The Regulation of Bitcoin and Other Digital Currencies

Bitcoin and other cryptocurrencies are based on blockchain technology.  These are revolutionary technologies that that can be utilized in many diverse fields such as finance and healthcare.

The use of Bitcoin and other cryptocurrencies is still in its early stages and is at present, like email in the 1990’s, or for those more technically astute, like modems when the technology transitioned from 28.8 kbps to 56.6 kbps right before the advent of  high speed cable and DSL.

Bitcoin and other cryptocurrencies are also known as digital currencies.

Now, there at least 1,000 digital currencies, with a total market cap of approximately $150 billion.

Bitcoin was the first and is the most well known digital currency and has the largest market capitalization which is currently $70 billion.  Numerous other digital currencies have arisen that have other functions.  Ethereum is a digital currency that can be used with smart contracts that can be self-executing.   A digital currency that has a much faster transaction time than Bitcoin is known as Litecoin.   Banks can send international payments across networks in real-time with Ripple.

Bitcoin was first used in 2009.  Bitcoin was created in order to provide more privacy, a lower transaction cost, and to offer protection from online thefts as occurred through providers such as PayPal.

The blockchain technology utilized by Bitcoin allows individuals and companies to establish a level of trust with unknown parties over the Internet.  Bitcoin allows for transfers of any type of digital information in a quick, secure, and verifiable fashion anywhere in the world.  Large corporations including IBM and NSADAQ, and even some governments around the world are in the process of utilizing blockchain technology.

Bitcoin is a digital currency that is created electronically.  It utilizes peer-to-peer technology to operate which means that there is no central authority such as a government or bank involved in the transactions.  Each transaction made with Bitcoin is recorded on an online ledger known as a blockchain that is very similar to a standard accounting ledger.  Anyone in the world can check to verify that the transaction took place.

The production process (mining) for Bitcoin involves people and businesses from all around the world operating computers that use special software designed to solve mathematical problems.

Bitcoins can be obtained in many different ways.  In addition to mining, Bitcoin can be obtained by exchanging a currency like the U.S. dollar for bitcoins on an online exchange such as Coinbase.

Bitcoins can also be obtained in exchange for goods or services.   Even some law firms are accepting payment in bitcoins.   Another method of obtaining Bitcoin is through a process known as “Bitcoin mining.”  This involves using special software to solve complex math problems in order to validate the authenticity of new network transactions.   Bitcoin miners are paid in Bitcoins.

While previous digital currencies suffered from the problem of double spending, where on could commit to one transaction, and if they were quick enough, able to commit to yet another transaction using the original amount spent, Bitcoin eliminates the possibility of the same Bitcoin being spent by more than user through the use of public-key cryptography in which both a public and private cryptographic key are generated.

Each user is assigned both a public and private key to conduct and authenticate all of their Bitcoin transactions.   Using Bitcoin does allow for a certain level of privacy.  However, it is not completely anonymous.  It is closer to being considered as pseudo-anonymous.

Tracking transactions involving large quantities of Bitcoins is possible by using sophisticated computer analysis on the blockchain.  Thus, it is possible for law enforcement using currently available technology to obtain information on individuals that are involved in Bitcoin transactions.

The use of Bitcoin is expanding rapidly.  For example, the online Bitcoin exchange known as Coinbase currently has over 8.8 million users and 29 million wallets.  At the present time, there are at least 46,000 merchants accepting Bitcoins via its payment network, including such well known companies as Dish Network, Expedia, and Overstock.com.

Bitcoin has increasingly become accepted around the world for its use in storing value, including derivatives, commodities, and securities products.

Consumers with low incomes have had difficulties accessing traditional banking opportunities not only in California and the United States, but also in other parts of the world, where the infrastructure simply does not exist otherwise.  Venezuela is a current case study.  Africa is expected to benefit most greatly from the technology underlying Bitcoin.

Bitcoin provides the billions of consumers around the world that do not have access to traditional banking opportunities a mobile platform to store and transact money.  Bitcoin can be transacted outside of normal banking business hours and does not require a visit to a brick-and-mortar branch.

Bitcoin is also an excellent method for transferring money internationally.  The transaction fees are lower than most currency exchange fees or Western Union.

Bitcoin offers more protection to merchants due to the fact that transactions cannot be reversed which eliminates the possibility for chargebacks or credit fraud, or data privacy leaks by hackers or scammers.  Bitcoin also protects consumers, who ultimately have a lower risk of credit phishing scammers and/or hackers from collecting, and ultimately exploiting, sensitive financial data.

A common misconception is that digital currencies are lightly regulated and transactions are allegedly essentially anonymous.  The truth is that digital currencies are highly regulated and it is possible for law enforcement to trace any particular Bitcoin transaction, much more so actually than paper currency.

Additionally, people and companies engaging in bitcoin-related business are heavily regulated by many regulatory authorities.  The United States Department of Treasury – Financial Crimes Enforcement Network known as FinCEN regulates bitcoin businesses that operate like Coinbase in the same way it regulates traditional money services businesses.  Coinbase complies with the same FinCEN reporting requirements as companies such as Western Union, by filing “Suspicious Activity Reports” meeting FinCEN-prescribed thresholds.

Numerous states such as Washington and New York, have regulations that cover Bitcoin-related businesses.

Many states are contemplating regulations even more stringent than those covering traditional financial services businesses.  On July 25, 2017, the SEC issued guidance covering what are known as Initial Coin Offerings, and the CFTC has stated that its regulations can apply to Bitcoin-related transactions.

Bitcoin is also anything but anonymous.  Bitcoin transactions can be tracked via the blockchain, which is a publicly viewable ledger. See Nicholas Godlove, Regulatory Overview of Digital Currency, 10 Okla. J. L. & Tech 71 (2014).

Because bitcoin transactions can be reverse-engineered via the blockchain, using bitcoin for money laundering or other illicit purposes “does not seem . . . particularly attractive.”

The European Union recently issued a report concluding that criminal use of digital currencies is “quite rare” due to transaction fees and a lack of sophistication when it comes to the technology tied to using them.

A recent case in the Northern District of California clearly demonstrates that Bitcoins are not anonymous or untraceable.  In that case two former federal agents were charged on March 25, 2015 with Bitcoin money laundering and wire fraud – in that case Bitcoin tracing analysis was used.

Some argue that the way money transmission is regulated may impede or stifle the growth of such new technology.  For example, payment companies in the United States are at present forced to have regulatory conversations with 53 states or territories rather than dealing with one federal body such as is done in the United Kingdom.

Any successful regulatory scheme will balance promoting the profound benefits of global banking via digital currency and protecting the public at large with sensible law making.

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

SCHEDULE A FREE CONSULTATION TODAY WITH ATTORNEY NATHAN MUBASHER.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

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What Attorneys Should Know About Bitcoin and More Importantly, Blockchain

Attorneys should increase their familiarity with Bitcoin and blockchain technology.

Assisting in securely transferring assets constitutes a substantial percentage of the work performed by many attorneys.  This form of asset management includes mortgage closings, sales of businesses, divorce cases and securities transactions.  Attorneys have a professional and ethical duty to oversee that such transactions occur successfully.  Because blockchain promises to provide such facility at volume, attorneys should become more knowledgeable about Bitcoin and the blockchain technology that makes it possible.

Some may argue that the odds are against Bitcoin gaining universal acceptance as an alternative currency.  Bitcoin was embroiled in controversy in its early years with the Silk Road, and more recently, Alphabay, both dark markets that ended up being disbanded.  However, it has become clearer over time that the technology is not to blame.  Criminals tend to be among the first adopters of any successful technology.  The internet is a great example.  However, when the drama and mystique are pushed aside, what is Bitcoin really?

Bitcoin is based on the blockchain technology that allows a transparent and efficient transfer of an asset between two parties in a decentralized and cryptographically secure ledger.  Blockchain is best thought of as a very innovative ledger that is distributed in a very secure manner that allows it to be “trustless.”

The blockchain technology records ownership of a particular asset such as a Bitcoin, and this information is transmitted across the entire ledger from the registered owner of the asset to the collection of parties in a network using an anonymous key.  If there is any change in ownership of an asset by any member of the anonymous network it is recorded and broadcast across the entire network yet again, including the anonymous authorization key that is used to verify the legitimacy of the transfer.  The risk of fraud and simple bookkeeping errors are drastically reduced because the entire record of the transactions is recorded by numerous parties across the network.  Blockchain technology thus can be used to record medical records, educational records and business records in a decentralized way that blows wide open the accessibility, malleability and applicability of such information.  This is especially true since because the information is no longer centralized, there is no single point of failure, that once struck, could bring the whole system down.  One power outage, or hack, has disabled many a large hospital or company in the past.

Blockchain technology is thus a very relevant technology for attorneys due to the fact that, if it does become widely adopted, not only for its use with digital currencies like Bitcoin, but for its use with digital assets or digital asset protocols, it will reduce the need for many transactions that are currently very complex, and that take a lot of time, such as escrow accounts and title checks.

The fact is that many Fortune 500 companies are currently investigating as to how they will be able to utilize the blockchain technology in their operations. These companies include many large banks and utility companies.  Banks for example are investigating how to do away with currency exchange fees that are incurred by exchanging one currency into a digital asset by utilizing a system called Ripple that automatically converts the house currency with the target currency in a matter of seconds saving banks potentially hundreds of millions of dollars a year.

Other cryptocurrencies such as Ethereum have already been developed and are currently being fine tuned to utilize them in corporate finance and other industries using “smart contracts.”

These newer cryptocurrencies are not intended for widespread use by consumers.  Instead they were developed and were intended to be used by businesses to utilize to ensure that the recording of the ownership of an asset, or any transfers of ownership can proceed faster and at a lower cost.  Some have called blockchain the future, as it is conceivable that as everything is moved on to blockchain, that such blockchains will act as the backbone for the Internet of Everything (IoE) as well as applications for artificial intelligence.

Attorneys that work in specialized areas of the law including securities law and litigation finance are likely to be among the first to become aware of blockchain technology in their practices.  In fact, blockchain technology has just recently begun to be utilized to speed the process for clearing securities.  Another potential use for blockchain technology would be in litigation finance where the companies could use it to create smart contracts that would allow them to become more efficient.

As we head toward the end of 2017, attorneys who haven’t already, should become more familiar with both Bitcoin and blockchain technology so that they will understand what a potential client is referring to.  Clients have already begun contacting attorneys asking for more information on using a smart contract based on blockchain technology.  Because blockchain is now moving from the innovation phase into the early adoption phase, those attorneys who understand blockchain now will be in the best position to be able to provide the clients much more complete legal services.  As more services move on to the blockchain, including court and county records, knowledge acquisition on blockchain will likely become mandatory to maintain competence as a legal professional in various practice areas.

See you on the blockchain!

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

SCHEDULE A FREE CONSULTATION TODAY WITH ATTORNEY NATHAN MUBASHER.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Collateral attack on a judgment in California

A collateral attack on a judgment in California is the topic of this blog post.

A collateral attack on a judgment in California requires the filing of a separate lawsuit which is also known as an independent action in equity.  A collateral attack on a judgment is fundamentally different from a standard motion to vacate a judgment in that it involves the filing of another lawsuit to vacate the judgment for lack of personal jurisdiction.  The complaint could also include other causes of action such as vacating the judgment on the grounds of extrinsic fraud or mistake if appropriate.

Advantages of a collateral attack on a judgment in California.

A collateral attack on a judgment in California has some very important advantages which include,

(1) there is NO time limit for a collateral attack on a judgment,

(2) because filing an independent action in equity involves a separate lawsuit, the party seeking to vacate the judgment is allowed the full range of discovery methods authorized in California litigation including interrogatories, requests for admission, requests for production of documents, depositions, and most importantly, the use of oral testimony as witnesses can be served with a subpoena to appear at the trial, and

(3) the fact that a California Court of Appeal ruled in a recently published decision that laches cannot be invoked as a defense in cases where there has been a complete failure of service of process upon a defendant.

And there is another important advantage in that even if a motion to vacate is made under section 473 of the Code of Civil Procedure and is denied that does not always preclude an independent action in equity to set aside the judgment, in other words the denial of the previous motion is not entitled to collateral estoppel effect although collateral estoppel may apply if the defendant had an opportunity to present oral testimony at the section 473 motion hearing and the issues were fully litigated.  See Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.

The California Supreme Court has stated that the reasoning behind the general rule that the denial of the previous motion is not entitled to collateral estoppel effect, which has been well settled in California for over 100 years, is the fact that, in the standard motion procedure, the moving party is limited to presenting ex parte affidavits of voluntary witnesses in most cases unless the trial court exercises discretion and permits a greater latitude.  In using the motion procedure the party does not have the right to produce oral testimony or to compel witnesses to attend for deposition or cross-examination.  The motion procedure, while simpler and more convenient, does not involve all the aspects of full litigation.  Because the remedies of a motion in the underlying case and an independent action in equity are cumulative, parties should be entitled to resort first to the convenient and expeditious remedy without worrying about the issue of collateral estoppel if the motion is denied.  Thus even if a section 473 motion has been denied, parties may still pursue an independent action that affords them all the advantages of a regular trial of the issue.

Technically speaking there is no time limit to filing an independent action in equity to vacate a judgment.  However if you have recently become aware that a judgment has been entered against you should contact an experienced civil litigation attorney that can evaluate your situation and determine if a collateral attack on the judgment is appropriate.

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Rule 60(b)(3) motion to vacate a judgment in United States District Court

A Rule 60(b)(3) motion to vacate a judgment in United States District Court is the topic of this blog post.

A Rule 60(b)(3) motion to vacate a judgment in United States District Court is filed on the grounds of fraud, misrepresentation, or other misconduct of an adverse party.

This motion is filed pursuant to Federal Rule of Civil Procedure Rule 60(b)(3) (“Rule 60”).

Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:  (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”

Deadline to file a Rule 60(b)(3) motion to vacate a judgment in United States District Court.

It should be noted that that the motion must be filed no later than one year after the entry of the judgment as Rule 60 states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

Requirements for a Rule 60(b)(3) motion to vacate a judgment in United States District Court.

A motion to vacate a judgment on the grounds of fraud, misrepresentation, or other misconduct of an adverse party is the appropriate motion if you can meet the burden of showing by clear and convincing evidence that,

The fraud or other misconduct resulted in a verdict against you’

The conduct prevented you from fully and fairly presenting their claim or defense, and

The fraud, misrepresentation or misconduct of the adverse party was not discoverable by due diligence before or during the trial.

“Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” See De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000) (citing In re M/V Peacock, 809 F.2d 1403, 1405 (9th Cir. 1987).

The Ninth Circuit Court of Appeal has ruled that obtaining an arbitration award through perjury is fraud. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir. 1982) (obtaining an award through perjury is fraud), cert. denied, 459 U.S. 990, 103 S.Ct. 346, 74 L.Ed.2d 386 (1982).

If you have recently become aware of fraud, misrepresentation or other misconduct by an adverse party that resulted in a verdict against you and prevented you from fairly presenting your case you should contact an experienced civil litigation attorney as soon as possible.

An experienced civil litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(3) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

Consumers Legal Remedies Act in California

The Consumers Legal Remedies Act in California is the topic of this blog post.

The Consumers Legal Remedies Act is act is also known as the CLRA and is a very potent weapon that may be used by a California consumer against a business or service provider who is using unfair or deceptive trade practices.  The CLRA provides remedies for unfair or deceptive trade practices and is very detailed.

Statutes governing Consumers Legal Remedies Act in California.

The statutes governing the Consumers Legal Remedies Act in California are found in Civil Code sections 1750 through 1784.  The damages available include actual damages, an injunctive order enjoining the acts, methods or practices, restitution, punitive damages and reasonable court costs and attorney’s fees.  A plaintiff who is a senior citizen over the age of 65 years or disabled as defined by subdivisions (f) and (g) of Civil Code section 1761 can also be awarded additional damages of up to $5,000.00 in certain cases.

Civil Code § 1780 states in pertinent part that,

“(a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:

(1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000).

(2) An order enjoining the methods, acts, or practices.

(3) Restitution of property.

(4) Punitive damages.

(5) Any other relief that the court deems proper.

(e) The court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.”

There are more than 20 separate categories of illegal practices listed in Civil Code § 1770.  These include passing off goods or services as those of another, using deceptive representations or designations of geographic origin in connection with goods or services, and representing as original or new goods that have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.

Requirements before filing a lawsuit under the Consumers Legal Remedies Act in California.

The CLRA does have some very specific requirements that must be followed.  Before a lawsuit can be filed requesting damages under the CLRA the plaintiff must first give the defendant notice of the violation and allow them a specific period of time to make things right.

At least 30 days before filing a lawsuit under the CLRA, the plaintiff must give the potential defendant notice of the alleged violation and demand that he or she “correct, repair, replace or otherwise rectify” the prohibited practices.  The notice must be in writing and sent by certified or registered mail, return receipt requested, to the place where the transaction occurred, or to the potential defendant’s principal place of business within California pursuant to Civil Code section 1782(a)(2).

The complaint must contain allegations that proper notice was given.  If a plaintiff files a complaint requesting damages without first sending the required notice, the claim can be dismissed.  This defect cannot be cured by amendment.  Failure to provide notice after litigation has started will not be effective, notice must be given in order to state a claim, failure to give notice before filing any complaint will result in a Court dismissing the case with prejudice.

Messages sent by email, fax, or standard mail are not sufficient, and the notice must also be sent to the place where the transaction occurred, or to the potential defendant’s principal place of business within California pursuant to pursuant to Civil Code § 1782 (a)(2).

The notice is intended to give the manufacturer or vendor sufficient notice of alleged defects to permit appropriate corrections or replacements, and to facilitate settlements of consumer actions wherever possible before a complaint is filed.

It should be noted that a plaintiff that is requesting only injunctive relief under the CLRA does not have to serve the required notice, and a plaintiff can file a complaint that requests only injunctive relief and later amend their complaint and request damages if they include allegations that they served the required notice on the defendant.

A defendant may establish good faith by introducing evidence of their attempts to comply with a consumer’s demand pursuant to Civil Code section 1782(3).

A defendant may avoid liability under the CLRA if they can prove that any alleged violation was not intentional; it resulted from a bona fide error; and they made an appropriate correction, repair, or replacement, or provided another remedy pursuant to Civil Code section 1784.

An experienced litigation attorney can evaluate your situation and determine whether sending a demand letter requesting that a business or company correct their violations of the Consumers Legal Remedies Act is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

Motion to expunge a Lis Pendens in California

A motion to expunge a Lis Pendens in California is the topic of this blog post

The technical name for a Lis Pendens is a notice of pendency of action. The term Lis Pendens is more commonly used and is Latin for pending lawsuit.

The statutes governing a Lis Pendens in California are found in Code of Civil Procedure sections 405.1 through 405.39.

Code of Civil Procedure § 405.20 authorizes the recording of a Lis Pendens and Code of Civil Procedure § 405.4 states that, “Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”

Law authorizing a motion to expunge a Lis Pendens in California.

A motion to expunge a Lis Pendens in California is authorized by Code of Civil Procedure section 405.30 which states that,

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”

Burden of proof on motion to expunge a Lis Pendens in California.

Once the motion to expunge has been filed the burden is on the plaintiff to show that at least one of the causes of action of their complaint states a real property claim.  The Court must order the notice expunged if the complaint does not state a real property claim.

Code of Civil Procedure § 405.31 states that,

“In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.”

Code of Civil Procedure § 405.32 states that,

“In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.”

Grounds for filing a motion to expunge a Lis Pendens in California.

The most common grounds for expunging a Lis Pendens in California are that the complaint does not state a real property claim as required by California law.

Another ground for expunging a Lis Pendens in California is on the grounds that it is void and invalid as the Plaintiff did not comply with the requirements of Code of Civil Procedure §  405.22 which states that, “ Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead of the proof of service required above, and the service on that party or owner shall not be required. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”

Code of Civil Procedure § 405.23 states that, “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”

The recording of a Lis Pendens against a real property clouds the title and may prevent any transfer of the real property.  Therefore, the Lis Pendens procedure is abused very frequently.

The California Supreme Court has stated that, Courts have long recognized that “[b]ecause the recording of a lis pendens place[s] a cloud upon the title of real property until the pending action [is] ultimately resolved . . . , the lis pendens procedure [is] susceptible to serious abuse, providing unscrupulous plaintiffs with a powerful lever to force the settlement of groundless or malicious suits.”  See Malcolm v. Superior Court (1981) 29 Cal.3d 518, 523, fn. 2, 524 (emphasis in original).

Several California Courts of Appeal have stated in published decisions that the history of the legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.

The California Courts of Appeal have stated in several published decisions that causes of action with equitable liens do not state a real property claim if those causes of action act only as an alternative or collateral means to collect money damages as the real purpose of the statutes is to provide notice of pending litigation and not to provide plaintiffs with more leverage for use in negotiating a settlement.

Causes of action for money only do not state a real property claim in California.

Attorney’s fees and costs available on a motion to expunge a Lis Pendens in California.

The prevailing party on the motion to expunge is entitled to reasonable attorney’s fees and costs pursuant to Code of Civil Procedure § 405.38 which states that,

“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to expunge a Lis Pendens is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Rule 60(b)(2) motion to vacate a judgment in United States District Court

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is the topic of this blog post.

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is filed using the  grounds of newly discovered evidence. Rule 60(b)(2) refers to the Federal Rules of Civil Procedure.

Rule 60(b)(2) states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

A district court may vacate a prior judgment where the court is presented with newly discovered evidence, an intervening change of controlling law, manifest injustice, or where the prior order was clearly erroneous. Fed. R. Civ. P. 60(b)(1)-(6); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) see also Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000).

A Rule 60(B)(2) motion to vacate a judgment is appropriate if you can meet the burden required of the moving party as detailed in this blog post.

Requirements for a Rule 60(B)(2) motion to vacate a judgment in United States District Court.

The party filing a Rule 60(b)(2) motion to vacate a judgment in United States District Court must meet their burden of showing that,

The newly discovered evidence was discovered after the trial;

They exercised diligence to discover the evidence;

The evidence is not just cumulative or impeaching evidence;

The evidence is material;

The evidence would most likely produce a different result if the judgment were set aside, and

The evidence could not have been discovered in time to move for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure which states that, “A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

And several Circuit Courts of Appeal have also stated in published decisions that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence.

If you become aware of new evidence that was material to your claim or defense and could not have been discovered earlier you need to contact an experienced civil litigation attorney as soon as possible to increase the probability that your motion will be granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(2) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.