As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles apply only to the Commonwealth of Virginia.
Introduction
One of the harshest realities that family law clients face is that just because a court orders your spouse, ex-spouse, significant other, etc., to do something doesn't mean he or she actually will - and unless you take action, their violations will go entirely unpunished. The result of this is that I often get clients come to me with an old order that's been violated for years and ask me why the court hasn't done anything - when in reality, they also have done nothing, and at this point it may be too late.
In today's blog post, I will discuss what to do if your ex is violating a family law order, some considerations to think about, and what can happen as a result of your actions.
Orders vs. Judgments
I have covered before the difference between orders and judgments - including the basic rule that a judgment does not require anyone to do anything, while an order does. I believe I have also mentioned that in a family law context, almost all orders made by the court are orders, not judgments. As a result, if you are dealing with a family law ruling - custody/visitation order, an order dividing property, ordering support to be paid, etc., the odds are you are dealing with an order that actually requires each party to take certain actions. Additionally if you had a property settlement agreement that was incorporated into a court order, you are also obligated by order to follow that agreement. This means failure to follow the order is contempt of court, and as a result the violator can face some serious penalties as long as the right procedures are followed.
Orders are not self-executing
That all being said, orders do not take care of themselves. If the parties violate an order, nothing happens unless the other party does something. There's a practical reason for this - the court simply cannot police its own orders, but also a logical one - if you both don't like an order and can agree to do something differently, why should the court interfere with that agreement?
The result of all of this means, again, if your ex violates the order, it's on you to do something about it - it won't just take care of itself. There is a slight exception that if your support is being collected by DCSE, DCSE might take action, but it is no way guaranteed that they will.
So, what should you do?
Realistically, the first step to take is to go to an attorney. There's a decent chance you will get an award of your attorneys' fees as a result of the action you take, but even if you don't, an attorney is going to know best how to compel your ex to comply. The most common approach is to request that the court issue a "Rule to Show Cause." This is an Order that requires the other party to appear before the court and defend their actions, and if they cannot do so, they will be held in contempt of court.
What happens if they are found in contempt?
So, if your ex is found by the court to be in contempt, the court has a wide range of options at its disposal. It can enter a monetary judgment against your ex (meaning you can then garnish his or her wages to collect what you are owed), it can order your ex to pay fines, it can even sentence your ex to jail time. Most violations of court orders have a maximum sentence of ten days, but failure to pay support can result in a sentence of up to a year in jail. Frequently if someone is sent to jail for non-payment of support, the court will set a "purge" amount - an amount less than what they owe, but still a significant amount - that they can pay you to at least get out of jail. You'd be shocked how many people who "don't have the money to pay" find the purge money all of the sudden when facing serious jail time.
Typically, you will also be awarded your attorneys' fees in pursuing the contempt charge, and continuing violations of the order can be re-raised for new contempt charges since continuing to violate the order would be considered new violations.
What if they don't show up?
Of course, all of this depends on their showing up for court on the Rule to Show Cause. If they don't show up, however, and they were served personally with the Rule (rather than served via a family member or posting on their front door), then the court can find them summarily in contempt based on just your evidence. Moreover, the court can issue a "capias," which is a warrant authorizing their immediate arrest to be held until they answer for the charges raised.
Right to counsel
An important side note is to understand that, as a contempt proceeding is quasi-criminal and your ex faces potential jail time, if your ex actually is indigent, he or she will be entitled to have the court appoint an attorney for them. As a result, you cannot use a Rule to Show Cause to take advantage of the fact that your ex does not have a lawyer.
Some considerations
In general, contempt of court is a serious charge, and courts are not going to have patience for someone being brought in front of them for petty violations. As a result, if your ex shorted you $5 on support one month, that's probably not worth a Rule. Nonetheless, a series of petty violations may add up to a not so petty violation, and then you can bring a Rule for all of them.
Another consideration is that support has a statute of limitations. Support automatically becomes a judgment when unpaid, and in 2011 the Virginia Supreme Court ruled that this meant that the 20 year statute of limitations on collecting judgments applied. As a result, if unpaid support is more than 20 years old, you are out of luck.
Additionally, an order becoming impossible to follow is also a defense against contempt. So, if you don't go after your ex until they are broke and unemployed, or until the car they were supposed to sign over to you has been destroyed in a wreck, you may be out of luck anyways.
The end result is, while you probably should let minor violations go, when a not so minor violation occurs, you really should not sit on your rights - you need to take action right away.
Conclusion
There are few things more frustrating than sitting there, doing what you are supposed to do, while your ex flagrantly refuses to do the same. Even more frustrating, though, is that if you do nothing about it, your ex will get away with it. A lawyer will have the best idea, however, of how to compel your ex to comply. If you have a family law order that your ex is violating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, March 26, 2015
Thursday, March 19, 2015
Virginia Law and the Blog Part III - More Questions About Past Posts
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Once a fairly regular feature on this blog, it has now been six months since my last FAQ-type post, and in the meantime I've gotten lots of private e-mails with questions about issues raised on this blog. Many of these questions can be generalized into issues I'd like to talk about, but for the last couple of months I've had a number of topics I very much wanted to cover with posts, so I've let these questions fall to the back burner. Today, I want to take some time to answer some of these questions (note that all potentially identifying statements and statements nuanced to specific cases have been removed).
"My landlord is refusing to fix my broken heater and I've had so many issues here that I just want out of my lease - am I better off doing a 21/30 notice or a tenant's assertion?"
This is a question I get asked a lot in some form or another. If your ultimate goal is to simply get out of your lease, both approaches present problems. This is because, under either approach, your landlord could decide "oh, she's serious, I'm going to fix this problem" and prevent you from terminating. This is because the "21" portion of the 21/30 notice allows the landlord 21 days from the date of notice to fix the problem. On the other hand, in a tenant's assertion, it is a complete defense to a tenant's assertion that the condition giving rise to the assertion is now fixed.
On balance, you're probably better off going with the 21/30 notice if lease termination is your goal. This is because the tenant's assertion gives a landlord a lot more time to fix the issue (remember, to file an assertion, you must provide the landlord written notice of the issue, give the landlord a "reasonable time" thereafter [usually defined as 30 days] to fix the problem, then file an assertion that will usually take 10 days to have a return date and 1-2 weeks thereafter to have a trial) - under a 21/30 notice, the landlord only has 21 days, while with an assertion, the landlord could have as long as two months. Moreover, the judge in an assertion is not guaranteed to order the termination of the lease.
At the end of the day, the tenant's assertion is very much designed for a tenant who wants to stay on the property, but just wants the issues fixed. A 21/30 notice, on the other hand, is designed to protect landlords from tenants who are just looking for an excuse to leave, but is much better suited for tenants who are ready to go.
"I fell on hard times and was no longer able to afford my rent. Of course I received my 5-day pay or quit notice, the eviction process was begun, and a judgment was entered against me. Shortly thereafter, I got a new job with a substantial signing bonus and was able to pay off the full judgment against me (rent, late fees, attorneys' fees - everything), but then I still got served with a writ of possession to evict me - what can I do?"
Talk to a lawyer, immediately. Now, the easiest thing to do would be, instead of simply paying your soon-to-be-former landlord, offer to pay them if and only if they agree to release the judgment of possession. This could be enticing if they don't mind still having you as a tenant, as collecting on judgments is very hard. If they don't agree, however, you may have a problem.
Here's the thing, once a judgment of possession is entered, you are no longer entitled to be on the property, and any payments you make are just payments of a judgment, nothing more. However, there is a big exception.
First, you need to figure out whether or not your lease is covered by the VRLTA. If it is not, and the landlord will not agree to release the judgment, then I'm afraid you are probably out of luck. You would be better off holding on to the money to help you move. If your lease is under the VRLTA, however, you can make the payment to the leasing office. From there, the leasing office will have to make a choice - whether or not to accept your rent with reservation. If they do, they need to provide you with a letter indicating that the payment does not release you from your eviction. If they don't do that, or they choose not to do it, Virginia Code Section 55-248.34:1(B) makes the judgment of possession no longer enforceable, and thus any writ of possession invalid. If you are in that situation, you need to file an emergency motion with the court to have the writ of possession declared invalid.
"In the guest post you had about divorce and immigration, your guest writer mentioned that you can still get divorced here even if you are an immigrant. What about if you are undocumented?"
The United States has some of the loosest rules in the world for determining who has access to our courts primarily because we think of our courts as a bulwark against corruption and injustice. As a result, all people, citizens or immigrants, here legally or not, have access to almost all parts of our court system - including divorce. As a result, yes, you absolutely may file for divorce even if you are here illegally. That being said, you can expect some obstacles. First of all, our divorces are required to include the parties' social security numbers in privately submitted documents. If you don't have a social security number, your divorce should still be processed, but the clerks and the judge approving your divorce will almost assuredly know now that you are not here legally. Second, our trials are public record. If you are trying to remain low key, going to court is not a great way to do this.
In short, while you absolutely can get divorced here even if you are in the country illegally, I strongly recommend consulting with an immigration attorney before doing so in order to discuss the risks that filing for divorce may entail.
"You've mentioned before that adultery is still relevant to divorce law in Virginia and that one of the reasons is that adultery can be used to bar someone from receiving spousal support. Does this include a sexual encounter that occurs while you and your spouse are already separated and in the process of a divorce?"
Adultery, by definition in Virginia, is an instance of sexual intercourse with a person other than your spouse while you are still married. Note that the definition does not say "married and living together" or "married and getting along" (and also note that we are talking about the legal definition of adultery here - different religions define it differently, but Virginia law doesn't care what your religion says is or is not adultery). If you are separated and going through a divorce, but your divorce is not final, when you have sex with someone else, as far as Virginia law is concerned you have committed adultery. This means that, absent a showing of manifest injustice, if proven you will now be barred from receiving spousal support.
Look, I always tell my divorce clients that it's best to wait until your divorce is final to even start dating. But, at the same time, I recognize that we are all human, and that human beings have both emotional and physical needs, especially while going through one of the most difficult times of your life. I can even think of a couple clients I have had who actually met the love of their life while going through their divorce, started dating, and are now very happily married. So, while I always recommend against dating while separated, I recognize that this can be an unrealistic expectation for many clients - especially given how long it takes to finalize a divorce.
That being said, a "relationship" does not have to equal "sex." As long as you waited to start dating someone until after you separated, the mere fact that you are dating someone should not be counted against you in your divorce - but if you have kids, be aware that the nature of your relationship and the quality of the person you are dating could become an issue in any custody case. It is only when that relationship rises to sex in all of its various forms (note that the code section at issue does not merely apply to "adultery" but also "sodomy" and "buggery"), however, that it becomes a problem in the support context. If you can keep your pants on until you're divorced, you should be ok.
Conclusion
As I said at the beginning, I have a bunch of these questions since it's been so long since I last did one of these, but I also do want to keep this post of a reasonable length, so I will stop at four for today. You can expect a couple more of these in the next month or two. If you need further assistance regarding any issue raised today, you should feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Once a fairly regular feature on this blog, it has now been six months since my last FAQ-type post, and in the meantime I've gotten lots of private e-mails with questions about issues raised on this blog. Many of these questions can be generalized into issues I'd like to talk about, but for the last couple of months I've had a number of topics I very much wanted to cover with posts, so I've let these questions fall to the back burner. Today, I want to take some time to answer some of these questions (note that all potentially identifying statements and statements nuanced to specific cases have been removed).
"My landlord is refusing to fix my broken heater and I've had so many issues here that I just want out of my lease - am I better off doing a 21/30 notice or a tenant's assertion?"
This is a question I get asked a lot in some form or another. If your ultimate goal is to simply get out of your lease, both approaches present problems. This is because, under either approach, your landlord could decide "oh, she's serious, I'm going to fix this problem" and prevent you from terminating. This is because the "21" portion of the 21/30 notice allows the landlord 21 days from the date of notice to fix the problem. On the other hand, in a tenant's assertion, it is a complete defense to a tenant's assertion that the condition giving rise to the assertion is now fixed.
On balance, you're probably better off going with the 21/30 notice if lease termination is your goal. This is because the tenant's assertion gives a landlord a lot more time to fix the issue (remember, to file an assertion, you must provide the landlord written notice of the issue, give the landlord a "reasonable time" thereafter [usually defined as 30 days] to fix the problem, then file an assertion that will usually take 10 days to have a return date and 1-2 weeks thereafter to have a trial) - under a 21/30 notice, the landlord only has 21 days, while with an assertion, the landlord could have as long as two months. Moreover, the judge in an assertion is not guaranteed to order the termination of the lease.
At the end of the day, the tenant's assertion is very much designed for a tenant who wants to stay on the property, but just wants the issues fixed. A 21/30 notice, on the other hand, is designed to protect landlords from tenants who are just looking for an excuse to leave, but is much better suited for tenants who are ready to go.
"I fell on hard times and was no longer able to afford my rent. Of course I received my 5-day pay or quit notice, the eviction process was begun, and a judgment was entered against me. Shortly thereafter, I got a new job with a substantial signing bonus and was able to pay off the full judgment against me (rent, late fees, attorneys' fees - everything), but then I still got served with a writ of possession to evict me - what can I do?"
Talk to a lawyer, immediately. Now, the easiest thing to do would be, instead of simply paying your soon-to-be-former landlord, offer to pay them if and only if they agree to release the judgment of possession. This could be enticing if they don't mind still having you as a tenant, as collecting on judgments is very hard. If they don't agree, however, you may have a problem.
Here's the thing, once a judgment of possession is entered, you are no longer entitled to be on the property, and any payments you make are just payments of a judgment, nothing more. However, there is a big exception.
First, you need to figure out whether or not your lease is covered by the VRLTA. If it is not, and the landlord will not agree to release the judgment, then I'm afraid you are probably out of luck. You would be better off holding on to the money to help you move. If your lease is under the VRLTA, however, you can make the payment to the leasing office. From there, the leasing office will have to make a choice - whether or not to accept your rent with reservation. If they do, they need to provide you with a letter indicating that the payment does not release you from your eviction. If they don't do that, or they choose not to do it, Virginia Code Section 55-248.34:1(B) makes the judgment of possession no longer enforceable, and thus any writ of possession invalid. If you are in that situation, you need to file an emergency motion with the court to have the writ of possession declared invalid.
"In the guest post you had about divorce and immigration, your guest writer mentioned that you can still get divorced here even if you are an immigrant. What about if you are undocumented?"
The United States has some of the loosest rules in the world for determining who has access to our courts primarily because we think of our courts as a bulwark against corruption and injustice. As a result, all people, citizens or immigrants, here legally or not, have access to almost all parts of our court system - including divorce. As a result, yes, you absolutely may file for divorce even if you are here illegally. That being said, you can expect some obstacles. First of all, our divorces are required to include the parties' social security numbers in privately submitted documents. If you don't have a social security number, your divorce should still be processed, but the clerks and the judge approving your divorce will almost assuredly know now that you are not here legally. Second, our trials are public record. If you are trying to remain low key, going to court is not a great way to do this.
In short, while you absolutely can get divorced here even if you are in the country illegally, I strongly recommend consulting with an immigration attorney before doing so in order to discuss the risks that filing for divorce may entail.
"You've mentioned before that adultery is still relevant to divorce law in Virginia and that one of the reasons is that adultery can be used to bar someone from receiving spousal support. Does this include a sexual encounter that occurs while you and your spouse are already separated and in the process of a divorce?"
Adultery, by definition in Virginia, is an instance of sexual intercourse with a person other than your spouse while you are still married. Note that the definition does not say "married and living together" or "married and getting along" (and also note that we are talking about the legal definition of adultery here - different religions define it differently, but Virginia law doesn't care what your religion says is or is not adultery). If you are separated and going through a divorce, but your divorce is not final, when you have sex with someone else, as far as Virginia law is concerned you have committed adultery. This means that, absent a showing of manifest injustice, if proven you will now be barred from receiving spousal support.
Look, I always tell my divorce clients that it's best to wait until your divorce is final to even start dating. But, at the same time, I recognize that we are all human, and that human beings have both emotional and physical needs, especially while going through one of the most difficult times of your life. I can even think of a couple clients I have had who actually met the love of their life while going through their divorce, started dating, and are now very happily married. So, while I always recommend against dating while separated, I recognize that this can be an unrealistic expectation for many clients - especially given how long it takes to finalize a divorce.
That being said, a "relationship" does not have to equal "sex." As long as you waited to start dating someone until after you separated, the mere fact that you are dating someone should not be counted against you in your divorce - but if you have kids, be aware that the nature of your relationship and the quality of the person you are dating could become an issue in any custody case. It is only when that relationship rises to sex in all of its various forms (note that the code section at issue does not merely apply to "adultery" but also "sodomy" and "buggery"), however, that it becomes a problem in the support context. If you can keep your pants on until you're divorced, you should be ok.
Conclusion
As I said at the beginning, I have a bunch of these questions since it's been so long since I last did one of these, but I also do want to keep this post of a reasonable length, so I will stop at four for today. You can expect a couple more of these in the next month or two. If you need further assistance regarding any issue raised today, you should feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Friday, March 13, 2015
Virginia Lawsuits: Filing in the Circuit Court vs. General District
As always, before reading this post please read my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Not too long ago, I did a series of posts on our three trial courts in Virginia. The first post of that series explained what cases are heard by what courts. Astute readers (and some not so astute readers since I flat-out said it) will notice that there are some cases that can be heard by either the Circuit Court or the General District Court - most notably lawsuits for money for more than $4,500 but less than or equal to $25,000. What I did not get into, however, is why you might choose one court vs. the other. In this post, I will discuss what you should think about if you are about to file a lawsuit that could be heard by either court to help you decide in which court to file.
Who gets to choose?
First off, it's important to understand that as the plaintiff it is your choice whether to have your case filed in the General District Court or the Circuit Court. The defendant has no say over this. Once upon a time, a case in this category filed in the General District Court could be "removed" at minimal expense by the defendant to the Circuit Court, but that right was abolished in 2007. As a result, plaintiffs now have complete control over which of the two courts a case is first heard in.
The basic advantages and disadvantages of the General District Court
The General District Court has several advantages. Perhaps the biggest - even if you have an attorney, going to court in the General District Court is usually much cheaper. The filing fees are lower, there's no real discovery, and it's much easier to start your case without a lawyer and only add one in later on.
The other big advantage of the General District Court is that it is usually much faster. Unless there are undue delays caused by the parties, a case in the General District Court will frequently go, from filing to trial, about 3-6 months. In Circuit Court, it's closer to a year, and in some counties even longer.
The biggest disadvantage, however, is that you risk the whole thing being a waste of time. Remember, a judgment in the General District Court can be appealed to the Circuit Court where a whole new trial would be held as though the General District Court trial never happened.
The basic advantages and disadvantages of the Circuit Court
So, given all of that, you can probably guess that the reverse is true in the Circuit Court. An appeal from the Circuit Court is much less likely to lead to a new trial, since you actually need to prove that the Circuit Court got something wrong, so a win in the Circuit Court will usually stick. However, the Circuit Court is definitely more expensive to have a case go through, and takes a much longer time.
That being said, the availability of discovery can also be an advantage. If there is information you need to prepare your case, there's a good chance you can't get it in the General District Court. Additionally, the possibility of conducting de bene esse depositions (a deposition that is used in lieu of court testimony) could allow you to have witnesses for trial that would not be available to actually come to a trial.
So, why should I actually choose the General District Court?
When I first prepared for the Bar Exam and was learning about our court system, I once asked "why would I ever file a lawsuit in the General District Court when I'm just going to have to do it all over again if I win?" This was before, however, I fully understood the concept of an appeal bond. You see, if the plaintiff wins in the General District Court, in order to appeal, the defendant must come up with the money found to be owed the plaintiff and pay that to the court in order to appeal. On the other hand, if the plaintiff wins, his or her appeal bond is only the filing fee to file the case in Circuit Court to begin with (plus usually a nominal additional service fee around $10).
As a result of this quirk, personally, when I have a choice I always choose to file in the General District Court unless there is an unusual situation present. This way, I know that if I lose, I can appeal and get a second chance, and if I win, I either got a judgment much faster and cheaper than I would have in Circuit Court, or, if I have to do it again in Circuit Court, the money will at least be available to me easily if I win again, making post-judgment collections much easier.
Then why should I actually choose the Circuit Court?
So, if all of that made sense to you, you might be wondering why you should ever choose the Circuit Court. Well, I get into that a big in my advantages/disadvantages section. If your case is particularly complicated, discovery might be necessary in order to proceed successfully. If your witnesses are out of the country, a de bene esse deposition might also be necessary.
An additional consideration is what you know about the defendant. If they are litigious, but also have a ready supply of money, paying an appeal bond might not be a problem for them, and collecting a judgment against them might not be a problem for you. In that case, filing in the Circuit Court might also make more sense.
Conclusion
Choosing what court in which to file your lawsuit can present its own challenges, and the right answer really depends on your particular case. The best way to figure it out, I would suggest, is to talk to an attorney. If you are preparing a lawsuit and aren't sure what court you should be filing in, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Not too long ago, I did a series of posts on our three trial courts in Virginia. The first post of that series explained what cases are heard by what courts. Astute readers (and some not so astute readers since I flat-out said it) will notice that there are some cases that can be heard by either the Circuit Court or the General District Court - most notably lawsuits for money for more than $4,500 but less than or equal to $25,000. What I did not get into, however, is why you might choose one court vs. the other. In this post, I will discuss what you should think about if you are about to file a lawsuit that could be heard by either court to help you decide in which court to file.
Who gets to choose?
First off, it's important to understand that as the plaintiff it is your choice whether to have your case filed in the General District Court or the Circuit Court. The defendant has no say over this. Once upon a time, a case in this category filed in the General District Court could be "removed" at minimal expense by the defendant to the Circuit Court, but that right was abolished in 2007. As a result, plaintiffs now have complete control over which of the two courts a case is first heard in.
The basic advantages and disadvantages of the General District Court
The General District Court has several advantages. Perhaps the biggest - even if you have an attorney, going to court in the General District Court is usually much cheaper. The filing fees are lower, there's no real discovery, and it's much easier to start your case without a lawyer and only add one in later on.
The other big advantage of the General District Court is that it is usually much faster. Unless there are undue delays caused by the parties, a case in the General District Court will frequently go, from filing to trial, about 3-6 months. In Circuit Court, it's closer to a year, and in some counties even longer.
The biggest disadvantage, however, is that you risk the whole thing being a waste of time. Remember, a judgment in the General District Court can be appealed to the Circuit Court where a whole new trial would be held as though the General District Court trial never happened.
The basic advantages and disadvantages of the Circuit Court
So, given all of that, you can probably guess that the reverse is true in the Circuit Court. An appeal from the Circuit Court is much less likely to lead to a new trial, since you actually need to prove that the Circuit Court got something wrong, so a win in the Circuit Court will usually stick. However, the Circuit Court is definitely more expensive to have a case go through, and takes a much longer time.
That being said, the availability of discovery can also be an advantage. If there is information you need to prepare your case, there's a good chance you can't get it in the General District Court. Additionally, the possibility of conducting de bene esse depositions (a deposition that is used in lieu of court testimony) could allow you to have witnesses for trial that would not be available to actually come to a trial.
So, why should I actually choose the General District Court?
When I first prepared for the Bar Exam and was learning about our court system, I once asked "why would I ever file a lawsuit in the General District Court when I'm just going to have to do it all over again if I win?" This was before, however, I fully understood the concept of an appeal bond. You see, if the plaintiff wins in the General District Court, in order to appeal, the defendant must come up with the money found to be owed the plaintiff and pay that to the court in order to appeal. On the other hand, if the plaintiff wins, his or her appeal bond is only the filing fee to file the case in Circuit Court to begin with (plus usually a nominal additional service fee around $10).
As a result of this quirk, personally, when I have a choice I always choose to file in the General District Court unless there is an unusual situation present. This way, I know that if I lose, I can appeal and get a second chance, and if I win, I either got a judgment much faster and cheaper than I would have in Circuit Court, or, if I have to do it again in Circuit Court, the money will at least be available to me easily if I win again, making post-judgment collections much easier.
Then why should I actually choose the Circuit Court?
So, if all of that made sense to you, you might be wondering why you should ever choose the Circuit Court. Well, I get into that a big in my advantages/disadvantages section. If your case is particularly complicated, discovery might be necessary in order to proceed successfully. If your witnesses are out of the country, a de bene esse deposition might also be necessary.
An additional consideration is what you know about the defendant. If they are litigious, but also have a ready supply of money, paying an appeal bond might not be a problem for them, and collecting a judgment against them might not be a problem for you. In that case, filing in the Circuit Court might also make more sense.
Conclusion
Choosing what court in which to file your lawsuit can present its own challenges, and the right answer really depends on your particular case. The best way to figure it out, I would suggest, is to talk to an attorney. If you are preparing a lawsuit and aren't sure what court you should be filing in, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Friday, March 6, 2015
Bad Judgments in Virginia - How to Protect Yourself from an Improper Judgment
As always, before reading this post, please review my disclaimer by clicking on my link above or by clicking on this link. As always, any legal principals discussed in this post apply only to the Commonwealth of Virginia.
Introduction
Let's say you are a normal, law-abiding citizen - someone who takes his or her responsibilities seriously, and who would never ignore legal papers that got served on them. Nonetheless, one day you start noticing that money is being garnished from your paycheck - upon further investigation you check your credit, and find there's a judgment against you! You look into the judgment and find out that a default judgment was entered against you two years ago after you didn't show up in court - you investigate the service of the papers and find out they were served at an address you haven't lived in for five years. Are you stuck, or can you take action to stop the garnishment and undo the judgment?
As I have explained previously, in order to undo a default judgment you typically must file a motion to vacate that judgment within 21 days. However, there are five situations in which you can make that motion beyond 21 days - the judgment contains a clerical error, the judgment was obtained by fraud (as long as this motion is still made within 2 years), the judgment was void (as in the court did not have proper jurisdiction to enter it), you had settled the claim with the plaintiff prior to the judgment being entered, or you were on active duty military service and the rules of the Servicemembers' Civil Relief Act were not followed.
A situation like the one above describes the most common situation in which default judgments are challenged - the claim is that the default judgment was void because the court never obtained personal jurisdiction over you due to the lack of proper service. In this post, I am going to discuss how to vacate (undo) a void default judgment, and what the fall-out of a successful motion to vacate is.
Check out what court you are in
The procedures differ slightly for General District Court and Circuit Court (J&DR generally doesn't have default judgments, so this post really does not apply there). In General District Court, you file Form DC-434 - Motion to Set Aside Default Judgment. That form can be obtained here. You want to fill out that form as instructed and file it with the General District Court. They will set a date at which time you will be required to present your case (see below).
In Circuit Court, there is no form. You will draft your own Motion to Reopen and Set Aside Default Judgment. You will have to follow your local Circuit Court's procedures for setting a hearing date, at which time you will again be required to present your case.
Presenting your case
When your hearing comes, you will need to present your case. Note, this is only your case that the default judgment is void - this is not the time to present your case in defense of the lawsuit itself. It's important to remember that it is your burden to prove that you were not properly served, so don't just show up and say you didn't live there at the time service was made - be prepared to prove it. A lease at your new residence showing the dates of rental, for example, would be helpful.
Note that if you can prove you did not live at the residence where service was made, you may still not be in the clear. If you were served by posted service (copy taped to your door), a copy would have also been mailed to you at that address, and if you had mail forwarded from there to your new address, that may be enough to defeat your motion. You will need to testify that you either never set up mail forwarding, or that the service was made too long after you moved to be forwarded. If you prove you did not live there, and can testify that mail was not forwarded to you, that will usually be enough to prevail - but it's not a guarantee. The other side may have evidence to counter yours, and you could be in for a tough hearing.
I won the hearing! Now what?
Now, the reality is, if you manage to succeed and get your default judgment undone, the case doesn't just go away. With the default judgment vacated, you are now considered to have made your appearance in the case - the lawsuit underlying the judgment will proceed as though no default had ever happened. If you are in the General District Court, a trial date will be set. In the Circuit Court, the case will follow your local rules for proceeding to trial.
It's very important to understand also that if your motion is successful, the case is fully revived as if it had never ended. This means that if the lawsuit was originally filed before the statute of limitations expired, then the lawsuit is still within the statute of limitations, no matter how long it's been.
That all being said, if any post-judgment action had occurred after the default judgment - it should be undone. Any wages that had been garnished, for example, should be returned to you upon the successful vacation of the default judgment.
Conclusion
There are few things more frustrating than being told you did something wrong - especially something as important as not showing up in court when required. This frustration can be compounded when that alleged failure harms your credit and costs you time, money and aggravation. If you have a default judgment sitting on your credit that you don't think should have ever been entered, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Let's say you are a normal, law-abiding citizen - someone who takes his or her responsibilities seriously, and who would never ignore legal papers that got served on them. Nonetheless, one day you start noticing that money is being garnished from your paycheck - upon further investigation you check your credit, and find there's a judgment against you! You look into the judgment and find out that a default judgment was entered against you two years ago after you didn't show up in court - you investigate the service of the papers and find out they were served at an address you haven't lived in for five years. Are you stuck, or can you take action to stop the garnishment and undo the judgment?
As I have explained previously, in order to undo a default judgment you typically must file a motion to vacate that judgment within 21 days. However, there are five situations in which you can make that motion beyond 21 days - the judgment contains a clerical error, the judgment was obtained by fraud (as long as this motion is still made within 2 years), the judgment was void (as in the court did not have proper jurisdiction to enter it), you had settled the claim with the plaintiff prior to the judgment being entered, or you were on active duty military service and the rules of the Servicemembers' Civil Relief Act were not followed.
A situation like the one above describes the most common situation in which default judgments are challenged - the claim is that the default judgment was void because the court never obtained personal jurisdiction over you due to the lack of proper service. In this post, I am going to discuss how to vacate (undo) a void default judgment, and what the fall-out of a successful motion to vacate is.
Check out what court you are in
The procedures differ slightly for General District Court and Circuit Court (J&DR generally doesn't have default judgments, so this post really does not apply there). In General District Court, you file Form DC-434 - Motion to Set Aside Default Judgment. That form can be obtained here. You want to fill out that form as instructed and file it with the General District Court. They will set a date at which time you will be required to present your case (see below).
In Circuit Court, there is no form. You will draft your own Motion to Reopen and Set Aside Default Judgment. You will have to follow your local Circuit Court's procedures for setting a hearing date, at which time you will again be required to present your case.
Presenting your case
When your hearing comes, you will need to present your case. Note, this is only your case that the default judgment is void - this is not the time to present your case in defense of the lawsuit itself. It's important to remember that it is your burden to prove that you were not properly served, so don't just show up and say you didn't live there at the time service was made - be prepared to prove it. A lease at your new residence showing the dates of rental, for example, would be helpful.
Note that if you can prove you did not live at the residence where service was made, you may still not be in the clear. If you were served by posted service (copy taped to your door), a copy would have also been mailed to you at that address, and if you had mail forwarded from there to your new address, that may be enough to defeat your motion. You will need to testify that you either never set up mail forwarding, or that the service was made too long after you moved to be forwarded. If you prove you did not live there, and can testify that mail was not forwarded to you, that will usually be enough to prevail - but it's not a guarantee. The other side may have evidence to counter yours, and you could be in for a tough hearing.
I won the hearing! Now what?
Now, the reality is, if you manage to succeed and get your default judgment undone, the case doesn't just go away. With the default judgment vacated, you are now considered to have made your appearance in the case - the lawsuit underlying the judgment will proceed as though no default had ever happened. If you are in the General District Court, a trial date will be set. In the Circuit Court, the case will follow your local rules for proceeding to trial.
It's very important to understand also that if your motion is successful, the case is fully revived as if it had never ended. This means that if the lawsuit was originally filed before the statute of limitations expired, then the lawsuit is still within the statute of limitations, no matter how long it's been.
That all being said, if any post-judgment action had occurred after the default judgment - it should be undone. Any wages that had been garnished, for example, should be returned to you upon the successful vacation of the default judgment.
Conclusion
There are few things more frustrating than being told you did something wrong - especially something as important as not showing up in court when required. This frustration can be compounded when that alleged failure harms your credit and costs you time, money and aggravation. If you have a default judgment sitting on your credit that you don't think should have ever been entered, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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