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Thomas Franklin Asch

Thomas Asch’s Answers

33 total



    Thomas’s Answer

    The 9% simple interest accrues on the $10,000 plus costs from the date of the judgment. The annual interest on your judgment ($10,379) would be $934.11. Every time they get a payment, the amount should first be applied to accrued interest and the remainder should then be applied to the principal amount. Interest continues to accrue on any unpaid balance at 9% until the amount reaches zero.

    I suspect there was a time lag between the judgment and the first garnishment payment made, so the early payments probably were applied to accrued interest only. Once that was paid down, your payments would then go partly to interest and partly to pay down the judgment. It is very much like paying off a mortgage. Because the interest continues to accrue on the unpaid amount of the judgment, you will end up paying quite a bit more than the original face amount.

    This is not to say that they are necessarily correct that you still owe about $2500. Mistakes are made--payments may not have been recorded, or possibly recorded late, resulting in too much interest. You should request a "payment history" from them to check against your records to make sure that all your payments were credited, and credited in a timely manner.

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  • Attorney withdrawal allowed simultaneously with judgment

    Can a judge allow the withdrawal of the plaintiffs attorney and at the same time make a negative judgment against the plaintiffs

    Thomas’s Answer

    Courts rarely postpone a trial date for settlement negotiations unless the parties state that they have either agreed on a number or are very close. If there was an actual number agreed upon in open court with you present, or you authorized your attorney to settle for a certain amount and he did so, the time the court gave for “creation of settlement terms” is, more or less, just about the paperwork. Technically, courts can hold that the “essential terms” of a settlement agreement may be met when one side offers a number and the other side agrees to it.

    You do not say why negotiations broke down. What disputed term prevented agreement? If you agreed to a number, you probably agreed to a settlement, and your attorney and the court were correct. Possibly if there was some other term that the parties could not agree on, that might be a reason to say there was no settlement, But certainly if--after agreeing to an amount in court or authorizing your attorney to do so--you simply refused to sign a final written agreement, this would not get you off the hook on the grounds that there had been no "creation of settlement terms."

    If your attorney was lying when he said you agreed to or authorized him to agree a settlement amount then you have two low percentage options to fix the problem:

    1. Move for reconsideration and request that the judgment be vacated. This motion must be filed within thirty days of the judgment. If you do so within thirty days, this motion will extend the time to file an appeal (option 2 below). I presume that you got notice of the motion to withdraw. If your attorney was not telling the truth, the time to tell the judge was at the hearing for the motion. Since he had the burden of proof for showing the reason for his withdrawal, the judge must have believed him. If you have evidence, for example, some correspondence from your attorney or the other side, which shows no number was ever agreed upon, or there was some other specific term that caused negotiations to break down, you can bring that in and ask the judge to reconsider the decision.

    2. Appeal. If your motion for reconsideration is denied or if you were at the hearing and presented all the evidence you had that the attorney was not telling the truth, and no reasonable judge would be justified in believing the attorney instead of you, then you should appeal. The notice of appeal must be filed within thirty days of the judgment or within thirty days of the post-judgment motion.

    You should retain an attorney if you decide to take either of these actions.

    Please note: I am assuming there was counter-claim by the defendants in the case that turned out to be a serious claim against you. If there was no counter-claim, this would change what I say above. I am assuming that along with entering judgment against you, the judge dismissed your (or had previously dismissed) your complaint. If you still have a pending claim on your complaint that would change what I say above. I am assuming that the settlement amount agreed to was $160,000. If not, that would change what I say above.

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  • Civil practice act for pre and post judgment matters

    This arises out of a complex construction contract. A (subcontractor) sues b and c, jointly and severally, in contract and other theories. B (general contractor) sues C (owner) for contribution and indemnification from the claims of A plus his o...

    Thomas’s Answer

    See an attorney, but keep in mind that C (unless he has collected the judgment) may have a defense that the lack of the condition in the judgment is a "scrivener's error" that can be corrected "nunc pro tunc" (which literally means "now for then") to reflect the "true" judgment of the court. The Items which might support that position could be hearing transcripts (if any) and the moving papers and pleadings. And, the possibility of C and B supporting this action vs A, as B does not want to come up with the money.

    If this "fix" is not made, generally the "collateral effect" extends only to issues "actually litigated." If, for example, the issue was properly framed as a conditional argument (only actually litigating "if C is liable to A, what happens?" as opposed to "whether C is liable to A") then "whether C is liable to A" was, arguably, not "actually litigated." From the unconditional judgment language, though, it could also be argued that this question was "necessarily decided."

    Also, the fact that the litigation is between different parties (C vs B, not A vs C) may preclude the collateral effect. Finally, given that the judgment is two years old and the parties have continued to litigate as if the it was framed as conditional, the judge may deem the argument waived or barred for equitable reasons. That is, why did A waste everybody's time if the case was won two years ago?

    "Judicial admissions" may definitely be used regardless of any of the above, but they need to be relatively unequivocal. So, if C claimed "I am liable to A" as opposed to "I may be liable to A" then these admissions would be admissible to prove A's case." Understand though, that the admissions will be subject to context that can be used to show they are not what they appear.

    Without having all the details my "gut feeling" is that if the judgment has not been collected and all the parties have treated the judgment as if it was conditional for the last two years of litigation, your theory might not fly. On the other hand, if C has collected, or attempted to collect the entire judgment from B, then you are right and A should win. I suspect this is not the case, however, as B would have raised the issue that the judgment was "incorrect" if collection attempts were made. Instead, I would expect that C has more or less washed his hands of the litigation and is letting B do the heavy lifting defending the case.

    So, if your question is, "is this a slam dunk?" my answer is probably not, at least without more detail. Is it worth exploring whether the circumstances are such that this argument would provide a quick route to victory or be a sufficiently strong argument to force a favorable settlement? Absolutely.

    Many lawyers have never had the need to become well-versed in these questions, and the courts have spilled oceans of ink discussing the intricacies of these issues. Good for you for spotting the argument. Have you considered law school?

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  • Sale of a Company

    I recently sold a company to an individual in NY. Now this individual is complaining left and right, and I can't deal with it anymore. There is one issue that is legitimate on his end, but the others are absurd. So I am willing to negotiate on ...

    Thomas’s Answer

    Just a correction of a typo in Mr. Flemenbaum's thoughtful answer.

    When he wrote: "In Illinois, generally speaking, if your PSA does not contain" he meant "if your PSA does contain." I think he began the sentence to warn you of the danger of the absence of these clauses, and ended it explaining the benefit that such clauses would give you.

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  • We are taking a small business to small claims court and they have a lawyer, if they win will we have to pay their lawyer fees?

    A small business offering men a "good time" got my husband to sign a document that said everything met his expectations and they also got him to sign receipts for double the amount he agreed to by saying his first signature was illegible. They al...

    Thomas’s Answer

    I am assuming that you disputed the charges on one or both the cards and they are now suing you, because if they were paid, they would have no complaint. But if he signed some kind of bar tab over and above what he paid with cards, or stopped a check, then the issue may be different.

    If your husband did not sign a contract so stating, you will not be required to pay the other side's attorneys fees. The only other way that can happen otherwise is if you commit some misconduct in court.

    Unfortunately, it is unlikely that you will be able to find an attorney to represent you only if you win. This option is usually not available unless far more money is involved, and you stand to collect something from the other side. Also, a contingency fee will tend to be much higher than a straight fee per hour. Given the amount at stake, it may not be cost effective to hire an attorney. Of course the other side counts on this as well. If you do not get an attorney, be sure to read the court summons carefully, and follow all the instructions about filing an appearance and attending court.

    If you do tell your story to the judge, without my knowing more, it sounds like you have a decent chance to win. The scheme you describe is at best an overcharge, though it certainly sounds like fraud to me. The other side may count on people being too embarrassed to dispute the charges because of the nature of their business.

    In any event, you may want to report this business to the Illinois Attorney General's consumer fraud division: so that maybe people will not be taken advantage of this way in the future. You might also try the Better Business Bureau (though I doubt they are a member) but I think you can file a complaint and can see if there are similar complaints against this business.

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  • Appealing a judgment and stopping a collection action

    A court judgment was entered against me in the civil court, law division. In less than two weeks from the judgment date, the plaintiff’s attorney obtained a levy against my bank account, which got frozen. Because I feel very strongly that I was v...

    Thomas’s Answer

    These are questions you should be posing to your trial attorney. But I can say some things generally. First, there would be no reason for the judgment order to mention bond. To stop enforcement action you have to file a motion to stay enforcement of the judgment and most likely a bond. Another option of halting enforcement is filing bankruptcy, if the amount of the judgment has rendered you insolvent. Bankruptcy automatically stays the enforcement of most judgments. I am concerned at your use of the words “monetary fine” because usually fines, penalties and punitive damages are not dischargeable in bankruptcy.

    As for the appeal, attorneys are usually reluctant to take appeals on a flat fee because of the need to carefully review the record. A lot of hours need to be put in before an attorney who did not try the case can even guess how much work an appeal is likely to be, much less provide an assessment of your chances on appeal. Nor is an attorney likely to agree to act as a consultant. To act as a consultant he or she would need to do nearly as much work as representing you in the appeal with the additional disadvantage that they cannot control what is filed with the court by you based on your interpretation of the advice. It could get them in trouble with malpractice or disciplinary authorities, if they did not investigate whether, for example, the record supported your legal arguments.

    A case in point that might worry an attorney is your emphasis on the judge’s body language and supposed bias. This is not the type of argument an appellate court will find to be the least persuasive. You can only base an appeal on what is in the record, i.e., the transcript of the trial and other hearings, if any, and the papers and orders filed in the case. Your “testimony” on body language will not be considered. The fact that the judge ruled against you is not considered evidence of bias. Your earlier dismissal from the case and reinstatement is curious, but the fact you were in court for trial and represented by an attorney suggests that you retained a direct connection with the case and a few reasons why the judge may have reinstated you as an individual defendant. The fact that the judge brought it up without a motion by the other side could be error, but not necessarily.

    Your trial attorney remains your best resource. Get a referral to an appellate attorney or hear his/her opinions about an appeal.

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  • Purchase and Sale Agreement Question

    I recently purchased a business and I am very upset with the seller. I believe there were terms promised prior to closing, but I did not put these conditions in the Agreement. Now I'm trying to get the seller to reduce the price based on these i...

    Thomas’s Answer

    The previous answer is virtually 100% correct. However, in Illinois, an "integration clause" which keeps out both inconsistent and consistent additional agreements does not prevent a "fraud in the inducement" claim. In many states this is not the case. In Illinois, only a "non-reliance clause' will prevent a claim of "fraud in the inducement" and even then, depending on the circumstances and wording, it may not do so. So, it may be worhtwhile to check with an attorney to see if you have such a claim.

    Fraud in the inducement will be found where the seller made statements of fact concerning the business that were untrue, and upon which you reasonably relied in signing the contract. This might be the case, say, where the seller gave you inflated sales information, or did not disclose significant liabilities of the business when giving you financial information. If it is only some additional promises that certain things would be done that were not, then you may be out of luck. (On the other hand, if he told you certain things had been already done that were not, this might be a basis for suit).

    Regardless of the above, and before you make a final decision, I would strongly suggest having an attorney look at the full facts and read the contract to see what options you have. The seller might not be as smart as he thinks he is, and you may have some options under the terms of the contract as written. It is impossible to know what your options are without a review of the contract, the full story of its formation and the things that did not meet your expectations.

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  • Quick Claim Deed Nightmare!

    In 2007 I borrowed $8900.00 from a close friend of mine. Because of our close relationship I told him I would quick claim deed my home to him as security for the loan and for him to collect the $450.00 rent I was collecting on my other unit. My pr...

    Thomas’s Answer

    With all due respect to my colleagues, they are incorrect. According to section 5 of the Mortgage Act (Act):

    "Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage." 765 ILCS 905/5 (West 2002).

    In other words, you are entitled to show that the quit-claim deed was only intended as security. When a court determines whether this was intended as a mortgage or as a conveyance, the court generally looks to:

    1. The relationship between the parties. Here you were friends.
    2. The circumstances surrounding the transaction. Here there was no real estate sales contract, no closing, and a quit-claim instead of a warranty deed. This should create an inference that this was not an ordinary house sale.
    3. The adequacy of the consideration. In other words, what did your friend pay you? Here $8900 seems like it would not begin to be an adequate price for an income-generating duplex.
    4. The circumstances after the "sale." Here, you were apparently allowed to live rent free for three years before any demand for rent or possession was made. Again, this supports the idea that this was intended as security for a loan.

    But do not think you are out of the woods yet. If you defaulted on the loan, he still has some rights. If you do not answer or appear in response to a lawsuit for possession, you could be barred from keeping your house.

    I cannot stress strongly enough that you need to consult an attorney in your area right away. Do not simply give up and do nothing. If he has not filed suit yet, the intervention of an able attorney could save you not only your house, but a lot of money on legal fees for a lawsuit. If you do nothing, you will lose your house to a certainty. If you do not give up, it sounds like you have a good chance of keeping it. Of course this is just based on the limited facts you state in your question.

    When you go to your attorney, be sure to collect anything related to the transaction. For example: The deposit slip for the loan and any cancelled checks for repayments. This includes things that may be bad for your case. For example, if you have a lease with the tenant, did you sign it or did he? If you had a mortgage, did you tell the bank that you sold the property, or did you keep paying it? When the tenant need repairs, who did they call? You or him? All these things are surrounding circumstances that determine whether you can make your case.

    Good luck.

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  • In Illinois, if I have a judgment against a business, can I obtain a court order to have funds in its bank account turned over?

    I would also like to have its assets seized by a sherriff? Can I do that under Illinois law?

    Thomas’s Answer

    If you know where the business banks, you can skip the citation to discover assets, and simply have the bank served with a non-wage garnishment. Cook County makes the forms available here:
    Non-wage garnishment forms

    The bank will freeze the acount until the return date, when it will answer with the amount of funds it is holding. Read all the forms, Read the statutory sections I give below. Talk to the clerks, they can be very helpful.

    You can fill in the forms on line, print them out and bring them to the court house. Check out the Cook County website on "self-help" resources:

    If you do not know where the business banks, you can serve a citation to discover assets on the business defendant to find out where it banks, along with what other assets it has. This involves examining a representative of the business under oath. As noted above, this can also be served on any other business or bank that you think has assets belonging to or owes money to the defendant. It is done in front of a judge, who can immediately issue a "turnover order" to the respondent to the citation. The forms are here:
    Citation to Discover Assets

    As for having assets seized by the Sherriff, this involves getting an "execution" of the judgment, which is a much more involved process. I would advise obtaining an attorney for this type of collection. If you are determined to this on your own, go ahead and search the Cook County website.

    Below are links to the garnisment and citation statutes. You will have to scroll down to the appropriate section.

    735 ILCS 5/2 1402 Citation

    735 ILCS 5/12 701 Garnishment

    Simply showing the bank your judgment will get you nothing and would be a waste of time.

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  • Legal malpractice: Obligated to pay bill for incompetent service?

    For about six months I retained a lawyer to help me in an estate settlement dispute with a relative. I was dismayed as I saw that he seemed to mainly agree with the proposals of my relative’s lawyer I also sensed, from his e-mails and the timing...

    Thomas’s Answer

    I agree that it sounds like that you and your former lawyer simply disagreed about the best way to approach the case. If that is all there is to it, it does not relieve you of the responsibility to pay your bill. That is, if he simply made recommendations of compromise that you did not agree with, you are still obligated. There is a hint though that he made agreements or compromises with the other side that you did not authorize. If these agreements were unauthorized and prejudiced your rights in the case, you may have a basis for not paying some of the fees, or even recovering for the prejudice caused. But, since you now have another attorney who knows the facts of your case, I would suggest asking him about this question.

    Of course, as noted above, you can always seek to have your former attorney voluntarily reduce his bill.

    Lastly, I do want to caution you that if you do not pay your bill, and have yet to obtain needed papers or documents in the possession of your former lawyer, he has a right to hold on to these (with few exceptions) until he is paid. This is called a "retaining lien" and holding important papers can give an attorney a great deal of leverage in getting a fee paid.

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