Answer voided by court ...

[cal328]

Question for the pros.

I was recently sued by my HOA here in Calif (not a cc case but I assume procedure is same??). Anyway I submitted a timely answer and with it requested a fee waiver (double fees cuz both my wife & I are on title). Court denied waiver and gave me 10 days to pay up or request a hearing on the matter.

In the meantime i contacted plaintiff atty and made them aware of several violations that they - and the HOA - have made during the collection process. Long story short the atty agreed in writing to extend my filing deadline til May 1st, they also allowed me to audiotape them saying same. They're now sending me a new demand and asked me to reply with an offer or payment plan and they'll present it to the board of directors.

So the 10 days to pay fees or request hearing expires and court voids my answer, which the atty said they would do.

My question is, if the BOD rejects my offer/pmt plan and I do have to refile my answer, must it be the same answer that was previously filed or can I file an entirely new answer with different affirmative defenses etc?

Thanks

[1stStep]

You may be able to file a new answer...

[skippy1960]

As 1st Step said, same answer or you may amend to make changes. The court see's it as no answer until the fee's are paid.

If you have to refile the answer of some type it will need to pay the fee's to file the answer. If not your adversary will be able to file for default judgment.

[cal328]

Thanks guys, i'll likely amend a bit. Yep, figured i might be waiving my right to the fee hearing if I let the judge's 10 day deadline expire. Oh well, was a gamble on my part hoping the BOD will accept the payment plan, if not that $450 will go to the court and we start duking it out in court. I have valid counterclaims for violations so it wont be a true david vs Goliath battle.

The atty needs to get moving though as I still haven't received the demand

[Seadragon]

You need to pay that fee ASAP. The court denied the fee waiver. The attorneys know you are gonna default and stringing you along.

I repeat you need to pay the fee ASAP OR YOU LOSE.

I bet you have a good answer to. payday advance or pawnshop or gold buyers are a valid option.

Not being harsh but time is running out.

[cal328]

You need to pay that fee ASAP. The court denied the fee waiver. The attorneys know you are gonna default and stringing you along.

I repeat you need to pay the fee ASAP OR YOU LOSE.

I bet you have a good answer to. payday advance or pawnshop or gold buyers are a valid option.

Not being harsh but time is running out.

Just to be clear ... I have until May 1st to pay fee right???

Plaintiff atty agreed in writing to extend my time to answer. I did ask atty if this was an attempt to slide in a default judgement and her reply was "I'd be awful stupid to go for a default judgement knowing you could come back and give the judge written & audio evidence that I agreed to extend your filing deadline".

Doesn't that make sense to you seadragon, May 1st?

I can pay the filing fee but I'd rather save it for a payment plan ... help to ensure I stay on track.

[BTO429]

the question is, did the Plaintiff's attorney or you file this decision with the court?

while parties to a suit can agree on terms outside of court, the court has to be informed of such decisions.

I would also argue as to whether or not the judge will like the fact that an attorney over ruled his decision and extended you more time.

Some more advice, NEVER EVER TRUST THE OPPOSING PARTY TO FILE REQUIRED PAPER WORK WITH THE COURT ON YOUR BEHALF.

[BTO429]

What evidence did you provide to the court for the judge to make a decision on the fee waiver?

[usagi555]

Some more advice, NEVER EVER TRUST THE OPPOSING PARTY.

Sorry Gunny, I had to remove the end of your sentence.

[BTO429]

I see where you are going by removing the last portion.

But I said it that way to reference filing court docs and papers, but yea never trust the opposing party for anything.

[usagi555]

I see where you are going by removing the last portion.

But I said it that way to reference filing court docs and papers, but yea never trust the opposing party for anything.

On top of that, HOAs are only slightly above CAs and JDBs in my eyes, with some actually being just as bad if not worse. At least a JDB will only garnish your wages or seize your bank account. As is evident here, some HOAs will take your house over what is a comparatively trivial debt. I wouldn't trust them or their pickle kisser attorney one bit for anything if I were in OPs shoes, not after them proving how far they are willing to go.

Edited April 11, 2012 by usagi555

[cal328]

the question is, did the Plaintiff's attorney or you file this decision with the court?

while parties to a suit can agree on terms outside of court, the court has to be informed of such decisions.

I would also argue as to whether or not the judge will like the fact that an attorney over ruled his decision and extended you more time.

No, nothing was filed with the court. I was planning on filing the written agreement with my new answer & fees (if the BOD didn't accept my pmt plan)

What evidence did you provide to the court for the judge to make a decision on the fee waiver?

Just the income form that is part of the fee waiver request. Between my wife & I I'm sure the judge felt we made too much money. You have 10 days after his ruling to either pay fees or request a hearing to better explain the situation to the judge. I was in that 10 day window when the atty agreed to extend filing deadline.

Just found this in rules of court:

2012 California Rules of Court

Rule 3.110. Time for service of complaint, cross-complaint, and response

(d) Timing of responsive pleadings

The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.

Seems to indicate any agreement made outside the court can only be for 15 days!

Edited April 11, 2012 by cal328

[usagi555]

2012 California Rules of Court

Rule 3.110. Time for service of complaint, cross-complaint, and response

(d) Timing of responsive pleadings

The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.

Seems to indicate any agreement made outside the court can only be for 15 days!

And if the attorney's agreement stated more than 15 days, and the attorney is a SCODB, you may have to worry about a default judgment once that 15 day mark is up. Of course, you could make all kinds of trouble for the attorney for pulling that kind of crap, but I wouldn't trust him even with that.

[admin]

I'd follow all the advice you were given to pay your fees ASAP. You can't afford to wait.

[cal328]

2012 California Rules of Court

Rule 3.110. Time for service of complaint, cross-complaint, and response

(a) Application

This rule applies to the service of pleadings in civil cases except for collections cases under rule 3.740(a), unlawful detainer actions, proceedings under the Family Code, and other proceedings for which different service requirements are prescribed by law.

( Service of complaint

The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.

© Service of cross-complaint

A cross-complaint against a party who has appeared in the action must be accompanied by proof of service of the cross-complaint at the time it is filed. If the cross-complaint adds new parties, the cross-complaint must be served on all parties and proofs of service on the new parties must be filed within 30 days of the filing of the cross-complaint.

(d) Timing of responsive pleadings

The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.

(e) Modification of timing; application for order extending time

The court, on its own motion or on the application of a party, may extend or otherwise modify the times provided in (-(d). An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed.

(f) Failure to serve

If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.

(g) Request for entry of default

If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.

(h) Default judgment

When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.

(i) Order to show cause

Responsive papers to an order to show cause issued under this rule must be filed and served at least 5 calendar days before the hearing.

Per (g) It seems the atty would have 10 days after my filing deadline expires to enter a default judgement. Today is the 10th day

[whattodocacourt]

2012 California Rules of Court

Rule 3.110. Time for service of complaint, cross-complaint, and response

(a) Application

This rule applies to the service of pleadings in civil cases except for collections cases under rule 3.740(a), unlawful detainer actions, proceedings under the Family Code, and other proceedings for which different service requirements are prescribed by law.

( Service of complaint

The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.

© Service of cross-complaint

A cross-complaint against a party who has appeared in the action must be accompanied by proof of service of the cross-complaint at the time it is filed. If the cross-complaint adds new parties, the cross-complaint must be served on all parties and proofs of service on the new parties must be filed within 30 days of the filing of the cross-complaint.

(d) Timing of responsive pleadings

The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.

(e) Modification of timing; application for order extending time

The court, on its own motion or on the application of a party, may extend or otherwise modify the times provided in (-(d). An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed.

(f) Failure to serve

If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.

(g) Request for entry of default

If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.

(h) Default judgment

When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.

(i) Order to show cause

Responsive papers to an order to show cause issued under this rule must be filed and served at least 5 calendar days before the hearing.

Per (g) It seems the atty would have 10 days after my filing deadline expires to enter a default judgement. Today is the 10th day

Today is the 10th day? What date is your fee waiver hearing? My Fee Waiver was also denied in a CA Court in January, I went to court with a whole bunch of financial docs that I knew they didnt have time to thumb through all, and they approved it!! Take a chance, all the judge can say is no or yes. No Sweat.

[cal328]

Today is the 10th day? What date is your fee waiver hearing? My Fee Waiver was also denied in a CA Court in January, I went to court with a whole bunch of financial docs that I knew they didnt have time to thumb through all, and they approved it!! Take a chance, all the judge can say is no or yes. No Sweat.

That's exactly what i was planning to do. Monday Apr 2nd was my 10 day deadline to request a hearing on fee waiver and I was parked outside the court that day w/court forms in hand when i called hoa atty.

I reiterated my desire to not bring counterclaims against the hoa but if she didn't dismiss case I'd have no choice but to walk into court today, pay my $450 filing fees and proceed. (it's a long story but basically it's the hoa property manager who's withheld material info from both the board & I and also violated law during the collection process. HOA atty has violated law as well. BOD made decision to lien and later to foreclose based on what prop mgr was telling them ... and prop mgr hates me). Anyway atty agreed to extend my deadline to May 1st and said she'd immed email her statement. I raced home, saw her email and called her to record her stating same. At that point i decided to let pass the deadline to request a hearing on fee waiver.

When I said today is the 10th day i was refering to the deadline for hoa atty to enter a def judgement if they were going to act as if i missed my April 2nd deadline to answer. And actually the 10th day would be tomorrow

Edited April 11, 2012 by cal328

[whattodocacourt]

That's exactly what i was planning to do. Monday Apr 2nd was my 10 day deadline to request a hearing on fee waiver and I was parked outside the court that day w/court forms in hand when i called hoa atty.

I reiterated my desire to not bring counterclaims against the hoa but if she didn't dismiss case I'd have no choice but to walk into court today, pay my $450 filing fees and proceed. (it's a long story but basically it's the hoa property manager who's withheld material info from both the board & I and also violated law during the collection process. HOA atty has violated law as well. BOD made decision to lien and later to foreclose based on what prop mgr was telling them ... and prop mgr hates me). Anyway atty agreed to extend my deadline to May 1st and said she'd immed email her statement. I raced home, saw her email and called her to record her stating same. At that point i decided to let pass the deadline to request a hearing on fee waiver.

When I said today is the 10th day i was refering to the deadline for hoa atty to enter a def judgement if they were going to act as if i missed my April 2nd deadline to answer. And actually the 10th day would be tomorrow

Good Luck with that! I wouldn't trust them.

[Seadragon]

I would be willing to bet that the attorney has already faxed a default to the court. The answer is the most important thing of any lawsuit.

I hope it works out for you.

If I were in the same situation and my dwelling was on the line I would definetly make sure they did not get a default.

In the world of lawsuits fence sitters usually get handled pretty harshly, the time for indecisiveness has well passed. Trusting the attorney even with a recording doesn't make it legal. sure as they get the default , and you trot out the recording and all, the attorney is gonna say"well I thought I could do that you mean we are not allowed to,oops my bad."

I hope it works out in your favor I really do. One final plea from me to help save your case... Pay the fee or get the waiver, you have a chance to win and it could slip away, Please.