unwarrented adversary
Posted: Tue Jun 29, 2004 9:29 am
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.