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LADYLAWYER
LADYLAWYER, Lawyer
Category: Legal
Satisfied Customers: 6531
Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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Hello! Im the defendant. back in March 0f 2009 I wrote

Resolved Question:

Hello!

I'm the defendant. back in March 0f 2009 I wrote two check to the plaintiff for total amount of $7400.00USD the verbal agreement betweekn plaintiff and I are those checkk will settle at the end of April 2009. About two week after I wrote those checks, plaintiff came to me for some help due to her planned to purchase a house and asked me if I can settle with her in cash, at the time of settlement the plaintiff has miss-placed those two checks and she told me she will destroy them once she find it, I did some time remind her that she told me she has destroy them and I believed her. Time comes in October 2011 she came to me and with the two checks she had found and accused me that she has miss-placed those two checks and I still owed her the $7400.00USD and asked me to pay her. I recall what happen during the time I settled paid her $700.00USD off in cash but she refused to remember asked me for prove who's witness I paid her in cash.
I have evidents of my bank statement during that time frame I did take out cash.

I hope you understand my story. Please call me at XXX-XXX-XXXX
Or emailXXX@XXXXXX.XXX if you think you can help my with this case.

Thank You in advance.
Kim T Ramos
XXX-XXX-XXXX XXX@XXXXXX.XXX
Submitted: 1 year ago.
Category: Legal
Expert:  LADYLAWYER replied 1 year ago.

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?
Customer:

Hello LADYLAWYER,

Customer:

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.

Customer:

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

Customer:

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.
LADYLAWYER : Please let me know if you have any further questions as I am happy to help! If not, would you kindly leave me a positive rating so that the site will compensate me for my time? It costs you nothing further to do but is the only way the site pays their experts. Thanks so much!
Customer: replied 1 year ago.

Hi ladylawyer, in follow up - this matter has not been litigated before and there was no judgement awarded. As I mentioned, I just received a court date from small claims for April 12, 2013 regarding unpaid loan $7400.00 with proof my written checks (two) the above sum.

(1) I thought in CA written checks has statute of limitation = 3 yrs? Those checks were written Mar. 9, 2009.

(2) Is this legal in CA? This lady organized a money pot, collecting let's say $500.00

every week on 50 people, each week 1 person out of the 50 will get paid $24,500.00 and she pockets $500.00. She do not pay tax on this.

(3) The amount of $7,400.00 I incurred was I did not pay a weekly (it accumulated) and when its was my turn to collect my pot, she deducted the $7,400.00 + interest I have to pay her. No proof of this but there are checks written all the way to 2012 that was tore (when cash is paid/deducted from pot) except these 2 checks that she did not tear and found out when she was cleaning her new house. What is my legal rebuttal on this that I already paid her, she just forgot?

Expert:  LADYLAWYER replied 1 year ago.

Hi Kim,

Okay, lets start over. :)

1) All U.S. banks are subject to federal code stating that a check can be declined after 180 days, or approximately six months, after it was written. California does not have any laws that extend or reduce this period. The issuing bank still has the option to cash or decline a personal check after 180 days have passed. Some banks will still honor a check in this case and some will not. Clearly, your bank would not cash the checks if plaintiff tried to recently present them. Now, as long as the plaintiff is within the statute of limitations based on the ORIGNIAL injury she is claiming, then she can sue. We have to dig a little deeper to see if she is still within that time frame. So, let's say you had an oral contract with the plaintiff to pay her weekly for this money pot. The plaintiff apparently believes that when she tried to collect the money from you, you paid her in the form of two checks. She does not remember you gave her cash. Several years go by and she finds the checks. Forgetting that you already paid her the money in cash, she sues to collect on the checks because the bank will not cash them for her now. However, because you wrote these checks back in 2009, the plaintiff should be BARRED by the statute of limitations on oral contracts, which happens to be 2 years in the state of CA. Thus, you need to ask the judge to dismiss the lawsuit based on the fact that the statute of limitations on your oral promise to pay is up. That will be your first argument.

2) No, what she is doing was not even legal. If a contract is illegal then it is void as a matter of law. Thus, the duties arising from it are void as well. You should not have to pay the plaintiff for something that was illegal in the first place. This will be your second argument.

3) As we already discussed previously, and if the judge does not dismiss the case based on the above two reasons, you are going to have to take your bank records into the hearing with you and argue that you already paid this woman. You don't have any other proof besides your bank records showing withdrawals at this time, so you cannot offer anything more than that. Honestly, the case should not even get this far because it should be dismissed on #1 and #2 above, but if for some slight chance it isn't and the judge really wants to hear if there is a case and controversy, then you will show him the evidence you have, tell him your side of things, and hopefully this will be enough to convince him to enter a judgment in your favor. Many times, these small claims cases come down to credibility, that is, who the judge believes more. So keep that in mind when you are speaking.

Hope this helps to clarify. If you still have questions, please just let me know. If not, please consider a positive rating at this time. Thanks Kim!

Customer: replied 1 year ago.


Hi LADYLAWYER,


 


Thank you for your response, I am glad I was able to put it in details and I am exonerated by your response. I do not want to push my luck but I would like to file counter claim on this person.


 


1. Harrassment - there was a time where everyweek she was yelling and screaming in my business stall even with people present, that I will have to pay for this in one way or another, that I will never get away with this, that she know where I live, etc.


 


2. Defamation - At least 1 couple she spoke with, my business neighbor, when I was not in, and told them all these lies in her side of story. Now these persons jokingly tells me, oh somebody is looking for you, looks like they are asking for payment! Can I ask for a written statement from these people as witness?


 


3. Pain/suffering - One occassion, my parents (in their 80s) we with me when she was yelling, they were very upset. This has been very traumatic. It caused discord between my husband and I. I have sleepless nights which I think affecting me, I had surgery for colon cancer March last year and last month I was diagnosed with peptic ulcer. I know I am stretching it but definitely the situation will not make it better.


 


4. Do I have a case? How do I go about it? How much can I be compensated?


 


Thank you again LADYLAWYER for your help. Bless you and regards.

Expert:  LADYLAWYER replied 1 year ago.
Hi Kim,

Here is the form you will need to file your counter claim: http://www.courts.ca.gov/documents/sc120.pdf. It has instructions in how to file. if you have any specific questions for me, just let me know. Also, this will help explain the court process: http://www.scscourt.org/self_help/small_claims/defendant/defendant_checklist.shtml.

In general, the counter-plaintiff has to get the Defendant's Claim and Order to Plaintiff at least 5 days before the hearing.

With regard to your claims, harassment really cannot be claimed as a tort in this type of case. Your remedy would be to seek a retraining order against her. However, if she was screaming these things in front of customers, that could go to defamation and intentional infliction of emotional distress.

Defamation can be claimed if the following elements have been met:

publication of a statement of fact
that is false,
unprivileged,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.

To have an actionable case against a defendant for emotional distress, the plaintiff must show that he suffered adverse emotional effects due to the defendant's actions. Causation plays an important role in emotional distress: the source of the mental anguish must be directly linked to the plaintiff's suffering. If the plaintiff can not prove causation, the judge will throw out the case.

I cannot quantify what your claims may be worth. You can ask for up to 10k in small claims. You need to ask for what you see fit to ask for and the judge will ultimately decide.

LADYLAWYER, Lawyer
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Satisfied Customers: 6531
Experience: Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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