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This matter demonstrates how many legally trained people have
difficulty realising the consequences of events changing over time;
eg. that events which occur AFTER a default judgment can't justify
such default judgment.
Consider: If I murder my wife AFTER filing the appeal against the
conviction of murdering her, the appeal should be upheld, and a
new charge initiated.
--------
In order to escalate the repeated false municipal billing to a Court
hearing I notified them that I would be withholding payment until
they fixed their errors. <The national municipal billing chaos after
the ANC [in S.africa] take-over is amply documented on the web.>
The statute allows the municipality to take legal action after the
amount of the notice of arrears remains unpaid for 6 weeks.
Q1: is it clear that since all monthly statements delivered AFTER the
mandatory notice of arrears, showed the amount of the notice as fixed,
and labelled as "hand over balance", whereas the accumulating debt
incurred AFTER the notice was listed separately; that this confirmed
that [as per the statute] only the notice of arrears amount was to be
sued for - by that/present procedure?
Q2: is it clear that "hand over" is common language for 'being sued for',
and that therefore charges incurred AFTER the statutory notice, and
listed separately in the monthly statements, were not at that stage
being sued for - as per the statute ?
Q3: is it relevant that the same statute provides for the municipality
to withhold the right to transfer the fixed property, until all debts
have been paid, and therefore the municipality/creditor has security
and therefore the normal debtor creditor dispute procedure, where
the amount owed is adjusted up to the date of hearing, to allow the
parties to disengage, does NOT apply, since the captive client
property owner CANNOT disengage/abscond from the municipality ?
Unknown to myself when I wrote to the municipality:
"your claim is for $4'444, but now the CORRECT amount per enclosed
spreadsheet has accumulated to $7'777, so please accept same as
being correct, else show where/that my calculations are wrong";
a default judgment had already been granted some months previously.
Q4: is it clear that even without the limitation imposed by the statute,
ie. for a common law debt, the default judgement could not have
considered charges which THEN had not yet occured, and that the
written admission of owing [vs. sueable] $7'777 did not apply to
the default judgment ?
At the appeal, the judges accepted new grounds, different from the
original implication that 'cause comes AFTER effect' and wrote:
"...when the summons was issued your
admitted indebtedness was R5 083,39, which exceeds the amount
claimed in the summons..."
The new attorney who I selected because he almost knows how to use
email now writes:
" This tells the court that you owe the money. "
Q5: by "owe" does he mean present tense:
when he wrote it, when the magistrate ruled, when the appeal ruled,
...does the time of 'owing' matter ? Does this attorney understand
time and sequence and cause & effect ? Does superficial legal training
remove such understanding ?
Q6: Is this attorney who charges me more than the equivalent of the
state monthly pension, for a brief reply to my email questions,
competent, or is he just fooling me ?
Q7: is it true that although at the time of the original rescission
application, I had already paid in excess of my calculated amount then
owing, this is irrelevant to the default judgment, since only the amount
admitted at the arrears-notice date applies to the default judgment
rescission/variation application ?
When I asked him: "why did the appeal judge[s] emphasise that the
spreadsheet showed that the claim was less than the amount
admitted as owing at the summons issue date ?"
He replied:
}As to why the appeal judge emphasised aspects from the
}spread sheet, I cannot say. I have not seen the appeal papers
}nor have I read the judgement.
Q8: is it apparent that he doesn't even understand the almost sound
logic of the appeal judges, which would have been valid for the
common law situation, except for the statute ? Ie. the comparison
of claim against admitted amount suable at the CORRECT comparison
date is applicable ?
The precedent:
Silky Touch Intnl (Pty) & another v Small Business Development Corp Ltd
All South African Law Reports [1997] 3 439 (W) case A36/96
is closely related to my matter and the appeal judge writes:
<But it is not for plaintiff to prove anything. It was the defendants who
had to show "good cause", to produce evidence which satisfies on a prima
facie basis that facts do exist which indicate that defendants owe LESS than
the plaintiff claims. ...Nothing convinces that any fact prima facie exists
which can justify an eventual finding that the..sum was ever reduced below
R17xx or was not R20xx on 1 Nov 1995.>
Q9: does this again confirm that the deciding criteria is whether the
amount admitted as owing exceeds the claim AT THE RELEVANT DATE ?
And that the appeal judges in my case would have been right, except
that they didn't know about the statute ? And that the clowns at the
magistrate level would have been right except that time doesn't
run backwards ? And that my 'new attorney' doesn't even
understand the logic of the slightly flawed previous rulings ?
Q10: since the municipal accounting department just kept adding
legal charges and interest as well as further false billing charges
[which they previously admitted/expalined as computer errors],
and the later accounts didn't reflect the fantasy claimed in the
municipal's heads of argument for the appeal that "the claim
reflects amounts owing up till <several months after the notice>",
[ie. they pretend to not charge for 3 months after the notice, in
order to falsely make the comparison date equal to the summons
date instead of the notice date - per statute]; the chaos has not
been resolved. So what is the relevance of the fact that the
clean-cut resolution implied by the default judgment granted to
the municipality, is not reflected in their later continuing accounts ?
Ie. the isssue that was the basis of the action has not been resolved.
Ie. the municipal accounts department opperates in conflict with
their attorney.
Q11: is it true that in US & UK-derived law the citizen's dealings with
govenment departments entails a greater consideration of equity
than between private litigants where some 'gun-slinging' may be
permitted, and that the 'unbalanced opponents' principle applies,
and especially 'in the public interest' applies strongly, and that the
statute clearly intends to avoid the desperate gun-slinging that the
municipality and it's incompetent attorney resorted to, under the
pressure of a collapsing accounting system, due to the general
political/social chaos after the ANC take over ?
Thanks for any feedback from non-hecklers,
== Chris Glur.
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On Sat, 08 Mar 2008 07:59:07 -0500, problems@gmail wrote:
This matter demonstrates how many legally trained people have
difficulty realising the consequences of events changing over time;
eg. that events which occur AFTER a default judgment can't justify
such default judgment.
I'm not sure what your point is, and suspect you aren't, either.
Default judgment is based on the failure of a party to respond to
a claim. This default obviously occurs before the judgment.
Consider: If I murder my wife AFTER filing the appeal against the
conviction of murdering her, the appeal should be upheld, and a
new charge initiated.
This scenario has absolutely nothing to do with default judgment.
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On Sat, 08 Mar 2008 07:59:07 -0500, problems@gmail wrote:
I'm not sure what your point is, and suspect you aren't, either.
Default judgment is based on the failure of a party to respond to
a claim. This default obviously occurs before the judgment.
There are 2 issues to consider for a default judgement rescission:
1. reasons for the default,
2. a prima facie defence.
You are considering 1 and I'm considering 2.
I have precedence because it's my 'thread'.
Consider: If I murder my wife AFTER filing the appeal against the
conviction of murdering her, the appeal should be upheld, and a
new charge initiated.
This scenario has absolutely nothing to do with default judgment.
That's why I put it 'up front' - those who can't think beyond the
familiar can just drop-out immediately.
Or if you've understood from the above that events AFTER a judgment
can't justify the judgment, then the actual matter looks like this:-
here's 5 months billing from your monopoly-supplier, who've admitted
that they're over-billing by 10% due to computer error:-
Month Billed Correct
--------------------
1 $11 $10
2 $22 $20
3 $33 $30
4 $44 $40
5 $55 $50
Just before month-1 you've notified them that you're withholding until
they fix their computer errors, else allowing the matter to go to Court.
At month-1 you receive a [mandatory] notice of arrears warning that
unless you pay the $11, they'll sue.
At month-5 you write to them saying: "Re. your claim for $11,
see enclosed spreadsheet calculations. I now owe $50. Please
accept $50 as current amount owing, else provide explanation
of any [possible] errors of my calculations."
Q1. would it be correct to say "since you have admitted to owing
MORE than the claim, you would have no defence in your argument
that 'you owe less than they are billing you for' " ?
Q2. If you in fact do have a defence, then what words are to be used
to explain it to the arse-hole-legal-professionals so that they may
understand ? Accountant & engineers don't believe me that the
legal-professionals dispute it.
Q3. If you later discover that a default judgment occured at month-3,
and you apply for a rescission [should really be just a variation] in
month-6, is it a valid argument that you have no prima facie
defence because "you admitted owing MORE than the claim" ?
The claim and the summons [seen after the judgment] are for $11.
Try this:-
You are heard to say that you are going abroad on Xmas holiday
before you start/register a new company, which will be named
Ajax Corp. at 123 York Ave.
I initiate a claim and a summons which leads to a default judgment
to Ajax Corp. at 123 York Ave. while you are abroad, and
BEFORE Ajax Corp. EXISTS.
After you return and start Ajax Corp., I start supplying and
wrongly billing as per above example, except that Ajax Corp.
only comes into existence after the default judgment.
Q4. Since at the time of the rescission application, you
owed more than the claim, what if any is your defence,
to avoid me continuing my false billing [as a monoploly
supplier] ?
Thanks for any feedback from non-hecklers,
-crg
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n 16 Mar 2008, <Chris Glur> problems@gmail continued self-confusingly
continued to try to argue and pretended again to ask:
There are 2 issues to consider for a default
judgement rescission:
1. reasons for the default,
2. a prima facie defence.
This is not correct. If you insist on summarizing as if a couplet,
the issues a court in your country are required to consider (pursuant
to legislation based explicitly on the U.S. FRCP and also related
rules and decisional law comparable to that which also pertains in
most U.S. states) in deciding whether to grant or deny in whole or in
part a motion to rescind (vacate) a money judgment granted on default
are:
1. Whether, in light of the particular ground(s) for
relief claimed in/by the motion, the movant for such
relief made his motion within the time allowed and
also at least substantially in the form prescribed by
applicable law: and
2. Whether the papers served and filed in support of
such a motion (considered in light of the nature of the
opposition thereto if the motion is opposed) prove the
existence of at least one of the (clearly specified)
legislatively provided grounds for the grant of such
motion.
Some such grounds themselves constitute a defense -- e.g., that what
plaintiff claims to be proof of service of the summons and complaint
is false and that no such service was made so that the court lacked
personal jurisdiction over the defendant to grant a valid such
judgment; or that the lawsuit was filed in and the judgment on default
was granted by a court which, however, lacked any law-conferred
authority ("subject matter jurisdiction") to adjudicate the claims
sued on (i.e., in the parlance of the applicable law in your country,
that the judgment was "void ab initio"); etc.
Other such grounds -- e.g., that though process was served in some
authorized manner, this was effected only by a "substituted" and so
not "personal" mode of service on defendant and that, in addition,
there are both bona fide excuses for the failure of defendant to have
answered or otherwise defended before the grant of the judgment on
default (i.e., an evidentiary showing that the default was not
"deliberate" or "willful" or otherwise substantially self-induced) and
also a competent evidentiary and also law-supported showing that, if
defendant were permitted in the court's discretion in such case to be
heard on the merits, that he has provided the court with documentary
proof or other law-competent evidentiary facts to the effect that
defendant would have an at least substantially well-merited defense.
All your postings including the present one conflate as if one and the
same what are separate such considerations while also deflecting from
the question,
To what extent, in particular, did the motion you made
for relief from the actual judgment to which you
refer comply or fail to comply with the law-precribed
requirements that must be met as a precondition to the
grant of such a motion?
here's 5 months billing from your monopoly-supplier,
who've admitted that they're over-billing by 10% due
to computer error:-
You are insufficiently clear here whether you are saying by "admitted
that they're over-billing by 10%" that the services seller stated on
the bills you go on to hypothesize (at least in substance if not in
these exact words), "We're over-billing by 10% and so you the customer
being billed are obliged to pay only 90% of the sum billed!" . . . or
saying little more than that an acquaintance had reported to you a
rumor or maybe that the press had reported but you had not proven in
the papers putatively in support of your motion as applying to you, in
particular, that the services supplier/seller plaintiff had made some
statements in respect of some other customers maybe at some times or
some places in your country elsewhere than at issue in the lawsuit
against you, it made approximately such errors . . . or that you are
saying that even if the bills you hypothesize do not contain a
statement to the above effect, that your motion included a persuasive
evidentiary showing that, at the times and in the place pertinent to
you, there was the 10% disparity you otherwise only generally/vaguely
claim above. etc., etc.
Month Billed Correct
--------------------
1 $11 $10
2 $22 $20
3 $33 $30
4 $44 $40
5 $55 $50
Just before month-1 you've notified them that you're
withholding until they fix their computer errors, else
allowing the matter to go to Court.
At month-1 you receive a [mandatory] notice of arrears
warning that unless you pay the $11, they'll sue . . . .
. . . thus actually alerting you to the probability that you would be
sued -- a probability which you also have acknowledged very soon
thereafter became the fact in the actual lawsuit to which you refer --
and which therefore relatedly puts in question both your credibility
in general and the bona fides in particular of your much later made
claim that your default was excusable albeit you waited more than more
than two years after the grant of the judgment on default (which, you
have also acknowledged, was at least more than one year after you had
actually learned of the judgment in question) to make your motion for
relief therefrom.
At month-5 you write to them saying: "Re. your
claim for $11, see enclosed spreadsheet calculations.
I now owe $50. Please accept $50 as current amount
owing, else provide explanation of any [possible] errors
of my calculations."
You hypothesize this merely as a unilaterally made request and not (as
you go on therefore incorrectly to characterize it) as an "argument"
and yet you also at least implicitly acknowledge that that request was
made in the face of a contractual relationship which, you also have
acknowledged, included an obligation, undertaken by you as
preoprty-owner/customer willingly buying and using for your account
the services in question, to pay bills for such services when required
by the underlying services providing agreement and by those bills and
by applicable law.
Q1. would it be correct to say "since you have
admitted to owing MORE than the claim, you
would have no defence in your argument that
'you owe less than they are billing you for' " ?
The answer depends on also knowing whether the letter referred was
mailed before or after the plaintiff claimed to have validly commenced
a lawsuit and, if so, by what (if any) means at what address(es) and
on what persons plaintiff had served process and, perhaps too, on
whether a judgment on default had/hadn't been granted.
If a lawsuit had been commenced by the time the letter you posit was
sent, the answer would also depend on whether what you refer to as a
"defence" was/wasn't alleged as such in/by a timely served/filed
answer or demonstrated to be such in an appropriate motion
served/filed in that lawsuit.
You go on to posit in your Q3 below that a default judgment had been
granted to plaintiff two months before the letter referred to above
but you do not make clear whether your scenario and question above are
or are not meant to include that (in the circumstances: hardly
trivial) fact.
If the letter referred to was mailed after the grant of the
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problems@gmail wrote:
henri wrote:-
There are 2 issues to consider for a default judgement rescission:
1. reasons for the default,
2. a prima facie defence.
You are considering 1 and I'm considering 2.
I have precedence because it's my 'thread'.
A prima facie defence? What in the world does that mean in this
context? (Unless you're British, it should be "defense.")
Or if you've understood from the above that events AFTER a
judgment can't justify the judgment, then the actual matter looks
like this:-
Sorry, but no, I can't think of any situation in which events AFTER a
judgment can justify the judgment
here's 5 months billing from your monopoly-supplier, who've
admitted that they're over-billing by 10% due to computer error:-
[snip]
At month-5 you write to them saying: "Re. your claim for $11,
see enclosed spreadsheet calculations. I now owe $50. Please
accept $50 as current amount owing, else provide explanation
of any [possible] errors of my calculations."
Q1. would it be correct to say "since you have admitted to owing
MORE than the claim, you would have no defence in your argument
that 'you owe less than they are billing you for' " ?
When you get a judgment, it is for the amount that is due on that date.
So your quoted statement is nonsensical.
Q2. If you in fact do have a defence, then what words are to be
used to explain it to the arse-hole-legal-professionals so that
they may understand ? Accountant & engineers don't believe me
that the legal-professionals dispute it.
You have a defense to the overcharge, but not to the actual amount due.
You just tell them that.
Q3. If you later discover that a default judgment occured at
month-3, and you apply for a rescission [should really be just a
variation] in month-6, is it a valid argument that you have no
prima facie defence because "you admitted owing MORE than the
claim" ? The claim and the summons [seen after the judgment] are
for $11.
Normally when someone fails to pay a debt that includes periodic
payments, the creditor has the right to call the entire debt due at
once, and that's the amount they sue for. So when suit takes place is
largely irrelevant.
Additionally, you have admitted owing what was actually due and no
more. So even if it is admissible as an admission (which it often
won't be) it does not eliminate any "prima facie" defense.
But what does this have to do with what happens after a judgment?
Nothing that I can see.
Q4. Since at the time of the rescission application, you
owed more than the claim, what if any is your defence,
to avoid me continuing my false billing [as a monoploly
supplier] ?
Assuming suit was only for the number of periodic payments due on the
date it was filed, a default judgment would not be entered for a number
greater than the amount sued for. The fact that additional payments
came due after that date is irrelevant to that particular judgment -
the creditor would be required to sue again on any payments not
included in the original suit.
So no, again, what happens after a judgment is entered has no effect on
the judgment per se, with the possible exception of payments made or
collected that satisfy the judgment, and interest that would accrue on
any outstanding balance.
Stu
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n article <qds1u3dv729j716i0h0cpld55tv60vk573@4ax.com>, Stuart Bronstein
<spamtrap@lexregia.com> wrote:
Sorry, I missed this reply, since I'm posting from dark[ening] africa.
problems@gmail wrote:
A prima facie defence? What in the world does that mean in this
context? (Unless you're British, it should be "defense.")
Perhaps you read from us.legal.self-represent, but I crossposted
to misc.legal.moderated, alt.philosophy.law also.
Life's complicated, but when I point that out to the legal-boys
here, they mostly say "no it's not complicated, it's just that you
are wrong...wrong".
Or if you've understood from the above that events AFTER a
judgment can't justify the judgment, then the actual matter looks
like this:-
Sorry, but no, I can't think of any situation in which events AFTER a
judgment can justify the judgment
Good, then can you see that a superficial 'evaluation' of "admitting
more than the claim of a default judgment AFTER the dj" could be
taken as implying there is no defense to said dj, since one of
the first/simplistic reasons for refusing a rescission of a dj is
'admission of guilt' eg. admitting that 'more than the claim is
"owed" ' ?
here's 5 months billing from your monopoly-supplier, who've
admitted that they're over-billing by 10% due to computer error:-
[snip]
When you get a judgment, it is for the amount that is due on that date.
So your quoted statement is nonsensical.
Forgive me for nit-picking: we must be precise.
Since it's a default judgment, the [potential] defendant didn't "get" it.
So at the date of the dj the judgment given would be for the claim,
no matter what [or nothing, or negative/credit balance] is due.
And I appreciate your distinction between "what is due" and "what
you owe" [like how much do you owe on your mortgaged house].
It's just that I think it's safer to use the actual record's words.
Q2. If you in fact do have a defence, then what words are to be
used to explain it to the arse-hole-legal-professionals so that
they may understand ? Accountant & engineers don't believe me
that the legal-professionals dispute it.
You have a defense to the overcharge, but not to the actual amount due.
You just tell them that.
Well OK thanks, I'll see if they can understand those words.
Q3. If you later discover that a default judgment occured at
month-3, and you apply for a rescission [should really be just a
variation] in month-6, is it a valid argument that you have no
prima facie defence because "you admitted owing MORE than the
claim" ? The claim and the summons [seen after the judgment] are
for $11.
Normally when someone fails to pay a debt that includes periodic
payments, the creditor has the right to call the entire debt due at
once, and that's the amount they sue for. So when suit takes place is
largely irrelevant.
OK, that further explains/confirms where/why they went wrong.
They followed the "normal"; but this is a municipal/government
service regulated by it's own statute.
And the concept of 'the right to call the entire debt due'
implies a 'final settlement' allowing the parties to 'disengage'.
Which is NOT possible between a land-owner and the municipal
authority. Which IMO is why carefully crafted legislation exists,
with a big equity component.
Do you agree with this [paragraph] ?
Additionally, you have admitted owing what was actually due and
no more. So even if it is admissible as an admission (which it often
won't be) it does not eliminate any "prima facie" defense.
OK, the original local attorney who eventually conceeded this, said
"the difference is not substantial enough". Which IMO is again
lapsing into the normal/familiar. Here the dispute is about a
repeating error [which is confirmed] by the plaintiff's accounting
department, so whereas for the normal case where the parties
can disengage [walk away], here the account mess has not yet
been resolved - years later. That's how Africa degenerates.
Since the Court's function is to resolve disputes is should not
be swept under the carpet as 'not substantial'. And that's
independant of the fact that the matter escalated to the municipality
'confiscating' the property...tenants evicted...houses demolished,
property standing derelict ...
But what does this have to do with what happens after a judgment?
Nothing that I can see.
Correct, but can you see how the wrong/simpistic reasoning
came about ?
Q4. Since at the time of the rescission application, you
owed more than the claim, what if any is your defence,
to avoid me continuing my false billing [as a monoploly
supplier] ?
Assuming suit was only for the number of periodic payments due on the
date it was filed, a default judgment would not be entered for a number
greater than the amount sued for. The fact that additional payments
came due after that date is irrelevant to that particular judgment -
the creditor would be required to sue again on any payments not
included in the original suit.
Yes, and especially since the applicable statute allows the municipality
to veto any property transfer, the defendant can't abscond.
So no, again, what happens after a judgment is entered has no effect on
the judgment per se, with the possible exception of payments made or
collected that satisfy the judgment, and interest that would accrue on
any outstanding balance.
Stu
Well, if I can capture/freeze your confirmation and build on it, the next
level is where the appeal changed the reasoning to "Oh, well if you
want to dispute cause coming after effect, then by your spreadsheet
you still 'owed' more than the claim *at the summons date*, so you've
still got no defence. Which is less absurd, but still fails because:
1. Which I only found out later, the statute requires the municipality
to issue an arrears notice and wait 6 weeks with no payment, before
suing for the *amount-of-the-notice*. Which they did, but defectively.
2. But the implications of the statute were containe
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