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Steve Anderson
Hi, it has been a few months since I have frequented the forum but have kept up with my foreclosure fight daily. I had my preanswer Motion to Dismiss ready about a month ago, but never heard back from my Motion for an extension of time, so I thought the case was closed. Wrong! Somehow the plaintiff's attorney got the too busy judge to wake up and render a judgement.

NOw, I kept rewriting the MTD, using conditions precedent, citing all the NY cases and got it really ironed it. I had someone look at the final copy and they used to read them for a judge and they said it was the best prepared motion they had encountered. So, today , I go in to pay the money to the County Clerk and file the Motion with the Supreme Court and the clerk there, goes...this isn't a motion, this won't be acceptable and gave me some runaround, but I decided to go on with what I had and she said she would set up the hearing date and have the judge look at it on February 3rd.

I used every MTD example I could find in here and on the Net. I narrowed it down to NY examples because that is where my foreclosure is being handled. I mean it really resembled every one that I perused, and I kept checking it against the ones Ann and a few others have shown me. Well, she said most it was all right, but the opening page has to have a place for the clerk to set up a date with the judge and must be sort of an opening chess piece, so to speak. I don't understand why it has to be like that, does anyone have any light to shed on it? So, I carried on, but can I amend it before they look at the submissions on that date, or should I just let it lie? Thanks for listening to my pleas, hope you can help, SA
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ka

Steve:

 

Rules differ from jurisdiction to jurisdiction.  What is required of a motion in Florida and Ohio, may differ from that in New York.  In some places, county, district or circuit courts can also impose their own rules, separate and distinct from statewide rules.  Make sure to check the LOCAL RULES!  There is an inherent danger in trying to craft pleadings and motions using materials found on the Internet.

 

Hence the repeated admonishment seen over and over:  READ THE RULES, READ THE RULES, READ THE RULES. 

 

While things discussed here at the Forum can assist in generally identifying and framing issues, no one here at the Forum, especially non-attorneys, can counsel you as to what is necessary to comply with the rules in a particular place.

 

This is one of the key reasons to GET AN ATTORNEY.

 

Sometimes formatting and mechanical issues with pleadings and motions are clearly set forth within the rules.  Other times, standard forms of practice evolve and become commonplace though use.  A clerk may believe that a particular form is necessary, when there actually is no specific basis in the rules for that particular form.  Since everybody does it that way, it must be right and it must be required, or so they believe.

 

It is better to avoid swimming upstream.  Conforming to state and local practice standards, even when not expressly required is usually a good idea.

 

The good news is that in most places, rules also provide that the purpose of the rules is to do substantial justice.  Case law will also usually provide that the courts may interpret the rules in a way to decide matters on the merits and to do justice.

 

I cannot tell you whether the particular nuance or issue identified by the Clerk is of great or minor import.  This is something you need to assess for yourself after a careful reading of the statutes, rules and cases.  There is nothing wrong with asking the Clerk, "Can you tell me which Rule specifies that?", etc.

 

Often, Clerks will refuse to answer such questions citing that they may not give you "legal advice".  Very often, they will encourage you to obtain an attorney.  Experience has shown that when the pro se litigant misunderstands or misinterprets the guidance, they often lash out and blame the Clerk.

 

It is useful to use the Court indices to find examples of pleadings similar to that which you intend to file.  Because so many foreclosure cases are undefended, this can prove to be challenging.  Check the dockets for cases where the borrower is represented by an attorney.  Look up those cases and take a look at the pleadings that the experienced attorneys have filed.  If you see several attorneys who are defending multiple foreclosure defendants, there is at least a somwhat better chance that they are familiar with foreclosure and know what they are doing.  On the other hand, the attorney might also be a dolt taking borrower's money and doing nothing useful at all.  And another brilliant attorney not in foreclosure practice might be litigating a single case ably for a relative or close friend.  Look at mulitple cases and multiple filings.

 

Feel free to ask the Clerk for examples of pleadings that conform to the local practice standards.

 

There is an adage that imitation is the sincerest form of flattery.  An attorney engaged in regular practice in an area has various forms of motions, pleadings, discovery, etc., that are simply reused in case after case.  Use of standard forms is common.  In many states, legal publishers have put together forms books giving examples of different types of pleadings, motions, responses, etc.  These are like recipe books.  You may need to visit a good academic law library to find such books.

 

To the extent that the form can still be amended to include formatting suggested and encouraged by the Clerk, it is probably in your interest to do so.  Bear in mind that while a court can overlook minor deviations in formatting and content, depending on the nature of the violation of the rule or practice (if any), the Court can also hold you to the Rules.

 

Pro se litigants often find that hostile judges will routinely overlook all manor of errors by attorneys, while holding pro se litigants to the same standards.

 

The surest way to win, or at least to avoid LOSING, is to avoid making mistakes.  If you are consistent and follow the rules, while avoiding making serious mistakes, you will be amazed at the number and variety of mistakes made by your adversaries.  Get your filings RIGHT.  Then capitalize on errors made by your opponents!

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ka

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I had my preanswer Motion to Dismiss ready about a month ago, but never heard back from my Motion for an extension of time, so I thought the case was closed.  Wrong!  Somehow the plaintiff's attorney got the too busy judge to wake up and render a judgement. 

 

In re-reading the opening paragraph of your post, I am even MORE ALARMED, because your wording gives two indications that you really fail to understand some basics of civil litigation.

 

First, you state that you "never heard back from my Motion for an extension of time".  This seems to reflect a very common misconception by legal novices.  Those first starting out seem to think that they can file a motion and that a court will simply RULE ON IT.

 

While this is sometimes true in appellate practice, where essentially all motions are determined by submission and without hearing, and MIGHT BE TRUE in some jurisdictions where a local rule provides for determination of motions by submission, it it NOT ordinarily the case in most places.

 

To the contrary, you can file all of the motions you like, but if you fail to SET THE MOTION FOR A HEARING, then the motion is often NEVER considered or actually decided.

 

In respect of a motion to enlarge or a motion to file something out of time, the state equivalent of Federal Rule 6(b), if you MISSED A DEADLINE, then in most places it is incumbent upon YOU to (a) make a motion for enlargement of the time, (b) support the motion by affidavit and/or other evidence and (c) set the motion for determination by hearing or submission.

 

If you FAIL TO DO THIS, then the motion is NEVER considered.  And if you are asking for more time, then you need to ACT WITH DILIGENCE.  If you move for more time and never set the matter for hearing, the motion is usually DOA.

 

*

 

Even MORE ALARMING is your assertion "Somehow the plaintiff's attorney got the too busy judge to wake up and render a judgement."  Unless you have made a poor choice of words, your case is already OVER.  First, it seems that you ASSUME that the Judge is too busy to rule on your motion, when actually the problem is likely to be failing to set the matter for hearing.  If you were standing in front of the Judge arguing your motion, the Court very likely would have handed down an oral decision on the spot and probably signed the order if you had it ready. 

 

The TIME to file a Motion To Dismiss is while the case is pending and WITHIN THE TIME ALOTTED TO ANSWER OR RESPOND.  If you MISSED that deadline, and the court already entered a final judgment (in New York State, very often an order of reference, appointing a referee), then you have ALREADY LOST YOUR CASE.

 

If a judgment has been entered against you, particularly by default for having FAILED TO TIMELY ANSWER, then the wording of your Motion To Dismiss (MTD) is wholly irrelevant.

 

You may have achieved the functional equivalent of failing to show up for a game while waiting for your uniforms to be pressed, calling ahead and telling the umpire you wanted him to DELAY THE START OF THE GAME and then stopping for a move on the way from the dry cleaners.  You arrive AFTER the umpire has awarded the game to the opposing team, the opposing team has left the field and the stadium and everyone in the bleachers has gone home.

 

Now, you are going to complain that the Umpire should rescind the no-show default loss, call everone back to the stadium and re-schedule the game at your convenience, so everyone can watch you play in a pressed uniformBaseball and law doesn't usually work that way.

 

Often, 90% of success is just showing up.

 

It is almost impossible to successfully appeal a default judgment, except in cases of defective service.  Where you have already filed documents with the Court, but these were poorly conceived or ineffective, you have little hope of persuading the Court that you DIDN'T KNOW ABOUT the case.

 

One reason you can rarely win an appeal on a default (almost anywhere) is that most appellate courts will only consider on appeal the arguments you already MADE to the trial court.  WHEN YOU FAIL TO ANSWER, YOU DIDN'T MAKE ANY ARGUMENTS AND IN MOST PLACES ALMOST ALL ARGUMENTS ARE THEREFORE WAIVED.  When you WAIVE all your arguments, then there is usually nothing to appeal.

 

There ARE some valid means to have judgments set aside.  It is NOT easy to do so.

 

IF YOU MISSED YOUR FILING DEADLINES AND TOOK YOUR TIME CRAFTING A MTD WHEN YOU WERE ALREADY OUT OF TIME AND/OR IF A JUDGMENT HAS ALREADY BEEN ENTERED AGAINST YOU, YOU NEED TO GET OVER YOUR FANTASY THAT YOU ARE CAPABLE OF DEFENDING YOURSELF PRO SE AND GET AN ATTORNEY AS QUICKLY AS POSSIBLE.  YOU NEED TO AT LEAST SPEAK TO AN EXPERIENCED ATTORNEY!

 

Ironically, the motion formatting issue identified by the Clerk seems to be intended to help parties AVOID the filing of motions WITHOUT setting the matter for hearing.  This rule and/or practice standard was no doubt adopted for a reason and FOR YOUR OWN PROTECTION.

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George Burns
That was an excellent response by ka. Roper would be proud

I wondered about the "I had my preanswer Motion to Dismiss ready about a month ago"? Why did you sit on it? Do the rules of your jurisdiction allow such inaction or is there a tolling of time (probably the same a time to answer)?

Then there is the "never heard back from my Motion for an extension of time"  In some jurisdictions you have to either set a Date for hearing the Motion (get it on the Motion Calendar) and/or submit an Order for the Judge to sign. This information you get from reading the Rules for your jurisdiction and from looking at case files. You do not get it from Ann's documents or from misc internet documents. You should get your information from vetted and verified sources.

It seems that you are another Pro Se who has fallen victim to the misleading incomplete information so easily found on the internet or from well meaning posters who think that they are helping by giving unvetted documents. You should get your documents and information from proven sources.
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Excellent posts by both Ka and Mr. Burns.  Just to add to their thoughts, I'm not sure where in NY you are located but in my jurisdiction in NY, you have to have a notice of motion accompanied with the motion. 
Also, I was told that there must be a return date of at least 3 weeks from the date of filing
Check in your county court house and see if there is law library there, if there is, there might be a legal aid lawyer who can give you advice, not on your case, but on info on how to file papers with the court.  All motions are done by submission in my county. 
Furthermore, did you send a copy of your motion to the plaintiff's lawyers with an affidavit of service?  This is critical!  If so, the plaintiff would most likely respond with an opposition motion, and they would have to send you a copy too!  The plaintiff's attorney cannot have any ex-parte discussions with the judge about the case, if so, that is definite grounds for dismissal, if the case was already enjoined. 
I would get over to you court house ASAP and pull the records of the case, I hope that ka isn't right, and you have already defaulted and not even know it.  Good Luck.
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My guess is most of people who can't pay mortgage can't pay attorney fee so they have no choice but defending Pro Se. Sometimes if a person hiring an unexperience attorney can lose the case too.Fight it prose can delay the eventual judgment to give Homeowners time to prepare the future but few pro se win the case. Try to get an attorney before the hearing of Plaintiff Motion for Summary Judgment. After the Judgment is rendered, it is very difficult to vacate it.

I collect a collection of info and REAL pleadings written by elite Florida attorneys for info purposes at http://www.scribd.com/my_document_collections. The form and case law are differents state to state but some argurments are useful.

To see real legal pleadings of your own court house you have to go the court house, review real foreclosure cases to see samples of pleadings.and how real  attorneys fight the reakl battle  Sit on Court Hearings to have real court hearings experience.Files and Hearings are public. Clerks of Court are seldom helpful. The rules are complicated and hard to understand so go it step by step and asking for help along the way.  For example , before and after you file a Motion for Time Extension, ask the forum people what are the correct steps to do, don't wait until one month to ask the question.

To understand basic Court procedure, buy this book for about  $39 - Represent Yourself in Court - How to Prepare and Try a Winning Case by attorney Paul Bergman. Nolo  book collection. The book won't make you a lawyer but at least you have an idea what the battlefield you are getting into and some ideas how to deal with. It is nice to be able to afford a lawyer but one has to do what one has to do ...
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Gary
Ann:

ka's post seems to be spot on.  If Mr. Anderson missed his filing deadline and has had a judgment taken against himin NY, the time to be reading self-help books about law is long passed.  Mr. Anderson needs to stop playing around and find a capable NY attorney with foreclosure defense experience.  The only uncertainty would be whether they remains anything to salvage and whether the borrower would be throwing good money after bad.

This is why it is so distressing to see you continue to post unsourced material of such uneven quality.

If you have material whcih you haven't vetted, wouldn't it be better to post it as a query requesting others to identify whether it has merit rather than blessing off on it by encouraging the uninitiated to read and use the material?
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Steve Anderson
Well, I read your posts along with my legal counselor. Just like when I go on to the forum to ask for assistance in my recording forum, I seem to get the helpers  mixed up by the manner in which I present my needs. I have filed everything on time and in the proper order, it is the court that is causing the problems from everyone I am hearing from. I mean they, waited over 4 months to decide a Motion for an extension of time and only when the lender's attorney sort of pushed him into some action.

Angleo's comment was what I am needing in my pleadings. I checked out every MTD I could find locally and on the Net and mine seemed fine but like everyone is mentioning, it has to be right or spot on to be accepted. Well, I am going to let the truth decide, as that is what the law is supposed to be all about. My amount due in my foreclosure is not much, that is why I am not going to obtain an attorney. I will just keep attending to the proceedings, as the lender's attorney is tired of handling it from my closest sources as he knows I have an ace in the hole with a binding repayment agreement that I haven't even brought into the fray yet.

I do appreciate your assistance, probably need to spend more time with the writing aspect of this "legalese". I will have to file an answer probably in February sometime, so will start working on that after the New Year. Hope all yours is enjoyed, thanks again, SA
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