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Robert Harlan Stempler

Robert Stempler’s Answers

4,193 total


  • Is there a specific case that I can cite?

    I filed for entry of default and received it. When I went to the prove up hearing he showed up with an attorney stating that they had just filed a motion to quash service and motion to set aside default based on improper service . I submitted a...

    Robert’s Answer

    Courts have considerable preference to permit defendants who claim they were not served to defend a case on the merits. Without having a copy of the defendant's briefs and evidence, I'd be guessing as to what case (if any) may help you overcome the tentative ruling (I assume your posting refers to a tentative ruling granting the motion to set aside default). If you need more guideance, start a new posting with more details about what this person claims is the basis of the motion to set aside default, perhaps a case can help you with this. Otherwise, perhaps you need to get your own lawyer, as this case is proceeding forward on the merits, not by default.

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  • A doctor and patient have a series of meetings, isn't there an implied contract created in CA. law for dealing in good faith ?

    I meet with a doctor for 3 months of meetings to resolve a medical issue. I sensed the doctor was not acting in my best interest, but being fully paid. Isn't there a nonverbal contract created by virtue of the patient-doctor relationship ? Now ...

    Robert’s Answer

    Your posting does not state the express terms. A contract, whether in writing, oral or implied still must have some terms for the court to know what to enforce. If there are no terms, then there is no contract. Once there is a contract which a court can enforce, then the court can consider implied terms, such as the duty of good faith and fair dealing. What are the terms of your contract with this physician or the medical office? Please post a new posting on Avvo for attorneys to review or consult an attorney in your area.

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  • Can my car get repossed if my down payment to the carlot bounced?

    I went into the carlot with my $ The car lot wanted more money and I didn't have it, so they said I could write a post dated check and they would give me a month or so to come up with the money and if I couldn't they said I could call and get a g...

    Robert’s Answer

    Based on your posted information, the dealer violated the California Automobile Sales Finance Act. May have also violated other laws, but the facts don't reveal that. You will need a more detailed analysis of the facts and documents from a consumer lawyer who handles car dealer transactions. Such lawyers are typically members of the National Association of Consumer Advocates, which has an online directory to locate lawyers by area of practice, so I suggest you get help using that website.

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  • Should I sign a legal declaration document before agreeing to settlement terms with judgment creditor?

    I am attempting to settle with a judgment creditor for less than the amount owed. I have provided all requested personal financial information (demonstrating what I am able to afford) to their attorney to support my proposed settlement amount. Wit...

    Robert’s Answer

    I would not do it without your own legal counsel. Many of the terms can be and should be negotiated, rather than accept every term that was in the document that the collection attorney included in his/her "standard" form. You should have a debt collection DEFENSE attorney.

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  • How many days does a plaintiff have defendants served their summonses/complaint in civil action? Does the clock start after

    30 days from the date they were given to waive service or from the issuance date?

    Robert’s Answer

    The deadline is computed 30 days from the date of personal service or 40 days from date of mailing if by substitute service. What do you mean "waive service"? Did you sign a form for Notice and Acknowledgment of Receipt of Summosn and Complaint? If not, then service is not waived and a proof of service must be filed in the case. If this is on a debt, then you need to hire a debt collectIon DEFENSE attorney to get help to avoid a judgment, which is the typical result for unrepresented debtors.

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  • If a waiver of service of summons is mailed to a civil defendant in a federal action they tell you orally the are not waiving, ?

    the defendant be served before the 30 days expires on the notice? If the defendant received the waiver on 08/06 can they be served on 09/01?

    Robert’s Answer

    The plaintiff has a duty to diligently get the summons and complaint (and any other items required) promptly served on the named defendants. Thus, there is no duty to wait for a defendant to respond to a request to acknowledge the summons and complaint, just get it served and file the proof of service with the court. Thus, there is no reason to wait and waiting serves no useful purpose and could put the plaintiff at risk of having the judge dismiss any unserved defendants. Consult a lawyer, as litigating civil cases is challenging and if your case is worth the cost of filing then it is also probably worth the party going all in to win, too.

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  • What can be done if the movant on an MSJ lies And omits critical documents?

    I'm the plaintiff in a med. Mal. Case, pro per, I know, please don't respond to that. The defense has purposely left out critical papers from their client's medical records, a so called doctor , that prove my case. What is the best step to take.? ...

    Robert’s Answer

    As the opposing party, it is up to you get present all evidence and submit a Separate Statement as to those material facts that are disputed, along with your points and authorities in opposition. Most self-represented litigants overlook key procedures and may lose on summary judgment, even if they have evidence that might otherwise suffice to prevail against a summary judgment. Also, med-mal cases are challenging even for a seasoned med-mal attorney. I would get help from an experienced med-mal attorney on your med-mal case, if you believe your case is worthwhile and you would like to have a trial with a jury.

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  • CA Superior Court - need CA specific information.

    What if a DEFENDANT in a limited civil case (debt buyer credit card case) discovers, through private investigation an affirmative defense exists in their favor 3 days before the trial, so the affirmative defense is not listed in their Answer. Can ...

    Robert’s Answer

    Pleadings can be amended up until trial and even after trial to conform to the evidence. What if the item that you believe is an affirmative defense is really simply part of the Plaintiff's case? Then it is not an affirmative defense and you don't need to worry about amending your answer, you can present the evidence at trial, unless there is something in the discovery during the case that asked about this, but you failed to note it in your discovery responses, such that the evidence should not be admitted at trial, due to unfair surprise. Consult a debt collection DEFENSE attorney, as so many of these cases become judgments against the debtor, even when the debtor thinks they can win at trial.

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  • Received a wage garnishmentbut was not notified, what is my option?

    My employer told me he received a wage garnishment against me, I was not notified by phone or mail. Researching I discovered it's a 11 year old debt, it's not on my credit report, I was not notified & I had to hear it from my employer about this d...

    Robert’s Answer

    My blog, linked below, and several of the videos on my website cover options when a consumer is sued on a debt and also about default judgments. There are strict time limits after the judgment debtor (that's you) learn of a default judgment. In particular, you now learned of this by the wage garnishment, so figure 90 days from the date your employer received the notice, you will need to have a lawyer file a motion to set aside the default judgment or have the Plaintiff's collection attorney agree to file it, due to lack of service. Be prompt, phone calls do not protect you and even can be used against you, if that is all you do. You need to retain a debt collection DEFENSE attorney ASAP.

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  • Can your attorney forbid you to attend a deposition?

    If you are the plaintiff in a federal civil matter and your attorney is going to depose the defendant and you would like to attend the defendant's deposition (just sit there and watch. maybe catch something your attorney missed and remind him of i...

    Robert’s Answer

    If your attorney has "forbidden" you to attend a deposition in your case, what reason was given? If there is a valid reason, such as a court order that it may disrupt the proceedings, then that is a valid reason. There may be other valid reasons, but this posting does not specify the attorney's reasons, so I cannot speculate. Ask your attorney the reason(s).

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