You are in default because I said so! About the law and THAH LAW

I've written today about the common misunderstanding by judges of a distinction between civil and criminal contempt that lead to de facto reinstatement of debtors prisons in New York State without any regard of inability of such a debtor to pay...


Do such judges think what they are doing when they are doing it?


Well, they should, and they are equipped both educationally and personnel-wise not to commit such flagrant constitutional violations.


Another commonly misunderstood concept is when a default occur.


I am aware of several judges having no clue, literally, as to when a default may or may not be granted.


By law, a default may happen only when there is proof on record of two things:


(1) that the action is meritorious;
(2) that the party against whom the default judgment is sought has been properly served, with competent evidence of such service on record, and failed to appear in the action within the statutory limit of time.


As far as I saw, judges skip both of these requirements, instead claiming, based only on oral arguments of proposing party/attorney that - if the opposing party did not show up at the hearing, that alone means a default.


One judge even invented a concept of a "frivolous" default, when there was no affidavit of service of the initial pleadings in the record.


Of course, for something to be frivolous, a person has to knowingly do it, and when there is no affidavit of service in the record, there is no proof the allegedly "defaulting" party knew his or her appearance was required by law, or else they would be in default.


Moreover, the rule of frivolous conduct, 22 NYCRR 130, sanctions only for making arguments which have no basis in law or fact or acting with an intent to maliciously harass or injure a party litigant.  Not appearing in court proceedings does not fit any of the elements of this definition.


Yet, for some judges, if they say something, true or not, lawful or not, based on a court rule, statute, precedent, Constitutional provision or not - it is THAH LAW. 


How many judges say "it is MY courtroom" and "MY rules in MY courtroom".


Some judges even participate in panels where attorneys are invited, for money and Continued Legal Education credit, to learn about the judges' whims in THEIR courtrooms.


When I hear such things I want to pinch myself to restore in myself the sense of reality.


Am I still in the United States of America?  Am I still in a country which claims itself to be the beacon of democracy and which is governed by the rule of law?


What is this "MY courtroom" and "MY rules" about?


Shouldn't the judge at least read the applicable law on defaults and review the record before making pronouncements of default, and especially, of frivolous defaults, whatever that means?


Those judges had 13 years of school, 4 years of college, 3 years of law school and at least 10 years of practicing law before they come to the bench.


If 30 years of education and practice do not teach those judges to read, and then to abide by what they have read, what will?