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P wrote:-
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 . . . .
Ms. Timely wrote:-
. . . thus actually alerting you to the probability that you would be
sued -- a probability which you also have acknowledged very soon
....<snip>..
YES AGAIN !! my motive to withhold was to force the matter
to a Court hearing, which is acknowledged in writing by the appeal
judges: "..he WANTED his day in Court to show..".
Take your medication to avoid repeatedly go off on the issue of
'default', which is NOT an issue for me. If default fascinates you
then open your own thread. And in general accept my FACTS
and apply you knowledge of the law to MY facts. If I write that "the
cat died on Saturday" you must accept that, unless you can logically
prove the contrary. After all this is all only virtual/internet ?
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.
That's why the amerikans got their arse kicked in Vietnam & Iraq [as
painfull as it is for me]: because they wrongly though "it's like it is
familarly back home".
Here, the 1939 [from the days of British colonialism] statute gives
ample protection to the citizen, recognising that the citizen does
NOT enter into a fair/free contract to get water & electricity from
the municipal monopoly supplier.
Also look back to my earlier references where the Supreme Court
of Appeal [in Kelder's case] states "the council is bound by it's
own statute and cannot be bound by normal commercial practice."
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,
Clearly the $11 claim is based on the $11 billing for month1
[and I've got a nice precedent for this], besides *YOU* know
that in my case the bill separated the claim form the further
accumulating debt.
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.
I didn't ask if the defense was filed, understood and accepted; merely
if it 'existed'. Ie. the facts of objective reality.
Since the letter merely *depicted* the history of true reality; and
did not cause any objective event, how can it justify a judgment
which is supposed to depend on objective truth, no matter when or
IF the letter depicted an OPINION of history ?
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.
OK, so the info. required to answer the question isn't given till AFTER
the question is posed. So I'm guilty of exactly what I'm accusing others
of. It's very difficult to forget what you already know, so as to be able
to see it from the readers view point ?
If the letter referred to was mailed after the grant of the judgment
on default (and, indeed, after the commencement of a lawsuit but
before the grant of a judgment on default), that letter, standing
alone, remains no more than a unilaterally made assertion and request
to the plaintiff, not a "defence" in any law-meaningful sense, and
would not be considered by a court as having the effect of a claimed
defense unless alleged as such in a properly served/filed answer or
established as the equivalent by way of a properly made motion
(neither of which you claim and instead appear here and earlier quite
clearly did disclaim).
No ! No ! The plaintiff's attorney claims that the letter *BARS* any
attempt at defense ! Ironically in so far as the plaintiff accepted the
letter-spreadsheet to try to BAR any defense, he has *ACCEPTED*
the facts claimed in the letter-spreadsheet. Which turn out to *BE*
a defense.
The motive for the letter was exactly what it states, a last hour
invitation to the plaintiff to admitt his error and accept the correct
payment, and NOT a defense, since it was not known that a summons
had/would be served. Any defense was eagerly waiting to be delivered
to the Court, not to the plaintiff.
.....
Again, for real-life lawsuit-related purposes, whether a defendant
"has a defense" is a FUNCTIONAL issue dependent above all on whether
the defendant not merely is not in default in answering but, in fact,
has timely/effectively served/filed an answer that alleges that
defense (or, if/when appropriate depending on the facts, notified
plaintiff and the court of a defense by way of an appropriately made
denial of an allegation by plaintiff).
OK, you're saying a defense only exists if it succeeds, and is not
an objective entity. So what should I call 'the facts and inference
which would refute the plaintiff's claim' ?
....<snip 20 lines of verbage about 'being on time & good style'>
that motion did not substantively or procedurally demonstrate the
existence of a legislatively provided ground warranting the grant of
the requested relief.)
So with my provided facts [which you can consider as hypothetical
is you want], YOU make the judgment as to whether a defense exits !!
Without dodging into irrelevancies of time-limits etc.
Any half-literate can understand time limits.
Use your superior legal knowledge [not legal clerks knowledge about
time limits and other 'procedures'] to MY facts w.r.t. 'the law'.
Eg, the plaintiff's attorney and magistrate and appeal judges did
what I've try to get you to do:
the first level WROTE "the defendant has no defence because in his
letter-spreadsheet he admitted owing more than the claim, " and
the appeal judges conceeded that 'this logic' was false by changing it
to "his spreadsheet shows that he owed more than the claim at the
summons date".
.....
In sum, what you persist in pretending not to know -- though by now
you do in fact know this -- is that whether one "has a defence" to a
lawsuit is an _operational_, i.e., in significant part, procedural
OK, I noted previously that a regular poster to this forum poi
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On 23 Mar 2008, <Chris Glur> problems@gmail wrote again about the
lawsuit against him:
YES AGAIN !! my motive to withhold was to force
the matter to a Court hearing, which is acknowledged
in writing by the appeal judges [who affirmed the
denial of my motion for relief from a default judge-
ment]: "..WANTED his day in Court to show..".
The appeals judges from whom you (misleadingly) quote an excerpt did
say that you had _claimed_, years earlier, that you were trying by
your deliberate defaults in paying what you (admittedly!) owed to
precipitate a court test of your claim that you did not owe a portion
of what you were billed for. HOWEVER, those same judges, in AFFIRMING
the DENIAL by the lower court of your motion for relief from the
underlying judgment granted against you on DEFAULT because you did not
bother even to appear in the lawsuit in which that judgment was
granted much less actually attempt to defend (let alone establish that
you had a defense) said they were perplexed by your said (VERY)
belatedly made such claim.
In truth, the appellate panel indicated politely but nonetheless very
clearly that they did not believe you in this connection, i.e., if one
will forgive resort to the technical-legal term to describe this sort
of thing, that they quite evidently believed that you were lying in
this respect.
In any case, in . . . what? . . . perhaps close to a hundred (or
more?) internet/Usenet newsgroup postings by you about this lawsuit,
you NEVER -- not even once!! -- explained, given your now above
admitted awareness that you were to be sued when you were and your
also now acknowledged default, how/why, if what you again say above
were even remotely truthful, you just sat back and allowed yourself to
be sued without even attempting a defense and then exacerbated that
self-chosen default by (as the appellate judges said also perplexed
them) then waiting more than two years after it had been
granted/docketed to make your motion to set aside the said judgment.
And in general accept my FACTS and apply
you[r] knowledge of the law to MY facts.
All my responses to your postings accept as if a "fact" what you here
characterize as "my [your] FACTS" -- not least including that you
posted what you contended was a simplified but accurate summary of the
"spreadsheet" that you submitted to the court in (putative) support of
your much belated motion which, you had contended (until you actually
posted various versions thereof), assertedly showed that you would
have had a defense if you had alleged the facts therein in an answer
then proved the correctness thereof if you had not instead just
willy-nilly defaulted in the lawsuit.
As it turns out, and as I demonstrated simply yet also very clearly by
way of very a quite simple exercise of arithmetic based, exactly, on
an "accept[ance of your] FACTS" as stated in that schedule, what you
showed thereby is that, contrary to your claim otherwise, that (in
your own word) you "ow[ed]" MORE than plaintiff sued you for. Wow -
that some "defense"! Indeed, you succeeded in convincing the appeals
court that,by the time of your appeal by your own reckoning you had
made more purchases in question for which you also did not pay and yet
the very statute under color of which you purported to seek relief
required an evidentiary showing by you ("in detail") how/that it would
not be unjust to grant you the requested relief.
The simple reality therefore is that -- according to "[your] FACTS"
(insofar as one can glean a coherent statement thereof from your often
self-contradictory postings) -- what you refer to as the "existence"
of a "defense" has never been anything more than a contracfactual
exercise in fantasy, i.e., essentially, but no more than, variations
on these two themes:
1. An underlying core claim that there has been what you
have characterized as "chaos" and the like in utilities services and
related billings in various (not by you clearly identified) places in
your country at various (but also not by you specified) times in your
country which you said you believed somehow explained what you
relatedly claimed to have been errors in the bills sent to you and the
payment for which plaintiff eventually sued you; and
2. A claim which you acknowledge you stated at best only
elliptically and otherwise confusingly in your motion to the effect
that _if_ the plaintiff had sued you for more than it demanded in its
pre-suit letter in which, before suing, it notified you of the sum for
which it intended to sue if you did not pay, and _if_, in addition,
the court had granted judgment in an amount greater than that
letter/notice-demanded sum, the court's so doing would have been
improper.
What you have succeeded in demonstrating in this connection your
newsgroup postings, however, is
That No.1 above has been entirely unavailing to you in any
real-life terms in connection with the lawsuit against you because you
did not submit to the courts in support of your motion for relief from
the default judgment ANY evidence whatever that, in fact, and how, ANY
element of such merely vaguely alluded to "chaos" (even if one were to
assume that that term and like terms you used accurately describe some
behaviors in some places at some times) actually did undermine the
accuracy (in ANY respect!) of, in particular, any of the bills on
which plaintiff based its lawsuit against you at issue in your
lawsuit; and
That Non.2 above has if possible been even less availing
because, you eventually said, plaintiff did not sue you for more than
it notified you in its pre-suit demand and, you also eventually said,
the court awarded judgment on default only in the amount (exclusive of
otherwise allowable statutory costs/disbursements and interest) of the
sum demanded in that pre-suit notice.
Thus, what you refer to as the "existence" as if of "objective
reality" of a "defense" is that, IF you had proven to the court what
you chose not to prove to the court facts that would have provided a
defense (to the effect that the bills sued upon were mistaken) and
that IF other facts had occurred which, however, are contrary to the
facts that you acknowledge did occur, and if, in addition, you had
made a showing in/by a properly made motion that you now acknowledge
you did not make, the courts should have granted you the relief to
which, however, the motion you actually made demonstrated (on its
face!) you were not entitled.
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