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rvlaw
rvlaw, Attorney
Category: Business Law
Satisfied Customers: 8386
Experience:  NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator
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Just started a legal process. Have a question of smart strategy

Resolved Question:

Just started a legal process. Have a question of smart strategy and timing.

About launching a lawsuit against a business seller who made misleading/false earning figure.
The plaintiff attorney sent a letter to the defendent. But the defendent does not pick up certified mail. The defendent seems playing game to delay the legal process. I like to know what options the defendent can do to delay the process if we file a lawsuit in court.

I guess the first step is to service the notice. Is it a difficult task if the defendent does not coorporate by hiding away? By the way, the defendent also screwed another business buyer who bought his business. It seems this defendent has a pattern to screw people up.
Given he already sold all his business and accumulated cash in hand, any option to freeze his asset in bank or house? What if he moves out of the country? Any way to garnish his retirement income like Social security if the court rule in plaintiff's favour? What if the defendent claims sick not appearing in court. Can a criminal charge be laid if he ignore the civil court order to pay plaintiff?
Submitted: 2 years ago.
Category: Business Law
Expert:  rvlaw replied 2 years ago.

Hi and welcome to just answer,

 

I am an experienced litigator (see my profile), and I am sure I can help you. I am leaving work now and will handle your issue this evening if you can wait. If you'd rather have this handled now, just relist the question and another expert will assist.

 

I will check my question list tonight. Whatever you decide is fine with me

 

 

rich

Customer: replied 2 years ago.
Thanks. I will wait for your answer.
Expert:  rvlaw replied 2 years ago.

Hi,

BE WARNED......LOTS OF COMPLICATED STATUTES.....NO USE IN MY PARAPHRASING.......PARAPHRASING WOULD TAKE LONGER !

1. Plaintiff files the complaint and he clerk issues a summons to be served personally by a process server or mailed certified mail RRR (I know he's not picking up mail)

2. Kentucky rules if the defendant is hiding and can't be served personally or by certified mail RRR as initially laid out by the KY statutes:

Rule 4.05. Parties who may be constructively served.

If a party sought to be summoned is: (a) an individual who is a nonresident of this state and known or believed to be absent therefrom, or (b) a corporation or a partnership or unincorporated association which is subject to suit under a common name, having no agent in this state known to the plaintiff upon whom a summons may be lawfully served, or (c) an individual who has been absent from the state for four months or who has departed therefrom with the intent to delay or defraud his creditors, or (d) an individual who has left the county of his residence to avoid the service of a summons or has so concealed himself that a summons cannot be served upon him, or (e) an individual whose name or place of residence is unknown to the plaintiff; the clerk shall forthwith, subject to the provisions of Rule 4.06, make an order upon the complaint warning the party to appear and defend the action within 50 days.

3. "Appearing in the action" does NOT mean physical appearing. It means serving an answer to the complaint with denials, etc. if he doesn't appear you move for a default judgment .......and you will get it.....holding the defendant liable. Then you'll have to go to court to prove your actual damages.

4. No criminal ramifications if he doesn't pay........it's solely a civil not criminal matter.

5. You can attach his property

425.301 Grounds for attachment in action for recovery of money.
The plaintiff may, at or after the commencement of an action, have an attachment against the property of the defendant, including garnishees, as a security for the satisfaction of such judgment as may be recovered:
(1) In an action for the recovery of money against:
(a) A defendant who is a foreign corporation or nonresident of the state; or
(b) Who has been absent herefrom for four (4) months; or
(c) Has departed herefrom with intent to defraud his creditors; or
(d) Has left the county of his residence to avoid the service of a summons; or
(e) So conceals himself that a summons cannot be served upon him; or
(f) Is about to remove, or has removed, his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff's claim, or the claims of said defendant's creditors; or
(g) Has sold, conveyed, or otherwise disposed of, his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder or delay his creditors; or
(h) Is about to sell, convey, or otherwise dispose of his property, with such intent. But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a nonresident of this state, for any claim other than a debt or demand arising upon a contract, express or implied, or a judgment or award.
(2) In an action for the recovery of money due upon a contract, judgment or award, if the defendant have no property in this state subject to execution, or not enough thereof to satisfy the plaintiff's demand, and the collection of the demand will be endangered by delay in obtaining judgment or a return of no property found;
(3) Before an order of attachment shall issue prior to judgment, the person seeking the order must first make a demand in writing at or after the time the suit is filed, by delivering such demand and a copy of the complaint, motion and summons to the debtor or by sending them to him by registered or certified mail, return receipt requested, to his last known place of residence, at least seven (7) and not more than sixty (60) days before such order is sought. The demand shall contain a statement in substance that the debtor has seven (7) days in which to petition the court for a hearing or in which to pay the claim in full, and that unless a hearing is set or the claim paid, an order will be sought to subject his property to payment of the claim. The statement shall identify the court in which the suit has been filed, the grounds therefor, the date of the demand, the amount of the claim, and the name and address of the plaintiff and his attorney. An affidavit of the plaintiff or his attorney evidencing compliance with this section shall be filed before an order shall be issued.

6. 425.306 Grounds of attachment for debt or liability upon a contract.

(1) Before a debt or liability upon a contract becomes due or matures, an equitable action for indemnity may be brought by a creditor against his debtor; by a surety against his principal; or by one who is jointly liable with another for such debt or liability, against the latter:

(a) If the defendant be about to depart from this state, and, with intent to defraud his creditors, have concealed or removed from this state his property, or so much thereof that the process of court, after judgment, cannot be executed.

(b) If there exist against the defendant any of the grounds for an attachment which are mentioned in paragraphs (c), (d), (e), (f), (g) and (h) of subsection (1) of KRS 425.301.

(2) Upon an action being filed, if the petition shows the existence of any of the grounds specified in paragraph (b) of subsection (1) of this section the court may order an attachment.


7. You can garnish wages if he is an employee (huge statute.....later if you need)

But remember this is not legal advice. You have to consult with an attorney in your state and discuss this matter with him or her.

To find an attorney, go online to Martindale.com. This is a nationwide directory we lawyers use ourselves to find highly qualified legal specialists in various fields of law. These lawyers are NOT in Martindale because they paid to be included. They are there because they are rated as QUALIFIED by other lawyers in their field of expertise and geographic area as it applies to your kind of case. The process is this: other lawyers are asked to fill out questionnaires giving their opinion of the quality of the work of the law firm that ultimately appears in Martindale.

The site is organized geographically and by legal specialty. Consult with two or three and select the one you are most comfortable with. The Martindale listing will have the names of current or past clients. Contact those clients as references for the firm

Please press 3 or 4 or 5 below so that I may get credit for assisting you.
Please do NOT press 1 or 2 since that will result in a negative rating for me which
you may not have intended If you want further information or clarification, just ask before you accept my answer and give a rating.

Also, I ask you to be fair in your rating. For instance, these should NOT have received a negative rating:

a. A customer says "I ALREADY KNEW THAT".....but the expert didn't know what the customer knew or didn't know.
b. A customer wants to hear "YES YOU CAN".....but the certified legal expert says "LEGALLY NO YOU CAN'T".
c. The answer is short, but ACCURATE. A customer simply wants a longer answer.

Thank you for reading this and for your consideration. I'm always ready to help further.

rich


.

--

rvlaw, Attorney
Category: Business Law
Satisfied Customers: 8386
Experience: NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator
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NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator