You are here:

Bankruptcy Law/adv. complaints/mot. to compel

Advertisement


Question
QUESTION: I had to start over-the last thread would not let me continue. To answer your questions: there is a settlement hearing on 6/14 and a trail on 6/24/13.  I did file a complaint against this trustee with the US Trustee's office, then had to file a complaint against HIM with HIS boss - nothing as yet. welcome to Illinos. I ahve finished my Mot. to Compel and did incorporate many of the things you suggested.  I tweaked it to use some language that would be used in admissions, etc. I did file a complaint with the atty governing body here, the ARDC, (attorney registration and disciplinary committee) however, since the attorneys do not represent ME I cannot complain there UNLESS the judge finds sanctions against them for some kind of violation, then I can file my complaint again. I can file a civil/state lawsuit against them for the tort of Malicious Prosecution.after the case is close..there are punitive damages in that case along with actual IF prevailiing.  I will research the appellate panel - great suggestion and I will follow through with that.  This judge is brought out of retirement, 72, and doesnt even bother to confirm any statement made by an atty,  and DOES deny any motion or pleading without even reading them. I have proof of this.

ANSWER: Your best bet is position this case for appeal and make a good record;  remember your notice of appeal MUST be filed NOT LATER THAN 14 days after entry of the judgment on the docket OR entry of a signed minute order;  then you have 14 days after that to designate the issues & record on appeal.  Let me know when you get to that stage.  Meanwhile just make the best record you can   AND you can call the other side witnesses FIRST as hostile witnesses pursuant to fed. rule of evidence 611(C)  AND ask them leading questions.

A leading question is (say to a police investigator) "you found the shell casing in my x husband's pocket, right?   you took the shell casing out of his pocket, right?  you're friends with him, right?  You threw the casing in the storm drain, right?

get the idea?  Leading questions suggest the answer you want -- do not make "statement"questions;  "you found the shell casing in the pocket.....period"  always end with "right" or "correct" or "true"

Get a copy of the federal rules of evidence and brush up on what is hearsay and the exceptions to the hearsay rule allowing admission of evidence anyway....

Lee

---------- FOLLOW-UP ----------

QUESTION: Thanks!!! I have now incorporated into my doc. the reference to the Rule of Evidence numbered 611(C), that I will file designating the witnesses I will call, and the exhibits I will present as proof. Yes, I get the idea. Your advice is great - I did not think of ending my questions with a questions of 'right' or 'correct'. That is a GREAT suggestion.  Thank you. Since I'm Pro Se, and can submit things they cannot submit, I have forwarded two diff. Request for prod.(one for each adv. complaint), one Req. for Admissions, and have prepared a Req. for Summ. judg., too, that I can file as well, and have already filed my Mot. to Compel.I am printing a copy of the federal rules as we speak. I'm propelling everything I can think of and can get by with upon them so I stay within the demanded time frame dictated by this court. Hopefully they think they've been attacked by aliens from Mars!

ANSWER: I don't announce in advance that I'm calling them as an adverse witness;  they'll figure that out from your witness list that has their name(s) on it as well as "and any witness the plaintiff lists" as your potential witnesses.

What I like to do is when it'd my turn call them as a witness under this rule,

"I call Joe Jones, Federal Rule of Evidence 611 C";  I actually have a judge ask me what that section meant a few mos ago when I did this;  the explanation "it allows me to call a hostile witness and ask leading questions"  is all that need be said.

And you now know about leading questions -- good luck with this!

Lee

---------- FOLLOW-UP ----------

QUESTION: Hi!  You are 'spot on' as usual. Here in Ill. I have to file a witness list and I've made it up like a pleading and incorporated the 611 in my text starting with - Comes now, etc. and Under Rule 611(c), etc.  Then I list these two bozo's, followed by my list of exhibits. They will croak.  I filed my Mot. to compel and have a hearing for 5/20 on that, a settlement hearing on 6/14, and a trial 6/24.  Gonna be busy. This judge is going to be surprised because I'm going to be really pro-active in his court..about time he woke up.I am surrounded by legal documents and will need a mule to assist taking this stuff into the court.  I have a travel case on wheels and I am going to use that.Am waiting for a response to my  2nd. Req. for Doc's on the 2nd adv. complaint and on the Req. for Admissions.  It will be interesting what kind of Tom-foolery they pull this time.  They will just get another Mot. to Compel on that case. They don't have any evidence of wrong doing because I didn't do what they allege,BUT must fight the battle. It is GREAT knowing you are in the wings!  Thanks!!! Your suggestions are tremendously helpful and I sure do appreciate you.

Answer
Two more quick points as tv scrambles these issues horribly;

Objections -- evidentiary;  the way you raise this is say "objectin, relevance;  objection, hearsay not within an exception" "objection, no foundation"

On tv they just blurt out objection and nothing happens;  in the real world everythign stops and you make sure it DOES stop, until the judge rules and if you're not clear what he means by sustained/overruled -- be sure and ask.

Relevance is something that pertains to the issues in contest;  "do you drive a rusty car?" is not relevant to this, for example;

or  a question is asked and you say "objection, no foundation" meaning they have to establish how it is that this witness has PERSONAL knoweldge of the fact asked;

Let's say the answer to a legit question is "I was told that a b & c happened";
move to strike the answer as not admissible hearsay;

Take a look at the evidence rules on exceptions to the hearsay rule;

business records are commonly misunderstood;  these are admissible IF  there is a certificate by the custodian of the reocrds that, WHEN THEY WERE MADE they were done shortly after the events described and reported by those who had an obligation to truthfully record the information, that they were kept in the ordinary course of business, and the documents presneted are true copies of the originals;

remember--- a debt buyer of a credit cardr debt has no first hand knowledge about whether they were kept iin the ordinary course of business or not, and DON'T STIPULATE that they are;  they need to prove they are;  and simply because "the creditor gave me these records" is not a foundation;  they become inadmissible hearsay if that's the best theyv'e got

Without these ducks in a row, there is no foundation to establish the business record exception (look those points up in the ev. rules) and the documents are inadmissible hearsay.

I think you'll do fine because you have the truth on your side and that always helps.

Lee

Bankruptcy Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


LEE HORNER, ESQ.

Expertise

Consumer bankruptcy questions invited. I've been filing Chapter 7, 11 and 13 cases since 1985 in Calif and Arizona. I do NOT do homework questions. Let me know what state you're located in when you write. My bankruptcy practice is limited to California and Arizona but inquiries from other states are welcome. Your local jurisdiction determines exemptions. Find more background information at our website, www.freshStartAz.info. Individual Chapter 11 and small business chapter 11 questions invited. We can also advise on the creditor's side if for example you have a fraud case, money judgment etc against someone who has filed (or is threatening) bankruptcy. We have filed and defended numerous adversary complaints in bankruptcy court and opposed trustees' demands for turnover of assets from time to time.

Experience

My partners and I have filed over 5000 consumer and small business cases to date in California and Arizona.

Organizations
I've been a member of the California bar since 1984 and Arizona since 2004; also a member of the National Association of Consumer Bankruptcy Attorneys, Bankruptcy section of the Arizona State Bar, Tucson Association of Consumer Bankruptcy Attorneys, Arizona Consumer Bankruptcy Counsel and American Hellenic Educational and Progressive Association (AHEPA).

Publications
I've written a booklet on land trusts for real estate owners, players and dealers, and co-authored a special edition of "Stop Sitting on Your Assets". I was a writer of a monthly law review article relating to California real estate issues and pending and recently enacted legislation.

Education/Credentials
Attorney at law, experienced in trial procedures, adversary complaints filed and defended and numerous claims objection proceedings as well as filing cases for consumer and small business debtors.

©2016 About.com. All rights reserved.