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David George Thomas

David Thomas’s Answers

78 total


  • Contractor Deposit

    We have a signed contract with a client that held-up a remodeling project for 18 months. Twice we cleared blocks of time in our schedule, only to be delayed by him for personal reasons. Beyond substantial lost wages caused by those cancellations, ...

    David’s Answer

    It would be necessary to review the actual contract for someone to advise you properly (assuming it is in writing). If not, you would need to provide someone with all of the communications between the parties. The devil is in the details...

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  • What should i do?

    i pay my ex childsupport and my 17 y/o son lives with his girlfriends parents and their 2 y/o son. massachusetts~

    David’s Answer

    You will need to give more information and let all of those who may respond know whether or not you signed a separation agreement when you were divorced as, if so, that may very well answer your question. Otherwise, you likely need a lawyer to advise you whether there has been a change in circumstance to afford you a modification/reduction in child support.

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  • I am in the process of a divorce in Massachusetts. Both my husband and I live in MA, and my husband covers our health insurance

    My husbands company relocated to another state (CT), but has locations still in MA. He works from home, but reports to the office in CT. We were both under the impression that he would continue to cover my health insurance until one of us remarr...

    David’s Answer

    It depends whether the employer's plan is self insured or not. If the employer is self insured, the employer need not keep you on the health plan. If the employer is fully insured (i.e., not self insured), the employer likely must keep you on the plan. It is important to understand the status of the employer's health insurance who employed your husband at the time of your divorce. Note that I am not a matrimonial lawyer and I am just answering this based on personal experience (and finding out the hard way). Hopefully, a matrimonial lawyer on Avvo will respond - there are many good ones.

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  • What district court can be used in a small claims action?

    I damaged a parked car when driving a work vehicle that was behind on insurance payment. The insurance company for the parked car is taking small claims action against me to pay for the damages. However, I received paper work from a district cou...

    David’s Answer

    You may not be able to do so. Venue in District Court is governed by Mass. Gen. Laws ch. 223, Section 2, which provides:

    "Except as provided in section twenty-one of chapter two hundred and eighteen, a transitory action in a district court shall be brought in a court in the judicial district where one of the parties lives or has his usual place of business or in a court, the judicial district of which is adjacent to the judicial district where one of the parties lives or has his usual place of business or, if in connection with the commencement of such an action the approval of trustee process is sought, that action shall be brought in a court in the judicial district where one of the parties or any person alleged to be trustee lives or has a usual place of business, or in a court the judicial district of which adjoins the judicial district where one of the parties or one of the alleged trustees lives or has a usual place of business; provided, however, that an action may be brought in the municipal court of the city of Boston as provided in section fifty-four of chapter two hundred and eighteen.

    Said courts shall have jurisdiction of a transitory action against a defendant who is not an inhabitant of the commonwealth, if personal service or an effectual attachment of property is made within the commonwealth; and such action may be brought in any of said courts in the county where the service or attachment was made."

    You'll need to determine where the plaintiff lives or works. If venue is not appropriate in the court in which it is filed, you can move to dismiss the action based on improper venue. On a related note, why isn't your employer covering you for this if you were driving a work vehicle? Or is the work vehicle for your own business?

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  • What impact does dissolving a company have on debt?

    I closed my company 1-1/2 years ago; had no more work, and no more income, and let it die a "natural death" However, I am still cleaning up debt. If I file paperwork to Dissolve the corporation what impact will it have on those trying to collect...

    David’s Answer

    If you had a corporation and you are dealing with corporate debt, your creditors should not be collecting from you personally unless you signed something, like a guaranty, in your personal capacity or did not maintain the corporate separateness of the corporation and your personal affairs. Administratively dissolving the corporation will not thwart creditors in bringing claims against the corporation. Nevertheless, if the entity does not have any assets, it may very well be judgment proof.

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  • Squatters are in my friends supposed foreclosure home, can she shut off water? She is scared of him.

    She left her drug addited husband and her foreclosure home 1 1/2 years ago. He was suppose to move out and didn't, instead he rented her home out and the house is not even in his name. When she found out about this 9 months after leaving she tol...

    David’s Answer

    If there is no equity in the home, she may consider deeding the house back to the bank in lieu of foreclosure and letting the bank deal with it - if the bank even wants that headache. Alternatively, if there is equity, she should file a summary process action to evict the current squatters. This can be done relatively quickly as the summary process rules have specific timelines that govern eviction.

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  • Can a judge take my name off my home due to a default/judgement on a credit card.

    I got the date wrong and showed up 1 day after the trail date. My lawyers name was also on the "answer" he did not show up either. I am so scared I am going to loose my home. Please advise.

    David’s Answer

    You will need to provide more information, but it is very doubtful that a judge will take your home from you for defaulting. There is an automatic homestead exemption in Massachusetts that protects your home up to a certain amount. What court are you in? How much was the judgment? Why did your lawyer not show? Have you moved to set aside the default? Can you pay the judgment or negotiate something with the opposing party?

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  • In order to make the other side pay your attorney fees does your attorney need to file an offer of judgment?

    And when typically does it need to be filed by?

    David’s Answer

    Most states follow what is called the "American Rule" for payment of attorneys' fees. The American rule provides that each party is responsible for paying its own fees unless specific authority is granted by statute or contract to shift those fees to the other party. Under the American rule, every party – even the party prevailing – must pay its own attorneys' fees. The American rule contrasts with the English rule, under which the losing party pays the prevailing party's attorneys' fees.

    That being stated, there are various statutes that afford fees shifting. For example, many state consumer protection or unfair business statutes (or payment of wage statutes) afford a prevailing party the ability to recover attorneys fees. So too do many federal statutes. Also, may contracts have fee shifting provisions.

    You refer to an offer a judgment. If you are referring to a Fed. R. Civ. P. 68 offer of judgment or similar state rule, an offer of judgment will not allow you to recover for attorneys' fees. Rule 68 allows a party to submit such an offer and, if it is not accepted and the party that received the offer does not recover an amount more favorable than the offer at trial, then the offering party may recover its costs of litigation (incurred after the offer was not accepted) from the opposing party (even if the opposing party prevails). Costs, however, do not include attorneys' fees (at least they did not when I last researched the issue a few years ago). In any event, if you are in federal court or in a state court that has a rule similar to Fed. R. Civ. 37, don't forget that Rule 37 allows for a party to recover its attorneys' fees if the opposing party fails to admit the true of valid Requests for Admissions under Rule 36 and you later have to prove that the admissions were true - so remember to send out targeted Requests for Admissions early in your case to set up that argument if you prevail. Good luck.

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  • If an employee receives a bonus, can an employer require a percentage be returned to it even though there is no signed contract?

    The employee received this bonus. Taxes are already taken out. The salesmen have signed a contract stating if a company gets special pricing they will pay if back. However, the employee I am talking about is behind the scenes woking w/the compa...

    David’s Answer

    Just note that the Massachusetts Wage Act does allow an employer to take a valid offset from wages under certain circumstances. Generally, offsets need to be agreed to in writing, which appears not to be the case in your situation. You should consult with an employment lawyer on these issues as the devil is in the details.

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  • Any advise on fighting a ticket on the mass pike?

    Pulled over, clocked with radar. Heard that they can sometimes be inaccurate. Also heard that you can ask for drivers ed time in place of ticket. Can u do that in mass? Any advise on fighting it? Should i get a discovery?

    David’s Answer

    I do not believe you are entitled to discovery; however, you do have a right to challenge the ticket if you believe it was issued in error. The process should be on the back of the ticket.
    Sometimes, officers may not show up at the hearing, which will be helpful; however, if the officer shows or there is an officer there in his or her place, you do get to cross examine the officer and present your case. There are lawyers in Massachusetts that specialize in this and online sources on how to approach the hearing if you do not proceed with a lawyer.

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