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If your payment is based on an express or implied contract, then you can pursue an attachment remedy against the debtor’s property. In order to bring an attachment, you need to file a complaint and at the same time you file an application for attachment. If a court finds that you have shown a valid contract claim for attachment to issue then the court orders for you to attach the debtor’s property up front at the lawsuit. In this way you can secure the property for your claim and the remaining process is to proving you have a valid claim for your judgment. By securing your judgment up front, you remove your concerns over removing assets by a debtor.
There may be an alternative way. If a debtor is cooperating with you and confirming he will pay you if you provide some more time, then you may consider allowing some payment arrangement in exchange for the debtor signs written confirmation and document securing his property for his promised payments. If the debtor has a valid property to secure the debt and signs such documents, you may avoid incurring expense of filing lawsuit and attachment application. You may want to examine the property carefully to make sure it has valid and enough equity covering your debt since once you take a security, you cannot bring a lawsuit until you exhaust your security remedy under the one action rule.
If you need assistance for collection of payments, whether you lent money or sold goods, please contact Shin Law Firm at 415-788-7446, email to firstname.lastname@example.org or use Contact Page.
HOW TO RESPOND TO A COMPLAINT?
1. Time to File Written Response:
If someone handed to you in person a summons and complaint, you probably have been served with a lawsuit. In other word, you are being sued. Now what to do? The following provides brief information of how to respond to your complaint.
For most lawsuits (except for e.g., unlawful detainers action, which has 5 days to file your response) you have 30 days to file your responsive pleading to the state court (if this is for the federal court, you have 21 days to file your response pleading). If you fail to file your responsive pleading within this time period, plaintiff can take a default judgment against you.
2. Filing Your Response:
Thus, filing a responsive pleading is an important first step for any defendant in a civil lawsuit. By filing a response, you establish that you are contesting the case and requiring the plaintiff to prove their case at trial in order to win.
An answer may be most common type of your responsive pleading you file with the court. In your Answer you can admit or deny the specific allegations in the complaint. Any allegation you did not deny will be taken as true for the case.
In your Answer all defenses to the allegations in the complaint must be raised, and all essential facts supporting each defense must be included. In addition, you think about all relevant defenses applying to your case and list them separately in your Answer in addition to your denying of the allegations. They are called “Affirmative Defenses.” If you do not raise particular defenses in your Answer, you will be prohibited from raising or using it later.
If the complaint is not verified, then you can generally deny all allegations in the complaint and then add all your Affirmative Defenses. A complaint is considered verified if the plaintiff swears under penalty of perjury that everything is true and correct at the end of the complaint or in a separate verification. If the complaint is verified, as stated in the above you should admit or deny each specific allegations in your Answer.
And if you have your claim that arises out of the same transaction, occurrence, or series of events as the plaintiff’s lawsuit, you must file a Cross -Complaint before or at the time you file your Answer.
A demurrer is another type of responsive pleading you may file with the state court if the complaint is legally defective. If the allegations in the complaint do not provide legally sufficient reasons for the defendant to be sued, you may file a demurrer. A Demurrer questions only the legal sufficiency of the allegations, not their truth or the plaintiff’s ability to prove them.
General grounds for demurrer are:
The pleading does not state facts sufficient to constitute a cause of action.
The person who filed the pleading does not have the legal capacity to sue.
The pleading is uncertain, ambiguous and unintelligible.
The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
Additional grounds for filing a Demurrer can be found in CCP §430.10.
If a demurrer is sustained, a plaintiff is usually allowed to amend its defective complaint. Nonetheless if the complaint has major legal defect, you may still file a demurrer. Filing a demurrer raises issue of law. [CCP §589.] An answer to allegations in the complaint raises issues of fact. [CCP §590.]
5. Motion to Strike
With a Motion to Strike, the defendant asks the court to eliminate specific parts of a pleading, which are irrelevant, false or improper matter inserted or relief sought. In limited jurisdiction cases (under $25,000), parties may only use this motion to attack the “prayer” portion of the complaint, where the plaintiff states the amount of money or relief being requested.
Disclaimer: Any information in this pamphlet is for general information purpose only and does not constitute any legal advice. Each individual case is different and you must consult your situation with your attorney.
SHIN LAW FIRM: If you need to file a claim, or are being sued or threatened with legal matters, please contact this office at (415) 788- 7446 or email at email@example.com to make an appointment.
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Tom Shin, Esq. is a San Francisco attorney who brings good results in the litigation matters by developing and representing favorable case themes to the courts. Tom is also coaching the startups and ventures for starting, growing and selling their ventures by counseling the business, employment, IP and M&A related laws. Tom is a member of the Bar Association of San Francisco Litigation Section and Panel Attorney for the BASF Lawyer Referral Service Business and IP panels.
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