Legal Question in Appeals and Writs in California

We hired a loan modification company to work on our loan modification. That loan modification company was shut down by a real etsate department a couple months later. We filed a lawsuit with a small claims court against one of the owners of the company and the lawyer who signed the contract. None of them appeared at the court and we won the case. We were trying to collect the debt from the owner of the modification company but he filed bankruptcy. After that, about a year later after judgement was issued, we contacted the lawyer who signed our modification contract to collect the judgement. He said that he was not served the court papers and had no idea about the lawsuit. He tried to appeal it in the small claims court, but filed appeal too late and it was denied. Today (about 8 month later, after his appeal was denied) he paid us the judgement amount. And at the same time he filed a lawsuit against us with the Superior court. As he says, we did not pay him personly for loan modification services, but he paid us the judgement.

Just wanted to note, this lawyer was listed as an owner of that modification company with the Fictisious Business Name bureou.

Can superior court overturn small claims decision and make us return him the judgement?


Asked on 10/20/10, 1:09 pm

3 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

If he really wasn't served then he should have brought a motion for relief from default on that basis. Evidently he didn't do that. He is probably stuck with the judgment at this point.

You say that he has filed a lawsuit against you, but you don't say what causes of action he has alleged. In other words, you haven't told us the basis of his claim. I can't assess his chances without that information. I have a hard time imagining a plausible argument he could make, unless he disagrees with you in a substantial way about the underlying facts or the procedural history.

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Answered on 10/25/10, 1:57 pm
Anthony Roach Law Office of Anthony A. Roach

I agree with Mr. Hoffman. I would check with the State Bar's website and find out if this lawyer is on one of their lists for running a "loan mod" scam. If not, maybe he needs to be added.

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Answered on 10/25/10, 4:08 pm
Larry Rothman Larry Rothman & Associates

Most probably, the attorney's new lawsuit is barred since the attorney waived a potential cross-complaint. We would need to see the small claims court complaint and judgment both at small claims court and on appeal as well as the new lawsuit. You may be able to file a demurrer.

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Answered on 10/26/10, 6:03 am


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