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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32323
Experience:  Began practicing law in 1992
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My ex is suing me title or 10,000 in small claims court

Customer Question

my ex is suing me for the title or 10,000 in small claims court for a truck that is in my name. The divorce was done in Vegas but we live in California, we had no property together I had a house before we were married so we each person kept what we came into the marriage with. I had purchased several cars in my name one being a truck that he was driving, in the divorce papers there is no mention of me giving him the truck. I allowed him to drive the truck because he had no mean of transportation. I also allowed him to live in the my house for eight months rent free. I agreed to let him drive the truck as long as he paid the note. The truck was purchased in 2009 the divorce was final in 2011. Sense the divorce I have received a $25000 tax bill due to a business he had, but because I was handling making the payments the went after me, the put a lien on my house they have taking my income tax checks and garnished my wages, he was suppose to help pay, but he is not helping me with the bill. I told him I wanted the truck back to sell it and pay the lien he has now file to take me to small claims court for the pink slip or 10,000, How can I win this case and get my truck back so I can get this lien off of me. I didn't file a response to the small claims court I figured my divorce papers should be enough. Please help
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

When were you served with the papers from the small claims court?

Customer: replied 1 year ago.
they came in the mail about a month ago
Customer: replied 1 year ago.
my court date is tomorrow
Customer: replied 1 year ago.
I have asked paralegals what to do even called the court, the lady at small claims told me the judge cant make me give him the pink slip its usually about money but I would have the option of giving him the pink slip if he wins
Customer: replied 1 year ago.
I didn't counter sue because I figure my divorce papers should be enough. now I'm not so sure I don't want to loose the truck and be stuck with the tax bill he hasn't lost anything they are taking every dime they can find from me
Expert:  Dwayne B. replied 1 year ago.

You may have a problem because you MUST file an answer to the petition or the court may not let you argue anything and may issue a default judgment against you in which case you have to appeal.

You still would want to file the answer today and get a copy to him somehow.

You will want to argue that since this truck was purchased during the marriage then the divorce court is the one that has jurisdiction over it as an "undistributed asset of the marriage" and that the proper thing to do is for him to file the case in that court asking the divorce court to award the truck to him.

I usually don't do case law research because it costs so much but if you'll give me just a few minutes I'll see if I can find you a case cite to use.

Customer: replied 1 year ago.
I sent you a copy of the court papers, no response was required, I just needed to show up and bring any witness or receipts remember this is small claims
Customer: replied 1 year ago.
we never even saw a judge with the divorce we filed and the divorce was granted, he signed off stating no assets the truck wasn't paid for when we got the divorce everything was in my name.
Customer: replied 1 year ago.
I just don't feel he has a right to keep the truck especially since it wasn't listed in the divorce.
Customer: replied 1 year ago.
no assets means no assets right?
Expert:  Dwayne B. replied 1 year ago.

Ok, what you are looking for is in Section 2556 of the California Code which you can see at http://law.justia.com/codes/california/2010/fam/2550-2556.html

No, when it says no assets it doesn't mean there are no assets since there wasn't a hearing on the assets and since you state in your facts the truck did exist during the marriage then it should have been addressed in the divorce papers. Your lawyer should have included a listing of all community property and divided it and all separate property and confirmed it.

However, the section I just gave you says that the divorce court is the court with jurisdiction to hear the case, not the small claims court.

That is also the correct way to handle this since he is claiming it is a marital asset, you go back to the divorce court and have it decide whether it is or is not a marital asset that wasn't divided.

Customer: replied 1 year ago.
We had no lawyer both parties agreed, he sighed the papers and I went to Las Vegas and filed them. I will state that if he wanted the truck at the time he should have stated it on the divorce papers, If this goes in his favor do I have the right to not give him the pink slip and let the judge order the me to pay the 10,000 and take the truck.
Customer: replied 1 year ago.
I have no intentions of giving him the pink slip he is asking for 10,000 because he paid the last two years on the note, but it would be the same if he was renting a car.
Customer: replied 1 year ago.
remember we were married in vegas and we divorced in vegas
Expert:  Dwayne B. replied 1 year ago.

Usually, yes. Giving the title is what is known as "specific performance" and I don't see in the petition where he asked for that and normally a small claims court judge doesn't have the power to award specific performance.

You would have also been entitled to counter-sue for the amount of value he received for the use of the truck but, again, it is likely too late for that unless you can get the judge to delay the proceeding. By arguing that the other court has jurisdiction over the truck it allows you to get your "ducks in a row".

Expert:  Dwayne B. replied 1 year ago.

.

Customer: replied 1 year ago.
ok with that being said can I take custody of the truck?
Expert:  Dwayne B. replied 1 year ago.

That's not something I can advise on since it depends on so many factors. Most courts don't like for people to "self help" in case like this because there are so many chances for things to go wrong.

Expert:  Dwayne B. replied 1 year ago.

.

Customer: replied 1 year ago.
Thank you for your help I have one more question, we were divorced in 2011, he can go back and petition the court to add the truck as property to be divided? This is so crazy to me I thought once the court stamped the approval it was done. I don't want him to be able and go back and ask for my house, I purchased that before we were married.
Expert:  Dwayne B. replied 1 year ago.

Yes, a court retains jurisdiction to divide marital property that existed and wasn't divided in the divorce. You usually see this with things like pensions someone forgot about or property someone hid.

It doesn't mean he can get it, anything purchased before the marriage is still separate property but if he claims it is community/marital property then the divorce court is the place to hear the dispute, not another court.

Customer: replied 1 year ago.
thank you!
Expert:  Dwayne B. replied 1 year ago.

You're very welcome.

Best wishes to you and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I receive credit for my work.

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