20 Nov 2018

Guide on how to file a Small Claim and win

Guide on how to file a Small Claim and win

If you are thinking of the low hassle way of taking up legal action of small sums between $5000 and $10,000 against an individual or a firm, the small claims court is the way to go. This threshold varies by state. But you have to be careful and be confident you have a case before going to the small claims court. The essence of a small claims court is to make it easy for everyone and to avoid expensive and lengthy lawsuits. On the day of the hearing, all you have to do is go to the court with your evidence. This doesn’t mean you don’t have a right to a lawyer but some states demands that you come alone. The small claims court is a cost-effective and easy process.

If you are stuck with a builder who messed up your bathroom, or you bought something, and the shop refuses to make a refund, here’s a guide to help you on how to leverage the small claims court.

File a Complaint

You will have to file a complaint with your county. Speak to the clerk of your county’s court, many courts have documents where you fill out the information regarding your specific case – most times, a summons for the other party and a complaint which is you. Usually, you will have to pay for the filing of your case. The firm or individual being sued must receive a copy of the lawsuit in other to defend themselves.

Preparing your case

It doesn’t matter whether you are the plaintiff or defendant in a small claims court, it is important that you show up in court so that your side of the case can be heard. If you are absent, it is most likely that the judge will not rule in your favor. Ensure to come with supporting documents and witnesses on the case. This can determine the success or failure of the lawsuit

How to comport yourself and dress in court

When going to a court, you must recognize that how you dress and your behavior in general can affect your lawsuit. Be respectful. If you do not agree with the judge or the other party, do not interrupt them. Be audible when answering questions – don’t shake or nod your head. If you are getting angry or irritated at the way the process is going, pause for a moment and take a deep breath. Lastly, dress correctly – no shorts, t-shirt or sneakers.

Collecting your money after winning

Losing in a small claims court is not the end of the road, you can file an appeal if you are the defendant, but if you are the plaintiff, the case is simply over. But before you do this, you must have fresh evidence or new information that backups your appeal that the judge ruled the case in error. With this, you can find yourself winning the case. When you do, you need to collect the money from the other party who will definitely not want to pay you. You can ask for a lien or garnishment against the other party’s property. This, you have to do yourself, but the court can assist by giving you an order of authorization for this collection.

Brace Yourself

When someone takes you to court or vice versa, there are expectations of how you hope the process turns out. In a court case, there’s no such thing as a good case because anything can happen. The small claims court is not designed to punish people or prove points. It is basically about who owes what and to whom? Be realistic with your expectations and brace yourself for anything. It will help you manage your emotions during the process.

Small claims court is a good and cost-effective way of resolving other suits or small collections without necessarily needing an attorney. They are a great place to seek legal solutions to problems.

07 Aug 2018

Suing in California Small Claims Court

Suing in California Small Claims Court

What is Small Claims?

Small claims court is a useful and widely used legal tool by individuals, small companies and even corporations that need to resolve their disputes quickly and inexpensively, without the need to hire an attorney.

They are not very formal informal proceedings, both parties in litigation present their evidence and arguments directly to the judge. The judge then renders a verdict after hearing both sides of the case.

What Kinds of Cases Can I Bring in Small Claims Court?

Small claims courts are courts of limited jurisdiction, you can only bring some specific types of cases like for examples:

  • Civil cases that don’t involve more than $10,000.
  • Contract disputes
  • Personal injury claims
  • Cases involving damages to your personal property

Keep in mind that small claim courts are not the right place to argue with your ex spouse regarding child support, visitation, spousal support or probate cases.

Can I Hire a Lawyer?

Many states do not allow parties to be represented by lawyers in small claims court however you are allowed and we encourage you to talk with an attorney relating the type of case you are going to be bringing to court, that way you are well prepared to handle the case. Here at The Active Legal we can help you prepare, file and prepare your small claims case.

What Happens When I File My Suit?

When you file your small claims lawsuit, the court will notify the opposing party by issuing a summons to appear in court. You will then have to attend court to prove your case. Many states, such as California, provide mediators to help the parties make one last effort at resolving their disputes before taking the case to the judge.

What Should I Bring to Court?

When your court date arrives, you should bring with you anything that will help prove your case or defend against the claims of the opposing party. This could include copies of contracts you signed with the opposing party, receipts for disputed purchases, or photos of injuries or damage caused by the opposing party. You should also bring with you any witnesses whom you wish to testify on your behalf. If a witness refuses to attend, you should speak to the court clerk about issuing a subpoena to require the witness to attend.

What if the Other Party Doesn’t Show?

If a party does not appear on the court date, the court most likely will enter a default judgment against the absent party. The party that did show can then have that judgment enforced in court. In rare cases, the court may postpone the case if the other party was absent due to an actual emergency, such as a medical emergency or a car accident, but the judge usually has total discretion over whether to do so.

Can I Appeal a Small Claims Judgment?

Most states have some way to appeal a small claims verdict, but the process and the parties’ rights to an appeal vary from state to state. Many states put strict time limits on filing appeals, and some states allow small claims cases to be appealed to different courts, such as the superior or district court for the jurisdiction. Litigants wishing to appeal a small claims case should consult their state’s laws to determine what rights they have to an appeal, if any.

Statutes of Limitation

In many states, the time limit on filing, otherwise known as the statute of limitations, will depend on the type of claim. In California, for example, you have 4 years to make a claim on a written contract, and 3 years to file for property damage. The statute of limitations on oral contracts and personal injury is a little shorter, if you don’t sue within 2 years, you can’t.

 

 

30 Mar 2018

Legal steps to file for separation or divorce by mutual agreement in California

Legal steps to file for separation or divorce by mutual agreement in California

A legal separation or divorce is without any doubts a very stressful and difficult situation for many married couples in California, yet every year thousands of sposes seek the help of a “documents preparer” for assistance with their divorce case because they don’t know the necessary steps to prepare or serve their divorce papers.

Legal steps for filing for divorce in California

Let’s remember that California law allows for a “no fault” divorce, which means that in the state of California the spouse asking for divorce doesn’t need to proof any wrongdoing by the other spouse. A typical divorce case could last 6 months from start to finish, and you can consider yourself completely divorce and legally able to enter into a new marriage only when you receive the final divorce certificate carried out by the judge who proceeded your case.

The first step to carry out when an individual decides to file for divorce is to delivered the “Summons and Complaint” to the spouse. This will inform your spouse that you are asking for divorce. It’s important to hire a legal courier service or service of process company or a trustworthy third party who dan deliver the Summons because the party requesting the divorce is not allowed to serve this papers.

There are two ways to present your divorce case: by mutual agreement or contentious, the latter will be when the spouses don’t reach an agreement regarding some of their assets, child support, custody, etc. However the divorce by mutual is very common and most people can carry out the entire divorce paper by themselves. Let’s review some of the steps for filing for a divorce by mutual agreement:

The divorce proceeding start when you file your divorce with the local family court, the law requires the following documents to accompany the petition:

  • Certificate of marriage
  • Birth certificate for children (if any)
  • The proposal for an agreement
  • The final agreement reached between the couple.

It is very important to work with your spouse to find common ground and work together or even with the assistance of an attorney to create and finalize the proposal for agreement.  The proposal will dictate a lot of the responsibilities for each spouse towards each other and their children after the divorce, it will include some of the following terms:

  • Child custody and visitation, who will be the primary guardian of the minor children, who has rights to visitation and under which terms as well as a visitation schedule.
  • Visitation and communication with their grandparents.
  • Who will be keeping the assets acquired during marriage such as home, cars, furniture, appliances, etc.
  • Who will be responsible for the debt acquired during the marriage.
  • Child support, usually through the monthly payment for the care, health, food and education of the children.
  • Spousal support, this usually occurs when the husband or wife have to make monthly payments for a certain number of years to the other spouse who has suffered an illness or in the case that this spouse has dedicated to the care of the home and children, without being able to take a paid job during their marriage.

After we have completed the agreement and present it to the court in California, a judge will have ten days to notify the parties if the agreement is missing some important information or the court may render a judgement of divorce and approve the agreement making it an official order which both parties must abide after the divorce.

 

 

19 Jan 2018

How To Serve Divorce Papers

How To Serve Divorce Papers

If you filed the divorce papers, you must serve (give) copies of your court papers to your spouse but you need to make sure you follow the legal procedure to deliver all the divorce paperwork.

There are special rules and strict deadlines regarding how to serve the divorce papers, not following them may bring as a consequence a delay on your divorce or even a fine.

What kind of documents have to be delivered to your spouse?

The first papers that are to be delivered legally to your spouse are:

  • Summons and Complaint (usually called the “Summons”)
  • Any other paper or document that you will present in court in relation with your divorce

It’s very important that the summons be delivered to your spouse within 90 days or your divorce case will be dismissed.

Can I serve the papers myself?

No. There are several ways to do the service of process legally, but you may not be the person who delivers them. You can ask a family member, a friend or pay a courier service business to act as the server. The person must meet the following requirements:

  • Be at least 18 years old
  • Not involved in your divorce case

What does the person doing the service of process do?

The person who serves the divorce papers has to:

  • Give a copy of your court papers to your spouse personally
  • Fill out and sign the Proof of Service on the back of a copy of the citation form and give it to you

Can send the divorce papers by mail?

Yes. You can send them by registered or certified mail and restrict the delivery to your spouse and delivery confirmation. Keep in mind this type of service will only work if your spouse accepts the delivery of the registered mail. We strongly advise to contact a legal courier service and ask about their service of process before you attempt to send the divorce papers via mail.

How do I make the delivery of the other papers presented in the court?

The only papers that are important to be delivered in person and that you can’t deliver yourself to your spouse are the divorce Summons and the first divorce papers. Once you have completed that part you can deliver any other Court documents in person or any other way you prefer, for example you could:

  • Send a copy of the documents to the last known address for your spouse
  • Hand deliver the documents to your spouse in person
  • Deliver a copy of the documents to any adult who lives at your spouse’s place of residence
  • Hire a legal courier delivery service to deliver the documents for you

The person who delivers the papers has to fill our and sign a copy of the Proof of Delivery and indicate which documents were delivered.