Is it legal to teabag the defendant?

Dr. Frenchenstein

http://forums.penny-arcade.com/showthread.php?t=87488

this is a bit of a follow up to the above thread. I've finally got my day in court on monday, and at this point i'm bringing the invoices of the repairs i've had to do, and pictures of the damages. Anyone have any other ideas on good things to bring? I don't want the judge to ask me for something and the "you lose" music from price is right play. I've got a lawyer and he hasn't mentioned anything else, but i thought i'd throw it out there.

If you don't want to read the previous thread, the gist is this. I bought a newly rehabbed house. The builder didn't do the flashing on the roof correctly. We told him to fix it, he half assed it and told me it was good to go. Fast forward 6 months, i've got a major leak. We pull the drywall back and notice i've got termites. BAD. They basically ate the support beams to the extension of my house (my room). I'm betting either a)they were there and dormant as the inspection didn't catch them, and/or b) the massive leak attracted them to the house. Either way, he should be liable.

Actually he didn't use insulated A/C Ductwork either, and that was condensating all summer, which led to more water damage. I found this out in July of this year, and am throwing that into the suit as well.

What do you guys think? Who wants to take bets the seller wont show up (he didn't even pick up two certified letters for mediation) and refuse to pay due to the summary judgement? or he does show up, judge rules in my favor, and he refuses to pay anyways? Either way i can see myself wanting to kick this guys dick through the top of his head.

EggyToast

You shouldn't be required to bring anything else beyond the contract and the photographic evidence. It's clear that he did not substantially perform the contract, based on what you describe, and his willful disregard to settle the matter in other forms is likely to tilt judgment in your favor because it shows that he had no intent on settling the matter, or performing as the contract implied.

As for getting paid, there are numerous ways to get your money. As far as I know, though, it's a step-by-step process, so you can't garnish his wages as soon as he loses.

PeregrineFalcon

The judge will give him a certain length of time to make restitution (pay you) - if he doesn't by that date, you might need to file a follow-up action to garnish his wages. Seizure of assets is the next step past that.

And I expect you to play the Price Is Right "You Lose" music clip when the judge rules in your favour.

(don't actually do this but I enjoy the mental image)

MegaMan001

You look good to go. Make sure to pay attention to other important things.

Dress nicely (suit, tie, etc). Do not interrupt the judge. Speak when spoken to and address the judge as sir or ma'am.

Basically, watch an episode of Judge Judy and do the opposite of what the jackasses do on that show.

From what you've said in your threads the action is clearly on your side. You have all of the evidence in a well documented format.

Doc

MegaMan001 wrote: »

You look good to go. Make sure to pay attention to other important things.

Dress nicely (suit, tie, etc). Do not interrupt the judge. Speak when spoken to and address the judge as sir or ma'am.

Basically, watch an episode of Judge Judy and do the opposite of what the jackasses do on that show.

From what you've said in your threads the action is clearly on your side. You have all of the evidence in a well documented format.

Or "your honor."

FyreWulff

Especially the no interruption thing. Do not do it. If the other guy interrupts you, just let him do it because the judge will smack him for it. Don't get in a yelling battle with him.

MegaMan001

Doc wrote: »

MegaMan001 wrote: »

You look good to go. Make sure to pay attention to other important things.

Dress nicely (suit, tie, etc). Do not interrupt the judge. Speak when spoken to and address the judge as sir or ma'am.

Basically, watch an episode of Judge Judy and do the opposite of what the jackasses do on that show.

From what you've said in your threads the action is clearly on your side. You have all of the evidence in a well documented format.

Or "your honor."

I was never sure what the protocol was on 'your honor'. I thought that was almost exclusively reserved for lawyers?

PolloDiablo

Definitely judges. At least in the US.

edit: In checking Wikipedia on styles, it says that esquire is almost exclusively used by lawyers. Maybe that's what you're thinking of?

pacbowl

Yeah I don't think anything bad can come from addressing a judge as "your honor".

Last Son

I... I think he meant only lawyers call judges "Your Honor", or at least I hope so cause the other interpretation doesn't make sense.

But yea, no harm is calling a judge Sir/maam or your honor, just depends on how formal you want to sound.

Simpsonia

Don't address a judge as simply sir, that's what you'd address your GF/wife's father, it doesn't elevate the judge enough, stick to "your honor" or "judge lasnamehere."

I didn't see in your previous thread, nor here, whether you will have a lawyer present. From your post I'm assuming you're in small claims or representing yourself pro se? Either way you will need the contract itself, and proof of breach. That proof can come from photos, testimony etc. Further, you will need proof of damages, this will come in the form of estimates from other contractors to fix your home to the condition it would have been in had the contractor at issue fully performed the contract. Specific performance is not something you want given this guy's shady performance in the past.

If you will have a lawyer present, I'm sure he/she has told you this, but they will do all the talking. If not, stay respectful and have the numbers you need at hand.

Disclaimer: this is not legal advice to you, only things to keep in mind, as I am slightly buzzed right now and only a freshly minted attorney.

PolloDiablo

Last Son wrote: »

I... I think he meant only lawyers call judges "Your Honor", or at least I hope so cause the other interpretation doesn't make sense.

But yea, no harm is calling a judge Sir/maam or your honor, just depends on how formal you want to sound.

Oh, oops. I get it now. In that case, that's a good question. I wonder what the proper protocol is for that.

Dinosaur Equals Gas

In my past experience calling the judge "your honor" can sometimes look like you're trying to hard. It really depends on the way you say it and how the judge reacts. But the last 2 times I was in court the prosecution always said "your honor" and the judge seemed to think they were trying to hard. I referred to the judge as "sir". And FYI, I won.

Doc

Dinosaur Equals Gas wrote: »

In my past experience calling the judge "your honor" can sometimes look like you're trying to hard. It really depends on the way you say it and how the judge reacts. But the last 2 times I was in court the prosecution always said "your honor" and the judge seemed to think they were trying to hard. I referred to the judge as "sir". And FYI, I won.

Yeah, probably true. Don't do it like "sir" or "drill sergeant" at boot camp.

Along the same lines, I've heard that using the honorific "officer" instead of sir/ma'am at traffic stops helps at least a little.

Dr. Frenchenstein

Well, case is in the books. They guy didn't even show up so i got a default judgement in my favor! The judge actually never addressed me personally. Now dude's got 15 days before i release the hounds. I'm betting since he didn't respond to mediation, and didn't show up to court, he aint paying up without some encouragement.

With the garnishing thing, does anyone know how long that process takes? Obviously, it's not like i can take his entire paycheck or whatever until he pays me. I'm just wondering if i'm going to get $100/month for the next 10 years or some bullshit. I know what he owes me accrues interest at 10% annually though. And if he tries to sell or refinance his house, i get paid before he gets any loot from that.

PeregrineFalcon

Congratulations. Now the fun begins!

District Court of Maryland on Garnishment of Wages

What Are the Steps?
1. Before you can garnish wages, you must obtain a final judgment or order against the debtor in court.
You've already got this. Right?

2. After you obtain a judgment, you file a Request for Garnishment on Wages (DC/CV65). To complete the form, you need to know the name and address of the debtor’s employer, the amount of the judgment and any additional money owed (such as court costs and interest.)
You may want your lawyer to make sure the i'd are dotted and t's crossed.

3. A writ or court order is then "served" or delivered to the debtor’s employer (garnishee). (Service is not permitted by ordinary mail. Service must be provided by the sheriff or constable, by "return receipt requested" registered mail, or by a person at least 18 years of age and not a party to the suit.)
Go with the sheriff/constable, and just add the fee for this to the amount of the garnishment.

If you don't feel like waiting, read below:

Can a debtor’s bank account be garnished?
Yes. To garnish a bank account, file a Request for Garnishment of Property Other than Wages (DC/CV 60). You must provide the name and address of the debtor’s financial institution. The garnishee is served and must reply within 30 days with a Confession of Assets, a list of assets belonging to the debtor held by the bank. You will receive a copy.

After 30 days have passed since the original request, you file a Request of Judgment-Garnishment (DC/CV 62) with the court and send copies to both the debtor and garnishee. If the judge decides in your favor, the garnishee will be ordered to pay the funds from the debtor’s account.

Fist-pound!

MrMonroe

You may have more and more immediate luck with a writ of execution, which you can obtain from the court after that grace period is up. You take that to the sheriff's office of the county in which the defendant lives, pay them a fee, and they'll help you take care of it. You may want to call them first to see what they're charging.

In my case (different jurisdiction, but same issues) having the sheriff's office call and say "you can pay the plaintiff through me, or we can start taking stuff out of your house" was enough to push the guy to pay up.

Simpsonia

The only problem is that wage garnishment will likely be completely useless here. From the sounds of it the contractor who did the shoddy work owns/runs the business which makes wage garnishment futile. This happens a lot. If you can get the judgment on this guy personally rather than the business the best thing to do is attach a lien on any real property (house etc) that he owns.

Dr. Frenchenstein

It's on the seller, not his company. I don't even know that it's his company that did the shoddy work. the writ of execution thing might be a good idea if the wage garnishment doesn't pan out. he's apparently got a 750k house, and other property so i doubt he's struggling.

Dr. Frenchenstein

Not to necropost but UPDATE.

So as soon as the defendant was informed of the decision he decided to get himself a lawyer and attempt to request a new trial. WTF? My lawyer attempted to block this (the case jacket is in chambers currently, but my lawyer is pretty confident nothing will change). Also, his lawyer attempted to settle (after judgement has been entered, really?) for less than half what was awarded. He says his client has no money, blah blah. His client has a 3/4 million dollar house, that he bought for 520k. I think he's got some equity there... There was talk of bankruptcy in my lawyers letter to him as well. as in, my lawyer doesn't think he could get this debt killed in bankruptcy court due to this equity. My lawyer's saying he's going to drop the hammer soon (i'm assuming with garnishment, or something) to the defendant's council unless something moves forward.

My question is, how long is this asswipe going to be able to dick me around, legally. Since judgement was handed down, i've spent $500 MORE in legal fees, that i don't think i'm entitled to recover. I think i read that fees/costs of acquiring the judgement amount are recoverable, but my lawyer didn't seem to think the legal fees i'm incurring are, unless we sue him again. does that sound right?

EggyToast

Settling is extremely common. The argument is that if you settle for a sure amount, the lawyer and his client will consider it finished. If you don't settle, they'll exhaust their legal options.

For some people, that's extremely attractive. If a company offers to settle for 50% or appeal, the appeal can take years. However, it's much more common when the sum is large and is not based on damages for a relatively simple case (vs medical damages in the tens of thousands or more).

It's a gamble for you to take the settlement, but in this case I would trust your lawyer. I assume your lawyer is being paid a %, right? He wouldn't pursue it if he didn't think he (you) would get the larger sum.

Dr. Frenchenstein

Nope, he's on a retainer so i pay for his time. Oh settling is attractive, but not for such a small amount. I honestly just want this to be over and i actually said i'd take less than the full judgement (not that much less) to put this to bed. he hasn't responded to that counter offer though. Part of me wants to rape the shit out of this guy until he pays me every cent i'm due, but i'm wondering if i spend even more money to get my money, what's the point? I wish there was a service that was like "hey, you got a judgement for 20k, we'll give you 17k for it, and go after the guy ourselves." I would do this in a heartbeat.

Also, i know settling is common before it goes to trial. But i had no idea it happened afterwards. I mean, that's like getting a job and agreeing to 50k/year, and then when your first payday comes along, your boss says : "Welp, how about we give you 35k instead"

EggyToast

Yeah it happens all the time in civil cases. You don't usually hear about it because court results are public knowledge, while settlements aren't. Settling before is essentially "Alright, we know we're going to lose, let's just get this out of the way." Settling afterwards is "Alright, we lost, but if you don't accept this settlement we're going to try as hard as we can so you don't get anything, or don't get it for 10 years."

But the dude's motion to set aside the default judgment typically needs a pretty good reason -- courts don't like to just fill up the docket for people who never show up.

JaysonFour

I think the other side is just trying to drag this out for as long as possible. The longer they can drag this out, the better chance of you caving to the settlement and the other guy saving money.

I'd also be thinking that this guy may be worried about the hit on business he'll take if this suit goes public. Reputation is everything, settlements are private, and the last thing this guy wants is a judgement against him on the books for shitty work and then trying to avoid it.

IANAL, but I'd say keep up the pressure and give the guy what he deserves.

Jasconius

The glory of our legal system is the maneuvering that can be done in the system to screw people out of their decisions. Appeals, re-trials, etc.

They are trying to pressure you into settling because they are betting that you are really hurting for some sort of money ASAP.

Ask your lawyer how long you think it could take and decide accordingly.