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Thomas Franklin Asch

Thomas Asch’s Answers

29 total

  • What can be done about money owed to me from a business buyout that went bad?

    I purchased a business from a gentleman. We were doing monthly payments and when we set this up he assured me that a renewal of the lease was no problem. To find out the landlord wasn't going to renew lease. So I requested my money back and the ge...

    Thomas’s Answer

    Did your contract to buy the business say anything about the lease? Do you have a written contract? If so, that is the most important piece of the puzzle. How much was the purchase price of the business, and what does he claim you owe him? Respectfully, this type of problem is one of the many reasons you need an attorney when buying a business. If you did have one, you go to that attorney immediately. You probably have various claims and defenses, but you need an attorney to protect you. Iit sounds like he can try to sue you for a substantial amount of money, in the form of the lack of monthly payments. Also, depending on whether the transaction had closed, he may claim you wrongfully took the property. Don't make the same mistake you did in the first place. Get an attorneyl

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  • What is Unfair Trade Practice,and how do I know if I have a lawsuit?

    seeing if I have a lawsuit. The company violated their contract with us and no proper notice and canceled a 20 year contract .

    Thomas’s Answer

    Generally an Unfair Trade practices case requires more than just a breach of contract. You may have a breach of contract case, but unless there was some fraud, deception, misappropriation or other dishonest or unfair practice in addition to breaching the terms of the contract it is unlikely that you can sue for unfair trade practices. These matters are very dependant on the particular facts and you should consult an attorney.

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  • What sort of damages can I try to recoup from my doctor's Insurance Fraud

    My (former) chiropractor committed two offenses: a) Indicated that he would charge a total of $3000 for his services, then charged the me and the Insurance Co $12,000 b) Billed the Insurance Co $1100 for a Back Brace that he gave me. I ga...

    Thomas’s Answer

    If medicare, medicaid or the VA was billed, you could have False Claims Act case against your chiropractor and could recover a portion of the money and penalties recovered by the government as a "relator. " If it is private insurance, you may not be able to recover anything yourself in New Jersey. Illinois and California do have whistleblower rewards and actions for private insurance fraud, and a New Jersey whistleblower attorney can tell you if your state has a similar law. I do not think New Jersey does, but you should definitely check with a New Jersey attorney. If not, you should still inform the Division of Insurance Fraud Prevention in your state, although it will not benefit you financially. You can also inform your insurance company, which may take action as well.

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  • Am I legally responsible to stay since my lease ran out, and do I have a case of fraud concerning the Lessor?

    I entered into a lease for one year which ran out 11 years ago. There is a hand written agreement at the end of the lease which states I am to do repairs on the house for reduced rent, and that I have first option to buy if the house ever is place...

    Thomas’s Answer

    The critical question seems to be whether the house has been placed on the market. Given the facts you have stated, if the house has not been placed on the market, there seems to be nothing that would allow you to buy the house. As for the downpayment agreement, while I am not familiar with the law of your state, most states require that agreements touching on real estate be written, so that may be a problem to enforce. You may have some recourse under the laws of your state, if the landlord misled you about his intentions, acted in bad faith, or if the purpose of your agreement has been frustrated, and might allow you to recover some or all of the money you put in to the house perhaps plus other damages on "unjust enrichment" or fraud grounds. This type of case is very dependant on the specific facts and you need to consult a local attorney. Most will at least spend enough time with you on the facts to determine if you have a case.

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  • Can a rental complex be sued over fraud, negeglince, falsifying documents and fair housing voliations?

    Aprils rent was paid on time, cashiers check was made payable to complex and placed in secure Dropbox. On the 4/8, I received a late notice, spoke to office mgr and was provided the following info that my rent was stolen and there is a police repo...

    Thomas’s Answer

    This question is determined by the law of your state, so I cannot say what the answer is definitively. It seems to me that this question involves when the "risk of loss:" from the theft of the check switched from you to your landlord. Generally, I would suspect that if it was stolen from a secure Dropbox or the office, your rent was delivered, and should be deemed paid. That is, the rent would be treated as property stolen from the landlord, not you. To document this, you should have or obtain from your bank a copy of the cashier's check that you placed in the Dropbox. It seems that you have reported the check stolen to your bank. They should be able to tell you, at least, if it has been paid and may be able to stop the check. If they can, and will refund you the money, you would be obligated to turn it over to the landlord, as you would be obligated to turn over any stolen property. If you can get this done, it should remove any question about the payment of rent. The office manager's story seems fishy, in terms of the lack of police report. This suggests the theft may be an inside job. So, you might want to make your own police report as well, recounting the whole story.

    Regardless, I very strongly urge you to consult an attorney about this. Many localities have tenant organizations that will provide referrals, sometimes for free legal advice. I suggest you search on line for such an organization and seek immediate legal help.

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  • What constitutes a contract and how can one become null and void?

    I'm in an equal partnership with 2 others. When we formed our partnership, we signed a spreadsheet agreeing to specific income splits. Since then, we have moved to a new firm. One partner has also changed the original agreement by giving 5% of h...

    Thomas’s Answer

    In Illinois, you do not need a writing to form a partnership. I am assuming that, other than the spreadsheet, there are no agreements.

    The original split was obviously agreed to, and is probably binding, but that does not mean it may not be changed. I do not know what you mean by "we have moved to a new firm." If you just changed the name of business, this would hardly matter.

    Also, the readjustment of the split between two of the partners probably does not end the contract, as you say nothing about an agreement to prevent a transfer of the interest. Generally, a partner may transfer his right to profits without ending the partnership. Also, since there are three of you, the other two partners would be a majority. At best this would be a "breach of contract" and it may not even be that. In order for a breach to justify terminating a contract it has to be "material", that is, an important part of the contract. So the question would be, why does the slight (5%) readjustment of the income split constitute something important to the contract? A contract does not become "null and void" because of minor variations from its terms.

    My question is: why do you want (or not want) the agreement to be "null and void"?

    If your real question is: "can I withdraw from the partnership without breaching the agreement?" The answer is probably yes. Under Illinois Partnership law a partner may disassociate from the partnership at will, unless there is an express provision in the partnership contract to the contrary, and a few other exceptions. See 805 ILCS 206/602 available at http://law.justia.com/illinois/codes/2005/chapter65/32968.html and see a lawyer to make sure none of the exceptions apply to you. In other words, you can probably withdraw from the partnership simply by writing your partners a letter, without needing an excuse. This would probably result in dissolving the partnership, and require a "winding up" of its business, that is, a final accounting and division of any funds or property of the partnership after paying any creditors. If your partners do not want to dissolve the partnership, they can purchase your share for the liquidation value of your share.

    If you feel you have somehow been damaged by the changes, then more information about some additional agreement, and how you were damaged would be necessary. From the facts given here, I do not see how you suffered any actual injury from the compensation shift between one partner and another.

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  • GARNISHMET MY COURT PAPER SAY10,000 PLUS 9% SIMPLE INTEREST AND COSTS 379. THAT HAS BEEN COMPLETED NOW THEY WANT TO GARNISH MORE

    THEY WANT TO GARNISH FOR ACCURRED INTEREST CAN THEY DO THAT IF COURT PAPERS DO NOT SAY THAT GARNISHMENT HAS STOPPED FOR A MONTH AND NOW THEY ARE CALLING MY EMPLOYER TO GARNISH AGAIN 2,500 CAN THEY DO THAT? SHOULD I GO BACK TO COURT I HAVE LITTL...

    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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