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How to Defend Yourself Against a Real Estate Fraud Lawsuit
Real estate fraud can take many forms and can be tried in many courts. In criminal cases, real estate fraud can take the form of schemes outlawed by state or federal criminal statutes. For example, equity fraud occurs when someone steals the personal information of another and then uses that information to get a mortgage or other home loan.In civil cases, real estate fraud will usually take the form of contract fraud. If you are being charged with a crime, you should never have to defend yourself because an attorney will usually be available to you. Therefore, if you are sued in civil court for contract fraud regarding a real estate transaction, you can defend yourself by responding to the lawsuit effectively, preparing for court, and going to trial.
Responding to the Lawsuit
Analyze the complaint.You will know that you have been sued as soon as you are served with a complaint and summons. Service occurs when the plaintiff (i.e., the party suing you) gives you a copy of the lawsuit and asks you to respond. The complaint you receive will set out why you are being sued, what you are accused of doing, and how the plaintiff wants the case resolved. In your case, the complaint will allege that you committed real estate fraud against the plaintiff and that you should have to pay him or her damages. While there are many forms of real estate fraud (e.g., foreclosure rescues, mortgage eliminations, straw man schemes), the most common one you are likely to be accused of relates to contract law.
- Under most state statutes, real estate fraud consists of a false representation of a material fact made to induce a person into entering into a contract when that false representation is relied on by that person in entering into the contract. In addition, real estate fraud can usually be shown when there is a false promise to do an act when the false promise is material, made with the intention of not fulfilling it, made to a person for the purpose of inducing that person to enter into a contract, and relied on by that person in entering into that contract.
- After you read the complaint, be sure you look at the summons, which will tell you how long you have to respond to the lawsuit. Every state will have different rules but generally you will have about 30 days to respond after you receive the complaint.
Hire a lawyer.As soon as you look over the complaint you should consider hiring a qualified lawyer to help you in court. Litigating a case can be complex and time consuming and an lawyer is well equipped to help you through the process. To hire a lawyer, contact your state bar association's lawyer referral service. After you answer a few general questions about your legal troubles, you will be put in touch with a few qualified lawyers in your area. Once you have each lawyer's contact information, call and set up initial consultations.
- An initial consultation is a meeting to discuss your case with each candidate while assessing your comfort level with them. Be sure you ask about the lawyer's personal background, which might include how long they have been practicing, if they have dealt with similar cases to yours, and if they have been successful in defending suits like yours. You should also ask specific questions about your case, which might include possible defenses, time commitments, and your chances of being found not liable. Before you leave, make sure you understand how each lawyer charges for their services.
- Once you complete the initial consultations, review each candidate's credentials and hire the one you feel most comfortable with. The lawyer you hire should be trustworthy, honest, and zealous.
Build your case.Once you hire a lawyer, or as soon as you decide you will be trying the case on your own, you will need to start building your case. Look at the applicable law you have been sued under and consider the best way to defend yourself. Defenses to real estate fraud liability take many forms and can protect you in many ways. These defenses will need to be raised in your answer. For example, some of the most common legal defenses to real estate fraud include:
- Procedural defenses, which are claims you will make if you think the plaintiff did something wrong in filing the case. Some of these defenses will only stall the case while others could dismiss it forever. For example, if you raise the defense that the plaintiff did not state a valid cause of action, a judge will likely dismiss the case but allow the plaintiff to refile. However, if you raise a statute of limitations defense, a judge might dismiss the case forever. In Texas, for example, if a real estate fraud case is filed more than four years after the fraud occurred, the case must be dismissed forever.
- Elemental defenses, which are claims that the plaintiff cannot prove one or more elements of the fraud. If you successfully raise one of these defenses, the plaintiff will lose. The plaintiff is required to prove every element of fraud in order to win a lawsuit. For example, if you can prove that the misrepresentation was not material, or that the plaintiff did not rely on the misrepresentation, the court will rule in your favor.
- Damage defenses, which are claims that the plaintiff, if he or she can prove all of the elements of fraud, should not be able to collect as much as they are asking for. In a fraud case, damages will include actual damages, exemplary damages (damages meant to punish the defendant), and attorneys' fees. For example, exemplary damages are only available if the fraud was committed with actual awareness (i.e., you lied on purpose). Therefore, if you can prove to the court that you did not lie on purpose, you may be able to have any award against you reduced.
Draft your answer.When you know what defenses you will be raising based on what the plaintiff claimed in his or her complaint, you will need to respond to the lawsuit by preparing an answer. An answer is a formal response to the complaint that raises your defenses to the lawsuit. In addition to raising defenses, you will also answer each one of the plaintiff's allegations by stating whether you admit or deny them.Answers must be written onpleading paper, which is a specific type of paper that can usually be found online.
Make a cross-complaint.In addition to filing an answer, you may choose to file a cross-complaint as well. You will file a cross-complaint if you believe the plaintiff is actually at fault for something that arises out of the same cause of action that you are being sued for. You cannot use this opportunity to sue the plaintiff for something completely unrelated to the fraud, however.
- For example, if you believe the plaintiff was actually the one who fraudulently induced you into entering into the real estate transaction, you may choose to file a cross-complaint that alleges the plaintiff committed fraud.
File your answer.When you are finished drafting your responsive documents you will need to file them with the clerk of courts in the same court where the plaintiff filed his or her case. When you file your answer, it will be stamped as "filed" as soon as you pay the filing fee. If you cannot afford the filing fee, you can ask the court to waive it, but you will have to show that paying it would cause you a financial hardship.
- The filing fee you are charged will vary depending on the state you live in and the type of court your case was filed in. In California, for example, filing fees may be anywhere from 0 to 5. In addition, if you are filing a cross-complaint, you may be charged an additional fee.
- Be sure you file your response before the deadline stated on the summons. If you do not you may receive a default judgment against you.
Serve the plaintiff.Once you have filed your response to the plaintiff's lawsuit you will have to serve a copy on the plaintiff. To do this, have someone 18 or older, who is not related to the case, give the answer to the plaintiff either in person or through the mail. Once the plaintiff has been served, be sure you get a signed proof of service form from the server. This form will have to be filed with the court to prove you actually served the plaintiff.
Taking Part in Pretrial Actions
Conduct discovery.Discovery is one of the first stages of litigation after the pleadings are exchanged. During discovery you and the plaintiff will exchange information in order to prepare for trial. You will be able to interview witnesses, gather documents, see what the other side will say, and figure out how strong your case is. In order to do these things, you will be able to use the following tools:
- Informal discovery, which might include include interviewing witnesses, gathering publicly available documents, and taking photographs.
- Depositions, which are in-person interviews with witnesses and the plaintiff. These interviews are conducted under oath and the answers can be used in court.
- Interrogatories, which are written questions posed to witnesses and the plaintiff. The answers must be submitted under oath and they can be used in court.
- Requests for documents, which are formal requests to the plaintiff asking for documents that are not otherwise publicly available. Examples of common documents include emails, text message, and memos.
File a motion for summary judgment.As soon as discovery concludes you should consider filing a motion for summary judgment, which, if successful, would end part or all of the litigation immediately. To be successful you will have to persuade the court that there are no genuine issues of material fact and that you are entitled to judgment as a matter of law. In other words, you will have to show the court that even if every factual assumption was made in the plaintiff's favor, you would still win. You can submit evidence and affidavits to help make your case.
- Your motion for summary judgment should include absolute defenses to fraud that you think might be successful. For example, if you do not think the plaintiff has enough evidence to show that he or she relied on your misrepresentation, bring this up here.
Attempt to settle.If your motion for summary judgment is unsuccessful, it might be a clue that you want to settle. Going to trial involves a large time commitment and a lot of money. To avoid trial, sit down with the plaintiff and discuss a possible solution. If you cannot come to a settlement on your own, consider trying the following:
- Mediation, which occurs when a neutral third party sits down with you and the plaintiff to try and find common ground. The third party will be present during your negotiations but he or she will not take sides or voice opinions.
- Arbitration, which occurs when a third party acts like a judge. You and the plaintiff will each have an opportunity to present your case to the arbitrator. After this, the arbitrator will take sides and voice their opinion.
Attend the final pretrial conference.If you do not reach a settlement, you will be required to attend one final pretrial conference before the trial begins. At this meeting, you and the plaintiff will sit down with the judge and discuss the issues that need to be resolved at the trial. The judge will create a trial road map and schedule based on what each party says during this conference. Therefore, it is important you raise every possible issue you want to discuss at trial. If you do not bring an issue up, you may not be able to raise it at trial.
Going to Court
Give an opening statement.Trial will start with each party giving an opening statement. The plaintiff will get to go first and you will follow. In some states, you can choose to hold-off until the plaintiff is done presenting his or her case. Your opening statement should give the court factual background on the case and provide a road map of the trial. You want your statement to make clear that the plaintiff can not prove his or her case and that you will win. However, do not discuss any particular evidence and do not make things confusing.
Cross-examine the plaintiff’s witnesses.After opening statements, the plaintiff will present his or her case to the court. After the plaintiff questions each of their witnesses, you will have an opportunity to cross-examine them.During cross-examination, you will ask the plaintiff's witness questions to try and discredit their testimony or catch them in a lie. For example, assume a witness stated during direct examination that they were not aware of a leaky roof. However, when you deposed that same witness earlier, they stated they knew of the leaky roof. During cross-examination, you would want to bring up the witnesses statements they made during the deposition.
Present your case.When the plaintiff rests and is done presenting their case, you will have an opportunity to present yours. To present your case, call witnesses to the stand and offer evidence in the form of testimony and physical exhibits. All evidence you present to the court must adhere to the local rules of evidence, which can usually be found on the court's website.
- After you ask each witness questions, the plaintiff will have an opportunity to cross-examine them. Be aware of this and try to prepare each witness for possible cross-examination questions.
Deliver a closing argument.After you present your case and rest, each party will deliver a closing argument to finish the trial. The plaintiff will go first and you will follow. During your closing argument you will want to tie the whole case together and reiterate the fact that you are not liable. Point to specific pieces of evidence that really helped you at trial and emphasize them. Use this time to connect with the court and make one last plea.
Await the verdict.When the trial is complete, the fact-finder (i.e., the judge or jury) will take some time to deliberate and consider the evidence that was presented. When the fact-finder comes to a conclusion, they will state their verdict in court. If you win, you will not be found liable and you will not have to pay the plaintiff any damages for real estate fraud. If you are found liable, you will have to pay the amount stated in the verdict. If you do not agree with the outcome, you may be able to appeal to a higher court.
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