New trial motion under Rule 59(a) in United States District Court

A new trial motion under Rule 59(a) in United States District Court is the topic of this blog post. Federal Rule of Civil Procedure Rule 59(a) authorizes the filing of a motion for a new trial on some or all of the issues. A motion for new trial can be only be filed using certain grounds and must be filed within 28 calendar days after the judgment is entered. However if the stakes are high enough filing a motion for new trial can be very useful. And a timely-filed new trial motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion for new trial.

The main grounds for a motion for new trial after a jury trial are (1) the verdict is against the weight of the evidence; (2) newly discovered evidence: (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct although other grounds might apply in certain situations.

Federal Rule of Civil Procedure 59(a) states that,

“(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”

Rule 59(b) states that, ”(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

Depending on the circumstances of any particular case a party may actually have more than 28 calendar days to file the motion for new trial as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

The moving party must meet their burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not vacated and a new trial granted.

For example a party requesting a new trial on the grounds that the verdict is against the weight of the evidence has the burden of convincing the judge that the verdict is against the clear weight of the evidence or is based on evidence which is false or will result in a miscarriage of justice.

Parties requesting a new trial on the grounds of newly discovered evidence must show that the evidence in question was discovered after the date of the trial; that the moving party exercised due diligence to discover the evidence before the end of the trial; the evidence is material and not merely cumulative or impeaching; and the new evidence would likely have changed the outcome of the case.

A party requesting a new trial on the grounds of prejudicial conduct by the judge or opposing counsel must show that they were so severely prejudiced that they were prevented from having a fair trial. For example it is improper for a judgment to comment on any ultimate factual issues such as the issue of which party was negligent, which party breached the contract, etc. And a new trial can be ordered in cases where the opposing counsel committed misconduct at the trial that made it reasonably certain that the verdict was influence by the prejudicial statements. An opening or closing statement incorrectly expands any potential grounds of liability or takes away any benefit the aggrieved party may have won a prior motion such as a motion for partial summary judgment, violating an in limine order or the Federal Rules of Evidence.

The party requesting a new trial on the grounds of juror misconduct must show that the juror misconduct resulted in them suffering prejudice which could include extraneous information obtained by a juror from friends or relatives or a juror introducing facts or evidence acquired outside of the courtroom during jury deliberations.

Attorneys or parties that would like to view a portion of a 16 page sample motion for new trial in United States District Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/products_main.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Homeowner’s Bill of Rights in California

The Homeowner’s Bill of Rights in California is the topic of this blog post.   The statutes that govern the Homeowner’s Bill of Rights in California (HBOR) are to some degree a codification of the National Mortgage Servicing Settlement that was entered into between the attorneys generals’ of the various states and the five largest mortgage servicers in February 2012. The HBOR became effective on January 1, 2013 and includes sunset provisions for January 1, 2018 although many of the obligations imposed on mortgage servicers will continue beyond that date.

The HBOR has resulted in some major changes in the non-judicial process in California in that it provides important protections to California homeowners by imposing new requirements on mortgage servicers. The changes in the foreclosure process in California required by the HBOR statutes are listed below.

The first major change is that the HBOR requires new notices to borrowers under Civil Code section 2923.55, which both expands the existing pre-foreclosure notice requirements and prohibits a servicer from recording a notice of default until it has informed the borrower of their right to request copies of documents proving the mortgage servicer’s right to foreclose and that the borrower may be entitled to protections under the Servicemembers’ Civil Relief Act. In addition Civil Code § 2924(a)(5) requires a written notice to the borrower after the postponement of a foreclosure sale for more than 10 business days although a failure to comply is not grounds to invalidate an otherwise valid sale.

The HBOR also imposes a ban on the practice known as “dual tracking” as a mortgage servicer in California must now place a pending foreclosure on hold and not proceed any further while a “complete” first lien loan modification application is pending, on appeal, or while the borrower is in compliance with an approved loan modification agreement. A loan modification application is “complete” when the borrower has submitted all required documents “within the reasonable timeframes” set by the servicer. See Civil Code §§ 2923.6, 2924.11, 2924.18.

Mortgage servicers in California that conduct more than 175 foreclosures per year in California are required to provide a single point of contact by assigning a single individual or team of individuals with knowledge of the loan and status of the possible loan modification and must be available to the borrower as to such things as the loan status, foreclosure prevention options available and the coordination of documentation. A decision maker must also be available to a borrower.   These provisions are found in Civil Code § 2923.7.

The HBOR allows a homeowner to require any mortgage servicer to document their right to foreclose. The Act also clearly states that an entity cannot record a notice of default or otherwise initiate the foreclosure process unless it the holder of the beneficial interest under the deed of trust, the original or substituted trustee, or the designated agent of the holder of the beneficial interest. See Civil Code § 2924(a)(6).

The widespread practice known as “robo-signing” is now banned as representatives of a financial institution or servicer may not process foreclosure documents without verifying them for accuracy. See Civil Code § 2925.17.

Mortgage servicers are now required to have loss mitigation procedures under the HBOR as it states that unless a borrower has previously exhausted the first lien loan modification process, within five business days of recording a notice of default, servicers that conduct more than 175 foreclosures per year in California must send a written notice advising the borrower regarding foreclosure prevention alternatives pursuant to Civil Code § 2924.9. Receipt of an application for loan modification or any other documents must be acknowledged within five business days pursuant to Civil Code § 2924.10. If a loan modification is denied, the servicer must provide information regarding the time to in which to appeal the denial and any reason(s) for the denial pursuant to Civil Code § 2923.6.

Homeowners in California that are either in foreclosure proceedings or are seriously delinquent on their mortgage payments will find the HBOR provides at least some welcome relief from an otherwise confusing and frustrating non-judicial foreclosure process.

The author of this blog post, Stan Burman, is a freelance paralegal that has worked in California and Federal litigation since 1995. If you are in need of assistance regarding a pending foreclosure in California, Mr. Burman is available on a freelance basis for review, research and document preparation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Discovery in criminal case in California

Discovery in a criminal case in the State of California is the topic of this blog post. Penal Code sections 1054 through 1054.10 govern discovery in criminal cases in California. A defendant in a criminal case in California has the statutory right to requested specified materials and information from the prosecuting attorney. Before doing so they are required to comply with their obligation to furnish specified materials and information to the prosecuting attorney.

Section 1054.5(b) of the Penal Code authorizes any defendant in a criminal case in California to request all materials and information specified in Penal Code section 1054.1 from the prosecuting attorney who then has 15 days to furnish the requested items. If the prosecution does not comply the defendant may request a court order for the prosecution to produce the desired materials and information and the court has the discretion to order immediate disclosure, commence contempt proceedings, continue the trial and award other specified relief.

Penal Code § 1054.5 states that,

“(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.

(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.

(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.”

Penal Code § 1054.1 states that,

“The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

(b) Statements of all defendants.

(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

(e) Any exculpatory evidence.

(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.”

However before serving a request for discovery in a criminal case the defendant or their attorney should be sure to comply with the provisions of Penal Code § 1054.3 that require disclosure of specified materials and information.

Penal Code § 1054.3 states in pertinent part that,

“(a) The defendant and his or her attorney shall disclose to the prosecuting attorney:

(1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.

(2) Any real evidence which the defendant intends to offer in evidence at the trial.

(b) (1) Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action or a minor in a juvenile proceeding brought pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Code places in issue his or her mental state at any phase of the criminal action or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant or juvenile submit to examination by a prosecution-retained mental health expert.”

Serving a request for discovery under Penal Code § 1054.5 should be done at the same time that the defendant or their attorney provides the prosecuting attorney with the specified materials and information specified in Penal Code § 1054.3.

Attorneys or parties in California that would like to view or download a sample request for discovery under Penal Code section 1054.5(b) created by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting: http://www.legaldocspro.com/products_main.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Stay of execution of judgment in California

A request for stay of execution of a civil judgment in California is the topic of this blog post. A trial court has the power to stay the enforcement of any judgment under Code of Civil Procedure section 918. For most judgments such as a money judgment the trial court can stay the enforcement for no more than 10 days beyond the last date on which a notice of appeal could be filed.

The importance of immediately seeking a stay of execution of any money judgment cannot be stressed enough as Code of Civil Procedure section 683.010 states that, “Except as otherwise provided by statute or in the judgment, a judgment is enforceable under this title upon entry.” Thus a judgment creditor can begin collection proceedings to enforce the judgment as soon as the judgment has been entered by the clerk of the court. In appropriate cases the moving party may wish to file an ex-parte application for a stay of execution.

Each case is unique and there are different deadlines for filing a notice of appeal for both limited civil case and unlimited civil cases and other differences as well. Examples of the different deadlines will be given below.

California Rule of Court 8.822 governs the deadline for filing a notice of appeal in limited civil cases.

For most limited civil cases in which the clerk of the court or any party has served a notice of entry of judgment on the defendant the deadline to file a notice of appeal is 30 days from the date that the notice of entry of judgment is served on the defendant.

For most limited civil cases if no notice of entry of judgment was served on the defendant the deadline to file a notice of appeal is 90 days from the date that the judgment is entered by the clerk of the court.

California Rule of Court 8.104 governs the deadline for filing a notice of appeal in limited civil cases.

For most unlimited civil cases in which the clerk of the court or any party has served a notice of entry of judgment on the defendant the deadline to file a notice of appeal is 60 days from the date that the notice of entry of judgment is served on the defendant.

For most unlimited civil cases if no notice of entry of judgment was served on the defendant the deadline to file a notice of appeal is 190 days from the date that the judgment is entered by the clerk of the court.

Although the trial court has the power to stay enforcement of the judgment whether or not a notice of appeal has been filed some judges will be much more likely to grant a stay of enforcement in the following situations:

The moving party had a judgment obtained against them through default and they have filed or will file a motion to vacate that judgment that shows valid grounds for vacating the judgment.

The moving party has already filed a notice of appeal or will file a notice of appeal and can show at least facially plausible grounds for appealing the judgment.

The moving party should include a detailed declaration with specific facts and evidence detailing the irreparable harm they will suffer if a stay of execution is not granted. Possible grounds could include that the judgment was obtained by default and the moving party has filed or will file a motion to vacate the judgment, enforcement of the judgment will cause the sale of a key asset of significant value, would destroy an ongoing business or would precipitate insolvency or bankruptcy.

Attorneys or parties in California that would like to view a portion of a sample 17 page ex-parte application for of execution of judgment containing includes brief instructions, a memorandum of points and authorities, sample declaration, sample declaration regarding ex-parte notice and proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/products_main.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Petition to vacate an arbitration award in California

A petition to vacate an arbitration award in California is the topic of this blog post. Code of Civil Procedure section 1286.2 is the statute that lists the grounds on which a California arbitration award may be vacated. It should be noted that any petition to vacate an arbitration award must be filed within 100 days after the date a signed copy of the award is served on the petitioner pursuant to Code of Civil Procedure section 1288.

Vacating an arbitration award in California can be difficult unless the petitioner can make a sufficient showing that one of the grounds listed in Code of Civil Procedure section 1286.2. However it can be very useful if used in appropriate situations.

Code of Civil Procedure §1286.2 states in pertinent part that,

“(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following:

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.”

Several decisions of the California Supreme Court and Courts of Appeal have discussed when a arbitration award may be vacated.

It is established that the scope of judicial review of arbitration awards is extremely narrow in both the trial and appellate courts. See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11, 33.

However in a more recent case the California Supreme Court stated that the Legislature has provided for judicial review of arbitration awards in situations where there are serious problems affecting the fairness of arbitration process.

Another California Supreme Court case stated that the requirement of having a neutral arbitrator is essential in order to ensure the integrity of the arbitration process.

A fairly recent California Court of Appeal case stated that the arbitrator must give all of the parties to the dispute an adequate opportunity to present their evidence and arguments.

Other recent California Court of Appeal cases have stated that if an arbitrator fails to decide an issue submitted to them that this may constitute grounds for vacating the award; that courts may vacate an award where it violates a well-defined public policy.

However the party petitioning to vacate the award has the burden of making a sufficient showing of fraud as another California Court of appeal case stated that the petitioner must show that they did not have the opportunity to rebut or discover and then reveal the alleged fraud at the arbitration hearing.

In certain cases the court may order a rehearing before new arbitrators as Code of Civil Procedure § 1287 states in pertinent part that, “If the award is vacated, the court may order a rehearing before new arbitrators.”

As mentioned earlier a petition to vacate an arbitration award should be considered but only if the party can show sufficient facts and evidence to support one of the valid grounds and files a timely petition to vacate the award.

Attorneys or parties in California that would like to view a portion of a sample 14 page petition to vacate arbitration award containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/products_main.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Objecting to proof of claim in Bankruptcy Court

Objecting to a proof of claim in Bankruptcy Court is the topic of this blog post. Any party in interest may file an objection to any proof of claim filed in a Bankruptcy Case. All debtors in Chapter 13 are considered a party in interest and have the right to file an objection to a proof of claim filed in their case. Debtors in other cases such as Chapter 7 may or may not be considered as a party in interest depending on their case.

Bankruptcy law states that unless a party in interest objects any claim filed is deemed allowed. It is therefore critical that all proofs of claim be carefully reviewed to determine if there are valid grounds for filing an objection. The pertinent law is 11 U.S.C. § 502(a) which states in pertinent part that, any claim filed “is deemed allowed, unless a party in interest . . . objects.” The burden is on the party filing the objection to prove to the Court that the claim is not valid and should not be paid.

In particular a debtor or their attorney should carefully review any proof of claim filed to determine if the claim was timely filed as Federal Rule of Bankruptcy Procedure 3002(c) requires most proofs of claim to be filed no later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code.

It should be noted that Federal Rule of Bankruptcy Procedure 3001 contains numerous detailed requirements for each specific type of proof of claim and the proof of claim should be carefully reviewed to determine if it meets the strict requirements of Rule 3001.

Any objection to a proof of claim should be filed and served as soon as it has been determined that there are valid grounds for filing an objection.

Some of the more common grounds for objecting to a proof of claim are:

The creditor failed to attach sufficient documentation to prove that a debt is owed;

The amount of the claim is incorrect;

The same claim was filed more than once;

The claim was not filed in a timely manner;

The classification of the claim as secured or priority is incorrect, and

The claim states improper interest amounts or fees.

Anyone who wishes to file and serve an objection to a proof of claim should consult the local rules for their particular Bankruptcy Court and/or call the clerk of the Court as most of them have their own specific rules and procedures for objections to a proof of claim.

Attorneys or parties that would like to view a portion of a sample objection to a proof of claim created and sold by the author of this blog post can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

 

 

Rule 4(d) request for waiver of service of summons

A Rule 4(d) request for waiver of service of summons is the topic of this blog post. Rule 4(d) of the Federal Rules of Civil Procedure imposes a duty on any defendant who is an individual that is not a minor or incompetent, or is a corporation or association to avoid the unnecessary expenses of serving the summons. This blog post will discuss the pros and cons of this request which is also known as a notice of lawsuit and request for waiver of service of a summons and can be used in civil litigation in United States District Court.

There are certain advantages to both the plaintiff and the defendant being served with the use of a notice of lawsuit and request for waiver of service of a summons in that the plaintiff avoids the time and expense of issuing and serving the summons and complaint and the defendant is allowed 60 days after the request for a waiver is sent to respond to the summons and complaint. This is substantially longer than the 21 days allowed under Rule 12(a)(1)(A)(i). And the defendant is still entitled to raise all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action.

However there are disadvantages to the use of a Rule 4(d) notice which are listed near the end of this blog post.

Rule 4(d) states that,

“(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.”

The main disadvantage to the plaintiff with the use of a notice of lawsuit and request for waiver of service of a summons is that the plaintiff assumes the risk that the defendant may not actually receive the notice and request for waiver or that they will not comply and sign and return the waiver.

The main disadvantage to the defendant being served is that they waive any objections that no summons was served, or that the service was defective in any way.

Attorneys or parties who would like to view or download a 5 page sample notice of lawsuit and request for waiver of service containing brief instructions as well as a sample waiver of the service of a summons containing all required statutory language created by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.