cMzmZYWV62W39eRurf7nuVfkPqKquL5rG: 2012

Monday, November 26, 2012

Pretexting And Judgment Recovery

Bank levies and garnishments are one of the primary methods of enforcing a money judgment. Usually, the hardest part of a bank levy, is finding out where your judgment debtor banks. Before 1999, one could legally lie to their judgment debtor to attempt to trick them into revealing the location of their bank. The parts of conversations with debtors which include lying, are called pretexting. Pretexting to get banking information, was made illegal in 1999. My articles are my opinions, and not legal advice. I am a judgment referral expert, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

In 1999, the US Congress and President Clinton passed the Gramm-Leach-Bliley (GLB) Act. This law made it unlawful to use any deception, lie, or untruth for the purpose of obtaining the personal banking information of a bank customer. It is now against the law to make fraudulent statements, or to impersonate someone, for the purpose of getting information such as bank account numbers or account balances.

It is also illegal to knowingly hire, or arrange for other people to use pretexting tactics. There are legal (and time consuming and often expensive) ways to discover a judgment debtor's banking information. One popular legal way is with judgment debtor examinations and third-party document requests.

Pretexting received a lot of attention in the media in 2006, when Hewlett-Packard's (HP) Chairwoman Patricia Dunn got frustrated by leaks to the media from HP's board of directors. It is claimed that she secretly acquired the telephone records of HP's board members, to find patterns of their contacts and calling. Although eavesdropping was not involved, the unauthorized access of records started a public relations mess for HP.

Pretexting is defined as "the use of false pretenses, including false statements and impersonation, to obtain consumers' personal or financial information". Because no banking information was obtained, is what happened at HP a crime? That is a gray area, because when laws are written like hammers, much of the world seems to be a nail.

In 2008, the FTC shut down and sued two companies (Action Research Group- ARG, and Eye in the Sky Investigations - ESI) that sold consumer's telephone and other personal records, because they lied about who they were, to get information under false pretenses, which was pretexting.

Primarily in the past, some judgment enforcers used to send gift cards, to try to get private judgment debtor information. Now, this might be considered pretexting, and it is not worth the risk. Pretexting remains illegal, even when you have "permissible purpose".

When judgment enforcers pay research companies to locate their judgment debtor's bank accounts, they should make sure that the company requires permissible purpose from them (and that the judgment enforcer is enforcing judgments they own), and that the company assures the enforcer they are GLB compliant and do not use pretexting.

The lesson is to be very careful about pretexting, and never use pretexts to find banking information. In general, and especially if you are part of, or related to a business, avoid using any form of pretexting.

A bank levy or garnishment is an excellent tool for judgment enforcement. Make certain that when you conduct your post-judgment asset investigation to find out where to have a bank levy served, you avoid any pretexting. For more information on this topic, check out: http://banking.senate.gov/conf/confrpt.htm

How A Wireless Expert Witness Can Help You Legal Placement Services: The Difference Between Court Reporters and Paralegals When Should You Contact a Litigation Lawyer? Collecting an Unpaid Judgment Against a Judgment Debtor Who Uses Several Aliases

Obtaining a Default Judgment From the Court Clerk in California

The topic of this article is obtaining a clerk's default judgment in the State of California. In the State of California, the court clerk is authorized upon a request by the plaintiff to enter a default judgment against the defendant without a court hearing or judicial action of any kind. However, the power of the court clerk to enter a default judgment is strictly limited by law, and the requirements are very strictly construed.

Entry of a default judgment by the court clerk is authorized only in the following situations: The action is one "arising upon a contract or judgment"; the action seeks recovery of "money or damages only" in a fixed or determinable amount; and defendant was not served by publication.

In unlawful detainer cases, the clerk will enter judgment for possession of the premises immediately upon a proper request by the plaintiff. However, plaintiff must apply to the court for damages or any other relief sought in the complaint including court costs. See Code of Civil Procedure Section 1169.

The first requirement for a clerk's judgment is that the action be one "arising upon a contract or judgment " See Code of Civil Procedure Section 585(a). This includes implied, as well as express, contracts such as actions in quasi-contract as long as the judgment is for a fixed and determinable amount.

The clerk is authorized to enter default judgment in an action based on a judgment rendered in any previous court action, this power is not limited to California judgments. See Code of Civil Procedure Section 585(a).

The recovery sought must be of "money or damages only." This requirement has been construed narrowly by the courts. As a result, in an action based on contract, the amount due must either be fixed in the contract itself, or be determinable by calculation from its terms. If there is any uncertainty as to the amount due, the court clerk has no power to resolve it. Instead, a court judgment will be required.

The court clerk is authorized to enter a default judgment where the amount due can be computed from the contract itself such as: Action on open book account such as running charge account balances, and an action on account stated (statements received and accepted by defendant showing charges and credits to date).

But the court clerk cannot adjudicate the amount due by taking evidence or exercising discretion. Thus, where the amount claimed by plaintiff cannot be computed from the contract itself, the court clerk has no power to enter judgment. A judgment by the court is required certain situations such as an action for an accounting, etc.

In an action on a secured promissory note for $500, where the demand was only $253, without any explanation as to how reduction occurred, a California Court of Appeal ruled that the complaint failed to negate the possibility that the collateral securing the note had not been dealt with or sold.

If the complaint includes a demand for attorney fees, this may affect the clerk's power to enter a default judgment.

If the contract sued upon stipulates the amount of attorney fees recoverable in such action, the clerk is authorized to enter judgment accordingly. For example if the promissory note provides for attorney's fee in an amount equal to 10% of principal and interest due, the court clerk can compute and enter the amount.

But where the contract merely calls for an "attorney's fee as fixed by the court," or a "reasonable attorney's fee," the court clerk has no power to determine the amount as stated by the California Supreme Court.

Courts are authorized to adopt schedules of attorney fees allowable in default cases where a statute or contract authorizes fee awards such as actions on a promissory note containing an attorney fee provision. See California Rule of Court 3.1800(b). Where such fee schedules are in effect, and plaintiff is willing to accept the scheduled fee, the court clerk may include that amount in the default judgment. See Code of Civil Procedure Section 585(a).

If the causes of action joined in a complaint are in fact, separate and distinct, the clerk can enter default judgment on the "contract" or "judgment" cause of action only. Plaintiffs who want judgment on the other cause of action as well will have to obtain a default judgment from the court.

This means that if a complaint joins a cause of action for breach of a construction contract with a cause of action to foreclose a mechanic's lien for work done, the clerk can enter default judgment only on the "contract" cause of action. If the plaintiff wants his mechanic's lien foreclosed, he will have to obtain a court judgment.

But the clerk cannot enter a valid default judgment where the "contract" cause of action is merely an alternative theory for recovery on a claim that otherwise does not qualify for a clerk's default judgment.

For example if the complaint joined a cause of action for "reasonable value" of services rendered with cause of action for "account stated" based on billings for same services, the clerk could not enter a default judgment on the "reasonable value" count because there is no fixed or determinable amount, and the "account stated" claim is merely an alternative theory for recovery, the clerk has no authority to enter default judgment on either count. A court judgment is required.

A promissory note or other written obligation to pay money such as a negotiable instrument, if any, upon which the action is brought must be submitted to the clerk. The court clerk is required to note across the face of the writing, over his official signature, the date and fact that judgment has been rendered on such contract. See California Rule of Court 3.1806.

If the original writing has been lost or destroyed, plaintiff should obtain a declaration to that effect and apply for an ex parte court order directing the court clerk to accept a copy in lieu of the original. Otherwise the clerk cannot enter judgment as the clerk must have the original writing in order to enter a judgment unless the court orders otherwise.

If the action is one to enforce an earlier judgment, a certified copy of that judgment must be provided to the clerk in order for them to enter the judgment.

And where the action is on an open book account, the court clerk may require copies of the bills or invoices, and a declaration negating the existence of any written agreement with the defendant.

And it should also be stressed that if a clerk's judgment is obtained and the clerk awards attorney fees pursuant to the schedule contained in the local rules of the court then plaintiff will not be allowed attorney fees as a cost of enforcing any judgment because the fees were not awarded pursuant to a contract. See Code of Civil Procedure Section 685.040 which states that attorney fees incurred for enforcing a judgment are not included as costs unless the underlying judgment includes an award of attorney fees pursuant to a contract. See also Code of Civil Procedure Section 1033.5(10)(a).

The attorney fees are considered to have been awarded pursuant to the court's schedule. This can prove to be a tactical mistake if the plaintiff is seeking a large judgment and anticipates that enforcement of the judgment will be difficult. In that case, it may be better to obtain a court judgment where a judge can award "reasonable" attorney fees pursuant to a contract.

Plaintiff should make every effort to find out beforehand how long it usually takes to obtain a clerk's default judgment in the court in which their case is pending as some court's take almost as long to enter a clerk's judgment as they do to enter a court judgment. And a party is not required to obtain a clerk's default judgment, even if it would be authorized in a particular case.

If you enjoy this article please tell others about it.

Yours Truly,

Stan Burman

DISCLAIMER:

Please note that the author of this article, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this article is NOT intended to constitute legal advice.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Any readers should not act upon this information without seeking professional counsel.

Judgment Assignment Problems

In my job, all too often I hear complaints similar to "I assigned my judgment to Ed Enforcer, and now his web site is gone and his phone is disconnected". I have written articles before about how to solve this kind of problem, however the solutions are not easy. The usual remedies are to file a motion and schedule a hearing at the court, to either void the assignment of judgment, or for a resumption of rights for the creditor. My articles are my opinions, and not legal advice. I am a judgment referral expert, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

Many judgment owners do not have the funds, time, or patience it takes, to recover any money. When a judgment is large and the judgment debtor is rich, it is easy to find a contingency collection lawyer or a buyer; or any other kind of contingency expert, including a judgment enforcer or a collection agency. Unfortunately, very few judgment situations are like that. While the web is full of false promises of ways to get fast cash for judgments, there are only a few real options for owners of average judgments, which are all not instant ways to recover money.

1) Enforce your judgment yourself, however that is a hassle, costs money, and is time consuming.

2) Sell your judgment for pennies on the dollar, or waste your time trying to get more than that on a cash upfront basis.

3) Find a collection agency. In the past, most collection agencies used the phone and the post office to do much or all of their work, and did not even try to do what is required to recover judgments. Some tried to transition into recovering judgments, and gave up when the debtors did not respond to only letters and phone calls.

There are a few collection agencies that have very successfully transitioned into recovering judgments, and the best are owned by lawyers and/or use lawyers to recover judgments. The good news is you retain ownership of your judgment. The bad news is with a few exceptions, most collection agencies are not good at recovering judgments. Most do not accept judgments at all, or not from individual judgment owners, unless screened and referred by a judgment referral expert.

4) Find a collection attorney. You retain ownership of your judgment. Usually, you will have to pay them by the hour. Most people with average judgments will not find a contingency lawyer or a good collection agency to try to recover their judgment, unless they are referred by a judgment broker.

5) Assign your judgment to an enforcer, which means you give up ownership of your judgment. Assigning your judgment means that you forfeit ownership of your judgment permanently. It is a one-way sale that cannot be reversed except by finding and obtaining the cooperation of the person you assigned it to, or working and paying for a court order voiding the assignment to them.

Keep in mind, judgment recovery is usually a very slow process, and the odds are overwhelmingly against a full recovery. If your debtor is poor, it really does not matter that much what recovery choice you make, or whether or not you get your judgment assigned back to you.

While most judgment enforcers do the right thing, and return judgments they have no chance of enforcing, not all do. In this economy, the problem of flaking enforcers is becoming very serious. I know of many instances where enforcers will not release a judgment, even when they do absolutely nothing to try to recover it, not even recording a lien. This is not good, because anyone without a plan to enforce a judgment should not keep it long term. Memberships in judgment organizations seems not to guarantee anything.

There is one very good reason for an enforcer not to return a judgment, and that is if they are making progress, or have a plan to make progress soon. Besides that one good reason, these are the top four reasons enforcers do not return judgments assigned to them:

1) When some enforcers go out of business, they do not care enough about their obligations. They do not return judgments, and disconnect their phone and move.

2) When enforcers run out of money they cannot make progress on any judgment. Some enforcers cannot even afford to pay the $10 notary fee required to assign the judgment back to you. In this case, offer to pay the enforcer a modest sum to return your judgment.

3) When a enforcer gets sick, finds a day job, has a death in their family, dies, files for bankrupt protection, goes to jail, etc. Sometimes the judgments assigned to them are the last thing they have on their mind.

4) When enforcers take all judgments that come in, when they have no plans or possibility of recovering them, and for some reason, they refuse to return judgments when asked.

Be careful about assigning your judgment to a enforcer not referred by someone that knows their long-term history and performance.

Requirements Imposed on Limited Civil Litigation in the State of California

The topic of this article is a brief discussion of the statutes governing limited civil litigation in California. The statutes governing this are found in Sections 85 through 100 of the Code of Civil Procedure.

Anyone involved in limited civil litigation should carefully read the statutes as the author has worked on numerous cases where the opposing party, including opposing counsel, has propounded an excessive number of discovery requests, and/or has propounded special interrogatories or requests for admission with subparts, for example, a, b, c, d, which are prohibited. Taking this step will avoid situations like the ones just mentioned in which the author prepared objections based on the fact that the discovery requests did not comply with the statutes.

Code of Civil Procedure § 86 lists several different types of cases which are considered limited civil cases. Generally speaking a limited civil case is a civil case in which the principal demand does not exceed $25,000.00, not including attorney's fees, prejudgment interest or costs.

Note that while the demand in most unlawful detainer (eviction) actions does not exceed $25,000.00, that the normal rules that apply to limited civil cases do NOT apply.

And a limited civil action may be withdrawn from the provisions of Sections 85 through 100 of the Code of Civil Procedure on the grounds that it is impractical to prosecute or defend the action within the limitations of its provisions. The request must be made by noticed motion.

The pleadings allowed in limited civil cases are, complaints, answers, cross-complaints, answers to cross-complaints and general demurrers. Special demurrers are not allowed. Motions to strike are only allowed on the ground that the damages or relief sought are not supported by the allegations of the complaint..

The use of discovery questions in limited civil cases is extremely limited as Code of Civil Procedure § 94 imposes a total limit of any combination of 35 discovery requests including interrogatories, requests for admission, requests for production of documents. See said code section for the other limitations imposed such as only one oral or written deposition.

Note that in limited civil cases, form interrogatories count towards the limit of 35, and that Judicial Council Form DISC-004, titled form interrogatories-limited civil cases MUST be used as they do not contain subparts. Use of any other form interrogatories would be grounds for the responding party to object.

However, supplemental interrogatories and supplemental demands to produce documents may still be utilized.

A party may file a motion with the Court to be relieved from the discovery limitations for limited civil cases. They must show the Court that they cannot adequately prosecute or defend the action without the additional discovery.

The parties may also stipulate to additional discovery so anyone contemplating filing such a motion should first contact the opposing counsel or party to determine whether they will agree to stipulate to the additional discovery.

The author sincerely hopes that you have enjoyed this article.

Yours Truly, Stan Burman

Typical Bail Bond Process

Bail bond systems are set for a very important reason: to be sure the arrestee shows up for their scheduled court hearing. This is the hearing in which they will receive a judgment, whether it is jail, community service, probation, all three, or something more. This all depends on the crime and the defendant's criminal history. Understanding the bail bond process helps families and defendants prepare for what is to come, and how to handle a jail situation in general.

The Bail Process

The first thing that usually happens after a person is arrested and taken to jail, is that a family member, friend, or attorney will contact a bail agency close to the jail for bail assistance. Then, once the bail agent is notified, the agents begin to collect as much information as they can, to determine whether or not it is a case they are willing to take. They will ask for employment verification, contact information, the charges they are arrested under, criminal history, and more.

Next, if the bail bond agent is willing to accept the case, a few documents will be reviewed and signed by the family member, lawyer, or friend. The first document is a Bail Indemnity Agreement, the next is the Bail Bond Application Form, and there will also be a proof of purchase signed like a receipt.

For people that have been arrested and are attempting to bail themselves out of jail, a bail agent will be dispatched out to the jail to speak with the arrestee in person. The same process would take place, but at the jail rather than the bail office. They can even offer their services through fax and email to the jail.

Once all this information is collected and the documents are signed, it only takes a few hours or so to get the defendant released. The agent just has to begin, "posting" the bail bond at the jail. Some jails are stubborn and will take their time responding, which can tack on more time, but in most cases they are cooperative. After this is done, the defendant is released and free to go anywhere, but they are expected by bail agreement to show up to their future scheduled court date. If they do not show up for this court hearing, the bail agency will send a bounty hunter and a warrant for their arrest will be re-released. Then they will have to start the whole ordeal over again, but with worse consequences.

If you need more information on the bail bond process, bail agents, or court systems, don't hesitate to contact a professional in your area.

What Is an Immunology Expert Witness?

What is Immunology? What Does an Immunology Expert Do?

Immunology is a branch of science that deals with the study of the immune system. An immunology expert or immunologist is a highly educated research professional whose job is to address all immunological issues concerning an individual. He usually does research in a laboratory, where he performs clinical tests, diagnosis, and evaluations to better understand the immune system.

To be a certified and licensed immunologist, one must have the following requisite degrees and certifications: a bachelor's degree in the sciences, a doctor of medicine degree, a medical license, and series of trainings specializing in immunology.

Why Do Some Immunologists Provide Expert Witness Services?

If you do a random search on an expert witness directory, you're sure to find at least one immunology expert witness. In case you're wondering why a research scientist is listed in a legal-matter-based directory, here are the top reasons.

First, an immunologist plays a very important role in medical malpractice cases. His expert testimony provides a strong basis for the court to whether or not declare the defendant guilty of the allegations filed against him. All medical fields are bound by a strong code of ethics and strictly implemented standards. So to make sure that the defendant has deviated from standard practices, an expert is called in to help the court figure out.

Also, an immunology expert authority can provide valuable information and materials that will help the jury or judge better understand the case in hand. Immunology is filled with technical terms and difficult scientific concepts, but through the help of a highly qualified immunologist, all the technicalities will be simplified and clarified.

But aside from his role in the courtroom, an immunology expert can also prove his importance in the prevention of lawsuits. Many companies and medical professionals hire immunologists to do a thorough investigation on their methods and practices. Doing this will help them determine whether or not they comply with the all standards and regulations.

When choosing an immunology expert witness, one of the most common things to look for is his experience both in the courtroom and in the laboratory. Choose the one who has spent a considerable number of years in the lab and as an expert witness. But don't forget to look at the expert's present status. You want someone who is still active in his field of study or practice.

How To Be a Better Insurance Expert Witness

Take Your Legal Obligations to Heart

Did you know that a judge can rule out your insurance expert witness testimony if you don't comply with your legal obligations? If you don't know what your legal duties are, here is a quick review.

Aside from showing up on time in an appropriate outfit, you are bound to fulfill the following duties: be truthful, objective, and not argumentative when giving your statements. Also, you need to be alert in giving the court expert assistance so it will better understand the case in hand. In certain cases, some insurance expert witnesses have an obvious inclination towards one of the parties (either the defendant or the plaintiff), so the judge has ruthlessly declare the expert testimony inadmissible in court.

So before you take the stand, recite all your duties and take them to heart.

Preparation is Key

One grave mistake that an insurance expert witness may commit is the lack of preparation. Remember, if you're on the witness stand, the court expects you to provide all the information needed to solve the case. This includes preparing a well-written and detailed report and other documents, and preparing visuals to aid in the better understanding of technical concepts related to insurance. In addition, anticipate all questions that may be asked, including what the cross-examining lawyer might say about your reputation or credibility.

Learn From the Mistakes of Other Insurance Expert Witnesses

It pays to know what your colleagues have done in the past, especially the mistakes they committed. This will give you an idea on how to better perform your legal obligations. So take some time to go over other cases related to insurance, and take note of how the expert witness delivered his testimony. Sometimes, the judge may give an input about the witness's testimony, so take note of the feedback.

Coordinate Well With the Attorney Who Hired You

An attorney's main duty is to represent the client in court. Therefore, he needs all the information that he can get so that he can fulfill this duty well. Here are some things that you can do to help.

1. Always be available. 2. Return calls promptly. 3. Answer all the attorney's questions adequately. Tell him everything he needs to know. 4. Give no-nonsense advice and suggestions. 5. Update the attorney regularly. 6. Ask questions especially if you're not sure of what to do. 7. Be as honest as possible.

Let a Pharmaceutical Expert Witness Help You With Legal Woes

Everyday, millions of people worldwide go to the nearest pharmacy to buy over-the-counter and prescription drugs. According to reports, in the United States alone, more than 3 billion prescription drugs were bought in the past year. And as this number continues to rise, many pharmaceutical experts have expressed their concern not only about drug abuse but also on the inappropriate prescription of these drugs.

While it's true that pharmacists, doctors, and other medical experts have a legal duty to protect the public from drugs that can be harmful to them, there are some instances where the concerns stated above can actually happen.

Year after year, injuries occur because a pharmaceutical expert failed to prescribe the correct drug. The patient suffers from the drug's negative side effects, and in rare occasions, these side effects are followed by death.

Reports say that there are countless of pending cases filed in court related to wrong drug prescription, defective drugs, and harmful over-the-counter medications. These cases usually involve a pharmaceutical company or a medical professional. And in solving these cases, a highly qualified pharmaceutical expert witness is summoned by the court for his research, findings, and expert opinion.

What do pharmaceutical expert witnesses do to help in court trials?

An expert witness has a legal obligation to provide the court with excellent assistance in all technical things related to the case. For a pharmaceutical expert witness, he is expected to answer all questions related to over-the-counter and prescription drugs. The following is a list of the specific services offered by pharmaceutical specialists.

1. Determine the presence of unethical marketing or medical practices. As previously stated, all medical professionals have a legal duty to protect the public from harmful drugs. The expert must be able to tell whether or not a certain procedure conforms to the profession's code of ethics.

2. Interpret the FDA's regulations and policies concern the type of drug in question. The FDA has a number of strict regulations and policies regarding the use drugs and prescribed medicine. The expert must know all these rules to be able to determine whether a drug in question is safe or poses potential harm.

3. Use existing laws and regulations to determine whether the company in question has abused the system. Aside from the FDA's regulations, the expert must be knowledgeable of the federal laws related to drugs and their usage. This is to know whether or not a company in question has deviated from standards.

4. Go over all the processes and procedures in the production and prescription of the drug in question. The expert must also know the proper procedure and process in the production and prescription of drugs. This comes in handy especially if the drug is being questioned as low in quality or defective.

Best Times to Use a Financial Expert Witness

When going through court litigations, there are certain aspects that cannot be handled by the lawyer alone. This is especially true when going into fiscal details that are better understood and analyzed by the financial expert witness, an individual whose career revolves around money management. Here are some instances that would require their assistance.

Reparation Estimates

In cases demanding compensation, a financial expert can justify the monetary value owed. The expert can provide and explain the necessary documents that will rationalize the cost being reported. Regardless of the educational attainment and arithmetic ability of the client, a qualified financial specialist may be needed especially in computing conservative mathematical assumptions and uncovering compelling past, present and future losses.

Damage Validity

When looking at the opposite side of the coin, a financial authority is the ideal person to call in to substantiate the claims being made. He or she can corroborate or refute any declarations made by the other side. The court is most likely to side with the judgment of an independent financial expert witness rather than that of a disgruntled complainant.

Economic Impact

The plaintiff may be the best man to enumerate his actual expenses or earnings, but only a well-rounded and experienced financial expert witness can put a price to intangible or unrealized values. These potential proportions could include employee benefits, insurance claims and other foreseeable incidents that may have been denied or are inaccessible due to the circumstances leading to the trial.

Pecuniary Translations

Most judges and juries will not be able to decipher the significance or insignificance of all the values presented in income statements and reports for restitution. It is the burden of the financial expert witness to properly appraise any and all computations, enlighten the court of law on such calculations, and uphold reason and fair judgment for the entirety of the hearing. Provided he passes cross-examination, his assessment will hold the most weight.

Upon deciding on the services of a financial expert witness, one must look for a reliable and scrupulous individual. Look for someone with experience and adequate educational and employment backgrounds on the specifics of the suit. With a good expert on the team, the firm is a step towards being ultimately assured of a solid case, commendable judicious practices, and an expedited hearing. He or she will help win the case, bring acclaim to the practice, and return the client back to real life.

Answering an Unlawful Detainer (Eviction) Complaint in California

The topic of this article is a brief discussion of filing an answer to an unlawful detainer (eviction or UD) complaint in California. Specific affirmative defenses will not be outlined in this article issue but will be discussed in more detail in a later article.

Once a tenant has been properly served with the summons and complaint they generally have five (5) calendar days to file their answer with the Court and serve a copy on the plaintiff or their attorney.

Failure to file and serve an answer on time will result in a default being entered against the defendant or defendants. The landlord can then obtain a judgment for possession of the premises very quickly, usually within a few days at most. Therefore, it is vital for a tenant served with an unlawful detainer summons and complaint to answer or otherwise respond within the very short time allowed.

In general, the tenant's response is due within five (5) calendar days after service of the unlawful detainer summons and complaint. The five-day period includes Saturdays and Sundays but excludes other court holidays; however, if the fifth day falls on a Saturday or Sunday, the response deadline is extended to the next court day. However, if the summons and complaint was not personally served, but instead was served by substituted service, meaning a copy was given to someone else residing at the premises, and another copy was mailed to the tenant, or an order to post and mail known as "nail and mail" was issued by the Court, than the response time is extended to fifteen (15) calendar days, again if the last day to answer falls on a Saturday or Sunday, or a court holiday, the deadline is extended to the next court day.

Thus, an answer to the unlawful detainer complaint must be filed within this five-day period unless, before expiration of the five days, the tenant has filed some other authorized responsive pleading that temporarily excuses the duty to answer such as a motion to quash, demurrer, motion to strike, etc.

The filing of a motion to quash, demurrer, motion to strike or other authorized preanswer responsive pleading extends defendant's time to answer the complaint. But the preanswer pleading must itself have been filed within the five-day answer period, absent stipulated or court-granted extension of time.

Where "good cause" is shown such as time needed to obtain filing fees, etc, the court may grant defendant an extension of time to respond.

Like any preanswer response, application for an extension of time to plead must itself be made within the five-day answer period. As soon as the five days are up, plaintiff is entitled to obtain a default entry beating out defendant's subsequently filed application for extension of time. Any extension of time that was granted after the time to answer had expired may be ignored and a default entered.

An application for an extension of time may be made ex parte; a formal noticed motion is not required as the narrow five-day window period does not allow time for a noticed motion under normal procedures.

But some form of informal notice must be given to plaintiff; and defendant's written application must advise the court of the nature of the case and what extensions, if any, have previously been granted, whether by court order or the stipulation of the parties.

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice "provided that the notice given is reasonable." See California Rule of Court 3.1203.

The ex parte application must be accompanied by a declaration stating either (I) that notice was given, including the date, time, manner and name of the party informed, the relief sought, whether opposition is expected and that the applicant informed the opposing party where and when the application would be made; or (ii) that a good faith attempt to inform the opposing party was made but the applicant was unable to do so, (specifying efforts made); or (iii) why notice should not be required.

If the notice in a UD proceeding was provided later than 10:00 a.m. the court date before the ex parte appearance, the declaration must state why the notice given was reasonable. See California Rule of Court 3.1204[c].

The maximum extension is ordinarily 10 days unless plaintiff consents to a longer time or the court otherwise orders for "good cause" shown.

The parties may stipulate to an extension of time for any reason; but a court-ordered extension will lie only for "good cause" shown. Since eviction actions are supposed to be "summary" (speedy) proceedings, courts tend to be quite restrictive in granting extensions of time. A first-round extension is likely to be granted ("good cause" found) only on allegation that no prior extensions have been granted (by court or on party stipulation) and that (I) defendant needs more time to locate an attorney to represent him or her or to acquire the requisite filing fees, or (ii) a consulted attorney needs more time to evaluate the case to determine whether to accept representation of defendant.

Any further extensions of time are uniformly disfavored in UD proceedings.

Defendant's answer must be verified just as the UD complaint must be verified.

Note that while all answering defendants must sign the answer, only one answering defendant needs to verify the answer. An unverified answer is subject to a motion to strike in its entirety; but the motion must be made within 10 days after service of the answer.

The function of the answer is to put the case "at issue" as to all material allegations in the complaint. Therefore, as with any answer to a civil complaint, the unlawful detainer answer should set forth whatever denials and/or affirmative defenses are necessary to controvert the landlord's material allegations.

All material allegations of the complaint that a defendant does not intend to admit must be effectively denied. If they are not denied then they are automatically deemed to be admitted.

Defendant should respond specifically to each and every paragraph in the unlawful detainer complaint by admitting, denying, admitting portions and denying portions, or denying on the basis of lack of information or belief upon which to admit or deny.

As with general civil litigation, defendant's answer should allege applicable affirmative defenses that are not put in issue under a simple denial commonly referred to as "new matter." As a general rule, whatever the defendant tenant bears the burden of proving at trial is "new matter" and thus is in issue only if specifically pleaded in the answer.

It needs to be stressed that allowable affirmative defenses are very limited. Only "issues directly relevant to the ultimate question of possession" and which, if established, would result in the tenant's right to retain possession, may be asserted in defense to an unlawful detainer.

The defendant (tenant) bears the burden of pleading all essential elements of the affirmative defense (or defenses) raised which means that the defenses pleaded must be supported by factual allegations. However, this simply requires "meaningful notice" to the landlord of the scope and extent of the proffered defense, no detailed evidentiary facts are required.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.

Overview of Tax Resolution Options

Prior to choosing the best option for resolving outstanding tax debt, the first step is accurately determining how much you owe. If you have failed to file past or current tax returns, penalties for late filing and interest will continue to accrue until you do file all returns. The advantage to this position, however, is you can still claim all available deductions and credits in order to reduce your tax bill. Even if you have filed all required returns, you can still amend prior returns if you missed out on ways to reduce your tax bill. Amending tax returns requires substantial work, and you should do so with the assistance of a tax professional only. A great deal of supporting documentation is necessary to justify amending tax returns and to avoid a potential IRS audit. A tax professional who has thoroughly reviewed your situation can advise whether an amendment is worth it.

Having calculated the correct amount owed, the IRS offers three principal methods to resolve that tax liability: (1) an Installment Agreement, (2) an Offer in Compromise, (3) and "Currently Not Collectible."

1. The Installment Agreement allows you to pay off your tax debt over time. Usual agreements are from one to three years. With the installment agreement, you can elect to pay off the entire amount or attempt to negotiate a reduced payoff amount (i.e. partial payment installment agreement).

2. The Offer in Compromise allows you to pay off your tax debt in a single payment or with a short-term payment plan. As with the Installment Agreement, you can attempt to negotiate with the IRS to accept a lesser amount that what you owe to satisfy your tax liability.

3. Finally, you can petition the IRS to classify you as "Currently Not Collectible" if you cannot afford any payments. The IRS will not forgive your tax debt, but will not take collection action for a specified period. Once that time is up, however, the IRS will resume action to claim back taxes.

Barring the three options outlined above, the alternatives are to take a "wait and do nothing" approach, or to declare bankruptcy and try to have your tax debt discharged. These two alternatives are not typically desirable because of their slight chance of success and other associated drawbacks. If you choose to wait and do nothing, penalties and interest will continue to pile up. In addition, the IRS will likely institute harsher collection actions, such as a federal tax lien, that will end up costing you much more in the end. It's always possible that the IRS may make a mistake as to older debts and let the statute of limitations for assessment (that is, the time they have to hit you with a higher tax bill), or collection (the time they have to collect the tax already assessed), but this is not common. Some income taxes are dischargeable in bankruptcy but only under limited circumstances.

Contact us now if you have or expect to owe a significant amount to the IRS, or seek to negotiate a reduced payoff amount, it is best to consult and hire a qualified tax professional. I will explore the different options for resolving your tax debt in detail in the coming weeks. Stay tuned!

- Ari Good

Discovery Of Electronic Data

Electronic discovery is any process in which electronic or other non-paper forms of data is sought, for the purpose of using the data as evidence in a civil or criminal legal case. The electronic data can be electrical, mechanical, magnetic, wireless, optical, etc. The information may be stored on a hard drive, compact disc, digital video disc (DVD), flash drive, or with any other method or technology. This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

The stored data which might be discoverable is known as Electronically Stored Information (ESI). The ability to completely delete or destroy ESI is reduced when data is backed up either on or off-site. Completely deleting data is not a trivial task, because the most common way to delete a file is to remove its first file letter/number character and make that disk space available for other data. Until that specific file location has been overwritten, the deleted file is still accessible and recoverable.

Modern operating systems will offer to "securely" delete files, however that is not fail-safe. Commercially available scrubbing programs do more than merely delete files, they overwrite the file locations several times with random characters, so that the deleted file gets "scrubbed clean".

However, the only "foolproof" way of destroying stored information is to physically destroy every hard drive or other storage device or system, where the file has ever been stored. Physical destruction of a device or computer file may include one or more actions to destroy the media the data file resides on; including shredding the media, burning or melting the media, liberal use of a sledge hammer, degaussing, etc. If a file has ever been sent over the internet, it might never get completely destroyed.

Discovery of electronically stored information (ESI) can be done onsite, offsite, online or offline. In civil matters, most information available offsite and offline is obtained through the use of a Subpoena Duces Tecum (SDT).

The data that can be asked for with a SDT is usually within the scope of Federal Rules of Civil Procedure (FRCP) 34(a). When the SDT requests document(s) and thing(s) that are not stored on paper, care must still be taken to insure the data stays usable, accessible, and admissible in the court. The witness or defendant is usually compelled to disclose the format of the ESI, and any required passwords, to enable the data to be examined by an agent of the court at the time the court specifies.

Whether civil or criminal, either in cases of trade secrets or with malware, or when any other data-related evidence is needed; the electronically stored information (ESI) must be captured. The handling of ESI, once secured, is subject to the same chain of custody challenges as all other evidence types are. However, in ESI situations, since there are no paper documents, the handling and storage of ESI must be carefully managed by people specifically trained for such matters. Analysis and evidence gathering by cyber-forensic technicians is conducted on a digital copy of the original drive or media which is subject to examination. The goal is to avoid any chance of harm being done to the original evidence.

In some instances, especially when law enforcement is involved, the court may order the seizure of computers for forensic analysis, or may order a surreptitious intrusion under the guise of a search warrant, or some other form of subpoena.

When critical evidence is needed, and there is a risk that such evidence may be deleted, modified, or destroyed; the means of electronic discovery may be expedited by hacking into a computer or network system. Most occurrences of hacking into a computer or network under such conditions is conducted by government agencies executing search warrants. The type of media most often examined is that which is suspected of storing evidence of financial crimes, theft of trade secrets, or other internet-related potential crimes.

Business Judgments

What if your judgment debtor is or has a business? It is important to perform post judgment investigation, to uncover the existence of any business that your judgment debtor owns or is involved with. Ideally, you also did this before you sued them. My articles are my opinions, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

Is your judgment debtor's business a DBA (Doing Business As), or is their business a corporate entity? A corporate entity is treated as an entirely separate and individual entity in the eyes of the law. Legally speaking, a corporate entity has many of the same rights that an individual person has.

A DBA (sometimes called a Fictitious Business Name) business is not legally separate from the person or persons that own it. With a DBA business, a money judgment against the owner is essentially also a judgment against their DBA business, even if the original cause of action for the judgment has nothing to do with their DBA business. A judgment creditor is free to hire a Sheriff to attempt to freeze, seize, levy, or garnish; non-exempt assets belonging to the business owner, whether they appear to be a part of their business or not. The possible assets that might be levied include real estate, some business equipment, furniture, accounts receivable, some inventory, bank accounts, some vehicles, or perhaps any other asset which the debtor owns.

When a judgment debtor has a DBA business, it may increase the range of possibilities available to attempt to recover a judgment. The additional choices can make judgment enforcement easier, especially when their DBA business is profitable or has available assets.

When your judgment debtor is a business entity, for example a LLC or a corporation, you cannot have the Sheriff levy anyone's assets, unless they are specifically listed as judgment debtors, in the body of the judgment, no matter what kind of company-related shenanigans they might be practicing now or in the past. Unless a court order specifies otherwise, when your judgment debtor is a corporation or LLC, only that entity's assets may be used to help satisfy your judgment.

A corporation is treated as an entirely separate and individual entity in the eyes of the law, with many of the same rights as an individual person. The more public, profitable, and established a business is, the easier it is to recover a judgment against them. In some cases, a profitable business pays judgments when they are brought to their attention. Usually, one must find, and have the Sheriff levy the judgment debtor entity's assets or income streams. This requires discovery, to find out who is paying your judgment debtor, or what assets they own.

When your judgment debtor owns shares in a corporate entity, or has partial ownership of one, levying those kinds of assets to help satisfy your judgment is usually complex, and is beyond the scope of this article.

Judgment Captions

Captions are the words and formatting at the top of the first page of all filed court documents. Captions list the court, the jurisdiction, the case number, and the names of the original plaintiff(s) and defendants(s). Within the caption area at the top of the first page, there is space for the court to stamp its endorsement, after the document or form is accepted and stamped by the court.

This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer. Most courts require the caption, the top part of the first page of a document, to be separated on the left and right.

At the top left side of captions, is the name of the plaintiff or the lawyer representing them; and their contact information. Next, the plaintiff and defendant party names, separated by a "v." The right side identifies the docket and/or case number, and if known, the presiding judge's name. Usually the remaining part of captions are in capital letters. Next is the type of court (e.g., District Court), the county and state. Usually, the last part of captions, in bold and capital letters, is the action (judge or commissioner signing) that is being requested, for example: DECLARATION, AFFIDAVIT OF IDENTITY, Proposed ORDER, AND POINTS OF AUTHORITIES.

The names listed on the caption of a judgment have nothing to do with who owes money on the judgment or how much they owe. A caption of Smith VS Jones might be on a judgment that makes only Clark liable to pay the judgment. A caption could name five defendants and three plaintiffs, and the body of that judgment (somewhere) might specify only one defendant owes one plaintiff. The caption of another judgment might have 20 plaintiffs and defendants, yet that judgment only specified that two plaintiffs owe money to two judgment debtors.

Somewhere in the body of a judgment will be an explanation of who owes what. Most judgments are crystal clear and directly specify who owes what; or after several subtotals are listed in the body of the judgment, include a summary that clearly lists what is owed by each judgment debtor.

Some judgments are vague, and some spread the details on what is owed into many sections on several pages without a summary. Without a clear summary of who owes what, a lot of time can be wasted in every post-judgment recovery action. Each time, it can take hours of debating with court clerks, and sometimes also a decision from a judge, to decide what the judgment actually meant.

Every state and court has their own laws and rules on how documents must be formatted, including what court document captions must contain. Depending on the court and clerk, a mistake in the caption words or formatting, or on any other part of a court pleading or document, could result in a rejection by a court clerk. Worse yet, a mistake first accepted by a court clerk might later open the door that could let the other side persuade a judge to dismiss your filing or motion.

Should You Outsource Your Judgments?

Companies have been outsourcing their judgment and debt collections for decades. Today's economy has helped to create a new choice for judgment enforcers, collection agencies, and collection departments to also outsource some of their judgments for collection. My articles are my opinions, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

To recover judgments, not just any collection agency will work. Most collection agencies will not be a good fit because most do not recover judgments or are too expensive, or do not use lawyers to recover judgments. There are important advantages to hiring collection lawyers to recover judgments, including they are welcomed in every court, know what they are doing, and tend to impress debtors to pay faster. An ideal collection company to outsource debts and judgments to, is one that has these five features:

1) Attorney-based, with lawyers in all 50 states.

2) Cheap, under 35% is preferred.

3) Large enough that you do not depend solely on one person, yet small enough to care about your business.

4) Licensed in all 50 states, and the ability to collect judgment debts in most countries is a bonus.

5) No upfront fees, and preferably no fees at all. Note that when a company is owned by attorneys, and uses them, state laws may require the creditors they represent to pay modest court filing fees, if they are required. This is unfortunate, however if the judgment owner was enforcing the judgment themselves they would have to pay the same court fees. Also, if any judgment enforcer was recovering the judgment, those fees would be deducted off the top, before any recoveries were split.

When a collection company has all five of those features, and has competitive rates (e.g.) 33.3%, it can make sense for a company or person to consider outsourcing some of their judgments or debts. Even when a collection agency or judgment enforcer (enforcer) has 50/50 contingency contracts with creditors, when an outsourced expert collection company charges 33.3% to recover, the math can make sense. There are at least two ways that possible recoveries can be split, one way is to pay the creditor 50%, and the enforcer keeps 16.6%, or the enforcer keeps 33.3% and splits the other 33.3% with the creditor. Another option is between those two, giving the original creditor the bigger share.

Outsourcing judgment and debt collection makes sense when an enforcer is too busy, or a judgment debtor moves out of state, or the judgment situation is too complex. It also makes sense for collection departments and companies that do not have enough staff to recover their own judgments or debts. Some collection companies have outsourced judgment collections when their main business is not judgments, or after a key judgment recovery employee leaves.

Individuals and businesses, with judgments that need to be recovered, will find that when they choose the right company to outsource to, they will save hassles, time, and money. The best part of outsourcing a judgment for collection is, usually one does not have to give up ownership. Not assigning a judgment adds a level of safety. Not changing the ownership of a judgment is also very convenient.

Monday, November 26, 2012

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