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Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 23173
Experience:  14 years practicing attorney, MBA
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I really appreciate your concern and advise,but dont you you

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I really appreciate your concern and advise,but don't you you think that the fact that their attorney openly admitted via a discovery letter that at least a majority of the debt was legit and they openly/with witnesses admitted such debt and with absolutely no contact to seyyle such within 3 yrs constitutes obvious intent to defraud therby establishes and justifies all of the accusations?(last question0
Submitted: 11 months ago.
Category: Business Law
Expert:  Barrister replied 11 months ago.
Hello again,
.
I think that it shows that they are not honest or honorable people to deal with and that you have very good grounds for a counterclaim against them for breach of contract. And it also shows that they may have tried to strategically put you off in hopes that you would go away and not pursue them.
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But in order to be guilty of defrauding someone, you have to commit a criminal act and they didn't do that here. They breached a contract to pay which is a civil matter and takes a civil remedy. They didn't steal anything from you directly, they just refused to pay a legitimate debt. But theft is a criminal action and they haven't been convicted of any type of theft....so you can't say that to the public or you get in hot water and get sued.
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So even if they point blank say "Yep, we owe you the money and we aren't paying you", that still doesn't legally make them "crooks and thieves". Liars yes, and you can defend against any claim that they aren't by proving that they agreed to pay you and didn't.
.
I just don't want to see you get buried in court because you don't have an attorney and are making arguments about what is "fair" rather than the actual legal defensive arguments that an attorney would make on your behalf... I have seen it many times when someone pro se tries to go to a court than small claims and they just get pounded by the other side's attorney...It isn't a lot of fun to watch.
.
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Thanks
Barrister
.
Barrister, Attorney
Category: Business Law
Satisfied Customers: 23173
Experience: 14 years practicing attorney, MBA
Barrister and 11 other Business Law Specialists are ready to help you
Customer: replied 11 months ago.

Thanks again Barrister,I do realize i am treading on thin ice with the accusations that are contained on the flyers.But with no proof that I am the actual one that mailed them and the fact that the evidence will support the statement made ,doesn't the burden of proof lay squarley on the shoulders of the plaintiffs?I realize that a judge would be proned to follow the letter of the law but a jury could at there own discretion could find in favor of the facts and evidence which was presented.After all I am innocent until proven guilty.And if the accusation of "thieves" is a charge that must be proven before it can be spoken then should not this have been a charge that was filed in criminal court vs civil.And should I go ahead and file a counter suit now or wait and see how this plays out over the next few weeks.What I really need is a specific way to get these guys in court and stop all of this posturing just to try and intimidate me.Cause trust me its not working,just making me dig my heels in that much deeper.I honestly think with ur help I can expose and beat these crooks at their own game but I need critical advice at just the right time.THE BIGGEST advantage I have is all of the receipts ,payroll stubs and witnesses are all on my side.But I would like to present it in that manner so there would be a settlment without a long drawn out affair.

Expert:  Barrister replied 11 months ago.
doesn't the burden of proof lay squarley on the shoulders of the plaintiffs?I
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Yes, always. The plaintiff always has to prove their case in a civil action by a preponderance of the evidence (i.e. 51%). But it would be relatively simple to track down the company that distributes the flyers and subpoena their records to see who paid for the ones in question. Their problem may lie in actually proving their damages because reputational damages are hard to pin down and put a number on.
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And if the accusation of "thieves" is a charge that must be proven before it can be spoken then should not this have been a charge that was filed in criminal court vs civil.
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The problem is that this is a breach of contract action so is civil. They didn't steal your money, they just refused to pay you. That means the no crime has occurred so no criminal action can be taken.
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As for filing suit, I think that it is long overdue for you to do so and that really should have been the course of action all along. Once you file it, you are able to put pressure on them to come to the table to hopefully iron this thing out without the time and expense of going to court. If this does go to court, if you proceed without an attorney, you do so at your own peril because the judge will hold you to the exact same standards of procedural and professional conduct that an attorney has to abide by.
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Thanks
Barrister
Customer: replied 11 months ago.

I do agree that I should have filed earlier.And hopefully I am just laying some ground work for who will eventually handle this litigation for me.My point being,there is no way they had someone at a post office seeing who droped these flyers in the box.And even if they could possibly track down who actually paid for them ,still doesnt prove who mailed them.I believe that a jury in a "DRY COUNTY" that has consistently voted down lickour by the drink for yrs will ultimately vote against a couple of guys that own a "TI***Y Bar" in another town that has police records of drunken patrons being sent down the road DUI...just a thought...Def need to figure out a way to file some sort of motion to get these guys off dead center..

Expert:  Barrister replied 11 months ago.
Well, I can say from experience that juries are unpredictable creatures... I have had criminal cases where the defendant admitted to me that they did it, the evidence was strong against them and I was expecting to be working on mitigating any jailtime during sentencing because from a purely legal perspective, it was a loser of a case.
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But darned if they didn't come back and find him not guilty because the prosecutor was a jackass and the victim was a jerk and they took an instant dislike to both of them.
.
Just goes to show that nothing is set in stone when it comes to juries...
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Gotta log off in just a bit to get some shut eye....14 hour days are taking their toll...have a great evening.
.
.
Thanks
Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 23173
Experience: 14 years practicing attorney, MBA
Barrister and 11 other Business Law Specialists are ready to help you
Customer: replied 11 months ago.

Hey man,I wrote the first two chapters of that 14 hr day novel,course I was somewhat younger and a whole lot tougher.If I fail to answer most of the interog. w/the exception of course of name,rank and serial no.,and they just continue to stonewall.What motion can I file with the clerk that the judge will see that will get this thing in court at least for a prelim hearing.The whole thing has begun to turn in my favor now that they realize not only am I not afraid of but I actually want them to have to appear.U have to realize here that its all about image and they just cant believe that I haven't turned tail and run.What should be my next step?

Expert:  Barrister replied 11 months ago.
If I fail to answer most of the interog. w/the exception of course of name,rank and serial no.,and they just continue to stonewall.What motion can I file with the clerk that the judge will see that will get this thing in court at least for a prelim hearing.
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Honestly, there is not much you can do to accelerate the process because you are the defendant, not the moving party at this point. So they control the pace of things here. Now once you file your countersuit, then you can start filing discovery requests and interrogatories to them that they have to comply with. If they fail to do so, you can file motions to compel for failing to comply with the discovery requests/production requests and drag them into court to explain to the judge why.
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So if it were me, I would focus on getting my countersuit filed because you only have a limited time to file it along with your Answer to their complaint...
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Thanks
Barrister
Customer: replied 2 months ago.

Hello Barrister; long time no contact.Since I started w/u a while back I would like to continue w/u if u are still working the system.Will wait for ur reply.Have some very interesting developments that I need your opinions on....take care ...TLW..I know its late (12:20 est) so 2moro eve is fine w/me.

Expert:  Barrister replied 2 months ago.
Hello again, nice to hear from you..
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I will be online for about ten more minutes if you had a quick question or I will be back online tomorrow around lunchtime...

Thanks
Barrister
Customer: replied 2 months ago.

Good eve barrister, well sir a lot has happened since we last talked.Will be as brief as possible.First let me say thank you for the previous answers you provided,they were of great assistance in my efforts to move this matter forward.You were absolutely correct in your response to the fact that they would probably file a motion to compel.Unfortunately for them,out of the five things they went for the judge ruled in my favor and only gave them "ONE".Which was to come up with a better redponse to the questions.Simply because I had basicly treated them as a joke.Which like you said it was nothing but a fishing expedition and the judge seen right thru it.AS the judge was standing to leave the courtroom he looked my way and suggested maybe I hire an attorney and file a motion for summary judgment.Which I did but pro-se of course.After all these guys almost broke me.I wasn't aware this had to come up in open court,but it did.And the judge actually listened to both sides and made the comment that he felt like he had heard enough to make a ruling on whether or not to grant the summary judgment.As I was leaving the court room a friend of mine who knows the opposing council ask him how soon do you think he will rule on this and of course his response was ;awh it might take six mths.hahahaeverybody I have talked to says on a civil matter-30 days max.Well it has been almost 45.My question is what can I file with the clerk that will def get into the judges hand that will in a respectable way ask why this matter has not been addressed.And what is the projected date a decision will be rendered.

Expert:  Barrister replied 2 months ago.
Well, that is considerably better news than where we were last time....
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My question is what can I file with the clerk that will def get into the judges hand that will in a respectable way ask why this matter has not been addressed.And what is the projected date a decision will be rendered.
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Honestly...about the only thing you could try is to file a "motion for status update" as that will get if on the formal record that the judge hasn't issued a ruling yet and that you are inquiring (innocently of course) if the court needs anything else to help it make a decision.
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But if it were me, I would wait until the 60 day mark and file then. Sometimes judges will just take a while to rule just to let the case get stale so when they rule against the other guy, everyone is not still all fired up...
.
.
Thanks
Barrister
Customer: replied 2 months ago.

Thanks for the response,that was what I had been told by the clerks assistant but needed to hear it from you.I think she is friends with one of these culprits.My last question is for direction.The only advice you gave me that I did not follow was going ahead and filing countersuit.Reason being was now not only do I have proof (by their own admission in open court they owed the debt) but also not only did they try to defraud me out of the original amount but with a summary judgment proves they maliciously tried to financialy devastate me by filing a 1.5 mil dollar lawsuit against me just to scare me off and never have to pay the debt.I was told that even some time has passed that since this thing has been ongoing that Iin retro I can still file a lein against the property where the work took place and my plan was to do that and countersue for the same 1.5 mil.As I said once before,if I can ever get this before a jury in this town I will get a unanamous decision in my favor.The people of this town literally hate this scab on tgheir community.So my question if in fact I do get the summary judgment,what should be my next course of action to get it before the court in the respective jurisdiction?

Expert:  Barrister replied 2 months ago.
So my question if in fact I do get the summary judgment,what should be my next course of action to get it before the court in the respective jurisdiction?
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If you get a ruling for summary judgment on their claim, then you can file your own suit against them for breach of contract for them failing to pay you the agreed on price for the work you did. The statute of limitations in TN is 6 years on a breach of contract action, so if I remember correctly, they stiffed you about 3 years ago. So you would still have plenty of time to file suit against them.
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I don't think you can file a mechanic's lien on the property because the time to do so has long since passed. But you could file a "Lis Pendens" on the property which is basically a notice that the property is the subject of pending litigation. That creates a cloud on the title that would prevent them from selling or borrowing money on the property because no buyer or lender will get involved with a property that is subject to an ongoing lawsuit.
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I know that you are familiar with the courtroom and legal process, but for an amount that they stiffed you, over $83K, I would still suggest you get a local attorney to help with the suit, especially since they admitted that they do owe you the debt. That by itself will make the case much easier to win and you can also get interest on the debt from the time of the breach when you win at 10% a year, I believe.
.
.
Thanks
Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 23173
Experience: 14 years practicing attorney, MBA
Barrister and 11 other Business Law Specialists are ready to help you
Expert:  Barrister replied 2 months ago.
Much obliged for the positive rating and generous bonus, it is greatly appreciated!
Barrister
Customer: replied 2 months ago.

Hello again my friend.Hope you have been well.As for my dilema things are getting very wierd to say the least.Since welast talked all laid quiet for a while,while waiting for the ruling on the summary judgment.I was correct in wondering what the delay was on such a fairly simple matter.Last fri I recieved what looked like a J.C.Pennys catalog in the mail.These guys are starting to act like a old punch drunk fighter thats against the ropes.Dirty tricks and all.Like walkin into the baryard and throwing a big pile against the wall and hoping something sticks!hahaha...Their latest is a Motion to Amend the original suite.And the ammendment is and I qoute d.That plaintiffs be granted injunctive relief requiring that Defendant be prohibited from from publishing any further defamatory statements about Plaintiffs as well as prohibiting Defendant from constantly harassing Plaintiffs and their businesses...end of qoute. Whats really strange and wierd about the whole thing is that in all 5 or 6 cases used to support this motion it states in at least 12 different instancesthat the proponderance of evidence had to have been previosly established of guilt on the part of defendant.Its almost like they had some freshman paralegal that needed to stay busy prepare this thing without it ever being proofed.Unreal.Then today(4 days later) I get a letter from the court clerk that the Judge has filed an order dismissing My Summary filing for reasons explained as my statment were not in seperate common numbered paragraphs,which is absolutely not true and they were not tied to specific citations to the record.Which is not an absolute nessesity if my intent was for the motion to stand on its own merits and facts.Now,here's what looks really odd to me.Almost 2 mths ago when opposing council filed an objection to the summary motion we went before the judge for a good 1/2 hr arguing the motion in detail.And the last comment the Judge made was he felt he had heard both sides and had all the information on what was going on would def be issuing a ruling.And then wait almost 2 mths to tell me he dont like the way i filed my paperwork.Something is very fishy.I DO NOT believe he wrote the order.If so he purgered himself.Small town,court clerk,clerks top assistant,plaintiffs,all high school friends,golfing buddies.Are u startin to see what i,m up against?Plus he set the docket for way up in August,why?How can I somehow get this before the judge on the next circuit day on July 15th?

Expert:  Barrister replied 2 months ago.
Honestly, it sounds like the judge knows you have the winning argument but is looking for any reason to try and deny you a judgment. When they get down to getting picky about little procedural aspects like punctuation and numbering of arguments to correspond with the other side's case. That reeks of desparation and it sounds like the judge wants to tell the other side "I did everything that I could for you, including picking on them for their style, but I have to rule for them as a matter of law".
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As for writing the arguments for the judge, the law clerks do that. I used to be one and the judge would say "I want to decide the case this way, find me something to support it". It was BS for sure, but I did what I was told and would dig around to try to find some legal argument he could hang his hat on.
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If it got overturned later, he didn't care because unless it was a high dollar case, the losing side wouldn't likely appeal due to the cost of doing so. And appeals courts like to uphold lower courts unless they are clearly wrong because it is easy to do so..
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But as for getting it in front of the judge before July 15, I don't see any way to do so because anything you filed would be set for that date for "judicial efficiency".
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.
Thanks
Barrister
Customer: replied 2 months ago.

Sorry I meant to say on the 15th not before.What can I file to go before him on the 15th to question the viability of the motion to amend whish is pure hogwash?

Expert:  Barrister replied 2 months ago.

You would file a "response in opposition to motion to amend" and set out your reasons for your objection to their motion to amend. You have a legal right to object in writing prior to their motion being heard and then reiterate your objection verbally on the motion date.

.

.

Thanks

Barrister

Barrister, Attorney
Category: Business Law
Satisfied Customers: 23173
Experience: 14 years practicing attorney, MBA
Barrister and 11 other Business Law Specialists are ready to help you
Customer: replied 2 months ago.

One quick follow up.When I file for my hearing on the ammendment hearing on the 15th.What would be the proper way to bring up the obvious tossing of my summary judgment over a clerical error?...thanks Tim

Expert:  Barrister replied 2 months ago.
Well, if you are objecting to the motion to amend, and haven't filed a "motion to reconsider" for your summary judgment, the it wouldn't be proper to bring it up at this next July 15 court date. But if you have clerical errors, it wouldn't be useful to file a motion to reconsider because the errors are still there. It would be better to correct the errors and refile.
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You can always refile your motion for summary judgment with any clerical errors corrected and the judge would then have to rule on it based on the substance of your motion and not the format of it...
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Thanks
Barrister
Expert:  Barrister replied 2 months ago.
Thanks again for the positive rating and generous bonus! They are greatly appreciated.
.
.
Thanks
Barrister
Customer: replied 6 days ago.

Hello again Barrister,hope this finds you well.Since we last talked,went to court on the 19th of August and the judge granted the plaintiffs their motion to amend the original suit for injunctive relief.But he allowed me to bring up the fact that there was no cases ever where relief had been granted prior to a decision by a jury of guilt.That being said,with them knowing this,don't know what possible grounds they could use to pursue the matter.With your help we have actually turned them into defendants instead of plaintiffs.Everybody in the courtroom realised that something happened.And I know that now is the time to make a critical move,and of course that sir is where you come in.They really thought that a 1.5 mil lawsuit would make me tuck tail and run.And now that the tables are turning,I honestly think the thought of me putting these guys on the stand is starting to sink in.How can I make this judge see thru what people are beginning to see as collusion and stop trampling on my 6th Amend rights.Its showtime and i'm starting to get excited.Take ur time,may be this afternoon before I'm back on-line.....thanks..Tim

Expert:  Barrister replied 6 days ago.
Hello again,
.
Sounds like you are wearing them down and they are just nitpicking things now..
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But just allowing them to amend doesn't mean that the judge is going to grant their motion for an injunction. And even if he did, you aren't sending out any more flyers (I hope) so it is kind of a moot motion.
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It also doesn't mean that he is going to deny your motion for summary judgment. This is just a diversionary tactic on the plaintiff's side to continue to drag this out.
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But to be frank, you need to get your suit filed against them for breach of contract considering all the evidence that you have in addition to their attorney's admission in court. This would turn you into the aggressor and have them looking for a hole to hide in since they started this mess and it will have turned dramatically against them..
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That is the only way I see to be proactive instead of reactive...
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.
thanks
Barrister
Customer: replied 3 days ago.

follow up,here's where i'm at .I def agree that there will beserious conseq to what they have done to me.But the fact are ;

1-If they wise up and drop the defam suit ---I win

2-If the judge changes his dec and grant summary judgment--I win

3-If I get my jury and lose,I get to a appeal w/a change of venue--I win

4-If I win,my counter suit is twice as strong because of their obvious intent to defraud--I win

So what my dilimea is,is if it goes to trial(which is a good thing) and I win the defamation of character suit then I will def go ahead and counter in the same court.But if I lose then would be obvious collusion in a small county.And I would need to file in the county where the orig fraud was commited.Back to original question of is there any way I can force the judges hand to see thru all the posturing and set a date?

Expert:  Barrister replied 3 days ago.
.Back to original question of is there any way I can force the judges hand to see thru all the posturing and set a date?
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At this point, if you refiled your motion for summary judgment with any clerical errors corrected like we discussed a few months ago, then the judge should be close to making a final ruling. It could delay things a bit since he allowed their motion to amend, but it sounded like he was already leaning your way and just doesn't want to give them any reason to complain when he rules for you.
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But if you didn't refile your motion for sum judgmt with any errors that the judge pointed out, then you need to do so because that is the "stick" that you can get everything moving with again...
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If your motion is granted, you win. Period. Then you can file your suit against them for breach of contract (which you already know that I think you should already have filed)
.
.
thanks
Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 23173
Experience: 14 years practicing attorney, MBA
Barrister and 11 other Business Law Specialists are ready to help you

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