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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 99981
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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If you are charged with arson and the case has been dismissed

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If you are charged with arson and the case has been dismissed 2 separate times, and the DA went behind the judge and filed it again with a new judge, (this has been going on for 5 years) My husband was discharged from the military, I lost my store because I couldn't get insurance so I couldn't purchase products to do business, I am all over the internet, and we just went to trial, if we are found not guilty this time again....can I sue, now remember the insurance company is who had these charges filed over a $28,000 claim of water damage, also no fire is apparent anywhere just assumed due to sprinklers going off. (That's right nothing burned, I still think it was faulty sprinklers. Now we have lost everything, all money jobs, and this case has been dismissed 2 different times. This will be the 3rd time. We also lost retirement from military even though he got an honorable discharge. So $495,000 later and nothing left can we sue?
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. The answer is yes, you likely can. You may likely sue both the DA and the insurance company (in a combined suit) for what is known as malicious prosecution.

he elements of a malicious prosecution action are: (1) a previous prosecution, (2) instigation or procurement thereof by defendant, (3) termination of the prosecution by an acquittal or discharge of plaintiff, (4) want of probable cause, (5) malice in bringing the prosecution on the part of the defendant and (6) damage to plaintiff. Vander Linden v. Crews, Iowa, 231 N.W.2d 904, 905; Liberty Loan Corp. of Des Moines v. Williams, Iowa, 201 N.W.2d 462, 466.

The basis of an action for malicious prosecution consists of the wrongful initiation of an unsuccessful civil or criminal proceeding with malice and without probable cause. Hyde Construction Co., Inc. v. Koehring Company, 387 F.Supp. 702, 713 (S.D.Miss.1974); Liberty Loan Corp. of Des Moines v. Williams, supra, 201 N.W.2d 462, 466; 72 C.J.S. Process § 119, p. 1189.

Malicious prosecution may be used against both the D.A. and the civil party that filed the false/misleading criminal complaint.

Furthermore, you may also sue the company as well for defamation. The law of defamation consists of the twin torts of libel (written defamation) and slander (verbal defamation). The gist of an action for libel or slander is the publication of written or oral statements which tend to injure a person's reputation and good name. Lara v. Thomas, 512 NW 2d 777 - Iowa: Supreme Court 1994 (quoting Prosser).

Punitive damages may be available under Iowa Code § 668A. 1 if you can show "willful and wanton" actions that have injured you.

God luck.

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Customer: replied 3 years ago.


His reasoning behind filing the same charge for the 3rd time is the motive is now that we had to file bankruptcy, (2 1/2) years later, who wouldn't with a family of three and no jobs, legal fees, ect. However we were able to sustain for 2 1/2 years before we had no choice, after he filed it the 2nd time, neither of us could get a job, and we have a child we have to feed and cloth. How can this happen?

B,

First, please let me know if you did not see my original answer that discusses malicious prosecution and defamation.

ow can this happen?

Sometimes, the D.A. will be convinced that there was foul play and pursue you even if there was not. But, once your name is XXXXX XXXXX may turn around and sue for the damages that the D.A. has done by incessant criminal prosecution over something that did not have merit.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because `is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
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Customer: replied 3 years ago.


Would you know anyone in Iowa to refer me to? Also is this type of suit usually done on a contingency fee? I want all the stuff on the web off also, can that be done, how about all the radio and newspaper articles?

Hello,

It may be best to hold off going to the media until you get counsel. An attorney may or may not take this on contingency, but, everything is negotiable. May I recommend the Iowa Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.
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