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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.