Lien SOL - credit card rejected (California)

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Re: Lien SOL - credit card rejected (California)

Postby lacompfun on Wed Aug 09, 2017 7:53 pm

Interesting... fair size lien.....

Maybe send a notice to produce.... see if they can prove they had funds on the card.... That way you do not have to spend much time and effort on it if they cannot meet their burden of proof.... I agree it is their burden of proof.
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Re: Lien SOL - credit card rejected (California)

Postby vampireinthenight on Thu Aug 10, 2017 7:40 am

Sorry 50Cal20, I do not see it that way at all. If you do not prepare for contingencies, forecast opposing arguments from your adversary and the WCJ and assert every defense you can, you are throwing yourself at the feet of a judge to be sympathetic to you and your client. WCJs learn who these types are over time and are much more likely to do what they please when said parties are before them.

This is especially true when one is asserting a technical defense: SOL, defective pleadings, blown deadlines, failure to list evidence, failure to list witnesses, failure to plead injury in accordance with the evidence. One should never simply rely on the Labor Code or Regs to win these issues. A robot can practice that kind of law. Almost all technical bars to action have an element of equity which judges can use to make exceptions to the strict application. It's our job to anticipate them. Always, always think about how my client is prejudiced in any situation.
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Re: Lien SOL - credit card rejected (California)

Postby LawAdvocate on Thu Aug 10, 2017 8:54 am

Sorry, I would have been straight to the PJ on that one, we don't have to prove prejudice for the failure to file a LC 4903.05(c) declaration - they are dismissed as an operation of law. The Judge no longer had jurisdiction. That is an AUTOMATIC removal.

I did send a written demand for their documentation - Notices to Produce are only valid at a scheduled hearing. I want to get there and set it for Trial arguing they had adequate notice to respond bolstering my adverse infererence defense. It is not my job to make it easy for them.
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Re: Lien SOL - credit card rejected (California)

Postby steve appell on Thu Aug 10, 2017 2:26 pm

"The judge unbelievably made up his own rule on the spot and said the defendant must prove that a late filing of the declaration was prejudicial. If not, he was going to allow the lien to proceed."

So the WCJ is letting the LC have his/her day in court which will probably end up a take nothing and possible cost & sanctions due to SOL and "Torres." I think this is a better outcome than a RECON for denial of due process.
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Re: Lien SOL - credit card rejected (California)

Postby vampireinthenight on Fri Aug 11, 2017 8:20 am

It's not always about being "right". The more important consideration is getting what you want for your client in the most efficient manner. If you can come up with a prejudice argument you win with 2 minutes of effort. A lot faster and cheaper than appealing an adverse decision.
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Re: Lien SOL - credit card rejected (California)

Postby mytwocents on Fri Aug 11, 2017 9:03 am

Judges say all sorts of things to get the parties to settle. Tell the judge to put that in writing in the form of a finding of fact and I’ll bet he/she would back down pretty fast.

As for the lien claimant who claims a credit card snafu as the reason for not paying the filing fee, the Labor Code says: “The lien claimant shall pay a filing fee of one hundred fifty dollars ($150) to the Division of Workers’ Compensation prior to filing a lien and shall include proof that the filing fee has been paid.” If they didn’t get proof of payment for whatever the reason, they should have done whatever was necessary to get that proof ASAP. The only way I can think of that they’d have a viable excuse is if the credit card error took place at the last minute on the day before the statute ran and they couldn’t correct it until the following day.
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Re: Lien SOL - credit card rejected (California)

Postby lacompfun on Sat Aug 12, 2017 5:20 pm

It seems more like they file it on time or lose. If they can prove EAMS shut them out somehow due to technical error for which it is their initial burden to exactly prove, they might get around it. Unlikely they will meet their burden of proof.

It is kind of like Statute of Limitations. Defendant does not have to prove prejudice.
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Re: Lien SOL - credit card rejected (California)

Postby mytwocents on Mon Aug 14, 2017 2:26 pm

Today, the DWC issued a Newsline bulletin entitled “DWC to Dismiss More Than 292,000 Unresolved Liens.” You can find it at http://www.dir.ca.gov/DIRNews/2017/2017-75.pdf. So, that judge who refused to dismiss a lien that was filed 9 days after the deadline on the ground that the defendant needed to show prejudice may find that the DWC already did the job for him/her. I’m not sure what the DWC is going to do to memorialize the dismissal of liens by operation of law but perhaps something will be recorded in EAMS to reflect the dismissal just as they have done with stayed liens.
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