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Timothy Dean Henkel

Timothy Henkel’s Answers

8 total

  • How to set up a Lottery or raffle Online site without breaking any laws

    Like to set up an online Lottery /Raffle site ,where people can become members and buy tickets at unlimited amount ..then at the end of a set time frame ..there will be a drawing : the prize could be a sum of cash ...

    Timothy’s Answer

    Do not engage in this business as it is likely illegal. The various Federal and State laws that probably prohibit this type of lottery or raffle business are highlighted at: http://www.gambling-law-us.com/contact.htm. As an example, please see the Federal Unlawful Internet Gambling Enforcement Act of 2006, Title 31, Section 5361 of the United States Code. It is critical that you obtain a written legal opinion by competent legal counsel with specialized knowledge of federal and state criminal laws before pursuing this venture.

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  • In Florida in Civil Lawsuits, Is it 20 Days or 30 Days for the Defendant to Respond?

    I am a Pro Se Litigant that has prepared a Civil Lawsuit for filing. My question is: Is the Defendant required to answer the Complaint within 20 days, or 30 days? The Florida Rules of Civil Procedure states 30 days. However, through the course ...

    Timothy’s Answer

    • Selected as best answer

    A defendant has 20 days to serve and file a response to a complaint in a normal civil action per Rule 1.140(a), Florida Rules of Civil Procedure. But, if your matter is a landlord\tenant case seeking eviction, summary procedure may be allowed such that the defendant only has 5 days to respond to the complaint. See Florida Statutes Section 51.011(1). The Clerk of Court can assist you in determining whether a 20 day or a 5 day period is applicable as the time period must be expressly stated in the summons that is served with the complaint.

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  • Getting out of a subpoena

    Have a jury trial witness subpoena And I did not want to go is there anyway I can get out of not going? would writing the judge about the case help me?

    Timothy’s Answer

    The judicial process does not work and truth is not found if witnesses do not testify as to the facts known to them about the dispute in question. Yes, attending a trial is inconvenient and nerve wracking but it is an important duty of all citizens. If you have some severe medical condition or other strong reason for not attending, it may be possible to get the attorneys for the parties to stipulate that they will take your deposition and then show that videotape (or read your written testimony) at the trial. But, this is a weak substitute to having the witness actually present at trial so the fact-finder, whether it be the jury or the judge, can judge the witness' credibility as well as the content of the witness' testimony.

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  • Can I get arrested for not showing up for a Order on Rule To Show Cause court hearing.

    Theychave been after me for 6 years. I have no job, lost my business, and the house mortgage is under my wifes name. County property rexords show my wife only.

    Timothy’s Answer

    Unfortunately your question does not specify who is the "they" nor the specifics of what the Court's Orders requires. But, assuming that a judgment creditor has obtained an order from the Court that requires you to appear in Court, before the judge, you must appear in Court or yes, the judge could issue a bench warrant, even in a civil case, and have you arrested for civil contempt. It does not matter if you have no assets subject to execution. You still must comply with the Court's orders and rules. Judgment debtors often get into avoidable problems with the Court by refusing to produce information and documents. The judge may literally have the debtor arrested, thrown in jail, and then have a deposition in jail or immediately after the debtor is released. This is not a good situation, obviously. The debtor is usually better served by complying with discovery and attending their deposition in aid of execution. The creditor then has the information (which is what the Court wants to require be disclosed) and then there is nothing left for the creditor to do, assuming there really are no assets available to satisfy the judgment. Indeed, if you want to negotiate with the creditor to make the judgment go away (i.e. be satisfied) for pennies on the dollar, a necessary first step is giving full and honest disclosure to the creditor. Then when you offer anything to resolve the dispute, a wise creditor may cut their losses, settle with you, or at least stop throwing good money after bad in legal fees to further "chase" you via the legal system. Finally, if this is not the first Order from the Court that you have not obeyed, you may wish to hire legal counsel to work with the opposing party to cure the noncompliance and thereby, avoid the Court using its contempt powers.

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  • A default was entered against my company for failure to file papers on a non employee without company being served. or noticed.

    I am a small business with just one employee (me). I have been and I am the only one. An individual related to me had his wages garnished. Plaintiffs assumed he was my employee. I was never served or notified by anyone including the individual w...

    Timothy’s Answer

    • Selected as best answer

    Typically to set aside a default in Florida, you need to show 3 elements: (a) excusable neglect for not responding in time; (b) a meritorious defense; and (c) diligence in moving to set aside the default. It is critical that you immediately file a motion to set aside the default on the writ of garnishment. Potentially you and\or your company could be liable for the garnishment if you are defaulted. It appears that you have a meritorious defense because the individual is not employed by you such that you have no wages for the plaintiff creditor to garnish. But you cannot just ignore the court's writ. The speed at which you take this action is very important. This is a standard matter that any civil lawyer should be able to handle for you.

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  • Can I sue my credit union for taking money out of my account to pay a loan that I did not authorized.

    I had my checking account at eastern fcu now space coast. In 2006 I got an auto loan and in 2007 I was laid off and recving unemployment therefore it cause me to be last on my loan payment. on 2 occassion the CU when into my bank acct and with dre...

    Timothy’s Answer

    Your question does not present enough of the facts to give you a complete opinion and I cannot determine whether or not you do or do not have any legally sufficient and factually supported claims that may or may not entitle you to a recovery. Most importantly, an attorney would need to first review the terms of your auto loan agreement before being able to advise you.

    But, based upon my experience, your lender would probably be entitled under that agreement to exercise setoff rights against your bank account if you breached the agreement by non-payment of the loan when due. Accordingly, the bank had a right by contract (which you did agree to in the account opening documentation, which you may or may not have read) to withdraw the funds in your account and apply them to your outstanding loan (if the loan was in default, which you admit it was). Further, a typical provision of such a loan is that the lender can repossess the collateral for the loan (i.e. your auto), sell it, and then come after you for the deficiency amount (i.e. the difference between the principal balance of your loan and what it sold for, probably at an auction where the values were depressed). Based just upon the facts given, I do not see any basis for you to sue the lender. In terms of other recourse, you always have the right to file for bankruptcy protection. The default on your loan is probably already a black mark on your credit and you may want to check your credit rating to confirm that. If you feel a moral obligation to repay the loan, you can work out a payment plan with the collection agency. Alternately, if your personal finances permit it, you may be able to work out repayment of a lesser amount than the full amount due in exchange for a lump sum payment or other mutually convenient terms you can reach with the collection agency.

    Finally, you should be advised that there are important time deadlines called statutes of limitation that would govern your right to sue the lender, if this is the course of action you want to take. In Florida, most claims are subject to a four year statute of limitations (five years for breach of a written contract). If you file too late, your claims may be forever time barred and you may not be able to recover an award of damages. Assuming you breached the agreement in 2007 when you lost your employment and that is the same year when your lender took the actions specified, your time period to sue may be expiring this year, 2012.

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  • What form do I use to file a notice of appeal in civil court in Florida

    I would like to post a notice of appeal but don;'t know the steps or what form to use Please advise. Thank you.

    Timothy’s Answer

    Your question is too incomplete to answer. The first question is which court do you wish to appeal from and to, and a second question, is what is the nature of the order, ruling or judgment you wish to appeal. If there is a final judgment in a civil court in the circuit court, you need to file a timely notice of appeal to the applicable district court of appeal and tender the appropriate fee to the clerk of court to proceed to the district court (intermediate court of appeals in Florida). If the ruling is non-final in that there is still judicial labor to be done on the case and if no final judgment has been entered, your appeal may be still possible, usually as a petition for certiorari. A big difference is that the filing of a notice of appeal is easy; it is basically one page with the judgment being appealed attached thereto and the appellant has several months to get the record on appeal completed and their initial brief filed. In the case of a petition for cert., the petition itself (similar in content to an initial brief) has to filed initially, with the petition serving as the de facto notice of appeal. Under other circumstances, there could be a petition for other types of writs.

    In sum, the procedure for properly invoking appellate jurisdiction is complicated and has traps for nonlawyers. If you file the appeal late or improperly, you may be "stuck" with the trial court's ruling without any future rights of appeal.

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  • If a non-party is served with a subpoena, and he files a motion to quash prior to the deposition date, does he have to show up?

    A number of non-parties were properly served with subpoenas for deposition and production of documents. Most of them filed motions to quash or for protective orders prior to the deposition date. Only one of them scheduled a hearing on the motion...

    Timothy’s Answer

    1. Technically, the mere filing with the Court of a motion for protective order does not preclude the legal duty under the subpoena to appear to give testimony and\or to produce documents, if the subpoena is duces tecum. A subpoena is a form of Court Order and must be obeyed unless excused by the Court. A witness must actually secure either the agreement of the party (or their counsel) who had the subpoena issued or secure a Court Order to grant protection (Protective Order) or to quash the process entirely via a motion filed with the Court and both set for hearing and actually ruled upon prior to the hearing. However, as a practical matter, the witness may not have sufficient time to actually get a motion set and heard before the proposed deposition or document production date, which date the party issuing the subpoena unilaterally served. A witness would be well advised to timely contact the party issuing the subpoena (definitely not the same day and certainly not one hour before the proceeding) to request either to be relieved of the subpoena or to modify its terms or at least to extend the compliance date therewith to allow the witness time to obtain a court hearing seeking protection. A witness could potentially file an emergency motion for protective order or to quash but the busy courts are not going to look happily upon such request as this type of discovery matter can be worked out. Rather, if the party issuing the subpoena is uncooperative, the witness should file asap after being served their motion and also request the additional relief of extending the compliance date with the process after the Court has ruled upon the motion. As a practical matter, a judge will not likely hold a third party witness in contempt if they filed a motion for protective order\to quash and also sought an extension of time, and the motion was noticed for hearing at the first available date, even if after the hearing. As a courtesy, which will look good to the Court, the witness should also write to the party issuing the subpoena (or their attorney of course, if the party is not pro se) to document their efforts to amicably resolve the subpoena issues, point out the witness' filed motions or intent to file same, and advise the party issuing the subpoena that the witness does not intend to appear (such that the court reporter can be cancelled to avoid that expense) until after a reasonable opportunity is given to obtain Court relief. If the witness feels very uncomfortable with this approach, the witness could go one extra step, which is to show up at the deposition and ask the Court reporter after the witness is sworn in and gives their name to suspend the deposition and state the reasons therefore. The witness does not need a "ruling" by the court reporter or the opposing attorney that this is proper. Rather, the witness makes their statement and then leaves. The adjournment option is available in Florida Rule of Civil Procedure 1.310(d).

    2. Potentially a witness who does not obtain the consent of the opposing party to excuse their attendance or a ruling by the Court that attendance is excused may be in contempt of Court, at least technically. The subpoena ordered attendance and the witness was duly served and did not appear. Therefore, there was non compliance, However, contempt (there are two types, civil and contempt, and only the former is implicated here) requires willful noncompliance. A party who is diligently seeking to modify a subpoena is not acting improperly and should not be held in contempt. Usually the worst that a court will do is to compel a new deposition date after resolving the witness' objections.

    3. Please see my answers to questions 1 and 2. But, in short, even that last minute filing should not result in contempt but it will look bad to the same judge who is deciding their protective order. Given that discover matters are discretionary, appearances are important.

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