Thank you, XXXXX XXXXX is no hurrry and Andrea is just fabulous, you guys are blessed to have such team !
This is another question that was not on my list and saw it only after Wendy, one of the Moderators sent me an email.
, I just re-read the first post you entered on another page. I am going to send the following question and Answer to one of your other Question Pages because I want to be sure you see it.
Q. Who did the plaintiff name as the Defendant in his lawsuit ?
A. If he named you as a defendant, he has named the wrong party and the judgment against you should not be permitted to stand. His business was with the corporation and any work for which you were retained, was done by the corporation and the plaintiff was paying for services of your corporation with check made payable to the corporation. He should have named the corporation as the defendant, not you. Therefore, since you were operating as a corporation, you cannot be held personally liable for any judgment, nor can he attach any of your personal assets to satisfy any judgment.
2. If he named the corporation, then he named the correct defendant, and again, you are protected from personal liability and the plaintiff cannot touch your personal assets to satisfy any judgment he gets against the corporation.
In order to buy yourself time, you must file an Appeal. Since his fee is on contingency, it would be a percentage of the judgment awarded to the plaintiff. If you file an Appeal, everything remains in abeyance, (put on "hold") and he cannot be paid anything - How can he get a percentage of an "unknown" ? The Answer is he simply can't
I have no idea what he means when he states that he "...will be seeking a multiplier..."
2. Your question is a good one; if he is being paid on contingency, how can he be "charging you by the hour.
3. I do not know what you mean by recommendations ? If you mean how would you refute them I would say the following:
A. The decision is being appealed and everything is left in abeyance in order to preserve the status quo. Therefore, Mr. _______ 's Motion for Attorney's Fees is premature;
B. Mr. _________ has informed me that he was representing the plaintiff on a contingency Fee Agreement, If the judgment is in abeyance, especially because the judgment is being appealed, there is no judgment against which to charge any contingency;
C. Mr. __________ is making an attempt now to collect Attorney's Fees based on his hourly fee. This cannot be permitted if he was engaged on a Contingency Fee Agreement with the Plaintiff. In addition, if Mr. _________ is presenting a fee based on hourly charges, then I am entitled to an "Itemized List of Legal Services Rendered";
D. Mr. ________ has not given me any breakdown of his fee. An Attorney cannot simply hand over a bill the size of the bill Mr. ________ is presenting and simply say, "Pay it"."
4. You cannot raise the defense of fraud to object to Attorney's Fees because for purposes of his Motion, he is seeking Attorney's Fees, the issue of fraud deals with the plaintiff's involvement and even if the plaintiff were involved (and, I think he definitely is involved), this is something that should have been brought up at trial, or brought up in the Appeal as "After acquired evidence", and is not a valid defense to Attorney's Fees.
It has to be raised on Appeal as "After Acquired Evidence" because as I told you a few Answers ago, nothing can be brought up for the first time on Appeal if it was available to the litigant at the time of trial.
The most effective way to fight back is by filing an Appeal and speaking to the insurance company about the fraud. Once you have reported that, you will have the insurance company on your side and their attorneys by your side.
Please be kind enough to rate my service to you as "Excellent Service", and if you are presented with a survey by JustAnswer, Please leave some Positive Feedback, I would greatly appreciate it greatly,
Thank you for allowing me the opportunity to assist you,
Hi Andrea,Thank you for your incredible work. I have rated and tipped, but the bonus is for the gesture only, because I am waiting for some money to come in and my account starts getting depleted, so as soon as money comes in, I will complement as it is my intention to give you a much higher bonus for you amazing job.I will read in detail now, and let you know about a few questions, especially in the light that Plaintiff's lawyer seems to me to appear as a "potential" party and not as a representative in this lawsuit, based on his general allegation in his first amended complaint ...in which case I would like to know if it's not a severe violation of my rights to defend myself , when I have not been notified of the legal obligation that forced him to be Plaintiff's defendant , is it a court decision, or what else, and which judge ? And a good reason to deny his fees, especially in the light of the very unclear foundations of his relationship with his client....,and of no valid excuse to have filed his amended complaint 4 months too late ?We will drill this to the details, but it is extremely confusing and it seems to me that the judge is very nice to that lawyer here, if she would have validated the above and overrule her own decision to dismiss the first complaint with a notice of 20 days to Plaintiff to amend and attach the contracts which he had failed to attach in his initial complaint. Plaintiff, did not obey to the judge order either when filing his 1st amended complaint.without attaching the contracts.
Your A. Plantiff named me and my wife, with an orthographic mispell of her name which was notified to the judge in my motion to dismiss his complaint, but kept on going on until the end of the lawsuit, including in the judge's notifications, together with a wrong address,Your question sounds very cool to me, however my question is, should I have not raised the objection other than at the trial hearing and in my proposal of final judgment, where I insisted that the checks went to my corporation and that the enrichment to me was not established by Plaintiff ("he failed to meet his burden of proof "?)
Note:We will need to discuss about my motion to strike his first amended complaint and how it was inexplicably denied by the judge with notice to file answers within 20 days, which my lawyer did. The answers, though need to be revised, but should I not appeal that order to deny my motion to strike and/dismiss in the first place, especially when it is for a large part confirming the first motion to dismiss with memorandum of laws, and that was granted.This case sounds very weird to me. If I had to write a fiction book about it, I would write that Plaintiff or his lawyer went to see a voodoo witch and did some black magic.... Maybe a good scenario for a film that could help me to pay the $150,000 that I foresee as Plaintiff's attorney bill (just kiddingtitle="Laughing"/>)
2. He did not file against the corporation anywhere, I searched this one.
I have no idea what he means when he states that he "...will be seeking a multiplier..."this is a form of indemnity that the winning party could be entitled to in some very specific conditions, to compensate the financial hardship of having disbursed attorney's fees.The conditions are very specific, it's very difficult to understand, but here again, Plaintiff's lawyer is not the Plaintiff himself, so my logic would be that he's just entitled to payment of his effective attorneys fees and thta the multiplier here is abusive if we are talking about a contingency fee.However, it looks pretty much to me that this lawyer is weighing which one is going to be the best option for him : either to pretend that he was paid by the hour, in which case, if my logic is correct, he would also need to prove that he received effective payments from Plaintiff to ask for the multiplier, or that he was paid on a contingency fee, in which case when I appeal, he is entitled to nothing yet as you say.This could be why, in his first email he speaks of a contingency fee, and next, one week later, he forgets his own lie and speaks of a fee by the hour. Of course he did not answer my question about his hourly fees... Just a guess, of course.Again, the "partners in greed" theory is applying here. At the end of the road, Plaintiff may have to pay whatever fees his lawyer is fabricating, and obviously there must have been a problem between them when Plaintiff was forced (by what ????) to take him as a lawyer, as his lawyer is alleging in his first amended complaint.The whole thing sound really weird to me....
Your (3). Amazing job. When should I shoot this letter to the judge ? Today, with the letter objecting plaintiff's lawyer request to amend the final judgment.I need to buy some time to analyze all to the least detail, which i did not have so far, so the latest i file the Notice of Appeal, the best it is, because if I have 3 months of time to prepare the memo, I feel that I can come up with something excellent, possibly with the help of a low cost legal assistance and, of course, with the help of this website and especially you. If I were a lawyer, I could whip this off in a shorter time, of course, but I am not and so i am moving forward like a snail,
Your question 4. Thank your for the advice, and for mentioning the after acquired evidence.I am familiar with the type of rule where no further evidence can be brought, this is why I was looking at focussing on the legality of the judge's decisions in the first place, given the facts brought to her knowledge.When the judge denied my lawyer's motion to strike, I had the feeling that there was something really wrong and that, down the road, this could be a serious reason to appeal if necessary. I then asked my lawyer how can we attack the judge's order, that overrules his previous one without explanation, and I was told we need to go until the end of the trial and then appeal.Especially, to my point of view, my lawyer filed a motion to dismiss the case on the grounds that this was a contractual situation, and therefore there could not been any valid cause of action for unjust enrichment. My lawyer added a memorandum of laws. In my lawyer's motion to strike the first amended complaint, he is repeating the same grounds, and pointing at the absence of contracts for the 2 nd time, irrespectful of the judge's order to grant the previous motion to dismiss. So my adversary ignored the order to bring the contratcs and the notice of 20 days, and the judge ignored my motion to strike or dismiss that. Basically this judge has totally reversed her own position, ordering one thing and allowing the contrary.
My question about your answer #3.Plaintiff's lawyer has not serviced his motion for attorney's fees yet.Should I sent this letter to the judge PREVENTIVELY ( I like the idea !) in which case do I need to file a Notice of Appeal now in order to write"A.The decision is being appealed...
Your answer 4. Ok. however my point was that in the event the judge would grant the attorney fees, since he is aware of the fraud, and as per Florida Statutes related to insurance fraud which I had noticed, it is a professional misdemeanor or even felony for an Attorney to assist, is this not against public order to let the attorney be paid for a crime ?Florida 817.234((3) Any attorney who knowingly and willfully assists, conspires with, or urges any claimant to fraudulently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging on such attorney’s part, knowingly and willfully benefits from the proceeds derived from the use of such fraud, commits insurance fraud, punishable as provided in subsection (11).Alternatively, should I file a lawsuit against this attorney, especially in the light that I have another very valid reason that I did not bring into the picture yet in order to try to keep our ducks in a row by avoiding the number of ducks to become overwhelming (kidding !)
You wrote : The most effective way to fight back is by filing an Appeal and speaking to the insurance company about the fraud. Once you have reported that, you will have the insurance company on your side and their attorneys by your side.Ok, the question is when to file the Notice of Appeal, and when and how to contact the insurance Co. They may be on my side, but "preparing the worst and hoping the best", they can also chose to attack both Plaintiff, his attorney and me. In that situation, I will have to deal with an additional lawsuit during my appeal, which is going to be a serious extra weight and stress.Therefore, my strategy was to draw the fraud to the attention of the judge when opposing to attorney's fees, then file a Notice of Appeal, and then bring the whole thing to a lawyer to handle the communications with the insurance company on a contingency fee if possible, and negotiate the reward, otherwise I just as well may be forced by the insurance company to release all I know for free and even without having them sparing me from a new lawsuit.The reason is that I benefitted of the insurance moneys indirectly so far, and this is probably explaining the tactics of plaintiff's lawyer with the adjuster, introducing the whole thing as if my wife was the actual claimant to the insurance, and he was just a kind of nominee.I have seen a handwritten note of the adjuster with all the people to contact and their phone number, and my wife is listed as the person to contact to organize the visits. We had the custody of the house and the usage, without paying rents, in order to do the repairs, but now there is a judgment stating thta we did not do any repairs at all, so I will have to show my evidences again, etc... which are very strong becuase i have a detailed inspection report in February 2010 by a sworn FHA appraiser, with pictures and detailed assessment of the condition of each room etc... which apparently the judge did not take into consideration, even though it;s part of the exhibits in the notebook produced by Plaintiff at the trial hearing etc... I have not read about the validity of this, i have asked you the question but there is a lot more to review and I am drilling down progressively...
Please see above all my posts, as i have answered to your questions and I have asked for some explanations based on your answers. Thank you for your amazing job, once again !
Good Morning, Peter,
You have posed a lot of questions and I am going to take them one by one so that nothing is confusing.
Answer to your first Reply - 6:14 AM
"Forced to retain the undersigned counsel" - I think that the difficulty here is that you have interpreted "forced" in the common, every day definition and that is not the case at all. There was absolutely no legal obligation compelling the plaintiff to retain him. The plaintiff was forced to retain counsel in order to assert his rights, that is all. If he had retained any other lawyer, the same phrase would have been used. Read the sentence like this:
"Plaintiff was sued and, therefore, he was forced to incur legal fees"
That is all that the lawyer's sentence means, absolutely, nothing more. It does not mean that the plaintiff was "coerced", "induced", or "compelled" to hire that person as his lawyer. So, don't even mention this because that is not the way the phrase is used in lawsuits.
2. The lawyer is not a potential party. The Florida Statute that you refer to states the act of defrauding an insurance company is "punishable". This means that an individual who defrauds an insurance company whether by submitting fraudulent claims, or doing other acts, etc. is a crime for which he can be prosecuted and the only office that can bring charges against him and prosecute him on the State level is the District Attorney's Office for each County.
3. What I wrote as suggestions for objecting to his Motion for Attorney's fees wold be something you would say in open Court, definitely not in a letter to the Judge. A judge will not read any Ex Parte communication from any litigant. They would be subject to judicial discipline. Any communication with a litigant or the party's lawyer must be either in the presence of the other party or his lawyer, or if by letter, with a "cc" going to the opposing side. Please,DO NOT SEND THAT TO THE JUDGE, you can be severely reprimanded by the Judge if you do.
Please be kind enough to rate my service to you as "Excellent Service",
Thank you for allowing me the opportunity to assist you,
Answer to 3. I will not send anything until we have put our ducks in a row and defined the strategy and timeline.When the opponent's lawyer sends me an email, my answers are in general like just "ok" if any any at all, or in the style like "I reserve all my rights to defend myself and formally disagree etc..."
PS : see my response here above.I am thinking rather of using that text to oppose to the motion to establish the fees of plaintiff's lawyer, but since I haven' t been serviced yet, so I am just preparing my answer at this time ("for the worse, and then I will hope for the best") I keep it in a safe place for future reference, with all my thankfulness to your brilliant work !
Hi, again, Peter,
Addressing Reply of 6:26 AM,, 6:33 AM, 6:57 AM
6:26 AM & 6:33 AM
1. File the Notice of Appeal. I am going to keep saying that until you tell me you have filed it. I am going to add grounds for the Appeal as we go along, so keep a list separate and apart from any other notes you are keeping.
2. Plaintiff sued the wrong party, pure and simple. He sued you personally and that was error. The whole purpose of incorporating and doing business as a corporation is to protect yourself and your personal assets. Judge was wrong in not permitting you to introduce evidence and checks to show that plaintiff was doing business with the corporation, not you.
I would definitely not concede anything, least of all attorney's fees reasonable or otherwise which was not raised during the trial and which is not part of the judgment
Additional Grounds for Appeal
1. Plaintiff sued wrong party. Plaintiff should have sued corporation;
2. Trial court erred in denying defendant's request to admit evidence that plaintiff was dealing with a corporation, and not with defendant personally.
3. Trial court erred in denying defendant's Motion to Strike plaintiff's complaint as untimely;.
4. If the judge grants lawyer pre-judgment interest, that will be additional grounds for appeal because the issue was not presented at trial, you did not have opportunity to refute plaintiff's reqest for pre-judgment interest.
In Answer to one of the questions you posted in your first question in this question box of what you can object to - Lawyer is submitting a proposed Amended Judgment, the only issue or issues that you can object to are the issues the lawyer raises in his proposed Amended Judgement, nothing else.
2. If the lawyer did not request Attorney's Fees during trial, and the judgment does not award "Counsel fees", his Motion for Attorney's fees should be summarily denied;
3. You are not "Proposing a Judgment" because you cannot retry the case now. That is the purpose of the Appeal. The only thing you can do now is object to the Amended Complaint because it does not conform to the judgment which speaks only of interest on the judgment until it is paid.
4. You bring up the word "forced" again. If you still think of it as coercion, let me know and I will try and explain it differently. It is simply a phrase used in a legal sense meaning "but for this, I would not have done that.........."
Please allow me to reiterate - The argument/objectons I wrote are not to be sent to the Judge. They are to be used as oral arguments to refute and object to lawyer's "Motion for Attorney's Fees".
7:20 AM & 7:26 AM
1. Yes, this is an action involving a contract, but I do not know what your lawyer meant about not being an action for unjust enrichment. The only time that unjust enrichment is in contract actions.
2. No, do not send the letter to the judge, preventlively, or otherwise
You cannot discuss or debate fraud with the Judge at this stage of the proceedings. And, you are not the one to charge the lawyer with fraud. As I stated previously, defrauding an insurance company is a crime and it is the responsibility of the District Attorney's Office to file charges and prosecute the perpetrator. I do not see, nor have you mentioned anything for which you can sue the lawyer, except for slandering your wife which he should not have done, but the defamation action can wait a couple of months. until you address the issues for which you are facing immediate time limitations.
2. Yes, your corporation benefitted indirectly from the insurance proceeds, but it represented payment for work and repairs performed, you were not receiving money for nothing. If you let thie plaintiff or his lawyer intimidate you on this, you will not be able to fight. Look at it this way, How can they implicate you without implicating themselves ? They can't.
If you wait too long, then you will be asked why you did not come forward sooner, then that will make you look bad. Make sure you cover yourself from all angles, then immediately go to the insurance company. I can't tell you how to protect yourself, other than to say have all your records of hours you expended on repairs for the plaintiff and all your receipts for materials you bought. Then, they cannot touch you,
Thank you again, Andrea, for your in-depth work !7:20 AM & 7:26 AM
1. Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).The action in unjust enrichment is only admissible when there is no way to recover the damages otherwise. To recover under an unjust enrichment theory, the following elements must be proven: 1) lack of an adequate remedy at law; 2) a benefit conferred upon the defendant by the plaintiff coupled with the defendant’s appreciation of the benefit (i.e., an “enrichment”); and 3) acceptance and retention of the benefit under circumstances that make it inequitable for him or her to do so without paying the value of it (i.e., an “injustice”). Challenge Air Transport, Inc. v. Transportes Aereos Nacionales, S.A., 520 So. 2d 323 (Fla. 3d DCA 1988). lack of an adequate remedy at law is not present when there is a contract and the party can remedy by filing a lawsuit based on failure to fulfill obligations pby the other partythere is also no benefit conferred upon the defendant by the plaintiff coupled with the defendant’s appreciation of the benefit when there is a contract, it's an exchange., unless the contract is outrageously disadvantageaous for one party, etc...Defendant can't be enriched if he was fulfilling an obligation in counterpart of a paymentplaintiff has not stipulated that Defendant had knowledge that this remittance was a benefit, becuase it was a counterpart of his won obligation in a contract, etc... etc...
6:26 AM & 6:33 AM
1. File the Notice of Appeal.This is acquired, Andrea, I have vacated all other options 99% at this point, in 1 hour I will come up with a timeline and submit to your advice
2. Plaintiff sued the wrong party, pure and simple. He sued you personally and that was error. The whole purpose of incorporating and doing business as a corporation is to protect yourself and your personal assets. Judge was wrong in not permitting you to introduce evidence and checks to show that plaintiff was doing business with the corporation, not you.Ok, that sounds very right and sharp, because Plaintiff testified that I had rented his place to establish my Home Business, there was a business license at the address, etc...However, will I not be blamed for having raised that objection long before, or can i use the excusable neglect, with my forebearance situation ?
Judge was wrong in not permitting you to introduce evidence and checks to show that plaintiff was doing business with the corporation, not you.Actually there is substantial evidence, and there would have been a lot more if I could have duplicated the exhibits I had at the trial, but the photocopy machine of the library had a breakdown and the judge had given me just a very short time.
... more so, Plaintiff has all thta evidence in his notebook thta he gave us at the trial and to the judge, but I am not sure thta they asked for admission and i did not know it was necessary
8:12 AM 2. Agree, this is a payment of work performed and not a benefit, and I got paid by my corporation to do the work myself. My step son too, we can pull out the checks, and other people, and the bookkeeper can witness
You cannot discuss or debate fraud with the Judge at this stage of the proceedings.Ok, sounds like a wise advice...I am presently weeding out all the information so we just need to focus on the strategy/timeline:1. Letter to the judge in response and to oppose Plaintiff's lawyer, as prepared by you. I have some jurisprudence to possibly add.2. Notice of Appeal3. Bringing both to the Court House and ordering the transcript4. Preparing a motion to stay the judgment, after filing and serving the Notice of Appeal, based on the fact that I would need to file bankruptcy or whichever irreversible damage in case i win my Appeal5. Preparing an answer to opponent's lawyer motion for his fees I am going to put this into my agenda as soon as you let me know what you think about the above ?
2. If he named the corporation, then he named the correct defendant, and again, you are protected from personal liability and the plaintiff cannot touch your personal assets to satisfy any judgment he gets against the corporation.I had to dissolve it, given my state of health which resulted in critical financial situation and lack of proper management that required to stop the operations.
It has to be raised on Appeal as "After Acquired Evidence" because as I told you a few Answers ago, nothing can be brought up for the first time on Appeal if it was available to the litigant at the time of trial.Yes, I definitively made a mistake by not asking for admission all the documents of the Plaintiff in that Notebook, when Plaintiff only submitted a selection.My understanding then was that as long as I was not disputing, this was evidence i could use.
I am going to avoid bunching up" my Answers so that there is less confusion and I would be able to send my Answers to you more quickly because it takes that much longer for me to keep going up and down the page to find the next question. And, because my typing skills leave a lot to be desired. My apologies for not giving a clearer statement on the legal principle of "Unjust enrichment". I meant to say that this legal principle is "used in the context of", "related to", "in connection with" contracts. What I thought your lawyer was saying was that it was applicable in other areas and I was trying to figure out what other areas this principle could conceivably be applied to.
The partner of "Unjust enrichment", is "Quantum Meruit". For example, X takes his vehicle to have certain repairs done. The mechanic was under the impression that X wanted him to do all "necessary" repairs. When X picked up his car, he did not want to pay the full bill because he did not ask for all the repairs to be done. The mechanic sues the vehicle owner for the cost of repairs. The Judge would say that while it is true that the parties misunderstood one another as to the extent of the repairs to be done, to allow the owner to drive away without paying the mechanic for the additional repairs, the owner wold be "unjustly enriched" to the detriment of someone else. So, the Judge would apply the principle of "Quantum Meruit" - award the mechanic a certain amount which the repairs he made would "merit".
Thank you, XXXXX XXXXX for some reason they blocked my account yesterday.... it seems that i can't ask new questions. but I can answer the existing ones.
Their customer service was unable to explain, I had to call a "coordinator" who is on voicemail.... waiting to figure out
Quantum Meruit is precisely the problem.For the moment, I have not completely processed the timeline and strategy, other than filing a notice of appeal Concerning the letter to the judge, I need to re-read the answers to the questions again and see if all is OK.Then my intention is to go tomorrow to the Court, file the Notice and order the transcript and deliver the letter to the Judge.
I know how frustrating it is to keep getting voicemail. Try Customer Service again if you keep getting voicemail. The Experts do not have access to customers' accounts so I have no way of knowing what the problem is, but my screen shows that you have 8 questions open at this time. I know that on my end, we cannot go on to a customer's new question until the previous question has been Answered and a rating given.
As for the letter to the Judge, you should concentrate your efforts on what the plaintiff's attorney is asking, keeping in mind that new issues cannot be raised and old issues cannot be relitigated, that is the job of an appellate court. You must address only the issue or issues he raises and, that is, pre-judgment interest, keeping everything simple and clear cut,
- Pre-judgment interest was not raised at trial
- Pre-judgment interest cannot be litigated after the trial has ended
- Interest was addressed in the judgment
- Judgment specifically states "interest on the judgment until paid
- If Judge intended to award pre-judgment interest, the judgment would have so stated in the judgment itself
By keeping the issues and arguments simple will allow the Judge to focus on what is presented and will not give the plaintiff's Attorney an opportunity to "sneak" something into his argument
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