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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27091
Experience:  Began practicing law in 1992
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JD 1992, this is about the same lawsuit i mentioned last night.

Customer Question

JD 1992, this is about the same lawsuit i mentioned last night. i am in default for not answering the summons, i will put a motion to extend time to file on monday. the opposing attorney is against as per his letter today. does this now mean i need to have oral arguments before the judge? or is my written response enough? i want to succeed in this motion, i know nothing about the judge and am reading up on the procedure. if i fail, can i introduce another motion on the spot and serve the other attorneys there. the affidavit of service was filled out wrong and filed accordingly? even though i have been told technical matters of service would be a waste of time generally, it might force the plaintiff to re-serve me and thus i can have 30 days to respond. if i am going to hang on a technicality why shouldn't they?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

You can introduce another motion if the first one fails although the judge probably won't hear it right then since there was no notice. A better plan is to go ahead and serve them with the new motion and hear them both at the same time. Also, go ahead and file the Answer. It has been my experience that the judge is more likely to go ahead and grant the extension if the answer is filed already.

Customer:

u mean file the answer to the original summons, correct?

Customer:

you mean file the answer to the original summons, correct? if so that's a great idea, i assume i file my answer with the court?

Customer:

sorry hit the button twice. how long does it take for the judge to hear the motion afew days, a week ? after i file can i serve the motion by walking into the law offices of the other attorneys and handing it to them or can i mail them? also what are answering affidavits?

JD 1992 :

Yes, file the Answer to the original summons. You file it with the clerk of court, it should give you the address on the summons itself.

JD 1992 :

Serve the motions by sending them certified mail, return receipt requested. If you have their fax number, then fax it and send it CMRRR. Be sure and note on the cover letter that you send it both ways.

JD 1992 :

I'm not sure what you mean by "answering affidavits"?

Customer:

great, my brother is a lawyer and he will be helping me write my answer.

Customer:

answering affidavits just saw the term and couldnt find a definition.

Customer:

anyway thanks a lot,

Customer:

have a good night

JD 1992 :

I'm not sure what it means because it would require context. There are several times you would file an affidavit in response to the other side and any of them would fit that description.

Customer:

one more thing, about depositions, if the opposing lawyer(i guess he is a little over the top) asking questions gets aggressive can you ask him to tone it down? being my own lawyer can i say things like vague question can u please be more specific?

JD 1992 :

You can object in some instances. Objection, the question is too vague to answer or else just tell them you can't answer it because it is too vague.

Customer:

i guess he comes on real strong at the end,probably when the one being deposed is at his wits end. the realtor lost it the other day. i just will not accept anything other than civil discourse

JD 1992 :

You can certainly object to being badgered or to being treated with a lack of respect. Usually the way to head that off is to make sure that the depo is being videotaped or at least recorded on audio.

Customer:

it is. thanks and have a good night

JD 1992 :

Best wishes to you!

JD 1992 :

Please ask any follow up questions in this thread. When all of your questions have been answered, then I would ask that you give a Positive Rating (of course I'd suggest Excellent) since that is the only way I get credit for my work and also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.


 


However, please do not issue a rating of any kind until all of your questions have been answered and please use the Reply button to ask additional questions or to provide answers to my questions.

Customer: Sorry I just rated u...oh well. My brother who will soon represent me after September, he has a conflict with the federal clerkship he's in, he wants me to get your take on this point and the two questions at the end:
Customer: I started looking at the case law on motions to extend. The three main factors that New York courts consider are whether there is "a reasonable excuse for the delay, a meritorious defense and a lack of prejudice to the other party."  Rickert v Chestara 56 A.D.3d 941, 867 N.Y.S.2d 262 NY 2008. Of these three factors, asserting a reasonable excuse and a meritorious defense (to at least one of the claims) appear to be most important. (It is up for the Plaintiff, when opposing the motion, to demonstrate prejudice.)While courts entertain broad discretion in ruling on these motions, "this discretion is circumscribed [where] the extension motion follows a motion for relief based on the default." Special Products Mfg., Inc. v. Douglass, 553 N.Y.S.2d 506, 508-09 (N.Y.A.D. 1990).Accordingly, it will be important to (1) determine which explanations for your delay would be deemed "reasonable," (2) make clear to the court what your meritorious defense(s) are, and (3) file the answer before the Plaintiff files for default. Since Plaintiff's attorney knows of your plans to file a motion, it is possible they will try to "beat you to the courthouse."Of these factors, I think you have good grounds for asserting a meritorious defense to at least one of the claims (fraud), which is good. I am most concerned, therefore, about the "reasonable excuse" prong. I am concerned that a conscious decision to forego entering the case could be seen as willful, irrespective of your financial hardship/marital status. I have not seen any case directly on point about this, but it's something we should get clarity on before making it the basis for your delay. With this in mind, I would suggest asking the online attorney the following 2 questions:1) Would inability to hire an attorney, and not knowing that you could represent yourself, be a reasonable excuse for the delay?2) Would the separation/divorce issue support the reasonableness of the delay?
Customer: The length of delay is a about 10 months. I know I'm not proud of it but I have some personal reasons although I'm sure the law does not care!
JD 1992 :

I think both of those are reasonable excuses, if you plead that it is taking some additional time to do research, etc. because of the inexperience with the system. I would also stress the lack of harm to the other side. While it may not be weighted as heavy in the appellate cases, I think it actually does make a difference in a trial court's willingness to grant the motion.

JD 1992 :

Also, the rating you issued didn't go through so if you wouldn't mind trying again it would be appreciated. We can, of course, continue with follow ups in this thread even after you rate.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27091
Experience: Began practicing law in 1992
Dwayne B. and 8 other Legal Specialists are ready to help you
Expert:  Dwayne B. replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Customer: replied 1 year ago.
I tried to rate and while it was easy after the first question I asked it seems that I can not get to the page. Of course I rate it as excellent and will provide a tip for service absolutely but apparently I can not navigate the ssytem?!
Customer: replied 1 year ago.
Jd, here is a question about contracts.
Say someone comes to you, lets call him Jim, and says he wants to buy your house, you assume Jim is the buyer,  Jim's girlfriend signs the contract and disclosure,  you figure well they are buying the house together, how quaint. Jim communicates all his contingencies and concerns about the house with you etc.  at closing Jim and his girlfriend are with their  lawyer and the papers are signed, but now you see that they are signed by his girlfriend in the name of an llc.  No indication still by the Jim and his GF  that they are not the owners,  they take possession and paints and  fixes the house  up.  Then the seller finds out that neither  jim nor his GF,  bought the house, but an llc that niether Jim nor his GF  are members  of.  Then you find out that the llc is the plaintiff in a lawsuit against you, for failure to communicate a lead report to the owner.  Yet you told the JIm about the lead report.  During deposition Jim and his GF both claim to never have been members of the llc, neither did they have POA.  then you find out that Jim didn't sign anything because he was headed to federal prison a month after closing, on unrelated drug conspiracy charges, apparently Jim sold all his properties in a short sale to his girlfriend before he went into the pen, so obviously did not want his name on one more.

How is it Jim's GF could sign All the closing papers for the house?
How could the seller be responsible to an owner llc that didn't exist until 10 days before closing?
At best could it not be said that Jim was the buyers agent? 
If he can't be described as buyers agent,  nor the owner what would his legal title be?
would the seller be wrong for assuming Jim and his GF were the owners since they acted as such?
Could it be said there was misrepresentation on Jim and his GF's behalf
Expert:  Dwayne B. replied 1 year ago.
Do me a favor please. The website requires you to open a new question thread when there is a new topic. Since you are a subscription customer it doesn't cost extra to do that so would you mind opening a new question and just cut and paste this info into that thread? Start it with FOR JD 1992 and I will pick up as soon as I see it. Put it into the general Legal category since it is a procedural question and then I'll pick up. You may also be able to ask for me specifically when you post it and if you do it'll send me an email.

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