Article for October 2003: Don't Even Think About It!
While it has been awhile since I posted an
article, some things happened during the hiatus that I thought merits some
general discussion. First situation: Someone came to my office with one of those
common problems that we come across on occasion. He had a girlfriend who
had a business that wasn't doing very well so he decided to help her out.
I have also heard of women who tried to help boyfriends or husbands who tried to
help their wives or vice versa. It really doesn't matter who is helping who.
In this case the woman was sued by several former employees for back wages. It
seems that she owned a meat market that wasn't doing very well and her
boyfriend tried to help her out by volunteering to manage the store once in a
while. In any event, when the store went under and the former employees sued for
wages they named the boyfriend as a defendant. He was served with process and
was upset. Instead of seeing an attorney, he gave his girlfriend the papers with
a directive to "straighten out her mess."
With that being
done, he gave it no further thought, until the judgment came in against him for
over $40,000.00. Then he decided to spring into action and filed a timely notice
of appeal. After all it wasn't his business. He quickly discovered to his
chagrin, that in order to appeal the case he had to post the entire judgment
with an appeal bond. The bond would be used to pay off the judgment if he lost.
Bottom line - he doesn't have $40,000.00 or property worth $40,000.00 to put up
as collateral. What can he do now? Not much.
What do we learn
from that case? Never ever depend on someone else to take care of something that
pertains to you. Period, no exceptions. Take care of it right away and do
it yourself. Even if you think that it has nothing to do with you. His failure
to appear and contest the case resulted in a default judgment being taken
against him. Something that probably wouldn't have happened if he had shown up
to Court in person. He could have probably taken care of the entire matter in a
couple of hours.
You are probably
wondering "Why is this a problem? Can't he just tell the Judge that he
made a mistake? Surely the Judge would see that he is innocent."
Right? Wrong again. In order to correct this problem you must file an appeal. In
order to do that you must file an appeal bond for the entire amount. In this
case $40,000.00. People in the bonding business call it a totally collateralized
bond. Which means if you lose the appeal, the money is immediately paid to the
Plaintiffs. It's a crap shoot. If he wins, he walks away a free man, if he
loses, the money is gone. Of course he could appeal again, but that would
require a new bond.
He has one other
option and that is to file for bankruptcy. That will discharge the debt without
regard to how it was incurred. The down side is that his credit will take a
significant hit for seven years. If he wants to buy a house, he will have
difficulty. If he wants to buy a car or get a credit card, this is going to
cause him problems for years. He will also have the stigma of having filed
bankruptcy attached forever. All because he didn't take a Summons seriously.
The entire problem is one hundred percent avoidable.
You might ask
yourself why didn't he just keep fighting? The reason is simple. While the
amount of the judgment was significant. the costs of defending it would
eventually far exceed the judgment. You might ask couldn't he just sue the
Plaintiffs or his girlfriend? The answer is "Sure he could."
He just wouldn't collect because everyone but him was broke. In this
scenario he was the "Deep Pocket," and he didn't protect
himself very well. Relative to the others, he was rich.
He is having a
great deal of trouble accepting the fact that he made such a terrible mistake. I
really don't blame him. On the surface it seemed so simple and it would have
been had he taken care of business in the beginning, but he didn't, and now he
is paying the price. Once again the sweetness of not hiring a lawyer to
help you is offset by the sourness of the outcome. Don't be like
him, always take a court summons seriously and protect yourself.
Second, primarily
has to do with family law. However this could conceivably apply in other
situations as well. When you go to Court leave your lovers, boyfriends and
girlfriends at home. If you are a party to a family law case such as a divorce,
showing up to court with your girl or boyfriend will "NOT" help your cause. It
makes you look slutty and cheap. Trying to pass them off as an employer, old
friend, neighbor or other "friend" won't work either.
Especially when they feel inclined to interject themselves into the proceedings
to "help you."
There is an old
saying that goes "It is better to be thought of as a fool, than to open
ones mouth and remove all doubt." There is nothing like raging
hormones to make the situation worse. Boyfriend lets his testosterone get in the
road and either gets into an altercation with the attorney or the other party.
Either way it's clearly no good. In the case I am thinking of, the Bailiff
referred to the boyfriend as "Bachelor Number Two." He
saw it for what it was; sleazy. The judge and the clerk also
overheard the boyfriend too. In case you are wondering what the boyfriend was
upset about, it was because the judge granted the father visitation with his
child.
You don't have to
be a Rhoades scholar to figure out that the Judge and the Court personal
are going to discuss this incident and the judge will probably make either a
written or mental note about the woman. When it comes time to decide the
case, this will hurt her case. She alleged that the father was abusive and hurt
the child. When in reality she was only using this as a ploy to try and gain an
advantage over her husband in the divorce case. She didn't have to do this. If
she wanted to divorce him, she should have just left and done it.
She knew that if
she did that and showed up with a new boyfriend, no one would feel sorry for
her. So she wrongfully tried to make my client look bad merely to cover up her
bad behavior. It was obvious that she had been carrying on behind my client's
back while they were married and she was trying to cover it up. This may cause
some of you to ask "Hey wait a minute, isn't California a no fault
state?" The answer is "yes it is." On
the issue of getting a divorce, fault is not an issue. However, fault can be
an issue in custody and visitation proceedings. Surprise.
Her behavior also bears on her
credibility as a witness at any hearing concerning her allegations of abuse. If
the Court feels that they need more information and the judge orders a E.C. § 730 evaluation, this behavior will be examined in detail.
Moreover, since the mom and the child are living with the boyfriend
"and his wife" the Court may entertain a motion to change custody
based on the boyfriends behavior and the impact it may have on the child. This
could possibly be rectified if the mom moves out on her own.
Personally I think
that this kind of behavior is not only sleazy, it is detrimental to the child.
You may not see it, but your children love both parents. They do not view your
new paramour the way you do. They usually have very negative feeling for this
person, because they miss their missing parent and the family unit. They also
view this person as the one who destroyed their family. I won't even mention
that he is also cheating on his own wife and shortchanging his children to be
with her. And I will never understand why someone wants to be with someone who
has demonstrated a willingness to commit infidelity. Do you really think that
either of you won't do it again? If you do, quit kidding yourself.
While either of
these situations had the potential for a favorable outcome, the odds were
clearly against that happening. When it comes to your life, liberty or
money, you should never play Russian Roulette with the outcome. It always pays
to be proactive and conservative. Never bet against the odds and common sense.
If you do most of the time you will lose. Despite what you may think to
the contrary, that is the reality. Don't let yourself be a fool.
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