![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
court update
Nov. 10th, 2007 05:49 pmI didn't win.
I also didn't lose, because I was previously successful in making the counter-claim not just go away, but in that the Judge ruled that I did have standing to bring the claim. That is important.
Thursday was hard, but Friday was much easier. Sitting on the stand giving testimony and then being questioned was so much easier than being the one standing there asking the questions. Her cross-exam of me was fast-paced, overly-aggressive (at least I thought), and transparently manipulative, as she tried to get me to say yes to several questions that were both not factual and contrary to the documented evidence. Sitting there and just repeatedly saying "no" wasn't difficult at all.
But, when I was done with my witnesses, she got to motion for what's called a "direct verdict", which means I didn't prove enough evidence to meet my claims. In his ruling on that motion, the Judge acknowledged that I did show extensive evidence for breach of contract, but that it didn't rise to the level of fraud, except for a single instance. And in that case, it was really my insurance company who had the grounds to claim fraud, and not me. He also said that while the defendant would have defrauded me had I paid any of his last invoice, the fact that I didn't means that no fraud was committed, even though he tried.
The Judge also acknowledge that I was correct in that the defendant did indeed make false statements on his bankruptcy pleading, but that the didn't meet the standard of being material, as they either were issues of fact that wouldn't have changed the outcome. And his not indicating that he had an outstanding account with regard to my invoice simple, at only $7,220.00, wasn't significant enough to deny his bankruptcy over, as the Trustee wouldn't have likely pursued that amount of money.
He also pointed out a previous construction case which was the only one where he denied a bankruptcy as a result of an adversary proceeding. The key there was a clause in the contract that required the contractor to keep the money from the customer separate from all his other money, which created a "fiduciary relationship", which is something that was lacking in my case.
A single line the contract would have changed all of this in my favor, and most likely would have done so back at the summary judgment hearing. The judge acknowledged that the defendant's statement of income was very likely false, that it was too low, and that for at least three months running in 2004, the defendant was paying a significant portion of his personal expenses out of the money for my job. Unfortunately for me, that's not fraud, just breach of contract and incompetent business.
The Judge made it clear that he wasn't exactly impressed with the defendant, and at one point actually used the word "stupid" in speculating on why the cost of the work was so poorly estimated and managed. What he thinks of the defendant's attorney will be revealed next, as she is going to file a motion asking the court for me to pay her fees.
I looked at the rules and they are spectacularly unclear about the criteria for deciding fees. What they are clear on is that it's not an automatic decision that the loser, or in this case, the non-winner pays. There was an adversary proceeding back in September where the plaintiff didn't prove sufficient evidence, and looked to have come-up even shorter than I did, but didn't have to pay costs. So I'm not terribly worried other than having to make the time to write an objection to her motion, file it, and appear at one more hearing about this.
I guess I'm relieved that it's over, even if I'm not going to get any more money out of him. Sure, I'm disappointed by that, but I'm also just wanting to get on with it all. Now I can start doing that.
I also didn't lose, because I was previously successful in making the counter-claim not just go away, but in that the Judge ruled that I did have standing to bring the claim. That is important.
Thursday was hard, but Friday was much easier. Sitting on the stand giving testimony and then being questioned was so much easier than being the one standing there asking the questions. Her cross-exam of me was fast-paced, overly-aggressive (at least I thought), and transparently manipulative, as she tried to get me to say yes to several questions that were both not factual and contrary to the documented evidence. Sitting there and just repeatedly saying "no" wasn't difficult at all.
But, when I was done with my witnesses, she got to motion for what's called a "direct verdict", which means I didn't prove enough evidence to meet my claims. In his ruling on that motion, the Judge acknowledged that I did show extensive evidence for breach of contract, but that it didn't rise to the level of fraud, except for a single instance. And in that case, it was really my insurance company who had the grounds to claim fraud, and not me. He also said that while the defendant would have defrauded me had I paid any of his last invoice, the fact that I didn't means that no fraud was committed, even though he tried.
The Judge also acknowledge that I was correct in that the defendant did indeed make false statements on his bankruptcy pleading, but that the didn't meet the standard of being material, as they either were issues of fact that wouldn't have changed the outcome. And his not indicating that he had an outstanding account with regard to my invoice simple, at only $7,220.00, wasn't significant enough to deny his bankruptcy over, as the Trustee wouldn't have likely pursued that amount of money.
He also pointed out a previous construction case which was the only one where he denied a bankruptcy as a result of an adversary proceeding. The key there was a clause in the contract that required the contractor to keep the money from the customer separate from all his other money, which created a "fiduciary relationship", which is something that was lacking in my case.
A single line the contract would have changed all of this in my favor, and most likely would have done so back at the summary judgment hearing. The judge acknowledged that the defendant's statement of income was very likely false, that it was too low, and that for at least three months running in 2004, the defendant was paying a significant portion of his personal expenses out of the money for my job. Unfortunately for me, that's not fraud, just breach of contract and incompetent business.
The Judge made it clear that he wasn't exactly impressed with the defendant, and at one point actually used the word "stupid" in speculating on why the cost of the work was so poorly estimated and managed. What he thinks of the defendant's attorney will be revealed next, as she is going to file a motion asking the court for me to pay her fees.
I looked at the rules and they are spectacularly unclear about the criteria for deciding fees. What they are clear on is that it's not an automatic decision that the loser, or in this case, the non-winner pays. There was an adversary proceeding back in September where the plaintiff didn't prove sufficient evidence, and looked to have come-up even shorter than I did, but didn't have to pay costs. So I'm not terribly worried other than having to make the time to write an objection to her motion, file it, and appear at one more hearing about this.
I guess I'm relieved that it's over, even if I'm not going to get any more money out of him. Sure, I'm disappointed by that, but I'm also just wanting to get on with it all. Now I can start doing that.
