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  1. #21
    Quote Originally Posted by DevilAlumna View Post
    You snuck this in, but Congratulations on the impending little one.
    Thanks for catching that, DA. Congratulations to Lord Ash and Mrs. Lord Ash. Future LA is going to be one very lucky child to have such wonderful parents.

  2. #22
    Quote Originally Posted by Brian913 View Post
    !. The Defendant will pay the costs. Make sure you get a receipt from your witness.
    2. The court will automatically assign a new date (about 3 weeks) on the regular cycle. Likely it will be when the Plaintiffs are on vacation and the refusal to consent to an adjournment will come back to haunt.
    3. If you're claiming defective work, you better have an expert. The defense will have an expert (the defendant) to claim everything was right.
    4. On the court date, prior to the trial there will be a mandatory mediation.

    I hope you filed a consumer fraud count in your complaint.

    BTW, in NJ the proper term is adjournment, not continuance.
    Yep, we have the receipt (the witness is a really nice and easy to work with guy). The new date was established in court, and is good for us; the judge actually let us pick the date. Let's hope he doesn't show up! Our witness will be there for sure. We actually mailed all the bills to the defense attorney yesterday, so maybe he'll cut us a check before we get to it?

    And thanks for the well wishes guys I MAY have to post photos of the nursery... been working on it for a little while

  3. #23
    Quote Originally Posted by Lord Ash View Post
    Yep, we have the receipt (the witness is a really nice and easy to work with guy). The new date was established in court, and is good for us; the judge actually let us pick the date. Let's hope he doesn't show up! Our witness will be there for sure. We actually mailed all the bills to the defense attorney yesterday, so maybe he'll cut us a check before we get to it?

    And thanks for the well wishes guys I MAY have to post photos of the nursery... been working on it for a little while
    If you reach a settlement, one thing to remember that many pro se parties misunderstand: you will have to sign a release of claims and stipulation of dismissal w/ prejudice BEFORE you receive a settlement check. The attorney will not give you a check until he has the signed docs in his file.

    And great news on the baby.

  4. #24
    Quote Originally Posted by Lord Ash View Post
    Yep, we have the receipt (the witness is a really nice and easy to work with guy). The new date was established in court, and is good for us; the judge actually let us pick the date. Let's hope he doesn't show up! Our witness will be there for sure. We actually mailed all the bills to the defense attorney yesterday, so maybe he'll cut us a check before we get to it?

    And thanks for the well wishes guys I MAY have to post photos of the nursery... been working on it for a little while
    If you receive a check from opposing counsel, be careful to confirm, before you endorse it for deposit or cash, and before you sign any acknowledgement or release, that it is made out for the full amount of the witness fee, but no more. Unfortunately, some unscrupulous lawyers might try to take advantage of you as a lay person by either (a) tendering an amount less than the total witness fee and then claim that your negotiation of the check constitutes an agreement to accept less than the full payment; or even worse, (b) tendering some amount in addition to the total witness fee and then claim that your negotiation of the check constitutes an agreement to accept that additional amount in settlement of the entire claim. You might contest those claims and prevail, but you're better off to avoid any such controversy altogether by exercising caution.

  5. #25
    Quote Originally Posted by Stray Gator View Post
    If you receive a check from opposing counsel, be careful to confirm, before you endorse it for deposit or cash, and before you sign any acknowledgement or release, that it is made out for the full amount of the witness fee, but no more. Unfortunately, some unscrupulous lawyers might try to take advantage of you as a lay person by either (a) tendering an amount less than the total witness fee and then claim that your negotiation of the check constitutes an agreement to accept less than the full payment; or even worse, (b) tendering some amount in addition to the total witness fee and then claim that your negotiation of the check constitutes an agreement to accept that additional amount in settlement of the entire claim. You might contest those claims and prevail, but you're better off to avoid any such controversy altogether by exercising caution.
    You are kidding aren't you? Any lawyer who tried that would be in front of the ethics committee before he could turn around. In any case, the case isn't settled until: 1. a release and stip of dismissal is signed; 2. the payment of the settlement is made; 3. the stipulation is filed with the court.

  6. #26
    Join Date
    Feb 2007
    Location
    North of Chicago

    Stray's not kidding at all

    Quote Originally Posted by Brian913 View Post
    You are kidding aren't you? Any lawyer who tried that would be in front of the ethics committee before he could turn around. In any case, the case isn't settled until: 1. a release and stip of dismissal is signed; 2. the payment of the settlement is made; 3. the stipulation is filed with the court.
    I thought the same thing. It's something you see in other contexts quite frequently.

  7. #27
    Quote Originally Posted by Chicago 1995 View Post
    I thought the same thing. It's something you see in other contexts quite frequently.
    It is that type of behavior by lawyers (seemingly more prevalent in the past 20 years or so that caused me to quit the public practice. It became harder to deal with other lawyers that with clients. Not a fun practice.

  8. #28
    Quote Originally Posted by Indoor66 View Post
    It is that type of behavior by lawyers (seemingly more prevalent in the past 20 years or so that caused me to quit the public practice. It became harder to deal with other lawyers that with clients. Not a fun practice.
    I have been in practice for 35 years and have never seen, or heard of anything like that. No lawyer who tried that would survive in the business.

  9. #29
    Quote Originally Posted by Brian913 View Post
    I have been in practice for 35 years and have never seen, or heard of anything like that. No lawyer who tried that would survive in the business.
    I wasn't referring to the specific allegations discussed. I was alluding to the shifting positions and intransigence in many negotiations/settlements. It was a more honorable profession fifty years ago.

  10. #30
    Quote Originally Posted by Indoor66 View Post
    I wasn't referring to the specific allegations discussed. I was alluding to the shifting positions and intransigence in many negotiations/settlements. It was a more honorable profession fifty years ago.
    UMM, No.

  11. #31
    Hey all!

    Thought I'd post... we are done!

    Okay... so we never heard from the contractors lawyer about a settlement, so we went in again today!

    We got there, and this time the contractor showed up, although his lawyer didn't. After the role call, we went to mediation.

    We sat with the clerk who was working the mediations. We presented our case, with two detailed timelines with supporting emails, a general outline, and labeled photos.

    After our four minute of talk, the mediator let the contractor talk... and talk he did. First he raved about our plumber not really being a plumber, then about a whole different issue that we weren't pursuing, and then somehow tried to say that our paying his bills within two days every time was somehow a sign of good work. To be frank, he really talked himself into a hole, and the mediator seemed unimpressed.

    So then the mediator separated us, and after shaking his head in a sympathetic manner the mediator asked us what we would settle for. We spent about $1500 or so, so we said we'd accept 1300. The contractor said he would settle for 800. We sort of laughed at this (just with the mediator) and pointed out we'd be spending 600 just today on our own witness contractor for his two appearances! He asked if we would do 1200, which we agreed to, and the contractor came back with 1125, which we settled on.

    After the contractor left the mediator shook his head and said that we made a good decision. He thinks we probably would have won, even if he is not a judge, but he felt this was the easiest way to make sure we get our money. Then, to top if off, when we went to go pay our contractor, he said listen, we've only been here an hour, he would reduce our overall price by 200 bucks! So, at the end of the day, we paid about $1300, but got back $1125... now it is still frustrating to have lost some money overall because of this guys work, but still, at least we got most of it back.

    Also, thanks so much DB, Jim, Brian, Stray, Chicago... everyone... for the advice and well wishes. It is really scary to go to court when you just don't know one single thing about it, and as always the DBR lawyer bar was a good place to stop for advice

  12. #32
    Join Date
    Feb 2007
    Location
    Watching carolina Go To HELL!
    Quote Originally Posted by Lord Ash View Post
    Hey all!

    Thought I'd post... we are done!


    Also, thanks so much DB, Jim, Brian, Stray, Chicago... everyone... for the advice and well wishes. It is really scary to go to court when you just don't know one single thing about it, and as always the DBR lawyer bar was a good place to stop for advice
    Congratulations on a successful outcome!

    Once again, it just goes to prove there is more off-topic expertise on a broad range of topics at the DBR, than just about anywhere else you can go. It speaks volumes about the posters! (OUCH! That smilie hurt my eyes! )
    Ozzie, your paradigm of optimism!

    Go To Hell carolina, Go To Hell!
    9F 9F 9F
    https://ecogreen.greentechaffiliate.com

  13. #33
    Seriously?



    SERIOUSLY?!




    So... we finally got two checks from the contractor, one of which is dated September, which is CLEARLY longer than the "within seven days" which is written in the Stipulation of Settlement. Then, on top of that, it was for the wrong amount (more than it should have been) and he subsequently sent my wife a very nasty email saying that he put a stop payment on the September check and that we had to send the check back to him before he would send us one for the correct amount. My wife asked him to send the correct check and she would then return the incorrect one. He responded with another nasty email about us being lucky he isn't paying us in 100 different installments, and that we won't get anything from him until we return the incorrect, September-dated check...

    So. We went back to look at the Stipulation of Settlement, because at this point he clearly hasn't paid in the seven days that was agreed upon... but much to our chagrin we noticed that it says "The Court will thereafter enter judgement against the party in default in either THE AMOUNT NOT PAID PLUS COURT COSTS or THE AMOUNT OF $_______ MINUS ANY PAYMENTS MADE IN ACCORDANCE WITH THIS STIPULATION OF SETTLEMENT, PLUS COURT COSTS. The second option is checked, but the amount is not filled in! The law clerk who mediated said it was for the entire amount, but it isn't written in. I assume that the amount would be the original, but...?

    So now what? I think I am going down to the courthouse to ask them... I am very, very irritated at this, both because he is dragging it out AGAIN and, to be honest, his rude tone in his emails and his assumption that he can post-date checks regardless of what the court agreement says.

    Can I ask (again) the DBR Lawyers... is he as clearly in breach of the agreement as it seems?

    Thanks... again

  14. #34
    Join Date
    Feb 2007
    Location
    Walnut Creek, California
    First, check the court's copy of the settlement stipulation to determine if the correct amount has been entered there. It may simply be that the parties' copies were not conformed to the original.

    If so, nonpayment (and untimely payment, as well as stopping the check) all amount to non compliance. Not certain if the court approved the settlement, adopting it as court judgment. If the court did adopt it, it may well be a court judgment which can be enforced in a variety of ways, including a sheriff's levy. At this point, since he's a NJ lawyer, I'd defer to whatever Brian913 might have to say about it.

    The stipulation may contain helpful enforcement language as well. Anyway, the court clerk should be able to assist you with local procedures. You may even be entitled to additional money based on your efforts to obtain compliance.

    If the correct number is missing from the court-filed stipulation, you may have to start all over again. Let's hope it doesn't come to that.
    Last edited by Jim3k; 09-01-2011 at 01:58 AM. Reason: sloppy original

  15. #35
    Join Date
    Feb 2007
    Location
    Walnut Creek, California
    Edit to previous post: You may find this link to the NJ court system's resource center helpful.

    http://www.judiciary.state.nj.us/prose/#smallclaims

    There is some general information about collections as well as some forms--all in pdf files.

    It's probably not specific enough, but may serve as a (second) starting point. See the section on Collecting After You Win for the appropriate material. At least you know where he banks. That will be very helpful if you have to reach the levy stage. Note the 10% commission for the court officer, the mileage fees and how they may be accounted for in advance.

  16. #36
    Hey all,

    First off, thanks for the advice Jim... I do appreciate it.

    However, there is more now! (ugh)

    So. We were left to either turn him in for not fulfilling his end of the mediated agreement (he had claimed to put a stop payment on the second check, which was for too much money anyway.) We ended up calling the bank, which said there was no stop payment on the check, and so cashed the second check (a month late according to the agreement) which brought him up to "paid" and then mailing him a check for what he overpaid from the agreement, which was $50. We figured that would be the end of it.

    Oh no! He GETS the $50 check we send him (via registered mail) and then mails it BACK to us, asking for the original check back, which we already cashed! Uhhhh... what?!

    So I sent them an email explaining we already cashed the check to avoid having to turn him in for violating the original agreement, and so could not return it. That was what the $50 check was for; to make up the balance. We wanted to get him the amount he overpaid by, and needed to know how to get it to him, and to please get back to us so we could get him the money.

    And what did he do? No response to the email, but the next day he mailed us ANOTHER check, this time for the proper amount! No note, no response, no nothing. What in the HELL? I am completely baffled. Is he trying to get us to cash it so he can then turn around and try to sue us for... I don't know, taking too much money?

    This is so, so completely bizarre. I wish I had just turned him in for non-payment, but my wife had wanted to just get it done with, especially as he was looking very old when we saw him and she as afraid he was maybe unwell.

    So.

    Totally, totally bizarre.
    Last edited by Lord Ash; 09-15-2011 at 04:36 PM.

  17. #37
    Join Date
    Feb 2007
    Location
    Hot'Lanta... home of the Falcons!
    You've got your money. I don't know why you would do anything. You can hold onto the new check he sent you if you want, but I think the ball is in his court. He overpaid, you sent him a check for said overpayment. End of story.

    Did you happen to make a copy of the check you sent for the overpayment? Do you have an email or anything from him showing that he got the overpayment repayment by you? I think your only minor legal worry is that he may say you still owe him money and it would be nice if you had proof you had tried to give him that money back. I guess you send the check back to him again. Other than that, I think you put this thing out of your mind. There is nothing for you to do.

    --Jason "IANAL, so take the advice with a huge pile of salt" Evans
    Why are you wasting time here when you could be wasting it by listening to the latest episode of the DBR Podcast?

  18. #38
    Join Date
    Feb 2007
    Quote Originally Posted by JasonEvans View Post
    You've got your money. I don't know why you would do anything. You can hold onto the new check he sent you if you want, but I think the ball is in his court. He overpaid, you sent him a check for said overpayment. End of story.

    Did you happen to make a copy of the check you sent for the overpayment? Do you have an email or anything from him showing that he got the overpayment repayment by you? I think your only minor legal worry is that he may say you still owe him money and it would be nice if you had proof you had tried to give him that money back. I guess you send the check back to him again. Other than that, I think you put this thing out of your mind. There is nothing for you to do.

    --Jason "IANAL, so take the advice with a huge pile of salt" Evans
    Or, your bank may have cashed the check improperly (stop payment orders are not always instantaneous) and may be able to recover the funds from you again. I'd hold onto his replacement check for a few weeks.

  19. #39
    Quote Originally Posted by Lord Ash View Post
    Hey all,

    First off, thanks for the advice Jim... I do appreciate it.

    However, there is more now! (ugh)

    So. We were left to either turn him in for not fulfilling his end of the mediated agreement (he had claimed to put a stop payment on the second check, which was for too much money anyway.) We ended up calling the bank, which said there was no stop payment on the check, and so cashed the second check (a month late according to the agreement) which brought him up to "paid" and then mailing him a check for what he overpaid from the agreement, which was $50. We figured that would be the end of it.

    Oh no! He GETS the $50 check we send him (via registered mail) and then mails it BACK to us, asking for the original check back, which we already cashed! Uhhhh... what?!

    So I sent them an email explaining we already cashed the check to avoid having to turn him in for violating the original agreement, and so could not return it. That was what the $50 check was for; to make up the balance. We wanted to get him the amount he overpaid by, and needed to know how to get it to him, and to please get back to us so we could get him the money.

    And what did he do? No response to the email, but the next day he mailed us ANOTHER check, this time for the proper amount! No note, no response, no nothing. What in the HELL? I am completely baffled. Is he trying to get us to cash it so he can then turn around and try to sue us for... I don't know, taking too much money?

    This is so, so completely bizarre. I wish I had just turned him in for non-payment, but my wife had wanted to just get it done with, especially as he was looking very old when we saw him and she as afraid he was maybe unwell.

    So.

    Totally, totally bizarre.

    When the first problem happened you probably should have filed a motion to enforce the settlement.

    At this time:

    1. Check with your bank and make sure the check you cashed has not been returned.
    2. Write void in big letters across his check. Mail that check (and your $50 check) back to him by certified RRR. Make photos of both checks and your letter and mail them to him by regular mail at the same time.
    3. Keep the certifed envelope if and when it is returned to you.
    4. Forget the whole thing.
    5. Save time and money the next time and hire a lawyer.
    6. Then again, I guess I am a dumb racist, so this advice is probably worthless.

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