On 3 Jun 2012, in what even news group readers who recall only a small
sampling of his many earlier law related postings will note is a
thinly disguised while also substantially misleading feigned analogy
with a lawsuit in which he was an unsuccessful plaintiff/appellant,
01102...@neomail.co.za repeated:
> Our law in the English speaking world: N America India
> & the other ex-colonies [and in So. Africa] is all basically
> the same; originating from english law. * * *
>
> But apparently for expediency, law people don't (and
> eventually apparently CAN'T) think from first principles.
>
> So [suppose] you've got a dispute with the bank about
> your bicycle loan: where the bank claims you owe $10 and
> you can prove that you owe only $5, and you write a letter
> to the bank [that so claims, and which also clearly itemizes
> each element of acknowledged debt to the bank but the
> bank disagrees and later sues anyway] . . . .
You have never cited any "first principle" -- or, for that matter, any
statute, judicial ruling, or other even arguably authoritative legal
text that expresses any principle of law at all -- to the effect among
other things that might be mentioned:
- that requires the bank to respond at all let alone what
significance shall and need not be accorded a silent or expressed
disagreement with the customer's such letter if the bank chooses
directly to sue the customer without first responding to such a
letter; or
- that if the alleged creditor did respond before suing but
in a manner that the customer as alleged debtor believed to be
mistaken or especially if outright falsely, "first principles" of law
(not to dwell on those of self-interested practicality) signal to the
customer that he may and should decide, as you said you did, merely to
sit back and do nothing more including by not defending a lawsuit by
the bank for many years after learning he had been sued and until
still more years after the grant against him of a judgment he had
invited by way of his deliberate long time default during which period
he continued to accept but not to pay for goods or services provided
by the same creditor.
> And when you apply for the default judgment rescission,
> perhaps because the <procedure for admission of debt>
> . . . (in "next to the rules for setting aside a default
> judgment"), the clowns say you have no defence, because
> you admitted owing more than the claim.
Phrased this way, this hypothetical example is very far from what you
said actually occurred in the lawsuit on which you again base your
here repeated complaints.
In the (partly <snipped> for space reasons) example you posit above,
the debtor you hypothesize stated fact specifically and also logically
that and how, in particular, he owed what he did and did not owe all
that the creditor claimed.
But one of the few things you made abundantly clear in numerous
earlier postings about the lawsuit against you that evidently
continues obsessively to rankle you is that you based your belated
motion for relief from the default judgment you had deliberately
invited on what a spreadsheet you prepared which, however, was
confused while it also contained admissions that you owed the
plaintiff more than the sum for which it had sued and which you made
all the more confusing by an incoherent (and, not incidentally, not
rule compliant) supporting affidavit so that it was you, not your
adversaries, who virtually compelled the court to rule against you
because, in several different ways that were warranted by long
established principles of law, you did admit owing more than the claim
sued upon.
That you were ignorant of this at the time and, worse, claim to
continue to be ignorant of this reality to this day is a
self-indictment, not an indictment of "law people" even if (as of
course if regrettably sometimes is so) some "law people" are not as
knowledgeable or effective as they should be yet claim to be.
> You don't believe me ?
No. Because the facts about the lawsuit to which you actually refer
as you posted them earlier require a "No" answer if one is to be
factually and law relatedly accurate.
> I tried to start from the must basic principle of "due
> process", to see what terms THEY currently use for the
> key concepts.
> But I can't get any sense, so I'll just use MY terms.
Yes, exactly: You here again make clear that "first principles" means
to you only those you define unilaterally as bolstered (you presume)
by a self-arrogated demand that YOUR terms and not established
principles of law must govern disputes and lawsuits to which you are a
party.
> [Scenario . . .]
> The procedure [equivalent to the UK "Part 8 procedure"]
> called an APPLICATION [as opposed to an ACTION] is
> simpler/cheaper and the decision is based on the
> "founding affidavit" , "answering affidavit"
> and possibly a further [from the applicant] "replying
> affidavit", and even, rarely, permission from the court
> for further affidavits, to clarify the FACTS.
This is and was so in your country (So. Africa), too. However, note
the question begging nature of your here stated summary -- namely,
that your reference to the movant's "founding affidavit" neglects to
make clear that what you characterized earlier as your such affidavit
was at once almost entirely incoherent except to the extent that it
(when read along with your submitted spreadsheet) it admitted owing
(indeed: more than) plaintiff's claims for which it sued.
> In the same matter (to which I refer), the Appeal judges
> effectively acknowledge that the argument of the answering
> affidavit which was refuted in the replying affidavit, which
> the trial court had not accessed nor read before the hearing,
> was absurd . . . .
You here use the terms "effectively acknowledge" as if a synonym for
"did not acknowledge" and "absurd" as if a synonym for "persuasive in
conformity with long established principles of law".
> [The appeals judges acted 'invalidly'] by introducing
> THEIR OWN . . . new/not-in-the-record, argument
> which was also invalid . . . . [but i]n an adversarial
> system, it is not for the court to introduce their own
> argument.
Putting this as charitably as possible, among the reasons this is
mistaken is this: You here again neglect to cite any "first" (or
other) principle of law to the effect that where, as you earlier said
was so in the actual lawsuit to which you refer, the parties have each
submitted their respective version of the operative facts and legal
arguments, the court is not permitted to apply the law to the parties'
factual and related claims to make a determination even if in so doing
a majority of the judges rationalize their ruling in ways different
from those advanced by either (or both) parties.
You might have had a legitimate basis for complaint if you had shown
that/how the reasoning you say the trial court or appellate judges
"introduce[d on] their own" violated basic principles of due process
in some prejudice causing manner, but you have never done this in
other than a merely sloganeering/conclusory (and invective laden)
manner.
> By throwing a new argument at the pro se' party
> (standing up) they denied the appellant due process,
>opportunity to disprove their argument.
While some degree of flexibility generally is accorded to pro se
parties, a person who, like you, chooses to proceed unrepresented by
an attorney nonetheless is properly required and therefore
legitimately presumed to be well prepared. This indeed is especially
so in a garden-variety and therefore substantially simple debt
collection case like the one to which you refer.
> [A later related Scenario]
> At a sheriff sale/auction it was witnessed that the
> land/house which was auctioned, was bid far above
> market price, so that after the genuine bidders were
> driven away, the sale was 'cancelled and said to be
> <rectifyable - because of a mistake> and then the
> land/house was re-auctioned to the scammers with
> no competitive bid.
> I'm speculating that the existing law allows this,
Liberally construing this summary by positing that the facts of the
post-judgment enforcement proceedings in the lawsuit against you to be
as you here suggest, the law of your country (as in British law
influenced countries elsewhere) makes available to a judgment debtor
any number of remedies -- in other words, does not allow this -- if
the debtor does not fail as you imply you chose to do to avail himself
of them.
> [Another Scenario]
> The pro se applicant of scenario . . . found an attorney with
> specialised municipal law experience, who discovered a new
>i ndependent cause-of-action to set aside the default judgment.
Your earlier postings demonstrated that this was not so in the lawsuit
to which you were a party on which you purport to base your present
posting. Those postings showed that what he (said to you that) he
"found" merely was a way to try merely cosmetically to re-label as if
"a new" ground what, in actuality, were claims/grounds you raised by
your initial correctly denied motion so that, as the trial judge and
later the appellate judges correctly ruled in that lawsuit, you were
barred by principles (actually something very close to "first
principles") of res judicata and collateral estoppel from trying to
relitigate already decided claims and issues.
> * * *