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cGyver wrote :-
A cause of action is a right to some form of redress in a civil court.
This lay-man thought 'a cause of action' may GIVE RISE to some
form of redress in a civil court ?
I don't understand the distinction.
IMO the CoA is an event, which has legal consequences: the right.
We scientists understand the event, which is a point of fact.
The lawers/judges use smoke & mirrors to manipulate the resulting
points of law.
BTW, you've provided the phrase which I need - legal people need
the appropriate buzz-phrases: I've been denied "a right to some form
of redress in a civil court."
Once the demand letter happened, you can't pretend it away.
Ok. Based on your post this morning, I discover that the demand
letter in your case has legal significance. There is a statute giving
the council the right to sue six weeks after the demand. But the
demand letter didn't create the debt. The cause of action is the
debt. The cause of action (debt) arose earlier.
So it strengths your argument that: generally speaking if
the demand letter is not mandated, it can be omitted.
But once it's happened it can't be pretended away.
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What about estoppel implications ?
I don't see any. The closest the word estoppel comes, is the idea
that you can rely on the demand letter, and if you do, and if the
council later claims the demand letter wasn't really the notice
required by the statute and therefore didn't really start the six week
period, you could use estoppel to prevent the council from raising
that argument. None of that applies in your case.
How about:
the defendant who deliberately with-held payment to force the
repeated false billing to court [instead of rioting, arson & loss of
life, as has happened with other captive clients/victims of the
chaotic municipal billing in new-s. africa], when receiving a
'false' demand letter for $7 for a true debt of $5, sees the [thus
MARKED by the demand letter, date of ] cause of action as being
false. And accordingly prepares to defend the expected [hoped for]
court-hearing/trial of owing AT THE DATE OF CAUSE OF ACTION,
$5 and NOT $7.
I.e. the essential condition of estoppel: that the plaintiff's
communication [the demand letter] caused the defendant to
reasonably act, in a way that the plaintiff later, unjustly wants
to use to oppose the defendants chance to have a hearing,
by way of a rescission of the default judgment [summons not served].
-- snip --
So you are saying the 'date the cause of action' could be AFTER
the "date the complaint was filed" ie. cause can be AFTER effect ?
It's possible. Plaintiff's complaint says defendant owes plaintiff
$400 on a promissory note. Defendant answers with a general or
specific denial. At trial, defendant proves that the note was not due
until the day after the complaint was filed, because of a three-day
grace period established by language in the note. But by the time of
trial, the grace period is gone and nothing has been paid. Judgment
for plaintiff, $400. The cause of action arose after the date of
filing, but due to the liberal rules about the right to amend a
complaint according to proof, the judgment stands. (I'm sure there
must be situations where this sort of amendment would not be
permitted.)
I understand and accept this.
In casu the complaint was not ammended, it corresponded
exactly in amount to the demand letterS, several months before.
More importantly: the "liberal rules re. amend complaint" are
for expediency purposes - to 'settle'. In casu the repeated false
billing of the municipality to the the captive client can NEVER be
settled, until at least one party admits fault. The issue is not
whether a once payment can settle the dispute, but whether
the council can hide their billing chaos and confiscate the
captive client's life savings by opposing his right to a hearing,
where it is not in dispute that the summons was not served.
In your example above, if the 'complaint is ammended' and the
defendant has opportunity to consider and act on the ammended
complaint, that seems just. But the argument that the unammended
complaint BECAME valid by consumption after the date of cause
of action is absurd. Particularly since the defendant is a captive
client [also the debt is a miniscule fraction of the security of the
property, which can't be transfered without municipal clearance,
and raise the concept of escrow - another thread]. So any
consumption charges after the date of cause of action, belong to
another matter.
Getting the debt paid must take lower precedence than having
the nation's justice system run correct and consistenly ?
The fact that the statute mandates a demand letter six weeks
before legal action, is IMO just a technical confirmation of the logic
of my argument. The several complications of a running to purpetuity,
captive client, fully secured by property ownership 'controlled' by
municipality, makes the simplistic case of "man buys horse for
promised payment, reasoning" inapplicable.
OK, I see you say "inaccurate amount", rather than
'invalid claim'.
Because I'm trying to get you to accept the idea that no matter how
you characterize the things that are wrong in the complaint, and no
matter what word you use to characterize the complaint, the complaint
is still good enough to support a default judgment, if the thing wrong
with the complaint are things that could have been corrected by
amendment.
I understand and accept this.
My argument is NOT that the default judgment was 'wrong',
but rather that the reasons advanced to deny an application
for rescission of default judgment [ie. chance to be judged]
are invalid.
Use of the word "invalid" in reference to the complaint
doesn't mean the judgment is invalid. There is one exception. If the
court doesn't have jurisdiction over the case, the judgment is
invalid. If the complaint is required to state the jurisdiction and
does not, a judgment based on that complaint may be invalid and may be
set asside. That sometimes happens, and I could give you examples.
But if the only problem with the complaint is that the defendant
doesn't really owe the amount stated, that doesn't make the complaint
"invalid" in the sense that a default judgment must be set asside.
I'm not sure about the meaning of "set aside".
In casu there's no dispute about a debt needing to be paid.
Legislation allowing default judgments is designed for expediency
and legislation for 'rescission of default judgements' is specifically
designed as a safety-net.
By using convoluted logic, the safety net has been denied, contrary
to the intentions of the legislators.
You can still call the complaint invalid if you want, just as you
could c
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I've been denied "a right to some form
of redress in a civil court."
Facts not in evidence- quite the contrary, in fact. You *ignored* your
opportunity to exercise your right. Use it or lose it.
How about:
the defendant who deliberately with-held payment to force the
repeated false billing to court
You have not explained your inappropriate and inexcusable failure to pay
that portion of the bill which was not in dispute. You were wrong.
Furthermore, upon paying in full that portion that you admit you owed, you
should have then sent a note stating that you will not pay any more without
a court order.
when receiving a
'false' demand letter for $7 for a true debt of $5
You don't get to decide that. A judge does. Because you failed to respond
appropriately, that is, *show up in court to prove the amount claimed was
false*, you now in fact owe the amount claimed. Now you owe it, not because
the opposing party was demanding it, but because the court, with the full
force of law behind it, says you do. Shut up and pay up before the problem-
and the bill- increases.
sees the [thus
MARKED by the demand letter, date of ] cause of action as being
false.
Except that *you don't get to decide the cause of action is false*. That's
the judge's job.
I understand and accept this.
In casu the complaint was not ammended, it corresponded
exactly in amount to the demand letterS, several months before.
That's why you *go to court*- to prove the complaint was wrong. The correct
forum for raising defenses is in the *answer* to the complaint, one answer
of course would be that the amount claimed was wrong. Whining about it
online after the fact is not. No matter how you twist it. *you are wrong*
and you don't get less wrong by repeating the same wrong claims. Your
complaints here are far less valid that the claim against you that you
insist was false.
More importantly: the "liberal rules re. amend complaint" are
for expediency purposes - to 'settle'.
Cite, please.
In casu the repeated false
billing of the municipality to the the captive client can NEVER be
settled, until at least one party admits fault.
WRONG- it can be "settled" by order of the judge.
The issue is not
whether a once payment can settle the dispute, but whether
the council can hide their billing chaos and confiscate the
captive client's life savings by opposing his right to a hearing
The issue is that you *ignored*, by your own admittance, a court hearing
that established as a matter of law the amount you owed, and if you had
shown up, you might have gotten it established in your favor. It is not the
court's job to resolve the "billing chaos" unless *you* were suing over
that. You did claim "billing chaos" in your answer, didn't you?
The fact that the statute mandates a demand letter six weeks
before legal action, is IMO just a technical confirmation of the logic
of my argument.
You'd still be wrong, and in any case, the time to bring that up was *in the
answer to the complaint*. Post judgment is *too late* to start raising
defenses. You are wrong. Pay your bill.
I understand and accept this.
Then shut up about it.
My argument is NOT that the default judgment was 'wrong',
but rather that the reasons advanced to deny an application
for rescission of default judgment [ie. chance to be judged]
are invalid.
So far you haven't provided a single reason why the judgment is invalid.
Please provide a verifiable cite to even one judgment which was overturned
on appeal *because the amount claimed in the original suit was wrong*. Note
that there may be a judgment in which the amount claimed was wrong which was
overturned, but you need to show that the reason why the case was overturned
was specifically because the amount in the original complaint was wrong.
Spend less time whining here and more time in legal research in your
jurisdiction. You'll have a lot more success providing actual cases in your
jurisdiction which support your claim than you'll have whining here (or in
court) about "justice". Justice is what the court says it is, and the court
says an admitted deadbeat- in this case *you* (because you refused to pay
the amount even you admit to having owed)- was served justice. You should
have already learned that time is of the essence, and you are wasting it by
whining here when you could be in the library researching cases.
In casu there's no dispute about a debt needing to be paid.
*You admit you failed to pay the undisputed part of the debt*.
Legislation allowing default judgments is designed for expediency
and legislation for 'rescission of default judgements' is specifically
designed as a safety-net.
The far better safety net is the *trial*. Showing up would have completely
eliminated the default judgment. You haven't shown yet that you were not
served properly (being handed a complaint with what *you claim* is the wrong
amount is *not* failure of service).
By using convoluted logic, the safety net has been denied, contrary
to the intentions of the legislators.
Yes, but by UNconvoluted logic and the use of the facts which you yourself
have provided, the safety net wasn't denied. You *ignored* it. The law has
no obligation to protect you against yourself because you insisted on being
a bonehead.
As stated I accept that the default judgment was 'valid' as a default.
Then why are you complaining? By your own admission, the judgment is valid.
You refused to pay it. The time needed to execute is far longer than the
time to have appealed. You lose because you were a bonehead. Gee, don't you
feel better, even though you lost your house, because you took a stand
against "The Man"?
The only issue remaining is whether owing more than the
I contend that the claim was determined
by the demand letter - especially since it was not ammended.
What did the judge say about your claim? Oh, wait, you didn't *ask* the
judge, did you? Thus, your own actions- or in this case, inaction- shows
that you do not believe the claim had merit, because if it did, *you would
have raised it in defense in your answer and at trial*.
the fact that the defendant
was not served, means he had no opportunity to know of such
ammendment and consequently not dispute.
How can you prove you were not served?
Apparently I'm using the wrong legal terms again:
THen why don't you buy a good legal dictionary and start reading it?
does "set aside" mean reverse the decision from guilty to not-guilty?
"Guilty" and "not guilty" are not relevant to yiur case. You have been found
*liable* for the debt, you have not been found *guilty*. Frankly, if you
don't even know that much about the law, you should have hired an atto
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not@top-post.texas.net wrote:
IMO the CoA is an event, which has legal consequences: the right.
We scientists understand the event, which is a point of fact.
The lawers/judges use smoke & mirrors to manipulate the resulting
points of law.
In the law a cause of action is simply the set of facts that gives
rise to a right to sue. Geneally it comes from an event, but it is
not necessarily so. For example one event can give rise to several
different causes of action.
When an event gives rise to a cause of action against one defendant,
another defendant's mere status may result in a cause of action
against him as well.
Ok. Based on your post this morning, I discover that the demand
letter in your case has legal significance. There is a statute giving
the council the right to sue six weeks after the demand. But the
demand letter didn't create the debt. The cause of action is the
debt. The cause of action (debt) arose earlier.
So it strengths your argument that: generally speaking if
the demand letter is not mandated, it can be omitted.
But once it's happened it can't be pretended away.
When a demand is a prerequisite, it is an essential element of the
cause of action, and the cause of action cannot arise without it. How
this all plays with respect to the statute of limitations is another
question entirely.
Stu
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