How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask JBaxLaw Your Own Question

JBaxLaw
JBaxLaw, Attorney
Category: Business Law
Satisfied Customers: 11319
Experience:  Experienced in business formation and licensing issues
16110456
Type Your Business Law Question Here...
JBaxLaw is online now
A new question is answered every 9 seconds

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: 1 year ago.
Category: Business Law
Expert:  JBaxLaw replied 1 year ago.
Hello,

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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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!

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Law Pro

    Attorney

    Satisfied Customers:

    1767
    20 years experience in business law - sole proprietor, partnership, and corporations
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Attorney

    Satisfied Customers:

    1767
    20 years experience in business law - sole proprietor, partnership, and corporations
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    1495
    Run my own successful business/contract law practice.
  • http://ww2.justanswer.com/uploads/DC/DCraneEsq/2012-8-14_14436_DCrane.64x64.jpg MShore Law's Avatar

    MShore Law

    Attorney

    Satisfied Customers:

    1233
    Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    1174
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/scottymacesq/2009-6-10_221523_small.jpg RGMacEsq's Avatar

    RGMacEsq

    Attorney

    Satisfied Customers:

    504
    Licensed Texas General Practice Attorney
  • http://ww2.justanswer.com/uploads/ohioatty/2009-1-22_185545_me.jpg J.Hazelbaker's Avatar

    J.Hazelbaker

    Attorney

    Satisfied Customers:

    393
    Experienced and trained in the area of business law.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Attorney

    Satisfied Customers:

    373
    14 years practicing attorney, MBA
 
 
 

Related Business Law Questions

Chat Now With A Business Lawyer
JBaxLaw
JBaxLaw
Attorney
427 Satisfied Customers
Experienced in business formation and licensing issues