Rebuttable Presumption

“A Rebuttable Presumption Of Apparent Authority”

    • While one side is present and fully represented in court, and the other side is not? There is a bias!

    • When one side is vested with actual authority while the other side is presumed to have apparent authority? There is a bias!

    • 3) The attorney entering into the binding settlement on behalf of the creditor, specifically did not have the authority to do so.

    • 4) That attorney did advise his client that a scheduled hearing had been adjourned when in fact it had not been adjourned. Upon information and belief, there was a conspiracy to deny the creditor their day in court.

    • 5) Under such circumstances, when a hearing is not scheduled for settlement and yet one is suddenly confirmed? There is a bias! Such were the circumstances in Federal Bankruptcy Court on July 20th, 2005. However, there was still a fourth, and most compelling bias in the court that day.

      The creditor’s absence from the procedings created an overwhelming bias that was at the very least disturbing. The debtor was fully represented, in person and by counsel, while the creditor was not. The debtor concurrently instructed his counsel, and otherwise actively participated in the procedings, and thereby had an immediate impact on the outcome, while the creditor was denied their civil rights. In a trustee’s deposition held on Jan 30, 2008, the debtor freely admits to having personally met with the creditors’ attorney outside of the court room. The creditor believes that “influence” was brought to bear on their attorney which resulted in this unauthorized settlement. The scales of justice were heavily tipped in the debtor’s favor.

      In the absence of full and equal representation in the court, a binding settlement should neither have been contemplated nor confirmed. For the courts to uphold that attorneys are vested with an apparent authority is to conclude that their clients relinquish their rights when they retain counsel. Clients hire attorneys to represent them, not to hold dominion over them. A client’s basic right to affirm or decline a binding settlement is inviolate and must not be usurped. In the absence of a client’s physical presence in a court of law, or the client’s signed affidavit ceding, or yielding actual authority to an attorney, the court cannot presume that the authority exists. It certainly did not in this case! Justice is a sacred covenant that demands truth; nothing contrived, nothing less. Federal Rules of Evidence!

      Facing overwhelming evidence that the creditor’s attorney was not authorized to enter into a settlement, the debtor nevertheless mounted a vigorous, eighteen month defense in an effort to cram down the settlement. It is obvious that this was a settlement much to the debtor’s liking and ran counter to the interests of the creditor.
      Justice is a concept involving the fair, moral, and impartial treatment of all people, especially in law. It is often seen as the continued effort to do what is “right.” Justice is completely contingent upon the equal application of logical and “correct thinking” and it is simply inconsistent with bias.

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