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Hello,
Sorry to bother you, but my ISP has no NNTP by which I can post to
newsgroups. I've sent this to you after reading the
Misc.Legal.Moderated Posting Instructions and Charter which say, in
part, "If you can't post using news software, mail your message to
<mailto:misc-legal-modera...@moderators.isc.org>. If my understanding
of this information is faulty, I apologize and hope that I could be
directed to a better understanding. Thank you!
=====start post=====
Hi, we live Oregon and sold our house in California after we moved here.
The buyer claims we are guilty of a Material Defect and has told us he
has filed suit in California Small Claims Court for $1600 and that we
are physically required to attend the hearing (a 2100 mile round trip).
Can we be sued in California Small Claims Court for a Real Estate
Material Defect?
We have yet to be served, but the deadline for doing so is still a
couple of weeks away.
Thank you for any insight!
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Dave Rawson <TheGuy@DRawson.Com> wrote:
Sorry to bother you, but my ISP has no NNTP by which I can post to
newsgroups.
If you are not aware, there are several subscription news-only services
that are not expensive, such as individual.net. You might try one of
them.
=====start post=====
Hi, we live Oregon and sold our house in California after we moved
here.
The buyer claims we are guilty of a Material Defect and has told
us he has filed suit in California Small Claims Court for $1600
and that we are physically required to attend the hearing (a 2100
mile round trip).
Can we be sued in California Small Claims Court for a Real Estate
Material Defect?
Maybe. California only allows cases to be litigated in small claims if
the defendant is served within California. If you are no longer in
California and were not served in the state, the case should not go on.
Stu
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On Apr 10, 8:09 am, Dave Rawson <The...@DRawson.Com> wrote:
Hi, we live Oregon and sold our house in California after we moved here.
The buyer claims we are guilty of a Material Defect and has told us he
has filed suit in California Small Claims Court for $1600 and that we
are physically required to attend the hearing (a 2100 mile round trip).
Can we be sued in California Small Claims Court for a Real Estate
Material Defect?
The short answer is "probably yes".
The court almost certainly has jurisdiction over you because, in a
nutshell, you are not strangers to California with respect to this
transaction.
However, the suit may be meritless because contracts to sell real
estate are generally considered to merge with the deed -- which means
that after closing, the buyer cannot sue the seller on the contract,
but only on the deed (which probably does not contain any warranties
or representations regarding the condition of the property). Some
states have enacted statutory exceptions to this common-law rule,
e.g., in "seller's disclosure" statutes, which might provide an
independent basis for a suit. I recommend that you contact your
realtor or lawyer immediately (hopefully you used one or the other for
the deal).
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Thu, 10 Apr 2008 08:09:24 -0400 from Dave Rawson
<TheGuy@DRawson.Com>:
Dave,
You sold a California house and moved to Oregon. The buyer is suing
you in California small claims court.
Can we be sued in California Small Claims Court for a Real Estate
Material Defect?
Certainly. The transaction took place in California and one of the
parties lives there. California is the logical venue.
Can you be compelled to attend? Most likely not. It's highly unlikely
the judge would issue a warrant for your arrest in a minor civil
trial. And if you don't set foot in California, such a warrant (even
if issued) would probably not be enforceable in Oregon.
But what most likely *will* happen if you don't show, and don't
present a good reason in advance, is that the judge will enter a
default judgment against you for the amount the plaintiff is asking.
If you have any assets in California, they can be seized to pay the
judgment. Whether your assets outside California can be seized
depends on a lot of issues.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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On Apr 10, 8:09 am, Dave Rawson <The...@DRawson.Com> wrote:
Hello,
Sorry to bother you, but my ISP has no NNTP by which I can post to
newsgroups. I've sent this to you after reading the
Misc.Legal.Moderated Posting Instructions and Charter which say, in
part, "If you can't post using news software, mail your message to
<mailto:misc-legal-modera...@moderators.isc.org>. If my understanding
of this information is faulty, I apologize and hope that I could be
directed to a better understanding. Thank you!
Um, I'm wondering how OPs are ever going to be able to read these
replies if they can't access newsgroups.
Waitaminit, OPs didn't say they couldn't _read_ newsgroups, just that
they couldn't _post_. Somehow, they got ahold of a copy of the FAQ;
they must have read it here. So, our words won't be in vain.
BTW, you don't need NNTP to post directly to the group. There are
several web-based newsgroup archives you can read and post to; all you
have to do is sign up for free. That's how I post here, through
Google Groups. Another advantage of web-based posting is you can do
it from anywhere, e.g. a public-access computer at a library or a
friend's computer, or your laptop when you're traveling and using
someone else's network or ISP, not just from your home computer where
you would have your NNTP server set up (if you didn't have such a
dorky ISP). This works just fine for text-based NGs -- you didn't
want to spend all your free time downloading binaries anyway, did you?
Hi, we live Oregon and sold our house in California after we moved here.
The buyer claims we are guilty of a Material Defect and has told us he
has filed suit in California Small Claims Court for $1600 and that we
are physically required to attend the hearing (a 2100 mile round trip).
How did he tell you - did he call you directly? Is he doing this on
his own, without an attorney?
What exactly is the nature of the "material defect" he is alleging?
Is there anything to it, or totally made up?
My first gut reaction is, if it's some off-the-wall thing you had no
inkling about before, this guy may just be trying to extort some money
from you to avoid the hassle of defending this -- assuming you did in
fact reveal everything you were legally required to reveal during the
sale.
Can we be sued in California Small Claims Court for a Real Estate
Material Defect?
Sure. Anybody can sue you anywhere for anything. (Apparently they
already _have_ sued you in CA; so there's not much doubt they "can"
when in fact they already "did.") There is no threshold requirement
in the USA civil court system for a plaintiff to walk in the
courthouse door, pay the filing fee to the clerk, and file a new
claim, even if it is completely frivolous. But that doesn't mean they
will necessarily get away with it; the system puts the burden on the
person who got sued to come in and show the judge just why they don't
belong in his court and/or why the claim is groundless and, if the
claim is sufficiently egregious or was filed in bad faith, most USA
courts will award sanctions against the plaintiff for wasting the
defendant's time, usually by means of an award of attorney fees. More
on that later.
A more useful question would be, "are we likely to win or lose such a
suit?" That one I can't answer, since it depends on all the actual
facts of the transaction and the actual condition of your CA house
when you sold it, none of which you included in your post.
Another useful question would be "what can I do now, to get out of
this mess with the least fuss possible?" I also don't know the
answer to that one, since once again, "it depends." But a couple of
things you might try first would be to contact (1) the real estate
broker whom you hired to sell your CA house, (2) the lawyer you hired
to complete the settlement-of-escrow transaction on your sale of that
house, (3) your title insurance company, whom you paid to insure
against defects in the title on your CA house, (4) the home owner's
warranty insurer you hired to provide coverage to you (and the new
owner) against physical defects in the CA property existing at the
time of sale and for a brief period thereafter; (5) the property/
casualty insurer of the CA house during your period of ownership, if
the defect in question was one that might be covered as a casualty
claim (e.g. roof torn off in a storm, windows broken by hail, etc.);
(6) the home inspection company that you and/or the buyer hired to
check out the CA property while it was in escrow; (7) a local OR
lawyer to see whether they could think of anybody else you might be
able to call to cover this claim for you, and/or whether you can
either get the claim dismissed for lack of jurisdiction over your
person (doubtful, since you sold the house in CA and the alleged
wrongs occurred in CA) or whether there is some fee-shifting statute
or rule that would provide a basis for you to demand that the
plaintiff reimburse your attorney fees and costs, IF you win and
establish that the claim was a frivolous one.
You say you didn't have a broker, didn't hire a lawyer, didn't buy any
kind of insurance, didn't pay for an inspection? Oops. That's part
of what all those things are for, to provide a layer of protection to
you the seller. If you do it all yourself, then you have to defend
yourself too. At least you may be able to get some sanction awarded
to you if the claim is in fact frivolous -- but you will have to bite
the bullet and hire a lawyer (in CA) to defend you unless you really
just want to knuckle under and pay this guy something to go away and
leave you alone.
Yes, fellow netizens, I know you're probably going to post replies to
tell me lawyers aren't allowed in small claims in CA. But cases like
this don't belong in small claims - to try them right, they are too
complicated and will take too long, and to try them wrong, you're just
going to LOSE. So (if you can't get one of the companies you paid
good money to to hire you a lawyer) hire yourself a lawyer, have him/
her remove the case to a higher court, work up all the evidence you
will need to prepare the case right, and sock it to this fool.
Otherwise, you're being the foolish one.
We have yet to be served, but the deadline for doing so is still a
couple of weeks away.
Might as well start asking around now. That will give you a leg up
and a bit more time for your lawyer to prepare your initial pleadings
when the time to file some kind of response in the CA court eventually
comes. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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A Michigan Attorney <miattorney@gmail.com> wrote:
Dave Rawson <The...@DRawson.Com> wrote:
However, the suit may be meritless because contracts to sell real
estate are generally considered to merge with the deed -- which
means that after closing, the buyer cannot sue the seller on the
contract, but only on the deed (which probably does not contain
any warranties or representations regarding the condition of the
property). Some states have enacted statutory exceptions to this
common-law rule, e.g., in "seller's disclosure" statutes, which
might provide an independent basis for a suit. I recommend that
you contact your realtor or lawyer immediately (hopefully you used
one or the other for the deal).
In California the courts would generally allow suit for breach of
contract in a case like this. However CA law requires sellers in most
cases to make disclosures of all known things that could have a
material effect on the price of the property. If the seller truthfully
makes those disclosures, he's basically off the hook.
Stu
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Stan Brown <the_stan_brown@fastmail.fm> wrote:
But what most likely *will* happen if you don't show, and don't
present a good reason in advance, is that the judge will enter a
default judgment against you for the amount the plaintiff is
asking. If you have any assets in California, they can be seized
to pay the judgment. Whether your assets outside California can be
seized depends on a lot of issues.
Small claims courts in California are not supposed to enter default
judgments. On the other hand if the plaintiff presents his case and
there is no opposition, the plaintiff will generally win.
Stu
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Mike Jacobs <mjacobslaw@gmail.com> wrote:
You say you didn't have a broker, didn't hire a lawyer, didn't buy
any kind of insurance, didn't pay for an inspection? Oops.
That's part of what all those things are for, to provide a layer
of protection to you the seller. If you do it all yourself, then
you have to defend yourself too.
I missed that part of his post. If that's the case, he may well have
neglected to make the disclosures required by statute, and could be
liable to the buyer as a result of a failure to disclose.
Stu
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On Apr 11, 4:18 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
Sure. Anybody can sue you anywhere for anything.
I realize this is a generalization, but someone might take it
literally and as with most generalizations, it is not true.
To sue someone in California Small Claims Court you must serve them in
California. The two exceptions are:
1) You're suing about property located in California, and the owner
doesn't live in California, or
2) You had a car accident in California, and the owner or driver of
the other car doesn't live in California.
(source: www.courtinfo.ca.gov/selfhelp/smallclaims/serve.htm#servedefendant)
I suspect other states have similar provisions.
--Larry
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On Fri, 11 Apr 2008 07:17:55 -0400 in misc.legal.moderated, Stuart
Bronstein <spamtrap@lexregia.com> wrote,
Maybe. California only allows cases to be litigated in small claims if
the defendant is served within California. If you are no longer in
California and were not served in the state, the case should not go on.
If that's the situation, what should the out-of-state OP do to bring
that to the attention of the California court without undue expense?
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David Harmon <source@netcom.com> wrote:
Stuart Bronstein <spamtrap@lexregia.com> wrote,
Maybe. California only allows cases to be litigated in small
claims if the defendant is served within California. If you are
no longer in California and were not served in the state, the case
should not go on.
If that's the situation, what should the out-of-state OP do to
bring that to the attention of the California court without undue
expense?
Normally courts don't even bother to look at communications unrelated
to some sort of a formal motion. However in small claims court it is
possible to write a letter to the court concerning jurisdictional
issues, and it will be considered ex parte.
This is fairly common when someone is sued in a small claims court in
the wrong county, and the court has the power to deal with it without a
hearing.
Stu
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MailNotRead@gmail.com wrote:
Mike Jacobs <mjacobs...@gmail.com> wrote:
I realize this is a generalization, but someone might take it
literally and as with most generalizations, it is not true.
Actually it is literally true. What it implies is incorrect, however.
To sue someone in California Small Claims Court you must serve
them in California. The two exceptions are:
Almost. You can sue anyone. But you are talking about getting
jurisdiction over then and having the court being able to enter a valid
judgment against the. The two aren't the same thing, though they
generally overlap.
Stu
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On Sat, 12 Apr 2008 07:33:09 -0400, David Harmon <source@netcom.com>
wrote:
On Fri, 11 Apr 2008 07:17:55 -0400 in misc.legal.moderated, Stuart
Bronstein <spamtrap@lexregia.com> wrote,
If that's the situation, what should the out-of-state OP do to bring
that to the attention of the California court without undue expense?
Bring what to the attention of the court? The proof of service would
have to show that the defendant was served in California. If it
didn't, the court should dismiss the case for lack of service.
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Stuart Bronstein wrote:
In California the courts would generally allow suit for breach of
contract in a case like this. However CA law requires sellers in most
cases to make disclosures of all known things that could have a
material effect on the price of the property. If the seller truthfully
makes those disclosures, he's basically off the hook.
New Mexico has a similar statute demanding full disclosure. I had a case
where a material defect was found by the buyers right after possession.
They didn't contest that the seller disclosed all he knew. Instead they
claimed that the defect was so gross that the seller should have known
about the defect. Thus they didn't question the state of the seller's
mind but rather his diligence in his disclosures.
The buyers ended up prevailing.
-paul
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MailNotRead@gmail.com wrote:
To sue someone in California Small Claims Court you must serve them in
California. The two exceptions are:
1) You're suing about property located in California, and the owner
doesn't live in California, or
2) You had a car accident in California, and the owner or driver of
the other car doesn't live in California.
(source: www.courtinfo.ca.gov/selfhelp/smallclaims/serve.htm#servedefendant)
This as I understand it is the crux, though the court's volunteer Small
Claims adviser told me that she thought "1)" only applied to
landlord/tenant disputes and that I should write to the judge (once we
are served) to point out this was not the case.
However, I read the explanation much as you state it, so I was confused
and didn't entirely trust her understanding which she admitted was not a
legal opinion, but her best guess based on limited experience.
Thus, my extensive quest to get a definitive answer. We have initiated
a handful of "consultations" with California Real Estate Attorneys, but
have yet to receive an answer.
Reasonably, they each want to know more and once they understand that
real money might be made suing our buyer, they fix on that, brushing
aside my primary need as unimportant - the answer to our question.
You'd think they'd at least address it in passing, but universally they
paternally cajole me to "SUE THE BASTARD!" which I understand is in
their best interest, but I'm not yet convinced is in ours.
First, I just want our question answered.
If we can't be sued, then all is moot, life is short, sweet and good. I
don't care to spend my middle-of-the-night moments planning crafty
strategies for the next umpteen months.
If we can be sued, then I am concerned about the consequences of not
showing up to defend ourselves, not because of the money involved which
is insignificant compared to the Real Estate transaction, but rather
whether a default judgment would "establish" facts regarding the results
of the condition claimed to be a Material Defect.
In other words, our worry that this simply the nose of the camel into
the tent by the Buyer to undertake a protracted extortion of
inconvenience in ever-expanding demands - the python squeeze, so to speak.
Also, I believe that should it come to it, it is much better that we be
sued and defend, than the other way 'round. The facts of any contention
will favor us, but I've sat as a juror and would be terrified to rely on
them to find for us since facts, rules and obligations are so much less
important to them than what they feel is "really going on" based on
their daily intake of soap operas and over-the-fence vicarious gossip.
Finally, thanks to everyone who took the time and effort to respond. We
appreciate the kindnesses.
PS. Clearly I was able to find a free NNTP through which to post, so
many thanks to those folks as well.
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On Apr 12, 7:33 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
Mike Jacobs <mjacobs...@gmail.com> wrote:
I missed that part of his post.
Because it wasn't there. Maybe I was being too coy. OP didn't
actually "say" the "you say" part; in fact he didn't say whether he
had a broker, lawyer, etc. or not. The sentence you quote should be
read in context as a rhetorical question, following my preceding
paragraph where I assumed he _did_ have all those helper professionals
on his side and should contact them first to see what they could do to
help him in this situation, after which I used that phrase as a segue
into a discussion of what he could do if he _didn't_ have any such
help.
Haven't you heard this kind of rhetoric before? Pitchman: "Step right
up, ladies and gentlemen! The one and only snake oil miracle cure
for everything! No one can afford to be without it! Just a dollar
a sixpack! What's that? YOU SAY YOU DON'T HAVE A DOLLAR TO YOUR
NAME? No problemo! This wonderful concoction only costs one thin
quarter of a dollar -- that's right, two bits -- per bottle! Now who
will take the first one and change his life forever?"
If that's the case, he may well have
neglected to make the disclosures required by statute, and could be
liable to the buyer as a result of a failure to disclose.
I do agree with that. OP's post left us clueless about whether the
plaintiff's claim was meritorious or frivolous, but its chances of
having merit are greater if OP's sale of the property was a completely
do-it-yourself project.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On Apr 12, 7:33 am, MailNotR...@gmail.com wrote:
On Apr 11, 4:18 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
I realize this is a generalization, but someone might take it
literally and as with most generalizations, it is not true.
Maybe you misunderstood me, or else I am misunderstanding you. Both
may be the case. All I meant by that general pronouncement was, no
one is going to prevent any person in USA from walking into any court
in USA and filing a lawsuit against anyone else (in the USA, or
anywhere in the known or imagined universe for that matter) so long as
the complainant has a set of court papers to submit in proper form,
and is willing to pay the filing fee (or applies for pauper status to
waive the fee). Suits have been filed against "Almighty G-
d" (although the courts usually later dismiss such suits because they
decline to find that Heavenly service was properly effected by serving
one of G-d's agents on Earth) and a lady in NM recently sued TV
personality David Letterman for harassment, claiming he was sending
her secret coded messages through his TV program. The nutcase or
scammer or harasser can walk into court and file his papers just as
easily as can the legitimate plaintiff who either does or doesn't
happen to meet all the ultimate requirements to eventually succeed.
My point is, that chance of success is determined somewhere down the
road, by a motion to dismiss, summary judgment, or a full trial, NOT
at the time of initial filing.
So, I stand by my general statement, and am unaware of any exceptions
written into procedural law anywhere in USA imposing a general
threshold requirement to prove you have a viable claim before being
allowed to file a new suit. I am aware, but consider it a side issue,
that certain individuals may, by reason of a court order specifically
directed at them due to a history of multiple previous frivolous
filings, be required to demonstrate to a judge that their new claim is
non-frivolous before they will be allowed to file it. That is not a
generally applicable procedural requirement, but rather a specific
sanction.
To sue someone in California Small Claims Court you must serve them in
California.
I said "sue." You said "serve." Those are 2 different things.
One "sues" a defendant when one walks into the court clerk's office
and files a complaint against him and pays the filing fee and gets
assigned a docket number. Are you saying that, in CA small claims
court, one _cannot_ do that unless, as a threshold matter, one
establishes to the satisfaction of the court clerk that the defendant
is amenable to service of process in CA, or that the case fits within
one of the applicable exceptions? If so, do you have a citation to
that principle? I doubt it is true.
One "serves" a defendant when one delivers the already-filed suit
papers to him, by any method deemed suitable by the forum state's law
(and which also complies with US Constitutional due process). Thus,
service necessarily occurs _after_ suit is filed. What if your
defendant lives in e.g. OR but you know that he still has relatives in
CA and is coming to a niece's wedding a couple of weeks after your
suit was filed? And that your process server can find him at the
catering hall where the reception is being held in CA, and serve him
in hand with the suit papers there, while the summons is still
active? ISTM you have met all the requirements to hale that
defendant into small claims court in CA, even though the exact manner
in which you were able to do so may not have been apparent on the face
of your filing papers (you wouldn't want to tip off the defendant as
to when and where you were planning to serve him, right?) or to the
clerk who accepts those papers and who might wrongfully reject your
attempted filing, and may not even have been apparent to _you_ at the
time you filed your complaint. If you were subsequently unable to
find and serve the defendant within CA, all that means is your claim
would languish unserved, and would never come to trial (unless you
eventually were able to find him in CA at some later time, after
getting the summons re-issued if its effective period had already
expired), but that still doesn't mean you would be prohibited from
filing the suit a threshold matter, even though it might ultimately
result in your suit being dismissed after a statutorily prescribed
period of time because you failed to prosecute it by properly serving
the defendant.
The two exceptions are:
1) You're suing about property located in California, and the owner
doesn't live in California, or
2) You had a car accident in California, and the owner or driver of
the other car doesn't live in California.
(source:www.courtinfo.ca.gov/selfhelp/smallclaims/serve.htm#servedefendant)
That is a pretty broad set of exceptions; it would apparently cover
the most common kinds of small claims civil suits likely to involve an
out-of-state defendant, and make the serve-them-in-CA requirement in
practice a limited exception applicable only to oddball cases rather
than the usually followed rule.
I suspect other states have similar provisions.
Many might. MD doesn't (the same rules of service of process and
jurisdiction over the person apply in small claims here as in other
civil suits).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On Apr 13, 7:20 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
MailNotR...@gmail.com wrote:
Sure. Anybody can sue you anywhere for anything.
Actually it is literally true. What it implies is incorrect, however.
Stu says it much more succinctly than I did, in my own reply to the
same message from Mr./Ms. Mailnotr...
But lest anyone think I was trying to imply that anyone can
_successfully_ sue anyone anywhere, I did not mean that at all. I
simply wanted OP of this thread to think about the separate procedural
steps necessary to take a case all the way to a successful result, and
to remove any fantasies he might have had of the "Can they do this to
me?" variety, to the effect that anyone else -- a judge, perhaps, or
the court clerk -- was likely to step in and take care of this pesky
suit by dismissing it as groundless before OP had to do anything at
all to get to that result.
Theoretically, a judge _could_ dismiss a patently frivolous or
jurisdictionally insufficient suit _sua_sponte_ (on his own motion),
but real-world chances are, he won't, and chances are no one will even
_look_ at the suit papers the plaintiff filed in CA until the OR
defendant gets someone to do so, by filing a motion to dismiss, by
writing a letter to the clerk, or whatever other step OP decides to
take (hopefully, with advice of counsel) to bring the matter to the
court's attention.
If OP sits back and does nothing, the CA plaintiff may well be able to
get a default judgment against OP even though by all rights, the claim
was frivolous or meritless. OP may be able to attack such a default
judgment collaterally, later on, if he claims the court lacked
jurisdiction over his person to enter a judgment against him, but
that's a separate issue, and ALSO comes later on in the game. I'm
sure OP would much rather not have to sweat out whether his motion to
vacate an improvidently entered judgment against him would succeed,
even if such motion would normally be a slam dunk winner, and would
rather not have any judgment entered against him in the first place.
To get to that happy place, OP has to do SOMETHING, and can't simply
stick his head in the sand and say, "They can't do that to me, can
they?". That's all I'm saying.
To sue someone in California Small Claims Court you must serve
them in California. The two exceptions are:
Almost. You can sue anyone. But you are talking about getting
jurisdiction over then and having the court being able to enter a valid
judgment against the. The two aren't the same thing, though they
generally overlap.
Agreed. Again, all I'm trying to do is to get OP (and others) to
realize that, if they get sued by someone, anywhere, for anything,
they can't just sit back and say "You can't do that!" instead of
_doing_ something to avoid getting a default judgment entered against
them.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On Apr 13, 7:20 am, Bob Stock <x...@xxx.com> wrote:
On Sat, 12 Apr 2008 07:33:09 -0400, David Harmon <sou...@netcom.com>
wrote:
Bring what to the attention of the court? The proof of service would
have to show that the defendant was served in California. If it
didn't, the court should dismiss the case for lack of service.
Would the court _always_ do that sua sponte? Normally, wouldn't
defendant have to file a motion to dismiss, at least in the form of an
informal letter to the clerk? Isn't there the risk that the location
of service would be (negligently or fraudulently) mis-stated by the
plaintiff's process server, allowing a default judgment to be entered
against OP, if OP does nothing? Or that the court may simply
overlook that issue, if no one brings it to the judge's attention, and
enter a judgment anyway even though service was effected out-of-state?
IANA Calif L, but wouldn't OP's opponent's claim (for allegedly
undisclosed material defects in the sale of real estate) fall within
one of the specific exceptions of CA small claims procedure, allowing
a small claims suit to proceed against an out-of-state defendant?
I wouldn't want OP to think that, based on Bob's post, he was already
safe and needed to do nothing further. That could IMO lead OP down
the wrong path.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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n Apr 13, 7:20 am, Dave Rawson <The...@DRawson.Com> wrote:
However, I read the explanation much as you state it, so I was confused
and didn't entirely trust her understanding which she admitted was not a
legal opinion, but her best guess based on limited experience.
One should never rely on the court clerk to give you legal advice.
It's entirely likely, in your case, that the only "property" cases she
has seen filed in her Small Claims court were landlord/tenant matters
even if there is no such restriction written into the law, simply
because cases involving real estate _sales_ are likely to involve far
too much money to wind up in small claims, whereas a dispute over a
month or two rent or a security deposit one way or the other _does_
fit within the dollar limits of that venue.
Thus, my extensive quest to get a definitive answer. We have initiated
a handful of "consultations" with California Real Estate Attorneys, but
have yet to receive an answer.
And you probably won't, until you actually HIRE one of those lawyer to
represent you. Why should they give you the cow for free if you're
willing to come to them to buy the milk? (I think that's how it
goes) And I'm not just being flip. They would probably have to do
an extensive amount of work to uncover all of your relevant facts and
applicable law before they can even get to the point where they could
confidently give you a definitive answer in your particular case --
that's almost always true. All they can tell from an initial
interview -- especially one conducted over the phone -- is whether
there MAY be something to what you are telling them that they would be
willing to pursue further for you. Even then, most attorneys will
make clear to you, the prospective client, that if you sign their
retainer agreement, they are at this stage only agreeing to
INVESTIGATE your matter further based on your promise to pay them
something out of whatever they are able to recover for you, and that
they reserve the right to fire YOU later, if it turns out there isn't
really sufficient evidence there for you to prevail.
Reasonably, they each want to know more and once they understand that
real money might be made suing our buyer, they fix on that, brushing
aside my primary need as unimportant - the answer to our question.
But you DON'T just need an answer to your question -- what if you
asked the wrong question, or if there ISN'T a definitive answer yet,
as I suspect there isn't (see all the other posts on this thread).
What you need is someone who can advocate for you and navigate all the
procedural shoals to GET you to where you ultimately want to be, i.e.
get rid of this pesky lawsuit, even though they may not be able to
tell you right here and now exactly what steps they will have to take
to get you there. If they could do that, in 25 words or less, you
wouldn't be in need of professional help -- and, apart from the
lawyers' pecuniary interest in signing up a paying customer, I believe
you _do_ need such help in this kind of situation. My original
thought was to go back to the lawyer who handled escrow closing for
you, or your broker, or to find out if you have some kind of insurance
coverage for this kind of claim. Doing those things wouldn't cost you
a penny, so the reason I suggested them was NOT to have you help line
more lawyers' pockets with cash and pay for their next vacation trip
or their kids' orthodontia. It was because this is NOT a do-it-
yourself project unless you get very, very lucky.
You'd think they'd at least address it in passing, but universally they
paternally cajole me to "SUE THE BASTARD!" which I understand is in
their best interest, but I'm not yet convinced is in ours.
Why not? I'm assuming what they are asking you to do is, to sign a
contingent fee retainer agreement allowing them to take whatever
actions they feel may be advisable AGAINST the party who sued you,
suing him for (I guess) harassment or extortion or malicious
prosecution or abuse of process or whatever, IN THE COURSE OF WHICH
they will take the ball and run with it so far as DEFENDING you
against your opponent's claims against YOU, at no additional cost.
Did I get that right? If so, what skin is it off your back if the
lawyer you hire does, or doesn't, figure out a way to sue the other
guy and get some money from him, as long as your lawyer gets rid of
the claim hanging over your head by one means or another? And,
perhaps, one means of doing that is to threaten, or to actually file,
a countersuit against the other guy, after which the opponent will see
that you mean business and may just decide that a mutual dismissal and
walk-away is HIS best option too? Did you think of that?
Why are you so suspicious of the motivations of the lawyers who are
trying to HELP you? Especially when it seems you have consulted
several of them, they all feel you have a potentially meritorious
claim and are eager to go to work for you, and would do so at no
initial cost to you? What am I missing here unless it is simply
irrational prejudice? For heaven's sake, if you hire one of these
lawyers and let him just take the ball and run with it, you will NOT
have to stay awake at nights worrying about the outcome. Your lawyer
will be doing that for you instead.
First, I just want our question answered.
Maybe no one can do that.
If we can't be sued, then all is moot, life is short, sweet and good.
Of course. But, if _that's_ your question, I thought I already
answered it for you a couple of days ago. YES, you CAN be sued. In
fact, you ALREADY HAVE BEEN sued. Your question has a 100%
probability of a YES answer. But the real question you need to ask
yourself now is, WHAT am I going to DO about it, or am I going to
simply do nothing?
I don't care to spend my middle-of-the-night moments planning crafty
strategies for the next umpteen months.
Like I said, that's your lawyer's job, not yours. You should sleep
the sleep of the innocent, and let HIM worry about it for you.
I understand you would like to avoid suit altogether. We all
would. But I don't think anyone can give you a definitive answer
that you are 100% safe right now if you decide to just sit back and do
nothing else. IMO it would be a big mistake for you to believe
anyone even if they DID tell you that, because I think they are
wrong. There's plenty of slip twixt cup and lip, if you get my
drift, and how would you feel if you wind up with a default judgment
against you and then have to go pay cash money to settle it and/or to
hire a lawyer to file motions to get it vacated for you, after which
you are STILL just back at square one, where you are now, with a once-
again-active lawsuit still pending against you?
If we can be sued, then I am concerned about the consequences of not
showing up to defend ourselves, not because of the money involved which
is insignificant compared to the Real Estate transaction, but rather
whether a default judgment would "establish" facts regarding the results
of the condition claimed to be a Material Defect.
As rightly you should be concerned. The default could have potential
consequences bigger than the amount this guy initially claims.
In other words, our worry that this simply the nose of the camel into
the tent by the Buyer
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In article <na7104d3tv2l1pek946ann1llts57t9nrc@4ax.com>,
MailNotRead@gmail.com wrote:
On Apr 11, 4:18 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
I realize this is a generalization, but someone might take it
literally and as with most generalizations, it is not true.
To sue someone in California Small Claims Court you must serve them in
California. The two exceptions are:
1) You're suing about property located in California, and the owner
doesn't live in California, or
2) You had a car accident in California, and the owner or driver of
the other car doesn't live in California.
(source: www.courtinfo.ca.gov/selfhelp/smallclaims/serve.htm#servedefendant)
I suspect other states have similar provisions.
Actually it doesn't really say you are suing "about" property, but you
are suing "[CODE OF CIVIL PROCEDURE Section 116.340 (f)] The owner of
record of real property in California who resides in another state and
who has no lawfully designated agent in California for service of
process may be served by any of the methods described in this section if
the claim relates to that property."
The OP said he "sold" his house.
If the sale has already taken place and ownership has changed hands, as
it does upon closing, would the OP still be considered "The owner of
record" for purposes of small claims service under this section?
It would seem to me that this section of the code is to cover absentee
landlords/owners and that absent property owner still has a "presents"
in California by way of the property he owns, but once ownership has
ceased then jurisdiction of the small claims court would also cease.
--
-Ernie-
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On Sun, 13 Apr 2008 07:20:58 -0400, Dave Rawson <TheGuy@DRawson.Com>
wrote:
Thus, my extensive quest to get a definitive answer. We have initiated
a handful of "consultations" with California Real Estate Attorneys, but
have yet to receive an answer.
Reasonably, they each want to know more and once they understand that
real money might be made suing our buyer,
IANAL Money might be made?
they fix on that, brushing
aside my primary need as unimportant - the answer to our question.
You'd think they'd at least address it in passing, but universally they
paternally cajole me to "SUE THE BASTARD!" which I understand is in
their best interest, but I'm not yet convinced is in ours.
Suing the buyer might be in the attorney's interest.
At the same time that the buyer wants to sue you?
What claim do you have against the buyers?
If we can be sued, then I am concerned about the consequences of not
showing up to defend ourselves, not because of the money involved which
is insignificant compared to the Real Estate transaction, but rather
whether a default judgment would "establish" facts regarding the results
of the condition claimed to be a Material Defect.
Would someone be able to sue again on these same facts, and recover
more money? Wouldn't you have to be served again and get to present a
defense at that time? If properly served.
In other words, our worry that this simply the nose of the camel into
the tent by the Buyer to undertake a protracted extortion of
inconvenience in ever-expanding demands - the python squeeze, so to speak.
How do courts look at repeated suits for different aspects of the same
thing?
For that matter, how do small claims courts look at separate suits for
security deposit, for items damaged on the property, for slander, when
the sum of these items is greater than the small claims limit, but
each individual item isn't? How come more plaintiffs don't break
cases into parts to avoid the statutory maximum?
Also, I believe that should it come to it, it is much better that we be
sued and defend, than the other way 'round. The facts of any contention
will favor us, but I've sat as a juror and would be terrified to rely on
them to find for us since facts, rules and obligations are so much less
important to them than what they feel is "really going on" based on
their daily intake of soap operas and over-the-fence vicarious gossip.
Small claims doesn't have juries. Do you think the judge will work
the same way? Honest question.
Finally, thanks to everyone who took the time and effort to respond. We
appreciate the kindnesses.
When I sued a body shop in small claims, he didn't show up but I still
had to show receipts for the damages I wanted. And I had to outline
why it was the shop's fault. (The shop gave me a total price, then
didn't fix the windshield or powerbrake booster, both broken in the
accident. The booster had a dent, but it wasn't at all clear it didn't
work until it was tested. And it can't be tested without running the
engine and the engine coudln't be started until after the front end
was at least partially repaired. Of course they gave me back the car
without fixing it at all. They hadn't itemized what they would do,
and I was in a funk then and didn't argue.)
But only a bit of this is relevant and how it applies to you I don't
know. They may well have receipts, And almost anyone could make up a
story that makes it your fault, especially if you're not there.
The lawyers here count on the court, even the small claims court,
knowing that service wasn't made, iiuc. Someone else might worry that
the judge, especially if he is just a lawyer doing parttime small
claims work (as is possible in NYS. Does he even have to be a lawyer?)
might miss that and hear the case, and render a verdict, at the oregon
address or even at the previous California address. Is that possible??
If you are inclined to email me
for some reason, remove NOPSAM :-)
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Paul Cassel <pcasselremove2@comremovecast.net> wrote:
New Mexico has a similar statute demanding full disclosure. I had
a case where a material defect was found by the buyers right after
possession. They didn't contest that the seller disclosed all he
knew. Instead they claimed that the defect was so gross that the
seller should have known about the defect. Thus they didn't
question the state of the seller's mind but rather his diligence
in his disclosures.
The buyers ended up prevailing.
I suppose it makes sense if a jury decided that any reasonable seller
should have known and disclosed the defect. It makes more sense if
they sued the seller's broker, because it's the real estate
professional's business to know and discover these kinds of things.
Stu
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Dave Rawson <TheGuy@DRawson.Com> wrote:
MailNotRead@gmail.com wrote:
This as I understand it is the crux, though the court's volunteer
Small Claims adviser told me that she thought "1)" only applied to
landlord/tenant disputes and that I should write to the judge
(once we are served) to point out this was not the case.
Too bad that county uses a volunteer small claims adviser, because
that's wrong. Unlawful detainers can't be brought in California small
claims court these days (it has been allowed on and off over the years,
but not currently, as I recall). There can be other landlord tenant
disputes, but there aren't very many - most of them are for return of
the security deposit, I would imagine.
Thus, my extensive quest to get a definitive answer. We have
initiated a handful of "consultations" with California Real Estate
Attorneys, but have yet to receive an answer.
Take a look at the statute. CCP 116.340(f) says a small claims
plaintiff may serve outside California,
"The owner of record of real property in California who resides
in another state and who has no lawfully designated agent in
California for service of process may be served by any of the methods
described in this section if the claim relates to that property."
The statute could have said, if a claim relates to real property in
California, a person who was an owner of that property at the time the
claim arose. It doesn't say that. It says that the defendant has to
own property that is the subject of the suit, at the time suit is
filed.
Once your property was sold, you had property in California. By the
terms of the statute, you are not subject to the court's jurisdiction.
Google "rules of statutory construction."
If we can't be sued, then all is moot, life is short, sweet and
good. I don't care to spend my middle-of-the-night moments
planning crafty strategies for the next umpteen months.
You can certainly be sued. The question is whether you can be sued in
small claims. And the buyer will certianly claim you can, so you will
have to dispute it somehow. If you just fail to show up, you will
lose.
If we can be sued, then I am concerned about the consequences of
not showing up to defend ourselves, not because of the money
involved which is insignificant compared to the Real Estate
transaction, but rather whether a default judgment would
"establish" facts regarding the results of the condition claimed
to be a Material Defect.
Small claims judgments are generally don't act as collateral estoppel
to related cases, but I'd have to research it to be sure that would
apply in your specific case. But if you lose on the specific issue, it
will be binding on you.
Also, I believe that should it come to it, it is much better that
we be sued and defend, than the other way 'round.
If they sue in small claims, you can show up to make a special
appearance to contest jurisdiction. Or you could take it to superior
court instead, but then you won't have the jurisdictional argument.
In sum, you should not just ignore the case if you are sued. If they
take you to small claims, check with a local (CA) lawyer to determine
how to contest service without showing up - I think you can do that.
Then if the court rules against you, you can show up - probably at a
postponed hearing date.
Stu
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Ernie Klein <ecklein@pacbell.net> wrote:
MailNotRead@gmail.com wrote:
Actually it doesn't really say you are suing "about" property, but
you are suing "[CODE OF CIVIL PROCEDURE Section 116.340 (f)] The
owner of record of real property in California who resides in
another state and who has no lawfully designated agent in
California for service of process may be served by any of the
methods described in this section if the claim relates to that
property."
What does "the claim relates to that property" mean if not that the
case has to be "about" the property?
The OP said he "sold" his house.
If the sale has already taken place and ownership has changed
hands, as it does upon closing, would the OP still be considered
"The owner of record" for purposes of small claims service under
this section?
Yes, I agree with you that based on the wording of the statute it does
not apply to OP in this case.
Stu
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