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JBaxLaw, Attorney
Category: Business Law
Satisfied Customers: 11331
Experience:  Experienced in business formation and licensing issues
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I have evidence that my opponent had an ulterior motive and

Customer Question

I have evidence that my opponent had an ulterior motive and fabricated facts to remove us from the property and no valid claim to serve us with a 3 day Demand for Possession or Compliance Notice. This Notice is required by statute prior to filing a Forcible Entry and Detainer suit (FED). I proved that I was in compliance with the lease but they essentially "extorted" $800 from me through this attempt because the risk of eviction was too high so I paid the fabricated amount under a "reservation of rights" statement. They did not file the FED claim. However, they did file the 3-day notice which is part of the legal process requirement. Does this qualify as an Abuse of process if the fabricated ulterior motive/purpose is proven or did they actually have to file the FED to qualify for Abuse of Process and not just the 3-day notice?
Submitted: 3 years ago.
Category: Business Law
Expert:  JBaxLaw replied 3 years ago.

I am a professional here to assist you. I appreciate your use of this service. Use of a three day notice would not be abuse of process. This abuse of process requires the abuse of a court process. For example, service of process or summons via the court.

Please follow-up with me as needed. This is intended to be an ongoing dialogue. I rely on positive service ratings, so please do not forget to leave a positive service rating. I would greatly appreciate a positive service rating and optional bonus.

Thank you
Customer: replied 3 years ago.

Thanks, XXXXX XXXXX what I thought. This suit is in progress and contained 8 claims prior to their attempted FED action. After this action, I amended the complaint to include a claim I titled ABUSE OF PROCESS AND BREACH OF CONTRACT BY FRAUD, then i listed the detailed facts about what they did. This suit is being defended by Farmers Insurance Company, the attorney filed an objection to us filing an amended complaint to add the new claim, the judge called a hearing to argue the matter and sided with me and granted my motion to amend my complaint. The purpose of the hearing was specifically about the amended complaint, the attorney was present and well aware that the motion was granted - however, they have failed to file an amended answer to the amended complaint and therefore have technically admitted the allegations made in the claim that was added, including Abuse of Process and Fraud. But if Abuse of process is not proper here then what happens. If I try and take it out, then they get a new chance to answer? What should I do about this?

Expert:  JBaxLaw replied 3 years ago.
Generally, failure to answer an amended complaint will not result in a default as would failure to answer an original complaint. This is so long as the amendment did not alter the nature of the oringal complaint. Here, it would seem the additional allegation did not change the nature of the civil suit. The party filing the amended complaint would simple not prevail if they then cannot meet their burden to prove up their case regarding amended complaint.

Please follow-up with me as needed. This is intended to be an ongoing dialogue. I rely on positive service ratings, so please do not forget to leave a positive service rating. I would greatly appreciate a positive service rating and optional bonus.

Thank you
Customer: replied 3 years ago.

So that is contrary to what the other attorneys' said and contrary to what case law says. Generally, it seems, a court will grant the motion for default, then the other party files a motion under Rule 60, mistake, excuse, etc to try and get the answer in. Also, let's say I do not file a motion for default, then go to trial and I use it against them, well they certainly can't file and answer at trial right? How can they defend a question they have no answer to. Is the court just supposed to assume they deny the claim. This is difficult to make sense of. Can you explain what you rely upon to state why they have not admitted claims for which they have not denied? Why am I getting such a differing opinions on this?

Expert:  JBaxLaw replied 3 years ago.
You indicated the original answer stands to the complaint you filed first. Is that correct? The FED claim stands as does the original answer?

Thank you
Customer: replied 3 years ago.

I am not sure what you mean by stands, but I filed a complaint, they filed an answer, i amended my complaint by dropping 3 claims and adding 1 claim. They did not file and amended answer. Case law and advise from other attorneys on this site indicate that under the rules, failure to answer an amended complaint means they have admitted the allegations. I understand that it is within the judges discretion to allow a late answer but the judges discretion is not the question, we don't have control over judges discretion but still have to apply the law. Please look at the questions again in my email and provide detail. These are valid and specific questions concerning an apparent conflicting aspect of the law. I understand if you do not have time to provide detail, if so please refer this dialogue to some one else.


Thank you.

Expert:  JBaxLaw replied 3 years ago.
I did not see you dropped three complaints and added one prior. You are correct the judge can and likely will allow the answer to be amended per Colorado Rules of Civil Procedure Rule 15a. This rule, in essence, provides that a party may amend its pleadings by leave of court. That “leave shall be freely given when justice so requires.” Also see Stuart v. Frederick R. Ross Investment Co., 773 P.2d 1107, 1110 (Colo. App. 1988). You would need to show you were prejudiced by the judge granting the leave to amend.

Thank you
Expert:  JBaxLaw replied 3 years ago.
Thank you so much for allowing me to assist you.

Please let me know if you need any other assistance. Thank you for leaving me a positive rating and ensuring that I receive credit for assisting you.

Thank you again
Customer: replied 3 years ago.

I was concerned that you were not reading the details of the matter and would not address that your statements were in conflict with others on this forum. However, don't worry about it, its just sometimes difficult to communicate fully in this manner.


Interestingly, the question has sparked quite a bit of controversy with regard to the differences in rules between County Court, District Court, Appellate Court, etc. It appears clear that a procedural violation in District Court under the identical circumstances as described would result in a very strong case for default judgment. However, the lawmakers did not accidentally make the rules vague and different for County Court than for District Court, right? While the law is applied the same in all courts, procedural defects may not be dealt with in the same manner? County judges have significant discretion compared to the scrutiny and precedent District court must follow? Any comments on the subject are welcome.


Have a nice evening!

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