26 April 2022
/ Stefanie Kempfer Collier / Amy Clum Holbrook / Donald A. Mausar / Roy J. Schechter / Scott S. Weltman / Amanda R. Yurechko
You Have Questions, Our Cleveland Lawyers Have Answers
As a creditor, it’s always smart to familiarize yourself with law firms and attorneys who can assist you with all types of recovery matters, regardless of complexity or volume. That’s why we recently launched our new webinar series, Meet YOUR Local Lawyers, allowing you to “meet” our attorneys who are always here to deliver trusted, reliable representation whenever needed.
In the first edition of this series, we (re)introduced team members from our Cleveland office, including shareholders Don Mausar, Scott Weltman, and Amanda Yurechko, and attorneys Stefanie Kempfer Collier, Dan Friedlander, and Roy Schechter. Moderating this conversation was shareholder Amy Clum Holbrook, who manages the Cleveland Local Department. Combined, this team has over 175 years of experience in an array of services, including consumer collections, commercial collections, probate recovery, real estate default, and more.
During the session, our panel opened their collections toolbox and shared expertise on a range of topics from appeals and counter claims to non-performing judgments, dormant cases, workplace lawsuits, and so much more. Here’s an overview of the top questions they answered for participants.
1. How involved do I need to be as a client? Answered by Scott Weltman, shareholder
Client involvement is critical to the lawsuit process. While every case is unique and requires different levels of engagement, our attorneys prefer to interact with you, especially at the beginning, to ensure we have our bases covered. Other areas of the case that require your involvement include:
- Lawsuit background: Essentially, we need to know why you’re hiring our firm. This may be a simple answer but we prefer to have some dialogue to understand what’s involved and determine the best path forward.
- Discovery process: Whether we need information from you or the opposing attorneys/client request a deposition or mediation, we need you to be responsive so we can prepare you as much as possible.
- Documentation: Our team needs to see any documentation (i.e. promissory notes, loan documents, payment history, etc.) you have on hand which communicates why you’re owed money and proves that the defendant is not making outstanding payments owed to you. We attach these documents as exhibits when presenting the case.
- Court appearances: More complex lawsuits may require you to appear in court and offer testimony. If this is the case, our attorneys will get the court schedule and prepare you far in advance of the date.
2. What happens in a counterclaim case? Answered by Dan Friedlander, attorney
A counterclaim is a civil legal claim brought by a defendant against you in the same case. Generally speaking, the defendant can bring any legal claim they may have against you.
If you encounter a counterclaim, you need to follow important protocols, including:
- Put a litigation hold in place to avoid court sanctions;
- Temporarily suspend any electronic data retention/deletion policies to ensure you avoid eliminating or destroying relevant information, such as emails or files, needed during litigation. Contact your IT department to handle this as quickly as possible;
- Contact your business insurance and report the lawsuit claim in a timely manner to protect yourself in the event of an adverse outcome and to potentially cover attorney fees; and
- Review the counterclaim facts with your attorneys. Weigh the risks, costs, and benefits of your defense, as well as the merits of the case.
If you’re facing a counterclaim, your attorney(s) can help you determine the best and most cost-effective course of action, particularly one that leads to a positive outcome for you.
3. What happens when an appeal gets filed? Answered by Amanda Yurechko, shareholder
As the creditor, you will be in a position to consider the effect of an appeal whether you won or lost the case. If you lost, the natural inclination is to feel wronged and want to appeal to set it right. However, you have to step back and look at your case with a critical eye.
You should consider:
- Whether the case law in the area at issue is well settled and the court simply made a mistake in applying the law, or
- Whether there was a deficiency in your case.
Often times when a case gets to trial and has not settled, there are some corrupt facts, missing documents, or missing elements that the defendant was able to exploit. You should also consider whether a unique situation in your case will muddy settled case law in the area at issue.
The next consideration is what standard of review the court will apply. If you won or lost on a motion for summary judgment, the court of appeals will apply a de novo standard of review, which means they will give a new look at the entire case, including the facts and the application of the law. If the case went to trial, the standard of review with regard to any factual findings is an abuse of discretion standard. This means the court will give deference to the trial court’s finding of facts. They will review the law applied to the facts under a de novo standard.
If you were successful in your case, you should consider the potential of an appeal and the same factors when considering a settlement offer at this stage. An appeal can be a long and costly process, and is not guaranteed to end in your favor. Weltman can proceed with execution on the judgment even if an appeal is pending. Ohio Civil Rule 62 allows a defendant to seek a stay, but only with the posting of an adequate bond. The determination of what is adequate will be left to the court, but if you are successful in the appeal, the creditor can apply to have the bond applied to pay off or pay down the judgment.
Appeals can take six to 12 months to complete, and can be a costly process for both sides. It is important to weigh the risks, costs, and benefits of pursuing an appeal. Weltman’s attorneys can help guide you through this analysis.
4. How should you handle a dormant or non-performing judgment? Answered by Donald Mausar, shareholder
When reviewing your portfolio of judgments, it’s critical to identify any that are dormant, meaning they’re inactive and not making payments as outlined by the original court judgment.
To revive the judgment, you need to file a motion through the clerk’s office, which your attorney(s) can help you do. Some of the legal remedies in your toolbox may include property liens against real estate, in-court asset exams, post-judgment discovery, and/or attachments of personal property.
If you have a complex, non-performing judgment that deals with a difficult defendant, fraud, theft, or embezzlement, you’ll utilize the same tools as mentioned previously, but you’ll use them in a different manner. You and your attorney(s) will need to develop a strategy that includes a profile of the defendant and what assets they may or may not have in possession. At times, the best and fastest way to collecting on a judgment is coming to the table and discussing a resolution that is acceptable to all parties.
5. What should I do if I’m worried about a workplace lawsuit? Answered by Roy Schechter, attorney
Workplace lawsuits are often filed under discrimination (based on age, gender, national origin, religion, etc.), sexual or other harassment, unlawful termination, compensation issues, and hostile work environments. If you find yourself in a situation where you believe a current or former employee may pursue legal action, it’s very important to contact your attorney right away. Even if you believe there’s little merit to the case, workplace lawsuits can be very expensive and time consuming for your business. An attorney can help you navigate the situation and determine the most cost-effective path forward.
If you’re terminating an employee and concerned about legal action, you may consider offering a severance agreement. While many employees think that they’re entitled to severance, this is a false assumption. The state of Ohio is an at-will employment state, meaning that either the employer or the employee can terminate the work relationship at any time, for any reason with the exception of discrimination. All that said, a severance agreement may include provisions in which the employee receiving compensation agrees that they will not sue you. Severance agreements are enforceable in Ohio and can provide a lot of peace of mind.
If workplace lawsuits continue to keep you up at night, you may want to investigate insurance coverage for these matters. It’s smart to invest in a policy that protects your business and ensures you have the funds available to cover attorney fees and any damages you may be required to pay if a judgment does not go your way.
6. What is the eviction process in Ohio? Answered by Stefanie Kempfer Collier, shareholder
Whether you’re a property owner, landlord, credit union, or bank that has foreclosed on a property, you may encounter situations where you need to evict a tenant. The eviction process involves a series of important steps including:
- Determine if tenant is in default: Typical types of default include non-payment of rent, drugs in the unit, criminal activity, a breach of peace (i.e. loud music or noises that disturb surrounding tenants/property owners), or a pet in violation of lease agreement.
- Serve the appropriate notice: Next, you have to serve notice to your tenant pursuant to the Ohio Revised Code. If it’s a non-payment situation, you must serve what’s called a 3-day notice to your tenant. The 3-day notice is statutorily required by law and must include required certain conspicuous statutory warning language in bold and larger text.
- The 3-day notice is three whole business days, not counting the days of service, holidays, or weekends.
In other cases where there is a breach of peace, you are first required to serve a 30-day notice demanding termination of the improper behavior. If the tenant remains in violation once the 30-day notice expires, you would proceed with a 3-day notice followed by an eviction if the tenant continues to exhibit the improper behavior.
- Prepare the eviction complaint: The materials that your attorney would need from you include the lease agreement, a ledger, a 3-day and 30-day notice (if applicable), and, if the property is located in the city of Cleveland, your lead-based certification and affidavit and a current rental registration certificate. The Cleveland Municipal Court will not grant an eviction without a current rental registration.
- Writ of restitution: If the judge grants the eviction, the court will issue a writ of restitution, which authorizes and directs a designated judicial officer, called a bailiff, to serve the writ on the tenant. If the tenant fails to move out, the bailiff will oversee the physical move out of the tenant and the tenant’s possession.
For more FAQs from our Cleveland lawyers, watch our Meet YOUR Local Lawyers: Cleveland Edition webinar or reach out to any of our attorneys with additional questions!
This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.
