Profound Legal Questions, Part Two

Is it legal to kill zombies (and other related questions)?

Profound Legal Questions, Part 1

What rights do unemployed aliens (from another planet) have on earth?

Law as a Means to an End

Sometimes the point of using a lawyer or the legal process itself isn't to avail yourself of the specific remedies it offers. Sometimes, you can make a different point or accomplish a different goal.

The best example I can think of is a foreclosure. People get behind on their mortgages because they can't pay, or because they don't like the terms of their loan. They will get into foreclosure, wait, and tap dance their way around the legal process for a year or more until they think it's the right time. Then, bang, they get themselves a loan modification, reducing their interest or even their principal because the banks would rather have a lower-profit paying customer than a big fat loss (the home) they have to sell.

Remember that sometimes it's more obvious than others, but the law is always a means to an end. You only use it as far as it benefits you in some way- to recover what you've lost, or maybe to protect what you already have.

Judgments: Docketing Them

If you or a Court Officer cannot collect the money due you on the judgment, you may have the judgment from the Special Civil Part recorded in the Superior Court Clerk's Office in Trenton. Once your judgment is recorded in the Superior Court, the debtor cannot sell with clear title any real estate owned in New Jersey until your debt is paid.

Also, docketed judgments are terrible for a person's credit, and if they try to get loans of any sort they will have a difficult time once the bank or other lender sees that judgment on the credit report.

Judgments: Discovery Orders

Here are a few bonus posts about judgments and what you can do to get your money:

Another approach for seeking information about a debtor's assets is to file with the court a petition stating the amount due on the judgment. The court issues an order requiring the debtor or any person who has information about the debtor's assets to answer questions concerning these assets at a place and time specified in the court order. A person may be required to appear only once without another court order.

You may serve a copy of the order for discovery upon the debtor or other person either personally or by registered or certified mail, return receipt requested and simultaneously by regular mail at least 10 days before the appearance date.

If the debtor or person named in the court order does not comply with the court order and fails to appear at the specified time and place to provide information about the debtor's assets, he or she is subject to contempt sanctions enforceable by the court.

Getting a Judgment: Make Them Tell You!

If you do not know where the judgment debtor has a savings or checking account, what personal property the debtor owns, or where the debtor works, you may obtain an information subpoena from the Office of the Special Civil Part Clerk. An information subpoena is a court paper containing questions about the debtor's assets.

You may serve an original and one copy of an information subpoena upon the debtor either personally or by registered and certified mail, return receipt requested, and simultaneously by regular mail. You also must provide a postage paid, addressed envelope with the information subpoena. The debtor must answer and return the information subpoena within 14 days from the date on which it was served. An information subpoena cannot be served more than once in a six month period without approval of the court. If the debtor does not answer the information subpoena, he or she is subject to contempt sanctions enforceable by the court.

Getting a Judgment: Take a Cut of Their Wages!

An execution against a person's wages can be requested if the debtor works in New Jersey and earns more than $127.50 per week. To request a wage execution, you must send a Notice of Application for Wage Execution to the debtor by regular and certified mail. A copy of the application and a statement of how you mailed the application to the debtor must be filed with the Office of the Clerk of the Special Civil Part.

If the debtor objects to the wage execution, a hearing will be scheduled by the court. If the debtor does not object or the court does not allow the objection, an order for a wage execution will be issued and the wage execution will be delivered to the debtor's employer by the Court Officer. The employer will hold back a portion of the debtor's pay, in accordance with the Order for Wage Execution and will send this money to the Court Officer who will then send it to you.

This is a nice way to get the money, a little at a time.

Getting a Judgment: Grab Their Money!

If you know or can find out where the debtor has a savings or checking account in New Jersey, you may ask that a Court Officer collect your judgment from the money in the account. You must provide the number of the bank, the address and the account number, if possible. Court Officers cannot search for bank accounts.

After the Court Officer gets the money, you have to file a Motion to Turn Over Funds, and if the court grants it, you will get the money from the bank account.

Judgments: Sell Their Stuff!

An execution on goods and chattels (i.e. stuff) lets the court try to collect the money owed on a judgment from the debtors bank account or personal property. If your adversary owns real estate, you can try and collect from that as long as you are owed more than about $15,000.00. You must locate and identify the debtor's personal property that can be used to satisfy your judgment. You may, for example, ask that a Court Officer try to sell personal items such as office equipment, etc., at a public sale. The debtor may keep $1,000.00 worth of personal property.

If the debtor does not have $1,000.00 in personal property, this method cannot be used to satisfy your judgment and to collect the money owed you.

If you want to seize a motor vehicle, you have to be able to prove that the vehicle belongs to them by getting a certified copy of the title and a certified lien search from the New Jersey Division of Motor Vehicles.

5 Things To Know About: Enforcing a Money Judgment

All right, you won the case: now what? This week brings 5 things you probably didn't know about collecting a judgment.

First, it's a pain in the neck, and if you have a lawyer do it you'll end up paying probably at least a third of your judgment in their fee, plus the costs of enforcing the judgment. Most of the time, though, lawyers who do this sort of work will not charge you their fee until they receive money from the person that owes you.

If money is owed you because you have been awarded a judgment in the Special Civil Part, you are a judgment creditor. You should contact the person who owes you the money (the judgment debtor) to discuss payment. Payments sometimes are made on the day of the court hearing or over time. If you do not receive money that is owed you, there are several ways the court can help you collect it.

Although the court will try to help you collect the money owed you, it cannot guarantee your debt will be paid. The forms for the different methods of collection outlined below are available from the Office of the Special Civil Clerk.

5 Things to Expect or Do during a NJ Small Claims Trial (#5 of 5)

5. The Judge cannot extract money from the other side

The best you can hope for in a case is a judgment. A judgment is a helpful piece of paper because it can be used to leverage money out of someone, and theoretically it entitles you to collect a certain amount of money from other people. However, in its true form it is merely a piece of paper, and you will need to go through separate legal proceedings in order to collect on the judgment. Happy as you may be that you got a judgment (if you are a Plaintiff; if you are a Defendant you hope for a dismissal, and hope that the judge does not order a judgment against you), the process is not nearly over yet.

5 Things to Expect or Do during a NJ Small Claims Trial (#4 of 5)

4. Bring Witnesses

If other people can lend credence to your case, or they saw what happened in your case (like, for example, passengers in a car during an accident), bring them. Don't have them write letters or sign anything, and then stay home. The other side has a right to cross-examine your witnesses, and if they don't get to exercise that right then your witness will not be heard.

5 Things to Expect or Do during a NJ Small Claims Trial (#3 of 5)

3. Paper is overrated

The rules of evidence are a technical and legalistic mishmash of procedures designed to make sure that the judge can rely on documents and testimony that are reliable. However, without formal legal training (heck, with formal legal training) sometimes these rules are hard to understand or apply. One of the rules is that documents can sometimes be inadmissible in court.

It's always better to have the documents than not to have them, but it's always better to have your own testimony, corroborated by other people's testimony, to back the documents up and give them the proper context.

5 Things to Expect or Do during a NJ Small Claims Trial (#2 of 5)

2. Make Sure You Bring Your Proofs

You will want to make sure that whether you are a Plaintiff or a Defendant, you have your proofs in hand and ready for the judge. You want to make sure that you can tell a story and that all of the pieces fit together and make sense. The judge is more inclined to believe you if you can do that.

5 Things to Expect or Do during a NJ Small Claims Trial (#1 of 5)

1. The Plaintiff usually loses.

The Plaintiff has the burden of proof in a lawsuit. That means that the Plaintiff has to prove the things he is alleging, rather than having the Defendant prove that they aren't true. If the Plaintiff can't prove their case, the judge will dismiss it.

Trying to Hammer Out Your Differences Before Trial

If your adversary is there, your case will most likely go to mediation. Someone from the court (a mediator, probably a judge's law clerk or other volunteer) will help you work out your case and see if you can come to an agreement short of going to trial. If you can, the case will end there- if not the case will go to trial. It might go to trial on that day, or you might have to come back again on another day.

What if your adversary doesn't show?

If your adversary is not there, your case will probably end right there. If you are a plaintiff, you will be able to get a default (other party didn't appear), and the clerk will tell you how you must proceed in order to get something called a default judgment (court has now ruled in your favor).

It sounds strange that the process is two steps, but it's meant to protect the defendant who does not appear but gets themselves figured out quickly. It's also meant to make you prove your case to a judge before you get a judgment, which is a public record and can have severe effects on a person's credit.

A judgment is a document that says that someone owes you money. That's all it does. You will actually have to collect on the judgment yourself, which is a whole other topic for another day. It's not simple, and requires a fair amount of paperwork.

NJ Small Claims- That little postcard? Read it Carefully!

You will receive a postcard telling you the day and time you should appear. You should take them seriously, because otherwise you will have to file a motion or start your case all over again. On the morning that you are called to court, you will sit in a courtroom with quite a few other people and wait for your case to be called off the calendar.

New Jersey Small Claims Court: A Primer, Part One

A few practical tips about small claims days in New Jersey:

First, expect to wait. A lot. Don't park your car in a metered space. Don't make a 2pm appointment with the hairdresser or schedule a pickup basketball game in the afternoon.

Secondly, expect the courtroom to be crowded. They call sometimes a hundred or more of these cases in a single day, because most of them don't go to trial for various reasons.

Finally, if you're a defendant, bring your checkbook. One of the main reasons that cases don't go to trial is that they are settled on the day of trial. That process is a lot easier when the defendant is able to pay something toward the settlement of their case that day, rather than waiting 7-10 days or more for a check to arrive in the mail.

Fraud Damages Must Be Proven

(5) resulting harm.

As with most torts, damages must be proven as an element. The courts will not simply award damages because of conduct because the court is designed to make people "whole" or as close to that as possible given that money is a bad substitute for most damages. The courts do not normally punish people- they leave that to law enforcement (another branch of government).