LADYLAWYER : Hello Kim, Thanks for choosing Justanswer.com! I look forward to helping you with legal information today.
LADYLAWYER : Are you saying that she accepted the $700 in cash as full payment of the $7,400 you owed her or that you still owe her the $7,400 minus the $700 you paid her already?
Oops. that was atypo. I meant $7400.00 in cash.
LADYLAWYER : Okay, so you paid her the FULL $7,400 in cash.
LADYLAWYER : That is a surprising thing she would forget. However, if you received no written receipt from her and no satisfaction of judgment, she could technically go back to court seeking a writ of execution against you to fulfill this debt. A writ of execution is a request to the court to be able to garnish your wages, levy your bank account or seize and sell any non exempt assets to pay the judgment.
LADYLAWYER : That being said, if she sought the writ of execution, you would be notified. At that time, you could file a Motion to Dismiss Writ of Execution and a Motion to enter Satisfaction ofJudgment. Your argument would be that there has already been an accord and satisfaction of this debt. You will attach your bank statement as an exhibit to prove you withdrew the money to give to the plaintiff. You will likely have to go to a hearing on the motion to dismiss where the Plaintiff will have to show that she was not paid by you. At that time, the judge will make a decision to let the Plaintiff move forward with her Writ of Execution, or whether it will be dismissed and a Satisfaction of Judgment entered with the clerk so that plaintiff cannot try to come after you again. Customer:
she filed a small claim court and I recieved court date is April 12 2013.
prior to the court date please advise me what I need to do. And since these check has been written more then Three years ago and she is now suing
me for that, do you think chances the judge will listen to her side and I may end up to pay her again.
LADYLAWYER : I really needed that information to begin with but in any case, you are going to need to ask the judge to dismiss the lawsuit because this matter has already been litigated and a judgment awarded. She cannot go back to court and get another judgment because she already has one. Therefore, you will ask the court to dismiss the action based on Res Judicata. you can see more about that here: http://en.wikipedia.org/wiki/Res_judicata. This woman's proper remedy would be to file Writ of Execution like I mentioned and at that time, you would be able to contest the Writ based on the fact that you already paid her.
LADYLAWYER : Just so you know, a person can try to collect on a judgment in CA for 10 years and if the judgment is renewed during that time, they can try to collect on it another 10 years. So that means that this woman would have 20 years to come after you to try to collect. Of course, in your case, you have already paid her so hopefully the judge will agree with your version of the facts but either way, you should not have to argue anything about paying this woman in front of the small claims judge that you see in April. You will have to tell him that she already has a judgment against you for the same thing she is suing you for and is barred from brining this claim because of the Res Judicata, as I mentioned before.
LADYLAWYER : There is really nothing to do before your court date unless you want to file something before the hearing asking the court to dismiss the lawsuit. You will still have to go to the hearing, but you could file the written motion to dismiss before hand if your jurisdiction will let you. You can call the small claims clerk and ask them if that is allowed. Most likely though, you will just have to go to court and ask the judge to dismiss based on the reasons we discussed.
LADYLAWYER : Also, you should note that even if the judge were to make a ruling on whether you had to pay this woman (which he shouldn't, because making any sort of ruling except to dismiss the case is not proper based on the doctrine we have already discussed), you do not have to pay her. Most defendants do no pay right away. If you don't pay SHE will have to go back to court for a Writ of Execution, which is what she should have done in the first place if she thought you didn't pay her.
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