- Business disputes
- Collection lawsuits
- Collection defense
- Contract litigation
What is Civil Litigation
Under California law, a lawsuit is commenced when the plaintiff files a complaint with the clerk of the court and obtains the issuance of a summons. The summons and complaint may be served upon the defendant by several methods, according to rather technical rules. For example, a defendant may be hand served with the summons and complaint, or, in certain circumstances, a defendant may be served by substituted service by leaving the documents at the person’s residence and thereafter mailing copies to the defendant. If an order is obtained from the court, then the documents may be served by publishing the summons in a newspaper of general circulation where the defendant resides.
Generally, the defendant must file and serve an answer to complaint within 30 days after service. In unlawful detainer actions (eviction suits), the defendant is allowed only 5 days to serve and file an answer to the complaint.
Generally, the parties may thereafter engage in civil discovery. In other words, each side may conduct depositions of witnesses, serve written questions (interrogatories), and serve demands for production and inspection of documents on the other parties in order to obtain additional information for the prosecution and defense of the litigation.
After the case is “at issue” and all parties have either been served, defaults have been taken, or dismissals have been filed, and after the parties have had an opportunity to conduct discovery, the court will set a trial date, and trial will be held either before a judge (known as a bench trial) or before a jury.
What is Pro Per Representation?
Generally, a person, but not a business entity, can represent himself in a lawsuit without an attorney. This is referred to as pro per representation. A person might be named as a defendant in a lawsuit brought by a collection company, a credit card company, bank, or other creditor. The defendant may not have the funds to retain an attorney to appear in the litigation and defend the lawsuit, and may decide to defend the case himself. The debtor in that circumstance could consult with an attorney to develop strategies and affirmative defenses that might be asserted in an answer to the complaint, so that the plaintiff will not take the default of the defendant. Generally in California, a defendant has 30 days after service of the summons to answer the complaint. In unlawful detainer actions (eviction), the defendant may have only 5 days to file an answer to the complaint or his default may be taken. If a person is considering representing themselves in a lawsuit, then it is advisable, at a minimum, to at least consult with an attorney at the beginning of the suit and discuss an overall case strategy.”
Are there alternatives to expensive and time consuming litigation in Court?
Yes. Alternative Dispute Resolution (ADR) is becoming popular. There are several types of ADR, including mediation, arbitration, and neutral case evaluation. The nature of the dispute often determines what type of ADR might be most economic.
What can I do if I cannot afford to pay a judgment?
During the course of a lawsuit, it is often possible to negotiate an installment judgment, where the defendant admits liability and admits that money is owed to the creditor, if the debtor cannot afford a lump sum payment. An installment judgment provides for monthly payments over a period of time to the creditor. Once the judgment is satisfied in full, a satisfaction of judgment is filed with the court by the creditor.
What is an exemption for execution of judgment?
After the plaintiff obtains entry of judgment by the court against the defendant, the plaintiff (also known as a judgment creditor) can enforce the judgment by directing the Sheriff to seize property of the judgment debtor towards the satisfaction of the judgment. Assets, such as real property, bank accounts, vehicles, future wages, or accounts receivable, could be subject to enforcement of the judgment. There are exemptions provided by statutes that protect consumers, such as the homestead exemption, which protects a portion of the equity of the debtor’s interest in a home, the amount of which is dependent upon the age of the debtor and other factors, exemptions for various other classification of assets, such as household furniture and furnishings, personal effects, a portion of the equity in a vehicle, and certain retirement plan benefits. Generally, exemptions are available only to individuals and not to corporations. Once the judgment creditor commences efforts to enforce a judgment, only a limited amount of time may be available to the judgment debtor to request a hearing on the exemption, or the claim of exemption might be lost.
What is a collection suit?
The words “collection suit” generally refer to a suit by a creditor holding a claim upon a contract against a debtor. A collection suit might be brought by a credit card company against its customer, or the holder of a promissory note against the maker of the note. A collection suit is not necessarily a simple matter. There may be defenses, such as failure of consideration, whether there was compliance with consumer protection statutes that govern the particular type of transaction, statute of limitations, misrepresentation, or whether a waiver or an accord and satisfaction occurred. Often a collection suit is settled by an arrangement where the debtor makes installment payments over a period of time to the creditor.
What are consumer protection statutes?
There are a large number of statutes that protect consumers in particular types of transactions – for example, health studio contracts; home improvement contracts between property owners and contractors; contracts that are solicited at the homeowners residence, which are often referred to as home solicitation contracts; contracts between buyers and sellers of property and real estate brokers, such as listing agreements; and contracts between vehicle owners and car repair agencies. State laws often specify what terms and condition must be set forth in contracts with consumers. Often the statutes provide that the consumer has the right of rescission (in other words, a right to cancel the contract) if the vendor has failed to comply with the statute. Consumer protection statutes cover credit card transactions and the relationship between banks and their customers. Some consumer protection statutes are created under federal law and apply in all of the states, while other consumer protection statutes are enacted by individual states and only protect the citizens who are residents of the particular state.
Warning: The information provided herein is for general background purposes only. You should consult an attorney for advice concerning your circumstances.