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unwarrented adversary
Local Rule 7026-1 applies to matters requiring not less than four
hours of trial OR at least $10,000 of amount in controversy. It
takes at least four hours to try any case, considering opening
statements, one or two witnesses, evidentiary objections, and closing
arguments. Besides, the judges want the lawyers to comply with Local
Rule 7026-1, making all parties more accountable for their cases.
Lawyers, like Ents (from Lord of the Rings), take a long time to say
anything. No trial takes less than a 1/2 day!! Apply Local Rule
7026-1, and if you do not, you do so at your own risk and that of
your client.
Best regards. Lou
> I don't think Rule 26 applies unless the amount demanded is over
> $10k. You can still send out discovery of course. By all means go
> to trial. Do written discovery. Judge Donovan told a group that I
> participated in that he will allow an oral motion for fees as soon
> as he rules at trial and will grant the request unless the creditor
> has pretty solid proof that the complaint and subsequent litigation
> was "substantially justified." He wants to see proof of reliance
> from the creditor. I know Judge Carroll is the same. I think they
> are wrong myself. Jon
>
>
>
>
> --- In cdcbaa@yahoogroups.com, "David A. Tilem"
> wrote:
> > I agree with Lou, but preparing the form pleadings for the first
> time is
> > a pain in the ___ butt. I suggest you either just make the Rule
> 7026-1
> > demand or, to emphasize the point, send out extensive, but
> appropriate
> > discovery, i.e. depo notice, request for production all of which
> is
> > reasonable for an "intent" case.
> >
> > David A. Tilem
> > Certified Bankruptcy Specialist*
> > Law Offices of David A. Tilem
> > 500 N. Brand Blvd., #460, Glendale, CA 91203
> > Tel: 818-507-6000 Fax: 818-507-6800
> >
> > * Personal & small business bankruptcy specialist cert. by State
> Bar of
> > CA Bd of Legal Specialization.
> > Business bankruptcy specialist cert. by Amer. Bd. of
> Certification
> >
> >
> >
> > -----Original Message-----
> > Sent: Thursday, June 24, 2004 8:44 AM
> > To: cdcbaa@yahoogroups.com
> > Subject: RE: [cdcbaa] unwarrented adversary
> >
> >
> > For what it is worth, I was able to get the message through a
long
> time
> > ago that I would fight these frivolous lawsuits. I have not seen
> one in
> > a long time. Many times the complaint does not meet the minimum
> notice
> > requirements of federal pleadings, especially the more specific
> factual
> > requirements for fraud. Therefore, I file a 12(b)(6) motion that
> the
> > plaintiff has failed to state a claim upon which relief may be
> granted.
> > Often times, plaintiff's counsel is either on a contingency or
> fixed
> > fee, and therefore, any additional work reduces their overall
> > compensation. Also, I serve a notice of required disclosure
under
> Rule
> > 7026-1, wherein I demand that all electronic media and data be
> preserved
> > and delivered along with all other Rule 7026-1 disclosures of
> documents,
> > witnesses, etc. By using stock pleadings and just filling in the
> name
> > of the debtor, you can reduce your overall costs, and make it
> known that
> > they should think twice before proceeding against you or any of
> your
> > clients. If successful, the plaintiff pays you!! On the
planning
> side,
> > make sure that you determine from the client when the last time
> they
> > used their credit cards, and make sure that payments are made for
> at
> > least three consecutive months to establish an ability to pay
> defense.
> >
> > Best of luck and best regards.
> >
> > Lou Esbin
> >
> > -----Original Message-----
> > Sent: Thursday, June 24, 2004 5:46 AM
> > To: cdcbaa@yahoogroups.com
> > Subject: [cdcbaa] unwarrented adversary
> >
> >
> > --- In cdcbaa@yahoogroups.com, Gail Higgins
> wrote:
> > > Has anyone noticed a rise in adversaries for minimal amounts?
> > >
> >
> >
> > Gail:
> >
> > It is a mental drag, but I often defend these cases for a minimal
> fee
> > just because not defending them makes your clients a target.
> >
> > Who is the judge? It would be interesting to see if the
> adversaries
> > are being filed before the least tolerant judges. If these
> > adversaries were being managed by me, that would be a top line
> > criteria, along with, "Who is the attorney on the other side?
> Will
> > the attorney defend?"
> >
> > If it costs the attorneys too much time to prosecute these
claims,
> > they will not be prosecuted.
> >
> > 11 U.S.C. Section 523(d) usually applies to these complaints.
You
> > only get attorneys fees by going to trial and winning and the
> section
> > only applies to 523(a)(2) complaints. The allegation the
debtor's
> > income was insufficient to pay the debt is a 523(a)(2)
> allegation.
> > What statute is cited in the complaint?
> >
> > By the way, didn't the spouse with the lowered income expect to
> have
> > spousal support later? Wouldn't the spouse, then, be able to pay?
> >
> > dennis
> >
> >
> >
> >
> > Yahoo! Groups Sponsor
> >
> > ADVERTISEMENT
> >
> >
>
The post was migrated from Yahoo.
I don't think Rule 26 applies unless the amount demanded is over
$10k. You can still send out discovery of course. By all means go
to trial. Do written discovery. Judge Donovan told a group that I
participated in that he will allow an oral motion for fees as soon
as he rules at trial and will grant the request unless the creditor
has pretty solid proof that the complaint and subsequent litigation
was "substantially justified." He wants to see proof of reliance
from the creditor. I know Judge Carroll is the same. I think they
are wrong myself. Jon
wrote:
> I agree with Lou, but preparing the form pleadings for the first
time is
> a pain in the ___ butt. I suggest you either just make the Rule
7026-1
> demand or, to emphasize the point, send out extensive, but
appropriate
> discovery, i.e. depo notice, request for production all of which
is
> reasonable for an "intent" case.
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem
> 500 N. Brand Blvd., #460, Glendale, CA 91203
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Personal & small business bankruptcy specialist cert. by State
Bar of
> CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of
Certification
>
>
>
> -----Original Message-----
> Sent: Thursday, June 24, 2004 8:44 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] unwarrented adversary
>
>
> For what it is worth, I was able to get the message through a long
time
> ago that I would fight these frivolous lawsuits. I have not seen
one in
> a long time. Many times the complaint does not meet the minimum
notice
> requirements of federal pleadings, especially the more specific
factual
> requirements for fraud. Therefore, I file a 12(b)(6) motion that
the
> plaintiff has failed to state a claim upon which relief may be
granted.
> Often times, plaintiff's counsel is either on a contingency or
fixed
> fee, and therefore, any additional work reduces their overall
> compensation. Also, I serve a notice of required disclosure under
Rule
> 7026-1, wherein I demand that all electronic media and data be
preserved
> and delivered along with all other Rule 7026-1 disclosures of
documents,
> witnesses, etc. By using stock pleadings and just filling in the
name
> of the debtor, you can reduce your overall costs, and make it
known that
> they should think twice before proceeding against you or any of
your
> clients. If successful, the plaintiff pays you!! On the planning
side,
> make sure that you determine from the client when the last time
they
> used their credit cards, and make sure that payments are made for
at
> least three consecutive months to establish an ability to pay
defense.
>
> Best of luck and best regards.
>
> Lou Esbin
>
> -----Original Message-----
> Sent: Thursday, June 24, 2004 5:46 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] unwarrented adversary
>
>
> --- In cdcbaa@yahoogroups.com, Gail Higgins
wrote:
> > Has anyone noticed a rise in adversaries for minimal amounts?
> >
>
>
> Gail:
>
> It is a mental drag, but I often defend these cases for a minimal
fee
> just because not defending them makes your clients a target.
>
> Who is the judge? It would be interesting to see if the
adversaries
> are being filed before the least tolerant judges. If these
> adversaries were being managed by me, that would be a top line
> criteria, along with, "Who is the attorney on the other side?
Will
> the attorney defend?"
>
> If it costs the attorneys too much time to prosecute these claims,
> they will not be prosecuted.
>
> 11 U.S.C. Section 523(d) usually applies to these complaints. You
> only get attorneys fees by going to trial and winning and the
section
> only applies to 523(a)(2) complaints. The allegation the debtor's
> income was insufficient to pay the debt is a 523(a)(2)
allegation.
> What statute is cited in the complaint?
>
> By the way, didn't the spouse with the lowered income expect to
have
> spousal support later? Wouldn't the spouse, then, be able to pay?
>
> dennis
>
>
>
>
> Yahoo! Groups Sponsor
>
> ADVERTISEMENT
>
>
The post was migrated from Yahoo.
MessageGood work! Carolyn
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Thursday, June 24, 2004 8:44 AM
Subject: RE: [cdcbaa] unwarrented adversary
For what it is worth, I was able to get the message through a long time ago that I would fight these frivolous lawsuits. I have not seen one in a long time. Many times the complaint does not meet the minimum notice requirements of federal pleadings, especially the more specific factual requirements for fraud. Therefore, I file a 12(b)(6) motion that the plaintiff has failed to state a claim upon which relief may be granted. Often times, plaintiff's counsel is either on a contingency or fixed fee, and therefore, any additional work reduces their overall compensation. Also, I serve a notice of required disclosure under Rule 7026-1, wherein I demand that all electronic media and data be preserved and delivered along with all other Rule 7026-1 disclosures of documents, witnesses, etc. By using stock pleadings and just filling in the name of the debtor, you can reduce your overall costs, and make it known that they should think twice before proceeding against you or any of your clients. If successful, the plaintiff pays you!! On the planning side, make sure that you determine from the client when the last time they used their credit cards, and make sure that payments are made for at least three consecutive months to establish an ability to pay defense.
Best of luck and best regards.
Lou Esbin
-----Original Message-----
Sent: Thursday, June 24, 2004 5:46 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] unwarrented adversary
--- In cdcbaa@yahoogroups.com, Gail Higgins wrote:
> Has anyone noticed a rise in adversaries for minimal amounts?
>
Gail:
It is a mental drag, but I often defend these cases for a minimal fee
just because not defending them makes your clients a target.
Who is the judge? It would be interesting to see if the adversaries
are being filed before the least tolerant judges. If these
adversaries were being managed by me, that would be a top line
criteria, along with, "Who is the attorney on the other side? Will
the attorney defend?"
If it costs the attorneys too much time to prosecute these claims,
they will not be prosecuted.
11 U.S.C. Section 523(d) usually applies to these complaints. You
only get attorneys fees by going to trial and winning and the section
only applies to 523(a)(2) complaints. The allegation the debtor's
income was insufficient to pay the debt is a 523(a)(2) allegation.
What statute is cited in the complaint?
By the way, didn't the spouse with the lowered income expect to have
spousal support later? Wouldn't the spouse, then, be able to pay?
dennis
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Message
Good work! Carolyn
----- Original Message -----
From:
louis.esbinlaw
To: cdcbaa@yahoogroups.com
Sent: Thursday, June 24, 2004 8:44 AM
Subject: RE: [cdcbaa] unwarrented adversary
For what it is
worth, I was able to get the message through a long time ago that I would
fight these frivolous lawsuits. I have not seen one in a long time. Many times the complaint does not meet the minimum notice
requirements of federal pleadings, especially the more specific factual
requirements for fraud. Therefore, I file a 12(b)(6) motion that the
plaintiff has failed to state a claim upon which relief may be granted.
Often times, plaintiff's counsel is either on a contingency or fixed fee, and
therefore, any additional work reduces their overall compensation. Also,
I serve a notice of required disclosure under Rule 7026-1, wherein I demand that all electronic media and data be preserved and delivered along
with all other Rule 7026-1 disclosures of documents, witnesses, etc. By
using stock pleadings and just filling in the name of the debtor, you can reduce your overall costs, and make it known that they should think twice before proceeding against you or any of your clients. If successful, the
plaintiff pays you!! On the planning side, make sure that you determine
from the client when the last time they used their credit cards, and make sure
that payments are made for at least three consecutive months to establish an
ability to pay defense.
Best of luck
and best regards.
Lou Esbin
-----Original Message-----From: Dennis
McGoldrick [mailto:easky1@yahoo.com] Sent: Thursday, June 24,
2004 5:46 AMTo: cdcbaa@yahoogroups.comSubject:
[cdcbaa] unwarrented adversary--- In
cdcbaa@yahoogroups.com, Gail Higgins <gjhiggins8@y...> wrote:>
Has anyone noticed a rise in adversaries for minimal amounts?>
Gail:It is a mental drag, but I often defend these cases
for a minimal fee just because not defending them makes your clients a
target. Who is the judge? It would be interesting to see
if the adversaries are being filed before the least tolerant
judges. If these adversaries were being managed by me, that would
be a top line criteria, along with, "Who is the attorney on the other
side? Will the attorney defend?"If it costs the attorneys
too much time to prosecute these claims, they will not be
prosecuted.11 U.S.C. Section 523(d) usually applies to these
complaints. You only get attorneys fees by going to trial and winning and the section only applies to 523(a)(2) complaints. The
allegation the debtor's income was insufficient to pay the debt is a
523(a)(2) allegation. What statute is cited in the
complaint?By the way, didn't the spouse with the lowered income expect to have spousal support later? Wouldn't the spouse, then,
be able to pay?dennis
The post was migrated from Yahoo.
Dennis McGoldrick wrote:
> Has anyone noticed a rise in adversaries for minimal amounts?
>
Gail:
It is a mental drag, but I often defend these cases for a minimal fee just because not defending them makes your clients a target.
I'd love to - but it is not my store.
Who is the judge?
MT (Any since I know her, and have a good feel of her personality) I think she will favor the debtor.
It would be interesting to see if the adversaries
are being filed before the least tolerant judges. If these adversaries were being managed by me, that would be a top line criteria, along with, "Who is the attorney on the other side? Will
the attorney defend?"
As, I said - It is Yelsky (for WF). They have this minor debt ($400) in the previous 90 days and the rest in the previous 60 days before that. The entire 150 days are complained of.
If it costs the attorneys too much time to prosecute these claims, they will not be prosecuted.
Yup.
11 U.S.C. Section 523(d) usually applies to these complaints. You only get attorneys fees by going to trial and winning and the section only applies to 523(a)(2) complaints. The allegation the debtor's income was insufficient to pay the debt is a 523(a)(2) allegation.
What statute is cited in the complaint?
You got it - 523(a)(2)(A) - The entire false pretenses they cite are the facts that the debtor stayed current.
By the way, didn't the spouse with the lowered income expect to have spousal support later? Wouldn't the spouse, then, be able to pay?
The separation just happened - the charges weren't made in anticipation of any change in income at all.
dennis
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Dennis McGoldrick <easky1@yahoo.com> wrote:
--- In cdcbaa@yahoogroups.com, Gail Higgins <gjhiggins8@y...> wrote:> Has anyone noticed a rise in adversaries for minimal amounts?> Gail:It is a mental drag, but I often defend these cases for a minimal fee just because not defending them makes your clients a target.
I'd love to - but it is not my store. Who is the judge?
MT (Any since I know her, and have a good feel of her personality) I think she will favor the debtor.
It would be interesting to see if the adversaries are being filed before the least tolerant judges. If these adversaries were being managed by me, that would be a top line criteria, along with, "Who is the attorney on the other side? Will the attorney defend?"
As, I said - It is Yelsky (for WF). They have this minor debt ($400) in the previous 90 days and the rest in the previous 60 days before that. The entire 150 days are complained of.
If it costs the attorneys too much time to prosecute these claims, they will not be prosecuted.
Yup.11 U.S.C. Section 523(d) usually applies to these complaints. You only get attorneys fees by going to trial and winning and the section only applies to 523(a)(2) complaints. The allegation the debtor's income was insufficient to pay the debt is a 523(a)(2) allegation. What statute is cited in the complaint?You got it - 523(a)(2)(A) - The entire false pretenses they cite are the facts that the debtor stayed current.
By the way, didn't the spouse with the lowered income expect to have spousal support later? Wouldn't the spouse, then, be able to pay?
The separation just happened - the charges weren't made in anticipation of any change in income at all.
dennis
Do you Yahoo!?
Yahoo! Mail - 50x more storage than other providers!
The post was migrated from Yahoo.
For what it is worth, I was able to get the message through a long
time ago that I would fight these frivolous lawsuits. I have not
seen one in a long time. Many times the complaint does not meet the
minimum notice requirements of federal pleadings, especially the more
specific factual requirements for fraud. Therefore, I file a 12(b)
(6) motion that the plaintiff has failed to state a claim upon which
relief may be granted. Often times, plaintiff's counsel is either on
a contingency or fixed fee, and therefore, any additional work
reduces their overall compensation. Also, I serve a notice of
required disclosure under Rule 7026-1, wherein I demand that all
electronic media and data be preserved and delivered along with all
other Rule 7026-1 disclosures of documents, witnesses, etc. By using
stock pleadings and just filling in the name of the debtor, you can
reduce your overall costs, and make it known that they should think
twice before proceeding against you or any of your clients. If
successful, the plaintiff pays you!! On the planning side, make sure
that you determine from the client when the last time they used their
credit cards, and make sure that payments are made for at least three
consecutive months to establish an ability to pay defense.
Best of luck and best regards.
Lou Esbin
wrote:
> --- In cdcbaa@yahoogroups.com, Gail Higgins wrote:
> > Has anyone noticed a rise in adversaries for minimal amounts?
> >
>
>
> Gail:
>
> It is a mental drag, but I often defend these cases for a minimal
fee
> just because not defending them makes your clients a target.
>
> Who is the judge? It would be interesting to see if the
adversaries
> are being filed before the least tolerant judges. If these
> adversaries were being managed by me, that would be a top line
> criteria, along with, "Who is the attorney on the other side? Will
> the attorney defend?"
>
> If it costs the attorneys too much time to prosecute these claims,
> they will not be prosecuted.
>
> 11 U.S.C. Section 523(d) usually applies to these complaints. You
> only get attorneys fees by going to trial and winning and the
section
> only applies to 523(a)(2) complaints. The allegation the debtor's
> income was insufficient to pay the debt is a 523(a)(2) allegation.
> What statute is cited in the complaint?
>
> By the way, didn't the spouse with the lowered income expect to
have
> spousal support later? Wouldn't the spouse, then, be able to pay?
>
> dennis
The post was migrated from Yahoo.
For what it is worth, I was able to get the message through a long time
ago that I would fight these frivolous lawsuits. I have not seen one in
a long time. Many times the complaint does not meet the minimum notice
requirements of federal pleadings, especially the more specific factual
requirements for fraud. Therefore, I file a 12(b)(6) motion that the
plaintiff has failed to state a claim upon which relief may be granted.
Often times, plaintiff's counsel is either on a contingency or fixed
fee, and therefore, any additional work reduces their overall
compensation. Also, I serve a notice of required disclosure under Rule
7026-1, wherein I demand that all electronic media and data be preserved
and delivered along with all other Rule 7026-1 disclosures of documents,
witnesses, etc. By using stock pleadings and just filling in the name
of the debtor, you can reduce your overall costs, and make it known that
they should think twice before proceeding against you or any of your
clients. If successful, the plaintiff pays you!! On the planning side,
make sure that you determine from the client when the last time they
used their credit cards, and make sure that payments are made for at
least three consecutive months to establish an ability to pay defense.
Best of luck and best regards.
Lou Esbin
Sent: Thursday, June 24, 2004 5:46 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] unwarrented adversary
> Has anyone noticed a rise in adversaries for minimal amounts?
>
Gail:
It is a mental drag, but I often defend these cases for a minimal fee
just because not defending them makes your clients a target.
Who is the judge? It would be interesting to see if the adversaries
are being filed before the least tolerant judges. If these
adversaries were being managed by me, that would be a top line
criteria, along with, "Who is the attorney on the other side? Will
the attorney defend?"
If it costs the attorneys too much time to prosecute these claims,
they will not be prosecuted.
11 U.S.C. Section 523(d) usually applies to these complaints. You
only get attorneys fees by going to trial and winning and the section
only applies to 523(a)(2) complaints. The allegation the debtor's
income was insufficient to pay the debt is a 523(a)(2) allegation.
What statute is cited in the complaint?
By the way, didn't the spouse with the lowered income expect to have
spousal support later? Wouldn't the spouse, then, be able to pay?
dennis
Yahoo! Groups Sponsor
ADVERTISEMENT
The post was migrated from Yahoo.
> Has anyone noticed a rise in adversaries for minimal amounts?
>
Gail:
It is a mental drag, but I often defend these cases for a minimal fee
just because not defending them makes your clients a target.
Who is the judge? It would be interesting to see if the adversaries
are being filed before the least tolerant judges. If these
adversaries were being managed by me, that would be a top line
criteria, along with, "Who is the attorney on the other side? Will
the attorney defend?"
If it costs the attorneys too much time to prosecute these claims,
they will not be prosecuted.
11 U.S.C. Section 523(d) usually applies to these complaints. You
only get attorneys fees by going to trial and winning and the section
only applies to 523(a)(2) complaints. The allegation the debtor's
income was insufficient to pay the debt is a 523(a)(2) allegation.
What statute is cited in the complaint?
By the way, didn't the spouse with the lowered income expect to have
spousal support later? Wouldn't the spouse, then, be able to pay?
dennis
The post was migrated from Yahoo.