As always, before reading this post, please review 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
Stuff happens - that's one of the realities of life. Sometimes this means we don't pay bills we intended to, we fall behind on credit card payments, or we even forget about some bills altogether. On top of it all, sometimes we pay our bills, and the person we paid loses our payment, loses track of it, or mis-enters it into their billing system. Regardless of how you get there, however, few things can be scarier than receiving a summons to court because a debt collector has sued you. In today's blog post, however, I'll discuss some basic "tricks of the trade" on how to fight back against a debt collector's lawsuit, even if you technically owe the money.
Before I begin, if you're new to this blog, it may help to familiarize yourself with the procedures for civil cases in the General District Court. I will be discussing General District Court here since that is where nearly all lawsuits from debt collectors are filed in Virginia.
How to Tell if You're Being Sued by a Debt Collector
The first thing to do is to figure out if it's actually a debt collector who's suing you. The best way to do this is to look at the name of the plaintiff on the Warrant in Debt you've been served with. If you've never heard of the plaintiff, and especially if the plaintiff is listed as "assignee of" or "subrogee of" or something similar, followed by a name you have heard of, then you're being sued by a debt collector. If, however, the name of the plaintiff is familiar, and it's who you owe (or owed) the debt at issue to, then you are not.
While some original creditors, especially very large ones, behave similarly, most do not, so this blog post is really geared towards people being sued by debt collectors, not original creditors.
Motivations at Issue
So, the next thing to do is try to understand the motivation of the parties involved. For the original creditor, they likely made some cursory efforts to collect payment from you, and when that didn't work, gave up. They decided, probably reasonably, that they're not likely to be able to collect your debt - at least not without expending substantial effort - so they sold it to a debt collector, likely for pennies on the dollar (I've heard of debts being sold for somewhere between 5 and 35% of face value, depending on a number of factors) so as to get something.
For the debt collector, they make their money by buying up as much "bad debt" as they can, and then hoping to collect enough of it to make back their money and then some. As you can guess, though, if a debt collector only pays 15% of face value, it probably only expects to actually successfully collect somewhere around 25 to 35% of the debt it buys. This means a debt collector of this sort is generally motivated to collect as much as they can while exerting as little effort and cost as possible.
Handling the Lawsuit
Some debt collectors will simply file a lawsuit against everyone whose debt they've bought. Their hope is that a) some people will get scared into paying by the lawsuit, b) some people will get scared into paying by the judgment that's entered showing up on their credit, c) some people will actually own property and will end up paying when they sell that property due to the lien the judgment created, and d) the collector will stumble upon a person's employer or banking information and be able to do a garnishment with its judgment.
Remember, however, that a debt collector is still assuming that it will never see a dime from the majority of the people it sues. This means a collector is likely unwilling to expend substantial legal fees, or a great deal of time. If they have a judgment, they usually won't do debtor interrogatories (for more on post-judgment collections, you can read my post on the topic), and for the main lawsuit, they are hoping that you, like the vast majority of people they sue, don't show up to the return day, so they can just take a default judgment.
How to Fight Back
That last part is key - the debt collector is relying on most of its judgments being default judgments. So, your first step to fighting back is to show up at the return day. When the judge calls your case, you can usually legitimately and truthfully deny liability, because at that point you don't have sufficient knowledge to prove that the collector suing you actually owns the debt. When you challenge liability, a trial date will be set. Many debt collectors will voluntarily dismiss their lawsuit right then and there.
If, however, your plaintiff does not dismiss the lawsuit, a trial date will be set. Pleadings will likely be required, which is where they will document how they own the money. You can still, however, challenge liability in your answer and grounds of defense by simply noting that you're without sufficient knowledge of the transaction to be certain of its accuracy. Consulting an attorney will help you prepare an answer that is both truthful (actually truthful, not just technically truthful but deceptive) and effective.
Come trial, many debt collectors will give up and dismiss their case. A small number, however, might go forward. Their plan, again since they intend to expend minimal effort, is to call a witness from their own company to validate their purchase of the debt, but not to expend the effort needed to call a witness from the original creditor to validate the debt itself. They might try to have their own witness validate the debt itself, but even a defendant with very basic legal knowledge will be able to object to that validation as hearsay. Instead, they will call you to the witness stand to validate the debt itself. If, however, you have an attorney, and you have not been subpoenaed (and they almost never think to subpoena the defendant) you do not have to be at trial. If you are not there, they probably cannot validate the debt, and if they cannot validate the debt itself, they cannot win.
Important Caveats
Note, however, that while a minority, there are debt collectors who are legitimately trying to collect every single debt they own. They will go through the effort of having a trial and having their necessary witnesses there, then engaging in post-judgment collections actions. In short, what I've listed here works, in my experience, with most debt collectors, but not all. Additionally, if there's a problem with the debt (like you actually paid it, but never got credited), then you should appear at trial to present that evidence. Further, no plan is perfect, and you should definitely have an attorney if you are challenging a debt collection lawsuit in the manner described above. Finally, you must be truthful throughout the proceeding. Doing otherwise could get you in some very hot water.
Conclusion
Being sued by a debt collector is scary, but there are ways to fight back, even if you owe the money. Only an attorney can tell you what strategy is best for your case, however. If you've been sued by a debt collector, 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!
Showing posts with label Collections. Show all posts
Showing posts with label Collections. Show all posts
Friday, June 5, 2015
Friday, May 22, 2015
Virginia Post-Eviction Issues - Now What?
As always, before reading this post, please review 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
So, you've done everything right. You rented out your home, your tenants stopped paying rent, you did all your correct notices, went to court, got a judgment, and waited out the excruciating eviction process. Finally, the big day comes, your tenants are out, and you have a house full of their junk. Now what?
I've been shocked over time to discover that most advice out there about how to handle evictions seems to stop the moment the tenants are removed from the property. Those who have been through this before, however, know that this is not the case at all. Just because the tenants are out does not mean the ordeal is over - not by a long shot. Today's blog post will discuss some of your rights, and your responsibilities, for handling issues that arise once the eviction is over.
Handling Tenants' Personal Property
The first step is handling tenants' personal property. For this, you have two options (and this is regardless of whether or not you have a VRLTA lease). First, you can have all of their personal property removed from the house and placed on the street, with the tenants (and anyone else in the neighborhood, realistically speaking) having the opportunity to come and get their belongings from there. Once the property is out of the house, it is no longer your responsibility, and what happens to it happens.
Now, this option is unappealing for several reasons. First, you must provide the movers so that this can be done rapidly - and this cost must be borne by you, it cannot be passed on to the tenants. Second, it can create an eyesore by piling up loads of crap on the street.
So, most landlords opt for the second option. Bring along a locksmith, change the locks, and then leave the property again, allowing the tenants 24 hours to remove their belongings from the property. Note, however, that they are only allowed to do this during "reasonable hours" generally accepted to mean 9 a.m. to 5 p.m., so if the eviction happens before 9 a.m., they will actually only have until 5 p.m. that day to act. Afterwards, they are barred from the property, and can be removed by the police for trespassing.
First Week After Eviction
The first week after the eviction is fairly hectic. Why? Because even though you went through all of this, you are STILL obligated to obey your lease terms when it comes to dealing with your tenants' account and security deposit, which usually means a deadline to get a statement out about what damages there are in the property.
If personal property remains after the removal period, you can now dispose of it however you wish. If, however, you sell it, note that the proceeds of that sale must be applied against the tenants' account.
Next, you'll want to get estimates for getting any work that needs to be done to fix the place up ASAP. That way, you can put together your itemized list of damages, which is what should be deducted from the security deposit before you apply the deposit to anything else. Once you have your estimates and have gotten rid of the remaining personal property, it's time to begin work on fixing the place up.
Lingering Tenants
One thing a lot of former tenants don't seem to understand is that post-eviction, all of their rights to the property (and any personal property they left behind) are gone. As a result, if they keep coming around, you can call the police for trespassing, and even harassment. I knew one landlord who put all the personal property left behind up for a garage sale only to have the tenants come and start loading up their cars (without paying for any of it). They were shocked when the police arrived and threatened to arrest them if they did not return everything they had just taken and leave.
I know that, as a human being, this may seem harsh. You can also be certain that your former tenants will do everything they can to make it seem even harsher - I saw one case where the tenants kept their 5 and 7 year old kids home from school on eviction day just to have them directly beg the landlord not to go through with it. Remember, though, as harsh as it may seem, by the time an eviction is fully carried out the tenants have literally had months to move out on their own terms and failed to take advantage. At some point, you have to say enough. It is now your property, and any doorway you leave open to your former tenants could result in whole new litigation issues arising for you down the line.
Security Deposit
So, once you have your itemized list of damages and costs, you need to send it to your former tenants. If it subsumes the entire security deposit, and any money you received from selling the tenants' personal property, and then some, you can include a demand for funds (though the likelihood of you ever seeing that money is quite low). If it does not, then any remaining security deposit and funds received from sale of property should be applied against their outstanding balance from the judgment you obtained.
While I have literally never heard of this happening, I suppose it is theoretically possible that the combination of the security deposit and money received from selling personal property could exceed the total damages and costs, as well as the total judgment against the tenants. If that occurs, you must record the satisfaction of the judgment with the court where the judgment was entered, and then send the remaining amount of money to the former tenants.
Finishing Up
So, you've got the tenants out, you gave them their 24 hours, you fixed up the place, you handled the security deposit and any proceeds from the sale of personal property properly, now what? Well, basically, you're done. Again, the property's yours. You are free to re-rent to a new tenant and move on with your life - if you are ready to. However, there may be some lingering issues that you may want to address, but at this stage, addressing those issues is solely up to you.
Post-Eviction Proceedings
So, there are two big issues that are entirely optional to you as a landlord as to whether or not to address after your eviction is complete - post-judgment rent and post-judgment collections.
Many evictions occur before a lease term ends. As leases are contracts, the principle of "expected value" applies to leases as well. This means that, for all rent payments that would have been due after the date of judgment, and even after the date of final eviction, you can sue the former tenants for that amount of money. Note, however, that this only covers rent that would have actually been owed, and that you did not collect. So, once the lease term would have expired, your potential damages stop. Similarly, once you find a new tenant and start receiving rent, your potential damages stop. However, up until the earlier of the end of the lease term or finding a new tenant, you can sue for all rent payments not included in your initial judgment.
Additionally, if you have a judgment left over after the security deposit and personal property is distributed (and almost everyone in this situation does), you may want to pursue collecting that judgment. If you do, this judgment is treated just like any other, and I wrote a fairly extensive blog post on post-judgment collections in January of 2014.
Most landlords I know, however, recognize that the odds of being able to get a former tenant to pay anything are low, and they will typically just let their judgment and additional rent go rather than incurring the costs of pursuing it.
Conclusion
The eviction process is long, complicated and daunting, and many landlords just want to throw their hands up and celebrate when it's over. Before you release your attorney, however, it's important to remember that your case doesn't end when your tenants are removed. If you are having any ongoing issues relating to an eviction, 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
So, you've done everything right. You rented out your home, your tenants stopped paying rent, you did all your correct notices, went to court, got a judgment, and waited out the excruciating eviction process. Finally, the big day comes, your tenants are out, and you have a house full of their junk. Now what?
I've been shocked over time to discover that most advice out there about how to handle evictions seems to stop the moment the tenants are removed from the property. Those who have been through this before, however, know that this is not the case at all. Just because the tenants are out does not mean the ordeal is over - not by a long shot. Today's blog post will discuss some of your rights, and your responsibilities, for handling issues that arise once the eviction is over.
Handling Tenants' Personal Property
The first step is handling tenants' personal property. For this, you have two options (and this is regardless of whether or not you have a VRLTA lease). First, you can have all of their personal property removed from the house and placed on the street, with the tenants (and anyone else in the neighborhood, realistically speaking) having the opportunity to come and get their belongings from there. Once the property is out of the house, it is no longer your responsibility, and what happens to it happens.
Now, this option is unappealing for several reasons. First, you must provide the movers so that this can be done rapidly - and this cost must be borne by you, it cannot be passed on to the tenants. Second, it can create an eyesore by piling up loads of crap on the street.
So, most landlords opt for the second option. Bring along a locksmith, change the locks, and then leave the property again, allowing the tenants 24 hours to remove their belongings from the property. Note, however, that they are only allowed to do this during "reasonable hours" generally accepted to mean 9 a.m. to 5 p.m., so if the eviction happens before 9 a.m., they will actually only have until 5 p.m. that day to act. Afterwards, they are barred from the property, and can be removed by the police for trespassing.
First Week After Eviction
The first week after the eviction is fairly hectic. Why? Because even though you went through all of this, you are STILL obligated to obey your lease terms when it comes to dealing with your tenants' account and security deposit, which usually means a deadline to get a statement out about what damages there are in the property.
If personal property remains after the removal period, you can now dispose of it however you wish. If, however, you sell it, note that the proceeds of that sale must be applied against the tenants' account.
Next, you'll want to get estimates for getting any work that needs to be done to fix the place up ASAP. That way, you can put together your itemized list of damages, which is what should be deducted from the security deposit before you apply the deposit to anything else. Once you have your estimates and have gotten rid of the remaining personal property, it's time to begin work on fixing the place up.
Lingering Tenants
One thing a lot of former tenants don't seem to understand is that post-eviction, all of their rights to the property (and any personal property they left behind) are gone. As a result, if they keep coming around, you can call the police for trespassing, and even harassment. I knew one landlord who put all the personal property left behind up for a garage sale only to have the tenants come and start loading up their cars (without paying for any of it). They were shocked when the police arrived and threatened to arrest them if they did not return everything they had just taken and leave.
I know that, as a human being, this may seem harsh. You can also be certain that your former tenants will do everything they can to make it seem even harsher - I saw one case where the tenants kept their 5 and 7 year old kids home from school on eviction day just to have them directly beg the landlord not to go through with it. Remember, though, as harsh as it may seem, by the time an eviction is fully carried out the tenants have literally had months to move out on their own terms and failed to take advantage. At some point, you have to say enough. It is now your property, and any doorway you leave open to your former tenants could result in whole new litigation issues arising for you down the line.
Security Deposit
So, once you have your itemized list of damages and costs, you need to send it to your former tenants. If it subsumes the entire security deposit, and any money you received from selling the tenants' personal property, and then some, you can include a demand for funds (though the likelihood of you ever seeing that money is quite low). If it does not, then any remaining security deposit and funds received from sale of property should be applied against their outstanding balance from the judgment you obtained.
While I have literally never heard of this happening, I suppose it is theoretically possible that the combination of the security deposit and money received from selling personal property could exceed the total damages and costs, as well as the total judgment against the tenants. If that occurs, you must record the satisfaction of the judgment with the court where the judgment was entered, and then send the remaining amount of money to the former tenants.
Finishing Up
So, you've got the tenants out, you gave them their 24 hours, you fixed up the place, you handled the security deposit and any proceeds from the sale of personal property properly, now what? Well, basically, you're done. Again, the property's yours. You are free to re-rent to a new tenant and move on with your life - if you are ready to. However, there may be some lingering issues that you may want to address, but at this stage, addressing those issues is solely up to you.
Post-Eviction Proceedings
So, there are two big issues that are entirely optional to you as a landlord as to whether or not to address after your eviction is complete - post-judgment rent and post-judgment collections.
Many evictions occur before a lease term ends. As leases are contracts, the principle of "expected value" applies to leases as well. This means that, for all rent payments that would have been due after the date of judgment, and even after the date of final eviction, you can sue the former tenants for that amount of money. Note, however, that this only covers rent that would have actually been owed, and that you did not collect. So, once the lease term would have expired, your potential damages stop. Similarly, once you find a new tenant and start receiving rent, your potential damages stop. However, up until the earlier of the end of the lease term or finding a new tenant, you can sue for all rent payments not included in your initial judgment.
Additionally, if you have a judgment left over after the security deposit and personal property is distributed (and almost everyone in this situation does), you may want to pursue collecting that judgment. If you do, this judgment is treated just like any other, and I wrote a fairly extensive blog post on post-judgment collections in January of 2014.
Most landlords I know, however, recognize that the odds of being able to get a former tenant to pay anything are low, and they will typically just let their judgment and additional rent go rather than incurring the costs of pursuing it.
Conclusion
The eviction process is long, complicated and daunting, and many landlords just want to throw their hands up and celebrate when it's over. Before you release your attorney, however, it's important to remember that your case doesn't end when your tenants are removed. If you are having any ongoing issues relating to an eviction, 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 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!
Thursday, February 5, 2015
Virginia Circuit Court - Trying Civil Cases in Circuit Court
As always, before reading this post, please read 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.
Introduction
Three weeks ago, I began a four part series covering the basics of trying civil cases in each of Virginia's three trial courts. In that post, I provided a basic introduction to the three courts and a basic breakdown of what kinds of cases they hear. Two weeks ago, I covered trying cases in the Juvenile and Domestic Relations District Court. Last week, I covered trying cases in the General District Court. Today, in the final installment of the series, I will cover handling civil cases in the Circuit Court.
Differences from County to County
Like J&DR and GDC, Circuit Court procedures vary from county to county. In my experience, however, amongst the three courts, Circuit Court is the court in which the procedures vary the least from county to county. So while I will again be focusing on Fairfax County's procedures, you can be fairly confident that most counties in Virginia will be the same or very similar.
Typical Case
Again like J&DR and GDC, different kinds of Circuit Court civil cases have different kinds of procedures. As a result, this post will talk about a "typical" case for the most part, and then have a section at the end discussing some "atypical" cases. It is worth noting, however, that the vast majority of cases that the Circuit Court hears tend to fit in the "typical" case category.
In Circuit Court, I would consider a "typical case" to be a regular lawsuit for money, a divorce case, a case seeking declaratory judgment, and similar cases.
Step 1: File your Complaint
Cases in Circuit Court are generally initiated by a "Complaint." The Complaint lays out the facts that you allege entitle you to judgment, along with what judgment you are seeking. Before 2006, when our courts of law and courts of equity were merged, a law case was initiated with a "Motion for Judgment" while an equity case was initiated with a "Bill of Complaint," but after the merger, both of those types of filings got combined into a new filing type simply called a "Complaint." That being said, attorneys who have been practicing for decades can have trouble adjusting, even now, so you may occasionally still see a "Motion for Judgment" or "Bill of Complaint" come up - just know there's no functional difference today between those and a "Complaint."
Now filing a Complaint is trickier than filing a Warrant in GDC or a petition in J&DR. This is because a Complaint is free-form, so there is no "form" to just fill out like in GDC, and Circuit Courts do not (for a wide variety of reasons) have public intake offices with intake officers authorized to take your issues and type them up like in J&DR. This means you are going to be largely on your own in terms of crafting your Complaint, and failing to include something you needed to can be fatal to your case (see my post on cases dismissed on technicalities for more on that). As a result, while it's generally a bad idea, in my opinion at least, to file cases in GDC or J&DR without a lawyer, it's generally an even worse idea to file a case without a lawyer in Circuit Court.
Anyways, once you complete your Complaint, you bring it, along with your filing fee and service of process fee (assuming you want the sheriff to serve the Complaint), to the Circuit Court in which you are filing and file your Complaint. Your case is now open.
Step 2: Await an Answer
After you have filed your Complaint and it has been served on the defendant, the defendant has 21 days to file an "Answer." If the defendant was served personally, or if he was served by "substituted" service (service made on a family member who is 16 and older and lives in the same house as the defendant), the defendant is in default if he does not file an answer after 21 days. If the defendant was served by posted service (Complaint was posted on front door of defendant's home), you must also mail a copy of the complaint to the defendant, along with notice that the suit is pending, and that the defendant must file an Answer within 21 days of service or within 10 days of receiving your letter, whichever deadline is later. If 21 days after service and 10 days after mailing (the mailing can be done before the 21 days are up) have passed and there is no Answer filed, the defendant again is in default.
If the defendant is in default, you can proceed to obtain a default judgment (except in divorce cases) - but the process for doing this in Circuit Court varies too widely from case type to case type for me to really get into here.
If the defendant does file an Answer, then we have a live case.
Step 3: Term Day or Scheduling Conference
Now, in terms of actually setting a trial date, the counties do vary widely. Most counties use a process called "Term Day." This is one day every month where attorneys with civil cases pending can come to court and schedule their cases for trial. In most counties, the parties to the case choose when they go to Term Day - but this does not have to be by agreement. One party will decide it is time, and file a Notice with the court, copy sent to the other party, setting the case for the next Term Day. In some counties, however, the court will automatically schedule your case for Term Day.
Other counties, including Fairfax, use an entirely different procedure. In these counties, once an Answer is filed, a "scheduling conference" is set. This is a date that can be pretty much any time during any month where you appear before the court clerks to set your trial date. You only appear before a judge if there is a dispute about the trial date.
Regardless of the procedures your county uses, the purpose is the same - this is where you will set the date of trial, and the estimated duration of trial.
Step 4: Prepare for Trial
Note that step 4 can be done before step 3, after step 3, or both.
Preparing for trial in the Circuit Court is much like the other courts, except you automatically have discovery available, and you can conduct depositions. During this time you will typically engage in discovery, potentially retain expert witnesses, interview and prepare witnesses, and otherwise prepare for your trial.
Step 5: Trial
A trial in the Circuit Court is much like in the other courts, except that, if the case is eligible and either the plaintiff requested it in his Complaint or the defendant requested it in his Answer, your case can be heard by a jury. All of the usual rules of evidence and procedure apply, and at the end the judge or the jury will rule. Frequently an order will not be entered that day, but rather a hearing date will be set in the near term future so that the attorneys can write up the order to be entered and submit it on that hearing day to be entered. It is not uncommon, however, in the case of a simple lawsuit for money for the judgment order to be entered the same day.
Step 6: Post-Trial
As the Circuit Court is the highest trial court, there is no appeal of right to another court for a brand new trial - the Circuit Court must have done something wrong for you to get a new trial. In order to file an appeal, you must file your notice of appeal within 30 days of entry of the final judgment or order, along with the appellate filing fee. Your appeal bond, if you have one, will be due at the time your appeal is perfected. This means that, in the case of an "appeal of right," your appeal bond is due at the same time as your notice of appeal. For an "appeal by petition," you only owe an appeal bond if and when your petition is granted. For more on the appellate litigation process in Virginia, you can review my post on the topic.
Some "atypical" cases
As I mentioned above, not all cases follow the above-listed process. Below I've summarized some important to know cases that do not follow these exact procedures:
Conclusion
The Circuit Court, as the court of "general jurisdiction" hears probably the largest number and range of civil cases of the three trial courts Virginia has. Practice there can be perilous for those who do not know its rules and procedures well. If you have a case coming up or that you would like to file in the Circuit Court, 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
Three weeks ago, I began a four part series covering the basics of trying civil cases in each of Virginia's three trial courts. In that post, I provided a basic introduction to the three courts and a basic breakdown of what kinds of cases they hear. Two weeks ago, I covered trying cases in the Juvenile and Domestic Relations District Court. Last week, I covered trying cases in the General District Court. Today, in the final installment of the series, I will cover handling civil cases in the Circuit Court.
Differences from County to County
Like J&DR and GDC, Circuit Court procedures vary from county to county. In my experience, however, amongst the three courts, Circuit Court is the court in which the procedures vary the least from county to county. So while I will again be focusing on Fairfax County's procedures, you can be fairly confident that most counties in Virginia will be the same or very similar.
Typical Case
Again like J&DR and GDC, different kinds of Circuit Court civil cases have different kinds of procedures. As a result, this post will talk about a "typical" case for the most part, and then have a section at the end discussing some "atypical" cases. It is worth noting, however, that the vast majority of cases that the Circuit Court hears tend to fit in the "typical" case category.
In Circuit Court, I would consider a "typical case" to be a regular lawsuit for money, a divorce case, a case seeking declaratory judgment, and similar cases.
Step 1: File your Complaint
Cases in Circuit Court are generally initiated by a "Complaint." The Complaint lays out the facts that you allege entitle you to judgment, along with what judgment you are seeking. Before 2006, when our courts of law and courts of equity were merged, a law case was initiated with a "Motion for Judgment" while an equity case was initiated with a "Bill of Complaint," but after the merger, both of those types of filings got combined into a new filing type simply called a "Complaint." That being said, attorneys who have been practicing for decades can have trouble adjusting, even now, so you may occasionally still see a "Motion for Judgment" or "Bill of Complaint" come up - just know there's no functional difference today between those and a "Complaint."
Now filing a Complaint is trickier than filing a Warrant in GDC or a petition in J&DR. This is because a Complaint is free-form, so there is no "form" to just fill out like in GDC, and Circuit Courts do not (for a wide variety of reasons) have public intake offices with intake officers authorized to take your issues and type them up like in J&DR. This means you are going to be largely on your own in terms of crafting your Complaint, and failing to include something you needed to can be fatal to your case (see my post on cases dismissed on technicalities for more on that). As a result, while it's generally a bad idea, in my opinion at least, to file cases in GDC or J&DR without a lawyer, it's generally an even worse idea to file a case without a lawyer in Circuit Court.
Anyways, once you complete your Complaint, you bring it, along with your filing fee and service of process fee (assuming you want the sheriff to serve the Complaint), to the Circuit Court in which you are filing and file your Complaint. Your case is now open.
Step 2: Await an Answer
After you have filed your Complaint and it has been served on the defendant, the defendant has 21 days to file an "Answer." If the defendant was served personally, or if he was served by "substituted" service (service made on a family member who is 16 and older and lives in the same house as the defendant), the defendant is in default if he does not file an answer after 21 days. If the defendant was served by posted service (Complaint was posted on front door of defendant's home), you must also mail a copy of the complaint to the defendant, along with notice that the suit is pending, and that the defendant must file an Answer within 21 days of service or within 10 days of receiving your letter, whichever deadline is later. If 21 days after service and 10 days after mailing (the mailing can be done before the 21 days are up) have passed and there is no Answer filed, the defendant again is in default.
If the defendant is in default, you can proceed to obtain a default judgment (except in divorce cases) - but the process for doing this in Circuit Court varies too widely from case type to case type for me to really get into here.
If the defendant does file an Answer, then we have a live case.
Step 3: Term Day or Scheduling Conference
Now, in terms of actually setting a trial date, the counties do vary widely. Most counties use a process called "Term Day." This is one day every month where attorneys with civil cases pending can come to court and schedule their cases for trial. In most counties, the parties to the case choose when they go to Term Day - but this does not have to be by agreement. One party will decide it is time, and file a Notice with the court, copy sent to the other party, setting the case for the next Term Day. In some counties, however, the court will automatically schedule your case for Term Day.
Other counties, including Fairfax, use an entirely different procedure. In these counties, once an Answer is filed, a "scheduling conference" is set. This is a date that can be pretty much any time during any month where you appear before the court clerks to set your trial date. You only appear before a judge if there is a dispute about the trial date.
Regardless of the procedures your county uses, the purpose is the same - this is where you will set the date of trial, and the estimated duration of trial.
Step 4: Prepare for Trial
Note that step 4 can be done before step 3, after step 3, or both.
Preparing for trial in the Circuit Court is much like the other courts, except you automatically have discovery available, and you can conduct depositions. During this time you will typically engage in discovery, potentially retain expert witnesses, interview and prepare witnesses, and otherwise prepare for your trial.
Step 5: Trial
A trial in the Circuit Court is much like in the other courts, except that, if the case is eligible and either the plaintiff requested it in his Complaint or the defendant requested it in his Answer, your case can be heard by a jury. All of the usual rules of evidence and procedure apply, and at the end the judge or the jury will rule. Frequently an order will not be entered that day, but rather a hearing date will be set in the near term future so that the attorneys can write up the order to be entered and submit it on that hearing day to be entered. It is not uncommon, however, in the case of a simple lawsuit for money for the judgment order to be entered the same day.
Step 6: Post-Trial
As the Circuit Court is the highest trial court, there is no appeal of right to another court for a brand new trial - the Circuit Court must have done something wrong for you to get a new trial. In order to file an appeal, you must file your notice of appeal within 30 days of entry of the final judgment or order, along with the appellate filing fee. Your appeal bond, if you have one, will be due at the time your appeal is perfected. This means that, in the case of an "appeal of right," your appeal bond is due at the same time as your notice of appeal. For an "appeal by petition," you only owe an appeal bond if and when your petition is granted. For more on the appellate litigation process in Virginia, you can review my post on the topic.
Some "atypical" cases
As I mentioned above, not all cases follow the above-listed process. Below I've summarized some important to know cases that do not follow these exact procedures:
- Appeals from J&DR and GDC: As I've mentioned before, almost any judgment in the J&DR Court or General District Court can be appealed to the Circuit Court for a whole new trial. Those appeals do not follow the exact procedures outlined above, however. Instead, in most counties, the appeals are automatically set for a Term Day. Once that Term Day is done, however, the same procedures as above apply. Note that some courts, including Fairfax County's, actually just sets a trial date for General District Court appeals, but they will usually be more open to continuing that date if necessary than the court would be for other types of continuances.
Conclusion
The Circuit Court, as the court of "general jurisdiction" hears probably the largest number and range of civil cases of the three trial courts Virginia has. Practice there can be perilous for those who do not know its rules and procedures well. If you have a case coming up or that you would like to file in the Circuit Court, 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, January 29, 2015
Virginia General District Court - Trying Civil Cases in GDC
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.
Introduction
Two weeks ago, I began a four part series covering the basics of trying civil cases in each of Virginia's three trial courts. In that post, I provided a basic introduction to the three courts and a basic breakdown of what kinds of cases they hear. Last week, I covered trying civil cases in the Juvenile and Domestic Relations District Court. Today, I will cover trying cases in the General District Court, or GDC.
Differences from County to County
Like the J&DR Court, there are some procedural differences between counties. Those differences, however, are relatively minor compared to the differences you encounter in J&DR. As a result, while I will again focus on the procedures in Fairfax County, this time you can be fairly confident that your court's procedures will be similar, if not identical.
Typical Case
Again, like the J&DR Court, different kinds of General District Court cases have different procedures. As a result, this post will talk about a "typical" case for the most part, and then have a section at the end discussing some "atypical" cases.
In GDC, I would consider a "typical" case to be a regular lawsuit for money.
Step 1: File your Warrant
Ok, if you thought a "petition" was odd in J&DR, what on earth is a "warrant" doing in civil court? Well, despite how common culture treats the word "warrant" all that the term "warrant" actually means is "authorization." So, a "search warrant" is authorization to conduct a search, and an "arrest warrant" is an authorization to arrest someone. In civil law, you can file a "warrant in debt" which authorizes the court to summon an alleged debtor to court to answer your charge that he or she owes you money.
Now, "warrant in debt" is a very old term that is basically used nowhere except in Virginia. Even in Virginia, it is really only used in General District Court. The reason for this is that lawsuits are almost always initiated by what is called a "Complaint" nowadays, but in the GDC, a warrant in debt is still standard due to the forms put out by the Commonwealth.
The GDC often calls itself a "form-based" court. This is because the Virginia Courts have put out a whole series of "forms" that are basically just fill in the blank forms for just about every type of case the GDC has power over. If there's not a form for it, you probably can't do it in GDC. Their form for initiating a lawsuit, then, remains as it has been for decades - a "warrant in debt." So, the result is you still typically file a warrant in debt in GDC.
So, to find the warrant in debt form to fill out, you can go here, scroll down to the warrant in debt form, and fill it out with the correct information about your case. You will also want to complete a servicemember affidavit (form DC-418), though you need to sign that form in front of a notary or the clerk of the court.
After your paperwork is complete, take your forms and your filing fee (fee varies by county) and service fee and go to your local GDC civil division to file.
Step 2: Set your Return Date
The next step will be to set your return date. In some counties, you choose this date from a list of available dates you can get from the court. In others, the court chooses it for you. This is the date that you first have to appear in court. Note that, unless the clerk tells you otherwise, your return date is not the trial date.
Step 3: Appear at Return Date
Next you will appear at the return date. If the other side does not show up at the return date, you filed the servicemember affidavit when you filed your warrant in debt, and the other side was properly served with the warrant in debt, you can get a default judgment. You can present what is called ex parte proof, where you explain to the judge why you are entitled to what you are entitled to, and if the judge agrees, you will get judgment right then and there.
If the other side does show up, they can either confess judgment (in which case you win), or they can deny that they owe what you say they do, and a trial date will then be set.
Also, either party has the right to request "pleadings." These would be a Bill of Particulars, for the plaintiff to lay out the details of their case, and an Answer and Grounds of Defense, for the defendant to lay out their defense.
Step 4: Complete Pleadings
If pleadings are ordered, it is critical that you do them, and get them filed and served on time. Failure to do this will result in you losing your case.
Step 5: Preparing for Trial
There will usually be a good bit of time between your return date and your trial. Use that time to prepare your pleadings, interview and prepare witnesses, and, if necessary, subpoena documents from the other side to be prepared for what they might present.
Step 6: Trial
A trial in GDC is much like a trial in any other case. The rules of evidence, basic rules of procedure, etc. are all the same. The plaintiff goes first, then the defendant, then the plaintiff gets a chance at a rebuttal. At the end, the judge will rule, and will enter the judgment right then and there (since there's a blank form for them to do that, usually already in the file).
Step 7: Post-Trial
Remember, you have the right to appeal any GDC ruling to the Circuit Court for a whole new trial, as long as there is at least a $50 difference between your desired result and the result you actually obtained. To take advantage of this right, you must file your Notice of Appeal in GDC within 10 days from the date of judgment, and you must pay your appeal bond within 30 days of the date of judgment.
Some "atypical" cases
As I mentioned above, not all cases follow the above-listed process. Below I've summarized some important to know cases that do not follow these exact procedures:
Practice in the General District Court can be full of pitfalls, and if you have a savvy opponent, you can fall prey to tricks pretty easily. It is always best, in my opinion, to proceed with an attorney. If you have a case coming up or that you would like to file in GDC, 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
Two weeks ago, I began a four part series covering the basics of trying civil cases in each of Virginia's three trial courts. In that post, I provided a basic introduction to the three courts and a basic breakdown of what kinds of cases they hear. Last week, I covered trying civil cases in the Juvenile and Domestic Relations District Court. Today, I will cover trying cases in the General District Court, or GDC.
Differences from County to County
Like the J&DR Court, there are some procedural differences between counties. Those differences, however, are relatively minor compared to the differences you encounter in J&DR. As a result, while I will again focus on the procedures in Fairfax County, this time you can be fairly confident that your court's procedures will be similar, if not identical.
Typical Case
Again, like the J&DR Court, different kinds of General District Court cases have different procedures. As a result, this post will talk about a "typical" case for the most part, and then have a section at the end discussing some "atypical" cases.
In GDC, I would consider a "typical" case to be a regular lawsuit for money.
Step 1: File your Warrant
Ok, if you thought a "petition" was odd in J&DR, what on earth is a "warrant" doing in civil court? Well, despite how common culture treats the word "warrant" all that the term "warrant" actually means is "authorization." So, a "search warrant" is authorization to conduct a search, and an "arrest warrant" is an authorization to arrest someone. In civil law, you can file a "warrant in debt" which authorizes the court to summon an alleged debtor to court to answer your charge that he or she owes you money.
Now, "warrant in debt" is a very old term that is basically used nowhere except in Virginia. Even in Virginia, it is really only used in General District Court. The reason for this is that lawsuits are almost always initiated by what is called a "Complaint" nowadays, but in the GDC, a warrant in debt is still standard due to the forms put out by the Commonwealth.
The GDC often calls itself a "form-based" court. This is because the Virginia Courts have put out a whole series of "forms" that are basically just fill in the blank forms for just about every type of case the GDC has power over. If there's not a form for it, you probably can't do it in GDC. Their form for initiating a lawsuit, then, remains as it has been for decades - a "warrant in debt." So, the result is you still typically file a warrant in debt in GDC.
So, to find the warrant in debt form to fill out, you can go here, scroll down to the warrant in debt form, and fill it out with the correct information about your case. You will also want to complete a servicemember affidavit (form DC-418), though you need to sign that form in front of a notary or the clerk of the court.
After your paperwork is complete, take your forms and your filing fee (fee varies by county) and service fee and go to your local GDC civil division to file.
Step 2: Set your Return Date
The next step will be to set your return date. In some counties, you choose this date from a list of available dates you can get from the court. In others, the court chooses it for you. This is the date that you first have to appear in court. Note that, unless the clerk tells you otherwise, your return date is not the trial date.
Step 3: Appear at Return Date
Next you will appear at the return date. If the other side does not show up at the return date, you filed the servicemember affidavit when you filed your warrant in debt, and the other side was properly served with the warrant in debt, you can get a default judgment. You can present what is called ex parte proof, where you explain to the judge why you are entitled to what you are entitled to, and if the judge agrees, you will get judgment right then and there.
If the other side does show up, they can either confess judgment (in which case you win), or they can deny that they owe what you say they do, and a trial date will then be set.
Also, either party has the right to request "pleadings." These would be a Bill of Particulars, for the plaintiff to lay out the details of their case, and an Answer and Grounds of Defense, for the defendant to lay out their defense.
Step 4: Complete Pleadings
If pleadings are ordered, it is critical that you do them, and get them filed and served on time. Failure to do this will result in you losing your case.
Step 5: Preparing for Trial
There will usually be a good bit of time between your return date and your trial. Use that time to prepare your pleadings, interview and prepare witnesses, and, if necessary, subpoena documents from the other side to be prepared for what they might present.
Step 6: Trial
A trial in GDC is much like a trial in any other case. The rules of evidence, basic rules of procedure, etc. are all the same. The plaintiff goes first, then the defendant, then the plaintiff gets a chance at a rebuttal. At the end, the judge will rule, and will enter the judgment right then and there (since there's a blank form for them to do that, usually already in the file).
Step 7: Post-Trial
Remember, you have the right to appeal any GDC ruling to the Circuit Court for a whole new trial, as long as there is at least a $50 difference between your desired result and the result you actually obtained. To take advantage of this right, you must file your Notice of Appeal in GDC within 10 days from the date of judgment, and you must pay your appeal bond within 30 days of the date of judgment.
Some "atypical" cases
As I mentioned above, not all cases follow the above-listed process. Below I've summarized some important to know cases that do not follow these exact procedures:
- Evictions: Evictions (also known as "unlawful detainers") have some important differences. First, many courts only hear evictions on a certain day of the week (Fridays in Fairfax County). Second, while the return day for a warrant in debt is usually required to be around 30 days after the date of filing, the return day for an unlawful detainer is usually required to be 15-21 days after the date of filing. Third, there are usually months between the return day and trial for a warrant in debt, but for an unlawful detainer, it's usually 2-3 weeks. Finally, if you are the defendant in an unlawful detainer, an appeal requires you to pay your appeal bond at the same time as you file your notice of appeal (so, within 10 days).
- Small Claims Division: Cases in the small claims division of GDC have some pretty major differences. First, there are no attorneys in small claims. If either side gets an attorney, the case is kicked out to the main GDC. Second, there is no return day - the first day you come to court is the trial date. Third, there is no option for "pleadings" in small claims. Finally, the rules of procedure at trial for small claims court are usually much more informal.
- Protective Orders: Since 2012, the GDC has had jurisdiction over protective order cases between people not considered "family members" under the Virginia Code's expanded definition of the term. The procedures for a protective order in GDC are much the same as in J&DR - ex parte appearance in front of a judge to get a preliminary protective order, then a relatively short hearing within 15 days on the issue of a final protective order. For more on protective orders, you can view my post on the topic.
Practice in the General District Court can be full of pitfalls, and if you have a savvy opponent, you can fall prey to tricks pretty easily. It is always best, in my opinion, to proceed with an attorney. If you have a case coming up or that you would like to file in GDC, 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!
Friday, January 16, 2015
Virginia Trial Courts - An Introduction
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.
Introduction
Most of you who have been reading my blog for some time have seen me discuss on and off the various trial courts we have in Virginia. This can confuse many people, because most people not familiar with the law do not realize we have three separate and distinct trial courts. I have decided it is time for me to go into more detail, so I've planned a four-week, four part blog series to discuss this. Today, I will provide some basic background for each of the courts and talk about what kinds of cases those courts hear. For the next three weeks, I will go into depth in how civil (so not criminal, which I do not practice) cases are handled from beginning to end in each court.
So what are the three courts anyways?
If you're new to this blog, you may not realize that we have three separate and distinct trial courts in Virginia. The Circuit Court, the General District Court (GDC), and the Juvenile and Domestic Relations District Court (J&DR) are each different courts with (usually) different courtrooms and (always) different judges. The General District Court also has a small claims division, which is the small claims court in Virginia, but that is not a separate court, as the small claims division still meets in General District courtrooms and is overseen by General District Court judges.
The Circuit Court is the "highest" trial court. Its orders hold precedence over conflicting GDC and J&DR orders unless the GDC or J&DR court orders come after the Circuit Court order and the Circuit Court had yielded jurisdiction to the district court. The Circuit Court is also our "court of record," while the GDC and J&DR courts are "courts not of record." This is a distinction that used to be much more meaningful - courts of record would have a record of proceedings kept, while courts not of record would not - but since the advent of computers, most courts not of record still maintain an active record of their proceedings and hold on to exhibits for at least some time.
Perhaps the biggest difference between the Circuit Court and the GDC and J&DR courts are that the Circuit Court is the only trial court in which your case can be heard by a jury. You might think that this is unconstitutional considering the kinds of cases GDC and J&DR can hear (which I will get to shortly), but the reason it is acceptable is that cases from the GDC and J&DR courts can be appealed to the Circuit Court, and when they are, you get a whole new trial in the Circuit Court (as though the GDC or J&DR trial never happened), where you can get a jury.
What kinds of cases does the Circuit Court hear?
So, the Circuit Court is the Virginia trial court of "general jurisdiction." That means the Circuit Court has jurisdiction over all matters that can be heard in a trial court in Virginia. That being said, Circuit Courts have three kinds of jurisdiction: exclusive jurisdiction, concurrent jurisdiction, and appellate jurisdiction.
Cases over which a Circuit Court has exclusive jurisdiction are cases that can only be heard in the Circuit Court. These include, but are not limited to, adult felony trials (including juveniles charged as an adult), divorces, appeals from a ruling of your local Board of Zoning Appeals, almost all lawsuits that are cases "in equity" (for a brief, albeit incomplete, explanation of cases "at law" vs. cases "in equity" you can review this blog post), and almost all lawsuits for money where the base amount of compensatory damages being sought is more than $25,000.
Cases over which a Circuit Court has concurrent jurisdiction are cases that can be filed either in the Circuit Court or in a lower court, at the discretion of the person filing (although there are some rules about how this actually works). These cases include, but are not limited to, child support cases between married parents who are getting divorced (concurrent with the J&DR court), child custody/visitation cases between married parents who are getting divorced (concurrent with the J&DR Court), spousal support cases (concurrent with the J&DR court; in the Circuit Court this can come in the form of a divorce or a complaint for "separate maintenance"), and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $4,500 but no more than $25,000 (concurrent with the GDC).
Finally, cases over which a Circuit Court has appellate jurisdiction are cases that must first be heard in a lower court, but can then be heard in the Circuit Court on appeal. These cases include, but are not limited to, criminal misdemeanor trials, juvenile felony trials (where the juvenile was not charged as an adult), protective order cases, any concurrent jurisdiction case where the case was initiated in the lower court, and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $50 but no more than $4,499.
What kind of cases does the General District Court hear?
So, unlike the Circuit Court, the General District Court is a court of "specific jurisdiction." This means it can only hear cases specifically assigned to it by the Code of Virginia.
The General District Court hears preliminary hearings for all adult felony cases (except where the defendant is a juvenile, even if that juvenile is being charged as an adult) and hears criminal trials for all misdemeanors where the defendant is an adult and the victim (if there is one) is not a member of the defendant's family.
On the civil side, the General District Court's small claims division can hear any lawsuit for money where the amount being sought is $5,000 or less. Outside the small claims division, the General District Court can hear any lawsuit for money where the amount being sought is $25,000 or less. The General District Court can also hear unlawful detainer cases (lawsuits for eviction) in commercial landlord/tenant matters even when the amount in controversy is more than $25,000.
Finally, the other big area where the General District Court has jurisdiction is over protective orders where the defendant is not considered a "family member" (with that definition being as explained in this blog post) of the plaintiff.
The GDC has jurisdiction over a number of other matters, but those are the big ones.
What kind of cases does the J&DR Court hear?
The J&DR Court is also a court of "specific jurisdiction," though its jurisdiction is over a much broader array of cases than the GDC. Pretty much any case you can think of involving children or domestic relations (other than divorce) can be heard in the J&DR court.
Some of the big ones that the J&DR court hears are preliminary hearings for felony cases where the Commonwealth seeks to charge a juvenile as an adult, full criminal trials for felonies committed by juveniles who are not charged as adults, full criminal trials for misdemeanors where the defendant is a juvenile or where the defendant and the victim are related (regardless of the age of the defendant), child support cases (regardless of the relationship between the parents), child custody/visitation cases (regardless of the relationship between the parents), spousal support cases, termination of parental rights cases, juvenile consent for abortion cases (cases where a pregnant juvenile wishes to have an abortion and her parents are withholding consent), and protective order cases between parties that are considered "family members" (under the definition discussed in my previous blog post).
J&DR Courts also hear cases to make the findings of fact necessary for an undocumented, unaccompanied, non-citizen minor who lives in Virginia to be eligible for Special Immigrant Juvenile Status - a type of green card available to unaccompanied minors that has become a major source of interest in recent months, as Virginia has taken in a large number of the unaccompanied children that had crossed the southern border last year.
Again, these are not the only cases J&DR Courts hear, but in my experience, they are the biggest.
How do appeals from GDC and the J&DR court work?
So, almost every trial in the GDC and J&DR courts can be appealed to the Circuit Court. When an appeal is taken to the Circuit Court, the case is tried in the Circuit Court de novo, meaning the whole thing is done again, and the Circuit Court pretends no trial in the lower court ever happened (as opposed to an appeal from the Circuit Court to the Court of Appeals or the Virginia Supreme Court, where you must prove the Circuit Court did something wrong in order to get a new trial). In order to take an appeal, it must be a case eligible for appeal (again, this is nearly every case the lower courts hear, although in a lawsuit for money, for example, the difference between what you wanted and what the lower court ordered must be at least $50), and you must file your notice of appeal within 10 days of the judgment of the lower court being entered.
In many civil cases, however, that does not complete your appeal - you also must "perfect" your appeal by filing an appeal bond. If you were the civil plaintiff below, your appeal bond is usually only a filing fee ($130 or so). If you were the defendant, however, and it was a lawsuit for money, or a support case that found you had an arrearage, your appeal bond is usually going to be the full amount the court ruled you owe, and if you don't pay that bond to the court, you cannot appeal.
Your appeal bond is generally due within 30 days from the date the lower court judgment is entered, although in unlawful detainer cases, if you are the defendant, your appeal bond is due within the same 10 days that your notice of appeal is due.
Conclusion
Virginia's trial court system can be very confusing for someone who is not an attorney - this is why I am doing this four part series. Fortunately, attorneys are allowed to appear in all three courts, and while technically you cannot have an attorney in the GDC small claims division, if you are sued there you can get an attorney and move the case to outside the small claims division. If you are considering filing a case and cannot figure out where it should be filed, you should strongly consider consulting an attorney. If your case is in one of my firm's practice areas (family law, landlord/tenant law, contract law, etc.), you can 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
Most of you who have been reading my blog for some time have seen me discuss on and off the various trial courts we have in Virginia. This can confuse many people, because most people not familiar with the law do not realize we have three separate and distinct trial courts. I have decided it is time for me to go into more detail, so I've planned a four-week, four part blog series to discuss this. Today, I will provide some basic background for each of the courts and talk about what kinds of cases those courts hear. For the next three weeks, I will go into depth in how civil (so not criminal, which I do not practice) cases are handled from beginning to end in each court.
So what are the three courts anyways?
If you're new to this blog, you may not realize that we have three separate and distinct trial courts in Virginia. The Circuit Court, the General District Court (GDC), and the Juvenile and Domestic Relations District Court (J&DR) are each different courts with (usually) different courtrooms and (always) different judges. The General District Court also has a small claims division, which is the small claims court in Virginia, but that is not a separate court, as the small claims division still meets in General District courtrooms and is overseen by General District Court judges.
The Circuit Court is the "highest" trial court. Its orders hold precedence over conflicting GDC and J&DR orders unless the GDC or J&DR court orders come after the Circuit Court order and the Circuit Court had yielded jurisdiction to the district court. The Circuit Court is also our "court of record," while the GDC and J&DR courts are "courts not of record." This is a distinction that used to be much more meaningful - courts of record would have a record of proceedings kept, while courts not of record would not - but since the advent of computers, most courts not of record still maintain an active record of their proceedings and hold on to exhibits for at least some time.
Perhaps the biggest difference between the Circuit Court and the GDC and J&DR courts are that the Circuit Court is the only trial court in which your case can be heard by a jury. You might think that this is unconstitutional considering the kinds of cases GDC and J&DR can hear (which I will get to shortly), but the reason it is acceptable is that cases from the GDC and J&DR courts can be appealed to the Circuit Court, and when they are, you get a whole new trial in the Circuit Court (as though the GDC or J&DR trial never happened), where you can get a jury.
What kinds of cases does the Circuit Court hear?
So, the Circuit Court is the Virginia trial court of "general jurisdiction." That means the Circuit Court has jurisdiction over all matters that can be heard in a trial court in Virginia. That being said, Circuit Courts have three kinds of jurisdiction: exclusive jurisdiction, concurrent jurisdiction, and appellate jurisdiction.
Cases over which a Circuit Court has exclusive jurisdiction are cases that can only be heard in the Circuit Court. These include, but are not limited to, adult felony trials (including juveniles charged as an adult), divorces, appeals from a ruling of your local Board of Zoning Appeals, almost all lawsuits that are cases "in equity" (for a brief, albeit incomplete, explanation of cases "at law" vs. cases "in equity" you can review this blog post), and almost all lawsuits for money where the base amount of compensatory damages being sought is more than $25,000.
Cases over which a Circuit Court has concurrent jurisdiction are cases that can be filed either in the Circuit Court or in a lower court, at the discretion of the person filing (although there are some rules about how this actually works). These cases include, but are not limited to, child support cases between married parents who are getting divorced (concurrent with the J&DR court), child custody/visitation cases between married parents who are getting divorced (concurrent with the J&DR Court), spousal support cases (concurrent with the J&DR court; in the Circuit Court this can come in the form of a divorce or a complaint for "separate maintenance"), and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $4,500 but no more than $25,000 (concurrent with the GDC).
Finally, cases over which a Circuit Court has appellate jurisdiction are cases that must first be heard in a lower court, but can then be heard in the Circuit Court on appeal. These cases include, but are not limited to, criminal misdemeanor trials, juvenile felony trials (where the juvenile was not charged as an adult), protective order cases, any concurrent jurisdiction case where the case was initiated in the lower court, and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $50 but no more than $4,499.
What kind of cases does the General District Court hear?
So, unlike the Circuit Court, the General District Court is a court of "specific jurisdiction." This means it can only hear cases specifically assigned to it by the Code of Virginia.
The General District Court hears preliminary hearings for all adult felony cases (except where the defendant is a juvenile, even if that juvenile is being charged as an adult) and hears criminal trials for all misdemeanors where the defendant is an adult and the victim (if there is one) is not a member of the defendant's family.
On the civil side, the General District Court's small claims division can hear any lawsuit for money where the amount being sought is $5,000 or less. Outside the small claims division, the General District Court can hear any lawsuit for money where the amount being sought is $25,000 or less. The General District Court can also hear unlawful detainer cases (lawsuits for eviction) in commercial landlord/tenant matters even when the amount in controversy is more than $25,000.
Finally, the other big area where the General District Court has jurisdiction is over protective orders where the defendant is not considered a "family member" (with that definition being as explained in this blog post) of the plaintiff.
The GDC has jurisdiction over a number of other matters, but those are the big ones.
What kind of cases does the J&DR Court hear?
The J&DR Court is also a court of "specific jurisdiction," though its jurisdiction is over a much broader array of cases than the GDC. Pretty much any case you can think of involving children or domestic relations (other than divorce) can be heard in the J&DR court.
Some of the big ones that the J&DR court hears are preliminary hearings for felony cases where the Commonwealth seeks to charge a juvenile as an adult, full criminal trials for felonies committed by juveniles who are not charged as adults, full criminal trials for misdemeanors where the defendant is a juvenile or where the defendant and the victim are related (regardless of the age of the defendant), child support cases (regardless of the relationship between the parents), child custody/visitation cases (regardless of the relationship between the parents), spousal support cases, termination of parental rights cases, juvenile consent for abortion cases (cases where a pregnant juvenile wishes to have an abortion and her parents are withholding consent), and protective order cases between parties that are considered "family members" (under the definition discussed in my previous blog post).
J&DR Courts also hear cases to make the findings of fact necessary for an undocumented, unaccompanied, non-citizen minor who lives in Virginia to be eligible for Special Immigrant Juvenile Status - a type of green card available to unaccompanied minors that has become a major source of interest in recent months, as Virginia has taken in a large number of the unaccompanied children that had crossed the southern border last year.
Again, these are not the only cases J&DR Courts hear, but in my experience, they are the biggest.
How do appeals from GDC and the J&DR court work?
So, almost every trial in the GDC and J&DR courts can be appealed to the Circuit Court. When an appeal is taken to the Circuit Court, the case is tried in the Circuit Court de novo, meaning the whole thing is done again, and the Circuit Court pretends no trial in the lower court ever happened (as opposed to an appeal from the Circuit Court to the Court of Appeals or the Virginia Supreme Court, where you must prove the Circuit Court did something wrong in order to get a new trial). In order to take an appeal, it must be a case eligible for appeal (again, this is nearly every case the lower courts hear, although in a lawsuit for money, for example, the difference between what you wanted and what the lower court ordered must be at least $50), and you must file your notice of appeal within 10 days of the judgment of the lower court being entered.
In many civil cases, however, that does not complete your appeal - you also must "perfect" your appeal by filing an appeal bond. If you were the civil plaintiff below, your appeal bond is usually only a filing fee ($130 or so). If you were the defendant, however, and it was a lawsuit for money, or a support case that found you had an arrearage, your appeal bond is usually going to be the full amount the court ruled you owe, and if you don't pay that bond to the court, you cannot appeal.
Your appeal bond is generally due within 30 days from the date the lower court judgment is entered, although in unlawful detainer cases, if you are the defendant, your appeal bond is due within the same 10 days that your notice of appeal is due.
Conclusion
Virginia's trial court system can be very confusing for someone who is not an attorney - this is why I am doing this four part series. Fortunately, attorneys are allowed to appear in all three courts, and while technically you cannot have an attorney in the GDC small claims division, if you are sued there you can get an attorney and move the case to outside the small claims division. If you are considering filing a case and cannot figure out where it should be filed, you should strongly consider consulting an attorney. If your case is in one of my firm's practice areas (family law, landlord/tenant law, contract law, etc.), you can 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, November 13, 2014
True Virginia Law: Some Common Myths About the Law
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 discussed apply only to the Commonwealth of Virginia.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
Thursday, October 30, 2014
Virginia Tenants' "Get Out of Jail Free" Card - the Redemption Tender or Payment
As always, before reading my blog 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 in this blog post is no longer accurate due to changes in the law. Please see my blog post on changes in the law for 2019 for more information.]
Introduction
I have repeatedly covered on this blog the concept of "self-help" in landlord/tenant law. Self-help is when a landlord or tenant takes matters into their own hands, without the court, and for a tenant typically includes withholding rent. In residential leases, self-help is strictly forbidden by law. Today, however, I want to touch on a different but related topic - delayed rent.
Say you are a tenant and you've had a financial issue arise. You know you will have the money to pay your rent in a few weeks, but you don't have it right now. What should you do? Well, recommendation one is to talk to the landlord and see if he will agree to accept a delayed payment (if he does, get that agreement in writing). If that doesn't work, recommendation two is to try to scrape the money together to pay. If that doesn't work, recommendation three is to prepare to utilize a little known feature of Virginia landlord/tenant law called the "redemption tender" or "redemption payment." I will get into the risks and drawbacks of this approach later in this post - there's a reason it is my third recommendation, not my first - but executed properly, this process can buy you about a month to get a late rent payment in without facing eviction.
In today's blog post, I will discuss the way "redemption tenders/payments" work, how to execute them, and their risks and drawbacks.
VRLTA vs. Non-VRLTA Leases
Any long-time reader of my blog knows that the first question you need to ask when dealing with landlord/tenant matters is which landlord/tenant law applies to your lease. The basic breakdown of figuring that out can be found here. Once you figure out which law applies, the next question is to ask what the difference between the two laws may be. In this case, the law is largely the same. "Redemption tenders/payments" for non-VRLTA leases are governed by Virginia Code Section 55-243 and for VRLTA leases they are governed by Virginia Code Section 55-248.34:1. The relevant provisions of the two code sections are identical, so for most purposes this post applies equally to both kinds of leases. Note, however, that the non-VRLTA provision does not have a non-waiver rule, meaning that a lease could probably waive your right to use this procedure. I will say, however, that to date I have never seen a lease that waives the right to a "redemption tender/payment."
So What Is a Redemption Tender/Payment?
"Redemption tenders" and "redemption payments" are two processes that, if completed properly, will cause an unlawful detainer action (a civil case for eviction) to be dismissed entirely (thus "redeeming" your right to live on the property) if the reason for the unlawful detainer is non-payment of rent. In other words, to take advantage of this provision of law, you will have had to not pay your rent, been served with a pay or quit notice, not paid in accordance with that notice, and had an unlawful detainer action filed against you.
A "redemption tender" is a fairly limited option primarily available to those with lower incomes. A redemption tender is a letter signed by a governmental entity or a non-profit charity promising payment in full of the amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs - within 10 days after the first return day on the unlawful detainer. If presented to the court at the return day, the return day will be continued for 10 days. If the payment is made to the landlord before that time is up, the unlawful detainer is dismissed and your lease is resumed. If it is not, possession is granted to the landlord immediately, without a trial.
A "redemption payment" occurs when at your court date (specifically, the first return) you pay the landlord, the court, or the landlord's attorney the full amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs. If you do this, the unlawful detainer will be dismissed, and your lease is resumed.
Limitations
There are some limitations on this option. For example, this option is only available for residential leases, not commercial leases (unless provided for in the lease). Additionally, a "redemption payment" can only be done once in any given 12 month period. Finally, if you dispute the amount owed to the landlord, then a redemption is not available to you as the court is unlikely to be willing (and in the case of a redemption tender, is not allowed) to hear an argument on this for the purpose of a redemption.
Risks and Drawbacks
So, the risks and drawbacks of the "redemption" approach should be very clear. The risk is mainly that you will not handle it properly - that you will underpay, still get evicted, and now be out the money that you paid. If you have done one before, you may forget when your last "redemption payment" was and try to do it a second time in 12 months, getting evicted in the process. The final risk, if you have a non-VRLTA lease, is that you may have missed a lease provision waiving your right to a redemption, in which case you will be out of luck. I would also note that as this is a very rarely used provision of law, you also risk appearing in front of a judge who does not understand it (and has never seen it before) and may not apply it properly.
This approach also has drawbacks. First and foremost, it is much more expensive than paying your rent on time or having an agreed delay. You will have to pay not only the rent, but the court costs and attorneys' fees of your landlord and any late charges included in your lease. You also lose your ability to contest the amount you owe - if you disagree with what your landlord claims you owe, you either have to go to trial (and risk eviction) or suck it up and pay what your landlord claims. Finally, you create a public record (since a lawsuit has been filed) of your non-payment of rent that future potential landlords may discover.
For these reasons, I consider redemption to be a last resort option.
Conclusion
"Redemption tenders" and "redemption payments" are last resort options for tenants who simply cannot pay their rent on time for a month but know they will have the money later. If you are considering making a redemption payment or have a tenant who is attempting to do so, you may want to consult with an attorney to make sure it is being done right. You can contact me by calling (703)281-0134 or e-mailing me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
[UPDATE: Some information in this blog post is no longer accurate due to changes in the law. Please see my blog post on changes in the law for 2019 for more information.]
Introduction
I have repeatedly covered on this blog the concept of "self-help" in landlord/tenant law. Self-help is when a landlord or tenant takes matters into their own hands, without the court, and for a tenant typically includes withholding rent. In residential leases, self-help is strictly forbidden by law. Today, however, I want to touch on a different but related topic - delayed rent.
Say you are a tenant and you've had a financial issue arise. You know you will have the money to pay your rent in a few weeks, but you don't have it right now. What should you do? Well, recommendation one is to talk to the landlord and see if he will agree to accept a delayed payment (if he does, get that agreement in writing). If that doesn't work, recommendation two is to try to scrape the money together to pay. If that doesn't work, recommendation three is to prepare to utilize a little known feature of Virginia landlord/tenant law called the "redemption tender" or "redemption payment." I will get into the risks and drawbacks of this approach later in this post - there's a reason it is my third recommendation, not my first - but executed properly, this process can buy you about a month to get a late rent payment in without facing eviction.
In today's blog post, I will discuss the way "redemption tenders/payments" work, how to execute them, and their risks and drawbacks.
VRLTA vs. Non-VRLTA Leases
Any long-time reader of my blog knows that the first question you need to ask when dealing with landlord/tenant matters is which landlord/tenant law applies to your lease. The basic breakdown of figuring that out can be found here. Once you figure out which law applies, the next question is to ask what the difference between the two laws may be. In this case, the law is largely the same. "Redemption tenders/payments" for non-VRLTA leases are governed by Virginia Code Section 55-243 and for VRLTA leases they are governed by Virginia Code Section 55-248.34:1. The relevant provisions of the two code sections are identical, so for most purposes this post applies equally to both kinds of leases. Note, however, that the non-VRLTA provision does not have a non-waiver rule, meaning that a lease could probably waive your right to use this procedure. I will say, however, that to date I have never seen a lease that waives the right to a "redemption tender/payment."
So What Is a Redemption Tender/Payment?
"Redemption tenders" and "redemption payments" are two processes that, if completed properly, will cause an unlawful detainer action (a civil case for eviction) to be dismissed entirely (thus "redeeming" your right to live on the property) if the reason for the unlawful detainer is non-payment of rent. In other words, to take advantage of this provision of law, you will have had to not pay your rent, been served with a pay or quit notice, not paid in accordance with that notice, and had an unlawful detainer action filed against you.
A "redemption tender" is a fairly limited option primarily available to those with lower incomes. A redemption tender is a letter signed by a governmental entity or a non-profit charity promising payment in full of the amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs - within 10 days after the first return day on the unlawful detainer. If presented to the court at the return day, the return day will be continued for 10 days. If the payment is made to the landlord before that time is up, the unlawful detainer is dismissed and your lease is resumed. If it is not, possession is granted to the landlord immediately, without a trial.
A "redemption payment" occurs when at your court date (specifically, the first return) you pay the landlord, the court, or the landlord's attorney the full amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs. If you do this, the unlawful detainer will be dismissed, and your lease is resumed.
Limitations
There are some limitations on this option. For example, this option is only available for residential leases, not commercial leases (unless provided for in the lease). Additionally, a "redemption payment" can only be done once in any given 12 month period. Finally, if you dispute the amount owed to the landlord, then a redemption is not available to you as the court is unlikely to be willing (and in the case of a redemption tender, is not allowed) to hear an argument on this for the purpose of a redemption.
Risks and Drawbacks
So, the risks and drawbacks of the "redemption" approach should be very clear. The risk is mainly that you will not handle it properly - that you will underpay, still get evicted, and now be out the money that you paid. If you have done one before, you may forget when your last "redemption payment" was and try to do it a second time in 12 months, getting evicted in the process. The final risk, if you have a non-VRLTA lease, is that you may have missed a lease provision waiving your right to a redemption, in which case you will be out of luck. I would also note that as this is a very rarely used provision of law, you also risk appearing in front of a judge who does not understand it (and has never seen it before) and may not apply it properly.
This approach also has drawbacks. First and foremost, it is much more expensive than paying your rent on time or having an agreed delay. You will have to pay not only the rent, but the court costs and attorneys' fees of your landlord and any late charges included in your lease. You also lose your ability to contest the amount you owe - if you disagree with what your landlord claims you owe, you either have to go to trial (and risk eviction) or suck it up and pay what your landlord claims. Finally, you create a public record (since a lawsuit has been filed) of your non-payment of rent that future potential landlords may discover.
For these reasons, I consider redemption to be a last resort option.
Conclusion
"Redemption tenders" and "redemption payments" are last resort options for tenants who simply cannot pay their rent on time for a month but know they will have the money later. If you are considering making a redemption payment or have a tenant who is attempting to do so, you may want to consult with an attorney to make sure it is being done right. You can contact me by calling (703)281-0134 or e-mailing me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Friday, September 19, 2014
Virginia Child Support Myths vs. Reality
As always, before reading today's blog post please review my disclaimer by clicking on the link above or by following this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Having practiced child support law for a few years now, I'm always amazed at the ideas clients have about child support when they walk in the door. When I dig deeper, I discover that some of these ideas have a good basis but have just been taken too far, while others are driven by the false claims of a desperate opponent. Regardless of the root cause, however, there are many myths floating out there about child support law, and I hope to address some of them today.
This blog post will take a "myth"/"reality" format. I will present a common child support myth I encounter, then I will present a 1-2 sentence summary of the reality. I will follow that up with a more detailed explanation, but if you're reading this post in a hurry, the key facts will be in those 1-2 sentence summaries.
Myth: If I make too much money and the non-custodial parent makes too little, I could end up paying him, so I shouldn't take the risk and seek child support.
Reality: There is no situation in which a custodial parent has to pay monthly child support to a non-custodial parent. In fact, there's a minimum amount the non-custodial parent must pay regardless of the parents' relative incomes.
This myth almost always comes from a non-custodial parent trying to intimidate a custodial parent, but it's just not true. Child support is owed by the non-custodial parent to the custodial parent, never the other way around. In fact, there is a minimum child support obligation of $68 per month, although the court can waive that in certain instances. There are, however, some important things to understand.
First, under child support law, "custodial parent" has a specific definition - a parent who has custody of the kid(s) for 276 or more days per year (a day generally being defined as a 24 hour period). If both parents have the kids for more than 90 days, you have what is called a "shared custody" arrangement for child support purposes, and then it is possible for the parent who has the kid(s) more to have to pay support to the parent who has the kid(s) less if the incomes are grossly disproportionate. That being said, the share of custody is a big factor in the shared custody guidelines - so it's still pretty unusual unless the number of days each parent has is pretty close to each other. You can see more details about how the child support guidelines work in my post here.
Second, if child support has previously been ordered and is being modified, the modification can be made retroactive to the date that the motion to modify was filed. This means if child support gets reduced, the custodial parent could owe an arrearage to the non-custodial parent to represent the retroactive application - but this is not a monthly support obligation, and once that amount is paid off, the non-custodial parent is still the one paying the support.
Myth: There is no statute of limitations to collecting back child support, so I don't need to hurry to get it done.
Reality: You must file an action to collect an arrearage, or get a motion to extend the limitations period granted, within 20 years from the missed payment you are seeking to collect.
First of all, we need to be clear what I am talking about. Child support in Virginia is inherently prospective. You can only collect child support from the date you file your petition forward. If you wait until the kid is 7 to file for child support, you can't then collect support for the kid's first 6 years of life. So, a statute of limitations is not applicable, since you cannot collect support from prior to when you file for it. What I am speaking of here is child support that has been ordered to be paid, but which the payor never actually paid.
This is a myth that actually has a good basis for it. Child support is part of family law, which is an "equitable" area of law (you can read more about common law cases vs. equity cases in my post about contract law here). As is typically the case with equity, there is no specific statute of limitations prescribed for child support arrearages. However, in most equity cases, there is a doctrine called "laches" which says you cannot file an equitable claim if you've waited an "unreasonable" amount of time and that delay has prejudiced the other party. Decades ago (in the 1960's), the Virginia Supreme Court ruled that decrees, including support orders, that have already vested (the payment order date has passed) cannot be altered by equitable doctrines - in other words, the doctrine of laches does not apply to collection of back child support under Virginia law.
So, for many years, we were in a situation where child support had no statute of limitations, and no doctrine of laches - meaning people could wait for decades to bring child support arrearage cases. Then a gentleman named Edward Adcock was sued by his ex-wife in 2006 for back child support payments that were due from 1967 to 1982. His attorney turned to a provision of Virginia law added decades ago that treats all unpaid child support as judgments upon their due date. This law was passed to allow the collection of interest on support arrearages, as well as garnishments and other measures associated with judgments. His attorney then pointed out that Virginia Code Section 8.01-251 places a statute of limitations of 20 years on the collection of judgments, unless prior to the expiration of that period a court grants a motion ("for good cause shown") extending the period for another 20 years. Since Adcock's payments were all more than 20 years old - and his ex-wife had filed no motion for an extension - his attorney argued the case should be dismissed. The trial judge and Court of Appeals disagreed for reasons I won't get into here, but in 2011, the Virginia Supreme Court reversed and ruled that yes, that statute applies.
So, the short story is, the 20 year judgment statute of limitations now applies to child support arrearages. This has been a big change in Virginia child support law, and many attorneys are still catching up with it, but the statute is clearly there now.
Myth: I should represent myself in a child support case, since it's really a simple matter of plugging numbers into a formula.
Reality: Child support is unfortunately much more complicated than the guidelines would lead you to believe, and you are setting yourself up for a disaster if you go in without an attorney.
On its face, the existence of the child support guidelines would seem to indicate you don't really need an attorney to represent you - the guideline call for numbers to be plugged in, and that's it. But what if your ex is unemployed or underemployed intentionally, or just isn't making an effort to get a job - how do you plan to prove what he should be making? What if your ex is hiding income - how do you plan to prove it? What if your work-related child care varies each month - or your ex contests that you don't actually need it at all? Are you aware of the legal principles that apply to work-related child care?
The fact is, every single number that goes into the guidelines has potential grounds for dispute and legal principles behind how to calculate those numbers. On top of that, there are a whole list of reasons why the court can deviate from the child support guidelines, which may require further argument.
An attorney will be best equipped to handle all possible disputes that can arise in a child support context, and like any legal dispute, you're better off with an attorney than without one.
Myth: I also don't need an attorney for child support since I can get it done for free with DCSE.
Reality: If you just go through DCSE you could be in for a long wait and unreasonable results. An attorney can get you support faster, and more accurately.
DCSE is a bureaucracy. Don't get me wrong, it serves a very important function - especially for people who really cannot afford attorneys - but it suffers from the problems that most bureaucracies do. Those being that they are generally slow, inefficient, and often ineffective.
I send people to DCSE in one situation only - the non-custodial parent does not live in Virginia, and Virginia cannot claim personal jurisdiction over that person. In those cases, DCSE, while slow, is the best way to go because they can work with their counter-part in the state in which the non-custodial parent lives to get support set up with minimal hassle to the custodial parent.
If, however, the non-custodial parent lives in Virginia, or Virginia can claim jurisdiction over him, then I pretty much always say we should just go to court and get an order. Opening a case with DCSE can take time - I've seen it take as long as a year - but in court, you can get support to start the day you file (now, it won't actually start that day, but whenever support is ordered, either pendente lite or permanent, it can be made retroactive to the day you filed). Additionally, we can usually get a pendente lite hearing within a few weeks, so you can get at least an initial court order for support within a couple months of filing, and start collecting then. These are not timelines that DCSE can realistically provide for you.
Myth: I don't need an attorney because DCSE has filed for a child support modification on my behalf.
Reality: DCSE does not represent you, and will not engage in the kind of litigation preparation an attorney would.
It is not uncommon for someone to use an attorney to start child support, but then make the collection of that support a DCSE responsibility (a valuable option, since DCSE can get the support directly from the non-custodial parent's paycheck). In such cases, DCSE can also file with the court to amend the support order whenever an amendment appears warranted, but if either parent objects to the amendment, then a hearing has to be held.
In such cases, even if DCSE is seeking to increase the support, you really need your own attorney. DCSE usually does not conduct discovery, and usually is not in a position to prove voluntary under or unemployment. There is simply no way for the DCSE attorney to know the nuances of your case, and since DCSE represents itself, not you, it is unlikely you will be able to get an appointment with the DCSE attorney to discuss those nuances.
Even in DCSE cases, both parties are well advised to have an attorney for all the same reasons as they would be if DCSE was not involved.
Myth: I don't have to let my ex have visitation if he is behind on child support.
Reality: Child support orders and custody/visitation orders are unrelated - even if you had an agreed order entered that made the two related, that relation will be unenforceable. You can never withhold visitation due to non-payment of support, and you can never withhold support due to the other parent's failure to provide visitation.
I did an entire blog post on this one, so the best place to get the details is by reading that post.
Conclusion
These are not nearly all of the myths I encounter, but are by far the most common. If you are involved in a child support case and have heard any of the myths above, or have any other questions or concerns, talk to an attorney. You can set up a consultation with us by calling (703)281-0134 or by e-mailing me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
Introduction
Having practiced child support law for a few years now, I'm always amazed at the ideas clients have about child support when they walk in the door. When I dig deeper, I discover that some of these ideas have a good basis but have just been taken too far, while others are driven by the false claims of a desperate opponent. Regardless of the root cause, however, there are many myths floating out there about child support law, and I hope to address some of them today.
This blog post will take a "myth"/"reality" format. I will present a common child support myth I encounter, then I will present a 1-2 sentence summary of the reality. I will follow that up with a more detailed explanation, but if you're reading this post in a hurry, the key facts will be in those 1-2 sentence summaries.
Myth: If I make too much money and the non-custodial parent makes too little, I could end up paying him, so I shouldn't take the risk and seek child support.
Reality: There is no situation in which a custodial parent has to pay monthly child support to a non-custodial parent. In fact, there's a minimum amount the non-custodial parent must pay regardless of the parents' relative incomes.
This myth almost always comes from a non-custodial parent trying to intimidate a custodial parent, but it's just not true. Child support is owed by the non-custodial parent to the custodial parent, never the other way around. In fact, there is a minimum child support obligation of $68 per month, although the court can waive that in certain instances. There are, however, some important things to understand.
First, under child support law, "custodial parent" has a specific definition - a parent who has custody of the kid(s) for 276 or more days per year (a day generally being defined as a 24 hour period). If both parents have the kids for more than 90 days, you have what is called a "shared custody" arrangement for child support purposes, and then it is possible for the parent who has the kid(s) more to have to pay support to the parent who has the kid(s) less if the incomes are grossly disproportionate. That being said, the share of custody is a big factor in the shared custody guidelines - so it's still pretty unusual unless the number of days each parent has is pretty close to each other. You can see more details about how the child support guidelines work in my post here.
Second, if child support has previously been ordered and is being modified, the modification can be made retroactive to the date that the motion to modify was filed. This means if child support gets reduced, the custodial parent could owe an arrearage to the non-custodial parent to represent the retroactive application - but this is not a monthly support obligation, and once that amount is paid off, the non-custodial parent is still the one paying the support.
Myth: There is no statute of limitations to collecting back child support, so I don't need to hurry to get it done.
Reality: You must file an action to collect an arrearage, or get a motion to extend the limitations period granted, within 20 years from the missed payment you are seeking to collect.
First of all, we need to be clear what I am talking about. Child support in Virginia is inherently prospective. You can only collect child support from the date you file your petition forward. If you wait until the kid is 7 to file for child support, you can't then collect support for the kid's first 6 years of life. So, a statute of limitations is not applicable, since you cannot collect support from prior to when you file for it. What I am speaking of here is child support that has been ordered to be paid, but which the payor never actually paid.
This is a myth that actually has a good basis for it. Child support is part of family law, which is an "equitable" area of law (you can read more about common law cases vs. equity cases in my post about contract law here). As is typically the case with equity, there is no specific statute of limitations prescribed for child support arrearages. However, in most equity cases, there is a doctrine called "laches" which says you cannot file an equitable claim if you've waited an "unreasonable" amount of time and that delay has prejudiced the other party. Decades ago (in the 1960's), the Virginia Supreme Court ruled that decrees, including support orders, that have already vested (the payment order date has passed) cannot be altered by equitable doctrines - in other words, the doctrine of laches does not apply to collection of back child support under Virginia law.
So, for many years, we were in a situation where child support had no statute of limitations, and no doctrine of laches - meaning people could wait for decades to bring child support arrearage cases. Then a gentleman named Edward Adcock was sued by his ex-wife in 2006 for back child support payments that were due from 1967 to 1982. His attorney turned to a provision of Virginia law added decades ago that treats all unpaid child support as judgments upon their due date. This law was passed to allow the collection of interest on support arrearages, as well as garnishments and other measures associated with judgments. His attorney then pointed out that Virginia Code Section 8.01-251 places a statute of limitations of 20 years on the collection of judgments, unless prior to the expiration of that period a court grants a motion ("for good cause shown") extending the period for another 20 years. Since Adcock's payments were all more than 20 years old - and his ex-wife had filed no motion for an extension - his attorney argued the case should be dismissed. The trial judge and Court of Appeals disagreed for reasons I won't get into here, but in 2011, the Virginia Supreme Court reversed and ruled that yes, that statute applies.
So, the short story is, the 20 year judgment statute of limitations now applies to child support arrearages. This has been a big change in Virginia child support law, and many attorneys are still catching up with it, but the statute is clearly there now.
Myth: I should represent myself in a child support case, since it's really a simple matter of plugging numbers into a formula.
Reality: Child support is unfortunately much more complicated than the guidelines would lead you to believe, and you are setting yourself up for a disaster if you go in without an attorney.
On its face, the existence of the child support guidelines would seem to indicate you don't really need an attorney to represent you - the guideline call for numbers to be plugged in, and that's it. But what if your ex is unemployed or underemployed intentionally, or just isn't making an effort to get a job - how do you plan to prove what he should be making? What if your ex is hiding income - how do you plan to prove it? What if your work-related child care varies each month - or your ex contests that you don't actually need it at all? Are you aware of the legal principles that apply to work-related child care?
The fact is, every single number that goes into the guidelines has potential grounds for dispute and legal principles behind how to calculate those numbers. On top of that, there are a whole list of reasons why the court can deviate from the child support guidelines, which may require further argument.
An attorney will be best equipped to handle all possible disputes that can arise in a child support context, and like any legal dispute, you're better off with an attorney than without one.
Myth: I also don't need an attorney for child support since I can get it done for free with DCSE.
Reality: If you just go through DCSE you could be in for a long wait and unreasonable results. An attorney can get you support faster, and more accurately.
DCSE is a bureaucracy. Don't get me wrong, it serves a very important function - especially for people who really cannot afford attorneys - but it suffers from the problems that most bureaucracies do. Those being that they are generally slow, inefficient, and often ineffective.
I send people to DCSE in one situation only - the non-custodial parent does not live in Virginia, and Virginia cannot claim personal jurisdiction over that person. In those cases, DCSE, while slow, is the best way to go because they can work with their counter-part in the state in which the non-custodial parent lives to get support set up with minimal hassle to the custodial parent.
If, however, the non-custodial parent lives in Virginia, or Virginia can claim jurisdiction over him, then I pretty much always say we should just go to court and get an order. Opening a case with DCSE can take time - I've seen it take as long as a year - but in court, you can get support to start the day you file (now, it won't actually start that day, but whenever support is ordered, either pendente lite or permanent, it can be made retroactive to the day you filed). Additionally, we can usually get a pendente lite hearing within a few weeks, so you can get at least an initial court order for support within a couple months of filing, and start collecting then. These are not timelines that DCSE can realistically provide for you.
Myth: I don't need an attorney because DCSE has filed for a child support modification on my behalf.
Reality: DCSE does not represent you, and will not engage in the kind of litigation preparation an attorney would.
It is not uncommon for someone to use an attorney to start child support, but then make the collection of that support a DCSE responsibility (a valuable option, since DCSE can get the support directly from the non-custodial parent's paycheck). In such cases, DCSE can also file with the court to amend the support order whenever an amendment appears warranted, but if either parent objects to the amendment, then a hearing has to be held.
In such cases, even if DCSE is seeking to increase the support, you really need your own attorney. DCSE usually does not conduct discovery, and usually is not in a position to prove voluntary under or unemployment. There is simply no way for the DCSE attorney to know the nuances of your case, and since DCSE represents itself, not you, it is unlikely you will be able to get an appointment with the DCSE attorney to discuss those nuances.
Even in DCSE cases, both parties are well advised to have an attorney for all the same reasons as they would be if DCSE was not involved.
Myth: I don't have to let my ex have visitation if he is behind on child support.
Reality: Child support orders and custody/visitation orders are unrelated - even if you had an agreed order entered that made the two related, that relation will be unenforceable. You can never withhold visitation due to non-payment of support, and you can never withhold support due to the other parent's failure to provide visitation.
I did an entire blog post on this one, so the best place to get the details is by reading that post.
Conclusion
These are not nearly all of the myths I encounter, but are by far the most common. If you are involved in a child support case and have heard any of the myths above, or have any other questions or concerns, talk to an attorney. You can set up a consultation with us by calling (703)281-0134 or by e-mailing me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
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