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Ray, Lawyer
Category: Legal
Satisfied Customers: 41555
Experience:  30 years in civil, probate, real estate, elder law
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I filed a foreclosure action on a mechanics lien and served

Customer Question

I filed a foreclosure action on a mechanics lien and served the defendant. 42 days later the defendant has attorney appear at motion hearing for default and final judgment. Court accepted appearance and gave 20 days to respond to complaint. Objected at the hearing but was over ruled and court gave defendant 20 days to respond. Filed motion for reconsideration next day of the order as partial basis was that 22 days had pasted since service was to be answered. No reply to the motion to reconsider. On 20th day, attorney filed a motion to dismiss the complaint in its entirety. Any suggestions?
Submitted: 2 years ago.
Category: Legal
Expert:  Ray replied 2 years ago.
Hi and welcome to JA. I am Ray and will be the expert helping you today.
All you can do here is ask by letter on a hearing on the motion to reconsider. You also have to file a response to the motion to dismiss to keep your suit alive.
If he is objecting to your pleadings you maybe able to also amend the pleading and prevent dismissal.If the court is going to grant dismissal try for dismissal without prejudice.
This allows you to refile as a last resort.All you can do here is keep on after them , just because the other lawyer filed the motion doesn't mean he will prevail or that it would be dismissed with prejudice.
I understand that this ha been frustrating but you are not done here yet.You may yet prevail on your pleadings and your suit.You have to remember that a lawyer here is going to paper you to death but at some point if you have merit you may prevail on the merits.
Sample response, you will have to modify it but it gives you form.
I appreciate the chance to help you today.Please let me know if you have more follow up.Thanks again.
Expert:  Ray replied 2 years ago.
Here are the rules for amending your petition pleading it may be possible to amend it and avoid dismissal.
(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.
(b) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.
(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
(d) Supplemental Pleadings. Upon motion of a party the court may permit that party, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.
(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.
Expert:  Ray replied 2 years ago.
You may also want to consider a contingency fee lawyer to help you with all of this.You don't pay unless they collect..
Shop here for contingency fee lawyers in your area..
An example..
I would not give up keep shopping here for contingency fee based lawyer.
A second one..
Google your city for contingent mechanic lien lawyers.Promise them more business if you are a subcontractor this happens pretty frequently unfortunately..You want one you can keep on coming back to and will help you with demand letters and suits if necessary.They can also help you with your form contract you use for jobs to make enforcement as easy as possible.
Don't give up here you have options to turn this around.I know you are frustrated and have put hard earned time and money into all of this.
Expert:  Ray replied 2 years ago.
One more last ditch option here is to sue in small claims for breach of contract.You can sue up to limits ($5k).You can do this if the other suit does not work out.
Thanks again.
Small claims--this gets you some of what you are owed..
Good luck here I gave you all the options I could find.