Friday, April 10, 2015

Legal Definitions - I


In pro per – a person who does not have an attorney, who represents himself in court. An attorney who represents himself in his own case generally has a fool for a client. Some pro per parties do okay in court. Most don't.  And pro per parties who demand jury trials never do.

Injunction - an order issued by the court that requires a party to do something [mandatory injunction] or prohibits a party from doing something [prohibitory injunction]. Some types of injunctions are illegal, for example, you can't be required to continue working at a job [which is slavery]. Most of the injunctions I deal with are prohibitory – the court prohibits a lender from foreclosing or a landlord from evicting. These injunctions generally require the party who obtains the injunction to pay the enjoined party the reasonable rental value of the property monthly until the injunction is removed. Approximately one-hundred percent of parties who obtain an injunction think it's unfair to have to pay rental value.

Intervention – a procedure where a non-party, someone who is not named as a plaintiff or defendant in a lawsuit, files a motion asking the court to be allowed into the lawsuit as a party. Now why on earth, you ask, would someone actually WANT to be a party to a lawsuit? The two most common examples are class actions and evictions. In a class action lawsuit, if you have the same type of claim [say, for example, you were one of thousands of persons overcharged on your phone bill every month for three years], you will receive a notice in the mail that generally says you are automatically included in the lawsuit unless you mail in an “opt-out” form. Then whatever resolution the original parties agree to, you get the same resolution unless you choose to sue the defendant yourself, which is usually way too expensive so you don't opt-out.  At some point you notice a credit on your phone bill for forty-two cents, even if your actual overcharge was something like three thousand dollars. In an eviction case [all terms are California only], anyone living in the house or apartment who is not named on the eviction complaint can file a form called a Claim of Right to Possession. That person is then automatically added to the case and will usually end up with an eviction judgment on their record. Obviously, most folks with common sense will choose to just move out without filing the form. Two cases where it is definitely beneficial are 1) in rent control jurisdictions, if you want to fight the eviction so you don't have to move out, and 2) in post-foreclosure cases where the new owner doesn't know you live there as a tenant and therefore you generally have 90 days instead of 3 days to move out. This procedure is often abused by prior owners in post-foreclosure cases, who file claims naming fictitious “tenants” to try to get more time in the home, often by filing fraudulent bankruptcy petitions. For this second reason, a lot of California post-foreclosure claims are filed by “Juan Lopez” and “Maria Sanchez”.  I have evicted so many Juan Lopez and Maria Sanchez from foreclosed properties that I feel bad for those people who actually have those names.

Irrelevant – A claim of fact that eviction defendants think is really important to their case but actually has almost no importance whatsoever. For examples in post-foreclosure cases: claims of cockroaches and other habitability problems by a prior owner, claims of lender misconduct when the new owner is NOT the lender. For examples in landlord/tenant cases: claims of cockroaches and other habitability problems in commercial cases or cases where the tenant didn't move out after a notice of non-renewal of lease.

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