I am currently scheduled for trial over disputed material facts (I dispute them, the adverse party does not), but have a window of opportunity to do a summary judgment to have the case dismissed based on legal issues apart from the material facts ...
A Motion for Summary Judgment is one side pleading with the court that there is no dispute regarding material facts, and thus the case can be decided without a trial as a matter of law.
Here, it sounds like there are some disputed disputed facts. Thus, it's somewhat unlikely that the case will be resolved in summary judgment.
However, generally speaking, the process goes something like this: one side (say, the Defendant) files a Motion for Summary Judgment (MSJ), and the other side (the Plaintiff in this hypothetical) files a Response. The Defendant then files a Reply brief, and the Motion is set for argument in front of a Judge. The Judge then reviews the parties' positions and considers the allegations of fact in the light most favorable to the non-moving party -- thus, in this situation the Judge would consider the Plaintiff's perspective on the facts. Then, when seeing the case from the Plaintiff's factual perspective, the Judge can either decide that there are no genuine issues of material fact and grant the motion (and thus enter a judgment as to the application of law upon these facts), or can deny the motion and proceed with the trial setting, etc.
Summary Judgment is basically an opportunity for one side to convince the court that they're entitled to an "automatic win." Depending on the perspective, it's either the Defendant arguing that Plaintiff can't legally win even if all of the Plaintiff's factual allegations are true, or the Plaintiff saying that the Defendant hasn't disputed any of the Plaintiff's factual allegations and thus the Plaintiff should win as a matter of law.
All told, an MSJ can be a way to reach a resolution in a case without the time and expense of going to trial. That said, if there are obvious disputes as to what the material facts are (as opposed to, say, what the proper application of law is to a set of generally agreed upon facts and circumstances), then the MSJ process isn't likely to result in resolution, and rather it is likely just a waste of time and procedural process.See question
I want to start watching children in my home. I will have no more than 3 kids at one time. I rent my townhouse, am i able to do this?
Most leases restrict a renter from operating a business in the rented/leased spaced, often with a contractual clause and/or provision indicating that "The Premises (or property, house, dwelling unit, etc.) is to be used for residential purposes only."
Beyond merely the lease itself, you're always going to need to look into any possible state licensing requirements, as well as local zoning issues.See question
A 72 hour non-payment of rent has been given to the tenant. I'm looking for someone who will file the FED Monday, the 13th ideally, and represent me in court on the designated day as I will be out of town beginning next week for 3 weeks?
The cost to file the FED is relatively small -- about $80 -- and the costs for service range, anywhere from $36 to $60 or so. The attorney fee time is ultimately the biggest expense, ranging anywhere from around $200 to $400 per hour. There are a variety of local firms and attorneys that handle this type of work, and their specific up-front fee deposit requirements can vary.
If you're out of town for 3 weeks, however, you can have an attorney represent you at the initial first appearance, but if the tenant requests a trial, it's likely imperative that you would be there to be able to testify and present evidence substantiating your claims. Given the relatively quick turnaround in FED cases, it's not uncommon to have a trial setting some two to three weeks after initially filing the case.See question
We have a hearing tomorrow for eviction. Our landlords have been telling lies to get us evicted so we were wondering what an appropriate legal reason for disputing the eviction would be? Any help would be appreciated, Thank you.
An eviction is typically for one of two section of terminations, with a few different underlying reasons:
For Cause Termination:
1) 24 Hour Emergency Termination
2) 72 hour / 144 hour Non-payment of Rent Termination
3) 30 Day For Cause (lease term breach) termination
No Cause Termination:
1) 30/60/90 Day No Cause Termination
All of the above methods require that a landlord prove a valid landlord/tenant relationship with the defendant, and require that the landlord first properly draft and serve a legally adequate notice of termination prior to commencement of the eviction action (FED). Thus, many successful defenses of eviction cases are on the basis of the adequacy of the notice itself or other technicalities.
Substantively-speaking (as opposed to technical or procedural issues) the most common defenses to "No Cause" terminations are either unlawful retaliation or illegal discrimination.
As it concerns the various "For Cause" terminations, however, there is a wide range of substantive issues that can provide the basis for a defense, as the landlord must prove that 1) there is an enforceable law, lease term or clause, or other legal obligation or duty, 2) that the tenant broke that law, breached that term, clause, obligation or duty, 3) that the tenant was properly notified and had a lawful opportunity to cure, and 4) that the tenant either didn't cure and/or couldn't cure.
The specifics of the responsive Answer to the plaintiff's/landlord's Complaint can thus take a wide variety of forms. At the least, it involves either Admitting or Denying each individual numbered paragraph as contained with the Complaint. Beyond that, it can address any number of potentially relevant affirmative defenses and/counter claims that may be appropriate in the circumstances. The court typically has blank, basic forms that a tenant can fill in and use, but you can also put together a more robust and thorough Answer if appropriate. Either way, if at 1st appearance a tenant demands a trial on the eviction, then it generally must then file with the court and serve upon the plaintiff/landlord its Answer by the end of that same day.See question
I recently purchased a property at a sheriffs sale. I know that there is a 6 month redemption period. Is there a way to have speed that up. ?I heard you can get the previous owner to sigh a release. If so, what kind of release is it?
It's not so much that you danger the previous owner to sign a release, but rather more typically a foreclosure purchaser can attempt to negotiate and buy the redemption rights from the previous owner.See question
A while ago I was fired from my job for immoral, but not illegal reasons. I am owed a commission check for about 40 dollars. (They gave me my hourly check) The terms of commission pay were not clearly stated in writing, but the owner of the busine...
Entitlement to commission wages is a relatively tricky area of law, often depending upon contractual obligations.
Entitlement to penalty wages is a highly technical area of law, often depend upon adequacy and timeliness of written notices and demands.
All told, if you can get a judge to simply call the employer and convince them to deliver you a check, then more power to you. Procedurally, that is not at all how the process works. Rather, you're going to want to consult with a plaintiff's employment attorney to review your case and assist with perfecting any potential claim you may have to unpaid wages.See question
I recently acquired an apartment building. Most units are occupied by tenants at well below market rents. Am I subject to prior owners lease agreements? Specifically, I'd like to raise the rents a bit (still far below market). I've read tha...
Yes, you assume the rights of the prior landlord as to all current leases. There's often issues to properly assess and/or address (security deposits come to mind) that you'll want to ensure you're attending to.
Then, gathering historical information (duration of occupancy/tenancy, any lease fixed terms, any previous rent raises) is all factual information you'll want to have available.
If you have tenants agree to a new lease with a fixed term, and/or other new terms, it may not make much of a difference. However, entering into an all new agreement is not necessarily a given since current tenants occupants can refuse to execute a new agreement, though remain tenant/occupants under their current leases.See question
I have a tenant that has had brain tumors removed and is supposedly having another procedure done next week. The problem is that she has brought her husband on the property whom I had previously told not to come back after an incident where he thr...
You'll want to review the lease terms and review what possible "For Cause" termination possibilities exist, and then collect evidence and provide written notices as appropriate, whether for possible 24 hour notice or 30 day notice.
A full documented evidence file of properly drafted and served notices -- as well as things like police reports, etc -- is going to be absolutely necessary, as proceeding with an eviction case and then losing is a particularly expensive endeavor. Thus, you'll also want to consult with and likely retain an attorney to assist you.See question
I WAS ASSULTED BY HOME DEPOT EMPLOYEE . I WAS A CONSUMER . I WENT TO MT. HOOD EMERGENCY AND HAD X RAYS TAKEN OF MY FACE . I RECIEVED A FRACTURE TO MY FACE A ZYGOMATIC FRACTURE ,CHIPPED TOOTH , AND RIGHT TORN SHOULDER MUSCLE THAT BOTHERS ME STILL...
If you've suffered personal injuries, I'd imagine you'd want to consult with a personal injury attorney.
Anyone who is assaulted (and battered, presumably) and suffered injuries and damages because of it is going to want to collect as much documentary evidence as possible: any incident reports, the police report, medical records, treatment records, insurance claim records, insurance billing histories, and the like.
You indicate that you were a consumer and the assailant was a Home Depot employee, but you don't go into much detail about the setting, time, place, or location f the incident, nor about the circumstances. (And, indeed, you shouldn't likely begin providing background factual information publicly online.) However, depending on the situation, it's *possible* that you might have a viable claim of liability against the employer. However, if the incident occurred elsewhere and/or was unrelated to the employee's scope of employment, you may well just have a viable claim against them individually.
All told, you should refrain from posting online about any of the situation before you've spoken with and retained an attorney.See question
I WAS ASSAULTED BY A LOSS PREVETION EMPLOYEE AT HOME DEPOT AS A RESULT OF THIS ASSULT I HAD A FACIAL FRACTURE AND BROKEN TOOTH AND FACIAL CONTUSSIONS RIGHT SHOULDER MUSCLE CONTINUES TO BE BOTHERSOME
Your first step should be to visit a medical professional to receive treatment for your injuries. Likewise, you need to consult with a lawyer ASAP to review the facts and circumstances of the situation, and to evaluate your injuries and the possibility of asserting liability and receiving compensation for the damages you've suffered.See question