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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 100053
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Now the opposing lawyer sent me another motion stated

Customer Question

Now the opposing lawyer sent me another motion stated "Respondent's motion for sanctions pursuant to Florida statute 57.105. ". Then he went on to say that unless I agree to withdraw my "motion to vacate Final judgment", he will file sanctions and all
attorney fees. What can I do now? Should I file a motion to object? Thanks
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; and (B) the site allows experts to opt out of participation in phone calls and I may or may not be able to participate in this feature.
The opposing counsel is claiming that one's motion to vacate final judgment is based on unsupported claims or defenses, delaying litigation, or generally bad faith and without merit. See here.
At this point, if one feels that one's motion to vacate judgment IS NOT such as the opposing counsel describes, then one wants to file a RESPONSE to the motion for sanctions and then let the Court decide. This is not a motion to object, it would be simply a "Petitioner's Response to Respondent's Motion for Sanctions."
If one feels that the motion to vacate judgment may be a little questionable after all, then one may wish to withdraw it to avoid any sanctions.
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Customer: replied 1 year ago.
What response will I file to the respondent? I am the petitioner/wife and I refuse to withdraw my motion. I want Judge to rule on my motion to vacate Final judgment. Then why will I withdraw from it? Besides I didn't do anything wrong to be sanction. The husband's lawyer is wrong. Do you understand my point?
Expert:  Ely replied 1 year ago.
What response will I file to the respondent?
Simply a response that says that one's motion to set aside judgment has merit. Let me know if you need a template.
I am the petitioner/wife and I refuse to withdraw my motion. I want Judge to rule on my motion to vacate Final judgment. Then why will I withdraw from it? Besides I didn't do anything wrong to be sanction. The husband's lawyer is wrong. Do you understand my point?
Yes, I do. Then one does not have to withdraw the motion. Then, the Court will rule both on YOUR motion and THEIR motion and make a decision.
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Customer: replied 1 year ago.
I am the wife and my husband's lawyer is wrong. I feel harassed and threatened by him told me if I don't withdraw then he will santion me. He got no rights to do that. What response do I reply to him?
Expert:  Ely replied 1 year ago.
I am including an example of a reply. This is only an example and should not be word per word!
CAPTION (TITLE AND PARTIES AND CAUSE NUMBER
PETITIONER'S REPLY TO RESPONDENT'S MOTION FOR SANCTIONS (centered)
NOW COMES Petitioner, YOUR NAME, named files this reply to Respondent's Motion for Sanctions, and shows the Court:
Petitioner disagrees with Respondent's claims that her Motion to Set Aside Judgment filed (date) is based on unsupported claims or defenses, or otherwise is without merit and is grounds for sanctions under F.S. 57.105. Petitioner demands strict proof thereof as required by rules of evidence and procedure for the State of Florida.
Petitioner prays the Court, after notice and hearing or trial, enters judgment in favor of Petitioner, awards Defendant the costs of court, attorney's fees, and such other and further relief as Petitioner may be entitled to in law or in equity.
Respectfully submitted,
Your Signature
Your name
Your phone number
-(NEW PAGE)-
CERTIFICATE OF SERVICE (centered)
I certify that on (date filed) a true and correct copy of Petitioner's Reply to Respondent's Motion for Sanctions was served to the opposing party.
Your Signature
Your name

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Customer: replied 1 year ago.
What do you mean by "set aside judgment"? What kinds of sanctions can the opposing lawyer do? I know Judges have the authority put sanctions on anybody.
Customer: replied 1 year ago.
What does F.S 57.105 do? Will you please explain this law this to me briefly?
Expert:  Ely replied 1 year ago.
1) You filed a motion set vacate judgment (vacate/set aside = same thing)
2) opposing party filed a motion for sanctions, arguing that your motion to vacate judgment was without merit, and asks the court for sanctions arguing that your motion wastes everyone time.
3) Someone in your situation can either ENTER A REPLY (example above) and now withdraw motion, OR, withdraw motion to vacate judgment.
The Court decides which if any - sanctions should be applied.
57.105 Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation.—
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.
(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.
(c) Under paragraph (1)(b) against a represented party.
(d) On the court’s initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
(5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.
(6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.
(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

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Expert:  Ely replied 1 year ago.
Sorry, that should be:
1) You filed a motion set vacate judgment (vacate/set aside = same thing)
2) opposing party THREATENS to file a motion for sanctions, arguing that your motion to vacate judgment was without merit, and asks the court for sanctions arguing that your motion wastes everyone time.
3) Someone in your situation can either ENTER A REPLY (example above) if they actually file their motion for sanctions and not withdraw motion to vacate judgment, OR, withdraw motion to vacate judgment.
Customer: replied 1 year ago.
On every page of the of his motion, he ask for judge "former husband ask the court to deny former wife motion to vacate final judgment". In my response, is it better to include in every page of my motion to ask judge to approve my motion to vacate? or ask judge to favor my request to vacate final judgment in every page?
Expert:  Ely replied 1 year ago.
There is no need to request (again) to vacate judgment in one's REPLY. This has already been done in the motion to vacate judgment, itself.
The REPLY should only focus on opposing the other side's motion for sanctions.
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Customer: replied 1 year ago.
He went on to include all those in the motion, "FL.Power Corp v Garcia 780 so.2d34, Molinos Del SA v EI Dupont De Nemours, 947 SO 2d 521, Curbelo v. Ullman, Molinos Del SA v E.I DuPont de Nemours &Co. Why does he send me all these case statutes?
Expert:  Ely replied 1 year ago.
Often when wanting to prove a point, parties reply on precedent opinions from the Court in which the Courts have ruled on similar situations. So this is what that is - case law precedent that argues that in similar situations, someone was sanctioned for similar motions.
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Customer: replied 1 year ago.
He sends me a booklet of documents. First let me give me a little story about my case. This lawyer is my husband's lawyer. He entered a fraudulent final judgment in December 2014 on me. The final judgment stated " That both parties appeared in final judgment and wife was self-represented". Now I am the wife. December 11, 2014 I was working, i wasn't present. Now the opposing party attorney argued that I knew about the hearing and I failed to appear. The reason why he is so upset is because I complain to Florida Bar about his fraudulent plea against me. Now he is trying anything he can to defend himself. He even said that it was a "clerical error".
Expert:  Ely replied 1 year ago.
Thank you.
These additional acts do not change my overall answer, and it stands "as is."
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Customer: replied 1 year ago.
He sent me a motion to correct the clerical error last week and I objected to that motion. This week, he sends me a motion for sanctions. He sends me a whole booklet. I don't want to make a whole booklet like him. I just want to answer him in one simple paragraph. Can I do that? I want to be able to explain everything to him in one page. Do you see my point?
Expert:  Ely replied 1 year ago.
One's reply does not have to be as lengthy as the motion for sanctions. It may be fairly simply. See the example I sent you. Yes, I see your point.
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Customer: replied 1 year ago.
is he trying to scare me with this thick booklet? So all i need to focus in is your reply above. Don't worry about those cases he mentioned.
Expert:  Ely replied 1 year ago.
My apologies for the wait.
I do not know what his motivation is. However, if his threat is serious, he can file it, and then one would have to defend one's self by filing a REPLY.
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