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What are negligence elements a plaintiff has to prove in a suit for damages on account of the negligence of the defendant?
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∙ 14y ago
In general, a plaintiff in a negligence claim must prove the following elements: duty of care owed by the defendant to the plaintiff, breach of that duty by the defendant, causation (both actual and proximate) between the defendant's breach and the plaintiff's injury, and damages suffered by the plaintiff as a result of the defendant's breach.
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Compare and contrast Contributory negligence and Comparative Negligence?
Contributory negligence is a legal defense that completely bars a plaintiff from recovering damages if they are found to have contributed to their own injury, even minimally. On the other hand, comparative negligence allows a plaintiff to still recover damages even if they are partially responsible for their injury, with the compensation reduced by their degree of fault. Thus, contributory negligence is more strict and less forgiving than comparative negligence.
Is the plaintiff or the defendant listed first in a lawsuit?
The plaintiff's name will be listed first on the summons followed by the term vs. 'whomever'. If the question refers to multiple parties being sued it really doesn't matter as long as all the debtors are named. For example, if it is a joint credit card account, both account holders have to be named as defendants in the suit. When the suit involves a primary borrower and a cosigner the debtors are usually sued in separate actions.
What does lost in a sleep of negligence mean?
"Lost in a sleep of negligence" typically means being unmindful or unaware due to neglect or lack of attention. It can refer to a state of being careless or indifferent, resulting in overlooking important details or responsibilities.
Can a judge sentence a defendant any way they want?
No, judges are required to follow sentencing guidelines and laws when determining a defendant's sentence. Factors such as the severity of the crime, past criminal history, and any aggravating or mitigating circumstances are taken into account during sentencing.
When can a bank seize funds from your account?
A bank can usually seize funds from your account if you have outstanding debts owed to the bank and they have a right of set-off. This means they can use the funds in your account to cover what you owe them without requiring your permission. However, there are legal guidelines and procedures that the bank must follow before seizing funds.
Compare and contrast Contributory negligence and Comparative Negligence?
Contributory negligence is a legal defense that completely bars a plaintiff from recovering damages if they are found to have contributed to their own injury, even minimally. On the other hand, comparative negligence allows a plaintiff to still recover damages even if they are partially responsible for their injury, with the compensation reduced by their degree of fault. Thus, contributory negligence is more strict and less forgiving than comparative negligence.
Is the plaintiff or the defendant listed first in a lawsuit?
The plaintiff's name will be listed first on the summons followed by the term vs. 'whomever'. If the question refers to multiple parties being sued it really doesn't matter as long as all the debtors are named. For example, if it is a joint credit card account, both account holders have to be named as defendants in the suit. When the suit involves a primary borrower and a cosigner the debtors are usually sued in separate actions.
Waiver of jurisdictional defenses?
I believe this falls under 'change of venue'. A defendant or the prosecution may ask a judge to change the venue or to change the jurisdiction where the case is being prosecuted. This may be the case if a defendant believes he may get a fair trial. A jurisdictional defense is one based on whether the court has jurisdiction over the defendant. For example, if one has to be personally served but was served by some other, unauthorized means, the court may not have jurisdiction over that person. In other words that person has a jurisdictional defense to the action. If however, the person appears in court and does not raise the jurisdiction issue, he/she has waived that defense. Here's how this plays out. A plaintiff claims to have served a defendant with process. Once the defendant does not answer within the time prescribed by law, the plaintiff would then move for a default judgment. The defendant become aware of the default judgment when the plaintiff attempts to execute on it (e.g., restrain his bank account...) The defendant then files a motion/order to show cause asking the court to vacate the default judgment. The plaintiff agrees to vacate the judgment provided the defendant "waives jurisdictional defenses,"i.e. lack of personal service.
How do you respond to a civil suit filed by fia card service for a line of credit?
THE FOLLOWING IS NOT LEGAL ADVICE, AS I AM NOT A LAWYER. THIS IS FOR INFORMATIONAL PURPOSES ONLY!!1. I would search for "credit card lawsuit defense" and read that info. I found a law firm site that showed how they defend these suits that was very helpful.This site was really helpful, and will explain why I filed the answer below. Read part 56 of the linked page for more on this.I2. I would get help from the legal aid office in your county.3. Here is what I filed when they sued me here in FL:IN THE CIRCUIT COURT FOR THE 7THJUDICIAL CIRCUIT IN AND FORST JOHNS COUNTY, FLORIDACASE NUMBERCV09-xxxxxFIA CARD SERVICE, N.A.Plaintiffvs.xxxxxxxxDefendant/ANSWER1. Count 1: Defendant denies this is his account and hereby demands Plaintiff produce an original signed contract bearing Defendants name.2. Count 1: Defendant has no knowledge of Plaintiff and hereby demands written proof that Plaintiff is the holder in due course of this alleged debt.3. Count 1: Defendant has received no statement of account and hereby demands Plaintiff produce any and all such statements for Defendant's review.4. Count 2: Defendant denies this is his account and hereby demands Plaintiff produce an original signed contract bearing Defendants name.5. Count 2: Defendant has no knowledge of Plaintiff and hereby demands written proof that Plaintiff is the holder in due course of this alleged debt.6. Count 2: Defendant has received no statement of account and hereby demands Plaintiff produce any and all such statements for Defendant's review.Dated: ___________________________________________City, FL xxxxBack to my discussion:From what I understand AS A LAYMAN, if fia cannot prove the three foregoing items in my answer, and provide the original proof of these docs to me, I could file a motion to dismiss the case.I have learned that MOST OF THE TIME, the banks like fia will NOT have these docs, and will lose a case as a result!However, I am getting ready to file a federal counterclaim v. fia and their lawyers for FDCPA (Fair Debt Collection Practices Act) violations. I will ask the Court to remove the entire case to Federal Court.
What happens when a creditor sues you for a vehicle repossession and takes you to court?
Basically both the plaintiff and the defendant will have the opportunity to make statements pertaining to the case and present supporting evidence. The judge will then rule on which one proved their case. If the plaintiff wins they will receive a writ of judgment and can execute it against nonexempt property belonging to the defendant. The usual choice is wage garnishment or bank account levy.In some states the winning party can also collect legal fees and/or court costs that were incurred.
If a defendant doesn't answer a summons and compliant what next?
Usually the plaintiff moves to enter a default judgment on the complaint. In general, plaintiff will have to prove to the court that proper service of the papers was made on the defendant. In many cases plaintiff may also have to obtain letters from the various armed services branches to prove that the defendant is not away in the military. (This is not as difficult to do as it may sound.) If the court is satisfied that defendant has been properly served and was able to file answering papers but did not, it will let plaintiff prove his/her case either by affidavit or certification or by a proof hearing in court. A complaint is usually not a sworn statement by plaintiff, therefore any allegations in it have not yet been proved under oath. If the complaint is for a debt say on a credit card account, and the defendant defaults in answering the complaint, the credit card company usually has someone prepare an affidavit as to the amount of the debt. This sworn statement is now in evidential form and may be accepted by the court for entry of judgment. Courts will not simply enter a judgment for everything demanded in the complaint unless there is some sworn proofs to back it up. The procedure for this will vary from state to state. The state's laws and court rules must be consulted to find out the exact procedure.
Lets say - Judge Judy awards the plaintiff x amount of dollars for winning their case. I would like to know how does that plaintiff get paid. Does the plaintiff have to deposit the money into Court?
NO your Money will be deposited into a escrow account by your attorney. An escrow account is an account that your attorney name and your name is on that account. To make any withdrawal from tha account have to made by your attorney. You can close that account once that attoney receive their cost. but to close that account you are basically firing or relieving that attorney.
If you are delinquent in repaying your credit card debt can your bank account be 'frozen' if the account is with a different bank than the one in which you hold an account?
Even though I do believe your privacy policy has been invaded, I do believe the bank can freeze your account. Answer Yes, if the creditor obtains a judgment by means of a civil suit against the debtor the judgment can be executed as a bank account levy, this means the judgment creditor can remove all non exempt funds from the account until the judgment is paid. Where the account is joint and only one of the account holders is being sued and/or the creditor plaintiff believes the defendant debtor may try to withdraw all the funds the plaintiff can request the court to 'freeze' the account until the suit is settled.
If you do not appear in court on a notice to appear on credit card debt can you be arrested?
No, but the plaintiff will win the case by default. If the defendant fails to claim the exemptions for their property which are defined by state law, they may have to forfeit some property which otherwise may have been protected. If the defendant is a homeowner it is very important that they be aware of and use the homestead exemption to prohibit the possibility of a forced sale. The homestead exemption in most states will not keep a lien from being placed against the property or portion thereof owned by the debtor. Other actions that can be taken by the plaintiff to recover money owed are, wage or bank account garnishment, and liquidation of nonexempt assests owned by the defendant/debtor.
What if the plaintiff doesn't show up for court for charge card account?
they forfeit the case.
What if you're legally separated and someone has a judgment against the other person?
It depends on what type of judgment is in place. If the person is the sole debtor but there is still jointly owned property, the plaintiff can place a lien against the defendant's share. Or use the judgment as a wage garnishment or bank account levy. In some states joint accounts can be levied against. If that happens, the funds are frozen and the non-debtor must submit proof to the court what portion of the account belongs to them. If the debt was not joint the judgment will be only be entered on the PR of the plaintiff's credit report.
Defending a Business Lawsuit Worksheet?
Get StartedWhen a party is sued, a notice of the lawsuit is formally delivered by sheriff or process server to the business, the business's registered agent, or the officers or directors. The notice will state the name and address of the plaintiff(s) and the type of complaint filed.If you receive notice that you have been sued, you MUST ANSWER BY A DESIGNATED DATE. You should also notify your insurance carrier immediately. If you fail to answer the lawsuit, the judge may enter a "judgment" against you for all money or property claimed by the plaintiff(s) and require you to pay all court costs. A judgment is an official court order which may be enforced by garnishment of money owed to you or your bank account or by having the Sheriff seize and sell your property. You can attempt to have the judgment "set aside" (voided) if you do not receive proper notice, but this happens infrequently; other excuses are usually ignored.Even after the suit has been filed, the defendant has an opportunity to settle the dispute out of court. All parties may save both time and money by resolving the case prior to a court hearing. The defendant should contact the plaintiff and offer to discuss the dispute, possibly offering a settlement. If an agreement is reached, a "release" will have to be prepared and signed by both parties, and filed with the clerk of court. Once it is filed with the court clerk, both parties will be required by law to obey it. The plaintiff should also "dismiss" the action, to remove the suit from the court system.After considering the plaintiff's claim, the defendant may determine that some third party owes all or part of the amount being claimed by the plaintiff. In that event, the defendant should file a "cross claim" to bring in the additional party. Also, a "counterclaim" against the plaintiff may be filed by the defendant, asking for damages from the plaintiff to offset or exceed the claim made by the plaintiff.Some possible defenses available to the defendant are: "lack of jurisdiction," "failure to state a claim," "statute of limitations," "comparative negligence," "assumption of risk," and "failure to mitigate damages."The case will be heard by a jury if the suit was filed in the type of court which allows for a jury and either party demands a jury. For example, no jury is allowed in a court of Equity, which is a court that grants relief in the form of personal decrees instead of money damages.
