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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20233
Experience:  Handling criminal and probation matters for over 14 years.
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I wasnt given the opportunity to respond to a motion which

Resolved Question:

I wasn't given the opportunity to respond to a motion which led to a judgement against me to pay attorneys fees for a civil case we lost on a technicality. Were my due process rights violated and if so what can I do to have the judgement overturned?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 5 years ago.
Hi and thank you for using JustAnswer!

I am sorry to learn of these circumstances. Please clarify: when was the judgment entered?
Customer: replied 5 years ago.
It was entered maybe 3 weeks ago. We had initially received a judgement against a corporation in Hawaii for a lawsuit we had filed accusing the company of fraud and misrepresentation in a franchise purchase. The suit went unanswered by the defendant. It was overturned because of jurisdiction this summer and now the defendant filed a motion to recover attorney's fees. Her attorney never sent that motion to us and a request to the court to file a proper response went unanswered by the judge. The judge ruled in the defendants favor because of a so-called non-reply. We were twice denied the opportunity to respond and now have a judgement for $7500 against us that we can't afford to pay. Our attorney suggested we try to negotiate a fair settlement, but the defendant won't negotiate. He suggests that we file bankruptcy but our credit is over 800 and we pay all our bills on time.
Expert:  JB Umphrey replied 5 years ago.
Are you saying that the defendant's attorney never served you with the motion for attorney fees/costs?
Customer: replied 5 years ago.
Yes. Exactly. We stated that to the judge in a subsequent reply, and the defendants attorney claimed that he had sent it but agreed to allow us to respond after the fact, even stating he did not want to have our due process rights violated. Our attorney told us to call the court's clerk and request that the judge allow us an opportunity to respond and were told we would be notified of the judge's ruling on our request by mail. Several weeks later we recieved a judgement in the mail stating we failed to reply and she was awarded $7500 of the requested amount of $9200. All this legal work occured as the result of one judge overturning a judgement another had granted us based on the fact that the defendant wasn't present for the judgement hearing and the jurisdiction for the suit should have been in Hawaii, facts that the initial judge was well aware of before granting us the judgement in the first place.
Expert:  JB Umphrey replied 5 years ago.
Your attorney is free to file a motion for reconsideration with the judge to have the judgment set aside. In that motion for reconsideration, the attorney can outline what the problem was and why the judge's decision on the judgment is in error and should be set aside.

That is a quicker process than trying to file an appeal.

It has been my pleasure to assist you today with your information needs. If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
Customer: replied 5 years ago.
He mentioned that option but said that even if the judge decides the judgement is in error and sets it aside, defendants counsel can refile the motion seeking attorneys fees and we risk the chance we have another judgement against us for significantly more as more hours will be tacked on. We just want this to end affordably. He says that bankruptcy is our best option. What would you do?
Expert:  JB Umphrey replied 5 years ago.
Unfortunately, I do not have the benefit of reviewing the court file. I do not know the merits of their original motion.

If the were to win on the merits anyway, then the counsel given by your attorney is correct.

If you don't want to get hit with a bankruptcy ding on your credit report, then negotiate a payment plan with them.

You sure don't want to end up spending more in legal fees on an appeal rather than just paying the judgment (which is exactly what can happen).

If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
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