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David J. Abeshouse

David Abeshouse’s Answers

26 total

  • Where can I find a lawyer that can help with my car that got wrongfully towed?

    my car got wrongfully towed by a towing company illegally. my car is drivable and they towed it anyway. I am already suing the company, and am waiting for the court date. I just need an attorney to represent me on this day.

    David’s Answer

    Actually, Avvo might be an excellent place to search for such an attorney in your local area. You can search Avvo by geography and legal practice area. For specifics, you can see Avvo's FAQ/help sections. And of course there are other lawyer search sites on the web as well, including martindale.com, justia, etc.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for educational purposes only, and no attorney-client relationship has been formed. As they say, "Your Mileage May Vary." Best of luck.

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  • Can I go to small claims court if there is outright fraud in an investment when there is an arbitration clause in the contract?

    I invested in a business and there is an arbitration clause in the contract. the exact clause states: .13. Any claim or controversy that arises out of or relates to this agreement, or the breach of it, shall be settled by arbitration in accordanc...

    David’s Answer

    There is considerable case law on this issue, and it all comes out essentially in favor of the matter proceeding before arbitration, rather than in court. You may end up being better off in arbitration than in court anyway, for a variety of reasons too involved to explain here. Bottom line: Don't have a knee-jerk negative reaction to arbitration, and don't waste time, money, and effort fighting a losing battle to get into court, when the case clearly belongs in arbitration.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for educational purposes only, and no attorney-client relationship has been formed. As they say, "Your Mileage May Vary." Best of luck.

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  • Can RE Broker sue client if house gets full price offer but doesn't sell - says fault is the sellers. Total time on MLS, 3 days.

    Home seller list family home with broker 5% commission. Broker says can cancel anytime. House gets full price offer ($385,000) 1st day on market. But deal goes bad 3 days. Seller wants house off market says broker has not lived up to fiducia...

    David’s Answer

    I'd need a clearer statement of the facts to be able to answer more specifically. However, as a general principle, in most states, the touchstone inquiry is whether the broker was the "procuring cause" of a sale or prospective sale. In other words, the broker's job is to obtain for the seller a buyer who is ready, willing, and able to purchase the property at the agreed price. If any element is missing, the broker should not prevail. It does not matter how long the broker had the property listed. And if the seller indeed has sabotaged the deal, that is not a legitimate way to avoid liability for the commission.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for educational purposes only, and no attorney-client relationship has been formed. As they say, "Your Mileage May Vary." Best of luck.

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  • I am seeking a litigation attorney in King County, to sue a very large entity for punitive damages. Any reccommendations?

    This is not going to be an action for the fainthearted, and I need an agressive, moral, dedicated, loyal attorney to take on the big guys.

    David’s Answer

    • Selected as best answer

    I'd add to the previous answer that punitive damages are awardable only in certain types of legal actions, and may not be possible in other kinds of cases. So rather than presenting your case in terms of "punitive damages" which may be irrelevant to the case, you'll be more likely to be taken seriously by lawyers, and more likely to find a suitable lawyer, if you describe the case in terms of its substantive facts (not conclusions), and the kinds of areas of law practice that may be involved (e.g., real estate, constitutional law, business tort, specific statutory law, etc.).
    Please note that I practice law only in NY. As they say, "Your mileage may vary." Best of luck.

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  • Sending copies of all actual documents to plaintiff BEFORE trial?

    Hello, I am involved in a small claims case in the state of Florida, Marion County. After Pre-Trial I received paperwork, but it was confusing, it stated I must provide a list of my witnesses and all evidence within 14 days - Must I provide BEFORE...

    David’s Answer

    In addition to what Tami (who is a Florida lawyer) has said above, I'd add only that it's often a good idea to check with the clerks of the local small claims courts if you have any procedural questions. Of course, it's the luck of the draw as to whether you'll get one on the phone who's willing to be helpful, but it's worth a call or two to try to find out, because particularly in small claims court, there may be local practices and procedures that vary from one county to the next, and it's best to check with the folks who either will accept the papers you file, or will "bounce" them back to you. And on occasion, they may even give you other helpful hints if you speak nicely and respectfully to them.
    Please note that I practice law only in NY. As they say, "Your mileage may vary." Best of luck.

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  • Can defendants countersue in small claims court for attorney fees? If so, on what grounds if original claims are false?

    Plaintiff claims fraud on real estate purchase. Claims bad septic system 18 months AFTER sale of home. Can defendant countersue for attorney fees?

    David’s Answer

    In some states, attorneys are permitted to practice in small claims court (although relatively few do, even where permitted, because the cases tend to be "small" which means that the cost of representation [attorneys fees] are considerable, particularly in relation to the amount of money in controversy in the case).
    But the general rule in most cases in the US (indeed, it's referred to as "the American rule"), is that each party bears his, her, or its own legal fees absent a statute or contract providing to the contrary. So, if defendants were to countersue in small claims court to recoup any attorney fees they paid for representation in that matter, they could not recover attorneys' fees, unless the claim related to a statute that expressly permitted recovery of attorneys' fees by the prevailing party. This is so even where the plaintiff's original claims are demonstrated to have been false. And it's also equally true that a plaintiff who sues a defendant cannot recover reimbursement for attorneys fees that the plaintiff incurred in the lawsuit, unless an applicable statute or contract specifically provides so.
    Please note that I practice law only in NY. As they say, "Your mileage may vary." Best of luck.

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  • My x wants me to pay her money i dont have, does she have a case against me?

    Last year my girl friend at the time alloud me to stay at her place and pay expenses until i got a job. I got one and now she wants me to pay her back $3000. She blames her bad credit on me when she would have been paying the same sum without me a...

    David’s Answer

    From what you've written, it seems that you have no legal defense; the fact that you may presently lack the funds is not a legal excuse or defense (if it were, our entire system probably would collapse, because no one ever could be assured payment). If she decides to take you to court, and if you lack any legitimate legal defenses, the likelihood is that she would and should prevail. Your written statement implies that you did indeed agree to repay her. Was there any condition precedent to enforcing that agreement? In other words, was the obligation contingent on something else happening? For example, if it was contingent on your getting a job, and now you have one, it'd appear that you owe her the money, and if you can't pay, and she sues, she'll obtain a judgment that will be enforceable against you. She can collect in a variety of ways. It'd probaby be better, if possible, to reach a creative negotiated resolution with her (since you morally intend ultimately to pay her anyway), and perhaps even memorialize it in a writing, so that you're both clear on the terms. To get a lawyer in a $3,000 case usually is not worthwhile, because lawyers aren't cheap, and that'd only increase your indebtedness. Please note that I practice law only in NY. As they say, "Your mileage may vary." Best of luck.

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  • I filed a small claims and won

    Am I allowed to send out collections notices or file something with the court to enforce the order? Where, WHAT, AND HOW? Can I file myself, where do I find forms, and is there a particular order

    David’s Answer

    Generally speaking, you probably can do most of this yourself, to avoid having legal fees usurp a large percentage of your anticipated recovery. While procedures in Indiana may vary, in most states you could serve restraining notices on garnishees, This would be a formal notice, the IN format for which you probably can obtain online, requiring an entity holding money belonging to the judgment debtor to refrain from paying out certain sums to that person -- for example, a bank where the person against whom you have the judgment maintains an account. Or in most states you can serve an information subpoena (another formal document usually obtainable online) on the judgment debtor asking questions about where assets are located, and they have to answer under oath. There are other more complicated procedures, for which you'd probably need an attorney. The small claims court itself should have a brochure providing info to you about how you can enforce your judgment, and some small claims courts give litigants reasonably specific instructions and info. And there may be a book published in IN about how to handle your small claims court case, including what to do after you win a judgment. Please note that I practice only in NY. As they say, "Your Mileage May Vary." Best of luck.

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  • Can I file a small claims lawsuit for repair of damages resulting from a poor roofing job?

    In April of 2007, we hired a roofing contractor to reshingle the roof of our home. In August of 2009, the roof had a major leak and the ceiling inside our house was damaged. The contractor would not fix the problem as he believed the problem was n...

    David’s Answer

    The first two things to do are to review all of the terms of your written agreement with the contractor, and to obtain from the local small claims court in RI a copy of their brochure or booklet describing court procedures (it may even be online). If your case were in NY, you could sue for the limit sum in teh small claims part of the court, even if it were less than your total claim for damages, and it's likely that the same would apply in RI (but again, check the rules, which should be outlined in the pamphlet). You also may find more info online (Google and Bing are your friends!) about handling your small claims court case -- be sure to include your Rhode Island in your search terms, so you will cut down on results from other states. Please note that I practice only in NY. As they say, "Your Mileage May Vary." Best of luck.

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  • Mediation and theft charges?

    A friend of mine was intoxicated and stole some items from a house party. The police recovered and returned most of the items that night and the rest was returned a few days later. The owners of the house say they are still pressing charges, and t...

    David’s Answer

    An increasing number of criminal courts are using voluntary mediation to resolve "lesser crimes." I just read an article about this yesterday. The point here, however, is that if mediation is "voluntary," then, depending on the local court's mediation rules, it likely will have to be agreed to by both sides -- the complaining party and the alleged perpetrator. The best thing to do would be to review the local court rules to see what they provide. You also should consult local counsel who is licensed to practice law in IA. Please note that I practice only in NY. As they say, "Your Mileage May Vary." Best of luck.

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