgments. Once they have those, its tough to fight.

Avoid the judgment at all costs...and fuck off with your stupid "advice"

Without seeing the documents, I can only speculate.

However, I doubt CAPITAL1 is the Petitioner/Plaintiff. Generally speaking, in a contract of adhesion the SUPERIOR party, the party drafting the agreement, is precluded from suing. Their remedy is limited to stopping the service they provided.

Since CAPITAL1 is likely not the party bringing suit, it is likely a scumbag debt collection attorney firm. Look them up on the internet and they will likely brag that their specialty is debt collection racket.

If they are not a party to the action, ie, a third party, they have no standing to bring the suit and it must be dismissed as a matter of law. No standing = no suit.

At this point, it doesn't sound like you have done the legwork necessary. Keep in mind that the courts ALWAYS have to give a wide berth to people representing themselves in court, since that is always a good point for an appeal.

If you go into court tomorrow and motion the court for a 21 day extension in order to obtain legal counsel, its almost guaranteed you will receive the extra time. THEN you can put together a proper response and patch up the fuck-ups which may have occurred already.

REMEMBER, the whole proceeding is a SHAM anyway...and the judge doesn't like to stick his neck out too far. They much prefer for unprepared litigants or the ultimate jackpot, the DEFAULT where no one shows up.

Motion for Extension of Time,

Respondent, JOE BLOW, hereby petitions this honorable court for a 21 day extension in order to procure competent legal representation in the handling and disposition of this matter. Respondent has determined that he lacks sufficient legal skills and/or has been unable to complete the necessary research...blah blah.

Probably just need the first sentence. Keep it simple. Second sentence might serve to explain why you are asking for representation now...and the answer is that you just now realized that you lacked the skills necessary to defend yourself...depends on your specific situation

Humble,

You do need competent legal advice in this case, and you need to answer the MSJ or you will lose. If you are really short on time, then file a Motion for Continuance, as suggested above.

There are several online forums that are all about help with debt problems and lawsuits. Also, you might want to check out nextlevelunlimited.net, and ask if they know of a competent debt lawyer in your area.

I also doubt that Capitol One is the real plaintiff, they are probably just debt collector lawyers with a charged-off account that they bought for pennies on the dollar, so they need to prove that Cap-1 really hired them. Ask for proof of this. You could say that you run the risk of being sued again even if you paid them, as the real creditor was not represented. What these debt collectors have, statements and an "affidavit", are all hearsay and inadmissible. They need to produce the live witness that made the affidavit in court, and a copy of the original credit agreement they sent you at the inception of the account, along with all subsequent amendments. Also, if they can produce such a witness in court, and the original credit agreement (highly unlikely) they then need to show an accounting from the beginning to end, to show that the amounts "owing" are "correct". Assuming they can prove that they really represent Cap1. Be sure to answer their motions, and show up in court for any hearings. Don't let them win by default.

"This is not legal advice and is for discussion purposes only."

I am telling him to pay them, how, exactly, is that bullshit?

Thank you. The court date 24th. NRS says I have 10 days rplus 3 more if papers mailede. Plaintiff is capital one. Ill try to post everything online tonight. Date servie was 8/21

I believe its a 3rd party doing all this and they hired an attorney here in vegas to represent them (rausch, hornik, etc.) who clearly states at the bottom of the summons, etc that they are debt collectors.

I was served last year, I answered the complaint stating neither admit nor deny n even requested to inspect contract

They then argue that Nevada laws say prove with contract OR statements etc.

If I demand to see the agreement (!in discovery) does capital one or the scum collector Must come up.with it or not because of the way nevada lass are written?

I hate this phone

Humble,

I suggest that you get the help of a good debt lawyer in your state to help you craft an answer to the MSJ. Show the lawyer all the court filings to date from both sides.

You will still be representing yourself in court (pro se), and signing the paperwork, but you would ask the lawyer for help in wording the answer, which may have a title such as "Defendant's Response to Plaintiff's Motion for Summary Judgment" -- where the case is summarized and case law quoted in favor of the defendant.

Depending on the procedure in your state, you may also need to attach an "Affidavit in Support of Defendant's Response to Plaintiff's Motion for Summary Judgment" -- eg. a sworn denial, duly notarized. You state therein that Plaintiff did not give you a copy of the contract, that they failed to provide documents asked for in discovery, that the amount being sued for is incorrect, that they have failed to prove that they represent the Plaintiff named in the complaint, that you have disputed the debt but there was no satisfactory validation, etc.

You don't want to lose on a technicality or a poorly worded response. The expense will be worth it as you don't want the hassle of a judgment against you.

"This is not legal advice -- for discussion purposes only."

Are u shibumi2?

I wish shibumi was around. Now I have an appointment with a goddam lawyer which I don't feel good about because I don't trust lawyers. I thought the bottom line was 'no contract or note, no debt'? Wtf?!

Hey 20901334 promissory note person, are you here? What say you?

Good question. Let me give you a roughly parallel and over-simplified situation to illustrate. Say you opened a line of credit at the corner grocery store (like people did 50 years ago). The owner says okay, you can buy my groceries on credit. Sign this "note" which says you promise to pay off your purchases at the end of each month. So you sign. The owner says "I will tell Sally, one of my cashiers that you have this line of credit and so be sure to go through her line when you come in to buy." You say "okay."

So Sally has you sign for each purchase, and you pay at the end of each month. Everything goes fine for several months. Then you stop paying. The owner sues and now you are in front of the judge.

YOU: I demand to see the original signed note.

STORE LAWYER: Your honor, we lost the original signed note, but we have a carbon copy. We also have an "affidavit" from Sally, who is familiar with this account, that he owes the money.

YOU: That affidavit is hearsay your honor. I demand that they produce this "Sally" in court.

Unfortunately they have Sally to testify in court, and she shows all your signed slips of purchases, and she identifies you and the carbon copy of the note as being what you signed.

The judge may rule in favor of the store owner even without the original signed note based on their "complete business records", the exact copy of the original note and the testimony of Sally, who has established her credentials as the cashier who rang up your purchases and identified you as the signer.

So while the absence of an original signed note is a big plus in your favor, the bill collectors will have other tricks like an "affidavit" and "statements" and a generic "contract", which you object to as hearsay, without the witness familiar with your account being present to testify. Any "contract" they produce they have to prove as being the exact copy of what you got in the mail when you opened your account.

They almost never can produce a competent live witness nor the exact copy of the contract they sent you, so that is also in your favor.

Hope this helps.



I don't trust lawyers *and* judges myself.

Hardcover, your posts above are pretty much on the mark...which, with the exception of shibumi2 is a rarity.

One question, the debt collectors seem to be bringing actions in the original creditors name, even though they are buying debt.

Is there a motion or procedure to get them to testify or swear under oath that the original creditor is, in fact, bringing the suit and not the debt collector?

I have been working on helping a business to business debt collection suit and the so called plaintiffs, the original creditors, "brought suit" althoug I'm sure it is the debt collectors behind it. They even "produced" someone they said was the president of the company, and the whole thing smelled bogus.

I would love to hang them with a perjury charge. any suggestions?

By the way, you have described a competent fact witness generally required in any case. The competent fact witness alone does not eliminate the need for the original signed agreement, but it does grant the judge or jury more latitude in adjudicating the matter.

99% of the matters I have been involved in have been credit card cases and there is, obviously, no competent fact witness. Further, credit card contracts are contracts of ADHESION for which the superior party cannot bring suit. In a mom and pop environment the scenario you listed is likely to result in a believable scenario as you described and the contract would be one of PARITY of the parties...that there was consideration and a meeting of the minds on an equal footing...thus remedy is available in court, and a signed contract not required. That is usually not the case in 99.9% of debt collection cases, which tend to be contracts of adhesion...credit card, mortgage, etc. Note that in mortgages, the remedy is NOT collection of arrears, but rather seizure of the underlying asset which was posted as collateral.

You could file a "Defendant's Motion to Dismiss and Motion to Compel Discovery"

Motion to Dismiss
-- for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction, as Plaintiff is not the real party in interest in this lawsuit...

XYZ lawyers have failed to prove the debt and failed to prove that XYZ represents the original creditor / Plaintiff in this case, or if the debt has been sold or assigned to XYZ...

Doctrine of Privity... only parties to a contract may bring suit to enforce it...

Motion to Compel
Despite a Request for Production of Documents, XYZ lawyers have failed to provide proof of ownership of the debt and failed to provide proof of representation.

Defendant requests that this Court, in the alternative to dismissing the case, issue an order compelling XYZ lawyers to answer Defendant's discovery requests and immediately file: (a) proof of who the current legal owner of the debt at issue is, and (b) proof that XYZ represents the original creditor / Plaintiff.

WHEREFORE...

Accompanied by a separate "Brief" with documented cases of lawyers masquerading as the original creditors.

Also send a "Demand Letter" to the lawyers.

Of course you would expand on the above.


Something like that.



I think if you have proof that the "president" is bogus, maybe file a "Motion for Sanctions Against...[witness]" with the judge during the trial.


"I am not a lawyer. This is not legal advice, and is for discussion purposes only."

The legalese is strong on this thread.

A note of warning and fact. The courts/judges/attorneys major source of profits are debt collection cases.

Debt collectors are, in other words, some of the best customers the courts have. You and all your legal documents, no matter how perfect or 'legal' will probably mean nothing at the end of the day. In fact, I seriously doubt the other attorneys or the Judge will even read them with any interest or attention.

The judge is NOT bound by statute, nor law, he/she can ignore either at will. For those giving great non-legal advise, you are ignoring the fact the game is fixed.

I am pretty sure this guy is going to end up paying them and all this work he is doing is at least educating him that is system is set up to keep its customers happy and protect its own bank accounts.

As for your meeting with the attorneys (they are not lawyers)if you do not trust them, you need to tell them that and nothing else.

"I have no trust in you."

Saying you have no trust in the courts or the attorneys then going to court with all these papers and legal arguments only shows them, by your actions, that you DO trust them.

"On and for this record, I have no trust in you, prove your claims by producing the original contract or agreement."

All this legal gaming is just fluff, you start playing it, they will beat you with it. REMEMBER, in any court, EVERYTHING you say will be used against you. So, just stick to the FACT.

IF they cannot produce the original, unaltered contractual agreement, they have not proven their case. End of discussion, end of paperwork, end of case.

Of course, the judge can still find in favor of them and most likely will, so be ready to issue them your promissory note with the court as your witness.

And yes, I am a lawyer.

And as for this thread, the majority of the UCC-1 theory is NOT valid.

However, a working knowledge of trusts, endorsements, contract law, legal definitions, record forming, demands and rights are valid and very effective.

UCC is written for Corporations, a person is a corporation, trying to be a Sovereign while acting like a person shows ignorance and frankly, exactly what a smart attorney wants you to do.

For the record, I prevailed in court in two credit card cases filed against me. One was filed by the largest debt collection outfit in the state, staffed with about 7 or more full time lawyers.

I have no doubt that this band of lawyers were the biggest customer of the court, yet they backed off in the end. Maybe I was just "lucky".

Remember though, that debt collectors only want to deal with easy prey. It becomes expensive and time consuming for them when their "prey" fight back.

Excellent point. Any debt is only worth so much and when they know you know what you are doing and have the stamina and time, they will end up making a settlement offer or just letting it go. Intimidation that they are "attorneys" is their biggest tool, most attorneys are not really that good at proving a case, they are professional paper pushers with fill in the blank paperwork.

You are clearly very well versed and I have enjoyed your posts.

The Courts will resist your Remedy. You can only stalemate them, never really win. The best hope is Patrick Devine's Yahoo Group where he moves from the Public to Private. On the Private side he can redeem his Birth Certificate and his DD-214 Military Discharge paper, into money and Land Bounty through Insolvency (Bankruptcy). Bankruptcy is the best thing you can do for yourself. It's the backdoor. The front door is blocked by every Court and Corporation.

World Freeman Society Forum

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Patrick Devine, Yahoo Group

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